When the framers of the 1995 constitution inserted Article 129 (d), Muslims got excited, as it gave them chance to adjudicate their own matters based on the Islamic creed.
The particular clause provides for the establishment of subordinate courts to the High court, such as the Qadhi courts to determine cases relating to marriage, divorce, inheritance and guardianship. But 19 years later, the courts have not been operationalised.
“We have had various engagements with the Uganda Law Reform Commission, we have tried all it takes to involve every stakeholder but all the efforts have hit a deadlock,” Parliamentary Imam, also Kawempe North MP, Latif Ssebaggala said.
He was last week speaking during a stakeholders’ meeting organized by the Muslim Centre for Justice and Law (MCJL) at Hotel Africana. The meeting was intended to devise means of lobbying government to fast-track an enabling law for Qadhi courts.
The courts are so far operating informally. Muslims believe issues such as marriage and inheritance are acts of worship.
“We don’t ask for this law because we are a special group, but because we are a unique community where every act is an act of Ibaadah [worship],” said Hajji Muhammad Kisambira, the Secretary General of the Kibuli-based Muslim leadership faction.
Societal misconceptions about Islam and Muslims are part of the reasons why government is reluctant to enact the law.
According to Sarah Nakacwa, a legal officer at MCJL, calls for Qadhi courts have been perceived as calls for Shariah (Islamic) law. The courts, according to Jaffer Ssenganda, the MCJL president, mainly address issues that concern the rights of women.
Islam prescribes a system through which matters relating to inheritance, marriage and divorce are handled. That is why many Muslims prefer consulting their sheikhs than running to established courts to solve disputes.
“Muslims will not stop going to [sheikhs] to have their issues settled … we want [sheikhs’] operations to be streamlined, to have a provision for professional legal representation for the parties,” Nakacwa said. “Instead of having engineers or teachers presiding over [Qadhi] courts, we need professionals to manage them.”
But Hajji Nsereko Mutumba, the Uganda Muslim Supreme Council (UMSC) spokesman, disagreed with Nakacwa’s arguments on ground that Qadhi courts cannot operate outside the Shariah framework.
“You cannot have someone because he or she trained as a lawyer to preside over a religious court. There is definitely no engineer or teacher presiding over the shariah courts but clerics who have studied shariah,” Mutumba said.
The chairman of Uganda Law Reform Commission, Prof Agasha Mugasha, had to retract his earlier claims that a bill for the courts was in process after Ssebaggala challenged him to prove his claims.
But Annet Koote, a principal legal officer at the commission, said efforts to draft the bill were frustrated by the wrangles within the Muslim community.
“We were working on a draft given to us by UMSC, but a consultative conference we had organized had to be called off because of the misunderstandings between you, Muslims,” Koote said.
However, Sheikh Yahya Kakungulu, the UMSC deputy director of Shariah and his Kibuli counterpart Sheikh Ya’acoub Luwalira Lubowa shot down her arguments.
“The conference was cancelled because we realized the proposals we had forwarded had been trashed and instead new ones which were inconsistent with Islam had been made,” Sheikh Lutaaya.
This drew more protestations from other participants, notably, Nsereko Mutumba and Kisambira, who told her Muslims are one on matters of faith as opposed to administration.