Justice: Is time ripe to appoint female Kadhis?
By Benard Sanga and Ishaq Jumbe | June 21st 2021
On April 26, Ms Nusrat Mohammed took to Twitter to vent her frustration with the Kadhi’s court over delay in concluding her divorce case, re-igniting a debate about the subordinate court.
In her tweet, Ms Mohammed narrated her one-year struggle to divorce a man whom she claimed was separated from her for nine years and had even married another woman.
In Islamic law, according to several scholarly articles, men are able to divorce unilaterally while women must secure their husband’s consent.
Former Deputy Chief Kadhi Sheikh Rashid Omar said the subordinate court has also raised the bar on divorce cases to protect the institution of marriage.
“If we were to grant divorces every time a man quarrelled with his wife, they would accuse us of dividing families,” said Sheikh Omar.
Women rights advocacy groups in Mombasa said such reasoning had given unruly husbands freedom to mistreat their wives.
In her tweets, Ms Mohammed claimed that as long as the Kadhi’s court remained rigid in its approach to marital cases, women would seek alternatives.
“We refuse to be put aside to rot because of one-sided enforcement of Sharia law,” she said under the hashtag #MarriageShackles.
The Kadhi court then ruled that there was nothing that could be done, prompting her to take to social media.
The tweets rekindled the discussion that began in 2011 on whether or not it was time the Judicial Service Commission (JSC) appointed women Kadhis, with proponents giving the examples of Egypt, Jordan, Malaysia, Palestine, Tunisia, Sudan and the UAE that have women kadhis.
In 2011, the then Chief Justice Willy Mutunga, an adherent of the Islamic faith, suggested that Kenya should also have women Kadhis.
His views were backed by the current Chief Kadhi Sheikh Ahmed Muhdhar who said there was no law in Islam that bars women from the position. “Women can be Kadhis, as long as they are qualified.”
Yesterday, former Chief Kadhi Hammad Kassim said JSC had not indicated that the post was only for men. “If women can become judges or presidents, what is wrong with having a woman to serve as a Kadhi? ”
Kassim argued that most litigants before the Kadhi courts were women and deserved to be heard by their fellow women for them to open up.
Kisumu Senior Resident Kadhi Tito Kunyuk concurred with the former Chief Kadhi, saying there are many women who have studied Islamic Law and can serve as Kadhi.
“The government should consider hiring them because the Constitution provides for the two-third gender rule that also applies to the Judiciary,” he said, adding that there was need to sensitise the community on the issue.
According to the Constitution, a Kadhi should be a person who professes Islam, knowledgeable in Muslim law and meets the standards set out by the JSC for all judicial officers.
Lawyer Yusuf said there were, however, different schools of thought about a woman Kadhi and Kenya follows the Sunni Islam jurisprudence that bars women from ascending to such positions.
“This arises from the fact that a Kadhi is not only a judicial officer but a spiritual and political leader in the Muslim community,” said Yusuf, adding that Sunni prohibits a woman from taking up such roles or conducting marriage ceremonies.
Dr Mohammed Islam, a Muslim cleric, said majority of scholars are of the view that it is not permissible for a woman to be appointed as a judge. “This is the view of the Maalikis, Shaafa’is and Hanbalis, and of some of the Hanafis.”
“A woman cannot be in charge of public affairs because she is designed to fulfil the mission for which she was created, which is the role of mother and wife,” said Dr Islam, who quoted Quran verses to back his views.
Dr Islam said the Al-Azhar Fatwa Committee, a think-tank of Islamic scholars, holds the view that women are faced with natural events that weaken their resolve to form opinions.
“This is something which women themselves cannot deny, and we do not need to give examples to prove their emotional nature,” he said.
His sentiments were backed by Sheikh Rishad Rajab, Khatib of Masjid Jibran in Mtwapa, who said the debate has been on from time immemorial.
“Only Imam Abu Hanifa partially allows women to be judges but in civil matters only.”
Former Deputy Chief Kadhi Sheikh Rashid Omar said the Sunni Madhhab (school of thought) to which people in East Africa subscribe explicitly discourages women Kadhis.
Ms Mohammed says she finally got her divorce and remarried but not through Islamic customs.
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