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THE Kadhi Courts in Kenya

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THE Kadhi Courts in Kenya Graduate School Course: SIMV07 Master of Science in Development Studies Term: Spring 2016 Major: Sociology of Law Supervisor: Ida Nafstad The Kadhis’ Courts in Kenya Towards Enhancing Access to Justice for Muslim Women Author: Kevin Odimbe Wanyonyi Abstract The legal framework in Kenya today is akin to a ‘right-angled triangle’ with the African Traditional Society as the hypotenuse, the Islamic law as the adjacent side and the English law as the opposite side. These ‘Pythagorean’ triples have informed both the Kenyan Family law history and practice. Kadhis’ Courts applying Islamic law of personal status have been in East Africa for over 200 years now and were entrenched in Kenya’s Independence constitution in 1963. This thesis examines the role of Kadhis’ Courts towards enhancing access to justice for Muslim women since the enactment of the new constitution in 2010. Muslim women are both marginalized and a minority group. The study equally adds new knowledge on the Kenyan Islamic law jurisprudence. In order to investigate the role of these courts, I have employed legal pluralism and access to justice as theories. Relativism was my ontological stance and social constructivism as the epistemological standpoint. Empirical material was obtained through interviews with the Kadhis and Magistrates. Some of the main findings of the study are: independent judiciary; enhanced accessibility of the courts; prompt decisions; inexpensive legal costs; mediation as opposed to adversarial process; public confidence in the Kadhis’ Courts. Other findings include lack of developed Islamic jurisprudence in Kenya, limited jurisdiction by the constitution and the uncodified Islamic law. The findings of this study analyzed through access to justice indicators and ‘Rule of Law’ approach, suggest that Kadhis’ Courts have enhanced access to justice for Muslim women. This research, also points towards similar findings like Susan Hirsch’s ethnographical study at Malindi Kadhis’ Courts. However, the main limitation of this study is failure to interrogate the experience of Muslim women with these Courts. Hence, the findings only reflect the perceptions of Kadhis and Magistrates interviewed. Consequently, this study evinces how legal pluralism through the Kadhis’ Courts plays a role that is of importance to access to justice for Muslim women. Key words: Kadhis’ Courts, Kadhis, Legal Pluralism, Access to justice, Muslim women. 1 Table of Contents Abstract…………………………………………………………………………..1 List of Abbreviations..........................................................................................…5 Acknowledgements .................................................................................................. 5 Dedication ................................................................................................................ 7 1. Introduction .......................................................................................................... 8 1.1 Research Problem ...................................................................................... 9 1.2 Research Aim and Main Question .......................................................... 10 1.3 Defining Marginalized and Minority community ................................... 10 1.4 General Overview ................................................................................... 12 2.0 Historical Roots of the Kadhis’ Courts in Kenya ............................................ 13 2.1 The Odyssey of the Kadhis’ Courts in Kenya .............................................. 15 2. 1.1 Kadhis’ Courts – Towards Constitutional Recognition ........................ 16 2.1.2 Kadhis Courts - The Bone of Contention in the Constitutional Review Debates? ......................................................................................................... 16 2.2 Islamic Law in Kenya: Origin, Sources and Practice .................................. 19 2.2.1 Origin ..................................................................................................... 19 2.2.2 Sources, Practice and Jurisdiction ......................................................... 20 2.2.3 Fiqh ........................................................................................................ 20 2.2.4 Shar’ia .................................................................................................... 21 2.2.5 Ijma ........................................................................................................ 22 2.2.6 Other Sources ........................................................................................ 22 2.2.7 Discussions on the Sources ................................................................... 23 2.2.8 Prominent Schools of Thought of Islam in Kenya ................................ 24 2.3 Legal Pluralism – A product of the Triple Heritage .................................... 24 2.4 ‘Pronouncing and Persevering’ .................................................................... 25 2.5 Summary ...................................................................................................... 28 3.0 Theoretical Framework .................................................................................... 28 3.1 Legal Pluralism defined ............................................................................... 29 3.1.1 Definitional deadlock! ........................................................................... 31 2 3.1.2 Legal Pluralism and Colonization: Before, During and After ............... 31 3.2. Theorizing Access to Justice ....................................................................... 33 3.2.1 Defining Access to Justice ..................................................................... 35 3.2.2 The Rule of Law approach .................................................................... 36 3.2.3 Socio-Legal approach to Access to Justice ........................................... 38 3.3 Indicators of Access to Justice ..................................................................... 39 3.4 Legal Pluralism and Development: Kenyan Scenario ................................. 40 3.5 Summary ...................................................................................................... 41 4.0 Research Methodology .................................................................................... 42 4.1 World View and the Researcher’s Position ................................................. 42 4.2 Design and Location of the Study, Sample Selection and Description ........ 43 4.3 Interviews ..................................................................................................... 45 4.4 Literature Review ......................................................................................... 47 4.5 Reliability and Validity ................................................................................ 48 4.6 Limitations ................................................................................................... 49 4.7 Ethical Considerations ................................................................................. 50 5.0 Fieldwork Analysis: Kadhis’ Courts’ roles in Access to Justice for Muslim Women in Kenya in Personal Law Disputes? ....................................................... 50 5.1 Analyses through Access to Justice Indicators ............................................ 52 5.1.1 Independent Judiciary ............................................................................ 52 5.1.2 Accessibility of the Courts .................................................................... 54 5.1.3 Inexpensive Legal Cost ......................................................................... 57 5.1.4 Prompt Decisions ................................................................................... 58 5.1.5 Mediation as Opposed to Adversarial Process ...................................... 59 5.1.6 Public Confidence in the Kadhis’ Courts .............................................. 61 5.1.7 Public Interest in the cases Before the Courts ....................................... 62 5.2 Analysis through the Rule of Law approach ................................................ 63 5.2.1 Legal Recognition ................................................................................. 64 5.2.2 Limited Jurisdiction by the Constitution ............................................... 66 5.2.3 A Woman cannot be a Kadhi ................................................................. 68 5.2.4 Law as a Command from God ............................................................... 69 3 5.2.5 Islamic Jurisprudence in Kenya ............................................................. 70 5.2.6 Uncodified Islamic Law in Kenya ......................................................... 73 5.3 Summary of the Findings ............................................................................. 74 6.0 Conclusion ....................................................................................................... 76 Appendix 1: Map of Kenya ................................................................................... 78 Bibliography .......................................................................................................... 79 4 List of Abbreviations ADR – Alternative Disputes Resolution CKRC – Constitution of Kenya Review Commission CUC – Court Users Committee MCC – Muslim Consultative Council SDG – Sustainable Development Goals SUPKEM – Supreme Council of Kenya Muslims TJS – Traditional
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