Saturday, August 15, 2009



Friday, August 14 2009

The Supreme Council of Kenya Muslims has launched a campaign to “educate” Christians on kadhi’s courts following stormy opposition to their being included in the new constitution. The council should have only one message: kadhi’s courts are not non-Muslims’ business.

The courts do not interfere with non-Muslims’ freedom. They deal only with cases relating to personal status, marriage, divorce, or inheritance in which all parties are Muslims. Entrenching kadhi’s courts in the new constitution is necessary.

Muslims are a minority in Kenya and they don’t, like Christians, constitute a politically, culturally, or economically dominant group. They make up only about 16 per cent of the population, while Christians constitute 76 per cent.

ENTRENCHING THE COURTS HAS become an emotive debate which has been raging on and off since October, 2002, when the first Draft Constitution was published.

The debate has been characterised by islamophobia, blind ignorance, false knowledge, popular misconceptions, and even propaganda and outright lies.

On August 9, 2005, Bishop Kihara Mwangi, MP for Kigumo, in the midst of the debate on kadhi’s courts, invoked divine intervention to save Kenya.

Called upon by President Kibaki to close a meeting of MPs discussing constitution-making with a prayer, he solemnly prayed that “the new constitution should not condemn the country into a sharia state.”

“Kadhi” is an Arabic term for magistrate. In the Kenyan context kadhi’s courts are magistrate’s courts. They are not synonymous with sharia, nor the severe punishment associated with it.

They do not imply or suggest that Muslims want sharia imposed on Christians. Entrenching the courts does not signify that there will be amputation of limbs for theft, stoning to death for adultery, or public flogging for consuming alcohol.

Christians also argue that to entrench kadhi’s courts in the constitution is to give precedence or primacy to Islam above other religions, and that Kenya is a secular state and no religion should be embedded in the constitution.

This is misleading. Kadhi’s courts are part of our judicial system, subordinate to the High Court and the Court of Appeal under the chief justice. They are not a religion.

Christians, and other Kenyans, also argue that kadhi’s courts should not be entrenched because that will be an extra burden on the tax payer. This is another misleading argument.
Kadhi’s courts are part of the judiciary and tax payers, including Muslims, are already paying for them, and will continue to do so regardless of whether they are entrenched or not.

The debate shows that it’s necessary to entrench the courts. They can easily be rescinded by an overzealous Christian-dominated parliament. Besides, we have an international obligation to entrench them.

The courts have been around for more than 100 years — they came long before the coming of the British colonialists — and were entrenched in the Constitution at the time of independence in 1963. History shows why.

The Sultan of Zanzibar ruled over the East African coastal strip. In 1895, he allowed the British to administer the 10-mile strip on condition that they respected the kadhi’s courts, among other conditions.

So the Kenyan coastal strip became a British protectorate, while the hinterland became a colony. And when Kenya was about to gain independence, in the early 1960s, the British government recommended that the 10-mile strip be part of Kenya, subject to the new government respecting the kadhi’s courts.

AND ON OCTOBER 5, 1963, KENYA’S founding President Jomo Kenyatta, who was then the prime minister, signed an agreement with his Zanzibar counterpart, Mr M. Shamte, in which the sultan ceded his sovereignty over the 10-mile strip to Kenya on condition that the independent government undertook to guarantee the existence and respect for the kadhi’s courts, among other things.

The kadhi’s courts were then enshrined in the Constitution under Chapter IV, which deals with the judiciary. The courts are mentioned along with “other courts” subordinate to the High Court. Today, there are 17 kadhi’s courts spread in various parts of Kenya.
Why would anybody want to roll back the entrenched kadhi’s courts, which have never represented a problem or harm to non-Muslims?

Why are some Christians behaving like a dog in the manger? Why are they begrudging Muslims what they themselves have no use for?