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

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