***** On behalf of the Shi’a Ithna-’Ashari Community of Kenya...

***** On behalf of the Shi’a Ithna-’Ashari Community of Kenya, we take the liberty of making this submission for the consideration of the Commission. In this submission, we are confining our remarks to religious laws pertaining to Marriage, Divorce, Will and Inheritance of the Shi’a Ithna-’Ashari Sect of Islam.

It is appreciated that multiple social problems arising out of the abuse or misinterpretation of customary, traditional or religious laws, in general practice, give cause for serious concern to the Government; and the Government in its desire to secure the welfare of its people in that respect, is confronted with a difficult task of eradicating social evils. Any effort in this direction is worthy of support and deserves all the co-operation.

But, we feel that the idea of enacting a Common Law to replace the existing Islamic Laws is not the right one. Even traditional customs (not having any religious authority behind them) are hard to change. This becomes even more dangerous in cases like Islamic Law which are an integral part of our religion, which are not confined to rituals only. These Laws cannot be violated without incurring a sense of guilt and sin.

Therefore, we feel that the best way would be to "Let hundred flowers bloom." National unity does not demand that all citizens should have the same dialect or the same religious belief. So why is it considered essential that there be a Uniform Law of Marriage and Divorce applicable to all persons in Kenya. Our Shi’a Ithna-ashen Sha’riah is not based upon "Ra'i" (Opinion) or "Qiyas" (analogy). It is based wholly on the Qur'an and the traditions of the Holy Prophet and our Twelve Imams.

As this Commission is concerned with matters of matrimony and succession, we must point out that the fundamental rules and many details of succession are given in the Qur'an. In fact, this subject is dealt with more fully in the Holy Book. Likewise, the fundamental rules of marriage and divorce are based upon the Qur'an. The details which are not explicit in the Qur'an are explained in the traditions as mentioned above.

Our religious scholars who are called Mujtahid do not give any ruling by their opinion, analogy or Consensus. There is no such authority given to anybody in our School of Law. They may differ in interpreting certain traditions concerning some minor details, but even then that difference is a difference in interpretation, not of opinion.