• ‘No’ camp celebrates but Yes team insists the ruling cannot halt referendum
A big question mark was raised on the August 4 referendum on the proposed constitution after judges on Monday declared inclusion of kadhi courts in the current law unconstitutional.
• Kadhi courts case was filed in 2004
• Ruling splits both camps further
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• Clerics absent as Kenya draft law is published
• Kibaki and Raila rally their parties behind ‘Yes’ campaign
• DOWNLOAD: Judges’ Ruling on Kadhi Court
The Yes campaign team, puzzled by the ruling, immediately rushed to assure Kenyans it will not stop the referendum.
But their No rivals, composed of Churches and some MPs, said the ruling had vindicated their opposition to the proposed set of laws and called for suspension of the referendum.
In the landmark ruling, the judges sitting as a Constitutional Court, said the decision to include the kadhi courts in the country’s supreme law was an illegality that favoured one religion over others.
However, the judges reserved their decision on whether the provision should be included in the proposed constitution, which will be subjected to a referendum on August 4.
In a 114-page ruling, the judges held that the enactment and application of kadhis’ courts to areas beyond the 10-mile Coastal strip specified during their establishment in the colonial times is unconstitutional.
It further declared section 66 of the Constitution, which introduced the courts, as superfluous.
The section, the judges ruled, infringed on the constitutional rights of a group of 26 religious leaders who went to court to challenge the kadhi courts.
In effect, the ruling kills the foundation upon which the formation of the courts is based.
“Financial maintenance and support of the kadhi courts from public coffers amounts to segregation, is sectarian, discriminatory and unjust against the applicants and others… it amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion,” ruled Court of Appeal judge Joseph Nyamu and High Court judges Mathew Anyara Emukule and Roselyne Wendoh.
Financing the kadhi courts using public money, they said, was contrary to the universal norm and principles of liberty and freedom of religion envisaged under sections 70, 78 and 82 of the Constitution.
And above all, the judges said, even the decision to come up with the Kadhi Courts Act, which extended them beyond former protectorate areas of the Sultanate of Zanzibar, contravened the Constitution. The judges declared the Act null and void.
Justice and Constitutional Affairs minister dismissed the ruling as “of no consequence” and will not affect the referendum.
Mr Mutula Kilonzo said disputes arising from the review process were outside the jurisdiction of the High Court.
“I consider the judgement of no consequence unless Kenyans say No on August 4. The High Court has no powers over the review process,” he said adding that the Interim Independent Constitutional Dispute Resolution Court was the right avenue to address issues in the proposed constitution.
Committee of Experts chairman Nzamba Kitonga described the ruling as a wrong decision, which cannot stop the referendum.
“Once something is in the Constitution, you cannot declare it unconstitutional,” he said. Mr Kitonga said the timing of the ruling was “odd”.
Mr Mohammed Abdikadir, chairman of the Parliamentary Select Committee, said the review process was cushioned from such decisions.