Friday, March 5, 2010

Kadhi's courts ! should they be out of the constitution???

In this article I have given reasons why I take a different position on the issue and strongly affirm the status quo. There are good reasons why we should accept the Kadhi’s court in the constitution as has been proposed and having done that we should delve deeper to unleash our potential in doing the mission of the kingdom in this country and our world.

Re: The Kadhi’s court in the constitution

I have read the recent document on the Kadhi’s courts[1] and the call from Christian leaders to reject the Draft constitution if the Kadhi’s courts will be included. Reading Njonjo Mue’s open letter provided another Christian position that sees no issue in having the Kadhi’s courts in the new constitution[2]. The concern here is that the issue of the Kadhi’s courts clouding the constitution making now could whittle the labor of more than 20 years to get a document that could create environment for peace and prosperity in this country for all.

The article , the constitution must treat all religions equally comes through obviously as a Christian concern more than a view of neutral citizen on constitution and the fact that it is forwarded by a Christian group tells who are its proponents. There is legitimate concerns of the incongruity of the Kadhi’s courts in the judiciary clause, but these can be very well addressed by it’s placement as a subsidiary court. How can we approach this subject with clarity for the benefit of the kingdom as well as achieve the ideals of nationhood?

An authentic way to addressing this issue should emerge from a missiological and ethical perspective besides legal and philosophical one. This should be from the moral ground of truth and integrity of our reasoning.


a. Agreement at independence;

We cannot just do away with the tripartite agreement that put the Kadhi’s courts in our independent constitution. The agreement to give part of his jurisdiction and subjects to the newly independent country, by the Sultan of Zanzibar, cannot be violated and as a right it just must be given. Njonjo Mue articulates this position in his open letter and I cannot agree with him more. Our value as people of integrity should constrain us from taking what was rightly given to them in exchange of sharing with the rest of us what was theirs [territory]. We shall have used our numbers to take away their heritage. So our argument that we are doing a new constitution and therefore should push it away does not hold.

Because of shared citizenship we must accommodate and allow them space for existence and this is a vital part.

b. constitution making;

We need to recognize the gains we have made since 2002 when we overtly began to resist the plan to Islamize the country constitutionally. The original proposal to the CRCK by Muslim community was radical and would have caused greater problems if it went through. Their proposal then recommended the expansion of the Kadhis’ courts jurisdiction to include civil commercial and other arbitration issues besides family law. They sought to elevate the Kadhis courts to high court level and have their Kadhis lifted to the levels of high court judge and of course create hierarchical appeal structures that would have created parallel court systems.[3]

The pressure then forced the Muslim community to accept Bomas draft that maintained the status quo as a compromise. As a result the Kadhi courts as we now have them in the Draft constitution, has maintained that courts are subordinate courts, whose appeals can be heard in the high court and Islamic law may not necessarily be followed. Those appearing before the Kadhis must be both consenting to do so otherwise they would have an alternative in the high court and its mandates have been defined as marriage, divorce and inheritance.

This has effectively made the whole idea of Islamization via constitution impotent or untenable! In the Draft constitution, as we now have the chances for expanding the Kadhis courts will be really slim and if attempts are made by an act of parliament, we would have grounds to challenged it as unconstitutional or exceeding the provision of the constitution. Having it here shall have “inoculated” the constitution from the dangers we fear most of the introduction of Shariah law. This position is far forceful than not spelling it here to let the courts be formed by an act of parliament.

c. favored religion status

There is the concept of separation of state and religion and l loud the analysis done by my friends Pete and Waiyaki on the alterations on the draft. The value in the doctrine of separation of state and religion works very well where there is clear boundaries of what is sacred and secular. To bring it is an eclectic social context which is our will be a science. In Africa where ideologies are so fluid and hard to define, there will be more convincing to do to uphold this doctrine. Our ideas of secular states are often diluted with our own socialization of being religious. In the case of Kadhi’s courts we will find a thinner line to separate what is cultural, religious or social owing to the Muslim communities and nature of their religion. Any one with a good understanding of the religion will agree that the role played by the Kadhi’s have very salient religious impact. If we were to view this from a Muslim perspective it is the Imams and the religious scholars that hold religious sway on the community. The Kadhis would not be regarded as their religious leaders as their role is confined to legal guidance and addressing such arbitration. It will not be fair to use our parameters to judge the value of services they provide to Muslim communities.

Should we in upholding this doctrine bar our Bishops and pastors from accepting government appointments in committees and commissions where they work for government in observance of this doctrine? Or should they lead prayers in parliament or state functions? We have a task to define what this means so that we can weigh the favor bestowed on some religions or denominations. What of the obvious favors received by churches from governments, would that not violate the doctrine?

d. tax payers money for religious services

This question has been disturbing to many of us for long: ‘Should tax payers money go to service of a religion?’

It will be better to look at this issue not as money serving other religions but we should view that here are Kenyans whose government is providing services for. We should also understand that the frequency with which the visit the Kadhi’s courts they pay for each service rendered unfortunately they fees they pay do not go to the Mosques or Imams but to the state! There can possibly be a balance on this issue.


e. we are majority and we do not want the courts!

There has been a suggestion that we are a majority and therefore our wish, our abhorrence of the inclusion of the Kadhi’s courts in the draft constitution should prevail. The idea of majority is just tricky for when we are majority we are minority too. There are huge swaths of this country where Christians are less than 1-5 %, but we exist there as a people and church should we all move back to Christian ghettos? This thinking is lucking of missional pulse of our faith. We must be among the peoples of the world that include Muslim communities. We therefore must weigh the implication to missions of this position. Are we suggesting to Muslims that where they are majority to govern by shariah law? I think what we are dishing will be served us in some way and we should weigh this out before we act and regret.

This position being taken to remove the Kadhis court from the constitution is NOT right, nor tactical and we should radically review it for the reasons above and much more for the danger it can pose to the church.

Our social ethics cannot be attained effectively through legislation, we must be an intentional community living out our social ethics in all conditions and contexts. Our values must bear through all we do and visible in our protestations.

If the constitution does not provide the contours for this law by defining its mandate and jurisdiction we shall open the ground for Muslims to seek and could get a wider and therefore dreadful mandate of application and practice. The inclusion as in the draft constitution will clear any ambiguity that could be exploited to as we feared.

In these exchanges over Kadhi’s courts we are hurting missions endeavors. Our stands are not only radicalizing some on the other divide but we are sowing seeds of intolerance, we are erecting a wall of enmity and barriers that will take long to break. These will have huge implication on Christians who are settled among Muslim communities where they live and do their businesses? What of the church in existence among Muslims.

The fear of Islamization is genuine and should be a concern to all of us. Excluding the Kadhi’s courts will not affect it, neither will we have spread the good news of Christ! We need to develop appropriate approaches on how we can be witnesses of Christ in this land.

We obviously cannot reject the proposed constitution on the grounds of the Kadhi’s Courts. We should find other reasons to reject this draft constitution as we sharpen our missional knave.

Omondi Francis Rev.

[1] Constitution must treat all religions equally… Ondeng, Pete and Waiyaki, Peter [Feb 2010]

[2] Open letter Re Kadhi’s court Njonjo Mue [Feb 2010]

[3] Kadhi courts and the Muslim law in Kenya Constitution , Omondi, F [ 2002]

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