This book, edited by Professor Erin Stiles, Farouk Tapan, Kai Kresse, and Hassan Waki Mako in 2024, explores Islamic family law in Kenya, Tanzania, and Zanzibar and stems from a conference held in Nairobi by the Aga Khan University discussing the relationship between Islam and the state in these countries. Professor Stiles presented the findings of the book during a lecture organized by the Institute of African Studies at the University of Ghana. She is a professor and the chair of the Department of Anthropology at the University of Nevada, Reno, USA. She has conducted extensive ethnographic research on the practice of Muslim family law in Zanzibar, Tanzania, and is starting new projects in South Africa and Ghana.

Overview of Muslim Populations in East Africa

Kenya has a Muslim population of about 15%, primarily concentrated in the coastal area. Tanzania has a larger Muslim population, approximately 35%, with significant variations in statistics. Zanzibar, a semi-autonomous state of Tanzania, has a Muslim population of around 99%. This substantial difference in the Muslim population between Tanzania and Zanzibar impacts the status of Islamic law in both regions.

Kenya's Islamic Courts and Legal Framework

Kenya has constitutional provisions for Islamic Courts, known as Kadhi courts in East Africa. Kadhi courts address personal status disputes such as marriage, divorce, inheritance, and now child custody. Professor Stiles cited the work of Susan Hirsch, Tito Kunyuk, and Adulkadir Hashim, who contributed to the chapter on Kenya in the book. Hirsch examines the broader context of Islamic law's status about the rule of law in Kenya.

There is a common assumption among many scholars that Islamic law is incompatible with the rule of law. However, Hirsch contends that the new Kadhis Courts Act and Marriage Act, introduced after the promulgation of the Kenyan Constitution in 2012, are strengthening the rule of law in Kenya. According to Hirsch, this legislation elaborates the rules of evidence and procedure relevant to both Kadhi courts and civil courts. Although Kadhi judges may not meet the same training standards, they are considered judicial officers. They are held to the same standards and expectations as all other judges in Kenya.

 Hirsch further noted that this new legislation has expanded access to the courts. More Islamic Courts have been established in the interior of Kenya, beyond the coastal areas. Hirsch further argues that this aligns with the rule of law, as access to justice improves with the addition of more courts throughout the country.

Finally, Susan Hirsch argues that the new Kenyan Constitution of 2010 demonstrates a commitment to fairness and equal treatment under the law, particularly through the inclusion of a submission clause. This clause ensures that all parties in a dispute agree to have it heard in the Islamic Courts before it can be presented. Based on her preliminary observations, Hirsch is convinced that the submission clause is enhancing what she describes as “a rule of law consciousness among the Muslim minority in Kenya," fostering a greater sense of inclusion in state processes and procedures.

Integration of Legal Arenas in Kenya

The works of Tito Kunyuk and Abdul Qadir Hashim discuss the integration of legal systems in Kenya. Tito Kunyuk examines how state-mandated rules of evidence are integrated with Islamic rules in Kadhi courts, particularly in Nairobi. He observes that Kenyan Kadhis are using state-mandated rules of evidence that often conflict with Islamic rules. However, he notes that the Kadhis do this intentionally to achieve positive outcomes. For example, they sometimes reference Kenya's Evidence Act instead of Islamic rules to determine the validity of marriages in disputed cases. Kunyuk argues that this practice in Islamic courts is not due to ignorance regarding the various rules of evidence or their incompatibility, but rather a deliberate attempt to integrate legal sources from different legal systems.

Professor Abdul Qadir Hashim's chapter highlights an emerging comparative jurisprudence between secular and Islamic courts in Nairobi, which draws on the strengths of both common law and Islamic law. He argues that judges in these courts are collaborating and consulting with one another, thereby influencing legal reasoning and decision-making across different legal domains. Hashim focuses particularly on areas such as marriage, divorce, and child custody (which has been newly incorporated into the jurisdiction of Islamic courts). He demonstrates that Kadhis in Nairobi are referencing sources outside classical Islamic law, such as common law regarding marriages and marital property division, to resolve disputes such as determining what is best for a child or awarding women a portion of marriage marital property under divorce. Adulkadir Hashim concludes that this practice by Kadhis in Nairobi may represent a promising development for the status of Islamic law in Kenya.

Professor Stiles emphasized the necessity for additional research on the practical interactions between state laws and Islamic laws, as well as the implications of the submission clause in Kenya's 2010 constitution. In family disputes, one party may wish for the case to be heard in a Kadhi court, while the other party may disagree with this choice. According to Professor Stiles, further studies will provide insight into how the submission clause is utilized and its potential consequences for Muslim families.