William andrew kopwe the open university of tanzania

4.3 Challenges of Sharī’a in Tanzania

Though Muslims throughout the world have the same sources of authority, they are not a homogeneous block. Contexts shape Muslims’ lives and their implementation of Sharī’a and practice of Islamic precepts. It is clear that Sharī’a implementation in Tanzania mainland is a reality. First, to some extent, Sharī’a is already in operation in the Country. Second, Muslims are demanding for further Sharī’a implementation in the Country. This section presents the challenges of current Sharī’a implementation in the Country and those challenges which stand as stumbling blocks for more implementation of Sharī’a in the Country.

4.3.1 Understanding of Sharī’a among People

There is a wide diversity of understanding of Sharī’a among people in Tanzania. The diversity is found among Muslim factions and Non-Muslim groups as well. On one hand this shapes Sharī’a applications among Muslims and on the other it influences perceptions of non-Muslims about Sharī’a. Some respondents could not tell what Sharī’a is. Responses from those who had an idea of Sharī’a revolved around three understandings. There were those who said Sharī’a is the book of God, referring to the Qur'ān. Others said Sharī’a is to live according to Islamic teachings.
Finally there were those who gave meaning slightly similar to the second group saying that Sharī’a is Islam. This means that Sharī’a implementation is the practice of Islam per se. Two prominent issues are raised: firstly, lack of information about Sharī’a which corresponds with ignorance of Islam as a religion; secondly, the controversy of whether Muslims are practicing their religion rightly or not in the Country.
Sharī’a and Islam can be explained in the metaphor of forging iron. When a piece of iron is put in the fire for forging, it turns red. The redness indicates that iron has become like fire in which it is placed. The fire and the iron become part of each other, fire in the iron and iron in the fire. Examining the answers given by Muslims that Sharī’a is Islam itself, a further question arises: if Sharī’a application is tantamount to Islamic religion, do the Muslims in the Country fulfill their religious duty rightly? From the legal structure of the Country, Islamic law is applied in a circumscribed form dealing with personal matters only, a situation which presupposes that Muslims in Tanzania do not fulfill their religion rightfully. But Muslim ‘ålamā (scholars) from four Muslim denominations in the Country, Sunni, Shi’a, Ansār Sunna and Ahamdiyya groups⁸⁸ disproved of this presupposition saying that they are appropriately fulfilling their religion as stipulated by their texts and traditions⁸⁹.
A Muslim scholar gave an example of Muslim compliance to the present Sharī’a situation using analogy of a Muslim who is allowed to eat pork when constrained by circumstance. The Muslim who eats pork is supposed to eat it while groaning in the heart. This example falls under the philosophy of dire necessity, which is guided by Qur’ān saying that:

He hath only forbidden you dead meat and blood and the flesh of swine and that on which any other name hath been invoked besides that of Allah but if one is forced by necessity without willful disobedience nor transgressing due limits then is he guiltless. For Allah is Oft-Forgiving Most Merciful (Surah 2 : 173).

The current circumscribed Sharī’a application in Tanzania can be explained along the lines of this allegorical explanation because Muslims do not control the state they have to comply with the situation⁹⁰. But while doing so, Muslims should struggle for full fledged Sharī’a implementation. By implication this means that Muslims should also struggle for the control of state for easy Sharī’a application⁹¹. The aim of Muslims in the world is to make Islam rule the whole world under Sharī’a law. In other words, the Muslim aim is to create Dār al-Islam (Islamic state), and to be seen vividly from different Muslim writings in the world. Muslim scholar comments that :

The involvement of Islam, more particularly Shari'a Law, in state politics is almost inevitable for Muslim peoples anywhere because of the comprehensive and total nature of Islamic teachings. The following words of a well known Sudanese Muslim fundamentalist scholar captures the idea very clearly: “The aim of the Islamic movement is to bring about somewhere in the world a new society wholeheartedly committed to the teachings of Islam in their totality and striving to abide by those teachings in its Government, political, economic and social organizations, its relation with other states, its educational system and moral values and all other aspects of its way of life” ( Idris, 2004:16).

The above quoted sentiment shows that Muslims are striving to make sure that Islam is a dominant civilization in the world. This means that though Muslims in Tanzania are saying they are contented with the circumscribed Sharī’a application, but they will not rest until Sharī’a is fully implemented in the Country because they will never be happy with the partial Sharī’a implementation. And in order to achieve this they committing to the struggle for instating Islamic Government.⁹²

4.3.2 Ignorance about Sharī’a and Islam in General

Sharī’a is a common term for the Kiswahili speakers because it is slightly similar to the Kiswahili word sheria (law). Familiarity and its common usage bring confusions among Swahili speaking people on the proper meaning of ‘Sharī’a-the Islamic law’. The Kiswahili term sheria was adopted from Arabic language. But the term Sharī’a in Arabic language has a wider and diverse usage than in the Kiswahili sheria. In Kiswahili the term has been reduced to commonly mean law in its general usage. In her study on Islamic Courts in Zanzibar, Stiles (2009:2) shows how people in Zanzibar try to distinguish between sheria and Sharī’a. She comments that “The Kiswahili term Sheria comes from the Arabic, like many other Kiswahili words, but it is used to refer to law in general; religious and other types of law are specifically designated: for example, sharia za dini means religious law, and sharia za kanuni refers to state law. However in the mainland Tanzania the expression sharia za kanuni is not very popular, rather people generalize the concept of sharia to mean all the laws. Therefore, in order to distinguish the concept of ‘Sharī’a’ from ‘sheria’, usually people use the expression sheria za Kiislam (Islamic laws) to refer to Sharī’a and use the term sheria (law) to refer to general state law.⁹³
Apart from the above confusion, majority of Tanzanian Muslims do not understand their religion well which automatically affects their acquaintance with Sharī’a as well. The majority of Muslims in the Country are just nominal Muslims. They are Muslims because they were born from Muslim families. This situation raises more questions on who is a Muslim. Most of Muslim scholars agree that anyone who is born from a Muslim family and specifically a Muslim father is a Muslim by virtue of birth. Sahihi Muslim and Bukhari Ahādīth assert that the Prophet of Allah said, "I created my servants in the right religion but devils made them go astray". The Prophet (PBUH) also said, "Each child is born in a state of "Fitrah", then his parents make him a Jew, Christian or a Zoroastrian, the way an animal gives birth to a normal offspring. Have you noticed any that were born mutilated?" With this regard therefore, those people are considered Muslims except that they lack knowledge of Islam (Ameena, A 2001).

Ignorance has been a vicious circle for several decades because ignorant families of Muslims produce ignorant Muslims in the Country. Zanzibar is beyond the scope of this study. However for the sake of understanding the intensity of ignorance of Islamic law among Muslim it is worthwhile to present a case by Stiles (2009) about a controversial divorce which took place in Zanzibar whereby a husband who is an ignorant of Islamic law was enticed by his wife to be taught how to write an Islamic divorce. The issued ended up by a wife to say she is divorced since the husband wrote a divorce in Islamic way though he did not intend. This is another example of ignorance of Sharī’a in Tanzania even in the Muslim dominated areas. To show the gravity of ignorance among majority of Muslims, a Shi’a sheikh comments that, there are some of Muslims, who of course, constitute the majority of Muslims that have not even entered the door of the mosque. Because of such ignorance such Muslims sometimes break even the simplest Sharī’a precepts. Ignorance is a great hindrance for Sharī’a implementation because Muslims, who do not know it, may not choose to abide by it. He is of the opinion that, Muslim theologians have to educate their people in Islamic education which will help them to understand Islam and Sharī’a. Otherwise it will be Muslims themselves who will oppose Sharī’a implementation. Hence, for this Sheikh, the best way for Muslims in Tanzania is to start by the implementation of |§∙ī Court, which will deal with Muslim personal law. This will introduce Muslims into the practice of Sharī’a which will gradually make them understand the importance of Sharī’a to them⁹⁴.

The impact of the ignorance of Islam and Sharī’a is vividly seen in the patronage of the existing Islamic law in the Country. Though Muslims are allowed to opt for Islamic law in marriage, divorce, and inheritance, very few Muslims go for that. Most of the Muslims for instance, divide their inheritance following their tribal customary ways. An interview with Court officials in Bagamoyo town and Tanga, places traditionally taken to be Muslim majority areas with a long history of Islam, revealed that very few Muslims go there for such cases compared to their numbers in the places.
A magistrate commented that in some cases of inheritance distribution, which were judged according to Islamic law; there are Muslims who deny the distribution saying that they are not given their right shares. When efforts were made to educate them about the Islamic laws distribution of inheritance, some agree to take their shares. But others do not. This situation leads them to opt for referral to the higher Courts. However, most of the time they lose the cases because even those Courts would judge according to Islamic law, which do not judge differently from the primary Courts.⁹⁵
In some cases, when the litigants were educated, and understand how Islamic law works in the issue of distribution of inheritance, they denied Islamic way of distributing inheritance. They decided to retract their cases and revert to their customary ways of dividing inheritance. Though this is illegal because the determinant of distribution of inheritance is the kind of marriage or the will of the deceased, for the sake of harmony and tranquility among the family members of the deceased, usually when it comes to this point, the family members give in to the decision. Hence, the inheritance ends up divided in customary or by agreements between the family members.
Muslims’ ignorance of Sharī’a and their religion in general has a significant bearing on the implementation of Sharī’a where Muslims themselves become a stumbling block for Sharī’a implementation.⁹⁶ Ignorance of Sharī’a and Islam in general pose a great challenge for the applicability and practicability of Sharī’a among Muslims in the Country. Most of the interviewed Muslim including clerics showed that because of ignorance of Sharī’a, total Sharī’a implementation is impractical in Tanzania. Danfulani (2005) found the same experience in Nigeria whereby some Muslim leaders objected Sharī’a implementation during the debate for total Sharī’a implementation in that Country. Those Muslims in Nigeria, though supported the introduction of Sharī’a, they said that it was not yet ripe for immediate Sharī’a implementation. A good example is Sheikh Ibrahim al-Zakzaki of Zaria who proposed that Sharī’a implementation be postponed until Muslims in the Country are theologically educated enough to understand and follow tenets and demands of Sharī’a.