Members of the ‘Yes’ camp in the run-up to Kenya’s constitution referendum continue to reject the legitimacy of a recent ruling by the Constitutional and Judicial Review Division of the High Court of Kenya that deemed the inclusion of Kadhi’s courts in the country’s draft constitution ‘discriminatory’, writes Dana Wagner. Wagner investigates how the inclusion of Kadhi’s courts in Kenya’s constitution has become a contentious issue in the country, and how this issue has given constitution debates a sharp religious edge.
They’ve been called illegal, unconstitutional and segregating. But since independence in 1963 Kadhis’ courts have been legal, constitutional and an integrative element of Kenya’s heritage, according to voices in both the Muslim and non-Muslim community.
Irrespective, the courts have been thrust into the 4 August referendum debate as a leading reason to vote against the draft constitution.
Kadhis’ courts were also the subject of a 24 May ruling by the Constitutional and Judicial Review Division of the High Court, whose three-judge bench decided Article 66 in the current document that blueprints the courts is unconstitutional, and Article 170 in the draft that preserves them is discriminatory.
The division’s ruling has raised numerous procedural and legal questions, including suspicion about the timing of the decision six years after the case was first filed, and about the temporary descent of a Court of Appeal judge to rule in a high court case. The doubts of legitimacy lead to a bigger question: what has propelled Kadhis’ courts in becoming a deciding issue?
Upon access to the draft constitution the Kenya Human Rights Commission (KHRC), an independent NGO, combed the document for clauses that could pose a divisive problem and found nothing to report, said Tom Kagwe, acting deputy director of KHRC.
Kagwe said that elements of the church leadership in Kenya, as the main challengers to the constitution in the ‘No’ camp, are willfully ignoring facts as they drag Kadhi’s courts into the debate.
‘There is nothing contentious for Christians about Kadhi’s courts,’ said Kagwe, a Christian himself.
‘Anyone using the word “contentious” is hell bent on trying to scuttle the process.’
FROM CLAUSE TO CONTENTION
Friday afternoon outside the Jamia Mosque in central Nairobi: a bustling crowd moves into the street after prayer. People stay to greet each other, socialise and pick through a copy of the weekly Friday Bulletin. The headline reads: ‘Autonomy if Kadhi’s courts go’.
It’s an extreme statement of intent, maybe characteristic of the politics that surrounds an event like Kenya’s constitutional referendum. Leading voices in the Muslim community think so, but caution against dismissing the reaction.
‘This could be a radical position but it has gained ground,’ said Abdulrahman Wandati, executive director of the Muslim Consultative Council in Nairobi.
While he does not advocate the position, it is increasingly difficult for moderate voices to be heard, Wandati said.
Secessionist rhetoric over cutting the Kadhis is a response to the Christian church that people view as trying to ‘craft our Islamness’, Wandati said.
The church is responsible for tossing Kadhis’ courts under scrutiny, said Mohammed Dor, national secretary general of the Council of Imams and Preachers of Kenya (C.I.P.K).
‘The ‘No’ side is derailing the new draft,’ said Dor, and carving a religious divide in its wake.
Official opposition to the draft has been issued by leaders – under the umbrella of the National Council of Churches Kenya (NCCK) – from the Anglican Church of Kenya (ACK), the Evangelical Association of Kenya, African Mission of Holy Ghost Church and United Christian Churches of Kenya, among others.
‘It’s the church leaders who are complaining, not the followers,’ said Betty Sharon, an activist with the Mombasa-based Coast Women in Development. ‘They have a hidden agenda, that’s clear.’
Allegations of that agenda made headlines in Kenya’s dailies in May, when the American Center for Law and Justice (ACLJ) announced it was providing tens of thousands of US dollars to fund the church-led ‘No’ campaign. The ACLJ is a vehement opponent of abortion, and has publicly denounced the inclusion of Article 26 in the draft that permits abortion if a woman’s life is in danger.
Wandati cites a different reason for the church’s opposition to the draft and emotion over the inclusion of Kadhis’ court.
The proposed constitution contains a clause on land that allows redistribution if owners are unable to prove legal acquisitions. As a major land owner in Kenya with roots in the pre- and post-colonial land-grabbing era, the church leadership stands to suffer, Wandati said.
‘They can’t stand up and say it’s because of land, so they have to stand and say “Kadhis”.’
In 2003 the Ndungu Commission was appointed by President Mwai Kibaki to probe unlawful allocation of public land. The Ndungu report, published in 2004, contained damning evidence against both political and religious power brokers. While several religious institutions including temples and mosques were named, the largesse of the Catholic and Christian churches was duly emphasised.
In an April 2010 interview Canon Peter Karanja, general secretary of the NCCK told the Daily Nation that despite accusations, land was a non-issue for the church.
‘Our position of opposing the proposed Constitution is not based on land. We are opposing two clauses: abortion and the Kadhis’ courts.’
CHURCH AND STATE
Elements of Kenya’s Christian leadership – prime among them Karanja and Bishop Mark Kariuki, televangelist of the Deliverance Church Kenya – argue there is reason for contention because Kadhis’ courts strike a dangerous blend of church and state, contrary to the principle of strict separation that checks all religions.
Many Christians do not support the courts because their existence contradicts state secularism and because they violate the right to equality that dictates all religions are equal under the law, said Maureen Murenga, a project coordinator at the East African Centre for Law and Justice (EACLJ), an evangelical body whose parent is the ACLJ.
Granting Muslims Kadhis’ courts but no such parallel authority to other religions violates equality and Christians lose out, Murenga said.
‘[Kadhis’ courts] are giving one religion the upper hand.’
But the use of religious terminology in the Kadhis’ debate is incorrect, counters Kwage, and it skews public perception of the courts’ function and jurisdiction.
‘They are not religious courts,’ Kwage said. ‘They are judicial.’
Kadhis’ courts are regulated by the Kadhis’ Courts Act of 1967. They are officially deemed subordinate courts, with no appellate jurisdiction – plaintiffs can only appeal to the high court. Kadhis, who head the courts, have limited jurisdiction and preside only over issues of personal status, inheritance, divorce and marriage. Currently, as in the draft constitution, each party to a case must consent to negotiation before a Kadhi. Otherwise the case is assigned to the High Court.
The initial inclusion of Kadhis’ courts in independent Kenya’s first constitution in 1963 was the result of a deal between the British government, the Government of Kenya under Jomo Kenyatta, and the Sultan of Zanzibar.
The decision to include the courts in Kenya’s founding document was an outcome of a larger decision that secured the 10-mile coastal strip along the Indian Ocean – then under the Sultanate of Zanzibar – as Kenyan territory, avoiding a landlocked geography and a divided demographic.
To pull the courts from the judiciary now is to withdraw existing rights of a significant minority population, said Sharon.
‘And it’s not Sharia law,’ Sharon said, addressing one gross misconception of the courts’ function.
On separation of church and state, Sharon took issue with church leaders’ dismissal of the courts while both the current and the draft constitution are rooted in Christianity.
‘The whole [draft] document is based on a Christian-Judeo tradition,’ Kagwe also made clear.
He cited the clause against abortion, while Sharon pointed to the disallowance of polygamy.
Yet the Kadhis’ courts still draw criticism as religious institutions. The codified religious element is that both plaintiff and defendant must be Muslim, and the Kadhi too must profess Islam and have knowledge enough in Muslim law to satisfy the Judicial Service Commission of Kenya.
In opposition to any trace of religious make-up, a statement on the ACLJ web site by Joy Mdivo, executive director of the EACLJ, argues ‘no state resources shall be expended in the setting up and running of these religious tribunals in infrastructure or staffing’.
THE TAXPAYER’S DOLLAR – A LOADED, PERSUASIVE ARGUMENT.
In response to Mdivo’s reference to state resources, Sharon drew attention to the fact that Muslims are taxpayers too:
‘We can’t use that as an argument, that it’s using taxpayers’ dollars. Muslims pay too … it does not do anything to Christians.’
While the state funds Muslim courts it also supports Christian schools and initiatives, Kagwe said.
‘It’s a fallacy to say government funds Muslims and not Christians.’
According to Kagwe, the 2009-10 budget directs over Ksh1 billion to Christian institutions. The funds allotted to the 17 existing Kadhis’ courts is around Ksh10 million.
The price further pales beside the cost of rerouting Kadhis’ cases before a high court judge – the alternative reality of dissolving Kadhis’ courts, as proposed by justices Mathew Emukule, Roselyne Wendoh, and Joseph Nyamu in their decision that declares the courts unconstitutional in the proposed draft and voids their foundation in the Kadhis’ Courts Act.
A DEFUNCT RULING
The legitimacy of the 24 May Kadhis’ ruling has been questioned by lawyers and civil society groups. It has also been indirectly punctured by a Mombasa High Court judge who has since thrown out a new bid to remove the clause, citing lack of jurisdiction – the Interim Independent Constitution Dispute Resolution Court is where to go, Justice Mohammed Ibrahim told the plaintiffs, officials of the Mombasa Pastors’ Fellowship.
The ruling, though it calls the Kadhis’ courts article an illegality, was made without a directive for action, inciting accusations the three-judge bench was interested in providing political commentary instead of a legal interpretation, says Anthony Kuria, project coordinator of the Movement for Political Accountability (MOPA), a wing of the Africa Centre for Open Governance (AfriCOG).
‘It’s the issue of making a judgement that is not legally enforceable,’ Kuria says. ‘It’s like giving their opinion, because they clearly went beyond their mandate.’
James Gondi, a legal officer with the Kenyan Section of the International Commission of Jurists (ICJ Kenya), said constitutional scholars consider the decision a legal misstep.
‘Foundational constitutional theory, if applied correctly, would make this fundamentally flawed.’
Gondi also called the timing of the decision suspicious, six years after the case was filed on 12 July 2004 in response to the Bomas Draft – the last, most concerted effort for a nationally representative constitution, voted down in 2005.
The ruling also came three months before a constitutional referendum that, if passed, would terminate numerous high-ranking positions in the political and judicial apparatus, including the terms of justices of the High Court and Court of Appeal.
‘The judges are acting deliberately for political gain,’ Gondi said.
The case was filed by 26 members of the Christian leadership. The three justices were also Christian.
Gondi said it’s clear that the church leadership, reflected here, has labelled Kadhis’ courts a hot issue.
‘The position of the clergy with regard to Kadhis’ courts has reflected a lot of intolerance,’ Gondi said. ‘It’s founded on misconceptions and departures from what the law actually is.’
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