26 January 2009
analysis
Kampala — Last week the Islamic Cultural Association convened what they called a "Sharia Court" and convicted Mufti Shaban Ramadhan Mubajje. Mubajje was accused by over 500 Sheiks for fraudulently disposing of Muslim property under his custody.
The court prohibited the Mufti from going to any mosque anywhere in the world and also "condemned him to hell" for reportedly committing haram (sins) against the Muslim community. The court based its ruling on the Koran and the Hadith (sayings of Prophet Mohamed).
Although Mubajje might be guilty according to the Koran, the ruling and sentence are problematic and illegal for the simple reason that there are no Sharia courts in Uganda.
The problem of alternative jurisdictions in Uganda is an outstanding one. We still have three systems of laws: Common Law (modelled on the British system), Customary Law, and Muhammedan Law - meaning Islamic law. But the latter two are applied only in civil suits, especially in the area of marriage and inheritance. Even if there were Sharia courts in Uganda, how would the Islamic Cultural Association address the principle of 'double jeopardy' (trying a person twice for the same offence)?
In certain jurisdictions like the US there have been civil suits even after someone (for example O. J. Simpson) has won a criminal case. But in Mubajje's case, it is the same civil case.
The court in Uganda based its decision not only on the law, but also on evidence. What other evidence will the Sharia courts be looking for? Since Uganda is a secular state and Mubajje was acquitted by a secular court, the most sensible course of action by the aggrieved parties is to appeal against the magistrate's ruling.
That option is open through the High Court to the Supreme Court. If Mubajje's 'sentence' is to be considered legitimate, what is there to stop the 'Sharia court' from ordering that a Ugandan's hand be chopped off or an adulterer be stoned to death?
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