Focal Features of the State Recognition

4.1 The Mutual Consensus Requirement

The consent of both parties to be adjudicated by the Shari^ta courts under Islamic law is one of the constitutionally enshrined requirements for the ju­risdiction of Shari^ta courts in family matters.^[543] The consent requirement is to safeguard the choice of legal forums.

When they [Muslim women] are not going to be adjudicated by the Shari^ta law they come to us. [...] Most of them are not satisfied by the Shari^ta law, because they [the Kadis] are not going to support them, the women in Dire Dawa, but not only in Dire Dawa also in the surrounding rural area. [...]. We are going to prepare the case to the regular court [.].^[544]

This shows that women seem to use the option of ‘forum shopping’ according to their individual hopes, expectations and demands, and not according to the expectations arising out of their religious affiliation.

However, the Shari^ta court practices seem to have implications for the choice of forums of individuals. The Kadis I interviewed in Addis Ababa, Dire Dawa and Harar criticised the consent requirement as a severe restriction of their authority and as contradictory to the perceived religious responsibility to settle private disputes according to local and religious dispute resolution mechanisms. Moreover the regulation is regarded as an unnecessary obstacle for Muslims.^{[545] [546] This critical attitude materialises in the Kadis’ practice of fol­lowing an ‘implicit’ consent procedure where litigants must expressly state that they do not wish to be adjudicated by the Sharita courts.}

4.2 The Civil Procedure Code of Ethiopia (cpc-)Requirement

4.2.1 Kadis' Knowledge of the CPC

As already mentioned above, the state-set legal frame stipulates: “[i]n con­ducting proceedings properly, the courts shall apply the civil procedure laws in force”^{[550] [551] Despite this requirement, knowledge of the state procedure law is not (yet) a precondition for the appointment of a prospective Kadi. Thejudicial reality instead shows that Kadis of the Federal Sharita Courts, as for instance in Addis Ababa, apply the Civil Procedure Code of Ethiopia merely to the ex­tent they became familiar with it in the course of their work. Sometimes they rely instead on Islamic procedural rules, in particular regarding the law of evi­dence, which follows a different internal logic regarding testimony.}

We get training provided by the federal and regional government and some who come from abroad, from the United States, also trained us in civil procedure.

Moreover, the state and Islamic judiciary already cooperate during the ap­pointment process. In the course of the selection procedure of candidates, the HPNRS-Supreme Court works closely together with the Regional Council of Islamic Affairs. A specific exam is prepared by a committee jointly with the HPNRS-Council of Islamic Affairs and the HPNRS-Supreme Court of'Shari^,a. The hpnrs Proclamation 3/1996 does not require cooperation with the Regional Council of Islamic Affairs (rcia), even though in practice thejudicial actors view the involvement of RCiA-expertise as crucial at the stage of appointing appropriate Kadis. The exam is solely related to the proficiency in Islamic law since it has been impossible so far to find candidates who are versed in both, Islamic law and state procedural law. This regional example shows that the interpretation of the statutory law and the degree of its implementation rely severely on the political will, on the flexibility and creativity of the actors in­volved and on a fruitful cooperation of the Islamic and the state branches of the judiciary?¹

4-2.2 Law of Evidence and Testimony

Differences between the CPC and Islamic procedural law are particularly obvious regarding the law of evidence: Unlike the CPC, the Islamic law ap­plied by the SharLa courts has a strong gender bias. It follows, for instance, the principle that one male witness equates to two female witnesses. The Kadis have inferred from the Qur’anic stipulations in sura 2:282 a general rule even though this verse actually deals with financial obligations, transac­tions, and contracts. According to a systematic Quranic interpretation, seven further verses do not embed any gender disparity with regard to testimony in court.^[557] The SharLa courts are adhering by and large to one of thefiqh (Islamic jurisprudence) interpretations that women are endowed to responsibili­ties of child-care with the implication that ‘mothering’ develops inside them a state of emotion and feeling of pity for others?³ Thus, “when one woman ‘forgets’ or is overwhelmed by her emotional state a second woman may ‘remind’ her.”74

This interpretation has been criticised by many Muslim scholars7? even though this argumentation seems to be based on a recognised hadtt compiled by al-Bukhari.7⁶ Furthermore, it has been argued, the justification of the ap­plied disparity is hardly tenable in times where women are literate, educated, and engaged in business matters.77 The data I collected during my fieldwork indicate that the overall majority of the witnesses are male.

claimed from her husband maintenance for herself, for the joint child as well as payment of her mahr (dowry). Both the plaintiff and the defendant appeared before the court. After about half an hour of negotiations the Kadi asked for a witness who could testify to the willingness of the defendant to pay the agreed amount of maintenance. On the request of the Kadi, the defendant named his mother as a witness, which was accepted by the Kadi. Moreover, the Kadi asked the plaintiff whether the mother was prepared to testify for a loan the defendant wished to take in order to pay the maintenance.^{[558] [559] This case demonstrates that a female witness (‘the mother') testifies for both the defendant (her son) and for the plaintiff (her daughter-in-law). Moreover, a situational and flexible handling of reasoning becomes visible. In addition, the testimony of the mother of the defendant reveals that the Kadi does not follow a gender-specific law of testimony. Moreover, the court hearing demonstrates the complex interaction of the disputing parties with the Kadi attempting to mediate the dispute by utilizing the wide scope of interpretation even regard­ing Islamic testimony law. How this space of independent reasoning or self-de­pendent legal decision (IjtiIiacdir) is utilised relies very much on the respective legal perception and mind-set of a Kadi. Strong Egyptian and Somali influenc­es in the HPNRS and their relatively flexible Hanaflya and Safilya approaches, two of the Sunni madahib (legal schools of thought), become visible as well[560] [561] It has to be mentioned that one can find all four Sunni legal schools of thought among Ethiopian Muslims, namely: Safi'iya, Maliklya, Hanaflya and Hanabila.}

4.3 Islamic Family Law and the Revised Family Code (rfc)

When comparing the applied Islamic family law with secular family law, some fundamental normative values are similar: Under both legal orders the family is considered the fundamental unit of society and is connected to a hetero­sexual marital bond. Before a marriage can be concluded in any form, certain procedural requirements have to be fulfilled. In order to reach a valid marriage status, the free and full consent of both spouses is the major element under both laws as well. However, there are also fundamental differences, regarding for instance age of marriage, interfaith marriages and polygyny.

4.3.1 Marriageable Age

Under Ethiopian state law, the minimum age of marriage for both spouses is eighteen years^{[565] [566] Under Islamic law the minimum age for marriage is flexible since biological factors such as puberty (bulugh) and intellectual maturity (rusd) are taken into consideration^ However, despite the inherent conflicts between these norms resulting from the different gender specific construc­tions, mutual influences on both normative orders become visible within the state-recognised, legally plural arrangement: Some informants reported that some Kadis seem to treat the marriageable age requirement flexibly in accordance with Islamic law.[567] [568] Other Kadis and Muslim authorities plead for a standardised marriageable age and are in favour of the idea of attaining major­ity at the age of eighteen to protect the woman, and thus they instead apply the state law.9° On the other hand, the Ministry of Justice is empowered to reduce the marriageable age on request by a maximum of two years due to the very diverse local social practices in Ethiopia[569]}

4.3.2 Inter-faith Marriages

The position of Islamic law toward interfaith marriages reveals a further gen­der bias. According to the sunnifiqh, Muslim men are allowed to marry female followers of other so-called ‘book religions’, while Muslim women may only marry Muslim men^{[570] [571] Thus, the Islamic concept is in total contradiction to the principles of the free choice of the spouses and of equality before the law, as guaranteed by the fdre Constitution and by the rfc.93 In Ethiopian Sharita court practice, both parties must be Muslim. This practice is contradictory to the general interpretations of the Sunni legal schools of thought, such as the Hanafiya[572] According to Kadis of the federal Sharita courts, interreligious marriages are usually not certified before the Sharita courts, but instead before state courts. However, the presiding Kadi of the Federal High Court of Sharica in Dire Dawa emphasises that if a male Muslim and a female Christian ask for a marriage certificate, the Sharita courts are obliged to grant the request[573] The temporary President of the Federal Supreme Court of Sharica Addis Ababa de­scribes the judicial practice as follows:}

[S]ince this institution is a Muslim institution, we render a decision based on nikah particularly for Muslims. This is our interest. But we do not close everything for Muslims because certain Muslim men conclude marriage with Christian females. We have some cases like this. We give a certificate for these marriages. But if it is vice versa, if a Christian man wants to marry a Muslim woman it is prohibited^[574]

Regarding interfaith marriages, it has to be mentioned that a disparity exists between federal and regional legislation. The federal Proclamation 188/1999 does not exclude adjudication of inter-religious spouses, whether the marriage is concluded under Islamic law or not, as long as the mutual consent require­ment is fulfilled. The regional hpnrs Proclamation 3/1996 declares that Shari^ta court jurisdiction is restricted to Muslims, but irrespective of whether it is concluded under Islamic law or state law.^[575] Accordingly, inter-religious mar­riages need to be certified at state courts since non-Muslims are categorically excluded.

4.3.3 Polygyny

Another contentious issue are polygynous marriages. Polygyny is a wide­spread social practice^{[576] [577] In contrast to this, the fdre Constitution ensures equal rights in marriage. In accordance with the constitutional provisions, the Criminal Code of Ethiopia makes polygamy subject to penalty. However, it sets down an exception to the general rule: if a marriage is concluded ac­cording to the Islamic law that is generally recognised by the constitution, it is not punishable.99 Ethiopian federal state family law is based on the concept of monogamy. It has to be mentioned that various regional states have already enacted their own family laws. There are some regions which have not done so yet. This is due to the draft commissions that have not been able to mediate and find a compromise between the various camps of opinion regarding the issue of polygamy.[578] [579] [580] Islamic law accepts polygyny under certain conditions such as the mental and financial capability to treat the wives properly, as well as restrictions, e.g. a maximum of four wives.101 The enacted state laws that are based on the concept of monogamy are in conflict with the social real­ity of polygyny in Ethiopia. The examined Sharita court practice shows that while polygyny is a widespread practice in the studied localities, the people usually do not come to the religious courts for legal recognition. One reason might be that the parties believe that they do not satisfy the Qur'anic require­ments. It seems to them to be impossible to treat all wives equally in terms of attention, as well of supporting and providing adequate maintenance to each one.102 Consequently, a huge gap between the Islamic law and social practices becomes visible. Nevertheless, the Sharita court statistics in Addis Ababa and Dire Dawa show a significant percentage of registered polygynous marriages.}

According to the Kadis, the consent of the first wife is not required for conclud­ing additional marriages since the Qur'an clearly gives this right to men under certain conditions.^{[581] [582] [583] Furthermore, some argue that if the wife is not satis­fied with her respective treatment in the polygynous constellation, she has a right to ask for divorced4 State law and Islamic law follow different normative logics and justifications. Secular law argues from the perspective of the right of equality for the spouses, whereas under the religious law, the tolerance of polygyny seems to rely on gendered ideas of an assumed status of males, often based on historical argumentation regarding the protection of widows and or­phans, as well as of women in the case where the husband divorces her.ω5 The question arises of whether historical and ‘naturalised' arguments still fit the changing socioeconomic realities and an era in which polygyny is internation­ally criticised and condemned.}

The above mentioned examples show that a number of procedural and sub­stantive Islamic regulations and interpretations are different to the conception of the secular laws, especially with regard to gender equality. However, as the judicial realities in the Shari^ta courts show, an adaption process towards state law can be observed, e.g. regarding the marriageable age. The state concept of the age of majority is perceived as a guideline by the Kadis. Especially in urban settings, Kadis feel more comfortable following this state concept of 18 years than applying the Islamic principle of puberty. On the other hand, re­gional state legislators grant space for de facto existing polygamous marriages as exceptions to the generally promoted concept of monogamy. These adap­tion processes are mutually dependent and locally shaped by the respective actors involved.

Despite state mechanisms of co-regulation such as financing of Shari^ta courts, consensual jurisdiction and the imposition of the civil procedure code as procedural law, the state has only limited opportunities to regulate substan­tial decisions of Shari^ta courts, as we will be shown in the following.

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