|NAIROBI ENCOUNTER - NOVEMBER 2010
Kenya: Islam Marriage Law
Reflection Group on Islam- Nairobi, Kenya.
15th – 20th November 2010.
Some questions to help the Participants prepare their sharing
1). In most African countries, several forms of marriage are recognized in the national law e.g. Christian marriage, Islamic marriage, Civil marriage and Customary marriage. In some countries even the so called “come we stay” marriages become legal when a man and a woman have been together for a certain period of time.
- How many forms of marriage are recognized in the country where you work? What is the definition of marriage according to the constitution of that country? Do you think this definition has been influenced by either Muslim, Christian or traditional point of view on marriage?
THE NEW CONSTITUTION OF KENYA
The NEW Constitution of Kenya (approved by the referendum of August 4th, 2010) in Chapter 4 n. 45 on “The Bill of Rights”, speaks of the family:
The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State. Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.
Parliament shall enact legislation that recognizes – a) marriages concluded under any tradition, or system of religious, personal or family law; and b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such a marriages or systems of law are consistent with this Constitution.
Articles 170, on Kadhis’ Courts proclaims: (5) the jurisdiction of a Kadhis’ Court shall be limited to the determination of questions on Muslim law relating to personal status, marriage, divorce or inheritance in proceeding in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhis’ Courts.
Essential background information:
CUSTOMARY AND ISLAMIC LAW AND ITS DEVELOPMENT IN KENYA
A. THE ORIGINS OF THE LEGAL SYSTEM – GENERAL BACKGROUND
The legal system is based on English common law, African customary law and Islamic law. African customary law is used as a guide in civil cases affecting people of the same ethnic group so long as this does not conflict with statutory law.
Under the British Protectorate, Kenya had parallel legal systems comprising:
(a) The African Courts applied customary law, with appeals lying with the African Appeals Court, then with the District Officer and then a Court of Review; and
(b) Muslim personal law was applied by Courts of Liwalis, Mudirs and Kadhis, with appeals lying with the Supreme Court (renamed High Court post-independence).
Integrating the legal system
The process of integrating the judicial system began in 1962 when powers of the administrative officers to review African Courts' proceedings were transferred to magistrates. The process was completed by the passage of two acts in 1967, namely:
(a) The Magistrates' Courts Act 1967 - this abolished African Courts and the Court of Review and instead established District and Resident Magistrate's Courts and a High Court; and
(b) The Kadhis' Courts Act 1967 - this established six Kadhis' Courts for the application of Muslim personal status law.
Development of marriage law, divorce law and inheritance law:
In 1967, two commissions (appointed by the President) started looking into marriage, divorce and inheritance law, and produced drafts of uniform family and inheritance codes to replace the existing customary, statutory, Islamic and Hindu laws then in force.
The commission reviewing marriage and divorce law produced a draft code, but since the 1970s efforts to enact a uniform marriage law have been unsuccessful. Marriage law continues to be governed by several regimes: Civil, Christian, Hindu and Muslim marriages are governed by separate legislation and communal laws and customary law marriages are also afforded official recognition.
In relation to inheritance law, four systems of succession existed in Kenya until 1981, namely:
(a) The European system - based on statute and common law;
(b) The Asian system - initially based on Hindu customary law and later on statute;
(c) The Muslim system - based on the principles stated in the Quran; and
(d) The African system - based on the African customary law, which varied from one community to another.
The post-independence government was aware of this diversity and an attempt was made to establish a uniform code of succession applying equally to all. The commission reviewing this area recommended a uniform code applicable with certain exceptions for customary laws. The bill was eventually passed in 1972 as the Law of Succession Act CAP160, but it only came into force in 1981.
When the Succession Act was passed in 1972, Muslims, including the Kadhis, vowed to ignore it and continue to apply Muslim laws of succession. The Kenyan Muslim community protested through newspaper editorials, petitions and heated public demonstrations in Mombasa in the early 1980s. The Succession Act was ultimately amended to exclude application to Muslims in the early 1990s.
B. THE CURRENT POSITION
There are currently four levels of Courts in Kenya: Resident and District Magistrates' Courts, Senior Resident and Chief Magistrates' Courts, a High Court and the Court of Appeal. Islamic law is applied by Kadhis' Courts, and there are eight such Courts, presided over by a Chief Kadhi or a Kadhi appointed by the Judicial Services Commission. Appeals lie to the High Court, sitting with the Chief Kadhi or two other Kadhis as assessor(s).
Islamic personal law
The protectorate-era legislation relating to the application of Islamic personal law has been retained. The Acts in force (Mohammedan Marriage and Divorce Registration Act 1906, Mohammedan Marriage, Divorce and Succession Act 1920 and Kadhis' Courts Act 1967) afford recognition to marriages solemnised under Islamic law, provide for the registration of Muslim marriages and divorces, delineate the jurisdiction and procedure of Kadhis' Courts and instruct the application of the principles of personal law applicable to the parties involved, without substantive codification of that law.
Constitutional status of Islamic law
The Constitution, which was adopted on 12 December 1963 (amended several times thereafter) provides for the establishment of Kadhis' Courts (Article 66(1) to (5)).
The Kadhis' Courts have been established by the Kadhis' Court Act (Cap. 11), which is based on provisions of Section 65 of the Constitution of Kenya. The Kadhis' Court Act provides that there shall be a Chief Kadhi and a specific number of Kadhis not being less than three and not more than twelve. At present there are eight Kadhis' Courts. The Kadhis' Court is presided over by the Chief Kadhi or a Kadhi. The Chief Kadhi and Kadhi are appointed by the Judicial Service Commission of Kenya. A person to be appointed a Chief Kadhi or a Kadhi must have the qualifications prescribed.
The jurisdiction of a Kadhis' Court is defined in section 5 of the Kadhis' Court Act.
The provisions of the Evidence Act (Cap. 80) do not apply in Kadhis' courts. The law of evidence applicable to a Kadhis' Court is the Muslim Law of Evidence. The Muslim Law of Evidence, however, is subject to the conditions as per section 6 of Kadhis' Courts Act.
Appeals from a Kadhis' Court lie with the High Court. In such a case, the High Court sits with the Chief Kadhi or two other Kadhis as an assessor or assessors.
The Kadhis' Courts Act does not give Kadhis' Courts exclusive jurisdiction to Kadhis' Courts over matters concerned with Muslim personal law. The High Court and subordinate courts may hear and determine matters that are Muslim personal matters, and the courts do not need to apply Muslim law.
The Appellate Process
As the appellate court for Kadhis' Court decisions, the Kenyan High Court differs from the Kadhis' Courts. In the High Court, parties to an appeal must be represented by advocates, who, even if they are Muslims, often are not trained in Islamic law. Consequently, memoranda of appeal routinely cite principles of secular rather than Islamic law. Appeals are reviewed by a High Court judge and at least one assessor from among the Kadhis. Kadhis claim that secular judges pay little attention to the complexity of Islamic law or its correct application. When Islamic legal principles are turned aside, the appellate process itself poses a challenge to the autonomy of the Kadhis' Courts and to the authority of Islamic law.
Even though appeals are rare and appellate decisions even rarer, the appeals process challenges the autonomy of the Kadhis' Courts. Claimants in the lower court realise that they can go beyond the Kadhis, even the Chief Kadhi, in pursuing a claim, and some declare their intention to do so after losing a case. In theory, any court of appeal poses such a threat. In coastal Kenya, however, appeals challenge the authority of an entire legal tradition, as they move from Islamic courts into the realm of secular law and thus from the discourse of Islam to that of state law.
African Customary law
It is the law of small-scale communities which people living in these communities take for granted as part of their everyday experience but it excludes outsiders who, to get any account of it, either have to be told about it or read about it. Customary law is sometimes difficult to track since there are as many customary laws as there are tribal communities and despite the general consensus on certain fundamental principles, there are nuances in each that only one well versed with the community's way of life can identify. The hallmark of African customary law is the dominance of older male members over property and lives of women and their juniors.
There are no customary or traditional Courts in Kenya. The national Courts use the customary law of an ethnic group as a guide in civil matters so long as it does not conflict with statutory law. This is done most often in cases that involve marriage, death and inheritance issues and in which there is an original contract founded in customary law. For example, if a couple married under national law, then their divorce is adjudicated under national law, but if they married under customary law, then their divorce is adjudicated under customary law. Citizens may choose between national and customary law when they enter into marriage or other contracts; thereafter, however, the Courts determine which kind of law governs the enforcement of the contract.
The current Constitution does expressly state that, in relation to the use of land, rights held under African customary law are to be respected or fully compensated, unless they are repugnant to any written laws.
C. FUTURE DEVELOPMENTS
In relation to customary law, there has been considerable opposition by women's organisations that are seeking to eliminate customary law on the basis that it is biased in favour of men; but ,this does not appear to have had a large impact.
Since 2002, there has been a controversy, as Kenya debates a new Constitution over proposals for the institution of Islamic Law Courts. The draft Constitution, made available in October 2002 by the Constitution of Kenya Review Commission, proposes the establishment of Islamic Courts at all levels of the judiciary system. Other religious representatives- Christian, Hindu, traditional African faiths-argued that the proposal would entail an unjustifiable preferential treatment for Islam. Muslim leaders, though, say the separate Courts are an essential element in establishing an adequate judicial system. Critics also state that that proposed system would give Kenyan Muslims a separate system of justice. In response, Muslims argue that Kenya's existing Courts do not adequately address the Islamic understanding of issues such as marriage, inheritance and divorce. Earlier in the year, in July, some Kenyan Church leaders filed a constitutional reference seeking various declaratory orders. They contended that the entrenchment of the Kadhis' Courts in the Constitution is the first step towards the introduction of Sharia laws, which they termed as "discriminatory, dangerous, unjust, detrimental and unconstitutional". They also wanted Section 66 of the Constitution of Kenya, which introduces and entrenches Kadhis' Courts, declared unconstitutional and to be expunged in its entirety from the Constitution.
(Art. supplied by Hunton & Williams - Legalbrief Africa, 11 October 2004 - Issue No: 100)
European colonial interest in Kenya began with Portuguese efforts to establish safe ports in the area of Mombasa from 1498. The Omanis captured Mombasa in 1696. British interests in the East African region in the mid to late 19th century led to the formation of the British East Africa Company. In 1895, within a decade of the founding of the East Africa Company, the area from the coast to the Rift Valley was declared the British East Africa Protectorate. Kenya gained independence in June 1963. Under the British protectorate, Kenya had parallel legal systems with African courts applying customary law, and appeals lying with the African Appeal Court, then with the District Officer and then a Court of Review. Muslim personal law was applied by Courts of Liwalis, Mudirs and Kadhis, with appeals lying with the Supreme Court (renamed the High Court after independence). The process of integrating the judicial system began in 1962 when powers of administrative officers to review African Courts' proceedings were transferred to magistrates. The process was completed by the passage of two acts in 1967. The Magistrates' Courts Act 1967 abolished African Courts and the Court of Review and established District and Resident Magistrate's Courts and a High Court. The Kadhis' Courts Act 1967 established six Kadhis' Courts for the application of Muslim personal status law.
In 1967, two Presidentially-appointed commissions began looking into marriage and divorce law and inheritance law. The commissions produced drafts of uniform family and inheritance codes to replace the existing customary, statutory, Islamic and Hindu laws then in force. The commission dealing with inheritance laws recommended a uniform code applicable with certain exceptions for customary laws. The bill based on its recommendations led to much heated debate. Criticisms included that the proposed law was too foreign, anti-Muslim, and afforded too many rights to women and illegitimate children. The bill was eventually passed in 1972. The marriage and divorce laws commission produced a draft code that was as uniform as the commission deemed feasible, but since the 1970s efforts to enact a uniform marriage law have been unsuccessful. Marriage law continues to be governed by several regimes: civil, Christian, Hindu and Muslim marriages are governed by separate legislation and communal laws and customary law marriages are also afforded official recognition.
The protectorate-era legislation relating to application of Muslim personal law has been retained. The Acts in force basically afford recognition to marriages solemnised under Islamic law, provide for the registration of Muslim marriages and divorces, delineate the jurisdiction and procedure of Kadhis' Courts and instruct the application of the principles of personal law applicable to the parties involved, without substantive codification of that law.
Schools of Fiqh: Kenya has a very diverse Muslim population due to Arab and South Asian settlement, local conversion and intermarriage, thus various schools represented. The majority are Shafi'i, and there are also sizeable Hanafi communities as well as Ja'fari, Isma'ili, Zaydi and Ahmadi minority communities.
Constitutional Status of Islamic Law: The Constitution was adopted on 12th December 1963, and has been amended several times; most notably in 1964 when Kenya became a Republic and in 1991 when a multiparty system was restored. The Constitution does not provide for any official state religion. Article 66(1) to (5) provides for the establishment of Kadhis' Courts.
Local courts applying customary law were abolished in 1967 when reform and unification of the judiciary was completed. There are four levels of courts: Resident and District Magistrates' Courts (1st, 2nd and 3rd classes), Senior Resident and Chief Magistrates' Courts; a High Court, and the Court of Appeal.
Islamic law is applied by Kadhis' Courts where "all the parties profess the Muslim religion" in suits relating to "questions of Muslim law relating to personal status, marriage, divorce or inheritance". There are eight Kadhis' Courts in Kenya, presided over by a Chief Kadhi or a Kadhi appointed by the Judicial Services Commission. Appeals lie to the High Court, sitting with the Chief Kadhi or two other Kadhis as assessor(s).
Notable Features: The minimum marriage age is governed by the Marriage Act for statutory marriages (requiring parties to be 16 years of age) and by the relevant personal laws applicable; for Muslims, neither the Mohammedan Marriage, Divorce and Succession Act nor the Mohammedan Marriage Registration Act provide a specified minimum age. The applicable legislation refers only to Muslim law and does not specify any particular school. Although there are provisions for marriage registration, registration does not define validity and marriages conducted under statutory (includes the Marriage Act as well as the African Christian Marriage Act), customary, Muslim and Hindu law are all recognized. Polygamy is governed by classical law. Although it is a criminal offence to marry under statutory law and contract a subsequent marriage under Islamic or customary law, there are no legislative restrictions to polygamy outside of the statutory regime.
Talaq and judicial divorce are governed by classical law, as are post-divorce maintenance provisions. In matters of child custody and guardianship, Kadhis' Courts generally grant custody to the mother until 7 years for boys and 14 for girls at which point custody reverts to the father. The statutory legislation applicable (the Guardianship of Infants Act) directs that Courts must adjudicate with the interests of the ward as the primary consideration., and an increasing number of women are applying to the regular court system where custody over boys and girls under 16 is generally awarded to the mother.
Under the Law of Succession Act 1981, uniform legislation on intestate succession was made applicable to all Kenyans, with specific exemptions for the application of customary laws; a Muslim testator could provide in his/her will that the estate should devolve according to Islamic law. In 1990, an amendment was passed inserting an exemption for Muslims.
Law/Case Reporting System: Case reporting is through the Kenya Law Reports, Kenya Appeal Reports and Kenya Court of Appeal Decisions.
International Conventions (with Relevant Reservations): Kenya acceded to the ICCPR and ICESCR in 1972, with a reservation to Article 10(2) of the ICESCR.
Kenya acceded to the CEDAW in 1984 without reservations.
Kenya signed and ratified the CRC in 1990 without reservations.
The questionnaire presents 6 (six) questions. The Representative of the province of Kenya presents only the answer to the first question. For the others he was unable to collect relevant material from among the parish priests working in areas where Christians and Muslims live together.
In general the Kenyans develop the attitude: “you do not bother me, I do not bother you” in questions of religion. It is rather difficult to bring them together and discuss personal and family matters.
In matters of family status and of inheritance, the Muslims of Kenya may have recourse to the Kadhis’ Courts and be submitted to their jurisdiction.