Islam favored over other religions?

There can be no contestation as to which religion is favored in the Kenyan law. We though have recently noticed that Christian leaders have claimed that Islam has been unduly elevated in the Kenyan constitution by the fact that articles 169 and 170 of the proposed constitution providing for the Kadhi’s courts specifically mentions Muslims for whom this provision is intended. But does this mention mean they are a favored religion in the laws of this country amounting to Islam being the state religion? Since this mention deals with Muslim personal law, I would choose to limit my argument to laws dealing with marriage, divorce and succession reach a fair conclusion and to see if at all this mention does affect other religions.

The interplay of religious forces; Christianity, Islam and African Traditional Religions affected the formulation of laws in East Africa in both colonial and independence periods. These are the forces that shaped the value systems from which policies and laws were formed and for our discussion the family law. The British colonial officials wanted to create a society built upon their European values; however the presence of Muslims in East Africa posed a great challenge, since they too had operational societal laws which had been practiced for long before this time. The colonial officials and the black African presidents who followed them realized that in a pluralistic state uttermost care was needed in making and implementing laws and policies because no laws and policies could be effective if opposed by a substantial section of the society. This is why, in Kenya and Tanzania leaders encountered two antagonistic value systems each seeking to influence the society on the basis of its dogmas. As a result of this, the colonial officials opted to adopt policies that would not unduly hurt either value systems, even though they overshadowed traditional values systems. Kasozi observes that best option available was,

“ separate laws could be made for each religious community, as happened in Kenya and Tanzania and to some extent Uganda. Many Muslims on the coast of Kenya, Zanzibar and coastal Tanganyika were administered under Islamic law, while the rest of the country was administered under British common law, whose values had been shaped in Christianity. However there was a repugnancy clause that made common law paramount in any conflict with Islam or traditional religions.”[1]

The Order in Council of 1897, that opened the application of common law in Kenya, stipulated that, in addition to statutes made by the colonial administration, the common law of England, equity and statutes of general application would apply in what is now Kenya subject to the local conditions and the customs of the people.[2].

This competition between Christian and Muslims to influence laws, discouraged the colonialists from bringing every one under one law resulting in drafting laws and ordinances for each different group. Attempts to harmonize family laws have been a sore to governments even after independence. More recently, the efforts to drafted the Law of Succession Act (cap160 1982) to unify all family laws into a single code applicable to everyone, was strongly and successfully opposed by different communities [especially Muslims] on the ground that it would violate religious freedoms.

It is not difficult to discern the religion whose values and practices have influenced laws in this country. We know for instance that marriage laws applied in this country derived from The Marriage Act of 1753 in England and Wales. This was developed out of the Cannon laws of the Church of England, although The Act tightened these existing ecclesiastical rules regarding marriage, providing that for a marriage to be valid it had to be performed in a church and after the publication of banns[5] or the obtaining of a licence.[6] Jews and Quakers were exempted. From this we have developed the African Christian Marriage and Divorce Act (cap 151) and Marriage Act (cap150 commencement: 29th November 1902). The provisions under these acts that criminalized polygamy and adultery are also issuing out of Christian morality where they are anathema: adultery and bigamy was seen to undermine the institution of marriage and was encouraging a breach of the marriage contract for marriage here is seen as a monogamous union, which is different from the African Traditional religions where these are not vices. Many Kenyans who contract civil marriage are obliged to fit in Christian morality even when they are not. The impact of this law may be seen in the many court cases of disputes following deaths of spouses especially when after contracting marriage under this act someone went ahead and married under customary laws.

In Re Ogolla (1978) K.L.R the deceased had married Gladys in 1964 and had four daughters with her. He died in 1974. A lady named Bona claimed to be married to him under customary law and claimed a share of his estate. It was held that Bona was not a legal wife neither was her child his legal child, and in the words of Simpson J,

“An African is not obliged to marry under marriage act or African Christian Marriage and divorce act: but if he chooses to do so he is choosing the Christian way of life, and on his death removes the widow and the children from the ambits of tribal customs affecting cohabitation and guardianship.”[3]

.Family laws are derived from belief and values it follows that they were extracted from religion as a main source of ethics. Since Muslim values were not going to be adopted for law, they were allowed space in the law of the land, inside but integrated. It will be difficult to conceal how much besides the common law have Christians ethics permeated several sections of this constitution whose adoption will soon translate into law despite alternative views of a section of this community

To guard against of violation of religious freedom to the Muslims it was prudent that Kadhis’ courts were provided for as they are now. Throughout history Islamic law has remained central to Muslim identity and practice, for it constitutes the ideal social blueprint for the ‘good society’. Despite vast cultural differences, Islamic law has provided an underlying sense of identity, a common code of behaviour, for Muslim societies. This shows how wide a scope the laws can cover from worship and belief to societal order and family law. Family law is central in Islamic community. Because of this central role it enjoyed pride a place in the development of Islamic laws as well as its implementation throughout history. It is observed that “while modern Muslim rulers and caliphs might limit, circumvent, and replace penal or commercial laws, Muslim family law has generally remained in force.[4] This can explain why Muslims accepted all other laws provided for in our constitution even though not congruent to their values but sought strong safeguards on family laws.

Being very specific the Kadhi’s courts have squarely applied to Muslims and no other faiths. This court on the contrary has encountered conflicts operating as a subordinate court as evident in its administration:

1. If only one party is Muslim, the Islamic law is not applicable ,

2. When a case is before a court other than Islamic court there is no obligation to apply Islamic law even if both parties were Muslim

3. The problem of appeal to common law, even with the provisions made for assessors, was that the High court has no obligation to apply Islamic law even if both parties were Muslims.

4. The conflict in rules and procedures or evidence in Islamic law is very different from the Evidence Act which is ordinarily used in appeals at High Court despite the Act stating that it is not to apply in Kadhis’ Courts what necessitated the exemption clause in the proposed constitution’s Bill of rights, article 24(4) [of the proposed constitution].

Consequently it will be hard to state the case that Islamic laws, have been elevated above other religions, nor are there any possible way it can interfere or affect other religions. Islamic laws are caged in the firm cabin of laws drawn from Judo-Christian values which does not prove any favour or being advantaged over other faiths in this sense.

When we see the constitution as a Mosaic depicting diversities of cultural and religious experiences of members of this society it will be easier for us to step up our accommodation of others and their differences. We cannot read article 8 of this proposed draft differently: ‘There shall be no state religion’. Obviously Islam cannot be said to be state religion nor religion favoured in law, the article 8 also kills any possibility of using the feudal principle, ‘ religion of the ruler in the official religion of the state’ which Amin Dada used to declare Uganda an Islamic state in 1974.[5]

Rev. Francis Omondi, Anglican Church of Kenya,

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[1] Hansen, H.B.& Twaddle M, Religion & Politics in East Africa, E.A.E.P. Nairobi 1995. pp229

[2] The law that governs agreements to marry and betrothals, formalities that brings marriages into existence, maintenance, separation, custody, adoption, nullity, divorce, property acquired during the marriage by spouses, devolution of property and succession to property after a person dies.[explained by Kuria , G K , East African law Journal 12, 1 (1967) pp33-82

[3] [ Kimeri-Mbote, P. the law of succession in Kenya, gender perspective in property management and control, women and law in East Africa 1995, Nairobi

[4] Esposito, J, Islam the straight path, 1988 OUP New York , 75

[5] Ali A. Mazrui, Religious strangers in Uganda: From Pasha to Amin Dada, Affrican Affairs 302(1977), pp21-38