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RR RUEHBC RUEHBZ RUEHDA RUEHDE RUEHDU RUEHGI RUEHJO RUEHJS RUEHKUK
RUEHLH RUEHMR RUEHPW RUEHRN RUEHROV
DE RUEHDR #0837/01 3461215
ZNR UUUUU ZZH
R 111215Z DEC 08
FM AMEMBASSY DAR ES SALAAM
TO RUEHC/SECSTATE WASHDC 8099
INFO RUCNISL/ISLAMIC COLLECTIVE
RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHKM/AMEMBASSY KAMPALA 3248
RUEHLGB/AMEMBASSY KIGALI 1177
RUEHNR/AMEMBASSY NAIROBI 1068
RUEHJB/AMEMBASSY BUJUMBURA 2733
UNCLAS SECTION 01 OF 02 DAR ES SALAAM 000837
SIPDIS
SENSITIVE
AF/E FOR JLIDDLE, INR FOR FEHRENREICH
E.O. 12958: N/A
TAGS: PGOV PHUM PREL SCUL KIRF KISL TZ
SUBJECT: POLITICS AND RELIGION IN TANZANIA: REVIVED DEBATE
ON ISLAMIC KADHI COURTS
1. (U) Summary. This is the first of two cables on political
issues of a religious nature in Tanzania. This cable covers
the question of establishing Islamic (kadhi) courts on
mainland Tanzania, while septel will address the debate over
Tanzanian membership in the Organization of the Islamic
Conference (OIC). The kadhi court controversy pits Muslim
religious leaders and some political figures, who argue for
the courts on the basis of tradition, against Christian
groups and more secular opponents, who fear a violation of
constitutionally guaranteed government neutrality among
religions. The debate poses a particular problem for the
ruling CCM party, which must balance the competition for
voters in Muslim Zanzibar with overall party solidarity in
the more secular and multi-religious mainland. End summary.
Background: The Zanzibar Way
----------------------------
2. (U) Unlike mainland Tanzania's secular legal system,
semi-autonomous Zanzibar has a parallel system of "kadhi
courts." Kadhi courts only hold authority over Muslims and
decide matters on divorce, child custody, inheritance and
related matters involving customary Islamic law. The Kadhi,
who is the senior Islamic scholar responsible for
interpreting the Koran, is approved by the President and
recognized as a judge. There is also a Kadhi Court of Appeal.
3. (U) Issues involving criminal cases, civil cases of a
customary nature or cases involving non-Muslims are heard by
the Zanzibar Primary Court, which also has a court of appeal.
However, litigants sometimes bring cases to both courts, in
which case the High Court of Zanzibar is the supreme arbiter
and last court of appeal (except on constitutional or Union
issues, which would go to higher mainland courts). The
majority of cases are handled at the lowest level. In
Zanzibar, kadhi court judgments and subpoenas are enforced by
Zanzibar's (secular) police, as with any other court.
4. (U) One main difference between the mainland and Zanzibar
on legal issues is that even in the Zanzibar civil courts,
most, if not all, of the judges are Muslim, reflecting the 98
percent Muslim population of Zanzibar. The religious
affiliation of judges on the mainland is more diverse. Kadhi
courts were abolished on the mainland in 1963; after the 1964
union that formed Tanzania, the kadhi courts continued on
Zanzibar only.
5. (U) The debate over establishment of mainland kadhi courts
has simmered over time and occasionally boiled over. The
ruling CCM, in its 2005 election manifesto, included a
promise to work towards establishing the courts. In 2006,
the leaders of BAKWATA, the Muslim Council of Tanzania that
governs Islamic matters on the mainland, issued a new call
for nationwide kadhi courts, setting off a heated debate
among Muslim leaders, Catholic bishops, and other Christian
groups. The debate revived during the most recent
Parliamentary budget session, when the Minister for Justice
noted the government was studying a report on the issue.
Arguing the case
----------------
6. (U) Proponents of the establishment of kadhi courts on the
mainland focus on several key points. First, they argue that
the kadhi courts should not be seen as novel, since they
existed on the mainland before independence. Proponents also
claim that the kadhi court system does not necessarily imply
a rejection of secularism. The Mufti of Zanzibar (a political
appointee), Harith Khelef Kharmis, insists that "Islamic
affairs" are separated from "judicial affairs" on the island.
Proponents also note the successful implementation of a
kadhi court system in several neighboring countries, notably
Kenya, Rwanda, and to some degree, Uganda.
7. (SBU) Finally, proponents emphasize the integral aspect of
the kadhi court system to the Muslim faith, stressing that
the courts would apply only to Muslims. Fatma Maghimbi,
spokesperson for the opposition Civic United Front (CUF) and
an MP from Pemba, claimed in Parliament that, "the
non-existence of kadhi courts is a constraint in solving
basic issues concerning Muslims." Many who advocate for the
kadhi court,s extension to the mainland view the court as a
system created by the community to fill a failure of the
government of Tanzania in civil matters. Juma Mikidadi,
Islamic Studies Professor at the Muslim University of
DAR ES SAL 00000837 002 OF 002
Morogoro, recently told Poloff "we need judges well-versed in
Islamic law to ensure proper treatment for all."
8. (U) Opponents of a kadhi court system on the mainland
argue that by funding an Islamic institution, the government
would compromise its secular status, which is established in
the Constitution. Speaking in Parliament, CCM MP Florence
Kyendesya said "issues of a (directly) religious nature
should be left to respective religious institutions to set up
appropriate mechanisms." Opponents add that establishing a
kadhi court system on the mainland would require amending the
Constitution, a step not to be taken lightly, as well as
drafting implementing legislation. They also point out that
because the Tanzanian court system is financed by taxpayers,
it would be inequitable for all Tanzanian citizens to finance
a "one religion" court system used by and benefiting one
subgroup of the population.
9. (U) Within the Christian religious establishment,
opponents of the kadhi court, such as Catholic Bishop Method
Kilaini, have characterized the proposal as a steady "creep"
towards Islamic law. Christian religious leaders note that
Muslim law often directly contravenes existing Tanzanian
legal principles and question how conflicts would be
resolved. Some fear that the creation of a kadhi court
system on the mainland would create a forum in which various
Muslim groups will battle among themselves for control of the
faithful, perhaps upsetting the social order in the process,
as well as contributing to greater rifts between Muslim and
Christian groups. Zitto Kabwe, MP for opposition Chadema,
called on his fellow MPs to deliberate calmly about the
issue, so as not to "see the nation divided." Other
opponents have framed the issue around gender, asserting that
women do not receive fair treatment in the kadhi court
system, which consequently creates a direct conflict with the
Constitution,s guarantee of gender equality.
The Political Angle: A problem for CCM
--------------------------------------
10. (U) MPs in favor of a mainland kadhi court argue that CCM
must fulfill the commitments of its 2005 manifesto. They
add that because the platform was written at a time when the
President, Prime Minister, and CCM Secretary General were all
Christians, President Kikwete, a Muslim, cannot be seen as
pushing an Islamic agenda. Kikwete himself has attempted to
play down the kadhi court issue, even making a point of
attributing the idea to the (Christian) leader of a small
opposition party, the Tanzania Labor Party. On the occasionsQhen he has spoken publicly about the issue, Kikwete has
urged patience to allow further consideration. Some analysts
have claimed that CCM picked up on the kadhi court idea
during the electoral campaign to undercut the CUF's strong
Islamic following.
11. (SBU) Comment: Kikwete and CCM are pressed on multiple
sides by the kadhi court issue. If the Union government were
to start the process of setting up the courts, it would
certainly raise interfaith tensions on the mainland and
heighten divisions within CCM. However, inaction gives CUF a
wedge issue against CCM, particularly on Zanzibar. While CCM
faces no serious threat to its dominance in the national
government, the political divide on Zanzibar is such that
overt CUF appeals on Muslim issues could be among the issues
that help sway the 2010 election. End Comment.
GREEN