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Of Kadhis’ Courts, the Clergy and the Kenyan Constitution

April 5, 2010 10 comments

Kenya’s constitution review process has been long, treacherous and seemingly, never-ending. The process started in earnest in the late 80’s up to early 90’s with the clamour for reintroduction of multi-party politics. Following the amendment of the constitution in 1991 which saw the repeal of section 2A, Kenya legally became a multi-party state. This position was confirmed in 1997 when the constitution was again amended to include section 1A declaring Kenya was and would continue being, under the current constitution, a multi-party democracy. Except for these changes, however, the constitutional structure remained largely in the single-party framework, essentially a case of having new wine in old wine-skins. This coupled with the wave of democracy sweeping across the continent meant that Kenya and Kenyans continued to agitate for an overhaul of the current constitution. The agitation revolved around the deficiencies of the current constitutional order. These included an all-powerful, almost imperial presidency; weak and emasculated legislative and judicial arms of government thus weakening the doctrine of separation of powers and checks and balances; defective electoral system and weak representative democracy, limited Bill of right and lack of a culture of respecting and protecting fundamental rights; and inequitable distribution of resources.

The Kadhis’ Courts

The issue of Kadhis’ courts has generated heated debate over the last few months, but of course emerges from the past constitutional review process. The C.O.E (Committee of Experts) did not classify it as a ‘contentious issue’, since we have had Kadhis’ courts since the first independence constitution in 1963 and in all drafts thereafter. But because it is an important issue, it must be discussed by the youth, since it could scuttle the process.

The current debate is about whether or not these courts should be entrenched in the new constitution. The grandstanding witnessed by some Christian and Muslim groups in favour of either has been seen before: in Bomas (the National Constitutional Conference), and later on, during the 2005 pre-referendum debates on the Proposed New Constitution.

The debate has generated such issues as to who is a religious minority; why taxpayers should foot the bill of Kadhis courts; why include religious courts in a new ‘secular constitution’; the fear of entrenching Muslim Criminal Law (Sharia) as opposed to Muslim Personal Law; and also why they ever exist in the current Constitution have been raised. Indeed to some people, they have professed ignorance about even whether they exist today.  To balance the scales of this ‘resolvable issue’, this post highlights some salient issues that need to be considered.

Their History

First, Kadhis’ courts are found in the history of this country, which was before independence administered as a two-in-one territory by the British: the ‘coastal protectorate’ and the ‘interior Kenya colony’. To strike our independence the government had to decide whether they want to administer Kenya as one country or whether Kenya would become independent without the coastline. Kenyatta and other leaders decided we needed the coastline and a deal was struck.

Second, the –Miles Coastal Strip, which was the ‘coastal protectorate’ is now part of Kenyan territory with the coming of political independence. The agreement that the British signed with the Sultan was supposed to protect these communities who were then, ‘subjects’ of the Sultanate of Zanzibar. Thus, the Muslims in the coast are Kenyan citizens by right and are therefore not ‘subjects’ of a past ruler and/ or reign.

Religious Courts?

Third, Kadhis’ courts are not ‘religious courts’ as such, and do not adjudicate over religious matters. A Kadhi is a judicial officer, not a religious leader like an Imam (Preacher). A Kadhi is a secular judge presiding over secular matter of divorce, inheritance, succession and such matters. A Kadhi never adjudicates on criminal issues, such as murder, theft, etc.

Fourth, the jurisdiction of the High Court supersedes the Kadhis’ Courts, by that very nature. Kadhis’ courts are subordinate to the High Court. They are ordinary customary law tribunals, presided by someone called a Kadhi who is conversant with the traditions and customs of the Muslims. Only those people professing the Muslim faith go to such courts. That is, no Christian can be ‘forced’, as heard in some quarters, to go Kadhis Courts. Second, no Muslim can be forced either. It is a choice that a Muslim makes.

Fifth, the debate about including religious issues in a ‘secular’ constitution; needs careful examination. Whereas the various drafts had stated that State and religion shall be separate and that there shall be no State religion, they still contained Kadhis’ courts and in some cases, other ‘’religious courts’’, as seen in Article 195 of the Proposed New Constitution.

Secular Constitution

Sixth, picking from above, Kenyans are simply incapable of writing a ‘secular’ constitution: that is, abandoning religiosity. A ‘secular constitution’ makes no reference to all matters religious including mentioning God. The debates at Bomas and thereafter about whether the preamble should include God were concluded by people agreeing we cannot fail to do so. Second, Kenya’s national anthem starts with God, unless we wish to change that. Third, all our laws, including the Constitution of Kenya and the various drafts, have borrowed heavily from the Judeo-Christian tradition and other laws, including laws of Abraham-a sage within the Holy books: both Koran and Bible. Fourth and final, those seeking a ‘secular constitution’ by non-entrenching Kadhis’ Courts should be prepared to allow for choice, euthanasia and full recognition of equality rights based on gender identity and sexual orientation since the grounds for disallowing same are supposedly religious (by some interpretations), not secular.

Seven, this matter that Muslims are given prominence needs to be interrogated. Those opposing Kadhis’ courts have even expressed why only 20 percent of the Kenyan population should be created for courts yet Kenya is largely Christian and that Christian taxpayers cannot foot the bill of Kadhis’ Courts. First, constitutional theory is largely counter-majoritarian. This means, a constitution is created to protect minorities from majority. Not the other way round. Second, even Muslims pay taxes.

Non-Starter argument

Eight, this debate of non-entrenchment is a non-starter. This is so because those who oppose entrenching of Kadhis’ Courts are already treading on slippery ground. When the same group led the opposition to the Proposed New Constitution because it contained Kadhis’ courts, they were left with the current Constitution of Kenya, which entrenches them anyway. Thus the argument will not hold water when referendum comes and the Draft Constitution, like others before, contains Kadhis’ courts.

Nine, it is heard from some quarters that there is a supposed ‘Abuja Declaration’ whose main aim is to Islamize the entire Africa. Africa was Islamized over three centuries ago with the coming of the Arabs in Africa. Yes, people still are converting to Islam. Many people are still converting to Christianity. But is conversion to Islam a result of Muslim Personal Law? Is it as a result of Muslim Criminal Law seen in states as Nigeria (Kaduna especially), Sudan, or Cote d’Ivoire? It is not. Muslims believe in one God as Christians do. So what if one converts? Is it not their individual religious preferences where they go worship their God? Christians have also multiplies, don’t we see these numerous denominations and Churches being set up?

With the above, it is quite clear that the group opposing the entrenchment of Kadhis’ courts is on the wrong side of history: especially our constitutional making history. I appeal to both sides to stop this grandstanding: especially those opposing the entrenchment of Kadhis’ Courts. Please for God’s sake, let the two sides embrace the spirit of inter-religious dialogue.

Finally, as I said before, the Church has not given us the guidance and leadership we need at this stage of the review process. They should at-least let Kenyans decide whether to vote for or against the Proposed Draft Constitution, which is better than the current one several fold. Lets us pass it at the referendum.

Now playing- Adele- Chasing Pavements

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