William andrew kopwe the open university of tanzania

4.3.10 Secularity and Human Rights

Secularity and the Human Rights Declaration are the cardinal challenges for Sharīa implementation in the Country. From the beginning of the nation, Tanzania declared itself to be secular Country. This was in the mind of the father of the nation, Nyerere, ever since the formative years of the Country.¹³³ But Islam and secularity are two incompatible philosophies. As shown earlier, there are no such things as religion and secular arenas in Islam. The understanding of Human Rights and democracy in Islam is different from the way they are understood currently by the world. According to Islam, religion is not a private matter. It is both a private and public matter. That is why it is not enough to speak of private Sharī’a implementation. Leaving out the public aspect of Sharī’a is incompleteness of Sharī’a application. In Islam, freedom of religion means following the Sharī’a.
The idea of the human right of choice of religion principally is not there in Islam. In fact a close scrutiny of the Human Rights Declaration of 1948 shows that there are many things which are totally against Islam and Sharī’a at large. The Tanzanian Constitution is constructed following the Human Rights Declaration which makes some of the articles in it to be against Islam. For instance, in Islam, once one is born Muslim, he will remain a Muslim till death. Apostasy in Islam is punishable by death penalty.¹³⁴ But that is not so in Tanzania and as long as Tanzania remains to be a pluralistic secular Country, those principles will be difficult to apply. No wonder some elites in Tanzania are suggesting the change of Constitution in order to incorporate some Islamic precepts which are left out by the current Constitution.
Secularity, democracy and Constitutional issues are some of things which pose challenges to the multi-religious Tanzania context, as far as the issues of Muslim grievances and Constitutional rights in the Country are concerned. The next section of this study discusses these issues.

4.3.11 Legal Compatibility

Though Sharī’a and general laws are two phenomena which are closely interrelated and to some extent have similar operational philosophy they do not always mean the same. Sharī’a implementation goes beyond normal legal issues, especially with the matters pertaining to the private sphere of a person. But because of their similar functions, sometimes Sharī’a and normal Country’s laws contradict each other.
Sharī’a is currently practiced in the Tanzania in private life of Muslims and in the public sphere where it is limited to personal law. It deals with issues pertaining to marriage, divorce, and inheritance. This has been enforced by the 1971 Marriage Act. The history of Marriage Act of 1971 is traced to the Muslims’ grievances following the abolition of |§∙ī Court in 1963. The Act was considered to be a panacea to the issues pertaining to marriage in all religious groups found in the Country. The report given by The Law Reform Commission of Tanzania states that the law was enacted with the view of unifying and harmonizing the then existing multiple regime of Law of Marriage. It aimed at bringing the Law of Marriage into accord with TANU aspirations of fostering equality, individual dignity, freedom and respect to the people; to provide for freedom of marriage and equal recognition of all marriages however celebrated, whether it is a Christian, Islamic, Civil or Customary (Msumi et al., 1986).
This made Sharī’a to be an official part of the Country’s legal system. At this stage of the study, one major question emerges as a challenge to this state of affair. Has the application of the provided part of Sharī’a been completely compatible with the Country’s Constitution and the general laws? Principally, from a legal point of view when Sharī’a contradicts with the Constitution or general laws of the Country, the latter prevails. This means, in such circumstance, though Sharī’a is considered a God given law by Muslims, it is rendered powerless with the Constitution and Country’s general laws.
Analysis of the 1971 Marriage Act shows that Sharī’a in Tanzania has not always been compatible with the conventional laws of the Country. This is what made Sheikh Yahaya Husein to say that the Act was not totally accepted by Muslims in the Country because it contradicts a lot of Islamic precepts.¹³⁵ For him the idea of the 1971 Marriage Act was incepted by the then Minister of Law, a Muslim from Ahamaddiya who cared little about other Muslim groups. Though Yahaya Husein might have gone too far to personalize the introduction of the Act to one person, the Minister of Law, the underlying concept remains that Muslim scholars are not contented by the existing marriage.
The Act has several injunctions which contradict Sharī’a. For instance, the determinant for marriageable person is a big contradiction between the Sharī’a and the marriage Act. According to Sharī’a, there is no specific age for a marriageable person. The Qur’ān is silent on the specific age of marrying a girl. It only says when the girls are ready for marriage. Most Muslim jurists agree that the time ready for marrying a girl is the baleghe (puberty). However, Shafii school of law which makes the 15 years old specific year of puberty. The rest of the schools of law are silent.¹³⁶ In East Africa, the dominant school of law is Shafii. This could have been one of the reasons for Tanzania Mainland to use 15 years as the lowest age for marrying a girl. The Sharī’a given age is confusing because it is not specific. Biologically, people enter stage of puberty in different ages. In most cases, people enter that stage of life while they are under eighteen years of age. This is in contradiction with the marriageable age prescribed by the 1971 Marriage Act of eighteen for male and 15 years to some females because experience shows that there are some girls who enter puberty at the age of 12.
The issue of marriageable age for females has now been intensified by the current debate on the contradiction between the Constitution and the 1971 Marriage Act. Constitutionally, a person is considered as an adult at the age of eighteen. This is the age whereby the person is considered to be mature; hence can make independent decisions. But the Act gives a provision for a girl of fifteen years to be married. But for the human right activists in the Country, marrying a girl who is under 18 is marrying a minor, which is tantamount to child abuse. Marriage of such person, therefore, is against the Constitution, Human Rights and Child Rights. In a Tanzania context, such case is treated as raping the girl because she is still unable to make right decisions.¹³⁷ The activists go as far as saying that even if a girl may physically appear to be matured, that does not determine her intellectual maturity. To allow such a girl to enter matrimony is to force her into a lot of adulthood responsibilities which can traumatize her entire life. Furthermore, this age is the age in which most Tanzanians are in the primary and secondary schools. Marrying such a girl means depriving her rights to education, an act which ruins her future. Therefore, this shows that there are some marriages in the Country which are contracted according to principles of Sharī’a which are liable to be void in accordance with the Act and the Constitution by extension (Makaramba, 1991).
Divorce is another challenge against Sharī’a in the Country. Two things emerge from this Act against Islamic law. In Islam a husband is mandated by Sharī’a to pronounce and write a divorce to his wife. But According to the Country’s Marriage Law, nobody has the mandate to offer divorce except the Court of law only. The Court of law offers divorce as a final stage after the couple has gone through conciliatory bodies including religious bodies, which for the case of Muslim BAKWATA through its branches in the Country has been doing the responsibility.¹³⁸ BAKWATA applies Sharī’a to determine whether the marriage is beyond repair or not, and that divorce is the best solution for the well being of both parties in the marriage. Though BAKWATA, through Islamic law, may deduce that talaq (divorce) is the best solution, it does not have the mandate to offer it except through the Court of law.
The division of matrimonial property stipulated by the Act is another stumbling block for the implementation of Sharī’a among Muslims in the Country. Traditionally, women who stay at home to take care of their families, while their husbands go to work, were taken as jobless people. But currently the state law considers them as workers as well. This elevates them to have equal share of matrimonial properties with their husband. In case of any divorce, the law demands the women of this nature to be given half of the wealth acquired during the time of marriage. This is a big challenge to the traditional Sharī’a because it does not recognize a woman as an equal shareholder of the property with her husband upon divorce.
The issue of equal share of wealth reaped by husband and wife becomes more complicated in the case of inheritance distribution. An account reported by Magistrate in Tanga town proves this. A woman denied a single share given by a primary Court following the distribution according to Islamic law with the reason that she was a co-producer of the wealth in the marriage. The woman made the case more complicated when she claimed to be given two shares of her husband’s inheritance. Firstly, she claimed to be given her share of the half of what she produced with her husband. Then she wanted her share from the remaining half of the wealth according to Sharī’a as a legal widow of the deceased. This case was still in the Court of appeal for judgment during this research.¹³⁹ But though the verdict was not yet given, the issue demonstrates the challenge facing Sharī’a in Tanzania context of legal pluralism.