Tanzania's Legal System and Islamic Law

Unlike Kenya and Zanzibar, mainland Tanzania does not have established Islamic courts, despite having about 35% of its population identifying as Muslim. However, civil courts are expected to reference Islamic family law for Muslim cases. In the absence of Islamic courts, BAKWATA councils, which serve as the high council for Tanzanian Muslims, are in place to advise civil courts on matters of Islamic law, even though their role and effectiveness remain unclear. “Different religions and ethnic groups in Tanzania are supposed to have marriage conciliation boards established to help monitor disputes, and BAKWATA councils are technically considered marriage conciliation boards," noted Professor Stiles. In 1971, Tanzania enacted the Marriage Act, which establishes equal partnership in marriage and takes precedence over other legal sources, including Islamic legal sources.

Zanzibar’s Legal System and Islamic Law

Zanzibar has a Muslim population of about 99%, constituting nearly the entire population. Zanzibar's legal system is more established, with Islamic courts (Kadhis) addressing marriage, divorce, inheritance, and child custody cases. According to Professor Stiles, much of her research was conducted in the Islamic court in the fishing village of Mkokotoni in Zanzibar. There, she noted that about, 40 to 60% of family dispute cases are opened yearly. Of these, about 80% are initiated by women, with the largest number of claims being maintenance requests against husbands. The next largest category consists of divorce suits. Additionally, there were some cases where young women, in particular, sought to sue their father or guardian when he refused to permit them to marry or for the right to marry their chosen partner. Each year, a handful of women brought inheritance disputes to the court. Only about 20% of cases were initiated by men, who typically requested the return of absentee wives and a few inheritance cases.

Legal Pluralism and Dispute Resolution in Zanzibar

Professor Erin Stiles extensively examined the question of law, governance, and Islam in rural Unguja. She found that inheritance and marital disputes often involve family and community mediation before reaching the Kadhi court, a process she describes as “legal pluralism from the ground up.” She added that all these different methods of resolving disputes are viewed as sequential and necessary as a dispute escalates.

First, a person must present their case to the family elders, known locally as Wazee. If the Wazee cannot resolve the issue, the next step is to consult a Sheha, who is a community leader. A Sheha can help resolve a dispute based on his understanding of the community norms that apply to the situation. When a dispute cannot be settled at the Sheha level, the next and final step is to bring the case to the Islamic court. Once the case is presented to the court, the clerks typically require documentation to prove that the dispute was attempted to be resolved at both the Wazee and Sheha levels before it can be heard in court.

Professor Stiles observed that while Tanzania has a significant Muslim minority, estimated to be around 35% to as high as 40%, there has been limited research on how the legal system functions within Muslim communities. She emphasized the need for more studies to investigate how Tanzanian Muslims access legal resources to resolve disputes based on Islamic law. Additionally, there is a need to explore whether Tanzanian Muslims can test Islamic laws in community forums and state courts. She suggested a future comparative research project to examine access to Islamic law in Muslim minority communities in mainland Tanzania, Ghana, and South Africa.