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Islam is one of the Universal religions of the world. As a religion, Islam is governed by an assortment of divine laws known as shariah of which its sources are mainly attributed to the divine revelations in the Holy Qur’an and traditions of the Prophet (P.B.U.H). This package is what forms the basis of the spiritual, economic, political and social guidance of Muslims. Thus, all the laws of Islam have to be annexed to and borne of the Holy texts. Contrary to this, such laws would be regarded as un-Islamic.
On the other hand, as regards the modern states, the mother of all laws is the constitution. It therefore follows that any law of the land must be in conformity with the Constitution; otherwise, such a law would be declared unconstitutional or ultra vires the constitution and would be of no legal effect. In other words, no state has a right to enact any laws or rather provide for the application of the same, unless such laws have been expressly or impliedly guaranteed by the constitution.
Tanzania is governed by the Constitution of the United Republic of Tanzania 1977.This Constitution provides a right to Freedom of religion which includes inter alia, choice in matters of religion and change of religion. From this provision, it may be inferred that, Islam, as a religion, is recognized in Tanzania.
The United Republic of Tanzania is a product of a union between Zanzibar and Tanganyika. The union consists of two governments: the union government and the government of Zanzibar. As a result of this, Islamic law in Tanzania is applied in two different modes. In the isles of Unguja and Pemba i.e. Zanzibar, Islamic law is governed by a separate system of courts known as Kadhi’s courts. However, these courts are limited to Islamic matters related to personal status, marriage, divorce and inheritance in proceedings in which all parties profess the Muslim religion. On the other hand, in Tanzania mainland, there are no separate courts for the application of Islamic law. The single hierarchy of courts hears and determines disputes regarding both Muslim and non-Muslim or rather secular matters of interest.
This paper will chiefly focus on the application of Islamic law in Tanzania mainland, although reference will be made to Islamic law in Zanzibar where appropriate. Take my hand and let me lead you through this. The paper will discuss the application of Islamic law during colonization and post -colonial period including the present state.
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The German period:
History has proven that the people along the East African coast of the Indian Ocean came into contact with Islam long before the advent of European colonization. This was as a result of Arab settlement at the East Coast of Africa. Later on, the Germans colonized Tanganyika (present day Tanzania mainland) and acquired a ten miles coastal strip from the sultan of Zanzibar.Ofcourse this was met with resistance but the Germans managed to subdue it. The colonizers then allied with some Arab and Swahili notables and had them appointed to various administrative positions. In towns, the highest subordinate position was headed by a liwali. Back in the countryside, coloured officials known as akidas who were assisted by small chiefs known as jumbes headed administrative units. Although these titles were the same as used during the sultan’s period, the colonial akidas and liwalis performed rather different functions (Makaramba 2000). However, these subordinate heads, in addition to other functions, performed judicial functions, which mainly involved the application of customary law and Islamic law.
The British period:
Following German’s defeat in the First World War, Britain took over Tanganyika in early 1919.The British established a system of courts based on the class of the parties, divided between rural and urban on one hand, and between natives and Europeans on the other hand. The colonial state recognized the existing native institutions of justice. In effect, Native Courts were established in 1929 by the Native Courts Ordinance, Cap 73.These Native Courts were subordinate to the High Court. The Native Courts were presided over by Liwali, Kadhi, Akida, Chief, and Headman and were to exercise civil or criminal jurisdiction within an area prescribed by the Governor. However, the life of these courts came to an end in 1951 when the Local Courts Ordinance, Cap 299 came into being. The Local courts were confined to Africans and administered customary criminal and civil law and a limited number of statutory laws.
Another development was witnessed in 1958 when urban courts were established by the Liwalis (Functions and Powers) Ordinance, Cap.408.Liwali courts were presided over by magistrates employed by the Government under the title of liwalis who also exercised executive functions within their own urban area. Although the British colonial state gave recognition to the indigenous judicial institutions under native law and custom, it however, permitted customary criminal law to be applied by the Native subordinate courts but not the Islamic criminal law.
The turning point for the administration of justice in Tanganyika was in 1920, when the British colonizers officially imported and imposed an alien legal system. This was done through the Tanganyika Order-in-Council 1920.According to this order , courts were to apply native law subject to the English notions of justice and morality. Unfortunately, Islamic law was not specifically mentioned in Article 24 as one of the laws, which were to guide the courts. This became a recipe for conflict between English law, Islamic law and customary law (Anderson, 1960). Islamic law was now being considered unfavourable to the English rational orientation and notions of justice and morality as perceived by the contemporary democratic societies.
The decisions by English judges during the colonial period clearly indicate lack of appreciation of the status and role of Islamic law principles in the native societies. In the long run, they introduced what they perceived to be “more modern rules of equity in the application of the general principles of Islamic law”. Thus, they were not compelled to follow the strict rules of Islamic law. However, Islamic personal law continued to be applied. Since the term “native law” was inclusive of Islamic law , there was nothing that could prevent a court from declaring Islamic law repugnant to justice and morality; and require it to be proved by experts and qualify for reform by temporal authorities. We realize that the British colonial state was chiefly responsible for the decline of application of Islamic law in Tanganyika. This is so because the state effected some very fundamental changes on the basic principles of Islamic law applicable in the territory and these were to be inherited by the independent state.
After independence, the Judicature and Application of Laws Ordinance 1963(JALO), Cap. 453 came into force. This Ordinance retained Article 24 of the Tanganyika Order-in-council verbatim at literatim. Nevertheless, section 9(1) of the JALO provided for the application of customary law in matters of civil nature and according to proviso (ii) to section 9(1), courts were not to be precluded from applying rules of Islamic law. This clearly indicates that customary law was given preference to Islamic law.
One achievement that was made by JALO was to make a clear distinction between customary law and Islamic law. The colonial state had lumped these two laws together in the name of “native law”. However, JALO introduced different tests for the application of these two laws. In this respect, customary law was to apply, “between members of a community in which rules of customary law relevant to the matter are established and accepted”. Islamic law was to apply to a member of a community which follow that law in matters of marriage, divorce, guardianship, inheritance, waqf and similar matters. This implies that in order for Islamic law to be applicable in the aforementioned matters, it is not enough that the parties profess Islam, it must be indicated that the parties intend to follow that law. In Zanzibar, Muslim personal law applies between parties who profess Islam. Although state law still accommodates Muslim Personal Law, the colonial ghost of authorizing it has continued to haunt the post-independent secular state of Tanzania (Makaramba, 2000).
As pointed out earlier in my introduction, there are no Kadhis’ courts in Tanzania mainland. However, the ordinary tier of courts deals with Islamic law in matters of personal status, marriage, divorce and inheritance where both parties profess Islam. However, this does not affect the jurisdiction of the ordinary law. A Muslim may seek justice either under Islamic law or the ordinary law of the land with regard to Muslim personal law. Primary courts have exclusive jurisdiction in customary law and Islamic law. Moreover, in case there is a dispute as to the law applicable; the matter is referred to the High court.
The Law of Marriage Act 1971 is what governs marriage in Tanzania. Thus, there is a uniform law of marriage that governs all marriages regardless of their religious affiliations. This in effect, has altered a number of Islamic principles and retained some with modifications.
According to Tanzania law, marriage can be conducted in three forms:
(a) Civil form,
(b) Islamic or Christian form,
(c) Customary form.
Though Tanzania law recognizes a marriage contracted Islamically, Muslims are not obliged to contract their marriages according to Islam. They have a choice between contracting Islamically or in civil form. This clearly indicates an interference with Islamic law, as it is not applied independent of the state law. Worse still, the minister responsible for legal affairs is empowered to restrain any religion from celebrating marriages. This shows that Islamic law in matters of marriage is not certain and in a way contradicts the freedom of worship guaranteed by the constitution. Furthermore, the constitution provides that;
“Without prejudice to the elevant laws of the United Republic the profession of religion, worship and propagation of religion shall be free and a private affair of an individual; and the affairs and management of religious bodies shall not be part of the activities of the state authority”.
Empowering the Minister responsible for legal affairs to restrain any religion from celebrating marriages is a departure from Article 19(2) of the constitution of the United Republic of Tanzania.
Zanzibar, the other part of the union, is better placed. In Zanzibar, a kadhi is a judicial officer, whereas his counterpart in the mainland is reduced to a Muslim priest or leader who is licensed to celebrate Islamic marriages. Furthermore, it is interesting to note that in the mainland, a kadhi is not allowed to preside over marriages unless the Registrar-General licenses him. The Registrar-General is not a religious head, yet he may cancel the licence.
Another aspect of the law of marriage in Tanzania that is in dispute with Islamic law is the issue regarding the minimum age for marriage. The law of marriage Act 1971 provides that, the minimum age for marriage is 18 years for the man and 15 years for the woman. On the contrary, according to Islam, any Muslim man or woman (subject to certain conditions) may contract marriage provided he or she has attained puberty. There is no minimum age; the point of focus is puberty.
Inspite of all these, some aspects of Islamic law find room in the laws as regards marriage. For instance, if a woman contracts marriage in the Islamic form and is widowed or divorced; then she goes ahead and contracts another marriage during the grace period of iddat, the marriage is void. This is in conformity with Islamic law.
According to Tanzania law, the power of divorce is vested in the courts of law. This implies that extra-judicial divorce is not allowed. Such a situation raises eyebrows as to the place of Islamic talaq in Tanzania. Islamic law provides that the husband is at liberty to divorce his wife even without citing cause. Therefore, in Tanzania mainland, talaq has no room. Various decided cases confirm this assertion. From the decisions arrived at in the cases of Abdallah said .v. Mwanamkuu Yusuf (1978) LRT.43. and Ahmed Islam Matandi.v. Salima Abdallah Lingwanda (1976), we realise that talaq is not recognised in Tanzania. In Abdallah said’s case, the husband had issued an irrevocable talaq to his wife before approaching the marriage conciliatory board. The court dismissed the talaq as being unrecognised by law. Furthermore, in another case, Samatta J (as he then was) held that a Muslim husband has to seek for a decree for divorce and not exercise talaq. This is a modification of Islamic principles.
Moreover, in order that the court may grant a decree for divorce, it should be satisfied that the marriage has broken down irreparably. In one case, a husband petitioned for a decree of divorce for he had fathered five children out of wedlock and that the life with his wife was miserable. The court granted a decree on the stated grounds after being satisfied that the marriage had broken down irreparably. The principle that the court must be satisfied that the marriage has broken down irreparably is in dispute with Islamic law. For instance, according to Islam, a wife may seek divorce if the husband does not maintain her and the family. The courts of law in Tanzania have shown that such a ground may not suffice for a decree of divorce. Thus, in Asha Chambila.v. Mohammed Nyaseba, the wife petitioned for a decree for divorce on the ground that her husband was not maintaining her and the family and that she was tired. The court held that such ground was not sufficient.
In addition, Tanzania law provides that a petition for divorce will not be allowed unless the matrimonial difficulty is referred to a board and the board has certified that reconciliation of the two parties cannot be achieved. The conciliatory board governing Islamic affairs in Tanzania is known as “Baraza Kuu la Waisilamu la Tanzania”(BAKWATA). This is a departure from the principles of Islamic law. Islam provides that if there is a dispute between the husband and wife, arbitrators should be appointed from the husband’s family and that of the wife and not mere strangers to the two families. To make matters worse, Muslims may refer their matrimonial difficulties to any other marriage conciliatory board other than BAKWATA.In other words, the marriage conciliatory board does not have to be comprised of Muslims applying Islamic principles in order to conciliate Islamic marriages. A question that might be posed is that; why should Islamic marriages be recognised by law if at all the Islamic laws governing the marriages are meant to be optional? Is this some kind of mockery of the Islamic principles? In the case of Halima Athumani.v. Maulidi Hamisi, it was held that mere fact that a board that reconciles parties is not a Muslim conciliatory board does not render the reconciliation a nullity. This, in reality, alters the principles of Islamic law in as much as matrimonial difficulties arising from Islamic marriages are settled by non-muslims. Furthermore, a certificate from the marriage conciliatory board to the effect that it has failed to reconcile the parties, is mandatory. Thus, in Shillo Mzee.v. Fatuma Ahmed, it was held that in the absence of a certificate from the marriage conciliatory board, a petition for divorce becomes premature and incompetent. Similarly, in another case, Katiti J held that a certificate from the marriage conciliatory board is required in a petition for divorce. However, where the parties were married in Islamic form, and subsequent to the granting of a certificate by the board that it has failed to reconcile the parties, either of them does any act that would have dissolved the marriage according to Islamic law, the court shall grant a decree of divorce. Such was the position in the case of Mwinyihamisi Kasimu.v. Zainabu Bakari. Though the Law of Marriage Act 1971 is meant to cater for the whole of Tanzania, including the isles, we realise that the Act does not have room in Zanzibar. In Zanzibar, there are Kadhis’ courts that handle cases of Muslim personal law in accordance with Islamic principles.
Division of Matrimonial assets and Maintenance:
According to Tanzania law, the court upon granting a decree of divorce or separation may order division between the parties of any assets acquired by them by their joint efforts having regard, inter alia, to the extent of the contributions made by each party and subject to considerations, shall incline towards equality of division. This is contrary to Islamic law which recognises separate property for the spouses. Furthermore, Tanzania law states that the housework done by the wife constitutes sufficient contribution to the matrimonial property. This was held in the case of Bi Hawa Mohammed.v. Ally Seif.
In addition, the court may order a man to pay maintenance to his wife or former wife where the parties were married in Islamic form, for the period of Iddat. Moreover, assessment of maintenance is based on the means and needs of the parties in regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage and to the custom of the community to which the parties belong. Islamic law gives a different perspective of this. According to Islam, maintenance should be provided on a reasonable scale without regard to the responsibility of the breakdown or custom of the community. This implies that whether a marriage was conducted islamically or not, the principles regarding maintenance apply uniformly without reference to what religion stipulates. However, some aspects of Islamic law find comfort when the question of division of matrimonial assets comes into issue. In the case of Omari Chikamba.v. Fatuma Mohammed Matunga, it was held that if during the subsistence of a marriage, either spouse gives the other a gift; it is presumed that such property has been permanently given to that other person. This is in line with Islamic principles.
Tanzania has no uniform law of succession. This therefore would mean that Muslims are to be governed by the Islamic law of inheritance.However, as usual, Islamic law is subject to modifications.Tanzania law provides that Islamic law of inheritance will apply where the deceased professed Islamand made a written or oral declaration that he intended his estate to be administered according to Islam.This is in accordance to the Administration(small estates)(Amendment) Ordinance. This tends to curtail the application the application of Islamic law in matters of inheritance or succession. The ordinance enunciates that it is not enough for one to profess Islam; he must be willing to be bound by the Islamic laws and should declare so to that effect. On the contrary, Islam calls for the automatic application of its laws provided one is a Muslim. Embracing Islam may be compared to making a contract with Allah, whereby one is bound by all the conditions of contract. In other words, once one embraces Islam, one embraces all its principles. No further declaration is required. One more interesting point is that the said declaration may be made for Islamic law to apply “wholly or in part”. Contrary to this, Islamic law requires full application of its principles, whenever they are sought. However, some principles are accorded room in application of the laws of the land. For instance, in the case of Sofia Said and Yusuf Mohammed Musa.v. Awadh Ahmad Abeid and three others, the Islamic principle of proximity was upheld in the courts decision.
Further alteration is found in the issue of inheritance of a non-Muslim from a Muslim. According to Islam, a non- Muslim cannot inherit from a Muslim, except a Christian or Jewish wife. Consequently, non-muslims are allowed to inherit from Muslims provided they are part of the lineage. The law in Tanzania requires that the relationship between the deceased and the heirs should be considered in the light of birth and marriage, without paying attention to religion. In the case of Shambaa Juma & others V. Rashid Juma, it was held that if religion could be a ground for inheritance, then even a stranger could claim inheritance on the ground of being a Muslim. In another case, a non-Muslim widow was entitled to inherit from his husband provided there was a civil marriage.
Religious endowments (waqfs):
In matters of religious endowments, the legal principles of Islamic principles are applied in Tanzania (including Zanzibar). This is evident from one decided case where the validity of a waqf was determined according to Islamic principles.
Conflict of laws (customary versus Islamic):
This part will deal with the course of action incase there is a conflict between Islamic law and customary law. As aforementioned, the single tier of courts in Tanzania mainland has jurisdiction over both Islamic and customary law. However, in case of controversy as to the law applicable between customary and Islamic law, the matter is to be referred to the High court. Many a time, Muslim law is termed as customary law and this has led to controversies. Thus, where there is a conflict between customary and Islamic law, the High court is empowered to decide the law applicable. However, as regards Tanzania mainland, state law supersedes both Islamic and customary laws.
This paper has dealt with the position of Islamic law particularly in Tanzania mainland. It has been realized that Islamic law in Tanzania as a whole is limited to matters of personal status, marriage, divorce and succession. However, Islamic law in Zanzibar is applied on a much wider scope than in the mainland. In Zanzibar, Muslim personal law is applied in its entirety, but in the mainland, Muslim personal law is subject to modifications and restrictions as we have seen in this discourse. Probably this might be attributed to the absence of kadhis’ courts in the mainland. Muslim personal law in the mainland is enforced by secular judges who are more often not knowledgeable in matters of Islamic law. This in effect, has led to injustice to Muslims. Thus, the idea of establishing kadhis’ courts for the application of Muslim Personal Law should be given thought, so as to accord Muslims the justice that they deserve.
ADMINISTRATION (SMALL ESTATES)(AMENDMENT) ORDINANCE.
CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA 1977.
KADHIS’ COURT ACT NO.3 OF 1985.
LAW OF MARRIAGE ACT 1971.
MAKARAMBA ROBERT, The Secular State and the State of Islamic Law in Tanzania.
TANZANIA LAW REPORTS.