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.
- 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.
- 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