Application of Muslim Personal Law in the Kenyan Courts: Problems and Prospects

This paper examines the application of Muslim personal law in the Kenyan courts. It addresses jurisprudential issues which engage conventional government judges, magistrates and kadhis (Islamic judges). The interaction between the conventional and religious courts has paved the way for a conflict of laws on matters related to Muslim personal law and has led to an interesting scenario of constructive conversation and criticism that in turn has set the stage for an emerging comparative jurisprudence within a pluralistic society. Factors which contribute toward conflicts include wholesale adoption of Common Law and Islamic law notions and exemption clauses in statutes. To overcome the challenges facing the kadhis’ courts and the application of Muslim personal law in Kenya, the paper proposes the adoption of a progressive comparative jurisprudential approach in responding to emerging legal issues facing Muslim litigants in the Kenyan courts.

Introduction: Current Perspectives on Islamic Family Law in Africa

This special issue of Islamic Africa brings together new critical perspectives on the status of Islamic Family Law, commonly referred to as sharīʿa, within four African countries – Ghana, Kenya, Mozambique and Senegal – each reflecting distinctive gendered cultural, colonial and postcolonial realities. The introduction provides a general overview of the state of the art on Islamic family law in Africa and highlights the significant thematic focus of each contribution and the new areas for further inquiry that the volume opens. These topics and questions include among others: (a) the ways in which European colonialism and contemporary democratization processes have opened spaces for religious pluralism, thereby shaping the articulation of Muslim personal law within different African postcolonial state judicial systems; (b) how Islamic judicial practices, institutions, and authorities such as malamai and/or Kadhis engage themselves with the secular state and/or are constrained by both the state and by the legal pluralism encountered within both Muslim majority and minority African countries; (c) the gendered implications of the hierarchical relation between Kadhi Courts and a national High Court; (d) the benefits and/or shortcomings of harmonizing Islamic Family Law; (e) what is to be learnt from women choosing to settle marital disputes and divorce within and/or outside the “legal protective space” afforded by the state judicial system and its inclusion of Islamic Family Law; (f) the role of human agency in influencing the administration of Islamic family law and/or interpreting the law; how judicial systems that are shaped by European and Islamic patriarchal systems confronted by the resilience of indigenous matrilineal Customary Law within contemporary African societies; and (g) the compatibility between the various articulation of African Islamic family laws with universal human rights and individual freedom. Ultimately, this special issue of Islamic Africa offers an insightful reflection on how Islamic Family Law plays an important role in democratic constitution-making or testing processes.

Application of Muslim Family Law as a Form of Customary Law in Accra, Ghana

This article examines the central role of the malam (Islamic scholar) in the application of Muslim family law in a legal plural tradition in Accra, Ghana. It demonstrates that the role of the malam as a legal actor is one which is not self-ascribed, yet his deployment of such role is significant in how we understand the interaction of various bodies of laws and their hierarchies. The article shows that women form the majority of the litigants who seek to improve their wellbeing by appealing to Islamic legal norms through the malamai. It argues that, through the judicial practices of the malamai of the two dominant Islamic groups, the Tijāniyya and the Salafiyya, the manner in which the malam himself deploys his legal role reveals how his position is relevant for his predominantly female clients. In the end, this article contributes to how we understand the practice of legal pluralism through the application of Muslim family law as a form of customary law.

“Please Give Me My Voice”: Women’s Out-of-Court Divorce in a Secondary City in Senegal

Divorce is not uncommon among Muslims in Senegal and tends to take place outside of court, even if the Senegalese Family Code has made out-of-court divorce illegal. Yet little is known about how women in particular may obtain divorce outside of the court. This article provides ethnographic material on the way women divorce out-of-court, and the repertoires of justification they draw on. In line with scholarly work on women’s use of Islamic courts in other countries the article foregrounds women’s agency, yet in a different out-of-court context. First, it is shown that women draw on multiple, gendered, repertoires. Second, it is argued that because family members play a central role in the divorces studied, the analysis of women’s agency requires an attentiveness to kin and women’s “kinwork”.