Title of Assignment A Study Examining Muslim family law court decisions (formal and informal courts) in relation to human rights observance in Uganda.
Section Legal Department
Reporting Location MCJL Head Offices.
Duration 30 Working Days

 

1.0 INTRODUCTION

Muslim Centre for Justice and Law (MCJL) envisions, “A Ugandan society that upholds universal faith-based principles in ensuring equitable access to justice, human rights and observance of the law”. MCJL’s mission is to facilitate observance of human rights, justice, peace, and good governance through promotion of public interest, civil liberties, and obligations under the law.

MCJL intends to work with the JLOS secretariat to conduct a research study to examine the Muslim family law court decisions (formal and informal courts) in relation to human rights observance within the legal service delivery frame-work in the Ugandan Justice system. Therefore MCJL seeks to hire consultancy services of a competent team of individuals or firm who will ably undertake the assignment.

2.0 BACKGROUND AND JUSTIFICATION FOR THE ASSIGNMENT

2.1 BACKGROUND

The Muslim Family law has been noted to have many challenges leading to conflict with statutory law, and particularly discriminatory on the grounds of sex and religion. In a research study conducted by MCJL on Islam and inheritance: A research study of the Muslim traditions versus the Ugandan legal regime, 2017, it established that Qadhi court adjudicators divide estates of the deceased persons without letters of administration or probate, women do not acquire registrable proprietary interests in property such as land. They only have access to user rights over the land but cannot own the same. Children born out of wedlock, adopted children, children who have converted from Islam even as adults, among others cannot inherit. Other practices include marrying off children as soon as they hit puberty and not when they become adults at 18.  In relation to divorce, the man can divorce the woman without giving any grounds while the woman must give grounds for divorce. Further still, if the woman initiates divorce proceedings, she is not entitled to anything and must return the gift that she received upon marriage (Mahr). Muslim Family law is also seemingly gender blind compounding the position of the woman in the family and society at large. When the poor and particularly women experience high magnitudes of discrimination in accessing justice, while at the same time they cannot support themselves to overcome the challenges, it is very difficult for them to support themselves economically which leads to a vicious cycle of poverty hindering economic development.  Further still, Gender Based Violence (GBV) is another area that MCJL in collaboration with CEDOVIP will pay particular attention to because the Muslim families are polygamous in nature and the vulnerability of women in Islamic families.

 

The courts charged with implementing the Muslim Family Law as established by the Constitution under Article 129(1) (d) are the Qadhi Courts. The Sheikhs that administer the Muslim Family Law have limited knowledge of the statutory laws and also limited interaction with the national and international human rights norms and principles that have now been accepted as basic to all human beings irrespective of sex or religious background. MCJL held meetings with the religious leaders in Mayuge and Bugiri districts where the leaders stated that they only apply Muslim family law while adjudicating upon the cases mainly because it’s all they know and have inadequate knowledge on the statutory laws and the human rights standards. The bulk of them continue to handle cases beyond their jurisdiction, not to mention their weak collaboration with the formal justice system. Some of the decisions these adjudicators make greatly affect or violate the rights of women, widows, orphans and children.

Further still, there is no clear linkage between the formal justice system and the Muslim Family legal regime which creates challenges including;  lack of proper supervision of the practices of the Qadhi courts, there is no agreed practice when it comes to how family related conflicts are resolved, lack of an appellate structure into the formal system, lack of an execution mechanism of the decisions from the Qadhi courts  and  failure of the beneficiaries of estates distributed  to acquire registrable interest. MCJL has handled a number of cases where the Qadhi Court at Uganda Muslim Supreme Council decided gave orders but the man refused or failed to comply yet there is no clear procedure on how to execute such orders or appeal to a formal Court.  MCJL also faces a challenge with the formal courts where some magistrates handle Muslim family matters but others dismiss them or partly decide on certain issues like custody, division of matrimonial property and send the parties back to the Qadhi courts. MCJL intends to conduct research on how courts have handled Muslim family law cases in order to get a uniform procedure on how such cases are handled

2.2 JUSTIFICATION

In practice, there are different schools of thought on marriage, divorce and succession. This leaves a number of gaps in the structures, functions and hierarchy in registration of marriages and divorce among which; who is entrusted to solemnize a marriage; who is entrusted to contract a marriage; how is the verification of marriages or divorce for the Muslim community; is separation, divorce and desertion the same; who is accredited to supervise marriage and divorce in the Muslim community in Uganda. Putting in consideration that there is one succession Act and Administrator General’s Act how can Muslim institutions assist on issues that are not in the Mohammedan Act through given precedents like succession, issues to do with children guardianship, Islamic family law versus our statutory laws. Who is mandated to make the Muslim community aware of their legal rights and procedures for recognized marriages and divorce within a structured and co-ordinated system?

Muslim family problems related to marriage, divorce, inheritance, custody and guardianship are on a daily occurrence within the Muslim community.  Some of these problems are first solved within the family setup, and then go to village Imam, Local councilor and then go up to the Qadhis Courts at Uganda Muslim Supreme Council for arbitration or Islamic legal ruling.   At times such problems are channeled through Police through the Family Protection Unit and finally end up in civil courts.  The sheer magnitude of the problem is attributed due to lack of understanding of the basic nature of the Muslim personal law.  In addition, lack of effective regulations to guide local and national service delivery frame-works in the Muslim Justice System in response by law enforcement officials in such matters is also attributed by limited understanding of the problem from religious and legal perspective.

 

The current question is that will the research study cause any change in Shari’ah law? Certainly not! It will only help to influence practices within the Islamic Justice System in strictly keeping with the Islamic laws as formulated by various schools of Islamic jurisprudence. And it is of course not a first attempt but in the past too such attempts have been made.

In regard to the above, MCJL seeks to identify and engage the services of a consultant to conduct a study on Islamic family law and human rights in Uganda in order to address the current gaps in the policy, legal and practices that can ably influence local and national service delivery frame-works in both the National and Muslim Justice system.

 

3.0 OBJECTIVES OF THE ASSIGNMENT

 

3.1 OVERALL OBJECTIVE

The overall objective of the consultancy is aimed at “Examining Muslim family law court decisions (formal and informal courts) in relation to human rights observance in Uganda.”

 

3.2 SPECIFIC OBJECTIVES

Specifically, the research is intended to:-

(1) To investigate how the rights of Muslim women at the celebration, during marriage and upon divorce reconcile with Islamic practices under Article 31(1) of the Constitution[1]and decided cases.

(2) To examine how the property rights of Muslim women at intestate and testate succession bridge the gap between Islamic practices and the succession Act.

(3) To assess how the courts in Uganda have handled Muslim family related issues.

 

KEY RESULT AREA: The research study will be useful in influencing[2]Policy, Legal and Practice Change at national level.

 

4.0 SCOPE OF WORK

In consideration of the background and objectives of the assignment, requires an experienced consultant will be required to carry out a national study that should help to influence practice change, policy and legal reforms.

  • Prepare and share an inception report and work-plan on how to proceed with the assignment.
  • Review relevant cases and documents within Uganda’s legal frame-work to respond effectively to matters arising out of Muslim Family Law cases.
  • Consult with adjudicators from Islamic Justice Centres, courts of adjudicature and JLOS on the nature of materials needed to develop the required regulations.
  • Conduct primary research and hold relevant visits, interviews and other necessary/relevant engagements with selected stakeholders.
  • Collect key information to support the research study.
  • Compile issues that can inform legal and policy reform at local and national service delivery level in the Muslim Justice System in harmony with the secular legal frame-work in Uganda.
  • Make recommendations for practical actions that can guide local and national service delivery frame-works in the Muslim Justice system on marriages, divorce, inheritance and guardianship.
  • Present the Research report at National stakeholder meetings for validation and Launch.
  • Submit both the final research report to MCJL packaged in not more than 50 pages in hard and soft format.

5.0 THE PROCESS OF EXECUTING THE ASSIGNMENT

The process will be guided by the following considerations:-

  • The strategy, approach and methodology must be consistent in context with the assignment.
  • The coverage and methodology must be practical and user friendly to reflect national character.
  • The content should be coherent, simple and easy to understand.
  • Sources of reference should be clearly indicated.

6.0 EXPECTED OUTPUTS AND DELIVERABLES

  • The consultant shall clearly map out key stakeholders and area of coverage, in a close working relationship with MCJL staff. Among the key considerations must be the Qadhi’s Courts Adjudicators and users from the various Muslim sects, JLOS secretariat, CSOs and Key courts of judicature plus any other centres of Justice like LC I & III while delivering Justice within local and national service delivery frame-works in the Muslim Justice System.
  • Presentation of the draft Study Report at a validation stakeholders’ meeting.
  • Submit the final report which should incorporate comments made during the stakeholders meeting and in excellent English, proof-read and ready for publication.

7.0 MANAGEMENT OF THE ASSIGNMENT

The consultant will work under the direct supervision of the Project Manager at MCJL Head offices, who will also perform the evaluation of the assignment by the contracted consultant. MCJL will regularly communicate with the consultant and provide support to him/her when required.

8.0 REQUIRED QUALIFICATIONS AND WORKING EXPERIENCE:

The consultant should meet the following minimum selection criteria:

  • A Masters degree in law or any other relevant postgraduate qualifications.
  • Previous work experience and in- depth knowledge of Muslim Personal Law.
  • Excellent communication and writing skills.
  • A clear understanding of Uganda’s legal Frame-work in family matters.
  • At least 5 years of relevant professional working experience in research including extensive knowledge and experience in either handling legal matters or teaching law.
  • Good analytical and documentation/report writing skills.
  • Good communication and facilitation skills.
  • Must have a Tax Identification Number (TIN) and proof of compliance with statutory tax obligations.

9.0 SUBMISSION FOR THE ASSIGNMENT

The interested candidate for this contract must submit a written (computer typed) application, a technical and financial proposal; Letter of interest; proposed methodology; A work plan; and a CV outlining the relevant experience that qualifies the candidate to undertake such assignment including contact details and signed by the candidate.

10.0 SELECTION OF THE CONSULTANT

The Quality and Cost Based Selection method (QCBS) will be used in selecting the most suitable consultant for the assignment.

11.0 TERMS OF PAYMENT

The selected consultant or consultancy firm should be ready to comply with the mode of payment in three installments. The first installment will be 30% upon signing of the contract, the second installment will be 40% upon submission of the draft report and the final payment will be 30% upon submission of the final research report. The consultant should be ready to meet 6% deduction charged in form of tax levied on consultancy fees and payable to URA.

 

12.0 RECOURSE

MCJL reserves the right to withhold all or a portion of payment if performance is unsatisfactory, if work/outputs is incomplete, not delivered or for failure to meet deadlines. Performance indicators against which the satisfactory conclusion of this contract will be assessed include: timeliness/quality of submission and responsiveness to MCJL and counterpart feedback.

13.0 INTELECTUAL PROPERTY RIGHT

MCJL shall own all property rights, such as copyright, patents and registered trademarks, on matter directly related to, or derived from, the work carried out through this contract with MCJL.

 

14.0 EXPRESSION OF INTEREST

The Expression of Interest / applications should be submitted to: Head Finance and Administration, MCJL Head Office Basiima House, Plot No. 401/2 Ku Saatu Bwaise opposite Fulex Petrol Station. Bombo Road.

Email; info@mcjl.ug and Copy to: muslimjustice@yahoo.com, kafeerosulaiman@yahoo.co.uk and Busulwamohamad@gmail.com

 

 

15.0 DEAD LINE:

The deadline for submission of Expression of Interest is 3rd May 2018 at 5:00PM.

MCJL is committed to diversity and inclusion within its workforce, and encourages qualified female and male candidates from all national, religious and ethnic backgrounds, including persons living with disabilities, to apply for this assignment.

Please note that only short-listed candidates will be contacted.  The submitted applications will be evaluated in terms of the quality of complete coverage of all aspects of the terms of reference, timeliness in relation to research, analysis and production of a draft report as well as compliance with qualifications as provided for herein.

Disclaimer: The terms of reference herein above are not conclusive but simply an indication of some of MCJL’s expectations. More detailed discussions as regards our comprehensive expectations from this assignment shall be held with the successful consultant.

[1] This Article provides for equality of both men and women at the celebration of marriage, during and upon its dissolution.

[2] It is envisaged that there will be a lot of interaction with First Parliamentary Council, Law Reform Commission, JLOS secretariat, Members of Parliament and CSOs to disseminate findings and chart way forward on addressing issues identified.

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