By Pravin Bowry
Kenya: The Constitution and four main statutes give Kenyan Muslims special recognition.
Kenyan Muslims are governed by the dictates of Islamic law only on matters of family law, inheritance and succession. (The phrases ‘Muslim law’ and ‘Islamic law’ are used interchangeably in Kenyan law).
Muslims arrived in East Africa in the 8th Century and Kenya has a very diverse Muslim population due to historical Arab and South Asian settlements, local conversion, and the importation of labour from India during the building of the railway early in the last century.
Article 24 (4) of the Constitution provides that the constitutional provisions on equality shall be qualified for Muslims to the extent necessary for the application of Muslim law only before the Kadhis’ Courts, to persons who profess the Muslim faith in matters relating to personal status, marriage, divorce and inheritance.
On the law of succession, since 1990, through an amendment to the Law of Succession Act, devolution of the estate of a deceased Muslim is governed by Muslim law. Section 2 of the Law of Succession Act excludes the application of the provisions of the Law of Succession Act to testamentary or intestate succession to the estate of a person who at the time of his death is a Muslim.
Can a Muslim make a will contrary to Muslim principles, or does a Muslim, by making a will, submit to mainstream law? The recently enacted Marriage Act has repealed the Mohammedan Marriage and Divorce Registration Act, and the Mohammedan Marriage, Divorce and Succession Act, and incorporated a new system of matrimonial laws by recognising marriage under Muslim laws.
In matters of marriage, the Marriage Act 2014 provides under Part VII that any provision of the Act which is inconsistent with Islamic law and practices shall not apply to persons who profess the Islamic faith.
The new marriage law provides that Islamic marriages shall be officiated by a Kadhi, Sheikh or Imam as may be authorised by the Registrar and celebrated in accordance with Islamic law. It further provides that the dissolution of an Islamic marriage shall be governed by Islamic law.
The rights and responsibilities of Muslim spouses in relation to matrimonial property may also be governed by Muslim law. Section 3 of the Matrimonial Property Act 2013 provides that a person who professes the Islamic faith may be governed by Islamic law in all matters relating to matrimonial property.
Special courts manned by scholars in Muslim law, called the Kadhis, have existed in East Africa well before the colonialists arrived in Kenya, and were incorporated in protectorate-era legislation, and then the post-independence Constitution under the Kadhis’ Courts Act of 1967.
The new Constitution has also incorporated the Kadhis’ Courts in the mainstream legal framework by terming them now as subordinate courts.
The Kadhis’ Courts have jurisdiction under the Constitution to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhis’ Courts. The laws and rules of evidence to be applied in a Kadhi’s Court are those applicable under Muslim law.
The Kadhis’ Courts exercise jurisdiction only when all the parties profess the Muslim faith. Where a party is not a Muslim, or does not submit to the jurisdiction of the Kadhis’ Courts, then the matter will be resolved in the conventional Courts.
The Legislature is, however, yet to align the Kadhis’ Courts Act with the Constitution and other new laws. The Act is outdated and crying for amendment.
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In May 2010, just a few months before the enactment of the new Constitution, the then highest Court in the Republic interestingly and controversially declared the Kadhis’ Courts unconstitutional with another Bench later disagreeing with the decision.
The possibility of a challenge to the new Kadhis’ Courts is real and the Supreme Court may need to intervene.
Application of Muslim law does not extend to matters of parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of Muslim children. The Children Act is of universal application.
Muslim law has no application in the criminal law either. For instance, under Muslim law a person is eligible to marry at puberty, which starts long before one is 18 years old, the age of majority under the law. However, the Sexual Offences Act is of universal application. A Muslim who marries another who has attained puberty but is below 18 years old, risks committing the offence of defilement under the Sexual Offences Act.
Can Muslim law be set up as a defence to a criminal charge?
Where Muslim law is applicable, how the law is determined and the interpretation given to the Islamic doctrines is left to Kadhis who generally interpret the law depending on the sect or denomination the disputing parties belong to. There are many sects and sub-sects in the Muslim community and what law is applicable to the parties is left to the Kadhis’ Courts.
The application of Muslim law in the multi-religious Kenyan scenario under the new legal regimes is likely to create very interesting jurisprudence with higher courts playing an important role, and there is urgent need to document Kenyan Muslim law in the law reports.
Mr Bowry is an Adovocate of the High Court of Kenya