KADHI’S COURT MUST BE RECOGNISED BY NEW CONSTITUTION. The Kadhis’ court should be integrated within the judicial institutional framework in this on-going constitutional review process. The New Constitution should establish or direct the establishment of Kadhis’ Court. This is because if Kadhis’ Court is established by an Act of Parliament (legislation), the Kadhis’ Court must be VENERABLE to repeal or amendment that my result into diminishing the quality and quantity of powers, functions, immunities and privileges of Kadhis’ Court. RATIONALE FOR CONSTITUTIONAL AND LEGAL RECOGNITION OF KADHIS’ COURTS i. Prevention of Legislative Venerability of Kadhis’ Court The first rationale for constitutional recognition and establishment of Kadhis’ Court is well articulated by nobody than my Noble Professor Hamuduni Majamba who argues as quoted hereunder; “one of the concerns of establishing Kadhi courts by ordinary law by an Act of Parliament without the Constitution recognizing them has been that it would make them vulnerable. The likelihood of the courts being abolished by a simple majority of the members of the legislature is not farfetched. A relatively larger number of MP’s would be required to change the Constitution.” ii. Maintenance and Promotion of Social Justice If Kadhis’ Courts form an integral part of Tanzania’s constitutional and judicial system, it will helped to maintain and promote peace, love and social justice among members of Muslim families and Muslim community because justice will be dispensed in accordance with the Islamic perception, Islamic beliefs, Islamic rationality and Islamic standards of justice. iii. Promoting Expeditious Determination of Disputes If Kadhis’ Courts are establish will promote expeditious determination of disputes three senses. First, Kadhis’ Courts will reduce the congestion of cases in ordinary courts as all case relating marriage, divorce, inheritance, personal status and other matters concerning personal law in respect of Muslims in ordinary courts will be handled by Kadhis’ Court. Secondly, Kadhis, Courts as a specialized court just like High Court Labour and Commercial divisions will determine dispute expeditiously because will be dealing with only one category of dispute, id est, Islamic personal law. Third, because the faith based dispute settlement mechanism which is inherently reconciliatory, it is most likely that the many cases may end in mediation and reconciliation ,thus, may not proceed to adjudication. Consequently, Tanzania legal and judicial system will move one step forward towards achieving expeditious determination of cases which is fundamental element of justice as the saying goes that “Justice delayed is justice denied”. Expeditious determinations of disputes reduce costs of litigation in respect of litigants and reduce administrative costs in respect of government. iv. Ignorance of Islamic Law and Faith By Judicial Personnel The fourth rationale, legal experts and judicial personnels in Tanzania are trained to handle disputes within the framework of common law adversarial system, thus, legal experts and judicial personnel are professionally incompetent in handling Islamic disputes which are inherently and substantially reconciliatory and rather than adjudicative or adversarial. Also, legal experts and judicial personnel possess shallow knowledge of Islamic law and the jurisprudence underpinning Islamic law because they are superficially trained in field of Islamic law at higher learning institutions. For example in the case of Halima Athumani Vs Maulidi Hamisi [1991] TLR 179 (HC) Mwalusanya, J (as he then was) practically elaborated on how the learned District Magistrate of Singida District Court was ignorant of Islamic law concepts namely divorce mubaraat, three talaks and khului. v. Historical Justification Fifth rationale for establishment of Kadhis’ Courts, Kadhis’ Courts is not a new phenomena in both Tanzania Main and Tanzania Zanzibar, Kadhis’ Court existed in Tanzania Mainland before colonialism and after colonialism refer J.P. Mefett, “Native Courts in Tanganyika: A History of the Development of Native Courts from German Times,” Vol. 4 Journal for African Administration, 1952.. Kadhis’ Court existed during British colonial era and it was formally established by Section 3 of The Native Court’s Ordinance No. 6 of 1920 as native courts subordinate to the High Court and it was complimented by The Native Courts Proclamation, 1925 (Government Notice No. 7 of 1925) Therefore , Kadhis’ Courts is not a new phenomenon in Tanzania particularly Tanzania Mainland, Kadhis’ Courts existed during the pre-colonial and colonial era and existed after independence and in those era Kadhis’ Courts operated without problem and without any prejudice to Christian, traditionalists and other non-Muslim believers. What we are doing is just re-introduction of Kadhis’ Courts in Tanzania Mainland just as we re-introduce Multiparty in 1992 in Tanzania. Kadhis’ Courts was recognised and accepted by Germans and British men who brought Christian in Tanzania, thus, it will rationally unjustifiable for Tanzania Christians who are recipients of Christianity from Germans and British men to reject the establishment and constitution recognition of Kadhis’ Courts. The history of our country justify the legal recognition and successful operation of Kadhis’ Courts in Tanzania during pre-colonial, colonial and independence era vi. Comparative Constitutional Approach Justification Many countries in African in particular and the world in general establish or recognize Kadhis’ Courts constitutionally. Some of African countries which have relative small number of Muslims such as Kenya and Uganda constitutionally establish or recognize Kadhis’ Courts which form part and parcel of their judicial and legal system. Kenya is a secular State which has a relative small percentage of the Muslim population, Muslims in Kenya constitute 11.2 %, id est, out of 38, 610, 097 total population of Kenya only 4,304,798 are Muslims according to The Population and Housing Census Results of 2009 (Kenya), however, Article 170 (1) of The Constitution of Republic of Kenya, 2010 establishes Chief Kadhi’s Court and other Kidhis’ Courts. Some African countries which of which Khadhi;s Court is established by constitution include Uganda, Ethiopia, Gambia and Nigeria. Since some of African countries which have relative small number of Muslims and which within category of developing countries such as Kenya and Uganda have constitutionally established or recognized Kadhis’ Courts inevitably it is legally, economically and social justifiable for Tanzania to establish or recognize Kadhis’ Courts constitutionally and makes Kadhis’ Courts as part and parcel of Tanzanian judicial and legal system. vii. Funding Kadhi Courts by Using Public Finance The following reasons underpin the funding of Kadhi Courts by using the public finance; First, it is a settled principle (the transfer of responsibility principle) that whenever the government or organ or agency thereof transfer its responsibility (power or function) to any person or any institution, the government or organ or agency thereof must transfer to the transferee of power or function the necessary resources for the performance of the function or exercise of the power which has been transferred including financial, human and infrastructural resources. The transfer of responsibility principle requires the government of Tanzania to transfer both responsibility of dispensation of justice in respect of Islamic law and necessary resources for dispensation of justice to Kadhi Courts. Second, it is a settled principle (immutability of constitutional and legal duty principle) that whenever the government or organ or agency thereof transfers its constitutional or legal responsibility indispensably the constitutional or legal duty for the performance of the function or exercise of the power must remain with the government or organ or agency thereof. These two sister principles are recognised by Article 187 (2) of the Constitution of Kenya, 2010. The issue of dispensation of justice generally and issue of determination of cases in particular are pure duty of the government, thus, if the government transfers the duty of dispensation of justice in respect of Islamic law to the Kadhi Court indispensably the government must transfer to the Kadhi Court the necessary resources for the performance of the function or exercise of the power of dispensation of justice generally and determination of cases in particular. The necessary resources for dispensation of justice which the government must transfer to Kadhi Court, among others, include financial, human and infrastructural resources. Third, Kadhi Courts when are established by constitution or by written laws become public institutions. All public institutions such as courts, commissions, higher learning institutions, armed forces, among others, are funded by government by using public finance. The Kadhi Court being public institution like other public institution deserve to be funded by government by using public fund in the same vein Kadhi Courts should be subjected to public finance laws and including requirement of auditing of accounts of Kadhi Courts by Chief Auditor General. Fouth, Kadhi Courts are funded by public finance in countries where Kadhi Courts is established by constitution. government of countries such as Gambia and Nigeria and do fund Kadhi Courts by using public finance even Kenya a predominantly Christian nation, the Kadhi Courts are funded by using public fund in Kenya , John Seka, Possi Abdallah, Ndeke Wa Ndeke, Eliad Mndeme, Elikunda George Kipoko, George Mandepo, Mudhihir Athuman Ndechihiyo Mashaka Shayo, Alex Ngasa, Novath Rukwago , Joseph Moses Oleshangay, Salma Ali Hassan, Mystica Kalunde and all members of this group.
Posted on: Tue, 30 Sep 2014 14:15:19 +0000
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