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Competing and Conflicting Power Dynamics in Waqfs in Kenya, 1900-2010

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Competing and Conflicting Power Dynamics in Waqfs in Kenya, 1900-2010 Chembea, Suleiman Athuman Thesis Submitted to the Bayreuth International Graduate School of African Studies (BIGSAS) in Fulfillment of the Requirements for the Award of the Degree of Doctor of Philosophy in Islamic Studies of the Bayreuth University, Germany Supervisor: Dr. Franz Kogelmann March 2017 i Dedication To my wife, friend, and the mother of my children, Nuria For your love and support ii Acknowledgement I am immensely indebted to all, both institutions and individuals, who contributed in various levels and ways towards the successful completion of this academic piece. Sincere thanks to the Deutscher Akademischer Austausch Dienst (DAAD), Germany, and the National Commission for Science, Technology, and Innovation (NACOSTI) Kenya, for granting me the scholarship to undertake this study; the Bayreuth International Graduate School of African Studies (BIGSAS), Bayreuth University, Germany, for accepting me as a Doctoral candidate and co-funding my fieldworks; the Teachers Service Commission (TSC) Kenya, for granting me study leave to concentrate on this project; and the Waqf Commission of Kenya (WCK) Mombasa, for the permission to use their facilities during fieldwork. My heartfelt compliments to my supervisor and academic father-figure, Dr. Franz Kogelmann, for the faith he entrusted in me by accepting me as his Doctoral candidate. Words would fail me to express my gratitude for his support in shaping this project since the first time we met in the Summer School on Religion and Order in Africa in 2010 here at Bayreuth. My sincere appreciation to my two mentors, Prof. Dr. Rüdiger Seesemann and Prof. Dr. Kai Kresse, for the unwavering academic nurturing they accorded me evident in the sacrifice they undertook beyond their busy schedules to read my manuscripts and offer insights. I am deeply grateful to have such a mentoring team for I would not have made it to this level without their patience, endurance, and support to my endeavor. These are permanent academic debts that I would carry to my spiritual life in the hereafter! Sincere tributes also to Prof. Hamadi Boga who introduced me to the Waqf Commission Secretariat under the able hands of brothers Muhammad Shalli, Rashid Mwandeo, and Omar Jenjewa. For the unlimited access to Commission records and the guide into the various waqf properties in Mombasa town made possible by the Secretariat, I say jazakallah khayri. Mashallah to brothers Hamdun and Thabit Abu Bakar Omar al-Maawy, the Waqf Commission agents at Malindi and Lamu respectively, for their selfless dedication towards my course when I needed them most. To my wife, Nuria Muhammad Duba, my children: Raudhwa, Dhulqifli, Zulekha, and Saida, thank you for your love, patience, support, and understanding during my long absence from iii home while undertaking this project. May Allah abundantly reward your perseverance and my efforts in this and similar endeavors in the foreseeable future, inshallah. While the accolades go to all the mentioned and un-mentioned institutions and individuals for the success of this project, I assume full responsibility for any shortcoming, whether real or perceived, in this work. iv Table of Contents Title…… …………………………………………………………………………………………..i Dedication…………………………………………………………………………………………ii Acknowledgement………………………………………………………………………………..iii Table of contents…………………………………………………………………………………..v Summary..……………………………………………………………………………………….viii Zusammenfassung Dissertation…………………………………………………………….….....ix List of Maps……………………………………………………………………………………...xii List of Tables…………………………………………………………………………………….xii List of Appendices……………………………………………………………………………….xii Abbreviations and Acronyms…………………………………………………………………..xiii Glossary of Terms……………………………………………………………………………….xv Chapter One: Introduction……………………………………………………………………...1 1.1 Background of the Study……………………………………………………………..1 1.2 Statement of the Problem…………………………………………………………….2 1.3 Research Objectives………………………………………………………………….4 1.4 Justification of the Study……………………………………………………………..5 1.5 Scope and Limitations………………………………………………………………..6 1.6 Theoretical Framework……………………………………………………………..10 1.7 Methodology………………………………………………………………………..12 1.8 Summary of Chapters……………………………………………………………….15 Chapter Two: The Concept of Waqf in Islam………………………………...………………18 2.0 Introduction…………………………………………………………………………………18 2.1 What is Waqf? Problem of Defining the Concept…………………………………..18 2.2 Practices of ‘Waqf’ in Other Traditions: A Borrowed Institution Discourse ………22 2.3 Textual and Historical Evidence of Waqf in Islam: An Islamic Discursive View…………………………………………………………………………...……25 2.4 Essentials of Waqf: Significant Pillars and the Validity of an Endowment…….…..33 2.4.1 (In-)alienability of Waqfs and Shurut al-Waqif (Conditions of the Endower)………………………………………………………………....36 2.5 Classical Administration of Waqfs: The Mutawallis, cUlama, and the Kadhi……...38 2.6 A Brief History on the Classification of Waqfs in Islam……………………………43 2.6.1 Waqf Dhurri (Family or Private Waqfs).………………….…………………45 2.6.2 Waqf Khayri (Charitable) and Mushtarak (Mixed) Waqfs………..……..47 2.7 Purpose and Objectives of Waqfs in Islam: The Spiritual Motivation…...…………48 v 2.7.1 Politicization of Waqfs in Islam……….……....…………………………50 2.7.2 Use of Waqfs to Circumvent Laws of Mirath……………………………54 Conclusion……………………………………………………………………………………….57 Chapter Three: Secular Legislations and Common Law Judgments on Waqf Practices in Colonial Kenya.…………………………………………………………………………………59 3.0 Introduction…………………………………………………………………………………59 3.1 Limiting the Jurisdiction of Kadhi’s Courts and the Establishment of Policies to Administer Waqfs in Colonial Kenya……………….……………………………...60 3.2 Economic Space Control: The Effects of Colonial Policies on Waqf Practices in the Protectorate..………………………………………………………………………...72 3.2.1 Compulsory Registration and Takeover of Waqfs…..………….....……..74 3.2.2 Colonial Policies on Land and Immovable Properties that Impacted on Waqfs…………………………………….……………………………….76 3.3 Contradicting Legislations and Conflicting Civil Judgments against the Sharica on Waqf Petitions in Colonial Kenya…………………………………..........................80 Conclusion……………………………………………………………………………….84 Chapter Four: Managing Waqfs in Postcolonial Kenya: Perpetuating State Control….....86 4.0 Introduction…………………………………………………………………………………86 4.1 Appointment of Waqf Commissioners: Ethnic Affiliations and Loyalty to State Policies……………………………………………………………………………...86 4.2 Competing for Supremacy: Muslims’ Internal Rivalry and Ethnic Dynamics in Constituting the Waqf State Agency…………………………….……………….…90 4.2.1 Levels and Influence of umiji-wamiji Dynamics in Waqfs………………94 4.3 Compulsory Registration: Challenges and Protests against State Control vis-à-vis Revival of Waqfs……………………………………………………………………97 4.4 State Control of Waqfs and Jostling for Power and Privileges by Interest Groups..102 4.5 Invalidation of Waqfs: The Effects of Secular Legislations and Judicial Rulings on Waqfs in Postcolonial Kenya………........................................................................104 4.5.1 Invalidation of Waqfs: Conflicts between the Sharica and the Common Law.....................................................................................................105 4.5.2 Invalidation of Waqfs through Parliamentary Acts……….…………….109 4.5.3 Dismemberment of Waqfs through Executive Decrees………………...111 4.5.4 Invalidation of Waqfs through Precedents on Muslims’ Popular Practices………………………………………………………………...114 4.6 Other Civil Policies Influencing Waqfs in Contemporary Kenya: The Land Acquisition and National Museums and Heritage Acts……………………….......115 Conclusion…………………………………………………………………………118 Chapter Five: Muslims’ Response to State Control and Adaptation to Internal Dynamics of Waqfs……………………………………………………………………………….………......120 5.0 Introduction…………………………………………………………..……………………120 5.1 Symbolic Resistance: Muslims’ Response to State Control of Waqfs………………120 vi 5.2 The Rise of a Community of ‘Muslim Peasants’ …………..………………...…...121 5.3 Trends and Patterns of Symbolic Resistance against State Control of Waqfs in the Protectorate since Colonial Period……….………………………………………..123 5.4 Constitutional Negotiations to Free Waqfs from State Control in Postcolonial Kenya………………………………………………………………………………128 5.5 Adaptation to Internal Dynamics in Waqfs………………………………………..131 Conclusion……………………………………………………………………………………...134 Chapter Six: Distributing Usufruct of Waqfs in Kenya: Safeguarding Cultural, Economic, Socio-Ethnic Interests, and Gender Considerations……………………..….…...……….....135 6.0 Introduction……………………………………………………………………………135 6.1 Safeguarding Family’s ‘Domestic Economy’: The Ambiguous Place of Women in Waqf Ahli in Kenya…………...…………………………………………….136 6.2 Waqf Khayri and Mushtarak Waqfs: Charitable Endowments and the Concern for ‘Public Economy’..…...……………………………………………………140 6.3 Gender and Waqfs: Negotiations for Socio-Economic Space between Sexes among Muslims in Kenya…………………………...…………………………142 6.4 Designating Waqf Beneficiaries along Socio-Ethnic Considerations: A Perpetuation of the umiji-wamiji Dynamics……………………………...........146 6.4.1 Waqf as a Tool for Regional Socio-Cultural Identity and Political Control……………………………………………………………..151 6.4.2 Waqfs and Intra-Religious Jurisprudential Interests: Protecting Sectarian Values, Competing for Symbolic and Social Power…………………………………………………………..…..154 6.5 Exploitation of Waqfs: Non-Sharica Activities, Disregarding Principles of Sound Investment and Challenges of Attaining Qurba ...…………….........................158
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