CHAPTER ONE Introduction The office of the kadhi was in existence from the seventh century (AD). During the Umayyad period, for example, kadhis ( Muslim judges) were among Muslim professionals who were appointed by the government to advance sciences such as jurisprudence and theology during the seconnd and third century. Kadhis would be among Muslims scholars (ulamas).1 Abdullahi Ahmed An-Na’im2 notes a systemtaic development of of kadhis’ courts during the early Abbasid period (after 750). Kadhis’ courts were in existence in the Tanzania mainland from the pre-colonial period and during the colonial era, and they were abolished after indepenence in 1963. Prior to the arrival of colonialists, there were local courts operated under the administration of local chiefs. During German colonial rule these local chiefs were known as liwalis. These local courts remained until the coming of the Arab rule under the sultan of Zanzibar in 1698. Islamic law and customary law were applied to these local courts. Islamic law was not administered in criminal cases. German colonial rule was comfortable with these local courts because they were not a threat to their political and economic interests. These courts made the German colonial administration easier by encouraging unity and harmony among Tanzanians. The local courts played a key role in advacing the rights of the locals. Both Muslims 1 William Shepard, Introducing Islam (London and New York: Routledge, 2009), 38. 2 Abdullahi Ahmed An-Na’im, Islam and the Secular Government: Negotiating the Future of Shari’a (Cambridge, MA: Harvard University Press, 2008), 14. 1 and non-Muslims would approach these courts for dispute resolution. German rule established two branches of judicial administration, one for the locals and the other for foreigners. The Courts Ordinance established by by the British colonial administration in 1920 gave legal jurisdiction to these local courts. Similarily, the British administration enacted the Native Courts Ordinance in 1929, which allowed the establishment of local courts. These new courts dealt with cases which were not handled by the courts of liwalis, kadhis, and akida. Besides, these two legal systems, the British regime established the Subordinate Courts for Westerners and Indians. Africans and other people were also allowed to appear before these courts. These three judicial sytems continued to operate until after the independence. The Magistrates’ Courts Act was introduced in 1963 (two years after independence); brought the above three judicial sytems into a unified judicial system. The establishment of this new judicial system marked the official abolition of kadhis’ courts, including the local courts and the Subordinate Courts. The rationale for the abolition of these courts was to foster national unity, which was a priority after independence. The Muslim demand for the establishment of the kadhis’ courts in Mainland Tanzania poses a serious challenge to Muslim-Christian relations. This challenge requires a serious and urgent response. This study is an academic response to the issue; it intends to analysis the issue, show the complex of the issue, suggest some ways to address misunderstandings, increased suspicions that may have emerged because of the issue. This first chapter covers a brief historical background of politics and religion in Tanzania, kadhis’ courts, and definitions of some key terms to be used in this research, the rationale for my choice of both Tanzania and the topic of kadhis’ courts for this study, statement of the problem and my major thesis, key 2 questions raised by this research, aim and objectives of the study, methods, limitations and delimitations, the scope of the content, geographical location, sampling, and how this study is organized in five chapters. Before I get into the discussion proper and so give context to the question and subject of this study, let me outline the political and religious background of Tanzania. 1.0 Political and Religious Background of Tanzania . The Mainland Tanzania came under the colonial rule of Portuguese, Arabs (from Oman), Germany, and Britain. Vasco Da Gama was the first European to enter Mainland Tanzania as an explorer in 1498. The Portuguese controlled the coast of Mainland Tanzania and were driven out by Arabs from Oman in the seventh century. The Mainland Tanzania was under German colonial rule from 1880 to 1919, and British rule from 1919 to 1961. Following the 1884-85 Berlin Conference to divide Africa, Tanzania fell under the Territory of German East Africa. Some of the negative effects of the German colonial rule were its direct rule and economic exploitation. Due to brutality of German rule, there were fierce oppositions against it by indigenous people. 3 One of the concrete examples of opposition against German colonial regime was the Maji-Maji rebellion of 1905-07. In spite of its negative impact on the country, the German rule introduced economic infrastructure (railroads, harbors, and civil buildings) in the country. Under British colonial regime, the name German East African Territory was replaced by the name Tanganyika (Mainland Tanzania). Unlike German colonial rule, British colonial administration used an indirect rule to control Tanzania. Under this indirect rule, the British administration ruled the country though indigenous leaders. Two of the most political achievements of British rule under Sir Donald Cameroon were the introduction of the Legislative Council and the establishment of Tanganyika African Association. This political move motivated the African nationalist movement that culminated in the formation of Tanganyika African National Union (TANU) under leadership of Julius Kambarage Nyerere and independence to the country in 1961. Tanganyika and Zanzibar formed the United Republic of Tanzania in 1964. Like other Africans, Tanzanians are religious. Even prior to the arrival of Islam and Christianity, Tanzanians were practicing their traditional religions. John Mbiti3 observes that for Africans, religion is part of their cultural heritage and dominates all spheres of their lives. In support of Mbiti, Kefa M. Otiso4 points out that 93 percent of Tanzanians consider religion to be very important in their daily lives, 80 percent attend weekly religious services, 97 percent believe in monotheism (one God), 96 percent believe in evil spirits, 93 percent believe in witchcraft and 80 percent believe in evil eye (certain people can cast curses or cause bad things to happen). Regarding religious population, Otiso observes that in 1967, Christians were 34 percent, 3 John S. Mbiti, Introduction to African Religion, 2nd edition (Oxford: Heinemann, 1991), 10, 20-29. 4 Kefa M. Otiso, Culture and Customs of Tanzania (California: Greenwood, 2013), 43-44. 4 Muslims were 31 percent, and other religions were 35 percent (1967 national census). In 2004, Christians were 57 percent, Muslims were 30 percent, and other religions were 13 percent (Demographic and Health Survey). The dominance of religion for Tanzanians evident in political rallies. Most of political rallies are opened by prayers from religious officials. Some political candidates from both the ruling and opposition parties are accompanied by religious leaders throughout the country. Religious leaders are sought by politicians for consultation, advice, blessings, and protection. This religious background was one of the factors for the positive reception of Islam and Christianity by Tanzanians. As Mbiti Observes, however, despite their adherence to these new foreign religions, African traditional religions continue to be attractive to many Tanzanians. The practices of polygamy, consultation of traditional religious specialists (medicine persons, mediums, diviners, and rainmakers) for various needs, for instance, are still common among Tanzanians despite their affiliations to Islam, Christianity, and other non-traditional religions. Islam was introduced in the Tanzania mainland in the ninth century through Muslim traders. Arabs and other citizens from the Middle East were present along the East African coast from the eighth century. These immigrants introduced Islam in several city-states of Tanzania through the trade centers they had established along the coast.5 Most Tanzanian Muslims are Sunnis. For many years Islam remained an urban religion in the costal areas. Muslim scholars’ public debates (mihadhara) and social services such as schools, health centers, and other humanitarian aids have helped Islam to spread in other parts of Tanzania including rural areas. 5 Lissi Rasmussen, Christian-Muslim Relations in Africa: The Cases of Northern Nigeria and Tanzania Compared (London; New York: British Academic Press in association with the Danish Research Council for the Humanities and Jens Norregaards og Hal Kocks Mindefond, 1993), 9-12. 5 Besides Islam and Christianity,other religious groups in Mainland Tanzania include Buddhists, Hindus and Baha’is. The relationship between Muslims and Christians in the Tanzania mainland is generally chracterized by tolerance despite some challenges facing these two religius communities. Unhealthy relationship among some Christians and some Muslims in some parts of the countries is mainly the result of historical injustices created by colonialists. Mbogoni,6 for instance, observes that the introduction of Christianity to Tanzania in the sixteenth century by the Portuguese was charactirized by hostility, crusades, and discrimination against Muslims. This matter is discussed extensively