By Aleema Jamal
The two cases, Nurani v. Nurani and TSJ v. SJSR, exemplify the way in which the efficacy of the Ismāʿīlī community’s dispute resolution system is subservient to, and reliant upon, its relationship with the modern nation-state. The relationship between the Ismāʿīlī community and the state is especially evident when community members, who initially submit themselves to the jurisdiction of Ismāʿīlī dispute resolution systems, subsequently challenge or refuse to abide by that system’s decisions. Such conflicts mean that while the Ismāʿīlī Constitution, through recognition by the nation-state, has the potential to be an effective lawmaking body, an adverse decision by a national court system can just as quickly undermine its authority.
The Ismāʿīlī Constitution creates its own internal dispute resolution mechanisms for disputes arising within the Ismāʿīlī community. Namely, this document establishes the Conciliation and Arbitration Board (CAB) to hear disputes within the Ismāʿīlī Community and to take disciplinary action.
The CAB oversees two separate dispute resolution processes: 1) conciliation, which CAB orchestrates between parties in disputes arising from commercial transactions, civil liability, and matters of family law, and 2) arbitration, which CAB uses to adjudicate the same range of issues, accompanied by disciplinary action authorized by the Constitution and outlined by its Rules and Regulations.[1] Because the CAB system operates within the confines of state law,[2] one of its core challenges is how to enforce a ruling in the instance that a dissatisfied party turns to the state’s legal system. This scenario makes clear that the efficacy of CAB is reliant upon support by the state of which the community members are part, a fact demonstrated by two case examples from Kenya, Nurani v. Nurani and TSJ v. SHSR. I argue that while the Ismāʿīlī Constitution, through state recognition, has the potential to be an effective lawmaking body, an adverse decision by a national court system can just as quickly undermine its authority.
The efficacy of CAB as a state-subsidiary tribunal is partially reliant upon claimants to submit to its jurisdiction and adhere to its judgments. Without an affirmative legal obligation to do so, claimants can forum shop. For instance, in some Muslim majority countries in which Islamic law is practiced, an “Ismaili male can choose to bring a divorce case before such a Shari’a court … in the hope of obtaining a decision less stringent for him than one based on Ismaili personal law, which in most cases accords greater protection to women.”[3] The opposite may also be true. The decision of a claimant to forum shop hinders the efficacy of CAB, a factor related to the state’s treatment of CAB itself. Kenya provides an example.
The Nurani v. Nurani case was brought to the Nairobi Court of Appeals in 1981 by a couple who had previously sought a divorce settlement under the Ismāʿīlī Council dispute resolution system. Issues to be adjudicated by the Court included the terms of the divorce, mahr (dowry provided by the husband to the wife typically due upon dissolution of the marriage), and custody of their two children.[4] The High Court of Nairobi had jurisdiction over the case under the Mohammedan Marriage and Divorce Registration Act (Cap 155) and the Mohammedan Marriage, Divorce and Succession Act (Cap 156), which provided legal recognition of Islamic law under Kenya’s pluralist legal system.[5]
In the events leading up to Nurani v. Nurani, the wife first brought her divorce petition to the High Court of Nairobi, which sits below the Court of Appeals and the Supreme Court and has original jurisdiction to adjudicate upon civil and criminal cases. In her petition, the arguments focused on the circumstances under which the High Court of Nairobi could adjudicate an issue already submitted to another tribunal, the Ismāʿīlī Council.[6] The husband claimed that, although the High Court had jurisdiction, it should not allow litigants to take “two bites of the cherry.”[7] The wife, on the other hand, took a unique position by separating the claims that each body was to adjudicate; the Council would deal with the questions of divorce and conjugal rights, whereas the High Court would address questions of maintenance and child custody.[8] In so doing, the wife made a value judgment about the competence of the Ismāʿīlī Council for certain types of dispute. She explicitly argued that the Council’s decision on maintenance and custody would not be “as effective as a judicial order from the High Court since it could not be enforced or executed in the same way.”[9]
Ultimately, the lower court deferred to the Ismāʿīlī Council by noting that both litigants had submitted to its jurisdiction, which was concurrent with that of the High Court.[10] Despite the concurrent jurisdiction, the High Court determined that it would wait for a decision from the Ismāʿīlī Council because the parties had first submitted to the Council’s jurisdiction, as permissible in Kenya’s Constitution.[11] Should the wife still require enforcement or should she wish to contest the decision of the Council, then “it would be a simple matter to have it enforced, not directly, but by a fresh suit in the High Court.”[12] That is, enforcement was an option even without explicit recognition of the Ismāʿīlī Council’s dispute resolution systems in Kenyan law. Kenya’s legal system, through its Constitution, thus offered compatibility with the Ismāʿīlī Constitution and its associated dispute resolution systems, in turn giving legitimacy to the Ismāʿīlī community’s governance structures.
On appeal, the Court of Appeal further clarified the role of the state’s legal structures in relation to those established under the Ismāʿīlī Constitution. The judge noted that, under Kenyan law, religious communities may set up their own tribunals resolving matrimonial and similar disputes.[13] He conceived of the role of the court as providing “ample safeguards” and “remedial actions,”[14] in the instance that these tribunals did not execute their responsibilities fairly. The judge also provided an important policy reason for giving deference to the Ismāʿīlī Council: that in doing so, these tribunals would act as useful adjuncts to the court system and alleviate the administrative burden on the system.[15] However, of most importance, the Court reiterated its supremacy: “there is nothing derogatory in that to the powers of prestige of the High Court. The [Ismāʿīlī] council remains subject to the supervisory jurisdiction of the High Court. The council’s jurisdiction does not impugn or curtail, nor could it do so in any way, the jurisdiction… of the High court.”[16] With this statement, the Court lent legitimacy to the Ismāʿīlī Council while maintaining the clear supremacy of the Kenyan judicial system.
Nevertheless, an adverse decision by a nation’s court system could just as quickly undermine the Council’s authority. In a more recent 2013 decision, TSJ v. SHSR, also by the High Court of Nairobi, the Court found that the Ismāʿīlī Conciliation and Arbitration Board did not have the jurisdiction to grant an order of divorce, maintenance, or custody, despite both parties having voluntarily submitted to its jurisdiction.[17] In this decision, the Court noted that CAB can only deal with matters “not within the exclusive jurisdiction of either the ordinary courts or the Kadhis’ (Ar. qāḍī, judge) courts.”[18] Those courts, under Article 170(5) of Kenya’s Constitution, are granted jurisdiction “to determine questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhis’ court.”[19]
It is worth noting that the Kadhis’ courts were already entrenched within the Kenyan legal system prior to its earlier decision in Nurani v. Nurani.[20] Thus, the Court’s failure to refer to the Kadhis’ courts in that opinion is significant. It signals an active decision to defer to the Ismāʿīlī Council over the Kadhis’ courts.
The pluralism of practice and belief in Kenyan Muslim communities seemed to be recognized in Nurani v. Nurani, but not in TSJ v. SHSR. At the time of the former case, the Kadhis’ courts were the subject of political controversy; but by the time of TSJ v. SHSR, they were more mainstream and better integrated in Kenyan society. [21] Perhaps the Court made its initial decision for the same reason that it later rejected in TSJ: that Ismāʿīlī Muslims “conduct their religious affairs differently to other adherents of the Islamic faith,”[22] and had therefore established their own arbitral bodies. In contrast to Nurani, in which the Court acted as a course-corrector, in TSJ, the Court played the role of primary decision maker, with CAB only able to adjudicate in order to fill the gaps left by the state law in family matters.[23]
As evidenced by these case studies from Kenya, CAB’s efficacy ultimately depends upon the type of partnership it develops within the legal system of its home nation. It has greater potential to be effective when that nation-state offers deference to the Ismāʿīlī dispute resolution systems in the first instance.
[1] The Constitution of the Shia Imami Ismaili Muslims [Ismāʿīlī Constitution], Jul. 11, 1998, arts. 12.1(a) & (b), 13.1(1) & (b).
[2] See Notes of Telephone Interview with Bashir Jamal, Chairman, Conciliation and Arbitration Board for the Prairies, Apr. 28, 2017 (on file with author).
[3] Ali Asani, Improving the Status of Women Through Reforms in Marriage Contract Law: The Experience of the Nizari Ismaili Community, in The Islamic Marriage Contract: Case Studies in Islamic Family Law 293 (Frank E. Vogel ed., 2008).
[4] See generally Nurani v. Nurani (1982) K.L.R. 1, 2 (C.A.K.) (Kenya).
[5] See Nurani, 1982 K.L.R. at 1, 2; see also Kevin Odimbe Wanyonyi, The Kadhis’ Courts in Kenya: Towards Enhancing Access to Justice for Muslim Women (unpublished MA thesis, Lund University Faculty of Social Sciences, 2008), http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8879897&fileOId=8879899.
[6] Note: The Ismaili Council adjudicated upon these disputes in Kenya before the formation of CAB, as was the situation in this case.
[7] See Nurani, 1982 K.L.R. at 1, 2.
[8] See Nurani, 1982 K.L.R. at 2-3.
[9] See Nurani, 1982 K.L.R. at 2-3.
[10] See Nurani, 1982 K.L.R. at 3-4.
[11] See Brandeis Institute for International Judges, Issues of Concurrent Jurisdiction (2012), https://www.brandeis.edu/ethics/pdfs/internationaljustice/biij/Con_Juris_2012.pdf (discussing issues and considerations that arise from concurrent jurisdiction with a focus on East Africa).
[12] Nurani, 1982 K.L.R. at 1, 2.
[13] See Nurani, 1982 K.L.R. at 4.
[14] Nurani, 1982 K.L.R. at 4.
[15] See Nurani, 1982 K.L.R. at 4.
[16] Nurani, 1982 K.L.R. at 4.
[17] See TSJ v. SHSR (2014) K.L.R. 1 (H.C.K.) (Kenya).
[18] TSJ, 2014 K.L.R. at 2.
[19] TSJ, 2014 K.L.R. at 2.
[20] See Hassan J. Ndzovu, The Case of Kadhi Courts in a Secular Kenya (Life and Peace Institute, Apr. 17, 2015), http://life-peace.org/hab/the-case-of-kadhi-courts-in-a-secular-kenya/; see also Kadhis’ Courts Act (2012) Cap. 11 §4-5 (Kenya). The Kadhis’ Court Act came into effect in 1967, but its rules existed from as early as colonial rule.
[21] See Wanyonyi, supra note 5, at 16-18.
[22] TSJ, 2014 K.L.R. at 2.
[23] TSJ, 2014 K.L.R. at 2.