William andrew kopwe the open university of tanzania

4.3.12 Some Social Regulations

Apart from Sharī’a being challenged by national laws, its implementation is also challenged by the whole national setup of organizations and orientation of some social services in the Country. It is not possible to present all challenges facing Sharī’a implementation in the Country; social security services are cited as an example.
Among many companies which provide for social security funds is the National Social Security Fund (NSSF). One of services provided by the organization is health insurance to its members. This service is known as Social Health Insurance Benefit (SHIB). SHIB is the 7^th benefit to be implemented in the NSSF Act. Regulations for eligibility of this benefit include dependants of the clients. Eligible dependants for this benefit include wife or husband and children of the member. According to the rules, there are a limited number of beneficiaries, therefore the children and wives to be given the service¹⁴⁰. The maximum number is one wife and four children. This means that the NSSF has set this regulation in accordance with the monogamous marriage philosophy. This marriage philosophy is not always in consonant with Islamic marriage or life style.
Though it is not necessary for a Muslim to be polygamous, Sharī’a, and even the national Marriage Act of 1971, provides room for polygamous marriage. Sharī’a allows a Muslim man to marry up to four wives and to have as many children as possible. The NSSF limitation to monogamy is either compelling Muslims to follow non-Islamic marriage style, or inhibits them from getting the benefits for some of their dependants and wives, if the person is a polygamist. Apart from contradicting the Marriage Act of the Country this orientation is yet an example of many challenges that face Sharī’a implementation in the Country because of the orientation of social services in the Country.
We have so far seen in the preceding chapter that Sharī’a implementation in the Country faces a lot of challenges. Two major things were seen: Firstly, the challenges make that part of Sharī’a which is allowed in Tanzania to be poorly implemented by Muslims. Secondly, the challenges postulate difficulties for further Sharī’a application in the public space of Tanzania context. But that is not all about Sharī’a implementation. There are also prospects for Sharī’a implementation in the Country. This chapter analyses the state-religion-society context of Tanzania mainland to show prospects of Sharī’a implementation in the Country.

4.4 Prospect of Sharī’a in the Country

Sharī’a discourses in the Country are dominated by the Constitution rhetoric. Christians, Muslims and politicians always hang on the issue of Constitution when religious matters come to the fore. The researcher is aware that matters of Constitutions are legal issues. But in this part of the study he discusses Constitutionalism through socio-anthropological lenses with some references to legal aspects. The Country’s Constitution puts forward two things of interest for this study.

4.4.1 Constitutional Guarantee

Basing on the Human Right Declaration of 1948, the Country’s Constitution guarantees her citizens the freedom of religion of their choice. Article number 19(1) of the Constitution states that “Every person has the right or the freedom to have conscience, or faith, and choice in matters of religion, including the freedom to change his religion or faith”. This provision shows that it is the right of Muslims to practice their religious rightly. Sharī’a implementation is tantamount to the practice of Islam itself. An outstanding legal scholar in the Country comments on the Constitutional guarantee of Sharī’a implementation in the Country saying that:

The united Republic of Tanzania is a sovereign secular state, which allows freedom of worship. This system of parity in the Constitution and freedom of worship as recognized make Islam and other recognized religions have a status negativus in that there is a right of defense against any action of the state in violation of this freedom. The Constitutional provision concerning the populace freedom of worship expressly declares that the profession, practice and propagation of religion is a free and private affair of individuals and the conduct and management of religious communities is not part of the function of the state. This is status positives. In that it gives the possibility of the promotion of religious interest within the scope of legitimate state purposes and according to law and the principles of equality. The individual Human Rights of freedom of religion and conscience can sometimes raise problems through claims rooted in Muslims religious practice. The state in Tanzania though religiously neutral, by making a Constitutional concession to freedom of religion, on an equal footing it has conceded to the application of the law in Islam (Makaramba, 1991:285).

Makaramba wants to show that the Government is constitutionally limited not to interfere with religious activities of religious groups in the Country. That means Muslims should implement their Sharī’a without Governments intervention. Also this implies that the Government concedes to Sharī’a application because it is Muslims’ religious practice. For some, Muslim Sharī’a implementation is equal to the equal freedom of worship to all citizens “because the Country’s Constitution shows that people are free to follow their religions, the Government should allow Muslims to practice their total Sharī’a because practicing Sharī’a is practicing Islam”¹⁴¹. For such people Sharī’a implementation is one of Muslims rights in the Country enjoined in the Constitution. A Sufi Sheikh argues, if the Constitution grants freedom of worship and religious practices to its citizens and some are not interfered in their religious rights, it should be so equally to all religious groups including Muslims. He says that:

For instance the Hindus, cremate their deceased beloved, and the Government does not condemn it, because they have the freedom of worship. For them [Hindus] that is a worshipping rite. So it is with Muslims. They should be allowed to practice their Sharī’a for themselves. But the Muslims are not allowed to practice their Sharī’a. But the Government has not given full rights to the Muslims because why should the Muslims allowed to chop one of them who is convicted to be a thief. Here there is a need of rechecking of our Constitution.¹⁴²

According to these arguments, the real Constitutionalism for Muslims is to allow them to implement Sharī’a which is a very important part of their religion.Tanzania is a democratic Country. This democracy should give the rights of people, as stipulated by different international treaties which the Country has signed. In other words, in order for the Country to be really democratic, it has to provide a right to the Muslims to practice their religion that includes Sharī’a implementation. Of course the Muslims should implement their Sharī’a in the light of article 19(2). That means Muslims should implement their Sharī’a without violating peace in the Country. They should use the legal philosophy, as one of the legal experts puts it, that “Ones freedom ends where his neighbor’s freedom starts. In between the two fellows there is Government, which acts as a guardian or administrator of state”¹⁴³ Therefore, this challenges the Government to allow Muslims to implement Sharī’a in the Country as provided by the Constitution.