THE KADHIS' COURTS IN KENYA. Towards Enhancing Access to Justice for Muslim Women

University essay from Lunds universitet/Graduate School

Abstract: The legal framework in Kenya today is akin to a ‘right-angled triangle’ with the African Traditional Society as the hypotenuse, the Islamic law as the adjacent side and the English law as the opposite side. These ‘Pythagorean’ triples have informed both the Kenyan Family law history and practice. Kadhis’ Courts applying Islamic law of personal status have been in East Africa for over 200 years now and were entrenched in Kenya’s Independence constitution in 1963. This thesis examines the role of Kadhis’ Courts towards enhancing access to justice for Muslim women since the enactment of the new constitution in 2010. Muslim women are both marginalized and a minority group. The study equally adds new knowledge on the Kenyan Islamic law jurisprudence.
In order to investigate the role of these courts, I have employed legal pluralism and access to justice as theories. Relativism was my ontological stance and social constructivism as the epistemological standpoint. Empirical material was obtained through interviews with the Kadhis and Magistrates. Some of the main findings of the study are: independent judiciary; enhanced accessibility of the courts; prompt decisions; inexpensive legal costs; mediation as opposed to adversarial process; public confidence in the Kadhis’ Courts. Other findings include lack of developed Islamic jurisprudence in Kenya, limited jurisdiction by the constitution and the uncodified Islamic law. The findings of this study analyzed through access to justice indicators and ‘Rule of Law’ approach, suggest that Kadhis’ Courts have enhanced access to justice for Muslim women. This research, also points towards similar findings like Susan Hirsch’s ethnographical study at Malindi Kadhis’ Courts. However, the main limitation of this study is failure to interrogate the experience of Muslim women with these Courts. Hence, the findings only reflect the perceptions of Kadhis and Magistrates interviewed. Consequently, this study evinces how legal pluralism through the Kadhis’ Courts plays a role that is of importance to access to justice for Muslim women.

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