The Islamic Women’s Initiative for Justice, Law, and Peace (IWILAP), a nonprofit organization, has petitioned the Constitutional Court in Kampala, seeking to compel the government to enact or pass a law to regulate Kadhi Courts such that they can operate formally.
According to the petition filed on Tuesday, the organization, together with its Executive Director Mastullah Ashah Mwanga, a PhD Fellow at Makerere University, notes that in the absence of formalized Qadhi courts, the Uganda Muslim Supreme Council leadership has established informal Kadhi courts to enforce Islamic Family Laws.
However, the petitioners argue that these Kadhi Courts are presided over solely by men, and lack trained personnel in justice, adjudication, counseling, mediation, gender responsiveness, and dispute resolution. Kadhi are experts in Islamic law. Kadhi courts, which fall under the directorate of Sharia are currently restricted to handling marital and family disputes and distribution of the deceased’s property for Muslims, who choose to subject themselves to Islamic law alias Sharia.
However, the petitioners assert that the delay in enacting the Administration of Muslim Personal Law Bill poses serious implications for Muslim women in Uganda. In her affidavit, Mwanga argues that informal Kadhis courts operate without proper regulation or legal framework, leading to gender discrimination, biased judgments, and limited access to justice, especially for women.
The petitioners emphasize that constitutionalism is essential for equity and justice in all aspects of the country’s affairs. Records presented to the Court indicate that IWILAP has encountered numerous challenges faced by Muslim women and girls in informal Kadhi courts during their legal aid activities within communities.
One victim, Nakinaalwe Sofia Ndase, recounts her experience of being abandoned by her husband without support for her and her children. Despite reporting the matter to the Kadhi’s courts, no legal action was taken against her husband, leaving her without recourse. “That having refused to abort and or terminate my pregnancy, the husband stopped providing and or sending us support at home leaving me and the children in the hands of good Samaritans in the village,” reads the affidavit.
The petitioners argue that the absence of female representation as judges in these courts exacerbates gender disparities in family matters adjudication, contrary to Islamic principles promoting gender equality. “We are concerned that several Muslim women have not been in a position to benefit from the intention of this article and thus failed to access justice, particularly Sexual Reproductive Health and Rights which are considered sensitive by the informal Kadhi courts,” reads the documents before Court.
They seek court intervention to expedite the enactment of the Administration of Muslim Personal Law Bill to formalize Kadhis’ courts, ensuring gender equality, justice, and protection of Muslim women and girls’ rights. ” It should be universally agreed that Islamic law provides and promotes gender equality that should be reflected in setting up and use of Kadhis’ Courts,” adds the records.
IWILAP condemns the misuse and misinterpretation of Islamic laws in informal courts, advocating for urgent action from both the judiciary and authorities to prioritize the enactment of the Administration of Muslim Personal Law Bill. “Muslim family laws within a framework of justice and equality are necessary and possible in the proposed Kadhis’ courts because equality and justice are core Islamic principles,” and the records.
The Legal Counsel of the Organization, Faridah Nakitende, says that they want both the courts of law and the authorities to treat this matter with the utmost urgency and prioritize the enactment of the Administration of Muslim Personal Law Bill for the establishment of formal Kadhi courts in Uganda as this touches on fundamental rights and freedoms.
In correspondence dated October 27th, 2009, the Acting Solicitor General B. Kainamura informed the UMSC Secretary General about the progress in finalizing the law on Kadhis courts by the Ministry of Justice and Constitutional Affairs and Uganda Law Reform Commission.
The law aims to introduce Kadhis courts in Uganda for matters such as marriage, divorce, inheritance, and guardianship, subject to Parliament’s prescription under Article 129 (1) of the Constitution.
The Solicitor General requested the secretary to provide a list of individuals with Bachelor’s Degrees in common law and Islamic law (Sharia) to manage and operate these courts.
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