Muslim women, less than equal: the constitutional limitation of the right to equality and its manifestation in Kadhi’s’ Courts
Date
2024
Authors
Aziz, N.
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
Article 24 of the Constitution provides for the limitation of rights and freedoms under the bill of rights. Clause 4 limits the fundamental right to equality to the ‘extent strictly necessary’ for the application of Muslim law before the Kadhis courts to persons who profess the Muslim religion in matters relating to personal status, marriage, divorce and inheritance. The ‘extent strictly necessary’ is not defined within the Constitution. Therefore, the standard and scope of the application of the limitation is ambiguous. Kenya is a pluralistic state with multiple laws applying to the population which is characterised by a diverse religious and cultural background. Religious freedom is protected in the Kenyan constitution. For Muslims, this means that they are free to apply Islamic law, albeit limited to matters of personal law. The Kadhis courts have been created to advance the application of Islamic law and enhance access to justice to the Muslim demographic of Kenya. The focus of this dissertation is the conflict of laws that presents itself when secular laws demand gender equality while Islamic Law has aspects that place women in subordination to men in personal matters. Exclusionary provisions such as Article 24(4) are an attempt to reconcile two different regimes of law and allow the application of both in spite of the conflict of laws. The dissertation questions the legitimacy of the limitation of equality for Muslims as this removes Muslim women from protection against gender discrimination because of their religion. The dissertation engages in questions of how rights, as created and enforced in the realm of secular International Human Rights Law, engage with contradictions in the theologically centred Islamic law.
Description
Full - text undergraduate research project
Keywords
Citation
Aziz, N. (2024). Muslim women, less than equal: The constitutional limitation of the right to equality and its manifestation in Kadhi’s’ Courts [Strathmore University]. http://hdl.handle.net/11071/15867