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

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

Missionaries of the Ax

Bojidar Marinov, Mar 03, 2010

Located in the very heart of modern-day Germany, in the province of Hesse, is a small humble town of only 15,000 inhabitants. In the middle of that town stands an imposing old cathedral built in the 12th-14th centuries of reddish stone. Situated in front of that cathedral is the statue of a man in a monk’s garb on a stump of a freshly felled oak, with a huge Saxon ax in his hand.

The humble town is Fritzlar, called Gaesmere in ancient times. It is known in Germany as the birthplace of two beginnings: Here began the Christianization of Germany, and here’s where the German Empire was born as a political entity. The statue is that of the Anglo-Saxon monk and missionary Wynfrith, also known as St. Boniface, the patron saint of Germany and the Netherlands. And the stump is the remains of the tree that belonged to the highest German god, the Oak of Thor. The Oak of Thor was the center of the pagan religion of the local tribe of the Hessians, and the most pagan Germans at the time.

In 723, on his way to Thüringia, St. Boniface stopped at Gaesmere. He had worked for five years as a missionary in Frisia, Hesse, and Thüringia, and he had some limited success. Unfortunately, as his biographer Willibald relates, those Germans that converted were never too stable in the faith; while giving lip service to Christ, they would secretly go back to their pagan ways, bringing sacrifices to the pagan gods, practicing divination and incantations, etc. Boniface decided to deal with the problem once and for all by attacking at the very center of their pagan religion. One morning he appeared at the Oak of Thor with an ax in his hand, surrounded by a pagan crowd who cursed him and expected the gods to intervene and kill him. He raised his hand against Thor and delivered the first blow. According to Willibald, immediately a strong wind came and blew the ancient oak over. Seeing that Thor failed to protect his holy tree and to kill Boniface, the Hessians converted to Christ. This event is considered the beginning of the Christianization of Germany. From Hesse, word spread, and other German tribes turned to Christianity. Boniface went to many places, destroying the altars and high places of the pagans, proving the superiority of the risen Christ over the blood-thirsty German deities. By 754, when he was martyred by a group of pagan Frisian warriors, Boniface was the archbishop and metropolitan of all Germany, with several bishoprics and other mission sites established by him, and all German tribes with the exception of the Saxons and the Frisians were converted to Christ.

What made Boniface expose himself to the wrath of the pagan Hessians and risk being slain by them for violating the central shrine of their religion?

The first five years of failures obviously taught Boniface a lesson: No matter how many personal conversions a missionary is able to produce, if they do not challenge the central idol of the culture, the new converts will fall away and go back to paganism. Every pagan culture has its central idol or idols. That central idol defines and determines every relationship, every practice, every institution, every word and sentence, every legal rule, every scientific and educational standard. The new converts, even while professing faith in Christ, are forced to define and determine all their relationships and practices according to the central idol in their society, and that is their main battle, their main source of stumbling blocks to fall away from the faith. The contradiction of believing in Christ while living according to an idol’s prescriptions for a society is the greatest struggle for those new believers.

Therefore, a missionary who doesn’t do his best to challenge the central idol of a culture is producing future apostates, not true believers. Boniface learned it the hard way. Therefore, he changed his strategy. He wasn’t a missionary to the individual souls of the Germans anymore; he was a missionary to Germany herself. And he challenged the central idol of Germany. To save his spiritual children from apostasy, he had to take on the chief adversary: Thor himself. Instead of breaking the twigs one by one, he laid his ax at the very root of the German pagan culture. And the result was the turning of whole tribes to Christ.

Boniface wasn’t the first to understand this important principle. The earliest church, as recorded by Luke in Acts, was not concerned only about fixing the personal morality and the private religious life of the new converts. The early church was not persecuted for producing worshippers of Christ, neither was it persecuted for the individual moral purity of its members. It was the bold and uncompromising declaration that “there is another King, one Jesus” that earned the Christians the privilege to feed the lions and to become living torches for the Emperors’ parties. The Christian Gospel was specifically directed against the central idol in that society—the cult to the Emperor—in its declaration that Jesus Christ was the King of kings and the Lord of lords. Only in the context of such a comprehensive challenge against the central dogma—or idol—of the social order can an individual soul find the emotional fuel and the strength to remain faithful to their Lord and Savior in their practical daily life; and only in the context of a comprehensive worldview as opposed to the dominant worldview of the culture can a believer find his place in the Kingdom of God as a civilization alternative to the wicked parody of civilization he has around himself. A Christian with a theology for the salvation of his soul only, without a theology for the reformation of his culture to challenge the idols of the day, is a Christian living double life: His spirit will serve God while his body and mind and money and work and relationships will serve the idols. Eventually, if he is not equipped with the knowledge that will close this gap, he will be severely tempted to let his spirit follow his mind and body and money and work and relationships, and he will submit to idols.

That’s what happened to St. Boniface’s spiritual children after his first five years on the field. He learned his lesson, and so he acted accordingly.

Very few missionaries today understand this important truth of foreign missions. Missions today are not comprehensive missions to the nations; they are missions only to “save souls.” You will be hard pressed to find any mission organizations that train or encourage their missionaries to identify or confront the central idols of a culture. Very few precious missionaries ever confront cultural idols; most are only focused on the mantra of “saving souls.” As if it’s possible to separate the soul of a man from his culture, from his relationships, and from the legal, economic, and political reality of his culture.

Societies today have their sacred oaks. And yet, we seldom see missionaries who challenge that central idol of societies. No wonder Europe—where it has taken the strongest hold on society—is believed to be “the graveyard of missionaries.” Missionaries would go and do evangelism, plant churches, convert souls, and establish regular services. And when they went back home, it was only a matter of a couple of years before those churches disintegrated. And no wonder: A new convert worships Christ on Sunday morning, but then starting from Monday morning through Saturday night his life is shaped, defined, and controlled by the idol of the almighty welfare state. And because the missionary is usually silent and never challenges this central idol, the new believer has no ideology, no worldview, and no alternatives, and he is left without any means to oppose that control.

Eventually, like St. Boniface found out, the god of Monday morning takes over, and the God of Sunday morning remains only an empty religious shell. A believer left without means to defend his faith against a powerful idol will eventually give in. And when thousands of missionaries in a culture see the fruit of their diligent work destroyed, they declare that culture a “graveyard for missionaries.”

But such description is wrong. No culture is a “graveyard for missionaries.” The fault lies with the missionaries themselves. The truth is, they never even started the real missionary work. A missionary is not a missionary until they set their ax against the roots of the culture’s sacred oaks. They are not a missionary until they have issued a challenge against the central idols of that culture. A mission that only addresses the individual soul and never the society in which that soul operates is an exercise in futility. Only a comprehensive challenge, a message that proclaims Jesus Christ as Lord over everything—including rulers and powers—can win a nation for Christ.

That is a lesson that modern missionaries need to learn.

St. Boniface’s strategy to destroy the shrines of the pagan gods cost him his life. Thirty years after felling the Oak of Thor, the aged archbishop was attacked by pagan Frisians, whose shrines he had destroyed a few days earlier. His biographer claims that they only wanted the treasures he carried in his chests. When they opened the chests, however, they discovered only the books he carried with himself.

But we’ll leave books and missions for another article.

Kadhi's courts ! should they be out of the constitution???

In this article I have given reasons why I take a different position on the issue and strongly affirm the status quo. There are good reasons why we should accept the Kadhi’s court in the constitution as has been proposed and having done that we should delve deeper to unleash our potential in doing the mission of the kingdom in this country and our world.

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Re: The Kadhi’s court in the constitution

I have read the recent document on the Kadhi’s courts[1] and the call from Christian leaders to reject the Draft constitution if the Kadhi’s courts will be included. Reading Njonjo Mue’s open letter provided another Christian position that sees no issue in having the Kadhi’s courts in the new constitution[2]. The concern here is that the issue of the Kadhi’s courts clouding the constitution making now could whittle the labor of more than 20 years to get a document that could create environment for peace and prosperity in this country for all.

The article , the constitution must treat all religions equally comes through obviously as a Christian concern more than a view of neutral citizen on constitution and the fact that it is forwarded by a Christian group tells who are its proponents. There is legitimate concerns of the incongruity of the Kadhi’s courts in the judiciary clause, but these can be very well addressed by it’s placement as a subsidiary court. How can we approach this subject with clarity for the benefit of the kingdom as well as achieve the ideals of nationhood?

An authentic way to addressing this issue should emerge from a missiological and ethical perspective besides legal and philosophical one. This should be from the moral ground of truth and integrity of our reasoning.

Ethically:

a. Agreement at independence;

We cannot just do away with the tripartite agreement that put the Kadhi’s courts in our independent constitution. The agreement to give part of his jurisdiction and subjects to the newly independent country, by the Sultan of Zanzibar, cannot be violated and as a right it just must be given. Njonjo Mue articulates this position in his open letter and I cannot agree with him more. Our value as people of integrity should constrain us from taking what was rightly given to them in exchange of sharing with the rest of us what was theirs [territory]. We shall have used our numbers to take away their heritage. So our argument that we are doing a new constitution and therefore should push it away does not hold.

Because of shared citizenship we must accommodate and allow them space for existence and this is a vital part.

b. constitution making;

We need to recognize the gains we have made since 2002 when we overtly began to resist the plan to Islamize the country constitutionally. The original proposal to the CRCK by Muslim community was radical and would have caused greater problems if it went through. Their proposal then recommended the expansion of the Kadhis’ courts jurisdiction to include civil commercial and other arbitration issues besides family law. They sought to elevate the Kadhis courts to high court level and have their Kadhis lifted to the levels of high court judge and of course create hierarchical appeal structures that would have created parallel court systems.[3]

The pressure then forced the Muslim community to accept Bomas draft that maintained the status quo as a compromise. As a result the Kadhi courts as we now have them in the Draft constitution, has maintained that courts are subordinate courts, whose appeals can be heard in the high court and Islamic law may not necessarily be followed. Those appearing before the Kadhis must be both consenting to do so otherwise they would have an alternative in the high court and its mandates have been defined as marriage, divorce and inheritance.

This has effectively made the whole idea of Islamization via constitution impotent or untenable! In the Draft constitution, as we now have the chances for expanding the Kadhis courts will be really slim and if attempts are made by an act of parliament, we would have grounds to challenged it as unconstitutional or exceeding the provision of the constitution. Having it here shall have “inoculated” the constitution from the dangers we fear most of the introduction of Shariah law. This position is far forceful than not spelling it here to let the courts be formed by an act of parliament.

c. favored religion status

There is the concept of separation of state and religion and l loud the analysis done by my friends Pete and Waiyaki on the alterations on the draft. The value in the doctrine of separation of state and religion works very well where there is clear boundaries of what is sacred and secular. To bring it is an eclectic social context which is our will be a science. In Africa where ideologies are so fluid and hard to define, there will be more convincing to do to uphold this doctrine. Our ideas of secular states are often diluted with our own socialization of being religious. In the case of Kadhi’s courts we will find a thinner line to separate what is cultural, religious or social owing to the Muslim communities and nature of their religion. Any one with a good understanding of the religion will agree that the role played by the Kadhi’s have very salient religious impact. If we were to view this from a Muslim perspective it is the Imams and the religious scholars that hold religious sway on the community. The Kadhis would not be regarded as their religious leaders as their role is confined to legal guidance and addressing such arbitration. It will not be fair to use our parameters to judge the value of services they provide to Muslim communities.

Should we in upholding this doctrine bar our Bishops and pastors from accepting government appointments in committees and commissions where they work for government in observance of this doctrine? Or should they lead prayers in parliament or state functions? We have a task to define what this means so that we can weigh the favor bestowed on some religions or denominations. What of the obvious favors received by churches from governments, would that not violate the doctrine?

d. tax payers money for religious services

This question has been disturbing to many of us for long: ‘Should tax payers money go to service of a religion?’

It will be better to look at this issue not as money serving other religions but we should view that here are Kenyans whose government is providing services for. We should also understand that the frequency with which the visit the Kadhi’s courts they pay for each service rendered unfortunately they fees they pay do not go to the Mosques or Imams but to the state! There can possibly be a balance on this issue.

Missiologically:

e. we are majority and we do not want the courts!

There has been a suggestion that we are a majority and therefore our wish, our abhorrence of the inclusion of the Kadhi’s courts in the draft constitution should prevail. The idea of majority is just tricky for when we are majority we are minority too. There are huge swaths of this country where Christians are less than 1-5 %, but we exist there as a people and church should we all move back to Christian ghettos? This thinking is lucking of missional pulse of our faith. We must be among the peoples of the world that include Muslim communities. We therefore must weigh the implication to missions of this position. Are we suggesting to Muslims that where they are majority to govern by shariah law? I think what we are dishing will be served us in some way and we should weigh this out before we act and regret.

This position being taken to remove the Kadhis court from the constitution is NOT right, nor tactical and we should radically review it for the reasons above and much more for the danger it can pose to the church.

Our social ethics cannot be attained effectively through legislation, we must be an intentional community living out our social ethics in all conditions and contexts. Our values must bear through all we do and visible in our protestations.

If the constitution does not provide the contours for this law by defining its mandate and jurisdiction we shall open the ground for Muslims to seek and could get a wider and therefore dreadful mandate of application and practice. The inclusion as in the draft constitution will clear any ambiguity that could be exploited to as we feared.

In these exchanges over Kadhi’s courts we are hurting missions endeavors. Our stands are not only radicalizing some on the other divide but we are sowing seeds of intolerance, we are erecting a wall of enmity and barriers that will take long to break. These will have huge implication on Christians who are settled among Muslim communities where they live and do their businesses? What of the church in existence among Muslims.

The fear of Islamization is genuine and should be a concern to all of us. Excluding the Kadhi’s courts will not affect it, neither will we have spread the good news of Christ! We need to develop appropriate approaches on how we can be witnesses of Christ in this land.

We obviously cannot reject the proposed constitution on the grounds of the Kadhi’s Courts. We should find other reasons to reject this draft constitution as we sharpen our missional knave.

Omondi Francis Rev.

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[1] Constitution must treat all religions equally… Ondeng, Pete and Waiyaki, Peter [Feb 2010]

[2] Open letter Re Kadhi’s court Njonjo Mue [Feb 2010]

[3] Kadhi courts and the Muslim law in Kenya Constitution , Omondi, F [ 2002]