Developments in Islamic family law: implications for gender equality and freedom of religion in Kenya

Abstract

This paper discusses the major statutory and case law changes (positive and negative) which impacted the practice of Islamic family law (IFL) in the past 10 years. The beneficial modifications included the strong acknowledgement of IFL tenets in the Marriage Act, the Matrimonial Property Act and the Children Act. But this past decade also witnessed the apparent alteration of Islamic Inheritance Law through judicial interpretation. Similarly, a wrong interpretation of the principle of equality in the constitution and the Children Act have led some Muslim men to contest their wives’ claims for child custody on account of the latter’s inability to provide for the children. Through the lenses of multiculturalism, Muslim feminism and global critical race feminism, a purposive reading of the constitution and the literal reading of the statutes, this paper appraises these legal developments through the prism of the freedom of religion and gender equality.