VZCZCXRO3661
RR RUEHBC RUEHBZ RUEHDA RUEHDE RUEHDU RUEHGI RUEHJO RUEHJS RUEHKUK
RUEHLH RUEHMR RUEHPW RUEHRN RUEHROV
DE RUEHDR #0837/01 3461215
ZNR UUUUU ZZH
R 111215Z DEC 08
FM AMEMBASSY DAR ES SALAAM
TO RUEHC/SECSTATE WASHDC 8099
INFO RUCNISL/ISLAMIC COLLECTIVE
RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUEHKM/AMEMBASSY KAMPALA 3248
RUEHLGB/AMEMBASSY KIGALI 1177
RUEHNR/AMEMBASSY NAIROBI 1068
RUEHJB/AMEMBASSY BUJUMBURA 2733

UNCLAS SECTION 01 OF 02 DAR ES SALAAM 000837 
 
SIPDIS 
SENSITIVE 
 
AF/E FOR JLIDDLE, INR FOR FEHRENREICH 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM PREL SCUL KIRF KISL TZ
SUBJECT: POLITICS AND RELIGION IN TANZANIA: REVIVED DEBATE 
ON ISLAMIC KADHI COURTS 
 
¶1. (U) Summary.  This is the first of two cables on political 
issues of a religious nature in Tanzania.  This cable covers 
the question of establishing Islamic (kadhi) courts on 
mainland Tanzania, while septel will address the debate over 
Tanzanian membership in the Organization of the Islamic 
Conference (OIC).  The kadhi court controversy pits Muslim 
religious leaders and some political figures, who argue for 
the courts on the basis of tradition, against Christian 
groups and more secular opponents, who fear a violation of 
constitutionally guaranteed government neutrality among 
religions. The debate poses a particular problem for the 
ruling CCM party, which must balance the competition for 
voters in Muslim Zanzibar with overall party solidarity in 
the more secular and multi-religious mainland.  End summary. 
 
Background: The Zanzibar Way 
---------------------------- 
¶2. (U) Unlike mainland Tanzania's secular legal system, 
semi-autonomous Zanzibar has a parallel system of "kadhi 
courts."  Kadhi courts only hold authority over Muslims and 
decide matters on divorce, child custody, inheritance and 
related matters involving customary Islamic law.  The Kadhi, 
who is the senior Islamic scholar responsible for 
interpreting the Koran, is approved by the President and 
recognized as a judge.  There is also a Kadhi Court of Appeal. 
 
¶3. (U) Issues involving criminal cases, civil cases of a 
customary nature or cases involving non-Muslims are heard by 
the Zanzibar Primary Court, which also has a court of appeal. 
 However, litigants sometimes bring cases to both courts, in 
which case the High Court of Zanzibar is the supreme arbiter 
and last court of appeal (except on constitutional or Union 
issues, which would go to higher mainland courts).  The 
majority of cases are handled at the lowest level.  In 
Zanzibar, kadhi court judgments and subpoenas are enforced by 
Zanzibar's (secular) police, as with any other court. 
 
¶4. (U)  One main difference between the mainland and Zanzibar 
on legal issues is that even in the Zanzibar civil courts, 
most, if not all, of the judges are Muslim, reflecting the 98 
percent Muslim population of Zanzibar.  The religious 
affiliation of judges on the mainland is more diverse.  Kadhi 
courts were abolished on the mainland in 1963; after the 1964 
union that formed Tanzania, the kadhi courts continued on 
Zanzibar only. 
 
¶5. (U) The debate over establishment of mainland kadhi courts 
has simmered over time and occasionally boiled over.  The 
ruling CCM, in its 2005 election manifesto, included a 
promise to work towards establishing the courts.  In 2006, 
the leaders of BAKWATA, the Muslim Council of Tanzania that 
governs Islamic matters on the mainland, issued a new call 
for nationwide kadhi courts, setting off a heated debate 
among Muslim leaders, Catholic bishops, and other Christian 
groups.  The debate revived during the most recent 
Parliamentary budget session, when the Minister for Justice 
noted the government was studying a report on the issue. 
 
Arguing the case 
---------------- 
¶6. (U) Proponents of the establishment of kadhi courts on the 
mainland focus on several key points.  First, they argue that 
the kadhi courts should not be seen as novel, since they 
existed on the mainland before independence.  Proponents also 
claim that the kadhi court system does not necessarily imply 
a rejection of secularism. The Mufti of Zanzibar (a political 
appointee), Harith Khelef Kharmis, insists that "Islamic 
affairs" are separated from "judicial affairs" on the island. 
 Proponents also note the successful implementation of a 
kadhi court system in several neighboring countries, notably 
Kenya, Rwanda, and to some degree, Uganda. 
 
¶7. (SBU) Finally, proponents emphasize the integral aspect of 
the kadhi court system to the Muslim faith, stressing that 
the courts would apply only to Muslims.  Fatma Maghimbi, 
spokesperson for the opposition Civic United Front (CUF) and 
an MP from Pemba, claimed in Parliament that, "the 
non-existence of kadhi courts is a constraint in solving 
basic issues concerning Muslims."  Many who advocate for the 
kadhi court,s extension to the mainland view the court as a 
system created by the community to fill a failure of the 
government of Tanzania in civil matters.   Juma Mikidadi, 
Islamic Studies Professor at the Muslim University of 
 
DAR ES SAL 00000837  002 OF 002 
 
 
Morogoro, recently told Poloff "we need judges well-versed in 
Islamic law to ensure proper treatment for all." 
 
¶8. (U) Opponents of a kadhi court system on the mainland 
argue that by funding an Islamic institution, the government 
would compromise its secular status, which is established in 
the Constitution.  Speaking in Parliament, CCM MP Florence 
Kyendesya said "issues of a (directly) religious nature 
should be left to respective religious institutions to set up 
appropriate mechanisms."   Opponents add that establishing a 
kadhi court system on the mainland would require amending the 
Constitution, a step not to be taken lightly, as well as 
drafting implementing legislation.  They also point out that 
because the Tanzanian court system is financed by taxpayers, 
it would be inequitable for all Tanzanian citizens to finance 
a "one religion" court system used by and benefiting one 
subgroup of the population. 
 
¶9. (U) Within the Christian religious establishment, 
opponents of the kadhi court, such as Catholic Bishop Method 
Kilaini, have characterized the proposal as a steady "creep" 
towards Islamic law.  Christian religious leaders note that 
Muslim law often directly contravenes existing Tanzanian 
legal principles and question how conflicts would be 
resolved.  Some fear that the creation of a kadhi court 
system on the mainland would create a forum in which various 
Muslim groups will battle among themselves for control of the 
faithful, perhaps upsetting the social order in the process, 
as well as contributing to greater rifts between Muslim and 
Christian groups.  Zitto Kabwe, MP for opposition Chadema, 
called on his fellow MPs to deliberate calmly about the 
issue, so as not to "see the nation divided."  Other 
opponents have framed the issue around gender, asserting that 
women do not receive fair treatment in the kadhi court 
system, which consequently creates a direct conflict with the 
Constitution,s guarantee of gender equality. 
 
The Political Angle: A problem for CCM 
-------------------------------------- 
 
¶10. (U) MPs in favor of a mainland kadhi court argue that CCM 
must fulfill the commitments of its 2005 manifesto.   They 
add that because the platform was written at a time when the 
President, Prime Minister, and CCM Secretary General were all 
Christians, President Kikwete, a Muslim, cannot be seen as 
pushing an Islamic agenda.  Kikwete himself has attempted to 
play down the kadhi court issue, even making a point of 
attributing the idea to the (Christian) leader of a small 
opposition party, the Tanzania Labor Party.  On the occasionsQhen he has spoken publicly about the issue, Kikwete has 
urged patience to allow further consideration.  Some analysts 
have claimed that CCM picked up on the kadhi court idea 
during the electoral campaign to undercut the CUF's strong 
Islamic following. 
 
¶11. (SBU) Comment: Kikwete and CCM are pressed on multiple 
sides by the kadhi court issue.  If the Union government were 
to start the process of setting up the courts, it would 
certainly raise interfaith tensions on the mainland and 
heighten divisions within CCM.  However, inaction gives CUF a 
wedge issue against CCM, particularly on Zanzibar.  While CCM 
faces no serious threat to its dominance in the national 
government, the political divide on Zanzibar is such that 
overt CUF appeals on Muslim issues could be among the issues 
that help sway the 2010 election. End Comment. 
GREEN