Comparative law and justice/Kuwait

Part of the Comparative law and justice Wikiversity Project

Subject classification: this is a comparative law and justice resource.

RLapierre 22:47, 7 February 2011 (UTC)

Basic Information

Flag of Kuwait

Map of Kuwait

Kuwait is in the Middle East. It is between Iraq and Saudi Arabia and is left to the Persian Gulf. Kuwait is about the size of New Jersey (6,880 sq.mi). The capital of Kuwait is Kuwait City. The entire region is mainly a flat desert plain. The climate in Kuwait is usually very hot and dry; their winters only last three months and are cool. Summer temperatures are usually between 108 degrees and 120 Fahrenheit. In the winter the weather ranges between 50 to 80 degrees Fahrenheit. It rarely rains in Kuwait. The nationality of Kuwait is Kuwait(s). Population from the (2009) census was approximately 3,520,000. The breakdown of the 3,520,000 is 1.6 million Kuwait citizens, 2.36 million non-Kuwait nationals, and one hundred thousand stateless persons. The age structure of Kuwait from a 2005 census: 0-14yrs. makes up 14.2% of the population (male 323,382; female 311,700), 15-64 yrs. is 70.1% (male 1,045,589; female 591,243), with Senior Citizens making up 2.7% (male 40,439; female 23,295). The populations' religion is mostly Muslim (70% Sunni and 30% Shia). You do also see some Hindu, Christian, and Buddhist communities. Kuwait’s ethnic group is broken down into four major subheadings: Kuwait 45%, Arab 35%, South Asian 9%, Iranian 4%, and other 7%. Arab people ended up in Kuwait through the discovery of oil in 1938, which drew Arabs from nearby states. The official language is Arabic, but English is spoken widely. Kuwait’s natural resources are oil, natural gas and fish. Most of their food is imported with the exception of fish. Petroleum extraction and refining, fertilizer, chemicals, desalination, and construction materials are the types on industries they are involved in. The services Kuwait offers are public administration, finance, real estate, trade, hotels, and restaurants. Their GDP is (official exchange rate 2010) 150 billion. Agriculture making up .3%, cultivated land 1%, industry 48.3%, and services 51.3%. Their key export is oil and major import is food. Kuwait has a per capital income of US $81,800, making it the 5th richest country in the world. The infant mortality rate in Kuwait is 8.75 deaths per 1000 births. Broken down, the male mortality rate is 9.35% and female is 8.13% per 1000 births. The life expectancy of the total population is 77.89 years, with the average woman living until age 79.18 years of age and the average male living until 76.64 years of age. It is required by law for children to attend school from ages 6 to 14 years old. School is free, including higher education. The literacy rate is 93% of the total population. The average educational attainment is 12 years for males and 13 years for females. The Ministry of Education is also making efforts to incorporate women into the educated workforce through various programs. In the 19th Century Kuwait became involved in the same treaty relationship Britain had already formed with Trucial States. Early in the 20th Century Kuwait discovered oil and tried to establish internationally recognized boundaries. Kuwait and Saudi Arabia establish their borders and a neutral zone in 1922(Treaty of Uqair). By 1961 Kuwait achieved its independence from the British and Kuwait Government began to exercise legal jurisdiction under new laws drawn up by Egyptian jurist. After their independence in 1961 Iraq claimed Kuwait. Another important year for Kuwait was 1977, because they signed another agreement with Saudi Arabia dividing the neutral zone forming a new international boundary. From this Kuwait became a well developed welfare state with a free market economy. Kuwait’s problem with Iraq collided head on in 19991 when Iraq invaded Kuwait. This lasted several months then the UN headed by the US, assaulted Kuwait to free them from Iraq. By 1994 Iraq formally accepted the UN demarcated border with Kuwait. Still, to this day, Iraq and Kuwait have problems in regards to their border, debt, reparations, and return of missing persons and archives.

Crime Rates and Public Opinion

Kuwait, being in the Middle East, falls under mixed law. We see Muslim, civil and customary law used here. In their dealings with theocratic law their authority comes from the divine (spiritual law). The law that is based on religion is non-rational and Universal law. In their dealing with civil and customary law it is universal and rational law. Kuwait is a destination country for men and women who migrate from South and Southeast Asia for domestic or low-skilled labor. Unfortunately these men and women are subjected to conditions of involuntary servitude by employers in Kuwait including conditions of physical and sexual abuse, non-payment of wages, confinement to the home, and withholding of passports to restrict their freedom. They say Kuwait is a transit point for South and East Asian workers recruited for low-skilled work in Iraq. Some of these workers are mislead from the truth and nature of this work, and others are subjected to conditions of involuntary service in Iraq. The overall crime rate in Kuwait is low. The crimes that are more common in Kuwait are kidnapping, assaults, robberies, and software piracy. Also, you do see problems with involuntary servitude especially in the sexual exploitation of women. Kuwaitis Crime Statistics: Homicide: 4 per a 100,000 population Assaults: (major) 10 per 100,000 population (simple) 50 per 100,000 population Rape: 2 per 100,000 population Robbery: 15 per 100,000 population Housebreaking/Burglary: 5 per 100,000 population Motor Vehicle/ Automotive Theft: 90 per 100,000 population Kidnapping: 11 per 100,000 population Suspect: when persons is suspected of committing a crime, arrested or cautioned: 600 per 100,000 Police per Capita: 435 per 100,000 population Prosecutor per Capita: 4 per 100,000 population Judges per Capita: 8 per 100,000 population Prison Guards per Capita: 46 per 100,000 population

The Legal System

Kuwait is an independent and full sovereign state that is part of the Arab nation. The government of Kuwait is a constitutional monarchy and has a parliamentary system of government. Kuwait does have a constitution and gained their independence June 19, 1961 from the (U.K). Their constitution was approved on November 11, 1962. If you were to follow Kuwait’s Constitution, Islam is one source of legislation, but not the main source. Kuwait's legal system is based on Latin Civil Law, which is mainly derived from French Law. Kuwaiti laws are mostly secular. Only in family law for Muslim residents, the Islamic Sharia is used. In Kuwait they have a constitutional court that acts as a judicial review and examines the constitutionality of their laws (High Court of Appeals). This particular court is made up of five Consultants. Whatever decisions they make are binding upon the states and all the other courts of law. The judicial model that Kuwait follows for judicial review is the “French” Continental Model, which is based on French Constitutional Council. Anything pertaining to the constitution is reviewed by special bodies of constitutional review or by special chambers of ordinary Supreme Courts. Kuwait does not have any formal political parties, but do have political blocs. The Executive Branch: Head of State is a hereditary position (the Amir), Head of Government is appointed by Amir who is the Prime Minister. The Council of Ministers is appointed by the Prime Minister and is approved by the Amir (the Cabinet). Amir’s hereditary origin is from the Al Sabah family and this has been this way since the 18th century. The Legislative Branch: Is a unicameral National Assembly of 50 elected officials who serve 4 year terms including all ministers who serve as ex officio members. No law can be publicized without being passed by the National Assembly and it also has to be sanctioned by the Amir. Requirements for holding office: The Amir is a descendant from the late Mubarak al-Sabah family and he exercises his power through his Prime Ministers. The Amir appoints the Prime Ministers which are selected from the National Assembly. The rule with Ministers is that they shall not exceed one-third of the number of members of the National Assembly. The requirements to be a part of the National Assembly are; be a Kuwaiti by origin in accordance with the law, be qualified as an elector with the electoral law, be at least thirty years old at the time of elections, and be able to read and write Arabic. Elections: Parliamentary Up for grabs are the 50 seats in the National Assembly. The elected members come from five, ten seat districts. Their electoral system is Multiple Non-Transferable Vote System (MNTV). Each voter chooses up to four candidates. The 10 with the highest votes win seats in each district. Voting: Kuwaitis vote for the National Assembly and Municipalities. Up until 2005 men over the age of twenty-one, who were not in the armed forces or apart of the police, and a Kuwaiti citizen for thirty years were the only ones allowed to vote. So the 2006 elections were a historic year because this is the first time women over the age of twenty-one could vote. Voting is a right, you have the choice of whether or not you want to vote.

Law Enforcement

I feel that Kuwait has a centralized multiple uncoordinated police structure. The Minister of Interior is in charge of public safety and law and order. Following the ministry’s order, the national police‘s main focus is on public order and preventing and investigating crimes. Kuwait police are divided into nine categories: Traffic, nationality and passports, criminal investigation, emergency safety, prisons, immigration, civil defense, courts-martial, and trials. To become a police officer in Kuwait you must attend a three year program at the Police academy that consist of academic work, physical exercise, and field training. Kuwait has plans for a police college in Kuwait City to be opened sometime this year. This new facility will provide training for 1,200 officers with facilities for living, academics, athletics, administrations, and training. This campus is a paramilitary complex that is the center of Kuwait and will provide a sense of security for the citizens of Kuwait. Kuwait police play a traditional role of policing, but in some instances you see them act as problem-oriented police. The model of police Kuwait follows is the Quasi-Military style, because the National Guard, on top of their own duties, also act as a reserve for the metropolitan police as needed. 2010 Corruption Percentage Index (CPI) dealing with corruption Kuwait is ranked 54th out of 178 countries with a score of 4.5, which means it is pretty corrupt, but is not that bad compared to the other countries in the Middle East. Kuwait’s Military Expenditure In 2008 using US money (at US constant 2008 prices and exchange rate) was 4,660.00 in percentage of Gross Domestic Product (GDP) it was 3.2. Their military consist of an Army, Navy, and Air force. In 2003 their Armed forces personnel was 16000 and had a weapons holding of 800.

Courts

Kuwait's legal system is mostly a mixture of British general law and French civil law, while Islamic law is solely significant in family law. Even though we see all these types of law Kuwait does have a unified court system. The Civil Court has three levels Court; First Instance takes cases according to their gravity; Next level is an appeals court; And Cassation stands at the forefront of the system. Other sections deal with criminal, commercial, personal status, labor, and rental cases. There are also some specialized courts, an example would be traffic court, but they fall in regular civil judiciary. The job of Court of First Instance is to look into the conflicts of personal, civil, commercial, and labor affairs as well as administrative cases. The Courts of Appeal looks into appeals sent to them from the Court of First Instance excluding cases appealed before the Court of First Instance in the form of urgent, penalized and non-penalized cases. The Supreme Court is there to look into cases that are sent down from the Court of Appeals in dealing with labor, civil, commercial cases, personal affairs and crime cases. The Amir appoints judges, but get’s the advice of the Supreme Judicial Council. This Council is judicial in character, but a representative from the executive branch. Judges who are citizens have lifetime appointments, but the majority of judges are non-citizens. A non-citizen judge holds 1- to 3-year renewable contracts, which undermine their independence. The Ministry of Justice may remove judges for cause, but rarely do so. Judicial education in Kuwait is lacking. They have trouble training a sufficient number of judges to staff their courts. The Kuwait Institute for Judicial and Legal Studies admits training sessions for judges, prosecutors, court personnel, and state legal advisors. United States Department of State's Country Reports on Human Rights Practices for 1991 sites: Kuwait judicial system provides fair and public trials with adequate appeals mechanisms. A detainee cannot be held more than four days without being properly charged. If being charged with a crime, bail is usually set in most cases. In misdemeanor cases if found guilty you cannot get more than three years in jail and in felony cases a defendant is represented by a lawyer that is appointed by the court. Cases brought before the State Security Court can be heard between two separate panels, each made up of three judges. These judges hear cases against state security or cases referred by the Council of Ministers. Trials In state security court are held in closed session but are opened to the press and others. Article 34 of the Kuwait Constitution, it is categorically states that an accused person is presumed innocent until proven guilty in a legal trial at which the necessary guarantees for the exercise of the right of defense are secured.

Punishment

Under articles 218 and 219 of the Code of Criminal Procedure, capital punishment is allowed only with the Amir’s approval. In retaining capital punishment Kuwait uses a modified British style hanging and has carried out 72 executions from 1964 to 2007. Since then death sentences have been handed down, but there have not been any more cases of execution reported. Throughout time, Kuwait’s officials go back and forth on where a Death sentence should be carried out. Before 1985 death sentences were carried out in public, then we see some sentences carried out in the central prison, and after 2001 we see executions taking place at Nayef Palace, but in semi-private. Death sentences are all carried out at the same time of day and family of offender and victim know when the execution is going to happen. Kuwait officials believe that if other people are aware and able to see executions either first hand or through pictures, it is a greater deterrent for rest of society. In Capital cases the state is not allowed to execute anybody under the age or 18 or anybody who is insane. These cases are reviewed by the Court of Appeals, Court of Cassation, and then sent to the Amir for ratification. If Amir approves, an execution order is issued by the Chief Justice and passed to the prosecutor general. Corporal punishment is legal by parents disciplining their children in their home. Article 29 of Law No.16 gives parents this right to this type of abuse. This abuse on children is also lawful in alternative care settings too. Suggestions by human rights committee’s recommend awareness campaigns for alternative forms of punishment to be administered that take into consideration the child’s human dignity. Beside that Kuwait does not believe in corporal punishment. So we do not see any forms of torture and other Cruel, Inhuman, or Degrading Treatment or Punishment through Kuwait’s history, because it is forbidden. Although there are some reports that police and security forces have abused detainees during interrogation. The abuse inflicted most of the time is toward non-citizens. Ministry of the Interior is responsible for prisons in Kuwait. The prison administration is run by the General Department of Rehabilitation and Law Enforcement. From the 2009 U.S. State Departments Human Rights Report the total prison population including detainees and remanded individuals was 4045. The makeup of the prisons is; 10% detainees and remanded prisoners, female prisoners 5.2%, and foreign prisoners are 13.5% of the prison population. This particular prison brief does not tell us what the rest of the prison composition is, but I assume it is drug related cases. According to (2009) information there are three prison institutions that can hold a total of 4000 people. From these statistics, you can see Kuwait has a problem with overcrowding. In the 90’s prison population hovered around 1700, but since then the prison population has doubled. Kuwait’s prison system has exceeded in international standards in food services, visiting rights, basic health care, cleanliness, and opportunities to work and exercise. They do though have medical specialists attend the prisons weekly, a psychiatrist is on call 24 hours, and some specialized health care is available. The major problem we do see in their prisons is overcrowding, and most of the people in prison are there on drug charges. There was no exact data to be found on fines and punishments in Kuwait, but I do feel it resembles our societies systems in the way that punishment might receive a fine, prison sentence, or both. An example of this is Piracy in Kuwait. If you are found guilty of the act you could receive a maximum fine of 500 Kuwaiti Dinars (approximately US $1,775) or up to one year of imprisonment, or both penalties.

Family Law

There are two types of family law in Kuwait: Islamic and secular. Family law pertains to marriage, divorce, child custody and inheritance. Muslims in Kuwait have an Islamic family law, non-Muslims in Kuwait have a secular family law. An Islamic marriage is a civil contract between a male and a senior ranking male member of the bride’s family. The marriage is witnessed in the presence of two witnesses and an authorized judge. Sunni and Shia males came have up to four wives at one time as long as he has the woman’s permission and can support them. So this means polygamy is legal, but it is more common among tribal elements. Divorce in Kuwait is allowed and the husband may take his wife back within 90 days and divorce her three times if he wants. In child custody issues there are different outcomes in Sunni and Shia laws, but for the most part, child custody is in favor of the mother, but not if she remarries. Where these two Islamic religions differ is in issues of age when the children can decide on their own whom they want to stay with. The main point one should know about inheritance is that a non-Muslim cannot inherit from a Muslim and vice versa. Kuwait’s legislation and laws look out for the best interest of a child. An example of this is Kuwaiti Personal Status Act. This act looks into matters of wet-nursing, fostering, guardianship, and basic maintenance of the child. Juvenile welfare is under term of Ministerial Ordinance No. 253. If a child’s parents leave them to another family it is the responsibility for that family to raise the child as if he/she were their own. (Act No.82, The Family Fostering Act). This is the main act which most effectively safeguards the rights of children of unknown parentage. Another act that falls under Personal Status is if for some reason a family splits up, it is the right of the father to maintain his wife and children. Kuwait legislation and Juvenile Act defines a juvenile as any child who is under the age of 18, this goes for both male and female. For a juvenile to be prosecuted and potentially held liable they would have to fall between the ages of 7 to 18 years of age. There is an article too that states the child is subject to guardianship of his or her person until the age of 15. That same Act prohibits notarization or certification of a contract of marriage for a young man under the age of 17 and 15 for young girls at the time of notarization. In order for children to work they have to be at least 14 years old and there are only certain conditions and hours children are allowed to work. Issues involving citizenship in regards to marriage in Kuwait are different for men and women. When a foreign woman marries a citizen of Kuwait the women can earn her citizenship after 15 years of residency. If it is a foreign man who is to marry a citizen of Kuwait they are not eligible for citizenship. Also the women in Kuwait do have citizenship rights to drive, vote and hold political positions.

Human Rights

The Kuwait people are protected by a variety of different fundamental rights that are listed in their Constitution. Some of the most important rights that they have are freedom of religion, peaceful assembly, expression, thought, and protection of privacy. Freedom of thought, conscience and religion are guaranteed by Article 35 of the Kuwait Constitution. It states, “Freedom of belief is absolute. The State shall protect freedom of religious observance in accordance with established customs, provided that such is neither detrimental to public order nor incompatible with morality.” The citizen’s also enjoy the right to express their views freely, either verbally or through publication in newspaper. Articles 43 and 44 in Kuwait’s Constitution deals with stipulations in the freedom of association and peaceful assembly letting the people know that they have the freedom to form associations and trade unions, and individuals shall have the right to assemble without any prior permission. Protection of privacy is guaranteed under Article 39, which says: “Freedom of postal, telegraphic and telephone communications shall be safeguarded and their confidentiality shall be guaranteed. Such communications shall not be censored, nor shall their content be disclosed except in the circumstance and in accordance with the procedure specified by law.” In regards to the right to not be subjected to torture or other cruel and inhumane punishment Kuwait citizen are protected from being arrested, detained, and searched (expect as prescribed by the letter of the law). No one shall be subjected to torture or inhumane treatment. Also, in the court of law, an accused person is presumed innocent until proven guilty by a legal hearing, which the defendant has the right to a defense. Some rights that Kuwait Constitution does not provide are; freedom of movement within the Country, foreign travel, and emigration. The Government placed some limits on freedom of movement in practice. Migrant workers are extremely discriminated against. Migrant workers have held mass protest with the only results being, police abuses and deportation. The Government has made promises to improve their working conditions, but have only made the bare minimum improvements. Also thousands of women domestic workers have been vulnerable to the abuses of employers. The Human Rights Committee has been meeting to propose new bills against these abuses. Kuwait has remained deficient in the human rights arena and there are serious problems of human right violations that still continue in Kuwait. In prisons, there are problems of overcrowding, abuse of detainees and non-citizen prisoners. In the Judicial realm, Kuwait’s judiciary has been known to be influenced by the government. Government has placed some limitations on the freedom of speech, the press, and has infringed on citizens’ privacy rights.

Works Cited

Doing Business in Kuwait