Attorney General Githu Muigai has received a task force report to review the Wakf Commissioners Act of 1951. The report was submitted by the Chairperson of the Task Force Professor Hamadi Boga at the AG’s Chambers on Thursday morning.
The Attorney General appointed the 10-member task force led by Prof Boga in October 2015 to review the Act to align it with the current Constitution. Further, the Taskforce was supposed to make recommendations based on international best practices regarding the management and utilization of Wakf properties in line with Islamic law. The Attorney general will review the recommendations and come up with a new law that will be reviewed by the public and Parliament for approval.
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 Chief Legal Advisor stated 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 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,” he stated.
On his part, Professor Hamadi Boga observed that during the heyday of the Waqf Commission, it only operated in the former Coast Province but it was important that all the interests of people professing the Islamic Faith be considered in line with the spirit of the Kenyan Constitution.
“Previously, it defined 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. Islam is professed everywhere. It is our proposal that the reformed Wakf Commission shall have few commissioners including female members who are highly qualified and competent in Islamic Law. We also propose to have five regional offices in the Coast, Central, North-east, Rift Valley and Western Kenya,” the Chairperson of the Wakf Commission stated.
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 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 also observes that the preparation of a Waqf policy needs to be guided by several principles including strict observance of the basic purposes of Waqf as enshrined in Islamic law and consistency with generally accepted goals of Waqf; respect for the traditions and customs of the various communities in which Waqf endowments are in use; 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 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 recommends that unclaimed assets held by the Public Trustee or Unclaimed Assets Authority which belonged to Muslim should be transferred to the Waqf Commission.
It further recommends that best practice be adopted in administering Waqf endowments with the aim of reducing poverty, improving the social wellbeing and generally enhancing the living standards of beneficiaries in accordance with the will of the grantor. It is proposed that by creating a national footprint for the public institution responsible for administering Wakfs, the Commission will serve a wider clientele as well as expand the scope of legitimate endowments and grants to include also neglected purposes such as the protection of refugees, displaced persons, the aged, children and disable citizens while contributing to the attainment of the Vision 2030 and the Sustainable Development Goals (SDGs).
The proposed Waqf Commission shall be comprised of a Built environment professional such as architect/engineer/ land economist / town planner; Accountant / economist; Lawyer; Sharia scholar; Representative of SUPKEM; Representative of the Waqf owners; Administrator and a representative from the Office of the Attorney General. The members shall have to be Muslim, holder of a degree from a recognized university, and satisfies Chapter Six of the Constitution and take into consideration Persons with disabilities, Youth and the two third gender balance rule.
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.
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 at the Coast which had to be leased out to save the properties from the auctioneer’s hammer.
The report notes that “WCK were in a weak negotiating position, and did not even get independent valuation advice. The lease terms of the properties were generally very disadvantageous to the Commission, being typically a 99-year lease at throwaway rentals and no rent reviews. The repercussions are being felt today, when many properties are locked up in long leases at negligible rents and the Commission lack the capacity to terminate the leases.”
The report illustrates that 141 out of the 264 properties in Mombasa and Lamu especially are leased out at Kshs. 1,000 per annum with some leases having being granted between 2012 and 2014 and expected to expire in 2100.
The report states, “A substantial proportion of the portfolio is tied up in long leases at very low rents, much to the disadvantage of the Waqf beneficiaries. And when leases do expire there is no reliable machinery for negotiating extensions, repossession or finding another lessee.”
In regards to the contentious issue of land in the Coastal strip, the report recommends the development of legislation and rules under the Land Registration Act restraining the Registrar of Lands from registering any transaction involving Wakf properties without the approval of the Wakf Commission or Trustee (Mutawalli). There is a general misconception that Waqf land is community land which the report notes are in fact private property set aside by the owners for the purpose of benefiting specified families or public facilities, with the trustees acting as managing agents. Further, controls are required to prevent lessees redeveloping or changing the use of property without permission from Waqf beneficiaries and overseers. The report notes that some Waqf beneficiaries, especially those of Waqf Ahly complain that their properties have been let to tenants who pay pittance in terms of rent but have sublet at exorbitant rents to businesses, some illegal activities under Waqf laws, such as bars, night clubs, dubious lodges and gambling parlours.
The general perception is that only very rich people can afford to create Waqfs but instead anyone with a durable asset like a house or agricultural plot can decide to dedicate the property to the welfare of relatives or the good of society at large. The range of types of assets that can form the basis of Waqf include not only immovable property but also chattels (goods) and financial assets such as cash, stocks in acceptable companies, works of art, books and similar movables.