INHERITANCE BY ILLEGITIMATE AND NON-MUSLIM CHILDREN UNDER SHARIA LAW: THE FLAWED KENYAN JURISPRUDENCE
Authored by: Francis B. Joseph
ABSTRACT
For a long time, application of Islamic law, especially on matters inheritance, has been viewed as discriminatory and unconstitutional. In its judgement dated 10th November 2023 in Faraj v Mwawasi, the Court of Appeal stated that Islamic law restricting children born out of wedlock from inheriting is discriminatory and such practice should be abhorred. This decision has been the subject of much scholarly debate, with some scholars expecting to hear the Supreme Court’s pronouncement on the matter in case an appeal has been filed. This article argues that the Court of Appeal’s view concerning Islamic law of inheritance is misguided. This is from an analysis of the available Court of Appeal decisions in relation to the matter.
INTRODUCTION
Sharia is an Arabic word that means the correct path. In the Muslim religion, it refers to the divine counsel that Muslims follow to live moral lives and grow close to God. Islamic law is an all-embracing body of religious duty, the totality of God’s commands that regulate the life of every Muslim in all its aspects; it encompasses, on an equal footing, ordinances regarding worship and ritual, as well as political and legal rules. [1] In Kenya, Sharia law, otherwise called Islamic or Muslim law, is applicable to persons who profess the Muslim faith. The Constitution of Kenya 2010 establishes the Kadhi’s court under Article 170(1). Its jurisdiction as per Article 170(5) is to determine questions of Islamic law relating to personal status, marriage, divorce or inheritance in proceedings where the parties profess the Muslim religion and submit to the jurisdiction of Kadhi’s court. Among the discussions surrounding application of Islamic law in Kenya is the argument that it brings about discrimination especially in relation to inheritance. This paper therefore focuses on the jurisprudence emanating from Kenyan courts on the issue of inheritance by illegitimate and non-Muslim children under Islamic law.
Analysis of Court of Appeal Decisions
The Law of Succession Act [2] is the statute that governs matters of succession in Kenya. However, it does not apply to persons professing the Muslim faith. Section 2(3) of the Act provides that subject to subsection (4), the provisions of the Act shall not apply to testamentary or intestate succession to the estates of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions, the devolution of the estate of any such person shall be governed by Muslim law. As per the Muslim law, a child born out of wedlock or a non-Muslim child has no right to inherit from his biological father especially where the alleged father is a Muslim. It is this provision that has been regarded as discriminatory and contrary to Article 27 of the Constitution of Kenya 2010.
It should be noted that the right to equality and freedom from non-discrimination is a qualified right. It can be limited under Article 24 of the Constitution. To be more precise, Article 24(4) of the Constitution of Kenya 2010 provides that the provisions of the Bill of Rights on equality shall be qualified to the extent strictly necessary for the application of Muslim law by the Kadhi’s courts to persons who profess the Muslim religion in matters relating to personal status, marriage, divorce or inheritance. What then is the court’s view on inheritance by illegitimate or non-Muslim children under the Islamic law?
The first case for consideration is the Court of Appeal’s decision in CKC & another (Suing through their mother and next friend JWN) v ANC. [3] The issue before the court was whether the appellants, children born of a Muslim father and a non-Muslim mother who were not formally married, could inherit the estate of their deceased father. The appellants argued, inter alia, that since they were not Muslims, Islamic law did not apply to them and consequently the Kadhi’s court had no jurisdiction over the matter. They also argued that Islamic law was discriminatory against them on the grounds of religion.
The court held that succession of the deceased’s estate was to be determined by the High Court under the Law of Succession Act because not all the parties were Muslims and the appellants particularly had not submitted to the jurisdiction of the Kadhi’s court. The problem with this reasoning is that the court merged two issues into one and therefore gave a problematic ruling. Whereas the court was correct about the jurisdiction of the Kadhi’s court, it was wrong to use that holding to conclude that Muslim law was not applicable to the deceased’s estate, failing to consider the fact that the accused was a Muslim at the time of death. The court did not find it necessary to determine constitutionality of the Islamic law of inheritance.
The second case is a recent Court of Appeal decision in Faraj v Mwawasi & 2 others. [4] One of the wives of a Mombasa businessman sought to have children of her two co-wives locked out from inheriting the deceased’s wealth on grounds that they were born out of wedlock. S.G Kairu, P. Nyamweya and G. V. Odunga, JJA, sitting in the Court of Appeal at Mombasa stated:
“To deny children born out of wedlock the benefit which accrues to other children born in wedlock on the basis of the alleged “sins” committed by their parents, in our view cannot be justified since it would mean that this Court would be adopting “hurtful discrimination and stereotypical response” to a clear case of discrimination,” [5]
Further, relying on Article 53 of the Constitution on protection of a child, the court held that any cultural practice that discriminates against children on the ground of their parents’ marital status must be abhorred. [6] This decision by the Court of Appeal is misguided. There is a great difference between law and culture though they might coincide in purpose. Legal rules formulate the rights and obligations useful from the viewpoint of societal order while cultural values refer to those patterns of behaviour that a society considers to be appropriate. [7] The Court of Appeal was therefore wrong in considering Muslim law to be a cultural practice rather than law. In Saifuden Mohamedali Noorbhai v. Shehnaz Adamji, [8] the Court of Appeal stated:
“The Muslim law, in its essence, is an ideal, a moral doctrine, proclaiming, as fundamental commandment, the noble Quranic verse: Verily God commands you to be just and kind! …This brings us to another essential feature of Muslim jurisprudence, namely that it does not a single, uniform code of law, but manifests a diversity of legal doctrines comprising a multiplicity of Muslim schools of law, within each of Islam’s two major branches, the Sunni and the Shia.”
CONCLUSION
In as much as the Muslim law on inheritance is discriminatory, it cannot be declared unconstitutional to this extent as the provisions on equality are limited under Article 24(4) of the Constitution when it comes to application of the Muslim law. The approach taken by the Court of Appeal, especially in the Faraj case, [9] is likely to be a constraint in the application of Islamic law relating to inheritance. Until this judgement is overturned by the Supreme Court, it shall serve as the benchmark law on inheritance by illegitimate and non-Muslim children under the Muslim law.
References
[3] [2019] eKLR
[4] [2023] eKLR
[8] [2011] eKLR
[9] Supra note 4
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