The current debate in East Africa over whether women can or should be appointed as qadhis in Sharia courts has caught my attention on various fronts. Who am I, you might ask, to comment on this issue from the southern tip of Africa, which has a different social, political and cultural milieu?
I was once a little girl who dreamed of being a judge, after my aunt explained to me that our last name actually means ‘judge’ (Kajee is a Gujurati pronounciation of qadhi, the Arabic word for judge). An ultra-conservative maternal uncle told me it was forbidden, that I’d be condemned to hell for such an aspiration. The dream was crushed – no child wants to go to hell, after all. It was decades before I realised I’d been misinformed. Presently, a female Muslim friend of mine is a judge here in Johannesburg, which in a vicarious sense, has vindicated my childhood dream.
An African Muslimah who has worked and traveled extensively in East Africa, as a researcher in governance and transitional justice; I sought out Muslim community wherever I went, and found more acceptance, commonality and congruence than I did difference. Cultures differ, the foundations of faith do not, whether a khutbah is delivered in Kiswahili or English or Arabic.
Yet, to my dismay and discomfort, I discovered that many of the (mis)interpretations of scripture and Prophetic example that exist in my home communities, are replicated in Muslim communities in Kenya, Uganda, Sudan, Tanzania and Rwanda, among others. It became evident to me that these interpretations, which I had long believed to be coloured by the patriarchal cultures and traditions that pre-date Islam in South Asia and have been imported into South Africa, had also found footholds in East Africa and flourished there. Influenced perhaps, by the trade across the Indian Ocean?
The appointment of women as judges (plural: qudath in Arabic) arbitrating questions of Shariah law (the body of religious legal prescription in Islam, including family law and transactional law), has been debated in modern-day Muslim societies for decades. Research by numerous scholars has failed to identify verses of the Quran or Hadith (prophetic tradition) that explicitly allow or prohibit women from becoming qudath. Instead, patriarchal readings prohibiting women have relied almost exclusively on “Islamic scholars’ understanding of a few verses of the Quran and Hadith that are related to women leadership”.i In view of this, several countries with Muslim majorities have appointed women to preside over Shariah courts on the basis of their qualifications, including Sudan, Malaysia, Indonesia, Egypt, Tunisia, Pakistan, Yemen, Bangladesh, Palestine and the Maldives.
Of course, the question of modern Shariah law is itself a subject for debate, as Amira Sonbol’sii research clearly reveals that before modern legal reforms, women in Muslim societies enjoyed greater freedom and voice (in arenas ranging from business dealings to marriage, divorce and dress-codes) than became the norm after the introduction of modern legal codification. But that’s a debate for another day.
In 2007, Egypt’s decision to appoint female judges stirred controversy, though it was supported by the Grand Mufti, Sheikh Ali Gomaa, who ruled that it did not contradict Islamic precepts. Mohamed Hamed al-Gemel, former president of the Fatwaa Council of Egypt, declared: “There is no specific provision in the Quran or Sunnah proscribing the appointment of female judges, so the interpretation depends on the rulings of contemporary jurists.”
In May 2021, the Grand Imam of Al-Azhar University in Cairo (widely acknowledged as the global authority on Sunni Islam) released a statement on official social media that stressed women’s equality in various areas. “Women are allowed to hold important positions in general including in the judiciary field and Iftaa,” he noted. Iftaa is defined as the eligibility to issue a religious opinion regarding various topics from an Islamic perspective.iii
In line with this, I was delighted to hear last month that Muslim women in Kenya have been calling for a female successor to the top job in the Kadhi courts (Kenyan spelling), which have existed in Kenya for over two centuries, and been constitutionally mandated since independence. When the 2010 Constitution was promulgated, the Kadhi courts were elevated to the same level as the conventional Magistrate’s courts.
I was further heartened to note that the incumbent Chief Kadhi, Sheikh Ahmed Mudhar, whose tenure is coming to an end, has supported this call, despite objections from some imams.
“As long as you have studied the Islamic Sharia law, you are entitled for the Kadhi position, irrespective of gender,” Mudhar said.iv
But Hassan Omar from the Council of Imams and Preachers of Kenya was outraged, expostulating, “In Islamic history, there has never been a woman Kadhi, so that should not happen now. A woman cannot officiate nor oversee marriages, and neither can they stand in to solve divorce cases, so that is impossible. If such a situation comes up, we will oppose it in the courts.”v
Omar’s rant is striking in both its defiance of the Al-Azhar ruling as well as its misinformation and ignorance of the many women qadhis in various countries.
By contrast, the input from female legal minds in Kenya has been measured and logical. Islamic law scholar Fatuma Juma emphasises that the appointment of a female Chief Kadhi would bring a fresh perspective on women’s issues that are currently poorly articulated, particularly in the arena of marital challenges. Given that the Kenyan Kadhi Courts deal primarily with personal law issues, pertaining to marriage, divorce and inheritance, and that the majority of those who use these courts are women, surely it makes sense that there should be both male and female qadhis?
Kevin Wanyoni’s research suggests that Kadhi courts are an important avenue for Muslim women in Kenya, a marginalised group, to access justice, but Wanyoni also notes that, of the five qadhis he interviewed, only one agreed that a woman could be a qadhi. vi
The basis for the four qadhis denial was that, according to them, women cannot preside over certain legal and religious duties, because they believe women cannot consent to or annul a marriage. These archaic notions deserved to be debunked once and for all. A marriage arranged without the consent or involvement of the woman is completely contrary to Islam and incongruent with the Prophetic example. When a woman told the Prophet Muhammad (may peace be upon him) that her father had forced her into marriage, he immediately gave her the option to instantly invalidate and dissolve the marriage or to accept it (if she had come to value it despite the initial circumstances). This very clearly illustrates the necessity of a woman consenting to marriage within Islam.
Similarly, all the major schools of Islamic thought agree that annulment/divorce may be initiated by both women and men. However, in some regions of the globe, the application of this principle has been problematic in practice, primarily because male jurists have constructed unreasonable hoops for women to jump through in order to dissolve their marriages.
I can cite having witnessed such obstruction here in South Africa, when I accompanied a friend to the local arbiter of Sharia Law. My friend’s nikaah was not recognised in South African law (something that may change if a recent judgement by the Supreme Court to recognise Muslim marriages is upheld by the Constitutional Court).
Her husband had abandoned her and their infant child, literally disappearing from their lives with no contact over a period of years. A fairly straightforward situation in which my friend should easily, as the victim of abandonment and neglect, have been granted a divorce. In actual fact, several unreasonable demands were made before she was finally granted a dissolution of the marriage. For example, she was required to place advertisements in national newspapers at great financial cost, in an attempt to locate her husband.
If South Africa does recognise Muslim marriages, female and male arbiters will be eligible to arbitrate aspects of Muslim Personal Law that have heretofore been the domain of male qadhis trained in patriarchal traditions and cultures.
In part 16 of the Quran, humankind is told that Allah (God) enjoins Adl (Justice) and Ihsaan (often inadequately translated as Kindness). Many commentators have noted that Ihsaan has no equivalent in English. “This means to be good, generous, sympathetic, tolerant, forgiving, polite, cooperative, selfless, etc. In collective life this is even more important than justice; for justice is the foundation of a sound society but ihsan is its perfection. On the one hand, justice protects society from bitterness and violation of rights. On the other hand, ihsan makes it sweet and joyful and worth living.”vii
This intentional juxtaposition of justice with ihsaan, which latter can perhaps be better understood as all the best attributes of all the love possible in this life, is a clear pointer that the application of justice by qadhis ought to be accompanied by these loving attributes. Sadly, however, as in the example noted above, this has not been true, particularly for women seeking justice through Islamic frameworks. It is with this in mind that I urge my co-religionists to stop and consider what might be the potential widespread positive impact of the accession of female qadhis in East Africa, and for all Kenyans to support the appointment of females to the Kadhi Courts.
ii Sonbol, A. 2003. “Women in Shari’ah Courts: A Historical and Methodological Discussion”. Fordham International Law Journal 27(1):9
iii Khaled, N. 2021. “‘Women Are Allowed To..’: Azhar Grand Imam Announces Renewed Statements Over Women’s Rights”. Egyptian Streets 9 May 2021.
iv Mwangi, W. and Hussein, F. 2021. “Kenya Muslim Women Push for Chief Kadhi Position”. AllAfrica.com (reprinted from Daily Nation). 1 July 2021.
vi Wanyoni, K. 2016. “The Kadhis’ Courts in Kenya: Towards Enhancing Access to Justice for Muslim Women” Unpublished Thesis for MSc Development Studies, Lund University. June 2016.
vii Islamic Foundation UK. “Towards Understanding the Quran, Surah 16. An-Nahl, Ayat 90-90” Accessed online at https://islamicstudies.info/towards.php?sura=16&verse=90