The Kadhis Court

Part Six of the Constitution of Zanzibar of 1984 establishes the judicial arm of the state. The Constitution empowers the House of Representatives to establish other courts subordinate to the High Court and those courts so established shall be vested with power and jurisdiction as shall be provided by law. In 1985, the Kadhi’s Court Act was enacted. It established the Kadhi’s Court in each district and the Chief Kadhi’s Court, with jurisdiction that was restricted to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance, in proceedings in which all parties professed the Muslim religion.

Under the 1985 Act, appeals from the Kadhi’s Court went to the Chief Kadhi’s Court which lacked original jurisdiction but acted as an appellate court for the decisions of the Kadhi’s Court. In 2003, the Kadhi’s Court Act was amended. The amending Act established the Chief Kadhi’s Court to be headed by the Chief Kadhi, the Deputy Kadhi’s Court to be headed by the Deputy Chief Kadhi based in Unguja Island, and the Appellate Kadhi’s Court to be headed by the Appellate Kadhi based in Pemba. It also established a Kadhi’s Court to be presided over by District Kadhis whose number shall not be less than 10 and not more than 15. The Chief Kadhi and Deputy Chief Kadhi are appointed by the President while the Appellate Kadhi and District Kadhis are appointed by the President in consultation with the Judicial Service Commission. For one to qualify to be appointed as a Kadhi of whatever level he has to profess and follow the Islamic Religion as well as possessing recognized qualifications in Islamic Laws from any Institution approved by Council of Ulamaas established under the Provisions of the Establishment of the Office of Mufti Act, 2001.

Each of the Kadhi’s Court is subordinate to the High Court and is duly constituted when held by the Chief Kadhi, Deputy Chief Kadhi, Appellate Kadhi, or a District Kadhi. The Chief Kadhi’s Court, the Deputy Kadhi’s Court, and the Appellate Kadhi’s Court do not have original jurisdiction but act as appellate courts for decisions from the District Kadhis Court. Appeals from the Chief Kadhi’s Court, Deputy Chief Kadhi’s Court, and Appellate Kadhi’s Court go to the High Court of Zanzibar which is the highest institution of appeal as far as issues handled by the Kadhi’s Courts are concerned. Such appeals are heard by a panel of five members presided by a judge of the High Court and four other members (Ulamaas) who are conversant in Islamic laws. Article 99(1) of the Constitution of Zanzibar of 1984 excludes the Court of Appeal of Tanzania from handling cases relating to matters of Islamic law which begun at the Kadhi's Court

It should be noted however that the Kadhis Court does not have premises of its own. It shares office premises with the circular courts. Its chambers are not well furnished; it has a very thin staff compliment, and the dearth of financial resources that cuts across the entire judicial system hits even harder on the Kadhis Court

Another challenge facing the Kadhi’s Court is the fact that the only qualifications which appears to be considered for appointment of Kadhis of whatever level is the professing and following of the Islamic Religion. The requirement to possess recognized qualifications in Islamic Laws from any Institution approved by Council of Ulamaas established under the provisions of the Establishment of the Office of Mufti Act, 2001 is either not being considered in the course of making the appointments or the Establishment of the Office of Mufti Act, 2001 has not been put to full use. The result of this is that Kadhis are being regarded by the public as officials who are not competent enough to discharge the functions of a Kadhi. Associated with this is the fact that Kadhis are not retiring at the age of 60 as provided by the law.