Exemption from the Bill of Rights:

On the surface it appears indefensible that there is qualification to Bill of Rights and worse still that this singles out Muslims with reference to the Kadhi’s courts. The introduction of the Bill of Rights in the proposed new constitution has necessitated this limitation to enable the Kadhi’s courts to fulfill its mandate.

The NCCK along with other church leaders contends that: “The Bill of Rights is adulterated to exempt persons professing Muslim faith” for this reason they push for the ‘ Removal of exemption from the Bill of Rights on the basis of religion or any other basis’

This statement shows a miss-reading of the article in question in the Bill of rights:

Article 24: (4) “The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.”

It is clear here that the article grants LIMITATION of rights rather than exemption from the Bill of rights. Further, there is specific limitation provided for on Equality. It means therefore that the Kadhi’s courts there will be allowance to apply ‘Islamic’ standards that differ with the equality standards known and applied world over, so as to enable observation of Muslims’ religious traditions which is a blend of culture and faith.

It is not unusual to limit peoples rights, a claw back if you like, if this it is voluntarily. There are people who forfeit their rights by joining or belonging to a [legal] group that deem the limitation necessary to function. In this constitution there are others found as in article (5) that limits freedoms of people serving in defense forces and police: when one signs in the forces, they pen a limit to some of their rights which if they desired to exercise they would have to resign.

Could the CoE have considered the existing divergent views on human rights while making this provision? Even though the Universal Declaration of Human Rights enshrines universal rights that apply to all humans equally, whichever geographical location, state, race or culture they belong to. There have been questions raised on the efficacy of this principle. Proponents of cultural relativism argue for acceptance of different cultures, which may have practices conflicting with human rights. This questions the view that human rights can and are Universal, Universalism has been described by some as cultural, economic or political imperialism. In particular, the concept of human rights is often claimed to be fundamentally rooted in a politically liberal outlook which, although generally accepted in Europe, Japan or North America, is not necessarily taken as standard elsewhere.

It goes without saying that without this limitation, the functions in the Kadhi’s courts would have been compromised and the community’s freedom of worship infringed. Where as different Muslim jurists hold different positions on these matters and the application of Islamic law, there are no specific school (s) which the Kadhis will apply in cases. But all schools of Jurists agree that women are not treated in complete equality with Muslim men in the administration of justice.

The law of evidence discriminates among witnesses on the grounds of gender. The testimony of women is inadmissible in the more serious criminal cases. In civil matters, it takes two women to make a single witness of a Muslim male as we had seen earlier. The Muslim male is exempted from all these restrictions since he is always fully competent (adl) witness under Islamic law, not unless he is disqualified by specific personal default.

Islamic personal law also provides another example of discrimination on gender basis.

• A Muslim man may be married to up to four wives at the same time but a Muslim woman can only be married to one husband at a time.[1]
• A Muslim man may divorce his wife, or any of his wives, by unilateral repudiation, talaq, without having to give any reason or justification to his action to any person or authority. Yet a Muslim woman can obtain divorce only by consent of the husband or by judicial decree for limited specific grounds such as the husband’s inability or unwillingness to provide for his wife.[2]
• In inheritance, a Muslim woman receives less than the share of a Muslim man when both have equal degree of relationship to the deceased person.

The inequalities mentioned here would have hugely contradicted the rights of women in courts had the application been extended to deal with civil or criminal matters. But that Islamic law here deals only with personal law in matters of divorce, marriage and inheritance which we should limit ourselves to. The limitation should not be viewed as a special privilege to the Muslim community, nor as a deprivation or subjugation of rights of a given section of this community. Neither the Human rights groups nor women rights groups, not even Muslim women caucus have objected to this limitation. I assume that it is because of the conditional line of article 170 (5): which is both cultural and religious as has a voluntary angle to it;

Article 170 (5): The jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

There is a notion of voluntary submitting to the jurisdiction of this court, implying that one has an option to opt out should they perceive that the courts are infringing on their rights.

This should change the thought that Muslims are granted exemption from Bill of Rights, rather, to fulfill what has already been granted the Kadhi’s courts, as a rights limitation. This is mitigated for by the choice given in to submit to this court provision. This does not make them special more than it accommodates their community order in our dynamic world.

Rev. Francis Omondi, the Anglican church of Kenya.

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[1] Qur’an 4:2 also Coulson, N. A History of Islamic law, Edinburgh: Edinburgh University Press, 1964.

[2] A construction given by the founding jurists of verse 2:226-32 of the Qur’an , Gibb, H.A.R., and J. H. Kramers, Shorter Encyclopaedia of Islam. Leinden: E.J. Brill, 1953. pp564-67

igniting fresh conflicts

In making the Kadhi’s courts an issue of contention in the proposed new constitution, the church leaders have put the review process in a total dilemma. Those for whom this law exists have stated categorically that, they will not ACCEPT less than what they already had. It is a perfect play for those who want the defeat of the proposed new constitution. For, if the Church should say YES on the ground that this wish is granted, the Muslims will surely swing to the other side of the seesaw and drive for NO. Both communities are significant weight and stake for the enduring peace of this country.

We are unawares be replaying the conflicts of 1962 that made the Muslims on the Kenyan coast and the Northern Fronteir District seek to break away from Kenya to join Zanzibar and Somalia respectively.

There is no doubt that Muslim-Christian relations influenced the nature of Kenya’s supreme law, its constitution. Learning from the experience in neighboring Tanganyika, where there had been rebellions against imposition of laws derived from Christian values, the British realized there was a great need to accommodate the many Muslims in Kenya by written guarantees safeguarding their way of life. As a result before independence parallel courts and laws were applied in the country.

The 1963 independent constitution developed from various British orders in council, was influenced by this Christian-Muslim relationship it appears that it was necessary also to accommodate all Kenyan communities, upon the adaptation of the common laws.

Accommodating minority interests after independence in the Kenya’s supreme law has resulted in a more peaceful method of conflict resolution than the case in the surrounding countries. After the British took over Kenya in 1895 the 10 mile costal strip remained the possession of the sultan of Zanzibar but was administered as a protectorate. However latter it was joined to the Kenya Colony for administrative purposes.

Ghai and McAuslan in, Public Law, rightly observes that, the 1963 constitutional negotiators reflected the powers of various communities in Kenya. Muslims on the coast and Somali’s in the Northeastern who were 90% and above Muslims realized that unless they bargained for special guarantees they would not live in an Islamic way in Kenya. A political movement from the coast began to develop and articulate the need to maintain an Islamic way of life. It crystallized in the Mwanbao United Front [MUF], which send delegation to the constitutional conference in London.[ report of the Kenya constitutional conference (London HMSO, 1962) pp 8-9; O.S. Basadiq and Shaikh A. Nasir represented the Mwambao United Front.] The Front pointed out that the coastal people were distinct social group that they should either be given autonomy or be allowed to secede to or ‘rejoin’ Zanzibar.

British commissions set up to look into the problems of Muslims subject in Northern frontier District [NFD] and the coastal strip, reported in December 1962 stated that religion was a factor . NFD report stated that opinions were influenced by religion, ethnic affinities and way of life. The Somalis boycotted the constitutional talks and the general elections that led to independence in 1962 agitations for cessation continued and ended up in general emergency immediately and after independent. The failure to integrate them at that time was largely due to the presence of the Republic of Somali. The emergency was extended to Tana River, Marsabit, Isiolo and Lamu by constitutional amendment of 1966.

The people on the costal strip were accommodated after a protracted negotiation emerging from the James Roberts commission’s report. The report set to revise the 1895 agreements and lead to a tripartite agreement signed between her majesty’s government, the Sultan of Zanzibar and the Kenyan government under Kenyatta. Kenya promised to safeguard the one vital institution in the constitution. This was why the Kadhi’s courts were not included in the annulled colonial guarantees. At Independence, by note reference EXT. 237/003A of 25th March, 1964, addressed to the Secretary General of the United Nations, mzee Jomo Kenyatta expressed the Kenya Government's intention to review all pre-independence treaties and agreements and determine which agreements will be honored by the Government and those which will be abrogated or modified after appropriate notice to the interested parties.

The difficulty the drafters of the proposed new constitution have had is how to accept the church leaders demand for removal of the Kadhi’s courts from the constitution, a provision seen as extremely important by those for whom it was meant for, without triggering the old concern that put it in the constitution in the first place. Their fear of intolerance has been confirmed! Only that unlike then, there are virtually no options for the Muslims neither in Zanzibar, nor Somalia and autonomy is not possible with majimbos out of the question now. We risk a revolt should the Muslim community perceives that their rights are being threatened.

Since there is no evidence that this provision has had any negative impact on the Church and no clear reason as to why it should be removed the church leaders should find other reasons for refusing the proposed law. The church has made an impossible demand that is opening religious conflict in this country. If the same desire for tolerance and accommodation will be lacking to day, then we should be warned!

Rev. Francis Omondi, The Anglican Church of Kenya.