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.