“British kadhis” and “Muslim judges”: modernisation, inconsistencies and accommodation in Zanzibar's colonial judiciary

Abstract

Contextualising the creation of Zanzibar's colonial judiciary within the British Empire, this article explores contradictions in the British approach towards the application of Islamic law in this protectorate. The British upheld the existing legal system, shari'a, as the fundamental law yet, striving towards uniformity, impartiality and cost effectiveness, they restricted the scope of jurisdiction of kadhis, or Muslim judges, introduced Indian codes and provided for the application of Islamic law by British judges. Although the British may not have consciously embarked on merging the roles of judges and kadhis, one of the outcomes of their interference with the judicial system was to combine in the one person a secularly trained judge and a religiously educated kadhi. Notes of various colonial officials on the alleged irrationality and arbitrariness of Islamic law suggest that kadhis' accommodation in the colonial judiciary was shaped by continuous British doubt about their suitability as colonial officers, while kadhis implemented colonial decrees, albeit inconsistently. This article argues that underlying differences between judges and kadhis prevailed during the colonial period, while their attempts at a role reversal show adaptation to the colonial legal system, which accommodated shari'a by supervising its application. As the arguments are based on evidence scattered from 1890 until independence in 1963, this paper outlines the scope of colonial views of shari'a rather than provides a chronological overview of changes in these views.