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Colonial Era WAKF Amendments


A 1951 piece of legislation that has governed the management and use of properties bequeathed under Islamic law is to be amended after Muslim leaders petitioned the leader of majority in the National Assembly Aden Duale to ensure that the interests of Muslims were protected in accordance with the Constitution. Speaking Tuesday morning during the National Conference on the Review on the Wakf Commissioners of Kenya Act, the leaders from all 47 counties stated that the 1951 Wakf Commissioners Act needed to be amended as it’s current status continued to deny Muslims the right to manage property donated for the welfare of the society. Chairperson of the Wakf Task Force Commission, Professor Hamadi Boga observed that among the changes sought include the introduction of Wakf knowledge in learning institutions, as many people were ignorant about it. The chair also called for all Islamic teachers and instructors be remunerated by the government as a measure of countering radicalization in the faith.

Majority Leader Aden Duale affirmed his support for the amendment of the Wakf Act observing that the management of Wakf was a benefit to all members of the society and not restricted to Muslim faithful. Mr. Duale emphasized that properly managed, Wakf had the ability of transforming lives while improving the socio-economic development of a country. “This amendment that was developed by the Attorney General will be finalized and I will present it to the Parliament as a bill where it will be debated and passed by February 2018,” Duale promised the Muslim leaders. On his part, Attorney General Githu Muigai observed that the Waqf Act represented one of the greatest values in Islamic faith that encompassed compassion for others.
“The Wakf Commissioners Act 1951 is an old law that is not in tandem with current Islamic law and not aligned to the Constitution. The current Act is a law that was informed by the policies of the colonial era that categorized Kenyans based on race. Similarly, the structure and organization of the Wakf Commissioners of Kenya as is constituted do not meet the expectations of the Muslim Community and the descendants of those who dedicated their properties to Waqf,” the Attorney General stated on the need to amend the law.

In July, the Attorney General received the task force report to review the Wakf Commissioners Act of 1951. The 10-member task force led by Prof Boga was appointed by the Attorney General in October 2015 to review the Act to align it with the current Constitution. The Taskforce was also to make recommendations based on international best practices regarding the management and utilization of Wakf properties in line with Islamic law. Wakf according to Islamic law and Section 2 of the Wakf Commissioners Act is a religious, charitable, or benevolent endowment or dedication of any property in accordance with Islamic Law. The current law defines Muslims as Arabs, members of the twelve tribes, a Baluchi, a Somali, a Comoro islander, a Malagasy or a native of Africa of the Muslim faith. This was discrimination by the colonialist and fails to consider the fact that Islam is professed everywhere.
Professor Saad Yahya, a member of the Commission observed that the Waqf endowments ought to be seen as a significant contribution to national wealth and its growth in a compassionate and poor-friendly manner. “The growth of Islamic Banking and the Shariah-compliant investment market over the last decade augers well for the Waqf sector and there is need to support the work of the Wakf Commission through the adoption of Shariah compliant financing practice,” Professor Yahya stated.

Extracts of the review report submitted to the Attorney General indicate that Waqf continues to benefit the wider community in terms of socio-economic status and eradication of poverty. Further, the Waqf sector is modernizing fast hence the need to keep abreast and adapt innovations taking place in finance, information and communications technology. The report notes that highly qualified personnel are needed to manage these processes and systems, and as such, there are calls for competitive benefits in terms of working environments and remuneration for the administrators (Watawali). Administering a Waqf is wealth management in every sense of the word, the only variation being the boundaries imposed by Sharia. The report observes that the preparation of a Waqf policy ought to be guided by several principles including strict observance of the basic purposes of Waqf as enshrined in Islamic law and be consistent with generally accepted goals of Waqf. These principles include respect for the traditions and customs of the various communities in which Waqf endowments are in use; and ensure that Waqf assets and infrastructure benefit sustainably the designated beneficiaries, be they individuals or groups. Under Islamic Law, Wakf is regarded as a final gift to charity that a donor (wakif) can no longer claim. It is irrevocable and must be perpetual. According to Islamic Law and the Wakf Act, a Waqf can be for any purpose that is not repugnant to Shariah. Family Waqfs (Waqf Ahly) are traditionally focused on protecting future generations from destitution and homelessness, while public Waqfs (Waqf Kheir) are dedicated to the public wellbeing managed by financing educational, public health, orphanages and related facilities and their maintenance.

The report finally recommends that unclaimed assets held by the Public Trustee or Unclaimed Assets Authority which belonged to Muslim should be transferred to the Waqf Commission. Factors that led to the diminished role of the Wakf include but are not limited to use of outmoded management approaches inherited from the colonial government and dating back to the early twentieth century; Inadequate records, making it difficult for donor families and potential givers to track income and expenditure flows for each property; failure to gain the support of professionals, business people and thought leaders who had the goodwill and could have helped to move the institution forward. There was also increased misuse and abuse of Waqf properties by tenants, who sublet the properties at a much higher rent without the landlord’s approval, thereby eroding the Commission’s revenues as they no longer had capacity to enforce new lease conditions. This resulted in resentment and little faith among the public in terms of the level of support accorded. The realization that alternative legitimate ways of creating endowments, e.g. through trust legislation compounded to the further decline of Wakf Commission with the judicial system also being blamed as being unsympathetic to the Waqf cause. The overall effect meant that donors were no longer creating new Wakfs but instead resorted to the Trust Act managed by the Administrator General’s Office at the Office of the Attorney General. The report notes that the extremely poor financial situation witnessed in the 1980s enabled greedy investors to take advantage of the situation and acquire prime properties especially at the Coast which had to be leased out to save the properties from the auctioneer’s hammer. Members of the Task Force appointed to review the Wakf Commissioners Act of 1951 by the Attorney General include Prof Hamadi Iddi Boga, Sheikh Juma Ngao, and Nagib Shamsan as Wakf Commissioners. Shariff Hussein Ahmed, Zubeir Noor Hussein, Shiekh Ibrahim Lethome, Shiekh Abdallah Kheir, Professor Saad Yahya, and Dr. Mwanakitini Bakari serve as members while the Chief Kadhi Sheikh Ahmed Muhdhar S. Hussein is an ex officio member of the Commission.

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Wed 19 Oct 2017
Nairobi, Kenya

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