The Place of Islamic Law in Tanzania Mainland

THE PLACE OF ISLAMIC LAW IN TANZANIA MAINLAND.

BY YUSUF SHIKANDA ABDALLAH

ZANZIBAR UNIVERSITY.

Introduction:

Islam is one of the Universal religions of the world. As a religion, Islam is governed by an assortment of divine laws known as shariah of which its sources are mainly attributed to the divine revelations in the Holy Qur'an and traditions of the Prophet (P.B.U.H). This package is what forms the basis of the spiritual, economic, political and social guidance of Muslims. Thus, all the laws of Islam have to be annexed to and borne of the Holy texts. Contrary to this, such laws would be regarded as un-Islamic.

On the other hand, as regards the modern states, the mother of all laws is the constitution. It therefore follows that any law of the land must be in conformity with the Constitution; otherwise, such a law would be declared unconstitutional or ultra vires the constitution and would be of no legal effect. In other words, no state has a right to enact any laws or rather provide for the application of the same, unless such laws have been expressly or impliedly guaranteed by the constitution.

Tanzania is governed by the Constitution of the United Republic of Tanzania 1977.This Constitution provides a right to Freedom of religion which includes inter alia, choice in matters of religion and change of religion. From this provision, it may be inferred that, Islam, as a religion, is recognized in Tanzania.

The United Republic of Tanzania is a product of a union between Zanzibar and Tanganyika. The union consists of two governments: the union government and the government of Zanzibar. As a result of this, Islamic law in Tanzania is applied in two different modes. In the isles of Unguja and Pemba i.e. Zanzibar, Islamic law is governed by a separate system of courts known as Kadhi's courts. However, these courts are limited to Islamic matters related to personal status, marriage, divorce and inheritance in proceedings in which all parties profess the Muslim religion. On the other hand, in Tanzania mainland, there are no separate courts for the application of Islamic law. The single hierarchy of courts hears and determines disputes regarding both Muslim and non-Muslim or rather secular matters of interest.

This paper will chiefly focus on the application of Islamic law in Tanzania mainland, although reference will be made to Islamic law in Zanzibar where appropriate. Take my hand and let me lead you through this. The paper will discuss the application of Islamic law during colonization and post -colonial period including the present state.

The German period:

History has proven that the people along the East African coast of the Indian Ocean came into contact with Islam long before the advent of European colonization. This was as a result of Arab settlement at the East Coast of Africa. Later on, the Germans colonized Tanganyika (present day Tanzania mainland) and acquired a ten miles coastal strip from the sultan of Zanzibar.Ofcourse this was met with resistance but the Germans managed to subdue it. The colonizers then allied with some Arab and Swahili notables and had them appointed to various administrative positions. In towns, the highest subordinate position was headed by a liwali. Back in the countryside, coloured officials known as akidas who were assisted by small chiefs known as jumbes headed administrative units. Although these titles were the same as used during the sultan's period, the colonial akidas and liwalis performed rather different functions (Makaramba 2000). However, these subordinate heads, in addition to other functions, performed judicial functions, which mainly involved the application of customary law and Islamic law.

The British period:

Following German's defeat in the First World War, Britain took over Tanganyika in early 1919.The British established a system of courts based on the class of the parties, divided between rural and urban on one hand, and between natives and Europeans on the other hand. The colonial state recognized the existing native institutions of justice. In effect, Native Courts were established in 1929 by the Native Courts Ordinance, Cap 73.These Native Courts were subordinate to the High Court. The Native Courts were presided over by Liwali, Kadhi, Akida, Chief, and Headman and were to exercise civil or criminal jurisdiction within an area prescribed by the Governor. However, the life of these courts came to an end in 1951 when the Local Courts Ordinance, Cap 299 came into being. The Local courts were confined to Africans and administered customary criminal and civil law and a limited number of statutory laws.

Another development was witnessed in 1958 when urban courts were established by the Liwalis (Functions and Powers) Ordinance, Cap.408.Liwali courts were presided over by magistrates employed by the Government under the title of liwalis who also exercised executive functions within their own urban area. Although the British colonial state gave recognition to the indigenous judicial institutions under native law and custom, it however, permitted customary criminal law to be applied by the Native subordinate courts but not the Islamic criminal law.

The turning point for the administration of justice in Tanganyika was in 1920, when the British colonizers officially imported and imposed an alien legal system. This was done through the Tanganyika Order-in-Council 1920.According to this order , courts were to apply native law subject to the English notions of justice and morality. Unfortunately, Islamic law was not specifically mentioned in Article 24 as one of the laws, which were to guide the courts. This became a recipe for conflict between English law, Islamic law and customary law (Anderson, 1960). Islamic law was now being considered unfavourable to the English rational orientation and notions of justice and morality as perceived by the contemporary democratic societies.

The decisions by English judges during the colonial period clearly indicate lack of appreciation of the status and role of Islamic law principles in the native societies. In the long run, they introduced what they perceived to be "more modern rules of equity in the application of the general principles of Islamic law". Thus, they were not compelled to follow the strict rules of Islamic law. However, Islamic personal law continued to be applied. Since the term "native law" was inclusive of Islamic law , there was nothing that could prevent a court from declaring Islamic law repugnant to justice