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CUSTOMARY LAW AND ITS DEVELOPMENT IN KENYA

Customary And Islamic Law & Its Development In Kenya
Published in: Legalbrief AfricaDate: Mon 11 October 2004Category: KenyaIssue No: 100
A. THE ORIGINS OF THE LEGAL SYSTEMGeneral backgroundThe legal system is based on English common law, African customary law and Islamic law. African customary law is used as a guide in civil cases affecting people of the same ethnic group so long as this does not conflict with statutory law. This article firstly looks at the origins of the legal system; it then moves on to the current position and finally looks at the future developments in Islamic and Customary law in Kenya. Under the British Protectorate, Kenya had parallel legal systems comprising: (a) The African Courts applied customary law, with appeals lying with the African Appeals Court, then with the District Officer and then a Court of Review; and (b) Muslim personal law was applied by Courts of Liwalis, Mudirs and Kadhis, with appeals lying with the Supreme Court (renamed High Court post-independence).Integrating the legal systemThe process of integrating the judicial system began in 1962 when powers of the administrative officers to review African Courts' proceedings were transferred to magistrates. The process was completed by the passage of two acts in 1967, namely:(a) The Magistrates' Courts Act 1967 - this abolished African Courts and the Court of Review and instead established District and Resident Magistrate's Courts and a High Court; and(b) The Kadhis' Courts Act 1967 - this established six Kadhis' Courts for the application of Muslim personal status law.Development of marriage law, divorce law and inheritance lawIn 1967, two commissions (appointed by the President) started looking into marriage, divorce and inheritance law, and produced drafts of uniform family and inheritance codes to replace the existing customary, statutory, Islamic and Hindu laws then in force.The commission reviewing marriage and divorce law produced a draft code, but since the 1970s efforts to enact a uniform marriage law have been unsuccessful. Marriage law continues to be governed by several regimes: Civil, Christian, Hindu and Muslim marriages are governed by separate legislation and communal laws and customary law marriages are also afforded official recognition.In relation to inheritance law, four systems of succession existed in Kenya until 1981, namely:(a) The European system - based on statute and common law;(b) The Asian system - initially based on Hindu customary law and later on statute;(c) The Muslim system - based on the principles stated in the Quran; and (d) The African system - based on the African customary law, which varied from one community to another.The post-independence government was aware of this diversity and an attempt was made to establish a uniform code of succession applying equally to all. The commission reviewing this area recommended a uniform code applicable with certain exceptions for customary laws. The bill was eventually passed in 1972 as the Law of Succession Act CAP160, but it only came into force in 1981.When the Succession Act was passed in 1972, Muslims, including the Kadhis, vowed to ignore it and continue to apply Muslim laws of succession. The Kenyan Muslim community protested through newspaper editorials, petitions and heated public demonstrations in Mombasa in the early 1980s. The Succession Act was ultimately amended to exclude application to Muslims in the early 1990s.B. THE CURRENT POSITIONThere are currently four levels of Courts in Kenya: Resident and District Magistrates' Courts, Senior Resident and Chief Magistrates' Courts, a High Court and the Court of Appeal. Islamic law is applied by Kadhis' Courts, and there are eight such Courts, presided over by a Chief Kadhi or a Kadhi appointed by the Judicial Services Commission. Appeals lie to the High Court, sitting with the Chief Kadhi or two other Kadhis as assessor(s). Islamic personal law The protectorate-era legislation relating to the application of Islamic personal law has been retained. The Acts in force (Mohammedan Marriage and Divorce Registration Act 1906, Mohammedan Marriage, Divorce and Succession Act 1920 and Kadhis' Courts Act 1967) afford recognition to marriages solemnised under Islamic law, provide for the registration of Muslim marriages and divorces, delineate the jurisdiction and procedure of Kadhis' Courts and instruct the application of the principles of personal law applicable to the parties involved, without substantive codification of that law.Constitutional status of Islamic law The Constitution, which was adopted on 12 December 1963 (amended several times thereafter) provides for the establishment of Kadhis' Courts (Article 66(1) to (5)). Kadhis' CourtsThe Kadhis' Courts have been established by the Kadhis' Court Act (Cap. 11), which is based on provisions of Section 65 of the Constitution of Kenya. The Kadhis' Court Act provides that there shall be a Chief Kadhi and a specific number of Kadhis not being less than three and not more than twelve. At present there are eight Kadhis' Courts. The Kadhis' Court is presided over by the Chief Kadhi or a Kadhi. The Chief Kadhi and Kadhi are appointed by the Judicial Service Commission of Kenya. A person to be appointed a Chief Kadhi or a Kadhi must have the qualifications prescribed.The jurisdiction of a Kadhis' Court is defined in section 5 of the Kadhis' Court Act.The provisions of the Evidence Act (Cap. 80) do not apply in Kadhis' courts. The law of evidence applicable to a Kadhis' Court is the Muslim Law of Evidence. The Muslim Law of Evidence, however, is subject to the conditions as per section 6 of Kadhis' Courts Act.Appeals from a Kadhis' Court lie with the High Court. In such a case, the High Court sits with the Chief Kadhi or two other Kadhis as an assessor or assessors.The Kadhis' Courts Act does not give Kadhis' Courts exclusive jurisdiction to Kadhis' Courts over matters concerned with Muslim personal law. The High Court and subordinate courts may hear and determine matters that are Muslim personal matters, and the courts do not need to apply Muslim law.The Appellate ProcessAs the appellate court for Kadhis' Court decisions, the Kenyan High Court differs from the Kadhis' Courts. In the High Court, parties to an appeal must be represented by advocates, who, even if they are Muslims, often are not trained in Islamic law. Consequently, memoranda of appeal routinely cite principles of secular rather than Islamic law. Appeals are reviewed by a High Court judge and at least one assessor from among the Kadhis. Kadhis claim that secular judges pay little attention to the complexity of Islamic law or its correct application. When Islamic legal principles are turned aside, the appellate process itself poses a challenge to the autonomy of the Kadhis' Courts and to the authority of Islamic law.Even though appeals are rare and appellate decisions even rarer, the appeals process challenges the autonomy of the Kadhis' Courts. Claimants in the lower court realise that they can go beyond the Kadhis, even the Chief Kadhi, in pursuing a claim, and some declare their intention to do so after losing a case. In theory, any court of appeal poses such a threat. In coastal Kenya, however, appeals challenge the authority of an entire legal tradition, as they move from Islamic courts into the realm of secular law and thus from the discourse of Islam to that of state law.African Customary law It is the law of small-scale communities which people living in these communities take for granted as part of their everyday experience but it excludes outsiders who, to get any account of it, either have to be told about it or read about it. Customary law is sometimes difficult to track since there are as many customary laws as there are tribal communities and despite the general consensus on certain fundamental principles, there are nuances in each that only one well versed with the community's way of life can identify. The hallmark of African customary law is the dominance of older male members over property and lives of women and their juniors. There are no customary or traditional Courts in Kenya. The national Courts use the customary law of an ethnic group as a guide in civil matters so long as it does not conflict with statutory law. This is done most often in cases that involve marriage, death and inheritance issues and in which there is an original contract founded in customary law. For example, if a couple married under national law, then their divorce is adjudicated under national law, but if they married under customary law, then their divorce is adjudicated under customary law. Citizens may choose between national and customary law when they enter into marriage or other contracts; thereafter, however, the Courts determine which kind of law governs the enforcement of the contract. The current Constitution does expressly state that, in relation to the use of land, rights held under African customary law are to be respected or fully compensated, unless they are repugnant to any written laws.C. FUTURE DEVELOPMENTSIn relation to customary law, there has been considerable opposition by women's organisations that are seeking to eliminate customary law on the basis that it is biased in favour of men; but ,this does not appear to have had a large impact.Since 2002, there has been a controversy, as Kenya debates a new Constitution over proposals for the institution of Islamic Law Courts. The draft Constitution, made available in October 2002 by the Constitution of Kenya Review Commission, proposes the establishment of Islamic Courts at all levels of the judiciary system. Other religious representatives- Christian, Hindu, traditional African faiths-argued that the proposal would entail an unjustifiable preferential treatment for Islam. Muslim leaders, though, say the separate Courts are an essential element in establishing an adequate judicial system. Critics also state that that proposed system would give Kenyan Muslims a separate system of justice. In response, Muslims argue that Kenya's existing Courts do not adequately address the Islamic understanding of issues such as marriage, inheritance and divorce. Earlier in the year, in July, some Kenyan Church leaders filed a constitutional reference seeking various declaratory orders. They contended that the entrenchment of the Kadhis' Courts in the Constitution is the first step towards the introduction of Sharia laws, which they termed as "discriminatory, dangerous, unjust, detrimental and unconstitutional". They also wanted Section 66 of the Constitution of Kenya, which introduces and entrenches Kadhis' Courts, declared unconstitutional and to be expunged in its entirety from the Constitution.As Kenya moves closer to a new Constitution, it remains to be seen whether or not the Kadhis' Courts will remain entrenched in the Constitution of Kenya.

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