prayers for Kenya

“Almighty God, who has given us this good land for our heritage; We humbly beseech you that we may always prove ourselves a people mindful of your favor and glad to do your will.

Oh God of our ancestors, we invoke Your blessing upon our new republic, embrace our nation in your arms as you did in it’s infancy.

We ask for your blessings upon the government and leaders of our nation, and on all who exercise rightful authority in our community. Instruct them out of Your law, that they may administer all affairs of state in justice and equity. Guide and foster leaders Of integrity and righteousness With the vision and courage Of our forefathers.

Unite the inhabitants of our country, of all backgrounds, persuasions and creeds, into a bond of true kinship, to banish hatred and bigotry, and to safeguard our ideals and institutions of freedom. Grant that all men will find the freedom and happiness that exists only through Your grace.

May this land under Your Providence be an influence for good throughout the world, uniting all people in peace and freedom, and helping to fulfill the vision of Your prophets:

“Nation shall not lift up sword against nation,
Neither shall they learn war any more.”

“For all people, both great and small,
Shall know the Lord.”

May peace and security, happiness and prosperity, right and freedom always abide among us, guarding us from war, from fire and wind, from compromise, fear, confusion.

In the time of prosperity, fill our hearts with thankfulness, and in the day of trouble, suffer not our trust in you to fail; all which we ask through Jesus Christ our Lord. Amen

Rev. Francis Omondi,

Anglican Church Of Kenya

Why I support the Proposed Constitution of Kenya

The 1897 order in council opened the application of common law in Kenya. it stipulated that in addition to the statutes made by the colonial administration, the common law of England, equity and statutes of general application would apply in what is now Kenya subject to the local conditions and the customs of the people.

The consequences of this were deep and continue to affect us to this very day. It created and concentrated power in a Center – colonial master, whose purpose was to exploit the resources in the colony for the west. Laws and policies were made to make this possible as a result Africans were striped of their only source of livelihood. Land was legally confiscated; people were striped of their dignity and virtually turned into tools to service this purpose. Institutions were created in line with this general goal thus both the Judiciary and police, the legislature and general administration which divided the country on tribal lines proved very effective.

At independence there was great aspiration that a change will benefit Kenyans. What we got was a reversal of roles rather than the order. We got coconuts – black on the outside but white on the inside, which mastered the system and continued exploitation of the country at the expense of the Kenyans. Inequalities got to the apex, power became a necessity to maintain the status quo. Poverty and corruptions became the hallmark of our society triggering a move from many on the on the margins to fight to be included also.

In the PCK I see an attempt to dismantle this unjust machinery to set a new order;

1. Fragment power and spread it to the margins, this goes with legal mechanism to share these resources away from the center.
2. It also brings those previously pushed to the periphery into the center with a voice and their interest attended to.

The PCK does this in three main ways;

a. Governance is restructured

Clear distinction in made between the Executive, Legislature and Judiciary and power is thus vested in all these institution to serve the people of Kenya.

Creation of County governments and the Senate further spread power to the grassroots enabled to check and advise the national government with the local interests in view.

b. Popular representation not only in numbers but texture. This way it has invited those on the outside IN. Communities are given visibility and space to participate, women’s participation has been guarded and their voice will now be present.

c. The dignity of Kenyans has been made central as indicted in the purpose for the document, the declaration of the sovereignty of the people of Kenya and to a greater extent the BILL of RIGHTS. These in my opinion will ensure equal opportunities for Kenyans through out the country and at all times.

As a Christian leader living in a society that holds social ethics incoherent in some ways to ours, I obliged to discern ways to engage in this society and therein be salt and light. It begs me two questions to resolve this:

1. Should we impose our social ethics in the Society we live in and ignore the position of those we share the society with despite their faith? One must be reminded that the grounds for which it is demanded of us to live in this Christian way, is because we have received Grace. Should we criminalize sin? Rather should not our quest be how to influence our society be through undermining its values to the extent that they are aligned to ours. Our primary concern should be how we live out our social ethics in this society. Our demand of the constitution therefore should be latitude to live out our ethics, put differently does the constitution give us space to practice and influence our society as stranger-insider?
2. The ends we seek that will determine the nature of laws the country will have. To guide us here we ought to pose these two questions;

i. What should we do? This will ask of us and the society questions of rules and therefore actions leading us to prescribe laws that all should adhere to and the does and don’ts. We would need to enforce the rules through punishment and coercion. We risk ‘talibanising’ our country and taking away peoples right of conscience.

ii. Should we rather ask; who should we be? In a multi-faith context asking these questions we will be seeking our foothold among competing values. This should lead us to question about Character, inviting us to live out our values and norms intentionally in the society with the purpose of inviting those outside the kingdom in through persuasion.

The context of writing this constitution should inform our current discussions. We are between post election violence that crippled this nation and a potentially explosive conflict if we do not urgently address the things that created the conflict in the first instance. We must coin ways of addressing issues of governance, dignity through rights of the people of Kenya and representation i.e. inclusiveness of all who have been out.

I am satisfied that these hotspots have been adequately addressed in the PNC and would highly recommend its enactment!

If NO vote won!

We shall have lost a chance to restructure our governance framework. The 2008 act which entrenched peace accord and created instruments for changes did not envisage the rejection of the constitution by the people. The CoE’s role ended when they gave the proposed constitution, both the IIEC and the IIBC and TJRC mandates expire in December. There will be need to set up new vehicles to address the constitution rewriting so as to address the contentions and conduct referendum.

The choice we have to make is between the current constitution and the PNC, not the one we probably wish to have! The aftermath of 2005 should be instructive, for if we loose political goodwill to carry out the changes we hoped for it will be a huge struggle to gain it, the political class in whose favor the present constitution leans would want to continue.

The impact of the failure to pass the constitution will precipitate an unprecedented competition and the ensuring conflicts may be greater than we have ever known.

We may never succeed in time for a general election which we will have to go to with the old constitution without an electoral commission in place already.

The possibility that there will be introduction of vertical and horizontal Checks and Balances especially with the entrenchment of key constitutional commissions to give Kenyans value for money and check impunity and facilitate a new culture of governance under a more clean, lean, effective, accountable and responsive government because the sanctions for violations of the rules shall be severe will have been wasted.

The church shall have proved the point that she is a Key player in the politics of the nations and you ignore them at your own peril.

Will the church now have the capacity to push for a new process of the redrafting the constitution? I am sure that groups that suppressed their preferences to allow for a new constitution will find a window to reintroduce their demands. With the political will gone the assumption will be that are fine with the current arrangement, we should not rule out revenge and opposition of the whole process for the same reasons some opposed this one…not to mention those wanting to maintain the status quo.

The church will find it difficult to erase the perception of an accomplice in the No platform with suspects of historical justice and those who ruined this country during their rule. Being on the one side with the church has emboldened them forgetting their contribution to oppression and impoverishment of Kenyans. How will the church face those for whom she fought for? The rejection of the katiba will delay addressing issues of justice for the IDPs due to PEV, in fact we may be prepared to receive more IDPs since we will have no structures and means to redress causes of political conflicts.The preoccupation with the wrongs in the constitution has silenced the churches voice of affirming the positives in articulating issues of justice.

During this process of Katiba the church has made ‘enemies’ with many communities and bridges that existed in relations seems to be in disrepair. It will be hard to reach out to Muslims for the apparent hostility over the Kadhi’s court issue and political class who supported the PNC. The church will have lost an allay in the interreligious forum to press for social reforms on the ills that we all condemn in the society.

Should Yes win:

The country will be rejuvenated in hope for changes of what is past and painful. Hope will create a new sensation that should be built on to create a new country. This will give the impetus for creating and managing institutions that will implement these changes. The Separation of Powers between the Judiciary, the legislature and the executive shall ensure that rights are protected, justice delivered, opportunities and security enhanced for all Kenyans.

The expanded Bill of rights shall finally secure the principle of the Indivisibility and inalienability of rights and freedoms. Kenyans now have the basis of building a democracy where the dignity of every citizen shall be the center piece of government policy. This shall fundamentally alter the basis of state policy and budgeting in Kenya and it shall greatly deal with inequalities that exist in Kenya today.

Popular Participation shall be secured with the enhanced platforms of peoples participation in governance including stronger political parties, better representation of the people and the avenues of legislation.

The church will have Credibility crisis:

Church leaders have been the bulwark of strength against oppressive regimes over the years. They stood for equality, justice and sought to end corruption and inequalities in this country. All these were rooted in her prophetic call. The society and its leaders will have little respect for Church leaders for their opposition to the draft and this rift unless bridged at some point will render the Church voice less there for blunting her knave to be salt and light in our society.

The church will face a theological crisis:

The church has made unambiguous position on the constitutional issues of sexuality and family, Kadhi’s courts and abortion. It is a clear ideal but it is remote from the way Christians believe. Since a vast numbers of Christians will have supported the constitution with the provisions deemed against the position of the church. There will be an abyss between what the church teaches and the way many members of the church live. When it comes the constitution and aspiration for justice most Christians do not behave different from others in society. How is the church to respond to this? One approach is strongly to insist on the teaching. If we do this we are in danger of becoming increasingly out of touch with the lives of so many members of our Church. The Church might become a narrow sect whose ethics isolates it and inhibits it from sharing the gospel with others. Already many Christians cling to membership of the church by ignoring the church’s teaching on social justice and sexuality which undermines the church’s authority in other areas. If one can disregard what the church says about constitution, then why not about everything else. Others remain in the church but feel either burdened with guilt or feel second class citizens, excluded from communion because they are in “irregular situation”.

If the church simply accepts modern mores, then the dangers are just as serious. We would appear to be assimilating ourselves weakly to the modern world, lacking the guts to stand for what we believe. If the church’s teaching is true, then surely we must proclaim it. Often what happens in practice is that the official teaching is asserted perhaps “sotto voce” and subtle hints are given that everyone is really welcome. This is called the pastoral solution. Maybe it is the most humane way but it may look like dishonesty and cowardice.

The Church leaders must join their other colleagues to support the PNC before voting on the account of the gains and the promise it offers the country but set up mechanisms to address the valid moral issues it raised during and before this vote. This may be the only way to weave the differences growing out of not understanding each other and build a society where everyone has space to exist.

Rev. Canon Francis Omondi

Anglican Church of Kenya

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

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.

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[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