Home >> Africa >> Tanzania

     Email   Print 

Kadhi Courts in Tanzania

Telesphor R. Magobe - 8/28/2006

Arguments that having Kadhi Courts in Tanzania mainland could lead to division rather than unity in the country have prompted mixed sentiments among different believers or members of the public in general. Those who support the idea (mainly Muslims) argue that to be opposed to the idea of the Kadhi Courts is evidently to have an ill-will against the Muslim community. That was what I understood when I heard of their arguments.

Personally, I do not buy this kind of interpretation, for I believe I may still respect a person and his or her belief system even if I do not subscribe for it. Even in my belief system there are some interpretations which I may be opposed to because I think they are contemptuous of a particular pastoral problem or even repugnant to justice, without necessarily having an ill-will against the faith I profess. I believe any belief system on earth needs constant purification as its believers too need conversion to be able to fully understand what God's will is for them.

The Tanzanian Roman Catholic Bishops have challenged the idea of having the Kadhi Courts, arguing that if legislators debate it, as it is likely to be the case, then the state authority would no longer be neutral in religious affairs. This, they say, is at best to contravene the Constitution, for a secular state authority cannot lean towards a certain religious persuasion without seriously risking its national unity.

Basically, what I gather from this is that once the state authority gives in to religious manipulation then its credibility wanes too! In this, they implicitly refer to the underlying principle and praxis of the Article which establishes freedom of worship and religion.

Article 19 (2) of the United Republic of Tanzania's Constitution (1977) clearly states that worship and propagation of a religion is an individual's private affair and therefore the state authority shall not involve itself in the affairs and management of religious bodies. Thus, the article establishes the right to freedom of religion and neutrality of the state in religious arrangements. That is why reasons against the Kadhi Courts make sense.

However, Muslim leaders reacted to the Bishops' arguments saying the issue did not concern them (the Bishops) and so they should take a hands-off approach to it and mind their own business, instead of inciting religious hatred in the country. When I heard of this, I recalled a phrase I had just read somewhere, which says: Our best intentions are sometimes subverted by our natural tendency to selfishness!

What about the right to freedom which the Union Constitution (1977) establishes in Article 18 (1): "every person has the right to freedom of opinion and expression, and to seek, receive and impart or disseminate information and ideas through any media regardless of national frontiers, and has the right of freedom from interference with his communications?"

According to Mwananchi (Issue No. 02246) the Muslim Council of Tanzania is planning to send a delegation to meet the prelates to clarify what the issue is all about. Let's hope that such move bears fruit. Meanwhile, some politicians have criticised the bishops saying they were the same people who told President Jakaya Kikwete last year that he was to them God's choice and by saying so they also consented to the ruling CCM party manifesto, which apparently includes a clause on the inception of the Kadhi Courts. "Did they say Kikwete was God's choice before they read the party manifesto?" one politician asked.

Could what the prelates said be an oversight or definite opinion? It is generally believed that prudent people often express definite opinions on social or informal issues! Rev Christopher Mtikila and other interviewed people said if the idea of having the Kadhi Courts were to be implemented it would violate the Constitution and prompt other religious communities or denominations to press for their own courts too to deal with their religious issues as Muslims demand.

Of course, if the RC Church were given such freedom, certainly it would prefer canon lawyers or judges to deal with marriage cases to secular ones. This is so because the Church firmly believes, for instance, that a valid marriage, which is technically raised to the dignity of a sacrament [Canon # 1055 (1)], is governed by both divine law and canon law (Canon # 1059) and cannot be dissolved by any human power or by any cause other than death (Canon #1141).

In what seems to be rare, the Church can only invalidate a contracted marriage after it is proved before a competent ecclesiastical marriage tribunal that the marriage was not lawfully contracted by any of the spouses. But reasons other than those invalidating a contracted marriage cannot be grounds for nullity. So following this complexity, which may not be the case in the civil law, one finds reasons for the RC Church to have also their marriage tribunals recognised by the civil law! But to do so would also be to go too far too quickly!

Why to have the Kadhi Courts then? To be able to deal properly with Islamic marriage issues: determination of questions of Muslim Law related to personal status, marriages, divorce or inheritance. Contributing to the debate Khalid Mafuru (The Citizen Issues No. 589) says that since the Islamic law is already in use in the country, the creation of the Kadhi Courts is just putting up a specialised branch of the court system to deal with issues related to the law.

I am not particularly opposed to the idea of the Chief Kadhi's Court but I do not see any ground yet for it to be debated by legislators, as to do so would be overstepping their jurisdiction. To enact a law simply because it is applied in Zanzibar or Kenya as some people argue is not a sufficient ground to have it enacted in Tanzania mainland. There should be a public need for it first since an enacted law protects the public good and binds all members of the society "equally".

If Muslims feel their marriages need special magistrates so do non-Muslims as I have briefly shown above. If every religion or denomination presses for their own court system how many courts will we have? I, nevertheless, extol Justice and Constitutional Affairs minister Dr Mary Nagu for her judicious statement that before making any decision on the issue the government will have to seek public opinion to broaden its horizons.