The Challenges Of Modernity To Islamic Divorce Law‎‎

By FR JOACHIM OMOLO OUKO, AJ

Recent media reports that divorce in Zanzibar is on the rise according to the island’s Ministry of Youth, is one of the few cases of the rising rate of divorce in Islamic states.

Because divorce is permitted in Islam as a last resort when all other avenues of dispute resolution have been exhausted makes it very difficult for the ministry to intervene.

Although under Sharia law, either partner has the right to seek divorce, it is the man who concludes divorce or who issues the divorce certificate to the woman. This law makes it very difficult for Muslim women to file cases in civil court even though they would have wished to.

In Zanzibar, like many other Islamic societies, only Shariah law is applicable in matters of divorce.

Although criminal and civil cases are heard in the country’s regular courts, such courts can be involved in divorce cases only when the Kadhi courts have failed, which in most cases they do not. Apart from regular courts there are 10 Kadhi’s courts in Zanzibar.

In Zanzibar the Kadhi courts adjudicate civil cases that involve Muslims ranging from family disputes, divorce, or inheritance; and arise from Islamic law and custom. Kadhi courts also may adjudicate cases involving non-Muslims on matters of marriage if the union was conducted upon Islamic tenets.

Unlike all other cases, in the Kadhi system and cases examining the constitutionality of Zanzibar laws cannot be appealed to the Court of Appeal of Tanzania. Instead, those two types of cases can only be appealed to a special Kadhi appellate court made up of appellate court Chief Justices, Judges, and Kadhis.

According to the report, in a bid to curb the rising divorce rate in Zanzibar, therefore, the Kadhi’s court is now seeking the enactment of a divorce legislation to be applied concurrently with Islamic regulations governing divorce.

The report indicates further that according to Kadhi Sheikh Omar Said, more than 95 percent of the 1,753 marriage disputes brought before the court in the last two years culminated in divorce, with most of the couples involved ranging from the age of 20 and above.

If what Zanzibar’s director of public prosecution, Othman Masoud says that the rise in divorce cases in Zanzibar to increasing awareness of individual rights, especially women’s rights is true, then it means that even Muslim women have come to admit that Sharia law in divorce is oppressive to them.

Just like in the past, there were few divorces in many societies because women had not known their rights and instead were made to believe that men had unfettered dominion over family issue and women had no say.

It is against this background that it can be argued that two days before the 42nd anniversary of the political union of Tanganyika and the isles of Zanzibar, forming the United Republic of Tanzania, a group of 10 people in the semi-autonomous island have filed a case in the Zanzibar High Court seeking to have the union quashed because, they say, “it is illegal”. Tanzania is governed by civil law as opposed to Zanzibar.

Although the founders of Tanzania, Julius Nyerere (Tanganyika) and Abeid Amani Karume (Zanzibar) signed the original article of the union that brought into a single political entity Tanzania mainland and the two islands that make up Zanzibar, the fact that Sharia law dominates Zanzibar while the mainland is under civil law makes it very difficult for them to come to common agreement.

In fact the union is completely confusing. While the president of Tanzania mainland is the overall president, Zanzibar has its own president and national assembly even though they recognize the overall leadership of the president of the United Republic.

With a population of 845,000 dominated by Muslims, Zanzibar has its own constitution and a separate president and parliament. It also is part of the Union of Tanzania and has 75 seats in the Union parliament, which cannot pass laws affecting Zanzibar without a 2/3 majority amongst Zanzibari representatives.

Tensions between Christians and Muslims and between Africans and Arabs and Indians have also remained very high in Zanzibar since the union. The Muslim community claims it is discriminated against in terms of its representation in the civil service and government run industry while Christians accuse the Union President of favoring Muslims in his government.

Like Zanzibar high divorce rates are also emerging in West Africa. Among the Hausa, divorce occurs almost as frequently as marriage. All forms of divorce sanctioned by sharia are allowed.

In West Africa women however suffer more discrimination due to application of customary property and inheritance laws that still favor men’s ownership of land and property.

Although since the United Nations Decade for Women (1975- 1985)— West African governments have indicated through their policy positions a desire to improve the status of women by integrating them more effectively into the economic and social development process, due to this law no much effect has been realized.

In some countries sharia law includes death by stoning in cases of adulterous affairs among women or stabbing to death like what took place on Tuesday in Somalia where a 16-year-old Somali boy stabbed his father’s killer to death in a public execution ordered by an Islamic Court.

According to press reports, Omar Hussein, 45, was convicted under sharia law of killing teacher Sheik Osman Moallim two months ago in the capital Mogadishu after a dispute over his son’s education.

An Islamic court in the Bermuda district of Mogadishu ordered that Moallim’s son Mohamed should execute his father’s killer in the same manner that his father was murdered as hundreds of people watched on as he stabbed Hussein several times in the chest and throat at the Koranic school where his father had worked according witnesses including a Reuters reporter.

Although Somalia has no well-established government, Mogadishu’s Islamic courts have created a semblance of order in the lawless capital by providing justice under sharia law.

Source: Kenya Times