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Waqfs in East Africa J. N. D. Anderson Journal of African Law / Volume 3 / Issue 03 / September 1959, pp 152 164 DOI: 10.1017/S0021855300000280, Published online: 28 July 2009
Link to this article: http://journals.cambridge.org/ abstract_S0021855300000280 How to cite this article: J. N. D. Anderson (1959). Waqfs in East Africa. Journal of African Law, 3, pp 152164 doi:10.1017/S0021855300000280 Request Permissions : Click here
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ARTICLES WAQFS IN EAST AFRICA BY J. N. D. ANDERSON
There can be no doubt that British courts have, in general, built up a most impressive record by, and today enjoy a well-deserved reputation for, their sympathetic and intelligent application of those religious or customary laws, evolved by peoples of a culture and background very different from their own, which they have so often been called upon to administer. But there can be no branch of the law in which Muslim peoples who are subject to the jurisdiction of British courts, or courts trained in English traditions, have been made to suffer so many frustrations—by the judicial infusion of alien ideas, by misinterpretation or basic ignorance of the Islamic doctrines, and even by what can only be termed a rigidity of mind which ill-accords with this illustrious tradition—as in the law of voaqf. In India, Aden, Zanzibar and Kenya the same unhappy story has been repeated, under (as it must, with the utmost respect, be regretfully acknowledged) the all-pervading influence of two decisions of the Judicial Committee which provide almost unique examples of how even that august body may nod when applying a law which is quite foreign to their Lordships' training. This is not to suggest, for one moment, that the Islamic law of tvaqf, as it has been developed down the centuries, is suitable for unrestricted application in the conditions of the modern world. That this is not the case is sufficiently proved by the radical reforms in the waqf system which have been introduced, in recent years, in Egypt, Syria, Lebanon and many other countries. But reforms introduced by deliberate legislation are one thing, and reforms by the misinterpretation of classical texts, or by the misapplication of legislative enactments which were themselves introduced rather to reinstate the Islamic system than to reform it, are emphatically another. This unfortunate process began in India in the last century. In a series of cases, among which the Privy Council decision in Abul Fata v. Russomqy (22 I .A. 76) may be regarded as the apex, waqfs which consisted primarily of some form of family perpetuity were invalidated by the courts. This rested on a series of misunderstandings of the Islamic law, but notably the following: 1. Their Lordships asked, in Abul Fata's case, " how it comes about that by the general law of Islam, at least as known in India, simple gifts by a private person to remote unborn generations of descendants, successions, that is, of inalienable lifeinterests, are forbidden; and whether it is to be taken that the very same dispositions, which are illegal when made by ordinary words of gift, 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. To those questions no answer was given or attempted, nor can their Lordships see any." 152
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But the principle that a disposition which is illegal if attempted in one way may be perfectly valid if effected in another way—which seemed so manifestly untenable to their Lordships—is by no means limited in the authoritative texts to the law of waqf, but runs right through the Islamic law as a whole. This is evidenced by innumerable examples in the classical texts themselves of the decisive importance of the way in which this transaction or that purported to be made. 1 2. Their Lordships invalidated the waqf in question on the ground that the High Court of Calcutta had " rightly decided that there is no substantial gift to the poor. A gift may be illusory whether from its small amount or from its uncertainty and remoteness. If a man were to settle a crore of rupees, and provide ten for the poor, that would be at once recognised as illusory. It is equally illusory to make a provision for the poor under which they are not entided to receive a rupee till after the total extinction of a family; possibly not for hundreds of years; possibly not until the property had vanished away under the wasting agencies of litigation or malfeasance or misfortune; certainly not as long as there exists on the earth one of those objects whom the donors really cared to maintain in a high position. Their Lordships agree that the poor have been put into this setdement merely to give it a colour of piety, and so to legalise arrangements meant to serve for the aggrandizement of a family." These are noble and, in a very real sense, discerning words, but they are based on a fundamental misconception of the relevant principles. It is true that, among eminent Hanafi jurists, Muhammad ibn al-Hasan al-Shaybani insisted that even a family waqf could not validly be created without an explicit mention of the poor, or some other charity of a permanent character, as its ultimate beneficiary; but his insistence on this was emphatically not in order to import a charitable element which would not otherwise exist, but rather to ensure an element of perpetuity which might otherwise be lacking. Abu Yiisuf, indeed, made no such stipulation, but maintained that the very use of the term waqf must be regarded as a sufficient implication of such perpetuity (in the absence, that is, of any provision inconsistent with this presumption) and as an adequate indication that the waqf income should be devoted to die poor when all other beneficiaries became extinct (just as, in the Hanafi law, the income of a waqf is automatically paid to the poor during any year in which named beneficiaries are, for some reason, temporarily lacking). And while one Shafi'i view apparently agreed with that of al-Shaybani, the other (and much more weighty) Shafi'i opinion not only made no such stipulation, but also expressly provided how the income of the waqf should in fact be expended after the named
1 To say nothing of the books of " Solutions by way of legal devices " {almakhdrij fi'l-hiyal) produced by the jurists themselves from a very early date. Cf. J.Schacht, in Law in the Middle East, 78-80; and ÂŁ . Tyan. Le Notarial tt la rlgimede la preuve par icrit.
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beneficiaries had become extinct. This, too, is the dominant view in the Hanbali school.2 It is deeply significant, moreover, that the reason explicitly given for the other (and less authentic) opinion in the Shafi'I school, i.e. that a waqf which does not include any ultimate dedication to the poor is invalid, is that " a waqf must be in perpetuity, so if its beneficiaries fail it becomes a waqf for an unknown object; and this is not valid, in just the same way as though the first beneficiary had been unknown ". s The fact is that the classical texts make no distinction whatever between what are now termed " charitable waqfs " on the one hand and " family waqfs " on the other. Both, alike, were regarded as perfectly valid. This was partly, no doubt, because the bestowal of largesse upon a relative was regarded—according to more than one well-known tradition attributed to the Prophet of Islam—as " the best of alms " ; partly because the jurists of Islam commonly accepted a man's intention to make a sadaqa (or gift " for the sake of God ") even to the rich, or to make a waqf of any kind as a qurba (or a means of approach to God), at their face value, without enquiring as to their detailed provisions;4 and partly because the basic characteristic of a waqf, according to the doctrine of all four Sunni schools, was the immobilisation of the capital property concerned, and very considerable latitude was allowed with regard
1 Cf. the explicit statement of Ibn Hajar al-Haytami (who is accepted throughout East Africa as the decisive authority in the Shafi'J school) in his Tuhfa, VI, p. 253: " Should he say' I have made a waqf in favour of my children' or ' in favour of Zayd and his descendants', or some similar object which lacks perpetuity, and should he say no more than this, then the more authentic view is that the waqf is valid. This is because its purpose is an approach to God and perpetuity; so, if its first beneficiaries are indicated, it can easily be perpetuated in favour of some good purpose. If, therefore, the named beneficiaries become extinct . . . the more authentic view is that it should continue as a waqf, since perpetuity is of the nature of a waqf.. .. The more authentic view, then, is that the income should be paid to the nearest relative (not nearest heir) of the founder.. . . Regard should be had to the poor, not the rich, among them. . . . But should none of his relatives be available, or should they all be rich . . . then the Imam should expend the income in the interests of the Muslim community. . . . Others, again, say it should be devoted to the poor, or to the poor of the town where the property is situated." Cf. also Zayn al-Din al-Malibari in Fath al-Mu'in, p. 91: " If he says ' I have made this waqf in favour of my children ' and mentions no one to follow them, or ' in favour of Zayd and then his descendants ', or some similar object which lacks perpetuity, the income should be paid to the poor person nearest related to the founder. . . . This is because charity to relatives has priority over other charity, and the best charity of all is to the nearest of kin and the greatest in need...." Failing any such, " the Imam should expend the income in the interests of the Muslim community. Many, on the other hand, say it should be paid to the poor and indigent of the town where the property is situated. . . . But the waqfvnW not in any case be vitiated, but will be maintained ". Cf. also Muhammad b. Ahmad al-Shirbini in Mughni al-Muhtaj, III, pp. 355-6.
• Cf. Ibn Qudama, al-Mughni, V, p. 567-8. ' al-Mughni, loc. cit. * The best example of this is the fact that the overwhelming majority of Muslim jurists allowed the validity of a waqf which was designed completely to circumvent the Islamic law of intestate succession.
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to the income —as is evidenced by the fact that Abu Yusuf among the Hanafis allowed the founder to reserve the entire income for himself during his lifetime; that this is also the dominant view in the Hanbali and Ibadi schools; and that even the Shafi'Is, who do not allow any explicit reservation to a founder's own use, permit him to enjoy, where suitable, income which he has reserved for " the eldest son of my father " or " the imam of such and such a mosque ".* That the Indian case law on this subject was based on a fundamental misunderstanding of the relevant texts, and that it had resulted in a complete reversal of the Hanafi law (to say nothing of that of the other schools), has been almost universally recognised,8 and was, indeed, the major reason for the promulgation of the Mussulman Wakf Validating Act, 1913. The very preamble to the Act recites t h a t " 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 " ; and 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 recognised by the Mussulman law as a religious, pious or charitable purpose of a permanent character ". Section 4, moreover, explicitly declares that no such waqfshall 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, children or descendants of the person creating 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 phraseology in places leaves a good deal to be desired, although the impression is almost inescapable that the courts have often made difficulties where they did not exist. It was understandable, perhaps, that uncertainty should arise as to whether the mere use of the word waqf must be held to constitute an implicit reservation for a " charitable purpose of a permanent character "—although this was indubitably Abu Yiisuf's view, whereas al-Shaybani insisted that the reservation must be expressed, not implied. It was also, 1
Cf. the definition of a waqf given in Hamilton's Hedaya (and edition, by
Grady, London, 1870): " According to the two disciples, Wakf signifies the appropriation of a particular article, in such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished, and it becomes the property of God by the advantage of it resulting to his creatures." (p. 231). (The italics are mine.) ' This is, of course, over and above the fact that all Muslim jurists allow the founder to benefit as one of a class—e.g. the poor, travellers, or the sick. * Except, it would seem, by their Lordships themselves. See below, in Fatuma's case.
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no doubt, unfortunate that the Act referred only to waqfs made for the benefit of the " family, children and descendants " of the founder, rather than the family, children and descendants of anyone whom he might care to designate—although it must be admitted that such designation to a stranger in practice seldom occurs. It is possible, of course, that the " charitable " nature of such a waqf would not, in any case, be disputed, although it seems overwhelmingly probable that it would be disallowed by the courts as offending against the rules they have considered to be applicable. But, however this may be, the confusion and controversy which have arisen regarding the meaning to be given to the phrase " maintenance and support "l appears indefensible. Even on the dictionary meaning of these terms, " maintenance " (according to the Oxford English Dictionary) is the state of being maintained, and " to maintain " means, inter alia " to support one's state of life by expenditure", while " support" means " to strengthen the position of a person by one's assistance ", to " bear the expense of". On this basis it would seem to be exclusively within the discretion of the founder of the waqf to allow the beneficiaries any such sum as he may desire, without any question whatever of a waqf being invalidated by the mere fact that he had provided that the " income should be paid " to such beneficiary without specifying that this income must only be used to meet the cost of his accommodation, food, clothing, etcetera. It is beyond dispute that the authoritative Islamic texts make no such distinction, but allow a beneficiary to benefit from the income of a waqf in any way in which the founder may specify;2 and it seems extremely unlikely that the legislature intended to put any restricted or precise meaning on the phrase " maintenance and support ". It is noteworthy, moreover, that the Act explicitly allows a reservation by the founder for the " payment of his debts ", presumably whatever their nature or extent; so it would seem artificial in the extreme to maintain that he may not reserve the income of the waqf for himself, during his lifetime, without further specification—as, indeed, the doctrine of Abu Yusuf the Hanafi (and, indeed, the dominant Hanbali doctrine) explicitly allows; and it would appear exceedingly unfortunate to give a much more restricted meaning to what a founder may allot to his descendants than to what he may reserve to himself, especially when the classical texts are unanimous in giving an unrestricted validity to the former, but are much more hesitant and divided regarding the latter.3 It is undeniable, however, that there has been a marked difference of opinion in a number of cases as to the meaning of these words.4 Whatever else may be said on this subject, therefore, it would seem 1 Cf. among others, Abdul Karim Adenwalla v. Rahimbai and Others (33 A.I.R. (1946) Bombay 342);Faqir Mohammad v. AbdaKhatoonamd Others (39 A.I.R. (1952) Allahabad 127); Mohd. Sabir Ali v. Tahir AH (44 A.I.R. (1957) Allahabad 100); and Rashidunissa v. Ata Rasool (45 A.I.R. (1958) Allahabad 67). 1 Cf. the definition of waqf in the Hedaya, at p. 155 above. • Nor, for that matter, am I aware that a court will ever enquire into how, precisely, a person may spend the money allotted under a maintenance order. 4 See the cases cited above.
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that the phrase must be regarded as ambiguous in the eyes of the courts; and that the rule in Heydon's Case1 should, therefore, be applied: viz. to ascertain what the law was before the Act was passed, what was the mischief or defect for which the law had not provided, what remedy was appointed for it, and what was the true reason for the remedy; and then to put such construction on the words as will suppress the mischief and advance the remedy. To this, as it seems to me, there can be only one answer: that the Act was introduced to allow Muslims—in accordance with their law, but contrary to judicial decisions—to devote the income from their waqfs to their descendants, generation after generation, in such manner as they saw fit, and not within the artificial confines of a definition of the terms " maintenance and support" which is wholly foreign to their legal texts. But the unhappy story of judicial misinterpretation of the Islamic authorities has by no means been confined to the Indian subcontinent. On the contrary, British courts in Aden, Zanzibar and Kenya, successively, have regarded themselves as bound by the case law of India prior to the Mussulman Wakf Validating Act—and, in particular, by the decision of the Privy Council in Abul Fata's case—and have thereby necessitated the promulgation of legislation along the lines of the Validating Act in each of these territories. It was, perhaps, inevitable that the principle of stare decisis should be applied, even in such unfortunate circumstances as these (where the authority, however august, is demonstrably inconsistent with the law it professes to apply and contrary to the desires of the community concerned), were it not possible to distinguish the circumstances. But this was, in fact, eminently possible. Most unfortunate of all, the Judicial Committee itself, in Fatuma binti Mohamed v. Mohamed bin Salim Bakhshuwen* handed down what must be regarded, with the greatest respect, as one of the most regrettable judgments their Lordships have ever delivered. For they not only refused to take the opportunity to amend their judgment in Abul Fata's case, on the ground that that judgment itself had been " inevitable " in that it followed a " trend ofjudicial opinion " which at that time was already " firmly set in favour of the view that such wakfs were invalid " ; but they even argued that they were " not satisfied " of the truth of, the general proposition t h a t " in parts of the world outside India where Mohamedan law obtains, whether in Africa or in Asia, such wakfs as these are 1 (1584), 3 Rep. 7b—per Lord Coke. *8 [1952] A.C.I. Whereas Ameer Ali correctly asserts that " From the promulgation of Islam up to the present day there has been an absolute consensus of opinion regarding the validity of wakfs on one's children, kindred and neighbours. A wakf is a permanent benefaction for the good of God's creatures; the wakifma.y bestow the usufruct, but not the corpus, upon whomsoever he chooses and in whatever way he likes, only it must endure for ever. If he bestows the usufruct in the first instance upon those whose maintenance is obligatory on him, or if he gives it to his descendants so long as they exist... it b a pious a c t . . . . And this is insisted on so strongly that when a wakf is made for the indigent or poor generally, the proceeds of the endowment are applied first to relieve the wants of the endower s children and descendants and kindred " Mohammedan Law, Vol. 1 (Fourth Ed. Calcutta, 1912) pp. 315, 6. Cf. also his copious references to the Arabic authorities in pp. 281-379 of this work.
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considered to be valid " , 3 and maintained that, even if this were so, " that would not be such fresh light as would justify the Board in reversing its previous decision " . In addition, they committed themselves to the unfortunate opinion that there was no difference between the Hanafi and Shafi'i law in regard to waqfs—not surprisingly, perhaps, in view of the fact that the relevant differences were not adequately brought to their Lordships' attention—and continued: " On the contrary, it has not been suggested that, apart from the differences existing among the Shafi, Hanafi and other sects . . . Mohamedan law is not the same in East Africa as in India. The appellants have themselves relied on its universality and invoke the text of the Koran and the writings of learned commentators who expounded the law not of East Africa or any part of it but of the whole Muslim world." But this statement of fact emphasises in the strongest terms the universality of the Islamic law of the schools and the classical texts, a law solidly contrary to the decision which their Lordships ultimately reached; it makes no reference whatever to any differences of application contrary to those texts or, in particular, to the fact that the law now applied among Muslims in India and Pakistan is customarily (and appropriately) referred to as " Anglo-Muhammadan law " , precisely in order to emphasise the vital influence which English legal concepts and English rules of evidence and procedure—to say nothing of misinterpretations of the ancient texts—have exercised over its development. This fact had been aptly expressed by HAMILTON, J., in an early Kenya case1 (on which their Lordships commented unfavourably) when he remarked that the law of waqf " as originally understood by the Commentators and Mahomedan jurists has in India since the commencement of the latter half of the last century been profoundly modified by the decisions of the Privy Council. A study of the question shows that while the 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". Just so: but the law so developed, however reasonable and beneficial it may be, can scarcely lay any claim to " universality " ; and it seems unnecessary, as well as unfortunate, that it should be held applicable in the Protectorate of Kenya,2 where it is not only contrary to the classical Shafi'i doctrine which prevails, except among the Ibadis, throughout the dominions of the Sultan of Zanzibar, but also to local custom and practice.3 The result was that yet again legislation had to be introduced in order to undo the harm which had been done by the courts. This time, moreover, a genuine attempt seems to have been made, in 1 2
Talibu bin Mwijaka v. Executors ofSiwa Haji, 2 E.A.L.R. 33. Which is, of course, regarded juridically as part of the dominions of the Sultan of Zanzibar, although administered in practice as part of the Colony of Kenya. s For a more detailed discussion and criticism of this judgment, see my Islamic Law in Africa (London, 1954), pp. 340-2.
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drafting the relevant Ordinance, to improve on the wording of the Indian model and, in particular, to make more explicit provision for Shafi'i doctrine. Thus section 2 is careful to define a " wakf Ahli " as a " wakf made for the benefit of an individual or family " in terms which would cover the family of another just as much as the family of the founder himself, while the reference in section 4 to a waqf made " for the maintenance and support, either wholly or partly, of any person including2 the family, children, descendants or kindred of the maker " was similarly phrased in a way that did not imply 3any restriction to his family, children, descendants or kindred alone. Yet again, the clause about the ultimate benefit in the property being reserved for " a religious, pious or charitable purpose of a permanent character " includes the express provision: " Provided that the absence of any reservation of the ultimate benefit in property the subject of a wakf for . . . a religious pious or charitable purpose of a permanent character shall not invalidate the wakf if the personal law of the maker of the wakf does not require such reservation."
This proviso—it seems clear—was drafted with Shafi'i principles particularly in mind. Even so, it has come about that the courts have again frustrated the expectations of the Muslim community, in at least three respects. 1. They have once more failed to recognise the differences between the Shafi'i law of waqf and that of the Hanafi jurists, in spite of the several ways in which the Kenya Wakf Commissioners Ordinance was so worded—in contrast to the Indian Wakf Validating Act—as to make particular provision for these differences. In Abdulla bin Said bin Hassan v. Halima binti Said bin Hassan and
Fatuma binti Said bin Hassan,* for example, the question at issue was the validity of a waqf which " contained no specific gift over to the poor or to any other purpose upon the extinction of the descendants of the Settlor ". The argument turned almost exclusively on the proper interpretation of section 4 (1) (b) (ii) of the Wakf Commissioners Ordinance, which requires that " the ultimate benefit" in the waqf should be " expressly, or, in any case in which the personal law of the person making the wakf so permits, impliedly, reserved for the poor or for any other purpose recognised by Muslim law as a religious, pious or charitable purpose of a permanent character "; and learned counsel apparently argued (correctly, it is respectfully submitted) that in Shafi'i law the use of the word " waqf" in itself implies such reservation, but based his argument on the opinion of the Hanafi jurist Abu Yusuf (inappropriately, it is respectfully admitted—for although the Shafi'Is happen partly to share Abu Yusuf's view in this particular point they do not agree with him in other relevant particulars and never specifically base thenlaw on his opinions). Not only so, but the learned Judge in his judgment reverted once and again to this same point, and argued 1
The Wakf Commissioners Ordinance, 1951. * The italics are mine. s But see below, p. 162 note. (1). • (1957), E.A. 688.
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as to whether " the opinions of Abu Yusuf " were to be " preferred to those of the other jurists which have hitherto been accepted by the Court of Appeal for Eastern Africa and the Privy Council". But this was almost wholly irrelevant to the consideration of a Shafi'I waqf. It is true that Mr. Justice Mayers did, at one point in his judgment, refer to Ameer Ali's summary of the specifically Shafi'I law of waqf and quote the sentence:1 "The usufruct of the wakf reverts to the nearest relative of the founder when the purpose fails and the holders nominated by him have become extinct." But he used this quotation, not to show that in the Shafi'I school there is no necessity whatever for any ultimate reservation for a purpose which cannot become extinct, but as "wholly inconsistent with the view that the term wakf must necessarily, itself, imply an ultimate gift to the poor." Yet in Shafi'I law the income would, in fact, be devoted to the poor should no relative of the founder be available; and many Shafi'I authorities, as we have seen, specify that after the extinction of any named beneficiaries the income of the waqf should initially be paid to the nearest poor relative of the founder.2 From this it is clear that the requirements of a valid waqf are sufficiently fulfilled, in the Shafi'I doctrine, without any ultimate reservation of the income whether for the poor, or for some other purpose of a nature which cannot fail, or even for successive generations of named beneficiaries: but that when named beneficiaries do in fact fail the waqfWiW continue, and the income be paid either to the nearest poor relative of the founder, or the nearest relative of the founder, or—should none such be available—to the poor of the locality, or to the poor in general. No reference whatever was made in this judgment, however, to the explicit proviso which follows the words quoted above from section 4(1) (b) (ii) of the Wakf Commissioners Ordinance, that the " absence of any reservation of the ultimate benefit in property the subject of a wakf for the poor or any other purpose recognised by Muslim law as a religious, pious or charitable purpose of a permanent character shall not invalidate the wakf if the personal law of the maker of the wakf does not require any such reservation."3 It was, in reality, this proviso, which was—it seems clear—inserted in the Ordinance with the precise purpose of covering the Shafi'I doctrine in this matter, which should (with respect) have been under discussion, not the preceding phrase regarding express or implied reservation for a charitable purpose of a permanent character; but the learned Judge was presumably inhibited from any recognition of this basic point by various dicta in the Court of Appeal for Eastern Africa4 in Fatuma's case to the effect that " there is no difference " in the law of waqf between the Shafi'I and rianafi schools. But this affirmation, with all respect, is gravely inaccurate. 1 Mohammedan Law. Vol. I (Fourth Edition: Calcutta, 1912), p. 545. • Cf. p. 154 above. * Cf. p. 159 above. 4 16E.A.C.A. 11.
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As a result, Lord Simonds remarked in the subsequent judgment in the same case by the Privy Council: " It is plain from the judgments of the courts below and from the notes of the arguments which appear on the record that the case proceeded on the footing that no relevant distinction on this point could be made between the Shafi and Hanafi law. This might not have been fatal if it had been shown to their Lordships' satisfaction that there was such a distinction which had for some reason been overlooked." —as was, in fact, the case. Unhappily, he went on: " But this was not done and, as their Lordships think, could not have been done " —for the last clause, with the utmost respect, runs completely contrary to the facts.1 2. They have indulged in discussions as to whether a waqf would be invalidated if " the ultimate gift to charity was illusory because it was postponed not merely until after the failure of the settlor's descendants but until the failure of his poor relatives". This contention was discussed, obiter, in the judgment of Mr. Justice
Mayer in Halima binti Said and Another v. Sheikha binti Ali and Another (Civil Case No. 9 of 1957 before the Supreme Court of Kenya at Mombasa); and the argument turned on the question whether the term " poor relatives " was, or was not, wider than the term " kindred " as used in the Kenya Wakf Commissioners Ordinance. Happily, the learned Judge came to the conclusion that the term " relative " can properly be regarded as no wider than the term " kinsman " ; but he felt compelled to add: " I confess, however, to considerable difficulty in arriving at a conclusion as to whether the limitation of the category of relatives who are to benefit to the relatives of the settlor may not render the gift too uncertain to take effect.' The relatives of the settlor might, should it ever have become necessary to determine who fell within that class, have run to many thousands of persons. Of those so many might in fact have been necessitous as to render the gift wholly illusory." With respect, it is difficult to see, however, how the term " poor relatives " can be held to be wider than the term " poor " without any such qualification—quite apart from the fact that numerous jurists assert that, in all cases where the income of a waqf is devoted to the poor, needy relatives of the founder should have the priority; and that many Shafi'i jurists rule that, wherever named beneficiaries become extinct, the income should be paid to the nearest poor relatives of the founder. In addition, the Kenya Ordinance explicitly provides for 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
Cf. pp. 153 f. and 159 f. * In spite of the fact that such waqfs are recognised repeatedly in the Islamic texts. Cf. Ameer Ali, op. cit., p. 370. * Sect. 4 ( 1 ) (a). The italics are mine. 2
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so presumably the poor relatives concerned could be classified under " any person ", should the term " kindred " be regarded as too narrow.1 3. They have followed the Indian precedent of Abdul Karim v. Rahimbai (33 A.I.R. (1946) Bombay 342) in giving the words " maintenance and support " in the Wakf Commissioners Ordinance a narrow and restricted meaning, and regarding a waqf which simply provides for its income, in whole or in part, to be paid to a named beneficiary or for his use or benefit, without any such restriction, as outside the scope of the Ordinance—as, for example, in Halima binti Said and Another v. Sheikha binti Ali and Another, as cited above, and also an obiter dictum in Abdulla bin Said v. Halima binti Said, as cited above. In the Court of Appeal for Eastern Africa, on appeal from the first of these cases {Sheikha binti Ali and Another v. Halima binti Said and Another—Civil Appeal No. 69 of 1958), Briggs, V.-P., agreed with the learned trial Judge that Abdul Karim's case was " directly in point, correct in principle, and should be followed in this country ". But this runs directly counter to the weight of Indian precedents as they now stand.2 When, moreover, the learned trial Judge remarked that " the courts are not concerned in construing a statute to determine what the legislature probably meant by the words which they used, but solely to determine what was the intention of the legislature as expressed by those words when construed in accordance with established principles of statutory construction " he was, presumably, referring to the rule in Heydon's Case as summarised above; and when he went on: " Nor do I consider that expressions of opinion by classical Muslim jurists in support of the view that it is immaterial whether the words employed in a Wakf are for the ' maintenance and support' or for the ' use and benefit' of the beneficiary are of any assistance in construing a statute of this Colony ", he seems, with respect, to have overlooked not only the repeated references in the relevant Ordinance to " Muslim law " but also the basic principles of construction which Heydon's Case enunciates. It may be true, as Worley, V.-P., remarked in Amina binti Abdulla v. Sheha binti Salim3, that the fact that the Wakf Commissioners Ordinance " was specially enacted to . . . bring the law back into closer harmony with general Mohammedan jurisprudence " did not provide evidence for the assertion that " the legislature intended to, or did, restore the pure Mohammedan law of Arabia (sic) in its full force " ; but that is not, surely, to deny the relevance of the unanimous concurrence of all Muslim jurists 1 This suggestion runs counter, of course, to the decision of WORLEY, V.P., in Amina binti Abdulla v. Sheha binti Salim (see below) that the term " any person " in this Ordinance must be construed as " any living person "; for this decision seems, with respect, to represent yet another example of a refusal to take even "general Mohammedan jurisprudence " (to quote his own words) into consideration in attempting to construe a sentence (which, on his view, can certainly not be regarded as other than ambiguous) in a statute which was introduced to remedy some of the distortions in the Muhammadan Law which had been introduced by previous judicial misinterpretations. 1 See above, p. 156. * ('954)> 21 E.A.C.A. at p. 13.
Vol. 3. No. 3
Waqfs in East Africa
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(which allows the reservation of the income of a waqf to any specified beneficiaries—except, in the view of some jurists, to the founder himself—quite regardless of whether this is to be spent on any such restricted purposes as some courts wish to give to the terms of the Ordinance) in construing such an obviously equivocal phrase as " maintenance and support". This seems closer to " general Mohammedan jurisprudence " than " the pure law of Arabia " (the meaning of which is, in any case, obscure). In view of the above, there is little wonder in the fact that a Petition1 has recently been addressed to the Secretary of State for the Colonies by a number of Muslims in East Africa—of the Arab, Twelve Tribes, Baluchi, Somali, Comoro Islander and Malagasy communities—complaining that family waqfs in Kenya, Zanzibar and Aden which were perfectly valid under Islamic law were " formerly set aside by the courts as they offended the English legal concepts against tying up property in perpetuity in families " ; but although, " in consequence of representations made by the Muslim Communities of the three territories legislation similar to the Mussulman Wakf Validating Act, 1913, of British India was passed in Kenya, Zanzibar and Aden to validate such Wakfs ", yet " the courts in East Africa have refused to countenance the legislation in the spirit with which it was introduced and have consistently attempted to reduce the scope and utility of the Wakf Validating Acts ". In Civil Appeal No. 69 of 1958, for instance, the " East African Court of Appeal has refused to look at such Wakfs from the point of view of Mahomedan Law and to interpret the law validating such Wakfe consistently with the principles of Mahomedan Law " ; and the repercussions of this decision " are so wide that practically all such Wakfs in the three territories viz. Aden, Zanzibar and Kenya will be invalidated ". As a result " the legislation in the three territories which was introduced in response to the demand from Muslim public opinion has for all practical purposes thus been removed from the Statute book ". Not unnaturally the petitioners " cannot appreciate why Mahomedan Law cannot be applied to such Wakfs when Muslim public opinion regards such Wakfs as valid and when Mahomedan Law is applied to Muslims in matters such a marriage, inheritance, etc. Any attempt to test the validity of such Wakfs or to construe the Wakf validating Acts in accordance with principles other than those of Mahomedan Law is bound to result in injustice and render such Wakfs and the Acts validating them meaningless, because such Wakfs are the creation of Mahomedan Law and it is only in Mahomedan Law that their meaning can be found ". As a consequence the signatories " feel that the wishes and views of the Muslim Community to which they belong " have been " totally ignored in the administration of justice, when legislation which was expressly brought to validate such wakfs has been turned into a machinery for invalidating them ". It would surely be infinitely preferable to introduce legislation explicitly prohibiting the creation of family perpetuities through the 1
Dated 2nd November, 1958.
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medium of a waqf,1 as has been done in more than one Middle Eastern country, than to exasperate and bewilder the Muslim communities concerned by invalidating some of these waqfs, but not others, either through a misapplication of English principles or through giving a rigid and doctrinaire interpretation to Ordinances which were introduced to remedy similarly unhappy judicial decisions of the past. 1 E.g. by limiting the duration of such family waqfs to a specified number of generations.