Thursday, April 22, 2010

Islam favored over other religions?

There can be no contestation as to which religion is favored in the Kenyan law. We though have recently noticed that Christian leaders have claimed that Islam has been unduly elevated in the Kenyan constitution by the fact that articles 169 and 170 of the proposed constitution providing for the Kadhi’s courts specifically mentions Muslims for whom this provision is intended. But does this mention mean they are a favored religion in the laws of this country amounting to Islam being the state religion? Since this mention deals with Muslim personal law, I would choose to limit my argument to laws dealing with marriage, divorce and succession reach a fair conclusion and to see if at all this mention does affect other religions.

The interplay of religious forces; Christianity, Islam and African Traditional Religions affected the formulation of laws in East Africa in both colonial and independence periods. These are the forces that shaped the value systems from which policies and laws were formed and for our discussion the family law. The British colonial officials wanted to create a society built upon their European values; however the presence of Muslims in East Africa posed a great challenge, since they too had operational societal laws which had been practiced for long before this time. The colonial officials and the black African presidents who followed them realized that in a pluralistic state uttermost care was needed in making and implementing laws and policies because no laws and policies could be effective if opposed by a substantial section of the society. This is why, in Kenya and Tanzania leaders encountered two antagonistic value systems each seeking to influence the society on the basis of its dogmas. As a result of this, the colonial officials opted to adopt policies that would not unduly hurt either value systems, even though they overshadowed traditional values systems. Kasozi observes that best option available was,

“ separate laws could be made for each religious community, as happened in Kenya and Tanzania and to some extent Uganda. Many Muslims on the coast of Kenya, Zanzibar and coastal Tanganyika were administered under Islamic law, while the rest of the country was administered under British common law, whose values had been shaped in Christianity. However there was a repugnancy clause that made common law paramount in any conflict with Islam or traditional religions.”[1]

The Order in Council of 1897, that opened the application of common law in Kenya, stipulated that, in addition to statutes made by the colonial administration, the common law of England, equity and statutes of general application would apply in what is now Kenya subject to the local conditions and the customs of the people.[2].

This competition between Christian and Muslims to influence laws, discouraged the colonialists from bringing every one under one law resulting in drafting laws and ordinances for each different group. Attempts to harmonize family laws have been a sore to governments even after independence. More recently, the efforts to drafted the Law of Succession Act (cap160 1982) to unify all family laws into a single code applicable to everyone, was strongly and successfully opposed by different communities [especially Muslims] on the ground that it would violate religious freedoms.

It is not difficult to discern the religion whose values and practices have influenced laws in this country. We know for instance that marriage laws applied in this country derived from The Marriage Act of 1753 in England and Wales. This was developed out of the Cannon laws of the Church of England, although The Act tightened these existing ecclesiastical rules regarding marriage, providing that for a marriage to be valid it had to be performed in a church and after the publication of banns[5] or the obtaining of a licence.[6] Jews and Quakers were exempted. From this we have developed the African Christian Marriage and Divorce Act (cap 151) and Marriage Act (cap150 commencement: 29th November 1902). The provisions under these acts that criminalized polygamy and adultery are also issuing out of Christian morality where they are anathema: adultery and bigamy was seen to undermine the institution of marriage and was encouraging a breach of the marriage contract for marriage here is seen as a monogamous union, which is different from the African Traditional religions where these are not vices. Many Kenyans who contract civil marriage are obliged to fit in Christian morality even when they are not. The impact of this law may be seen in the many court cases of disputes following deaths of spouses especially when after contracting marriage under this act someone went ahead and married under customary laws.

In Re Ogolla (1978) K.L.R the deceased had married Gladys in 1964 and had four daughters with her. He died in 1974. A lady named Bona claimed to be married to him under customary law and claimed a share of his estate. It was held that Bona was not a legal wife neither was her child his legal child, and in the words of Simpson J,

An African is not obliged to marry under marriage act or African Christian Marriage and divorce act: but if he chooses to do so he is choosing the Christian way of life, and on his death removes the widow and the children from the ambits of tribal customs affecting cohabitation and guardianship.”[3]

.Family laws are derived from belief and values it follows that they were extracted from religion as a main source of ethics. Since Muslim values were not going to be adopted for law, they were allowed space in the law of the land, inside but integrated. It will be difficult to conceal how much besides the common law have Christians ethics permeated several sections of this constitution whose adoption will soon translate into law despite alternative views of a section of this community

To guard against of violation of religious freedom to the Muslims it was prudent that Kadhis’ courts were provided for as they are now. Throughout history Islamic law has remained central to Muslim identity and practice, for it constitutes the ideal social blueprint for the ‘good society’. Despite vast cultural differences, Islamic law has provided an underlying sense of identity, a common code of behaviour, for Muslim societies. This shows how wide a scope the laws can cover from worship and belief to societal order and family law. Family law is central in Islamic community. Because of this central role it enjoyed pride a place in the development of Islamic laws as well as its implementation throughout history. It is observed that “while modern Muslim rulers and caliphs might limit, circumvent, and replace penal or commercial laws, Muslim family law has generally remained in force.[4] This can explain why Muslims accepted all other laws provided for in our constitution even though not congruent to their values but sought strong safeguards on family laws.

Being very specific the Kadhi’s courts have squarely applied to Muslims and no other faiths. This court on the contrary has encountered conflicts operating as a subordinate court as evident in its administration:

1. If only one party is Muslim, the Islamic law is not applicable ,

2. When a case is before a court other than Islamic court there is no obligation to apply Islamic law even if both parties were Muslim

3. The problem of appeal to common law, even with the provisions made for assessors, was that the High court has no obligation to apply Islamic law even if both parties were Muslims.

4. The conflict in rules and procedures or evidence in Islamic law is very different from the Evidence Act which is ordinarily used in appeals at High Court despite the Act stating that it is not to apply in Kadhis’ Courts what necessitated the exemption clause in the proposed constitution’s Bill of rights, article 24(4) [of the proposed constitution].

Consequently it will be hard to state the case that Islamic laws, have been elevated above other religions, nor are there any possible way it can interfere or affect other religions. Islamic laws are caged in the firm cabin of laws drawn from Judo-Christian values which does not prove any favour or being advantaged over other faiths in this sense.

When we see the constitution as a Mosaic depicting diversities of cultural and religious experiences of members of this society it will be easier for us to step up our accommodation of others and their differences. We cannot read article 8 of this proposed draft differently: ‘There shall be no state religion’. Obviously Islam cannot be said to be state religion nor religion favoured in law, the article 8 also kills any possibility of using the feudal principle, ‘ religion of the ruler in the official religion of the state’ which Amin Dada used to declare Uganda an Islamic state in 1974.[5]

Rev. Francis Omondi, Anglican Church of Kenya,

[1] Hansen, H.B.& Twaddle M, Religion & Politics in East Africa, E.A.E.P. Nairobi 1995. pp229

[2] The law that governs agreements to marry and betrothals, formalities that brings marriages into existence, maintenance, separation, custody, adoption, nullity, divorce, property acquired during the marriage by spouses, devolution of property and succession to property after a person dies.[explained by Kuria , G K , East African law Journal 12, 1 (1967) pp33-82

[3] [ Kimeri-Mbote, P. the law of succession in Kenya, gender perspective in property management and control, women and law in East Africa 1995, Nairobi

[4] Esposito, J, Islam the straight path, 1988 OUP New York , 75

[5] Ali A. Mazrui, Religious strangers in Uganda: From Pasha to Amin Dada, Affrican Affairs 302(1977), pp21-38

Saturday, April 17, 2010

Anomaly in the constitution?

To claim that the inclusion of the Kadhi’s courts in the constitution is an anomaly that any new constitution should rectify is stretching the truth a little too far!

An understanding of how we ended up with the Kadhi’s courts in the constitution should inform us on this because, it is not true that the inclusion of the Kadhi’s courts in the constitution was an anomaly. One of the foundations of Jurisprudence in this country is the kadhi’s courts, which were an established practice on this soil before the country’s formation in respect to Muslims lifestyle.

After imposing the common law, the British realized that there was a great need to bring on board the many Muslims in Kenya, even though a minority, by written guarantees to safeguard their lifestyle. By 1895 the colonial government had begun to rule the 10 mile strip of the East African coast where Islam had been practiced for centuries. The British promised to protect the Islamic way of life by written guarantees. This is why the Order in Council of 1897 allowed the application of Islamic law to all coastal peoples, including the non-Muslims. This meant that the coastal strip was to be administered as an Islamic state within the confines of a domain where common law was supreme. As a result, Liwali, Mudris and kadhis administered not only Islamic matters but secular ones also.[1]

By this allowance we evolved a parallel system of courts with the Islamic courts subordinate to the common law courts. Yet since all Islamic courts were under the jurisdiction of the High Court, common law was supreme over the Islamic laws. Where cases involved Islamic law, the chief Kadhi sat in the High court as an assessor. They expected continuity after independence, a reason for the demand that it be included in the Kenyan Constitution.

We cannot ignore the fact that there were genuine concerns that called for the courts to be included in the supreme law of the country. The fear that Muslim way of life as in their laws would be denied. This has been replayed again here, strengthening the reason to have them retained in the proposed constitution.

The Muslim community [the Muslims on the Coast and the Somalis in the ‘Northern frontier district’] in the country were faced with a great dilemma on the eve of independence. Realising that the African Blacks now overwhelmingly Christian, who had benefited from western education and were now going to rule the country, they had to negotiate for special guarantees if they were to remain part of the new country. The run up to independence was so heated with threats to break away from Kenya to either Zanzibar or Somalia that it was necessary in 1962 for the British government to appoint a commission to advise on this matter.

Sir James Robertson, a former governor General of Nigeria was called to Report to the Sultan of Zanzibar and Her Majesty’s Government jointly on the changes which are considered to be advisable in the 1895 agreement relating to the coastal strip of Kenya as a result of the course of constitutional development in East Africa[2].

It advised that the region be retained as part of Kenya and that the Sultan be given due compensation for it with the following guarantees to be enshrined in the constitution.

  1. A declaration of human rights including security of religious worship;
  2. Safeguards for the maintenance of Shari a law for the Muslims and the retention of the Kadhis’ courts;
  3. Arrangements for the future appointment of Muslim administrative officers;
  4. An education board.

This is what the three governments [Sultan of Zanzibar, the government of Kenya and the United Kingdom] signed as an agreement endorsing the recommendations. By this the new government promised that:

Free exercise of any creed or religion will at all times be safeguarded and in particular His highness’s present subjects who are of Muslim faith and their dependants will at all times be ensured complete freedom of worship and preservation of their own religious buildings and institutions. The jurisdiction of the Chief Kadhi and of all other Kadhis, will at all material times be preserved and will extend to the determination of questions of Muslim law relating to personal status, for example marriage, divorce and inheritance in proceedings in which all parties profess the Muslim Faith. [3]

This agreement entrenched the Kadhi courts in the Kenyan Constitution allowing the Muslim law to apply in the country even though it only would hold where both parties are of the same faith. There immediately was a difficulty to administer justice to millions of Muslims leaving in the Northern frontier district and those who were now integrating in the country. This led to the enactment of The Kadhi's Courts Act, Chapter 11 of the Laws of Kenya in 1967.It derives its jurisdiction from Section 66 of the Constitution.

Section 4(1) of the Act, made in pursuance of Section 66 (3) of the Constitution there shall be established such number of Kadhis courts as the Chief justice may, in consultation with the Chief Kadhi, determine. There was need to establish these courts near the population that will use them.

Section 4 (2) enacts that the Kadhis' courts shall have jurisdiction as follows -

(a)three courts shall each have jurisdiction within Kwale District, Mombasa District, Kilifi District and Lamu District;

(b) One court shall have jurisdiction within Nyanza and Western Provinces as nine listed districts in Rift Valley Province.
(c)one court shall have jurisdiction within Wajir District and Mandera District;

(d) one court shall have jurisdiction within the Nairobi Area and the Central and Eastern Provinces except Marsabit District and Isiolo District;

(e) one court shall have jurisdiction in Garissa District and Tana River District;

(f) One court shall have jurisdiction in Marsabit District and Isiolo District.

Muslim family laws were incongruent to the family laws now applying in the country and this distinction should be maintained if the community’s freedom of worship was to be safeguarded.

As a Christian and a priest of the church I have chosen to respond to this issue to clear the air, for I fear statements being made now will open a new front of conflict which would better be prevented now than not. We are responsible at all times to act in a way that would not provoke anyone to anger or violence and in truth.

Rev. Francis Omondi,

Anglican Church of Kenya.

[1] Native courts regulation, 1897 E.A.P.G, Orders Regulations, vol. 1, p.65, made under the Ordinance in Council

[2] report of the commission on the coastal strip ( London, HMSO,1962) Cmnd. 1585

[3] Kenya Constitution: Section 179, 22; Kadhi Courts Act, Cap.11

Wednesday, April 7, 2010

Be thou faithful unto death

Be thou faithful unto death, and I will give thee the crown of life.

Rev 2:8 And to the angel of the church in Smyrna write: These things saith the first and the last, who was dead, and lived again:

Rev 2:9 I know thy tribulation, and thy poverty (but thou art rich), and the blasphemy of them that say they are Jews, and they art not, but are a synagogue of Satan.

Rev 2:10 Fear not the things which thou art about to suffer: behold, the devil is about to cast some of you into prison, that ye may be tried; and ye shall have tribulation ten days. Be thou faithful unto death, and I will give thee the crown of life.

Rev 2:11 He that hath an ear, let him hear what the Spirit saith to the churches. He that overcometh shall not be hurt of the second death.

Every time Christian suffer, we should in them Christ suffering. Their blood his own and their tears his very own and into this fellowship we are invited to share. Nothing in the resent past gave us this opportunity like the crisis of Jos. We began this lent with very disturbing news of an attack on defenseless Christian community in Jos, Nigeria. This place had previously been a buffer of peace in the turbulent northern Nigeria with a generally large Christian population has had increasing attack from Muslim extremists making living here impossible, as one Christian leader stated then, “ we live in the abode of Satan himself…!” in light of the atrocities here like this recent one.

With these fellow believers, I share this letter of the Spirit of Christ to the church of Smyrna. This ancient city shares a lot with Jos today. To Smyrna, the lord spoke to encourage them showing, He was aware of their plight, that though this church was poor economically and had been through immense afflictions, more dark days were still ahead of them. First from those who were among them who had given them selves away to worship of Satan though they were still worshiping in the synagogues with them. It was unfortunate that people would allow the worship of foreign gods to infiltrate the synagogues. Smyrna was known as a center for emperor worship with great temples built on its acropolis the outstanding one was the one built in honor of Tiberius and one even greater in honor of the goddess of Rome. Those in this league applied pressure on Christians in this church from within and the tight fisted Roman rulers from without.

To them the lord spoke these words of assurance indicating that he is not only aware of their physical state [one of poverty economically] but also the pressure they face daily from all sides to yield and vector away from God, Rev:2:9, but he points to yet bleaker days ahead, more suffering for them in that some will be thrown into jail by Satan for ten days. But we must notice that there is a limit to the length of time this testing will last, and aren’t we glad that it will not exceed the days set! This should allow them to overcome and be given the crown of life, yes those who overcome will not be hurt at all by the second death this is the greater and outer boundary which is the Lord himself. Death as we know it is the first boundary, but the greater and final is yet to come and is here referred to as the second death.

Here are lessons for us from this passage:

1. Satan has power to inflict evil and this is hinged in our working with him to cause evil within the body or those who have given themselves to Satan. And this is the pressure that will came upon those who want to walk faithful to the Lord they will be tempted by evil and they will be afflicted even caused great harm. The ability to choose is in our createdness. We have dominion to follow the Lord or Satan and this will not be taken away from us humans.

So when perpetrators of evil deal a heavy blow on Christians as we saw in Jos , it is certainly NOT the will of God, we can state that these men who have carried out this heinous offence have used their freedom choice wrongly and crossed fellow human being’s life. And we should call this a tragedy! These are tragedies that go against the will of God they should be seen as such and coming from the using a freedom act that crosses the will of God.

How then do we view death and tragedy of this magnitude? What will allow us to face such difficulty and transform us to be faithful witnesses of His grace?

Tohito Kagawa attempts to reflect on death in his book Meditation: he says

“I do not deny the eventuality of death, death lies sternly upon my course, nevertheless I believe that Love [the love of God] has far greater power than death. ‘ death is swallowed up in love …’

Love is stronger than death, love’s glory tramples even death under feet, I am thinking that death is transformed through love. Death is an aspect of change, while love is the substance that persists through all changes.

2. What happens to us is not FINAL however grievous it appears now. The harm caused though painful has no final word on us the pain we face today are boundaried. God watches and will help us through this if we trust him through our ordeal. In fact the challenge of death is contained in the statement that Christ has the final say over the second death. I am amazed by the stories emerging from the earlier attacks on Christians in Borno still northern Nigeria. On the 26th July 2009, a well coordinated attacks on Christians triggered by Boka Haram [a Muslim extremist group in Northern Nigeria set fires on churches and homes of local Christians and there were reported many Christians dead following these heinous attacks in Borno state. Perhaps the most striking part of the chaos was the brutal murder of two pastors who refused to convert to Islam to gain their freedom and save their lives. One of them George Orjih preached to the leader of the militants about Christ before his martyrdom. A fellow kidnap victim who was latter released reported:

While we were lying there, tied up, George turned to me and said, ‘if you survive tell my brethren that I died well, and I am living with Christ, and if we die we will know that we died for the Lord’”. George is reported to have been singing and praying throughout the ordeal, encouraging the believers not to give up, even unto death.

There is a greater boundary that these things cannot break and that is the second boundary God’s grace is still great

Prayer for our friend should border along the prayers by these saints in (Rev 6:10) and they cried with a great voice, saying, How long, O Master, the holy and true, dost thou not judge and avenge our blood on them that dwell on the earth?