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?

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]