Muslim women are pushing for one of them to be appointed to the Kadhi courts’ top position as incumbent Chief Kadhi Sheikh Ahmed Muhdhar’s tenure ends, a call he has supported.
The promotion of Martha Koome to Chief Justice, they said, has given them new impetus to seek the top position in the courts that determine questions of Muslim law that relate to personal status, marriage, divorce and inheritance.
Islamic law scholar Fatuma Juma said if women ascend to such high positions, they will bring a new perspective on women’s issues that are not well articulated in the current set-up.
“It is not a must that the Kadhi position goes to men. It is not a reserve for them. If we are given those chances, women may help to solve issues affecting them, and articulate them better,” she says.
Most Muslim women, she said, are shy and need a fellow female advocate to help them handle marital and other challenges.
Her fellow Muslim lawyer Nusrat Mohammed echoed those sentiments, arguing that it is time for women who have studied Islamic law to get decision-making positions in Kadhi’s courts.
“Almost all Muslim advisers to the Kadhi are men. We need to change this narrative, and consider having female advisers as well. We also need women scholars within the court who can act as intermediaries,” she said.
Chief Kadhi Muhdhar supports the idea, saying women are also entitled to the position as long as they are qualified.
“As long as you have studied the Islamic Sharia law, you are entitled for the Kadhi position, irrespective of gender,” he said.
Women are entitled to the Kadhi positions if they have gone through Sharia law school, said Supreme Council of Muslims in Kenya (Supkem) Coast branch chairman, Mudhar Khitamy.
“What people need to understand is that the Kadhi Court is just a magistrate court and can be led by either a man or woman. And if a woman applies for the position, she is entitled to it,” he said.
Ruwayna Suleiman, another woman scholar, said that often when women seek advice at a Kadhi’s court, they end up finding male advocates.
“We need women advocates in almost all positions at the court. There are things we as women cannot say to the other gender,” she said.
But Council of Imams and Preachers of Kenya national commissioner Hassan Omar strongly objects, saying a woman should never be a Kadhi.
“In Islamic history, there has never been a woman Kadhi, so that should not happen now. A woman cannot officiate nor oversee marriages, and neither can they stand in to solve divorce cases, so that is impossible. If such a situation comes up, we will oppose it in the courts,” he said.
Women’s rights advocacy groups have said this is the kind of reasoning that has allowed husbands to mistreat their wives.
The position of Kadhi said Likoni MP Mishi Mboko, is always guided by Sharia law and ideals and if women are going to become Kadhis, such a change must be done through Sharia law.
In 2011, following a debate on social media on whether the Judicial Service Commission should appoint women Kadhis, the Chief Justice at the time, Willy Mutunga, said Kenya should have women Kadhis.
Mr Mutunga cited the examples of Malaysia, Sudan, Jordan, Palestine, Tunisia and the United Arab Emirates as countries that have women Kadhis.
The Kenya Muslims Advisory Council plans to hold a meeting in the coming weeks to discuss the subject of women’s appointment to Kadhi’s courts, said national chairman Juma Ngao.