The President of Zanzibar and new Kadhi’s law

The President of Zanzibar and Chairman of the Revolutionary Council Dr. Hussein Ali Mwinyi said, he had great hope for reforming Kadhi’s Law which will remove the ambiguity as well as collisions on performing in axis of the court in the country.

Dr. Mwinyi said today at state house during meeting with committee of the reforming new Kadhi’s law and receive information of the draft direction which guided by Chairperson, senior government advocate Mr Saleh Mbaraka.

He said, due to good intentions, he has great faith to next new Kadhi’s law will be good, productive, tension free and constructive direction.

Said, there draft when it is delivered at the level of the Revolutionary Council, members of the Revolutionary Council they will have the opportunity to go through it, parallel with the committee of the law of the Council to advise on suitable features that should be included or reduced.

Dr. Mwinyi thanked the committee delegates for intentions of coming with new Kadhi’s law due to existing needs, said action to engage stakeholders will enable to get a sufficient feedback contribution.

And the Chief justice of Zanzibar Khamis Ramadhan Abdalla said lead the axis of the court in which in it there is a Chief Kadhi there is a need for great wisdom.

There existed a parallel court system during the colonial era in Zanzibar where Islamic law was applied in tandem with the common law for different sets of target groups. On the one hand, the King had the authority to legislate for the British subjects on the Isles via the Order in Council of 1884 and legislative enactments. The Sultan on the other hand controlled his subject. British citizens appeared in the Courts of His Britannic Majesty(the British Court) where common law was applied. Local folks appeared before the Court of the Sultan where the law applicable was Islamic law and customary law as provided for by statue. This dual system was maintained until 1963 when it was terminated with the coming into force of the 1963 Constitution and the Court Decree of the same year. In the changes that followed throughout the developments of the legal history of Zanzibar, the Kadhi’s Courts system was retained.

From the brief historical analysis above, it is evident that the early inhabitants of Zanzibar received a very heavy dose of Islamic influence. Today the Island has a population of close to 97% Muslim out of a population of slightly above one million. The remaining population is a mix of Christians, Hindus and those who practice traditional religious beliefs. Under these circumstances. the existence of the Kadhi’s Courts in Zanzibar needs no further clarification. Given the composition of the population along religious affiliation, the government need not to go lengths in justifying the use of tax payers’ money to maintain the court system.

The rise in rates of divorce cases is Zanzibar, as noted above is intrinsically linked to the increasing awareness of individual rights, especially women’s rights which have been advocated at the legal arena. To some extent women’s rights movements have strong affiliations with the common law principles of equity and the rule of law. From this perspective therefore, the dimension of the conflict between Islamic law rules and common law notions of human rights is an issue that would have to be addressed with a view to providing some compromise. This would have a profound effect on Islamic family law principles in view of the fact that some influential jurists and scholars unfortunately often take male centered approaches.

For a slightly over two decades, the Kadhis Court have operated without rules of procedures and practice as is required by the law establishing them. Section 9(1) of the Kadhis Courts Act provides that the Chief Justice may, in consultation with the Chief Kadhi, make rules to guide the Kadhis Courts to apply the procedure and practice provided for by the Civil Procedure Decree. It should be noted here that the foundation of the practice and procedure of the Civil Procedure Decree is basically the Common law. In this regard, the application of the practice and procedure of this Decree leaves a lot of leeway for the application and subsequent influence of Common law principles in cases that are to be determined by Islamic law principles.

The Kadhis’ Court system in Zanzibar is recognized by the Constitution and exists within a secular State. However, the Court is for all intents and purposes, a State institution but unlike other court which are also dependent on tax payer’s money, the Kadhis Court is seriously underfunded. The security of the Court’s personnel and documents is also in a serious state and needs recuperation. We have also demonstrated that it is not the whole corpus of Islamic law that is applicable in the Kadhis Court. Rather it is only that part of the law that regulates marriage, divorce and inheritance which applies. Furthermore the parties who appear before the Kadhi’s Court must profess the Islamic faith and the evidentiary provisions are regulated by the State to ensure non-discrimination on the basis of, inter alia, sex.