The Kadhi Courts Debate in Tanzania and the 'Primacy' of the Secular State in East Africa

Are East Africans tired of living under secular states? Do religious courts erode national unity in East Africa? What is the significance of the Muslim demand for a Kadhi court and the Christian backlash against such demands? 

by Aidan Eyakuze

The state and religion in East Africa have never been completely separate. There is a Judeo-Christian heritage in common law and a strong faith-based education and socialization process of post-colonial elites, and development processes. However, religious leaders in Kenya and Tanzania are demanding more and more explicit acknowledgement of religious institutions in their national Constitutions. In the last few months various religious leaders have made a case for explicit creation of courts in Tanzania or removal of constitutional guarantees on Kadhi courts in Kenya or the creation of a Christian equivalent of a Kadhi's court in Kenya. Both demands have been made in a significant political context: constitution-making process for Kenya, and post-election politics in Tanzania.

During the 2005 election campaign Tanzania's largest party, CCM, promised that should they be returned to government by the voters, they would get to work on establishing Islamic Courts in the country. Tanzania's Muslims are still waiting for this pledge to be fulfilled. In his ministerial budget presentation for 2009, the Minister for Constitutional Affairs and Justice, Mathias Chikawe, announced that while the government has been trying to incorporate 'Islamic principles' into existing laws, Kadhi courts did not feature in the government's agenda. This provoked an angry reaction from the Islamic community with some accusing the government of flip-flopping on its campaign promise. The Tanzania Muslim Council threatened CCM with a loss of votes in future elections. During a Parliament question and answer session, Prime Minister Mizengo Pinda told legislators that his government would not be pressured, especially since the issue may lead to divisive debates in the country. Nevertheless, Muslim organizations maintained their push for what they believe to be a just demand with plans to protest against the government's decision. While publicly demonstrating resolve, privately senior figures within CCM were concerned that the groundswell of anger amongst Muslims may cost the party in the local elections to be held in late 2009 this year.

Such fears proved well founded after news broke that leaders within the Muslim community were mobilizing for nationwide protests. The government called what appeared to be a truce by announcing the formation of a joint committee of Muslim leaders and civil servants to find ways to resolve the issue. This followed a meeting between the Prime Minister and influential sheikhs in the country, after which Chief Mufti Issa bin Shaaban Simba urged his fellow Muslims to be patient and not to allow anger to govern their decisions. However, parliament continued to be rocked by debate, with several MPs warning against the inclusion of religion in legal matters arguing that such a decision could lead to a Rwanda-style bloodshed. Speaking at a campaign rally in Mwanza, the Civic United Front (CUF) Chairman Prof. Ibrahim Lipumba attacked President Kikwete, saying that the government's u-turn led to a rancorous and divisive tone in Tanzania on the Kadhi courts issue. Various senior figures within CCM added fuel to the fire by telling reporters that those who read into the 2005 election manifesto a promise to establish Kadhi courts were confused and in the process they revealed the divisions this issue has exposed within the party itself.

The European Union injected itself into the middle of the debate after the head of the EU Commission in the country, Ambassador Tim Clarke, implored the government to remember the secular foundations laid down by Mwalimu Nyerere when contemplating the Kadhi courts issue. Ambassador Clarke went on to hope that Tanzanians will retain the strict separation of Church and State as envisioned by Mwalimu Nyerere, for it has served the country well by making it the beacon of peace in East Africa. Kenyaís High Commissioner to Tanzania also advised against the establishment of Kadhi Courts.


Photo: seier+