Muslims in Mombasa demonstrate outside Sakin mosque in Majengo, Mvita constituency of Mombasa, after Friday prayers to condemn the ruling that children born outside wedlock have a right to inherit property, cases which they want the Kadhis courts to handle /JOHN CHESOLI
A recent decision of the Supreme Court (all seven judges)—about whether people born out of wedlock to Muslim parents can inherit from their fathers—has caused much resentment among the Muslim community.
Let me emphasize that Islamic law has provisions that were intended to uphold moral relations and to ensure that everyone is treated fairly. Furthermore, equality is clearly an important value in Islam.
The Islamic law
Basically, only a person born of two people married to each other can inherit from the father. Even if the parents actually married, but the child was conceived before the marriage, the child is still “illegitimate”.
A child born to a wife in a marriage governed by Islamic law is assumed to be that of the husband. Details may vary between schools of Islamic law.
Most remarkable is perhaps how many other systems have had similar rules. Roman, Jewish, and Hindu law, customary laws of Europe, church law, and the English common law have all excluded illegitimate offspring from inheritance, although they are not identical in detail.
Why?
At the heart of the rules, I suggest, lay a common concern: men’s fear of having imposed on them offspring who were not their own.
They thus feared the possibility of their wives being unfaithful to them. There is even a specific word for this in English.
A cuckold is a “man whose spouse has committed adultery, often regarded as an object of scorn” (Collins Dictionary). The word is virtually never used of women.
A practical problem was that of knowing whether the child was theirs.
Falstaff in Shakespeare’s play Henry IV (Part I), pretending to be the king interrogating his irresponsible son, said: “That thou art my son I have partly thy mother’s word, partly my own opinion.”
In the 1970s, I asked my students in Nigeria what adultery was. They said, ‘If a woman has sex with a man who is not her husband.’ They did not connect the word with men’s behaviour.
Men’s fear of women’s sexuality comes out in “female genital mutilation”—preventing ”women from having pleasure in sex, to keep them “chaste”. However, men have a fear of their own sexuality, afraid they will be seduced by women.
Such attitudes lay behind the law in England: until 1923 adultery alone was ground for divorce in England if committed by women, but not if committed by men – an additional ground, such as cruelty, was needed.
Think about the early social context. In many societies the expectation was that all women of childbearing age were married—especially where men could have several wives.
A woman bearing a child not from her husband was probably committing adultery. But if everyone kept quiet, one way or the other the child would be taken care of.
While the values and concerns underlying the law may not have changed, the context has.
Firstly, it is usually possible to be sure who fathered a particular child (although the use of DNA evidence in Islamic law is not clear cut).
Secondly, it is less likely, though not impossible, that the mother of a child in a non-married relationship is married to someone else.
No one in Kenya can legally marry before they are aged 18 (including Muslim girls—as a Kenyan court decided).
Realistically, extramarital pregnancy is not just the outcome of a woman enticing a man. Women’s financial insecurity and the reluctance of far too many to say “No” to a man, explain many such pregnancies. I believe that most people would not say such pregnancies are the women’s “fault” only.
The constitution
The constitution specifically recognises African customary law and “Islamic and Hindu personal law”. It also laid the groundwork for the extension of Kadhis’ courts throughout the country – to the benefit particularly of Muslim women.
Article 27 on equality specifically forbids discrimination on the basis of “”birth”—which includes being “born out of wedlock”. However, the constitution also provides that equality rights are “qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim faith in relation to personal status, marriage, divorce and inheritance” (Article 24(4)).
So, the rule excluding “illegitimate” children from inheriting from their fathers, if clearly part of Islamic law, could not be attacked because it created inequality.
However, this applies only in the Kadhis’ courts. The phrase “before the Kadhis’ courts” was introduced in the Committee of Experts’ second draft.
This was a deliberate choice to allow for the possibility of some rules of Islamic law being challenged in court—possibly because the case was not brought in a Kadhi court.
Think of a case in which a Muslim man sired a child by a non-Muslim woman. And Kadhi courts can only hear cases where both parties are Muslim and also accept the courts’ jurisdiction. Then there is the possibility of an appeal — which would go from a Kadhi court to the High Court.
The case
The case involved three wives of a Muslim man who had died. One wife started a case to settle the property in a Kadhi court, the second started a case in the High Court.
The cases were merged and were decided first in the High Court, then went to the Court of Appeal.
The crucial facts were that the children of two wives were born before any marriage between their parents so, under Islamic law, could not inherit from their father. The Court of Appeal had decided that the constitution protected those children from exclusion.
The Supreme Court had no choice about taking the case—because it was a constitutional matter. The court asked itself the right—the inevitable—question, this not being a case in a Kadhi’s court, or even an appeal from one.
That question was the usual Article 24 one: balancing the importance of the right to equality, and the purpose and the extent of the Islamic rule that limits that right, is the limitation justified? The inequality in this case was treating “illegitimate” offspring less favourably than legitimate ones and Muslim ones less favourably than those of other faiths.
However, the Supreme Court said no attempt had been made to justify the rule except because of its Islamic law status. But outside the Kadhis’ courts, the simple argument in justification, “This is valid Islamic law,” is not effective.
What would be needed to answer the court’s question would be something showing that in practical terms the rule served a useful social purpose that justified the departure from equality.
The court said in its ruling on June 30 that it could not imagine any convincing justification for the rule in practical, constitutional terms.
I did read one comment suggesting that the new rule would be an incentive to women to have sex outside marriage – which places the “blame” on the women, including for the pregnancy.
But the “official” Islamic rule is an incentive to men to do so without regard to the possibility of siring a child. And, as in this case, does not allow the man to rectify his error by marrying the mother, though he could, within limits, leave something in his will, if he realised the problem.
Formally the first wife, who was arguing for the Islamic rule, had the task of making the argument that the limitation was justified.
That would be particularly hard for her, especially because she had no lawyer. I personally feel that some aspects of this case, so sensitive and difficult for the court and the community, could have benefited from a good lawyer. I might come back to this in future.
Incidentally, the Constitutional Court of Indonesia—the largest Muslim country—in 2010 held that a law providing children born out of wedlock had no legal relationship with their biological father was unconstitutional.
