A history of islamic law courts in Tanzania, 1950s-2010

Start - End 
2018 - 2022 (ongoing)
Type 
Department(s) 
Department of History
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Research Period 
Research Region 
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Research Methodology 

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Abstract

This research project is being undertaken by Shabani Mwakalinga, PhD candidate in the history department. It aims to establish how so-called kadhis' courts functioned in late-colonial and early independent Tanzania, what role they played in the lives of Muslims, and how their abolition in 1963 changed legal practices among Muslims. Further, it seeks to understand why and how the reintroduction of these courts has become a focus for Islamist activism in recent years, how the subject is being discussed, and what aims, fears and ambitions connect themselves with the efforts to have them reintroduced. 

In all colonial states in Africa, the legal traditions of the colonized encountered, coexisted and occasionally clashed with those of the colonizers. Consequently, all post-colonial states have to grapple with conflicting ideals of justice and legal process. In British Africa, the administrative method known as ‘indirect rule’, with British administrators relying heavily on the authority (judicial included) of supposedly traditional rulers, reinforced the assumption that different ethnic or religious communities could follow different sets of legal rules within the same state.  Tanzania has numerically strong congregations of Muslims and Christians, as well as over one hundred ethnic groups. Under ‘indirect rule’ in colonial Tanganyika (that is, today’s Tanzania minus the islands of Zanzibar), Islamic law was applied in family and inheritance cases through so-called kadhis’ (that is, Islamic judges’) courts, liwali courts, and akida courts. Although staffed by notables from the centuries-old Muslim communities on the Swahili coast, these courts were a creation of the colonial period, applying a version of Islamic law heavily influenced by the British presence.  After independence in 1961, Tanzania’s post-colonial government, one of the most assertively modernizing and homogenizing on the continent, abolished the Muslim law courts, alongside all other particularist chiefs’, headmen’s and similar courts, in 1963. Since then, Muslims in Tanzania –under religious and locally arranged environments- have still been able to obtain settlements according to Islamic law for questions of family law from sheikhs, that is, religiously learned men. They are routinely called upon, especially to settle questions arising in connection with marriage, divorce and inheritance, but parties who disagree with their settlements have the option to take their query to the official legal system, which may consider Islamic law but typically falls back on non-religious, codified law.  Judgments according to Islamic law, in other words, are unenforceable. Following Tanzania’s return to multi-party politics in 1995, opposition parties have repeatedly made the reinstatement of kadhis’ courts a subject of political debate.  Christian pressure groups object to the demand, claiming that it is incompatible with the secular nature of the Tanzanian state and its commitment to equal treatment for all religious communities, both enshrined in the constitution.  Muslim activists retort that in fact, all religious communities are anyway not equal in Tanzania, as Christians, they claim, have better connections to the state apparatus and routinely obtain preferential treatment.  Some of them use Islamic courts as a ‘wedge issue’ to portray an Islamic way of life as incompatible with constitutional, parliamentary democracy.  The history of kadhis’ courts in Tanzania is therefore very much a matter of contemporary public debate, in which ascertained facts are rather thinner on the ground than conspiracy theories.

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