THE LEGAL SYSTEM OF KUWAIT: AN EVALUTION OF IT’S APPLICABILITY MUGANGASIA DAUGHLAS TECHNICAL UNIVERSITY OF MOMBASA, MOMBASA, KENYA ABSTRACT Kuwait is a country that combines democracy and monarchy. Headed by the emir whose position is hereditary, the country is established under the Islamic law. This research paper is divided into three major chapters. Chapter one deals exclusively with a description of the legal system of Kuwait. The legal system is mainly making based on Islamic law, French civil law, Egyptian law and the British Common Law, thus it different from that of other Arabian countries which are mainly Islamic states. Islamic law and how it is applied in Kuwait is deeply examined since Islam is the basic state religion of Kuwait. The sharia has influenced various sections of the Kuwaiti constitution such as the family law and religious law. The civil law in Kuwait influences the civil code widely applicable among the non-Muslim citizens of Kuwait since the family law only governs the Muslim citizens. Egyptian law is derived from the French law and hence also influences the civil code in Kuwait. The judicial system of Kuwait is mainly composed of courts which exist in three levels; the Kulya courts, the appeal courts and the supreme court of Kuwait, arranged in an ascending order of their jurisdictional power. The constitutional court also exists besides the three courts whose mandate is to institute constitutionalism. Therefore, for rule of law to be effectively adhered to, the legal system of Kuwait must follow strictly the requirements of the constitution other than mere logical and personal opinion. Keyword: Legal system, law, sharia, constitution. 1.1 INTRODUCTION The current state of Kuwait dates back to the 15th century in which people from South and Central Arabia migrated and settled in Kuwait. The main reason for the migration is attributed to the severe drought that had invaded their homeland. As a result of this settlement of various peoples and tribes from Arabia, Kuwait, therefore, became a central point of the India-European trade. At the end of the 18th century, most settlers took advantage of the proliferated trade in the region selling various items such as pearls for a living. The tribes then started merging forming a community that shared similar values and interests, which is now the Kuwait Society. Since there was a need for order and organization like the neighboring sheikhdoms, 1 the people elected their first ruler in the year 1756. Sabah 1 bin Jabber was selected as the first sovereign ruler of the current Kuwait bearing the title Emir [2]. 1.1.2 Human Rights Protection Commission In the year 1992, the Human Rights Protection Committee of Kuwait was formed so as to address the issue of human rights in Kuwait concerning the constitution that was amended that same year. The body typically suggests motions on how to modify human rights sections in the Kuwaiti constitution. These proposals are formulated after a thorough study of the effect of existing human rights [10]. Any defect discovered with the current state of human rights in the constitution is corrected by first of all the body proposing solution-based motions and presenting them to the Kuwaiti government for debate and head of the state accent. The body also carefully observes the Government in the implementation of human rights, and, where necessary, corrects it accordingly. The significance of this collection is that not all the members of the Government are specialized experts in law and might err in the implementation process. The Kuwaiti Government decided to eliminate all forms of discrimination against any foreign nationality residing in Kuwait. This rule has not been implemented effectively since discrimination on atonality grounds is still rampant in Kuwaiti citizenship, occasionally face discrimination from Kuwaiti judicial authorities. They are at times denied legal documents such as travel documents or valid residence permits. This scenario is entirely the opposite of what the Kuwaiti constitution and the subsequent Government amendments to better it stipulate. 1.1.3 French Constitutional model The Kuwait Government also adopted the French Constitutional Model, to facilitate the rule of law. The design is made up of specialized bodies that review the constitution to ensure that it is implementable. They also perform any constitutional amendments in case of a controversy that may arise in some sections of the law. Special chambers of the regular Supreme Court are also entrusted with the duty of ensuring that the structure is reliable and implementable. The bodies also give legal advice, especially during law enforcement, on any ambiguity or controversy within the drafted legislation in the constitution so that the law enforcement agencies may choose the right course of action to take [6]. 1.2 Judicial System of Kuwait The Judicial System of Kuwait is based on the Islamic law. An exception only arises in situations in which Islamic law cannot apply, or the law seems incredibly ambiguous to be implemented. In such circumstances, the state has the legal right to intervene and offer the way forward basing on a standard form of regulation defined by the Kuwaiti constitution. For instance, Islamic law cannot be applied to a case involving a non-Muslim, or a case in which Islamic law does not clarify on the right course of action to be taken [8]. 2 The organization and functioning of the Kuwaiti judicial system are based on the Quran and other religious content in line with Islamic religion. The Quran outlines justice and benevolence as the core values of an Islamic society. The Quran is against any form of injustice or oppression which is directed towards any individual regardless of their economic, religious or social status. The main aim of in cooperating Islamic values in the Kuwaiti legal system is to establish a society which is free from oppression and injustice. The legal system then builds an Islamic society of Kuwait which denies any form of evil among its member. Therefore, in its rulings, the legal system of Kuwait ensures that it adheres to these values. 1.2.1 Precedence Many world legal systems apply precedence in most of the cases encountered. They mainly refer to the rulings made by the House of Lords in England. A comparison is made against the case at hand and the kind of cases that relate to this case and were solved by the House of Lords, or in any other legal system in the world. However, caution is taken to weigh the kind of consensus that was reached, that is, if it is line with the constitution of the country or state hosting the case. The solution offered by the House of Lords is then adopted in the legal system which accepts precedence. However, basing on the Islamic law, the Kuwaiti legal system does not recognize primacy as a just way of solving cases. Cases are settled in their correct context without making relations to some other similar cases that have existed before. Judges of the Kuwaiti legal system are guided by the Islamic law (IJMA), which is interpreted by experts in this area. Precedence cannot only be considered as the final resort if all other means of solving that particular case have failed or are accompanied by varied opinions and ambiguous suggestions [10]. 1.2.2 Arbitration and Mediation In reaching to the truth of the matter involving various cases, another method implemented by the legal system of Kuwait is amiable problem solving. This process is considered to be the best verdict in very much litigation. It is an old tradition of any Islamic society. Sociable problem solving implies that the solution is reached at after the legal system considering the opinions and suggestions of other persons other than relying exclusively on the judicial system itself and the constitution since some cases might require much more knowledge than mere legal process. In the slogan of amiable problem solving as the best verdict, arbitration and mediation are the primary tools embraced. These devices form part of the legislation and judicial process in Kuwait. In some instances, arbitration and mediation are sometimes given priority in the final decision of the legal system. In most cases, Islamic leaders are involved in the judicial and legislation process where they encourage amiable solving since, from their point of view, it helps to establish order in the society and eliminated ambiguity and controversy in the rule of law. Sometimes, the privacy of citizens is extended to cases in which they might be involved. 1.2.3 Court system in Kuwait 3 In as much as the judicial system of Kuwait is guided by Islamic law and amiable problem solving, the final determinant is the constitution, which in turn gives provisions for such methods. The Kuwaiti constitution also provides limitations to the judicial powers that are implemented by the court system in Kuwait. By-Law No. 23 of the year 1980, the Kuwaiti legal system is established on two broad principles [12]. The first principle allows the courts to exercise absolute authority over all cases while the second law safeguards the supremacy of the state of Kuwait by instigating that the supremacy must not be compromised even in the most tempting situations. The courts are competent enough to offer valid judgments to cases involving a personal statute, personal, civil, commercial and penal litigations. The court system is divided into three broad categories in a hierarchical order with each class having a well-defined scope of jurisdiction as outlined by the constitution. These categories are; 1.3 Islamic Law In most Islamic states, particularly the Gulf States, the institution of the Sharia as the only source of legislation is a political issue. This problem results from the differences in Quran interpretation that exist among the various Muslim sects hence no common law can be applied across the board. In these states, the basic Islamic codes acceptable to a majority of the citizens are chosen as the fundamental laws. In Kuwait, Islam is one of the sources of legal requirements although it is not considered as a primary source. The main legal system adopted by Kuwait is Latin Civil Law, which was a subset of the French Civil Law. Therefore, the legal system is mainly composed of secular law. The Islamic Sharia only comes in handy in the implementation of the Family Law among Muslims residing in Kuwait [4] 1.4 Family Law and Civil Law In 1981, a Civil Code was adopted by the Kuwaiti government [2]. This civil code of conduct forms the basis for the Civil Law in Kuwait. On the other hand, family and personal statute laws are controlled by religious courts as outlined above. The Government of Kuwait decided to render absolute control of the household law to religious courts because of the varied religious opinions and faiths in Kuwait hence a standard form of Civil Law which adequately addresses the requirements of each religion or sect was impossible. However, the institution of such freedom to religious courts has led to the sprouting of other issues such as limitations on women’s rights in public participation and various circumstances where equality is overlooked. The family code (1984) exercises jurisdiction over issues of marriage, custody of children and inheritance. The two sects have varied opinions towards the treatment of women in matters concerning marriage and divorce. According to the Sunni Islamic school, it is held that the woman must get a share of the former husband’s property in the form of a physical inheritance in case of divorce. On the other hand, the Shiite (Shi’a) Islamic sect holds that the woman has no share in the physical property of her husband. She can only be awarded a value of ownership. The Sunni is seen to pose more strict rights for women than the Shiite. 4 The family law in Kuwait places much emphasis on male dominion over the woman (personal statute law). In a marriage setting, the husband is expected to be the final authority and sole decision maker [11]. However, legislation of this law is confounded by numerous paradoxes and complications. Some fundamental human rights such as freedom of movement within the state are denied. The state does not allow free movement of citizens anywhere within the state boundaries thus posing a serious challenge to migrant workers and traders. This discrimination has led to protests by most of these workers, efforts which have not yet born fruits. The protestors only receive abuses and torture by the Kuwaiti police.The nationality of Kuwait is determined by the law. The state does not recognize non- Muslims are eligible Kuwaiti citizens hence it does not grant citizenship to non- Muslims. A Kuwaiti MP, Nabeel Al Fadhel, filed a case in court questioning the legality of denying non-Muslims citizenship. The constitution clearly stipulates that a person can be denied Kuwaiti citizenship if they work in the military organization of a foreign country, or if they are citizens of another country, or if they have participated in the civil war in another country and suspended citizenship on diplomacy matters. There is no dual-citizenship in Kuwait [9]. 2.0 ADHERENCE OF THE LEGAL SYSTEM TO THE RULE OF LAW 2.1 Incidences in which rule of law has been adhered to The Constitutional Court of Kuwait, which is entrusted with the duty of addressing cases concerning constitutionalism, ruled that the decision of the Emir to dissolve the parliament was against the rule of law as outlined in the constitution. As a matter of fact, the court ordered the Emir to reinstate the parliament of 2009 which existed prior to the newly sworn in parliament of 2012.There were varied opinions regarding the decision of the court but the Emir accepted the decision since it is final and is not subject to appeal in the Court of Appeal. From the above case of unconstitutional elections, it can be deduced that the legal system of Kuwait does not adhere to the rule of law. Had it not been for the intervention of the Constitutional Court, the Emir’s decision could have remained silently unconstitutional and against the rule of law [7]. The Constitutional Court recently ruled against the formation of an Anti-corruption body to ensure that the nation is a corruption free state. The Law No. 24/2012 which allowed for the establishment of the Public Anticorruption Authority (PACA) was refuted the court as unconstitutional and against the rule of law. Quoting Article 71 of the Kuwaiti Constitution, Judge Ali Mutawa ruled that there was no urgency associated with the formation of a body to look into matters of corruption in Kuwait. The decree was also not taken to the National Assembly for approval within 15 days after the declaration, as outlined in Article 71. This order was issued following the requirement by the United Nations for all its members to sign United Nations Anti- 5 corruption Act. Kuwait joined the United Nations in the year 2006. Hence, it was necessary for it to sign the pact as required by the UN. In this situation, the Government of Kuwait was in a dilemma whereby it was a need to adhere to two contrasting laws; The UN law to sign the anti-corruption pact and the constitutional requirement to uphold the supremacy of its constitution by acting by its stipulation [7]. Some sections of established law in Kuwait pose a lot of discrimination on various minority groups and women in Kuwait. However, due to the adherence to the rule of law, the government cannot do any alterations without a well- defined procedure. Indeed, decrees have been issued to the National Assembly by the Emir to lessen the discriminatory impact of some laws most of which have been quite unsuccessful due to failure at parliamentary stage or intervention of the Constitutional Court and the Doctors of Islamic Sharia. For instance, a decree was issued to the parliament by the Emir to allow women to take part in national elections. However, the decree was rejected at the parliamentary level when a parliamentary election was held and the decree defeated by a vote. The banning of political parties in Kuwait has led to a political crisis in which the leaders of the opposition, who have equal rights to run for office in the Kuwaiti Parliament, are scarcely represented. This misrepresentation has been magnified by the continued protests by the opposition team. The Government also stripped the citizenship of a famous opposition leader by the name Ahmad Jabra al-Shammari because he criticized the Government. The Human Rights activist, Abdullah Fairuz was also stripped of his citizenship for criticizing the Emir and the government without a court order. [3] In June 2012, a bill was passed by the Kuwaiti parliament that any Muslim who commits blasphemy against Allah, his prophets and the Holy Qur’an will face a death penalty. If the individual is not a Muslim, then he would face a jail sentence of not less than 10 years. This law was introduced to the parliament after a Muslim; Hamad Al-Naqi allegedly blasphemed against Allah on his tweeter account. According to the Kuwait Penal Code, defamation of the state religion is an offence punishable by one year imprisonment. However, Amnesty International intervened claiming that according to International Human Rights laws, every individual has freedom of expressing his or her own opinion especially in matters concerning religion. Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR) further stipulates that those member states who have not mended their capital punishment code should only administer capital punishment to the worst crimes such as murder and espionage. a) Lack of absolute democracy Article 6 of the Kuwaiti Constitution asserts that the Kuwaiti system of Government shall embrace democracy. In the election of the 50 members of National Assembly, democracy is implemented since the citizens have a right to choose whoever they wish to be their leader. However, citizens have minimal say in the choice of the Head 6 of State, the Emir. As seen in the previous section above, all those people who insult the Emir or the judicial system are given extraordinary punishments such as stripping of citizenship. b) Discrimination against women The legal system of Kuwait displays some gender discrimination mostly directed towards women. Before the constitutional amendment of 2005, women were not allowed to vote. The same criminal law also recognizes honor killings in which a woman can be killed by her husband in case she commits adultery or an equivalent of the same. In such honor killings, the man is exempted from a serious punishment and only imprisoned for a maximum of three years. When a woman makes the same murder, it is considered a serious crime and capital punishment are administered against her. All these laws display a lot of discrimination on women hence deprive them of their basic needs as human beings [5]. c) Discrimination against the stateless individuals On March 2011, the Bidoon took to the streets their demand for their rights as human beings and also inhabitants of Kuwait. However, their main issue was that they wanted the Kuwaiti government to recognize them as legal Kuwaitis and grant them Kuwaiti citizenship. If the government had to respond to this demands positively, this would mean that the emir had to take a bill to the parliament proposing the amendment of Article 27 of the Kuwaiti Constitution. Due to the strict adherence to the system of law, especially enhanced by the constitutional court whose mandate is to ensure the rule of law regardless of its impact, Article 27 would have to be amended to allow registration of Bidoon as citizens [6] d) Effect on International relations Kuwait is faced with a dilemma of either complying with the Islamic Law enforced by the Arabic Nations or meet with the west and continue enjoying the benefits but on the other hand suffer delineation and lack of recognition in the Arabic League. The nation has also joined international organizations whose rules conflict with its constitution therefore requiring a massive amendment to completely comply with international law stipulated by these agencies. In its foreign policy, Kuwait cut its relations with Israel, enmity which emerged from the war in which Arabic countries allied themselves against Israel but ended up with a massive lose. 3.0 CONCLUSION In conclusion, the legal system of Kuwait is somehow different from a typical Islamic state setting since Kuwait borrows legal doctrines form other nations such as Egypt, Britain, and France apart from its Islamic law. The history of Kuwait contributes largely to this type of legal system. First, the British colonization of Kuwait left a footprint of the common law in the country. Second, Kuwait earlier on was colonized by Germany (Ottoman Empire) and as a result, the Germans introduced the French Civil Law to Kuwait as they had adopted it earlier. 7 Kuwait adheres to its rule of law. Various situations in which rule of law has been implemented in Kuwait regardless of logic and individual opinion. The nullification of the 2012 election and the reinstatement of the previous parliament is a case in point of how the constitutional court enacted the rule of law in Kuwait. However, the strict adherence to the rule of law also has some negative implications as far as issues of human rights, justice, fairness and international relations are concerned. The legal system, though somehow lenient in some situations as compared to other Arabic states, is discriminatory. Women, stateless individuals and even the Kuwaiti citizens themselves are discriminated by the rule of law. Recommendations have been proposed for the legal system of Kuwait so as to ensure economic stability, respect for human rights and better international relations. References [1]. Black, Ian. (2013). Kwait electiuons: Constirutional court ordes Fresh polls. London: BBC World News. [2]. Casey. (2007). The history of Kuwait. Westport SUA, United States: Greenwood Press [3]. Economics, L. S. (2011). State of Kuwait. 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Comparative familly law. Journal of Law, 13(2). [12]. KUwaitT, T. G. (1992). Rights and obligation of Kuwait citizens. Article 36. 8