EAST AFRICA

To turn from West to East Africa, one of the most controversial questions at the present time is provided by waqf cases from Kenya, Tanganyika or Zanzibar. One of these is at present pending before the Judicial Committee of the Privy Council; so I had better restrain myself from making the comments I should like to make on the decision of the Court of Appeal for Eastern Africa which is the subject of this further appeal.

The law of waqf, as applied by courts of a British background in India, Aden and East Africa, has been fundamentally vitiated by a series of cases culminating in the decision of the Judicial Committee in Abul Fata v Russomoy' as long ago as 1894. In this case their Lordships invalidated a family waqf on the grounds that the ultimate gift to the poor had ‘been put into this settlement merely to give it a colour of piety, and so to legalize arrangements meant to serve for the aggrand­izement of a family’; for they could not see how successions of ‘inalienable life-interests’ could be forbidden under the ‘general law of Islam’ but could become legal ‘if only the settlor says that they are made as a wakf, in the name of God, or for the sake of the poor’. This was, of course, a very natural decision for judges trained in English law, who did not understand, first, that it is exceedingly common in Islamic law for some disposition to be illegal if effected in one way, yet perfectly legal and valid if effected in another way; secondly, that the Islamic law of all the orthodox schools has regarded waqfs which provide for the income to be distributed among a series of beneficiaries, generation after generation—whether these represent the descendants of the founder or of any other person—as perfectly valid, provided they are created in the proper form; thirdly, that Abu Yusuf the Hanafi also regarded waqfs in which the founder reserved even the whole income for himself for life as equally valid; and, fourthly, that it was only some jurists (such as Muhammad ibn al-Hasan al-Shaybani, the IJanafi) who insisted that the waqf deed must include an ultimate reservation for the poor or some other charitable purpose which * 22 LA.

cannot fail, and that the reason for such insistence, where it occurs, is not to introduce a charitable element which would otherwise be lacking,* but to provide an ultimate disposition which could never come to an end.

This decision caused so much dissatisfaction in India that it had to be remedied by the Mussulman Wakf Validating Act, 1913. The preamble to this recites that ‘Whereas doubts have arisen regarding the validity of wakfs created by persons professing the Mussulman faith in favour of themselves, their families, children and descendants... and whereas it is expedient to remove such doubts;’ section 3 explicitly provides for the validity of a waqf for, ‘among other purposes’, the ‘maintenance and support wholly or partially’ of the founder’s ‘family, children or descendants’ and also, if the founder were a Hanafi, for ‘his own maintenance and support during his lifetime or for the payment of his debts’—provided only that the ‘ultimate benefit’ is in such cases ‘expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussulman law as a religious, pious or charitable purpose of a permanent character’; while section 4 explicitly declares that no such waqf shall be deemed to be invalid ‘merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, diildren or descendants of the person making the wakf’.

There can be little doubt that the intention behind this Act was to restore the principles of the classical texts as they had always been understood by Muslim jurists. It must, of course, be admitted that the drafting, in some respects at least, left a good deal to be desired; but the impression is almost inescapable that the courts have at times given this enactment an unnecessarily restricted interpretation. And it is regrettable—if understandable—that British courts in Aden, Zanzibar and Kenya have all felt bound by the Privy Council decision in Abul Fata’s Case, in spite of the fact that this has been recognized by all competent persons as a wholly mistaken interpretation of the Islamic law; so the legislature has in each case been compelled to pass a ‘Wakf Validating Act’, on the Indian model, in order to restore the Islamic law as it was before the courts had misinterpreted it.

¹ On the contrary, a gift to relatives, even though rich, was regarded as a perfectly valid ‘approach to God’ if made in this form.

Mahomedan law, uninfluenced from outside sources, permitted per­petuities and the erection of wakfs for family aggrandizement solely, the influence of English Judges and of the Privy Council has gradually encroached on this position’.¹ Unhappily, however, when an appeal from East Africa on this subject reached the Judicial Com­mittee in 1952,^{[40] [41] their Lordships not only felt unable to reverse their previous decision but even to distinguish it—as they could very easily have done—on the grounds that the Shafl'i law certainly does not require a waqfdeed to include an ultimate dedication to some purpose which cannot fail. They also made deprecating reference to the words of Hamilton, J., quoted above. Their Lordships were very inade­quately assisted by counsel in this appeal; but there can be no doubt (with great respect) that they gave expression to a number of dicta. which leave anyone who has studied the matter almost in a state of nervous prostration!}

Nor does the tale of woe stop at this point. For the courts in East Africa have also given the most restricted interpretation to the various Wakf Validating Acts which have been passed. I have previously discussed this matter at some length,^[42] so must coniine myself here to a brief reference to two points only: first, the question whether there must be an explicit dedication to some charity which cannot fail; and, secondly, the nature of the life interest which may be granted to successive generations of beneficiaries. Unhappily, waqfs have repeatedly been invalidated in East Africa simply because their deeds ‘contained no specific gift over to the poor or to any other purpose upon the extinction of the descendants of the Setdor’, in spite of the fact that the dominant doctrine of the Shafl'i law (and these were Shafl'i wagfs) makes no such requirement, and that the Kenya Wakf ■ Commissioners Ordinance allows such gift to be implicit ‘in any case in which the personal law of the person making the wakf so permits’^[43] (and the very use of the word waqf in Shafl'i law represents such implicit dedication), while the Ordinance also includes the explicit state­ment that the ‘absence of any reservation of die ultimate benefit in property the subject of the wakf for the poor...

As for the second point, the provision in the Wakf Validating Acts that establishes the validity of a waqf‘for the maintenance and support, either wholly or partly, of any person including the family, children, descendants or kindred of the maker’,¹ has been given an excessively restricted meaning—as, indeed, in some Indian cases, but against the general trend of judicial decisions in that sub-continent as this has now become established. Even on a dictionary meaning of these terms, to ‘maintain’ means, inter alia, to ‘support one’s state of life by expendi­ture’, and to ‘support’ means ‘to strengthen the position of a person by one’s assistance’. On this basis, therefore, it would seem to be exclusively within the discretion of the founder of a waqf to allow the beneficiaries any sum he may desire, without any question whatever of a waqf being invalidated by the mere fact that he provided that the ‘income should be paid’ to such beneficiary without any intention whatever that this income must only be used to meet the cost of accommodation, food, and clothing. Any such distinction would, indeed, be utterly alien to the Islamic texts, which use the phrase ‘eat of the waqf’ in the sense of ‘enjoy its income’. The Indian Wakf Validating Act, moreover, explicitly allows a reservation by a Hanafi founder for the ‘payment of his debts’, without specification of their nature or extent; and it would be exceedingly strange if a founder could do this for himself but not for his family, when the Islamic law is in fact much more reserved regarding what he can do for himself than what he can do for others. It would seem, moreover, that an application of the principles enshrined in Heydons Case¹ would have pointed strongly against giving these words a meaning which frustrates the very purpose for which the legislation was enacted.

I should, perhaps, observe in passing that I am by no means an advocate of family perpetuities, and recent legislation in various countries in the Middle East³ shows that modem Muslim opinion is also against them. But it is surely preferable to remedy this situation by direct legislation, rather than by what I can only describe—with great respect—as judicial misinterpretation.

’ Cf. sect. 4(1) (a) in the Kenya Wakf Commissioners Ordinance, 1951.

* (1584) 3 Rep. 76—per Lord Coke.

^s Cf. my articles ‘The Religious Element in Waqf-Endowments’, in Journal qj Royal Central Asian Society, July 1951; ‘Reforms in Islamic Law IX’, in The Muslim World, XLII, 4, 1952; and references in ‘The Reform of Islamic Law in the Sudan’, in Sudan Law Journal and Reports, i960, p. 309 f.; etc.