Friday, March 27, 2015

Tanzanian Lawyer on the Bill to amend Islamic Law

The Bill comes to amend or rather supplement the Islamic Law (Restatement) Act Cap. 375. This is a 1964 Act of Parliament that set the grounds of the Islamic law. The Act was mindful that there are schools of law in the Islamic religion, and wanted these schools to be recognized.

In terms of operation the Act empowered the Minister (responsible for legal matters) to prepare statements of Islamic law. These statements become the law that can be enforced in our ordinary courts. The Act is categorical that a statement of Islamic law when published (by the Minister) “shall be deemed to be an authoritative, conclusive and proper statement of the Islamic law in respect of the subject and according to the school to which it relates and shall be applied and given effect to accordingly by all courts in any cases and matters which are to be determined in accordance with that school of the Islamic law.” 

The Act makes provisions for two important exclusions: first, the statement of Islamic law cannot relate to criminal matters. A proviso in the Act states, “Provided that no statement shall include any provision purporting to declare any act or omission criminal.” So, by design the Act only permitted Islamic law to be recognized and applied to civil matters. And, not all civil matters but matters related to marriages and succession/inheritance. 

The second caveat is that application of the law is not mandatory to all Muslims. Put it differently, the statement of Islamic law will not bind a Muslim, unless that persons decides to follow the statement by choice.

As far as I know our Courts have in numerous occasions, applied Islamic law where parties go to court needing their rights to be determined in accordance with the Islamic law. The rights here are in the sense of personal status, marriage and inheritance.

Now what does the Bill brings in?

The central theme of the Bill is the mode (or forum) for administration of the statements of Islamic law. Now instead of the rights under the Islamic law to be administered by the secular courts, Kadhis’ Courts are established to deal with the application of the Islamic law. 

The Bill does not enlarge the scope of application of the Islamic law. It is maintained that the Islamic law shall apply to “personal status, marriage divorce or inheritance.”

So, the Bill introduces a new set of court system (Kadhi’s Court) do deal with the matters of Islamic law which were hitherto dealt with in the ordinary courts. As before, nobody is going to be forced to go to Kadhi’s Court. The proposed new section 4(4) in the Bill says: “Kadhi’s Court shall be self financed and parties shall subject cases and matters for determination by the Kadhi’s Court on voluntary basis.” 

Kadhi’s Court will not have the implementation machinery such as the police; court brokers, etc. To remedy that, the Bill proposes to empower the Minister to make rules to govern the enforcement of decisions of Kadhi’s Court.

Now my personal analysis of the Bill as a lawyer:

1. The Bill gives powers of making rules of procedure of the Kadhi’s Court to Mufti. I was wondering if all the Islamic sects would agree with the Mufti. I was wondering whether a college of scholars from various schools would have been a better organ for making such rules. 

2. The Bill does not provide for appeal system from the Kadhi’s Courts. It is silent what happens when one is not satisfied with the decision of the Kadhi’s Court.

3. Financing is a crucial point for the Kadhi’s Courts to function. The Bill only says that: “Kadhi’s Court shall be self financed…” Since this is an Act of parliament it is necessary, in my view to give some directions on the finances. Since Kadhi’s Court will be a statutory body some guidance are necessary for its finances. 


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