THE STATE OF THE QADHI COURT UNDER SECULAR GOVERNANCE!
The Qadhi Court, which follows the guidance of Sharia rulings from ALlah ﷻ the Creator of mankind;and the One who knows their condition best:from root to peak is today in a fragile state under secular regimes.
This court,or the rulings issued by its judges (Qadhis),is under threat of being nullified if not rendered null & void at any moment.This is done through a pen and paper,by referencing man-made laws born from the limited thinking of human beings.
As a result,rulings or other decisions that contradict those made by the Qadhi court are issued.Rulings whose origin lies in corrupt Western ideologies spread by colonialists and enforced by their puppet rulers in different regions.
The Qadhis rulings,are rejected by appealing to secular courts against decisions already passed by the Qadhi court,or by transferring the dispute to higher secular courts in search of resolutions outside of the Qadhi court system!
Despite the fact that these other courts are secular. This is the dreadful and distressing situation facing Qadhi courts under democratic rule whether in Kenya or globally.
EVIDENCE OF EVENTS
In Kenya,several incidents have occurred where the Qadhi court issued certain rulings,only for them to be overturned by secular appeal or supreme courts!
Here,we highlight two recent key events that illustrate how the decisions of this court can be dismissed without opposition:
1.The Supreme Court’s decision to overturn a Qadhi court ruling regarding a child born out of wedlock.Declaring that such a child has the right to inherit from his father.
2.The case of a Muslim convert who was praying and living as a Muslim and eventually,died as a Muslim.He was buried according to Islamic rites in the village of Takaungu.
His non-Muslim relatives,opposed the burial and appealed the decision.The appellate court overturned the Qadhi court’s ruling,declaring that the Qadhi court had no jurisdiction over such matters.
ROOT OF THE CONFLICT!
The clash between the rulings of the Qadhi court and those of secular courts arises from the fact that, under democratic governance, religion and its laws are not permitted to govern or manage human affairs regardless of whether one is a Muslim or not.
According to this corrupt ideology of the capitalist system,following a religion is a personal matter.It is considered wrong to compel anyone to follow religious rulings or even to believe in ALlah ﷻ.
And for those who choose to believe in ALlah ﷻ,then their religious teachings must remain confined within the four walls of places of worship!
This has rendered the Qadhi court weak and subordinate. Because its decisions can be overturned or invalidated at any moment.
It also puts the very existence of the Qadhi court at risk under a secular constitution one that separates religion from politics.
This was the case during the drafting of the 2010 Constitution of Kenya.When the public was invited to submit opinions.Some suggested the removal and non-recognition of the Qadhi court. Accusing the recognition of the Qadhi court as favoring the Muslim community and mixing religion with politics.Somethinwhich contradicts democratic principles.
This sparked major debate and legal challenges. Eventually, reaching the Supreme Court. Ultimately,the court chose to retain the Qadhi court,under the pretext of protecting freedom of religion.
FACTORS INFLUENCING THIS DECISION
1.The Stand of Muslims
Muslims of all sects stood firmly in defense of the Qadhi court,led by several movements including Hizb ut-Tahrir Kenya.
Which organized educational sessions, collected signatures,held public talks and more to defend the court.
At the time,Kenya had just come out of the 2007 elections,marked by intense violence.To restore calm, citizens were invited to contribute to the making of a new constitution. Muslims were appeased by retaining the Qadhi court.
However,unlike the previous constitution,this one diminished the court’s authority,making Qadhi decisions easily reversible.
2.The Shamte Agreement
This refers to the 1963 agreement where the Sultan of Zanzibar, Jamshid bin AbdaLlah,handed over the Kenyan Coastal Strip without compensation. This agreement was part of broader negotiations between the British colonial government and its agents:Kenya and Zanzibar.
The agreement included provisions to protect the rights and freedoms of Muslims in the coastal region, such as:
1.Preservation of the Qadhi courts
2.Recognition of freehold land ownership
Therefore,the Supreme Court may have feared violating international agreements, which could have affected Kenya’s reputation on the global stage.
THE ESTABLISHMENT OF THE QADHI COURT
The Qadhi court is one of the foundational components of an Islamic State. Alongside the Khalifah,Amir, Walis,military, advisors, consultative council,the Qadhi court played a crucial role.
It existed from the time the Islamic State was founded by Ar Rasulﷺ in Madinah.
Following the historical and spiritual event of Hijrah,which brought sweeping changes to Islam as a complete system.
These changes affected all areas of life,including:
°Economy
°Society
°Education
°Governance
°Domestic and foreign politics
Therefore,it was necessary to have leadership, military, enforcement, and courts to implement Ahkam (Sharia rulings) relating to all these areas and, to manage relations among all citizens:both Muslims and non-Muslims (dhimmis) under Islamic governance.
The Qadhi court is one of the oldest judicial institutions in human history.In Africa,it existed long before colonial conquest and the formation of today’s nation-states.
ITS AUTHORITY AND JURISDICTIONS
As outlined in the Qur’an,Sunnah, Ijmaa (consensus),and classical Islamic jurisprudence.The court’s jurisdiction covered all aspects of life.It was not limited to certain personal disputes among Muslims only.
The idea that only Muslims who agree voluntarily may use this court and can seek other forums if dissatisfied contradicts Islamic law.
FACTUAL HISTORICAL EVIDENCE
The Qur’an provides complete guidance for all of human life.It addresses every problem a person may face: spiritual, economic,social, educational and even political.
“Today I have perfected for you your religion and completed My favor upon you and chosen Islam as your way of life.”
(Qur’an 5:3)
Since Allah ﷻ has perfected this religion,nothing is missing or forgotten.That’s why He warned the Prophet ﷺ:
“And judge between them by what Allah has revealed and do not follow their desires. Be cautious of them lest they tempt you away from part of what Allah has revealed to you…”
(Qur’an 5:49)
Indeed, the Prophet ﷺ used the Qur’an to judge everyone, not only Muslims. One well-known incident is when he ruled fairly in a case involving a Jew,who was wrongly accused of theft, and Tu’mah ibn Ubayriq,a hypocrite who had actually committed the theft but hid the item at his Jewish neighbor’s house.
As referenced in Qur’an 4:60:
“Have you not seen those who claim to have believed in what was revealed to you and before you?They wish to refer their cases to the Taghut (false authorities), though they were commanded to reject them…”
Another incident involved the murder of Abdullah bin Sahl in Khaybar a Jewish stronghold.His cousins Muhayyiswa & Huwayyiswa bin Masud went to the Prophet ﷺ to seek justice.Since they could not identify the killer, the Prophet used the principle of Qasamah (an oath-based ruling) to resolve the case,as recorded in Al-Muwatta of Imam Malik.
These events prove that the Prophet ﷺ judged all citizens Muslims and non-Muslims using the Sharia of Allah, and always with justice and fairness.
A CALL TO MUSLIMS!
O Muslims!
Our dignity and honor and that of the world,lies under Islamic rule: the righteous Caliphate (Khilafah Rashidah).
There is no justice or fairness under secular democratic systems.Nor can the rulings of ALlah ﷻ be protected or practically implemented under colonial capitalist ideology its ruling system democracy.
Today,the world is desperately searching for peace,stability, and justice and we hold the divine guidance of the Qur’an,Sunnah, and the consensus of the Sahaba.
It is our obligation to convey this guidance fully by reestablishing the true Islamic State: the Khilafah Rashidah.
Hussein Muhammad.
Member of Hizb-ut-Tahrir Kenya.