One Kadhi, Court, and Anthropologist

NOTES One Kadhi, Court, and Anthropologist 1. For a comparative look at the status of Islamic family law in different parts of the Muslim world today, refer to Abdullahi an-Na’im’s overview of Islamic family law (2003). 2. See Susan Hirsch’s article (2006) for a thorough overview of sociolegal scholarship on Islamic law. 3. There are a number of different schools of Islamic legal thought that are named after the influential thinkers behind the development of the schools. Of the four Sunni schools, Shafi’i is the most prominent in East Africa. The Omani Arab colonizers were Ibadhis, and a few Zanzibaris still identify as Ibadhi. There is also a small Ismaili Bohora community in Zanzibari Town. 4. Women in Zanzibar are addressed with the title Bibi in front of their name (Bi, the short form, is more common), which means Ms. The title is used for women of all ages and marital status. For younger men, the title Bwana (Mister) is used and for older men, the title Mzee (Elder) is used. 5. For a thorough treatment of the recent history of the kadhi’s courts until 1963, see Stockreiter’s dissertation (2008). 6. Many scholars have noted a preference for oral than written evidence in Islamic legal con- text, (Messick 1993). Stockreiter traces the influence of the colonial period in establishing a reliance on written evidence (2008), and in Zanzibar courts today, written evidence is much preferred in many situations. 7. This period also saw other strict laws in Zanzibar concerning dress and hairstyle, like the 1973 decree on clothing, and placed strict regulations on visits to Zanzibar from foreigners. See Burgess (2002). 8. This is the Act to Repeal and Replace the Protection for Spinsters Decree and to Provide for Protection of Widows and Female Divorcees and to Provide for Other Matters Connected Therewith and Incidental Thereto, No. 4. 9. This is the Spinsters and Single Parent Child Protection Act, No. 4 (2005). 10. The bill is entitled “The Amendment Concerning a Law to Establish the Office of the Mufti of Zanzibar and Matters Concerning the Establishment Thereof” (No. 93 of 2001). 11. Marital disputes in which abuse is the primary complaint are handled as secular criminal cases; those inheritance disputes in which the problem concerns property itself rather than determining proper heirs or the proper division of property are handled in the secular courts. 12. Divorce is also common elsewhere on the Swahili coast (Strobel 1979, Landberg 1986, Mirza and Strobel 1989, Middleton 1992, Hirsch 1994, Caplan 2000). 200 Notes 13. I modeled this table after a similar one in Susan Hirsch’s Pronouncing and Persevering (1998). Two Writing a Case: Court Actors and Court Procedure 1. As of 2008, fashions were changing, and some women in town (and when going to town) were alternating the buibui with an elegant outfit known as kitanga (in the fashion of Tanga, a coastal city on the mainland). This new style consisted of a colorful long dress and match- ing scarf that covered the head and upper body in a way similar to a kanga, but more was elegant and made with more expensive fabric. It was thus quite different from the black buibui, but covered the body in a similarly modest way. 2. Although several people at home in the United States often asked me how I was received as a woman working in such a court, no one in Zanzibar’s courts ever commented on my gender or seemed to think it of any importance at all. 3. Shaykh Hamid listed the shaykhs after whom three of the Sunni legal schools are named. 4. In a 2005, one kadhi told me he had originally been offered the position several years back, and turned it down because he was “tired” and did not want the hassle of the job. He even- tually took the position. 5. Prior to the twentieth century, Kiswahili was written in Arabic script, and even people born in the twentieth century learned to read and write Kiswahili in Arabic script. As a result, some kadhis, Shaykh Hamid among them, had to learn to write Kiswahili in the Roman alphabet when they were appointed to their positions. 6. In these situations when they share an office and courtroom, the kadhis and judges come to court on alternate days. 7. In their work on American courts, Yngvesson and Merry have noted the important role of clerks in shaping cases. Yngvesson proposes that the clerks work as “gatekeepers” in their power to manipulate the law, define problems as legal, and in some cases even “create” crimes (1993). In Merry’s analysis of working-class legal consciousness and culture in the United States, she similarly describes the way in which the various parties to the disputes frame, categorize, and typify cases according to the legal and nonlegal categories they have developed (1990). 8. Agmon notes that keeping records of the court proceedings was the main duty of the scribe in the Haifa and Jaffa courts; their role was thus somewhat different from the clerks in Zanzibar’s courts. 9. The role of the sheha will also be addressed in chapter five. 10. Because plaintiffs were most often female, I use the female pronoun here. However, the process was the same regardless of the gender of plaintiff and defendant. 11. Stockreiter notes that Nawawi’s Minhaj al-talibin and the corresponding commentary by Ibn Hajjar al-Haytami were main references for Shafi’i kadhis in the early to mid-twentieth century (2008: 75). 12. To protect their privacy, the names of all litigants are changed throughout the book; details about home villages and shehias are also concealed. 13. Machano’s ethnicity is listed as “Mtumbatu.” Most people in this area claimed to be Tumbatu, but sometimes people simply answered “Zanzibari” or “Swahili.” Occasionally, litigants were confused when asked this question, and I remember one young woman tell- ing Bwana Fumu to just write down whatever he was. 14. In the Zanzibari calendar, the month of mrisho is Ramadan, and mfunguo mosi is Shawwal. 15. Qur’an 2:229. The kadhi always cited the Qur’an in Arabic; I use Ahmed Ali’s translation throughout the book. Notes 201 16. Shaykh Hamid often tried to determine the nature of a divorce even when the litigants or clerks prioritized another legal issue. This is due to the frequency of the practice known as “writing for money,” which Shaykh Hamid and other legal scholars in Zanzibar consider a misinterpretation of Islamic divorce. 17. The “inability” to get along with their husbands was a frequent complaint of women com- ing to court. 18. Much debate ensued about how much she would pay for her divorce, but this will be taken up in chapter six. Three From Community to Court: Gendered Experience of Divorce 1. See table 1. 3. Although marriages and divorces are supposed to be registered with government authorities, few divorces are reported in a timely manner, if at all. Legally, an official receipt of divorce called must be presented to an official before a new marriage can be authorized. Despite the fact that some officials require only a woman’s word that she is divorced, the power of the divorce receipt is widely recognized. In a sample of cases from the first half of the twentieth century in Zanzibar Town, Stockreiter notes that 7 of 206 cases involved similar request for confirmation of divorce (2008: 102). 2. Radio Zanzibar was popular during much of my field work, and the station scheduled several programs of a religious nature that address family life, including women’s rights and obligations in marriage according to Islamic law. Many women who owned radios would listen all day. Babu discusses the significance of the radio as instrument of education after the 1964 revolution (1991). 3. I have not done a close study of the economics of marriage, but note that this is a promising area for future research. 4. Following the revolution, wide-scale land reforms by the revolutionary government stripped Arab and Indian landowners of their properties with the goal of redistributing to “native” Zanzibaris; see Christina Jones-Pauly (1997). Since the issue never came to the fore in marital dispute cases, it suffices to say here that at present, the government tech- nically owns most land, and Zanzibari citizens are given use rights to plots upon demand. They do not pay any rent for the land, and have use rights over trees, plants, and produce. Although I initially expected to witness arguments over land and usufructory rights to surface in marital disputes, this did not happen; joint property in marriage is generally not recognized. 5. For detailed descriptions of marriage elsewhere on the Swahili coast see Hirsch 1998, Caplan 1995, Middleton 1993, Mirza and Strobel 1989. 6. Adolescent girls are educated about womanhood by a somo, an older female relative who advises her until her marriage. Mwanahawa often joked that I would be her mwari when I got married, and she would be my somo. 7. Hirsch has noted parallels in Mombasa, and the utility of the buibui as a disguise for girls wanting to attend weddings and behave in rowdy fashion (1998: 51). 8. Middleton (1992) describes a similar emphasis on education elsewhere along the Swahili coast. 9. Polygyny is fairly common here, even among men with modest means (see also Nuotio 2006). 10. This is also common on Mafia Island (Caplan 1984). 11. Some kadhis, scholars and other professionals consider the norm of accepting a suitor without question a problem.

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