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

Kadhi’s court ruling: is this our pound of flesh?

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 Kenya now and not very different from the one of 1962. Then the British commission set up to look into the problems of Muslims subject in Northern frontier District [NFD] and the coastal strip in 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 continued and ended up in general emergency immediately and after independent. The people on the costal strip were accommodated after a protracted negotiation after the James Roberts commissions a tripartite agreement was signed and Kenya promised to safeguard the one vital institution in the constitution. How can we have an integrated Kenya when certain freedoms are only possible in certain areas of the country? Can anyone imagine the pressure and strain for people to travel from all over the country to the coast for legal services? Are we not risking an intifada in pursuit of these rights if the ruling stands?

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 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

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.

Islam favored over other religions?

There can be no contestation as to which religion is favored in the Kenyan law. We though have recently noticed that Christian leaders have claimed that Islam has been unduly elevated in the Kenyan constitution by the fact that articles 169 and 170 of the proposed constitution providing for the Kadhi’s courts specifically mentions Muslims for whom this provision is intended. But does this mention mean they are a favored religion in the laws of this country amounting to Islam being the state religion? Since this mention deals with Muslim personal law, I would choose to limit my argument to laws dealing with marriage, divorce and succession reach a fair conclusion and to see if at all this mention does affect other religions.

The interplay of religious forces; Christianity, Islam and African Traditional Religions affected the formulation of laws in East Africa in both colonial and independence periods. These are the forces that shaped the value systems from which policies and laws were formed and for our discussion the family law. The British colonial officials wanted to create a society built upon their European values; however the presence of Muslims in East Africa posed a great challenge, since they too had operational societal laws which had been practiced for long before this time. The colonial officials and the black African presidents who followed them realized that in a pluralistic state uttermost care was needed in making and implementing laws and policies because no laws and policies could be effective if opposed by a substantial section of the society. This is why, in Kenya and Tanzania leaders encountered two antagonistic value systems each seeking to influence the society on the basis of its dogmas. As a result of this, the colonial officials opted to adopt policies that would not unduly hurt either value systems, even though they overshadowed traditional values systems. Kasozi observes that best option available was,

“ separate laws could be made for each religious community, as happened in Kenya and Tanzania and to some extent Uganda. Many Muslims on the coast of Kenya, Zanzibar and coastal Tanganyika were administered under Islamic law, while the rest of the country was administered under British common law, whose values had been shaped in Christianity. However there was a repugnancy clause that made common law paramount in any conflict with Islam or traditional religions.”[1]

The Order in Council of 1897, that opened the application of common law in Kenya, stipulated that, in addition to 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.[2].

This competition between Christian and Muslims to influence laws, discouraged the colonialists from bringing every one under one law resulting in drafting laws and ordinances for each different group. Attempts to harmonize family laws have been a sore to governments even after independence. More recently, the efforts to drafted the Law of Succession Act (cap160 1982) to unify all family laws into a single code applicable to everyone, was strongly and successfully opposed by different communities [especially Muslims] on the ground that it would violate religious freedoms.

It is not difficult to discern the religion whose values and practices have influenced laws in this country. We know for instance that marriage laws applied in this country derived from The Marriage Act of 1753 in England and Wales. This was developed out of the Cannon laws of the Church of England, although The Act tightened these existing ecclesiastical rules regarding marriage, providing that for a marriage to be valid it had to be performed in a church and after the publication of banns[5] or the obtaining of a licence.[6] Jews and Quakers were exempted. From this we have developed the African Christian Marriage and Divorce Act (cap 151) and Marriage Act (cap150 commencement: 29th November 1902). The provisions under these acts that criminalized polygamy and adultery are also issuing out of Christian morality where they are anathema: adultery and bigamy was seen to undermine the institution of marriage and was encouraging a breach of the marriage contract for marriage here is seen as a monogamous union, which is different from the African Traditional religions where these are not vices. Many Kenyans who contract civil marriage are obliged to fit in Christian morality even when they are not. The impact of this law may be seen in the many court cases of disputes following deaths of spouses especially when after contracting marriage under this act someone went ahead and married under customary laws.

In Re Ogolla (1978) K.L.R the deceased had married Gladys in 1964 and had four daughters with her. He died in 1974. A lady named Bona claimed to be married to him under customary law and claimed a share of his estate. It was held that Bona was not a legal wife neither was her child his legal child, and in the words of Simpson J,

“An African is not obliged to marry under marriage act or African Christian Marriage and divorce act: but if he chooses to do so he is choosing the Christian way of life, and on his death removes the widow and the children from the ambits of tribal customs affecting cohabitation and guardianship.”[3]

.Family laws are derived from belief and values it follows that they were extracted from religion as a main source of ethics. Since Muslim values were not going to be adopted for law, they were allowed space in the law of the land, inside but integrated. It will be difficult to conceal how much besides the common law have Christians ethics permeated several sections of this constitution whose adoption will soon translate into law despite alternative views of a section of this community

To guard against of violation of religious freedom to the Muslims it was prudent that Kadhis’ courts were provided for as they are now. Throughout history Islamic law has remained central to Muslim identity and practice, for it constitutes the ideal social blueprint for the ‘good society’. Despite vast cultural differences, Islamic law has provided an underlying sense of identity, a common code of behaviour, for Muslim societies. This shows how wide a scope the laws can cover from worship and belief to societal order and family law. Family law is central in Islamic community. Because of this central role it enjoyed pride a place in the development of Islamic laws as well as its implementation throughout history. It is observed that “while modern Muslim rulers and caliphs might limit, circumvent, and replace penal or commercial laws, Muslim family law has generally remained in force.[4] This can explain why Muslims accepted all other laws provided for in our constitution even though not congruent to their values but sought strong safeguards on family laws.

Being very specific the Kadhi’s courts have squarely applied to Muslims and no other faiths. This court on the contrary has encountered conflicts operating as a subordinate court as evident in its administration:

1. If only one party is Muslim, the Islamic law is not applicable ,

2. When a case is before a court other than Islamic court there is no obligation to apply Islamic law even if both parties were Muslim

3. The problem of appeal to common law, even with the provisions made for assessors, was that the High court has no obligation to apply Islamic law even if both parties were Muslims.

4. The conflict in rules and procedures or evidence in Islamic law is very different from the Evidence Act which is ordinarily used in appeals at High Court despite the Act stating that it is not to apply in Kadhis’ Courts what necessitated the exemption clause in the proposed constitution’s Bill of rights, article 24(4) [of the proposed constitution].

Consequently it will be hard to state the case that Islamic laws, have been elevated above other religions, nor are there any possible way it can interfere or affect other religions. Islamic laws are caged in the firm cabin of laws drawn from Judo-Christian values which does not prove any favour or being advantaged over other faiths in this sense.

When we see the constitution as a Mosaic depicting diversities of cultural and religious experiences of members of this society it will be easier for us to step up our accommodation of others and their differences. We cannot read article 8 of this proposed draft differently: ‘There shall be no state religion’. Obviously Islam cannot be said to be state religion nor religion favoured in law, the article 8 also kills any possibility of using the feudal principle, ‘ religion of the ruler in the official religion of the state’ which Amin Dada used to declare Uganda an Islamic state in 1974.[5]

Rev. Francis Omondi, Anglican Church of Kenya,

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[1] Hansen, H.B.& Twaddle M, Religion & Politics in East Africa, E.A.E.P. Nairobi 1995. pp229

[2] The law that governs agreements to marry and betrothals, formalities that brings marriages into existence, maintenance, separation, custody, adoption, nullity, divorce, property acquired during the marriage by spouses, devolution of property and succession to property after a person dies.[explained by Kuria , G K , East African law Journal 12, 1 (1967) pp33-82

[3] [ Kimeri-Mbote, P. the law of succession in Kenya, gender perspective in property management and control, women and law in East Africa 1995, Nairobi

[4] Esposito, J, Islam the straight path, 1988 OUP New York , 75

[5] Ali A. Mazrui, Religious strangers in Uganda: From Pasha to Amin Dada, Affrican Affairs 302(1977), pp21-38

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

Be thou faithful unto death

Be thou faithful unto death, and I will give thee the crown of life.

Rev 2:8 And to the angel of the church in Smyrna write: These things saith the first and the last, who was dead, and lived again:

Rev 2:9 I know thy tribulation, and thy poverty (but thou art rich), and the blasphemy of them that say they are Jews, and they art not, but are a synagogue of Satan.

Rev 2:10 Fear not the things which thou art about to suffer: behold, the devil is about to cast some of you into prison, that ye may be tried; and ye shall have tribulation ten days. Be thou faithful unto death, and I will give thee the crown of life.

Rev 2:11 He that hath an ear, let him hear what the Spirit saith to the churches. He that overcometh shall not be hurt of the second death.

Every time Christian suffer, we should in them Christ suffering. Their blood his own and their tears his very own and into this fellowship we are invited to share. Nothing in the resent past gave us this opportunity like the crisis of Jos. We began this lent with very disturbing news of an attack on defenseless Christian community in Jos, Nigeria. This place had previously been a buffer of peace in the turbulent northern Nigeria with a generally large Christian population has had increasing attack from Muslim extremists making living here impossible, as one Christian leader stated then, “ we live in the abode of Satan himself…!” in light of the atrocities here like this recent one. http://www.anglicandioceseofjos.org/dogo.html

With these fellow believers, I share this letter of the Spirit of Christ to the church of Smyrna. This ancient city shares a lot with Jos today. To Smyrna, the lord spoke to encourage them showing, He was aware of their plight, that though this church was poor economically and had been through immense afflictions, more dark days were still ahead of them. First from those who were among them who had given them selves away to worship of Satan though they were still worshiping in the synagogues with them. It was unfortunate that people would allow the worship of foreign gods to infiltrate the synagogues. Smyrna was known as a center for emperor worship with great temples built on its acropolis the outstanding one was the one built in honor of Tiberius and one even greater in honor of the goddess of Rome. Those in this league applied pressure on Christians in this church from within and the tight fisted Roman rulers from without.

To them the lord spoke these words of assurance indicating that he is not only aware of their physical state [one of poverty economically] but also the pressure they face daily from all sides to yield and vector away from God, Rev:2:9, but he points to yet bleaker days ahead, more suffering for them in that some will be thrown into jail by Satan for ten days. But we must notice that there is a limit to the length of time this testing will last, and aren’t we glad that it will not exceed the days set! This should allow them to overcome and be given the crown of life, yes those who overcome will not be hurt at all by the second death this is the greater and outer boundary which is the Lord himself. Death as we know it is the first boundary, but the greater and final is yet to come and is here referred to as the second death.

Here are lessons for us from this passage:

1. Satan has power to inflict evil and this is hinged in our working with him to cause evil within the body or those who have given themselves to Satan. And this is the pressure that will came upon those who want to walk faithful to the Lord they will be tempted by evil and they will be afflicted even caused great harm. The ability to choose is in our createdness. We have dominion to follow the Lord or Satan and this will not be taken away from us humans.

So when perpetrators of evil deal a heavy blow on Christians as we saw in Jos , it is certainly NOT the will of God, we can state that these men who have carried out this heinous offence have used their freedom choice wrongly and crossed fellow human being’s life. And we should call this a tragedy! These are tragedies that go against the will of God they should be seen as such and coming from the using a freedom act that crosses the will of God.

How then do we view death and tragedy of this magnitude? What will allow us to face such difficulty and transform us to be faithful witnesses of His grace?

Tohito Kagawa attempts to reflect on death in his book Meditation: he says

“I do not deny the eventuality of death, death lies sternly upon my course, nevertheless I believe that Love [the love of God] has far greater power than death. ‘ death is swallowed up in love …’

Love is stronger than death, love’s glory tramples even death under feet, I am thinking that death is transformed through love. Death is an aspect of change, while love is the substance that persists through all changes.

2. What happens to us is not FINAL however grievous it appears now. The harm caused though painful has no final word on us the pain we face today are boundaried. God watches and will help us through this if we trust him through our ordeal. In fact the challenge of death is contained in the statement that Christ has the final say over the second death. I am amazed by the stories emerging from the earlier attacks on Christians in Borno still northern Nigeria. On the 26^th July 2009, a well coordinated attacks on Christians triggered by Boka Haram [a Muslim extremist group in Northern Nigeria set fires on churches and homes of local Christians and there were reported many Christians dead following these heinous attacks in Borno state. Perhaps the most striking part of the chaos was the brutal murder of two pastors who refused to convert to Islam to gain their freedom and save their lives. One of them George Orjih preached to the leader of the militants about Christ before his martyrdom. A fellow kidnap victim who was latter released reported:

While we were lying there, tied up, George turned to me and said, ‘if you survive tell my brethren that I died well, and I am living with Christ, and if we die we will know that we died for the Lord’”. George is reported to have been singing and praying throughout the ordeal, encouraging the believers not to give up, even unto death.

There is a greater boundary that these things cannot break and that is the second boundary God’s grace is still great

Prayer for our friend should border along the prayers by these saints in (Rev 6:10) and they cried with a great voice, saying, How long, O Master, the holy and true, dost thou not judge and avenge our blood on them that dwell on the earth?