Building a case against the Kadhis courts on the recent ruling, miscellaneous civil application of 2004[the Kadhi Courts case] may be suspect. Many had quickly weighed the ruling against the impact it would have immediately on the proposed constitutional process and particularly if it would affect the referendum, and found it negative. It is obvious here that it failed to fully neither rule the courts illegal nor erase the contentions it brought. Should the proposed constitution pass, the ruling might remain a stumbling block in the administration of family law in this country not to mention inter-religious relations, unless the appeal court quashes it.
I found an analogy of this ruling in William Shakespeare’s, The Merchant of Venice. Shylock demands his pound of flesh from Antonio. "Balthazar", asks Shylock to show mercy in a famous speech (The quality of mercy is not strained—, arguing for debt relief), but Shylock refuses. Thus the court must allow Shylock to extract the pound of flesh. Shylock tells Antonio to "prepare". At that very moment, a flaw in the contract is pointed out: the bond only allows Shylock to remove the flesh, not the "blood", of Antonio. Thus, if Shylock were to shed any drop of Antonio's blood, his "lands and goods" would be forfeited under Venetian laws. Shylock, has to forfeit his property, half to the government and half to Antonio, leaving his life at the mercy of the Duke.
The court declared that the section providing that the Kadhis should not only posses the knowledge of Islamic law but also be a professing Muslim proves the exclusion of others on the basis of creed as inconsistent with Sections 65 and 82 of the Constitution. The nature of the employment of the Kadhis or the context in which they work demonstrates, that being of this particular religion or belief in Islam, is a genuine and determining occupational requirement. There are laws allowing for discrimination in employment on the basis of belief and such exemptions have been universally accepted and applied whenever an employer has an ethos based on religion or belief making regard to that ethos and belief vital for the position. It is hard to imagine a Muslim apply to serve as an army chaplain either catholic or protestant? Here is an instance where discrimination is not a vice but enables an environment where the occupation is safe guarded from conflicts of ethos. This ruling erodes the possibility to allow such discrimination not only in this case but sets precedence that will impact on all situations where employment would require such considerations.
In concluding that, the Kadhi’s courts were religious courts, the courts failed in my opinion to probe their function as abitrators. Does the fact that it deals with Muslims and administered by Muslims make it a religious court? Was there any proof that religious instructions took place here beyond arbitration of Muslim personal law? All personal laws of marriage, divorce and inheritance are derived from religious belief and it is obvious in the current and proposed constitution’s family law have had influence of Christian doctrine though we do not call them religious laws. We should see the Kadhi’s courts in the context of judicial administration of personal law marriage, divorce and inheritance of Muslim people whose culture and religion are fused and therefore very difficult to divorce. Since our courts are not competent to handle Muslim family law, it means that the Muslim people would be disenfranchised if the application of their laws would be declared unconstitutional. This position also exposes the family laws in the country to question of legitimacy on the same premise, since they derive from common law which draws in turn from Canon of the Church of England. I deem it impossible to rule the Kadhis courts religious and therefore unconstitutional without violating the rights of Muslims to their religious and personal freedoms guaranteed with this same constitution, or bringing to question the legality of family laws as are proscribed in this country on the same count.
The ruling has reinvented the ten mile strip with potential of rekindling strong sentiments of not belonging to
The court found that the financial maintenance and support of Kadhis’ courts from public coffers amounts to segregation and is discriminatory and therefore elevates and uplifts the Islamic religion over and above other religions while Kenya is a secular state. We have never in this country adhered to a secular doctrine of state, in fact, we have had a close cooperation between state and religion where both have benefited from each other. There are instances that religion has played a role in education and health services to the citizens that ought to have been state’s role. The state has also gone out of its way to facilitate the activities of religion. The church has been the greatest benefactor of corporation of religion and state in schools and hospitals Churches have been accorded state favors and we have never practiced this separation as the Judges ruled so will the church be prepared for this kind of separation. So in finding the Kadhi’s courts at discriminatory in this provision will this doom the cooperation that has existed between the state and religion? Are we prepared to go the full measure of separation which implies secular state?
This court has granted the prayer of the church leaders thus allowing them the pound of flesh but it is not without a cost!
Rev. Francis Omondi
Anglican Church of