Saturday, May 15, 2010

In the kadhi’s court, wheels of justice grind on ever so steadily

Deputy Chief Kadhi Sheikh Ahmed Shariff at the Kadhi’s Court in Upper Hill, Nairobi (inset). Photos/ ELVIS OGINA

Deputy Chief Kadhi Sheikh Ahmed Shariff at the Kadhi’s Court in Upper Hill, Nairobi (inset). Photos/ ELVIS OGINA 

By DANIEL WESANGULA and JOHN NGIRACHU

The colonial era-style building standing on one-acre in Nairobi’s Upper Hill has the feel of a private home about it.

Some jacaranda trees dot the quiet, grassy compound with a garage that looks disused. Were it not for the signboard on the road that points to the Kadhi’s Court, one would easily confuse it for just another house from an era gone by.

It’s nine in the morning. A lone guard, who also doubles as the receptionist, stands at the door waiting to guide those unfamiliar with the daily routine.

A few minutes later, four people arrive in a white four-wheel-drive vehicle. This is not their first visit, but they hope no one has come before them. Here, matters are dealt with on a first-come-first-served basis.

“Are we the first, or are there some who have come before us?” they ask the guard-receptionist.

No one else has come before them. But the man from whom they have come to seek guidance is not in his office yet. So the four — three men and a woman — glance at the two wooden benches for visitors but opt for the warmth of their car. It is a cold morning, and the wooden benches are still damp from the previous night’s rain.

The guard duly puts down their names on a notebook. Next to their names, he slowly scribbles down the word “divorce”.

Irreconcilable differences

The couple has irreconcilable differences and is seeking divorce. Soon, the next batch of visitors, including women in buibui and men in flowing kanzus, trickle in. But all of them have to wait a little while until a light-skinned man in a flowing white kanzu arrives.

Some call him sheikh, others Mkubwa (Boss). But his official title is Deputy Kadhi Ahmed Shariff Muhdhar, presiding at the Nairobi Kadhi’s court in the absence of Chief Kadhi Hammad Mohammed Kassim.

“We have very little jurisdiction,” says Sheikh Shariff. “We only deal with two issues here; marriage and succession. Nothing else.”

The courts’ jurisdiction is limited to matters relating to marriage, divorce or inheritance in cases in which the parties involved profess Islam and agree to subject themselves to the authority of the courts. The parties can, however, hire a lawyer, even a non-Muslim one, to represent them.

For one to be a kadhi, he has to be well versed in Islamic law from a reputable institution.

“This is the only way one can comfortably interpret the law to the plaintiff and the defendant,” says Sheikh Shariff. One is also required to be of good moral standing in the community as well as be fluent in at least three languages – English, Kiswahili and Arabic.

Sheikh Shariff believes kadhis’ courts offer Muslims the best options to settle their disputes.

When Shahida realised their marriage was going through a rocky phase, she suggested to her husband that they could have the matter handled by a kadhi. Her husband was a traditionalist before reverting to Islam.

Shahida, who prefers that we use one name to protect her identity and her marriage, says the man was reluctant at first but he eventually agreed to visit the kadhi’s office at Nyeri to discuss their differences.

Theirs became one of about 250 cases handled by the Kadhi’s Court in Nairobi annually. About 70 per cent of these cases are on marriage while the rest are on succession.

Man agreed

It was a rather personal matter, Shahida says, but the man handled it quite well. The solution was reached the same day. All the kadhi did was to refer to the relevant teachings from the Koran and the man agreed to live as per the instructions from Prophet Mohammed.

Shahida says without the court, she would have remained subject to the will and ways of her husband, and without any recourse.

“The only time a Muslim man will salimu amri (give in) is when the kadhi points out to him that he is wrong based on the teachings of the prophet,” she says.

She adds that it would be impossible for a Muslim woman to get justice anywhere else and removing the courts would leave them to suffer alone in marriages and other situations.

Did her marriage get back on track and her husband become more considerate? “It’s work in progress but the court definitely helped,” she says.

The courts, once in a while, step in to play a role traditionally left to fathers, uncles or brothers at weddings.

Halima Ahmed, a telephone operator with a firm in Nairobi, told the Sunday Nation the institution is literally her father as it gave her away on the day of her wedding. She got married under special circumstances: her father died when she was still a child and the only blood brother, who would have given her away, was mentally unstable.

A woman cannot give her daughter away and neither could her step-brothers or uncles and it was left to the kadhi to perform the task.

To do so, he investigated her past to establish whether she had been married or divorced before and made sure she had no unresolved issues.

“The investigation can be as brief as 10 minutes of questioning the couple and their witnesses. The most important thing is to ensure that both the bride and the groom are getting married voluntarily and that the woman is not married to another man, or that the man has an undisclosed wife somewhere,” Sheikh Shariff says

Halima says she would also have to go through the same court in case of a divorce. But even that would not be easy; the couple is asked to present their reasons and then asked to stay together for three months to see whether their differences can be resolved.

“Most never go back to him because they realise they do not need to divorce,” she says.

Out-of-court settlement

The deputy kadhi says the court tries as much as possible to encourage parties to reach an out-of-court settlement. He reads and makes an interpretation from Suratul Nisaa — the chapter on women — in the Koran on what she would be entitled to in case of a divorce and in inheritance matters.

It is also upon the kadhi to intervene in cases where the relatives of a dead man attempt to disinherit the widow, as often happens.

“The Koran is clear on what should happen. The wife and the children can automatically qualify for half of the deceased’s estate. The rest is apportioned according to the nearest living blood relative to the deceased,” Sheikh Shariff says.

It takes a month on average and anything between Sh200 and Sh1,000 from the time one makes a complaint to the time a ruling and subsequent execution of the ruling is made. The court fees can be waived in the event the plaintiff is deemed to be poor by the court. If a plaintiff or a defendant is not satisfied with the ruling of the kadhi, he or she is free to appeal to the magistrate’s court.

By 3 p.m. the serene compound in Upper Hill is slowly being deserted. Some leave in tight embraces while others exchange scowls; some have nothing to offer each other but hardened looks. But, at the end of it all, each leaves the Kadhi’s Court content, at least for the moment.

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