The application of Islamic Family Law and Human Rights. A Case Study of Tanzania.

Abstract

In Tanzania an ongoing discussion regarding the institution of kadhi courts is taking place, which is getting more intense in times of elections and the process towards a new Constitution. Discussions on the normative role of religious family law in national legal systems are also taking place in Western countries such as the Netherlands as a result of growing differences within society. It is assumed that the application of Islamic family law is at odds with the principles of human rights. For this master thesis I conducted research on the application of Islamic family law in Tanzania from a human rights perspective. Giving minorities the possibility to maintain their own culture and make the application of different family law systems possible in one society can as well threaten as contribute to individual autonomy, equality and unity of society, depending on the circumstances. When minorities get the opportunity to apply their own family laws, the state must however be aware of the rights of minorities within the minority. If their rights are violated at least a realistic opt-out option should be a possibility and the state should make people aware of the different options regarding family law to guarantee their personal autonomy and legal equality. Tanzania has a system of state law legal pluralism in the field of family law. State courts are applying Islamic marriage and inheritance law in the case of Muslims, although because of the lack of access to the courts deep legal pluralism also exists. The Islamic community is given the collective right to maintain its own laws. Although different groups are given different rights regarding family law in Tanzania, this has not caused disunity of society so far and the several religious communities live peacefully together in general. However, I argue that the lack of minimum age and consent of the bride for a marriage are a denial of the personal autonomy itself and therefore unacceptable. People should have a realistic choice regarding the adoption of a dowry, potential to polygamy and unequal rights to get a divorce in the marriage contract and full freedom of contract regarding their inheritance.