“British kadhis” and “Muslim judges”: modernisation, inconsistencies and accommodation in Zanzibar's colonial judiciary

Abstract

Contextualising the creation of Zanzibar's colonial judiciary within the British Empire, this article explores contradictions in the British approach towards the application of Islamic law in this protectorate. The British upheld the existing legal system, shari'a, as the fundamental law yet, striving towards uniformity, impartiality and cost effectiveness, they restricted the scope of jurisdiction of kadhis, or Muslim judges, introduced Indian codes and provided for the application of Islamic law by British judges. Although the British may not have consciously embarked on merging the roles of judges and kadhis, one of the outcomes of their interference with the judicial system was to combine in the one person a secularly trained judge and a religiously educated kadhi. Notes of various colonial officials on the alleged irrationality and arbitrariness of Islamic law suggest that kadhis' accommodation in the colonial judiciary was shaped by continuous British doubt about their suitability as colonial officers, while kadhis implemented colonial decrees, albeit inconsistently. This article argues that underlying differences between judges and kadhis prevailed during the colonial period, while their attempts at a role reversal show adaptation to the colonial legal system, which accommodated shari'a by supervising its application. As the arguments are based on evidence scattered from 1890 until independence in 1963, this paper outlines the scope of colonial views of shari'a rather than provides a chronological overview of changes in these views.

Keywords:

• kadhi courts
• shari'a law
• Islam
• colonialism
• Zanzibar

Notes

1. This article is based on my PhD thesis, “Tying and Untying the Knot: Kadhi's Courts and the Negotiation of Social Status in Zanzibar Town, 1900–1963” (SOAS, University of London, 2008) and research conducted in Zanzibar in 2008 funded by the Norwegian Research Council. I would like to thank Kate Luongo and Brett Shadle for organising the AEGIS panel and arranging the publication of our contributions. My thanks also extends to the JEAS reviewers, and researchers at the Centre for Modern Oriental Studies (ZMO), Berlin, particularly Katrin Bromber, Kai Kresse and Roman Loimeier, for their thoughtful comments. The invention of customary laws was advanced by Martin Chanock in his Law, Custom and Social Order. For Africans’ exploration of colonial legal systems, see e.g. Hay and Wright, African Women and the Law; Mann and Roberts, Law in Colonial Africa; Roberts, Litigants and Households; Shadle, Girl Cases.

2. I consistently use the Swahili spelling, yet variant spellings, such as kathi, occur in colonial documents.

3. On the implementation of Indian codes in East Africa, see Morris and Read, Indirect Rule, chap. 4. On the impact of the Indian experience across the British Empire, see Metcalf, Imperial Connections.

4. Pouwels, Horn and Crescent, 122.

5. Farsy, Seyyid Said bin Sultan, 34; Nicholls, The Swahili Coast, 278; Bromber, The Jurisdiction of the Sultan of Zanzibar, 35–6. Kadhis may have commonly heard cases at home prior to Sultan Said's arrival. However, there is no evidence of judicial practice in Zanzibar Town before the Busaidi reign.

6. Within the realm of family law, Islamic law has remained uncodified in Zanzibar to the present day.

7. Gray, History of Zanzibar, 147. The proclamation is cited in Nicholls, The Swahili Coast, 278.

8. Vaughan, Dual Jurisdiction, 40.

9. Gray, History of Zanzibar, 201; Vaughan, Dual Jurisdiction, 11–12.

10. Kingdon, Conflict of Laws, 11; Vaughan, Dual Jurisdiction, 14, 23.

11. Report on the Native Administration, [1933], CO 618/55/19, The National Archives, Kew (former PRO) (hereafter NAK); Pearce, Zanzibar, 115; Vaughan, Dual Jurisdiction, 9.

12. Ibrahim, Manichaean Delirium, 5.

13. Analysing British policies of appropriation, containment and surveillance towards Muslims in Northern Nigeria, Muhammad S. Umar also identifies contradictions in the British approach. Umar, Islam and Colonialism.

14. In the context of the Sudan, cf. Ibrahim, Manichaean Delirium, 5.

15. Vaughan, Dual Jurisdiction, 64–5.

16. The precedent for creating Islamic personal law, relating to issues of marriage, inheritance and bequests, was set in Egypt (Vikør, Between God and the Sultan, 236).

17. In India, kadhis adjudicated matters pertaining to succession, inheritance, marriage, caste and religious usage (Hooker, Legal Pluralism, 95).

18. Metcalf, Imperial Connections, 23–4, 28.

19. Ibrahim, Manichaean Delirium, 146.

20. Vaughan, Dual Jurisdiction, 14–15.

21. Public Notification from Sultan Hamud b. Muhammad, February 1, 1898, BA14/25, Zanzibar National Archives (hereafter ZNA). The life of Sheikh Ahmad b. Sumayt is explored in Bang, Sufis and Scholars of the Sea.

22. Decree from Sultan Hamud b. Muhammad, January 9, 1899, BA14/25, ZNA.

23. Regulations for Cadis in His Highness Courts, March 1, 1899, BA14/25, ZNA.

24. Decree from Hamud b. Muhammad, January 9, 1899, BA14/25, ZNA.

25. Proclamation, February 3, 1904, BA14/23, ZNA.

26. Kingdon, Conflict of Laws, 14; Vaughan, Dual Jurisdiction, 16.

27. Cf. Ibrahim, Manichaean Delirium, 35.

28. Decree, November 4, 1908, BA14/26, ZNA.

29. Vaughan, Dual Jurisdiction, 27, n.1, 28.

30. Anderson, Islamic Law in Africa, 61–63.

31. Kingdon, Conflict of Laws, 12–13; Anderson, Islamic Law in Africa, 60; cf. Umar, Islam and Colonialism, 47.

32. Zanzibar Protectorate, Administrative Report 1924, 179–80.

33. British Subordinate Courts Order, 1923, section 4, cited in Vaughan, Dual Jurisdiction,118.

34. Zanzibar Courts Decree, 1923, section 7, cited in Vaughan, Dual Jurisdiction, 106.

35. Vesey-Fitzgerald, Muhammadan Law, 25.

36. Vaughan, Dual Jurisdiction, 47.

37. Ibrahim, Manichaean Delirium, 98, 147.

38. Vesey-Fitzgerald, Muhammadan Law, 25.

39. Cf. Anderson, “Islamic Law and the Colonial Encounter in British India”; Zaman, Ulama in Contemporary Islam, 21–5.

40. Zaman, Ulama in Contemporary Islam, 32.

41. Vesey-Fitzgerald, preface to Muhammadan Law, v.

42. Ruete, Memoirs of an Arabian Princess, 126.

43. Cf. Groff, “Dynamics of Collaboration”, 147; Moors, “Debating Islamic Family Law”, 153. Contrast Umar, Islam and Colonialism, 9, who argues that British reforms also affected Islamic substantive law in Northern Nigeria.

44. Cf. Ibrahim, Manichaean Delirium, 4.

45. See Anderson, “Legal Scholarship and the Politics of Islam in British India”, 65–91. Cf. also Umar, Islam and Colonialism, 42.

46. Vaughan, Dual Jurisdiction, 22.

47. The appeal of Indian codes was contested by white settlers on the mainland as well as the Colonial Office, leading to the replacement of these codes by laws based on English law from the 1930s onwards (Metcalf, Imperial Connections, 26–7; Morris and Read, Indirect Rule, 116–21).

48. Chief Justice to Acting Registrar, December 11, 1937, AX8/2, ZNA.

49. Cf. Peletz, Islamic Modern, 38–9.

50. Tomlinson's Memorandum, September 12, 1924, AB62/79, ZNA.

51. Quoted in Vesey-Fitzgerald, Muhammadan Law, 33.

52. Supplement to the Official Gazette Zanzibar 37, no.1897 (June 2, 1928), 141–2.

53. HC3/2107, ZNA. British officers in the Sudan, however, were convinced of the inflexibility of shari'a (Voll, “The British, the ‘ulama’, and Popular Islam”, 213).

54. Metcalf, Imperial Connections, 43–44.

55. Hardinge to Lord Salisbury, January 6, 1900, FO 2.284, no.2, in Hollingsworth, Zanzibar under the Foreign Office, 165.

56. Memorandum by A.W. Clarke, April 30, 1906, FO 881/8814, NAK.

57. Gray, History of Zanzibar, 145–6; Basil Cave to Sir Edward Grey, October 26, 1908, Add.7739, Box 25, Sir John Gray, Private Papers, Cambridge University Library, UK (hereafter CUL); Hardinge to Lord Salisbury, October 24, 1898, FO 107.97, No. 333, in Hollingsworth, Zanzibar under the Foreign Office, 163.

58. Cf. Messick, Calligraphic State, 195; Peletz, Islamic Modern; Umar, Islam and Colonialism.

59. Sheikh Muhammad b. Khamis to Registrar, High Court, [n.d.], HC27/50, ZNA.

60. Sheikh Muhammad b. Khamis to Registrar, High Court, [n.d.], HC27/50, ZNA.

61. See Bang, “Another Scholar for All Seasons?”

62. Registrar, High Court, to Sheikh Tahir, August 21, 1929, HC27/50, ZNA.

63. Sheikh Muhammad b. Khamis to Registrar, December 3, 1929, HC27/50, ZNA.

64. Report on Judicial Department, February 11, 1932, HC16/8, ZNA.

65. Vesey-Fitzgerald, Muhammadan Law, 31.

66. Second Report to his Excellency the British Resident by His Honour the Acting Chief Justice, June 8, 1932, HC16/9, ZNA.

67. Second Report to his Excellency the British Resident by His Honour the Acting Chief Justice, June 8, 1932, HC16/9, ZNA. Contrast Umar, Islam and Colonialism, 54.

68. Second Report to his Excellency the British Resident by His Honour the Acting Chief Justice, June 8, 1932, HC16/9, ZNA.

69. Metcalf, Imperial Connections, 31.

70. Some kadhis of the early colonial period, such as Sheikh Abd al-Aziz al-Amawi and Ali b. Muhammad al–Mundhiri were knowledgeable in English (Bang, Sufis and Scholars of the Sea, 155; Hoffman, “In His (Arab) Majesty's Service”, 263–4; O'Fahey and Vikør, “Zanzibari Waqf of Books,” 9). Anne Bang (Sufis and Scholars of the Sea, 156) deduces from Sheikh Tahir's functions that he was fluent in English, which is not apparent from my reading of his minutes in court.

71. Report on Judicial Department, February 11, 1932, HC16/8, ZNA.

72. Report on Judicial Department, February 11, 1932, HC16/8, ZNA.

73. HC9/132, ZNA.

74. HC9/134, ZNA.

75. HC5/536, ZNA.

76. Stiles, “A Kadhi and his Court”, 11.

77. For Sheikh Tahir, see HC5/536, HC9/67, HC9/134, HC10/31, ZNA; for Sheikh Umar, see HC10/3325, ZNA. On Sheikh Umar, see Bang, Sufis and Scholars of the Sea; and Loimeier, Between Social Skills and Marketable Skills.

78. See HC10/20 and HC10/2843, HC5/575, ZNA respectively.

79. HC9/67, HC10/55, ZNA.

80. HC9/12, ZNA. For kadhis explicitly enforcing colonially induced rules of procedure, see also HC10/20, HC10/981, HC10/1156, HC10/1370, HC10/2978, HC10/3001, HC10/3033, HC10/3302, ZNA. Cf. Pouwels, Horn and Crescent, 179–80, on how kadhis were affected by colonially introduced measures.

81. HC10/3160, ZNA.

82. HC10/3695, ZNA. The senior kadhi also sought to bring a case of 1959 to an end which dragged on until 1964 (HC10/3732, ZNA).

83. Cf. Peletz, Islamic Modern, 91, where he notes that kadhis may avoid taking certain actions that are legally justified but socially and morally unacceptable.

84. R. Rankine to Philip Cunliffe-Lister, June 30, 1933, CO 618/55/19, NAK.

85. HC10/1435, ZNA. See also HC10/83, ZNA.

86. HC10/2881, ZNA.

87. HC10/2843, ZNA.

88. HC10/2840, ZNA.

89. HC10/3326, ZNA.

90. Lidwien Kapteijns describes a registrar who acted like a kadhi by elaborating on Islamic legal details in Aden. See Kapteijns, “Government Qadis and Child Marriage in Aden”, 415. Cf. also Ibrahim, Manichaean Delirium, 6, where drawing on Frantz Fanon, he argues for irreconcilable differences between coloniser and colonised, judge and kadhi.

91. Judges granted appeals based on the kadhi's error(s) e.g. in HC5/536, HC5/582, HC10/47, HC10/64, HC10/1141, HC10/2843, ZNA. Although Chief Justice G.M. Mahon rebuked the kadhi for issuing an order to somebody who was not party to the suit, he dismissed the appeal (HC10/5533, ZNA).

92. Sir John Gray, Private Papers, CUL.

93. Al-Nil and Minhaj al-talibin respectively.

94. Under Islamic law, it is the right of the wife and her kin that the husband be of equal status.

95. HC10/2214, ZNA. In another lengthy appeal judgement, Gray cited Hamilton's Hedaya, Syed Ameer Ali's, Mohammedan Law, Minhaj al-talibin, cases from the East African Law Reports and the Zanzibar Law Reports (HC5/582, ZNA).

96. For kadhis’ accommodation to the colonial legal framework, see Bang, Sufis and Scholars of the Sea, chap. 8; Pouwels, Horn and Crescent, particularly 178–81.

97. Said b. Rashid's Judgement, August 4, 1948, HC10/2214, ZNA.

98. HC10/2214, ZNA. On Muslim scholars’ responses to colonial reforms in Northern Nigeria, cf. Umar, Islam and Colonialism, 157–208.

99. J.M. Gray, January 4, 1954 [1955], HC10/2843, ZNA.