IN THE MATTER OF THE KADHIS’ COURT, OTHER COURTS
IN THE MATTER OF CONSTITUTIONAL REVIEW
IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS
AND FREEDOMS OF THE INDIVIDUAL UNDER SECTIONS OF THE CONSTITUTION OF TANZANIA
The Grounds of the Summons and Supporting Affidavits:A. Tanzania is a multi-religious and multi-cultural state and the Constitution defends this position;
B. The separation of the state and religion must be respected and promoted but allowing Kadhi Courts in Tanzania's Constitution will contradicts this cardinal principle;
C. There is no valid basis whatsoever for the inclusion of the Kadhis' Courts in the Constitution;
D. The entire process of the Constitutional Review has been skewed, biased against Christians and other Tanzanians and bereft of any iota of Constitutionalism;
1. Who appoints Chief Kadhi and Kadhis?
2. What are the qualification for appointment to the office of a Kadhi (including a Chief Kadhi)?
3. Since the Kadhis are not trained lawyers who understand the Evidence Act and the Civil Procedure Act, how and/or what will they use to administer their Courts?
4. Muslims are mainly of two sects in Tanzania - the Sunni and Shia. Majority of the Muslims in Tanzania are Sunni Muslims but there is a significant population of Shia Muslims too and consideration ought to be given to the appointment of Kadhis of the Shia Sect to cater the interest of the Shia Muslims. Will they have two different Courts? For Sunni and Shia?
5. How will Muslim Women be protected since: Muslim law regards women as less than men in matters of both marriage and divorce, as well as devolution of property: Holy Quran Surah 2:228-232, and Surah 65:1-7 (only a man may divorce his wife even if he is required to provide for her); a man may beat his wife, even if lightly, the evidence of two women, is equal to evidence of one man (Surah 2:282). The application of such beliefs of faith are contrary to the Constitution.
Islamic "Kadhi" courtsis illegal and discriminatory. The Kadhi court system will elevates Islam over the country's other religions, and should be deemed unconstitutional because it does not coincide with Tanzania's secular mandate and should not be included in the nation's new constitution.
(a) There is no valid basis whatsoever for the inclusion of the Kadhis' Courts in the Constitution;
(b) If Muslims alone get preferential treatment for setting religious Courts, then other communities and faiths would come forward to have separate courts
(c) Provision such as Kadhis' Courts is normally covered under the general law. It should not be part of the main body of the Constitution,
(d) Due to different school of interpretation of the Holy Koran and Hadith which figh will the Kadhis' Courts follow? Will there be Kadhis' Court as per separate jurisdiction of Shias and Sunis? What would be the views of Ismaili or Bohra Communities on the issue?
(e) Even in Pakistan, no universal Islamic courts could be established due to confusion and conflicts between the figh Jaferia of Shias and the figh of Sunis
(f) Several sects of Muslims community do not follow Kadhis' Courts but have their own jurisprudence.
(g) The awards of the Kadhis' Courts are based on the sole discretion of the Kadhi. What view do the Muslim Women have on this system? Do the majority of the Muslim Women concerned get a fair trial in Kadhis' Courts? Are they convinced that their welfare and fundamental rights are protected at the hearings?
(1) All people should be given options to go to independent or higher courts. The High Court and Court of Appeal should be above religious courts, if such courts are part of the Constitutional provision either directly or indirectly;
(2) There should be an open door policy to change the laws which cannot be challenged,
(3) Courts should be authorized to employ scholars who would enlighten judges on the interpretation of religious doctrines;
(4) The draft recommends setting up Village Councils to deal with minor problems in rural areas, which can take care of local religious sentiments to protect national unity and religious harmony. Expand the role of Village Councils to deal with social disputes;
August 24, 2014
Max Shimba Ministries
New York, NY 10019