7th June 2018 by Department of Public Communications
A bill to replace the pre-independence Wakf Commissioners Act of 1951 has been submitted to the Attorney General. The bill is part of far reaching recommendations to harmonize the management and utilization of Wakf properties in Kenya in line with Islamic law.
The bill proposes that the Waqf endowments be seen as a significant contributor to national wealth of the country. The bill that is guided by Islamic law seeks to ensure that Waqf assets and infrastructure benefit sustainably the designated beneficiaries, be they individuals or groups.
The bill is cognizant of the fact that the Waqf sector is modernizing fast and needs to keep abreast and adapt innovations taking place in finance, information and communications technology.
Professor Hamadi Boga on behalf of the Wakf Commissioners of Kenya submitted the Wakf Bill 2018 and Taskforce on the Review of the Wakf Commissioners Act 1951 to the Attorney General Kihara Kariuki Thursday morning.
The 10-member task force appointed in October 2015 to review the Act was supposed 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.
Receiving the proposed bill and task-force report, Chief Legal Advisor Kihara Kariuki observed that the Wakf Commissioners Act 1951 was an old law that was not in tandem with current Islamic law and not aligned to the Constitution.
“The current Act as constituted was informed by the policies of the colonial era and has no place in Kenya today. Similarly, the structure and organization of the Wakf Commissioners of Kenya as presently constituted do not meet the expectations of the Muslim Community in this country. It is equally important that interests of persons practicing the Islamic faith are taken care of in line with our Constitution,” he stated.
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 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 Wakf bill also proposes that unclaimed assets held by the Public Trustee or Unclaimed Assets Authority belonging to Muslim should be transferred to the Waqf Commission.
Factors that led to the diminished role of the Wakf include use of outmoded management approaches inherited from the colonial government and dating back to the early twentieth century. Inadequate record keeping made it difficult for donor families and potential givers to track income and expenditure flows for various property leading to the failure to gain the support of professionals, business people and leaders who had the goodwill and could have helped to move the institution forward. Other factors include the 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.