CHAPTER NINE WOMEN’S VIEWS ON THE ROLE OF KADHI’S COURTS: A CASE STUDY OF KENDU BAY, KENYA Rebecca Osiro Introduction At the start of the 20th century, during the early years of the British colo- nial era in East Africa, Muslims began to move to more rural settings in the interior, with the development of trading centres away from the rail- way line. This led to the need for appropriate leadership. This chapter examines how Muslim women in one such remote rural community on the shores of Lake Victoria have interacted with Kadhi’s Courts. The existence of Kadhi’s courts in the coastal strip of Kenya had been ensured under the agreement between the Sultan of Zanzibar and the British to “preserve an Islamic way of life”.1 However, during the British colonial period, beyond the coastal strip, Kadhi’s courts were only estab- lished in areas with a significant Muslim presence such as Isiolo in Eastern Province and Mumias in Western Kenya.2 The British developed a triple court system, with Native courts and Islamic courts as well a legal system modelled on British common law. In the run-up to independence in 1963, an agreement was drawn up between the Sultan of Zanzibar, the Prime Minister of Kenya and the British Secretary of State which ensured that Kadhi’s courts should con- tinue on the coastal strip “to the determination of questions of Muslim law relating to personal status (for example, marriage, divorce and inheri- tance) in proceedings in which all parties profess the Muslim religion”.3 1 An-Na’im, A. A. (ed.), Islamic Family Law In A Changing World: A Global Resource Resource Book, London: Zed Books, 2002, page 40. 2 Chesworth, John A., ‘Kadhi’s Courts in Kenya: Reactions and Responses’, in Tayob A., and J. Wandera (eds.), Constitutional Review in Kenya and Kadhis Courts, Cape Town: Centre for Contemporary Islam, 2011, pages 3–17, page 5. 3 Clause two of the exchange of letters between the Prime Ministers of Kenya and Zanzibar dated 8th October 1963. See Chesworth 2011, page 5. © Rebecca Osiro, 2014 | doi:10.1163/9789004262126_010 Rebecca Osiro - 9789004262126 This is an open access chapter distributed under the terms of the CC BY-NCDownloaded 4.0 license. from Brill.com10/02/2021 01:08:15PM via free access 196 rebecca osiro In addition, the triple court system was codified in 1963. However, in 1967, Kenya abolished formal traditional courts, whilst retaining the com- mon law courts and Islamic courts. The Islamic courts carried out their administrative functions only for Muslims, dispensing decisions on family issues such as personal status, marriage, divorce, property inheritance and succession. As the need arose for the Muslims to have legal and religious leadership, the constitution was amended to allow Kadhis to operate beyond the initially stipulated Ten Mile Strip along the coast, to urban centres in the country’s interior.4 The area under study, Kendu Bay, is a small rural town situated on the shores of Lake Victoria in the western part of Kenya. It is about one hundred and twenty kilometres south of Kisumu, the administrative headquarters of Nyanza, one of the eight provinces in the country. The Kadhi’s court is located in Kisumu and the poor infrastructure of Nyanza province makes it relatively inaccessible. It is partly for this reason that the Muslims in Kenya feel marginalized on a religious basis.5 Previous studies have examined women’s use of Kadhi’s courts on the coast, notably Susan F. Hirsch and E. E. Stiles’ 1998 study,6 which observed that women frequented the courts more than men. This chapter, by study- ing women from a remote rural location, seeks to discover whether these women are able to access Kadhi’s courts and to benefit from them. This research was carried out as the place of Kadhi’s courts in the Constitution of Kenya was being hotly debated throughout the nation. The research was conducted through a series of in-depth interviews in Kendu Bay and environs as well as in Kisumu. Those who were inter- viewed for the research are identified by initials; the location and the month of the interview is also given, together with the sequential number of the interview. 4 Anderson, J. N. D., Islamic Law in Africa, London: Frank Cass & Co. Ltd., 1970, pages 81, 107. 5 Said, A. S., ‘An outline history of Islam in Nyanza Province’, in M. Bakari & S. S. Ahmed (eds.), Islam in Kenya: proceedings of the National Seminar on Contemporary Islam in Kenya, Nairobi: MEWA, 1995, pages 19–27. 6 Hirsch, Susan F., Pronouncing and Preserving: Gender and the Discourses of Disputing in African Islamic Court, Chicago: University of Chicago Press, 1998; Stiles, E. E., ‘A Kadhi and His Court: Marriage, Divorce, and Zanzibar’s Islamic Legal Tradition’ (A doctoral disserta tion), St. Louis, Missouri, UMI, 2002. Rebecca Osiro - 9789004262126 Downloaded from Brill.com10/02/2021 01:08:15PM via free access women’s views on the role of kadhi’s courts 197 The Community and Origins of Kendu Bay town Today Kendu Bay is a cosmopolitan town. The Luo are the dominant eth- nic group followed by a significant minority, the Gwe,7 who have been assimilated by the Luo. Swahili culture prevails, due to intermarriage and trade between the coastal and the local communities. The western part of Kendu Bay town, towards Lake Victoria (the old town), where most of the Muslim population live, is a mixture of small huts of corrugated iron and grass thatched roofs served by a dusty road and paths. Islam arrived in the community with the coming of an Arab trader, Nyasoro, who arrived by boat in the bay in 1902 and built a house on the shore. In 1904 a mosque was built in the town where the Islamic court was established, at a strategic point close to the shore.8 It was there that a group of eight elders, referred to as Kamba Nane (Swah: eight strings), volunteered their leadership to the Muslim community, led by Nyasoro and his Gwe counterpart, Kherala Madoro, who were the first Muslims in the area. In 1906, the first Christian missionary, Arthur Carscallen, a missionary from the British Adventist Mission,9 arrived in Kendu Bay, staying with Nyasoro for the first few days after his arrival. Once he was settled he joined the locals in their courts from where he disseminated Christian teaching. He was still remembered by the local people in Kendu Bay, who knew him as Bwana Kaskal.10 Carscallen’s missionary work was carried out along the shores of Lake Victoria. He established a training centre at Gendia, about four kilometres south of Kendu Bay town, and also several schools. He was involved in the translation of parts of the New Testament (St. Matthew’s Gospel) into the Luo language, teaching and converting local people to Christianity.11 Carscallen is depicted as ‘a missionary, an 7 The Gwe are a sub group of the Luhya. 8 Initially, a grass thatched Mosque was erected at Miti Mbili, about twenty kilometres south of Kendu Bay town. The building served for prayers as well as a court. 9 Mahon, J., ‘What Happened in 1906?’, Souvenir Special 100 Years of Mission 1906– 2006, Messenger: Journal of the Seventh-day Adventist Church in the United Kingdom and Ireland Volume 111.17, 2006, pages 3–11. Arthur Asa Carscallen (1879–1964) was a Canadian and a Seventh Day Adventist who had gone to Britain as a colporteur and was then chosen as the first missionary to be sent abroad by the new British Adventist Mission. 10 Osiro, R. A., ‘Polygamy Among Muslim Women in Kendu Bay and Kiboswa, Nyanza Province, Kenya’, MA Dissertation, St. Paul’s United Theological College, Limuru (unpub- lished), 2006, page 9. 11 Neufeld, D., Seventh Day Adventist Encyclopedia, Washington: Review and Herald Publishers Association, 1976, pages 731–732. Rebecca Osiro - 9789004262126 Downloaded from Brill.com10/02/2021 01:08:15PM via free access 198 rebecca osiro administrator and linguist’.12 The fact that his missionary and administra- tive roles are mentioned separately might fit well with the oral literature that a kind of ‘Christian law’ existed alongside the natives’ family law. With Carscallen’s arrival, three types of legal system became opera- tional in the area, that is, customary, Islamic and Christian forms that regulated issues that pertained to family life.13 Mixed Identity The women who were interviewed for the research identified themselves as being members of the larger Muslim community. Phrases such as ‘we Muslims . .’ or ‘in Islam . .we . .’ pointed out to their being part of a whole. They were members of a socially recognised group. The iden- tity was either by birth or by incorporation through marriages that took place within an inter-religious context. The Muslim men mostly married women from Christian backgrounds. Out of eleven women interviewed, nine had converted to Islam at the time of their marriages. The incorpo- rated women were perceived as ‘the other’, being seen as having a lack of knowledge in matters of dini (Swah: religion). The feeling was strongly shared among different categories of women. One who was a Muslim by birth commented: . There are some who do not know dini but claim to be Muslims. Just like the family where my daughter is married.14 One from a Christian background lamented: . Muslim men do not marry their Muslim girls. They go for women from mission families who do not know the law of dini. I came from a mission background because my father was a Catholic.