On 13 July 2021, a post on facebook addressed ‘The Appointment of Women to Judicial Posts in Sharia Courts or Sharia-dependent Courts in Muslim States’. The author was Sheikh Khelef Khalifa, a well-known and much respected crusader for human rights and the Director of Muslims for Human Rights (MUHURI) based in Mombasa, Kenya.
The response was swift and voluminous, not only negative but even vitriolic at times. The Sheikh had stirred a hornet’s nest; AwaaZ editors decided to take a closer look.
Historically, Kadhi (or Sharia) Courts existed in the East Coast of Africa long before colonization. Prior to independence, Kenya’s 10-mile-wide coastal strip was the preserve of the Sultan of Zanzibar. In October 1963, the Sultan and the Prime Minister of Kenya, Jomo Kenyatta, signed an agreement ceding the strip to Kenya with some agreed guarantees; one was the continued existence of the Kadhi Courts. When the independence constitution was written, the Kadhi Courts were enshrined under the chapter on the Judiciary.
Kadhi Courts have the power to decide on issues of Muslim personal law between Muslims i.e. marriage, divorce and inheritance. To date in Kenya (and most of Africa) the court officials have been solely male and this has been problematic for the female litigants. Not only do they often feel that their issues have not been fairly addressed but they are also reluctant to discuss their intimate concerns with the male officer(s).
This disquiet is manifested globally wherever Islamic law is practiced and to pay heed to the complaints, several countries have made adjustments which allow women to officiate as Kadhis. Muslim women in Kenya too have expressed this concern and the promotion of Martha Koome, a woman, to the post of Chief Justice on 21 May 2021, has given them new impetus to pursue this matter. They have declared publicly that they deserve the positions of Kadhi given that some of them have studied Sharia law.
Islamic law scholar Fatuma Juma said if women ascend to such high positions, they will bring a new perspective on women’s issues that are not well articulated in the current set-up.
‘It is not a must that the Kadhi position goes to men. It is not a reserve for them. If we are given those chances, women may help to solve issues affecting them, and articulate them better,’ she says. ‘Most Muslim women, she said, are shy and need a fellow female advocate to help them handle marital and other challenges.’
Her fellow Muslim lawyer Nusrat Mohammed echoed those sentiments, arguing that it is time for women who have studied Islamic law to get decision-making positions in Kadhi courts.
‘Almost all Muslim advisers to the Kadhi are men. We need to change this narrative, and consider having female advisers as well. We also need women scholars within the court who can act as intermediaries,’ she said.
Interestingly the current Chief Kadhi, Sheikh Ahmed Muhdhar whose tenure is due to end soon, supports the idea, saying women are also entitled to the position as long as they are qualified.
Daily Nation 1 July 2021
By Wachira Mwangi & Farhiya Hussein
As mentioned earlier, the pushback against the proposal has been intense and vitriolic. The Council of Imams and Preachers of Kenya (CIPK) national commissioner Hassan Omar strongly objects, saying that in Islamic history there has never been a woman Kadhi so that should not happen now. He has threatened to take legal action if need arises. The Lamu branch Coast Inter-Faith Council of Clerics (CICC) chair Mohamed Abdulkadir, advised those pushing for a woman Chief Kadhi to desist from treating the Kadhi courts like secular courts.
Lamu West Sub-County CIPK chair Noordin Saney said: ‘In the first place, Islamic law does not allow men and women to interact freely like other religions. Now, how will a woman Kadhi conduct a marriage in a mosque where men and women have separate areas? This clearly shows how complicated things might be if women are appointed to the position,’ he said.
Mahmoud Ahmed Mau, a Muslim scholar and imam of the oldest mosque in Lamu Old Town, gave a more tempered response. The subject he said, ‘needs further consultation as scholars in Kenya and the world as a whole have not reached a consensus on whether it is right or wrong for a woman to hold the position’. The sheikh, however, acknowledged that there is no law in Islam that prevents a woman from becoming a Kadhi. ‘The law is silent on this question, he affirmed. He proposed that women be appointed as advisers to Kadhi courts and not anything else.
The sheikh’s statement is of great significance as the opposition overwhelmingly argues that, ‘there is no way we can accept women Kadhis. The Holy Qur’an and even the teachings of our Prophet are very clear on that.’ Yet the request for a citation of the Qur’anic passage which bars women from being appointed as kadhis remains unanswered.
But not all women speak with one voice. A Lamu women’s rights activist, Raya Famau, supported the clerics’ stand for women to avoid seeking the Kadhi position, adding that religious laws and traditions must be respected. ‘I’m a fighter for women’s empowerment … but not the Chief Kadhi position. Let’s reserve the position for men,” she said.
Garissa MP Aden Duale, former majority leader in Parliament, led other Muslim leaders in rejecting the idea, claiming it is against Islamic religious beliefs. ‘It is not found in the Qur’an nor our prophetic teachings. It does not mean that [because] Martha Koome, who is a woman, is a Chief Justice, we should also have Muslim women as Kadhi, that cannot happen,’ he said.
Daily Nation 5 July 2021
By Kalume Kazungu and Farhiya Hussein
On 12 March 2020, the International Development Law Organization (IDLO), while recognizing the gains that Kenyan women have made in the juduciary bemoaned the fact that, ‘there is not a single woman in the Kadhis’ Courts – religious courts adjudicated by Kadhi magistrates that apply a hybrid legal approach with Sharia Law. This trend is particularly disconcerting considering the Kadhis’ Courts deal with issues that disproportionately affect women such as divorce, inheritance and family matters’.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in its 68th Session in Geneva, Switzerland in October 2017 issued a joint report on Article 16, Muslim Family Law and Muslim Women’s Rights in Kenya. Co-authors were: Musawah – Equality in the Muslim Family and Advocacy for Women in Peace and Security, Africa (AWAPSA).
As in many other countries with a plural legal system, Musawah is concerned that governments like Kenya, while willing to push forward with law reform towards equality and justice for women, have shown little concern of the rights of minority women governed by laws based on a particularly discriminatory understanding of Islam.
Kenyan Muslims are under no legal obligation to have matters relating to marriage and family relations adjudicated by the Kadhi Courts and according to Muslim women activists, many Muslim women hoping for a fairer process have opted to refer their cases to civil courts. However, they are still referred back to Kadhi Courts as their husbands have simultaneously filed cases with the knowledge that Kadhis are likely to favour men and thus they will have the upper hand.
Musawah believes it is necessary and possible for the State party to codify a Muslim family law that complies with the equality provisions of its Constitution and Marriage Act.
Article 172 of the 2010 Constitution of Kenya outlined the qualification of Kadhi judges as follows: ‘A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless the person professes the Muslim religion; and possesses such knowledge of the Muslim law applicable to any sects of Muslims as qualifies the person, in the opinion of the Judicial Service Commission, to hold a Kadhis court.’ While the Kenyan Constitution and 2012 Kadhis Court Act, have no barriers to qualified Muslim women becoming Kadhi judges, no woman has been appointed.
The lived reality is that women are often intimidated or taken advantage of by the male Kadhis; as a result of this, after a few trips to the Kadhi courts, women give up on attempts to pursue their cases. Muslim women’s groups have recommended forming a ‘Committee comprised of women lawyers, scholars, counsellors and advocates, etc.’ which could then work closely with the Kadhis in each court. It could provide women who come to the court with legal advice and support in mediating and arbitrating cases.
Musawah: Qur’an promotes Equality between the sexes. Musawah contends that the very notion of male authority and guardianship is not in line with Qur’anic principles. The hierarchical understanding of qiwamah and wilaya are juristic (fiqh) constructs shaped by gender ideology of classical Muslim scholars in the context of norms and practices prevalent in their times, where men’s superiority and authority over women was the norm.
AwaaZ invited writers to give their views on the vexed question of ‘Should women be allowed to act as kadhis?’ – A few persons did respond and their write-ups are published below. To date the Judicial Service Commission has postponed its final ruling to an unspecified date.
Below is a short list of the countries globally where Positive Developments in Muslim Family Law have been instituted:
Algeria, Turkey and Morocco have Equality of spouses in marriage.
Malaysia, Pakistan, Tunisia, Morocco, Egypt, Indonesia, Palestine, Libya, Sudan, Israel -appoint women in Islamic/Shari’ah courts.
Afghanistan, Bahrain, Egypt, Morocco, Iraq, Tunisia, Turkey, Bangladesh, Pakistan, Sri Lanka, Algeria, Brunei, Indonesia, Jordan, Lebanon, Iran, Palestine, Oman, Qatar, Singapore, United Arab Emirates – uphold Women’s equal capacity to enter into marriages.
Kyrgyzstan, Tajikistan, Tunisia, Turkey, Uzbekistan have prohibited polygamy.
Tunisia, Turkey support equal right to divorce.
(These are extracted from the joint CEDAW Report)
AwaaZ is interested in continuing this conversation and welcomes further writings on the topic.