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Muslim Family Law in Sub-Saharan Africa

Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-Colonial Challenges

Shamil Jeppie
Ebrahim Moosa
Richard Roberts
Copyright Date: 2010
Pages: 392
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  • Book Info
    Muslim Family Law in Sub-Saharan Africa
    Book Description:

    Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-Colonial Challenges offers comparative historical, anthropological and legal perspectives on the ways in which French and British colonial administrations interacted with the diversity of Islamic legal schools, scholars, and practices in Africa. The authors examine how the colonial impress marks Islamic legal practices in Africa and its impact on the post-colonial and contemporary periods. Several chapters document the experiences of Muslim citizens in some African states in their bid to have Islamic law, particularly family law, recognized. A substantial introduction sets the individual essays in a comparative framework of Islamic legal scholarship in an era of colonialism by contrasting and comparing vital questions as they occur in the African context.

    eISBN: 978-90-485-1132-7
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. 1-4)
  2. Table of Contents
    (pp. 5-6)
  3. List of Maps and Figures
    (pp. 7-8)
  4. Preface
    (pp. 9-11)
    Shamil Jeppie, Ebrahim Moosa and Richard Roberts
  5. [Map]
    (pp. 12-12)
  6. Introduction: Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-Colonial Challenges
    (pp. 13-60)
    Shamil Jeppie, Ebrahim Moosa and Richard Roberts

    In August 1947, Margery Perham, one of the leading students of colonial studies in Britain, remarked:

    The relationship between Britain and the colonial peoples in the field of law has produced very deep effects, but it has given rise to problems and ambiguities which urgently need study. It is strange that a people so proud of their achievement in the field of law as the British should have given so little serious attention to their wider significance of this side of their imperial responsibilities.¹

    Britain was not alone in paying scant attention to the effects of colonialism on the law;...

  7. Part 1 Colonizing Muslim Family Law in Africa

    • 1 A Legal and Historical Excursus of Muslim Personal Law in the Colonial Cape, South Africa, Eighteenth to Twentieth Century
      (pp. 63-84)
      Shouket Allie

      For obvious reasons, research on Muslim personal law in the context of the colonial history of the Cape is extremely scant and unexplored. Until fairly recently, legal historians have avoided the challenge of this fairly complex and sensitive area of the law. It is therefore not surprising that information concerning this aspect of Muslims is meager, despite the group’s historical presence in the Cape. This is despite the fact that Muslims in the Cape are a people of diverse geographical, cultural and ethnic backgrounds who managed to keep their religion alive and thriving. Their law and custom, their art and...

    • 2 Custom and Muslim Family Law in the Native Courts of the French Soudan, 1905-1912
      (pp. 85-108)
      Richard Roberts

      Tensions between custom and Muslim family law in the native courts of the French Soudan emerged immediately after the new courts were established in 1905. These tensions have their roots in the late eighteenth and early nineteenth-century changes in France’s imperial policies, and revolutionary changes in metropolitan France. On the one hand, France increasingly sought to ‘respect’ differences between cultures, and as France began more aggressive colonial expansion, it applied the legal category of ‘protectorate’ over its colonial dominions. On the other hand, reform of the French legal system promoted by jurists and politicians sought ever more ‘regularity’ in the...

    • 3 Conflicts and Tensions in the Appointment of Chief Kadhi in Colonial Kenya 1898-1960s
      (pp. 109-134)
      Hassan Mwakimako

      This chapter attempts to understand the position of Chief Kadhi in the Muslim communities of Kenya through an examination of the conflict and tensions surrounding the appointments to the post of Shaykh-al-Islam and in its revised form, the Chief Kadhi. This chapter makes no claim to a bold exposé of what the kadhi is all about, where it originated, and what directions it ought to take. Rather, I contextualize a chronology of‘ulamaappointed to a post created by British colonial powers, and explain its implication on the problem of leadership provided by religious elites. I take a critical perspective...

    • 4 Obtaining Freedom at the Muslims’ Tribunal: Colonial Kadijustiz and Women’s Divorce Litigation in Ndar (Senegal)
      (pp. 135-164)
      Ghislaine Lydon

      The Muslims’ Tribunal was established in the French colonial enclave of Saint-Louis du Sénégal on the African coast, a port city locally known as Ndar.¹ The court operated in perhaps one of the most violent, transformative, and culturally cataclysmic periods in the history of Western Africa. Indeed, from the late nineteenth to the early twentieth century, the region encompassing present-day Senegal, Mauritania and Mali witnessed a very rapid expansion of the number of Muslim converts in the face of the mounting pressures of foreign occupation. This period coincided with the French conquest of the African hinterland, launched from the colonial...

    • 5 The Making and Unmaking of Colonial Shariʿa in the Sudan
      (pp. 165-182)
      Shamil Jeppie

      Until Sudanese independence in 1956, shariʿa courts were part of the colonial machinery. Shariʿa was a key component of a three-tier judicial system, the two others being the English common law courts and so-called native courts. Shariʿa was partly codified in theManshurat al-mahakim al-shariʿa(circulars). It was part of a modernizing colonial bureaucracy and was given a modern shape and, to some extent, modern content, as reflected in certain legal reforms.¹

      The dominantmadhhab(‘school’ of legal interpretation) in the Sudan was Maliki, but the Egyptian Grand Qadis often ignored this fact and based their decisions on the Hanafi...

    • 6 Injudicious Intrusions: Chiefly Authority and Islamic Judicial Practice in Maradi, Niger
      (pp. 183-218)
      Barbara M. Cooper

      In this chapter, I will draw upon the history of colonial Niger to move beyond two currently opposed visions of colonial era chieftaincy: on the one hand, we have Mahmood Mamdani’s influential theory that chiefs have served as decentralized despots in a continent-wide system of de facto apartheid;¹ and on the other, we have the more familiar vision among political scientists that French colonial chiefs (unlike those under British indirect rule) were emasculated subjects, whose authority was largely replaced by French colonial administrators and Napoleonic law.² My purpose here is to draw upon the case of a Hausa-speaking region of...

  8. Part II Muslim Family Law, the Postcolonial State, and Constitutionalism in Africa

    • 7 Coping with Conflicts: Colonial Policy towards Muslim Personal Law in Kenya and Post-Colonial Court Practice
      (pp. 221-246)
      Abdulkadir Hashim

      Application of Islamic law along the East African coast dated from the establishment of the Sultanate of Zanzibar in the early nineteenth century. Kadhi courts were established in major towns of the Sultanate along the East African coast. Territories of the Sultan of Zanzibar stretched from the Benadir coast in Somalia to northern Mozambique.¹ However, with the establishment of the British Protectorate in Zanzibar and the Kenyan coast in 1890, the role of Islamic law and jurisdiction of kadhi courts were subsequently diminished gradually. The aim of this chapter is to outline the application of Muslim personal law in Kenya...

    • 8 Persistence and Transformation in the Politics of Shariʿa, Nigeria, 1947-2003: In Search of an Explanatory Framework
      (pp. 247-272)
      Allan Christelow

      In January 2000, the remote, impoverished state of Zamfara in northwestern Nigeria grabbed the world’s attention by establishing Islamic courts with jurisdiction over criminal matters. Within the next two years, the other predominantly Muslim states of northern Nigeria had taken similar, though not identical measures.¹ There were also large-scale incidents of religious-ethnic violence in the cities of Kaduna, Jos, and Kano, in which thousands of Nigerians perished.

      The leaders of Zamfara State set a ball rolling which gathered momentum over the next few years. In the process, it has helped set in motion other dramatic events and challenged core elements...

    • 9 The Secular State and the State of Islamic Law in Tanzania
      (pp. 273-304)
      Robert V. Makaramba

      This chapter focuses on the impact the application of Muslim family law in Tanzania has on the family, the individual, the state, and the other sources of law involved. It examines the role Muslim family law has played in the plural legal system of Tanzania and the compatibility between Muslim family law and the Constitution of the nation. The discussion will be limited to mainland Tanzania, although where appropriate, reference is made to Muslim law in Tanzanian Zanzibar, referred to hereafter as Zanzibar.

      Tanzania, which is a secular sovereign united state, comprises a union resulting from a merger in 1964...

    • 10 State Intervention in Muslim Family Law in Kenya and Tanzania: Applications of the Gender Concept
      (pp. 305-330)
      Susan F. Hirsch

      When I began research in the Islamic Court in Mombasa, Kenya, in 1985, the outer office was always filled withmabuibui, the Kiswahili metonym that identifies Muslim women by referring to their long black cloaks and veils, calledbuibui.Mabuibuilined the long bench, turning inward to converse quietly in twos and threes. Muslim men stood to the sides of the office and in the corridor, thus gendering the space: female in the center, male at the perimeter. Some of those present would end up behind the long, high counter, sitting at the desks of the clerks who sorted through...

    • 11 Muslim Family Law in South Africa: Paradoxes and Ironies
      (pp. 331-354)
      Ebrahim Moosa

      A proposed draft bill on Muslim Personal Law (MPL) for South Africa’s Muslim minority might pass the country’s rigorous constitutional standards of justice and equality, but it might not get approval from all Muslim organizations. An influential and disgruntled group of ultra-conservative religious leaders (‘ulama) opposed to the content of the proposed draft bill have managed to stymie the process for nearly six years. In doing so they postponed the aspirations of several generations of Muslim South Africans to have MPL recognized and legislated by the government. As the internecine disputes within the Muslim religious leadership continue, there is a...

  9. Notes on the Contributors
    (pp. 355-358)
  10. Consolidated Bibliography
    (pp. 359-376)
  11. Index
    (pp. 377-388)