Kadhi courts firestorm
By The Standard
Updated 9 hr(s) 29 min(s) ago
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By Judy Ogutu
A three-judge Bench that ruled inclusion of Kadhis’ Courts in the Constitution discriminated against non-Islamic faiths set off a political firestorm threatening the reform process at its most crucial phase.
It also set off claims the judges overstepped their boundaries, veered off to constitutional matters, and even a wild one that their action was suspect, probably because the Proposed Constitution seeks to send all serving judges home and recall only those who pass its rigorous vetting process.
The Judges ruled that funding Kadhis’ Courts — which handle marriage, inheritance, divorce and personal status for Muslims — amounts to separate development of one religion and religious practice. This, they argued, was contrary to the principle of separation of State and Religion and was, therefore, contrary to the universal norms and principles of liberty and freedom of religion as envisaged under Sections 70, 78 and 82 of the Constitution.
The Judges in the eye of the storm, even though they drew a line between their ruling and the current reform pitch, are Justices Joseph Nyamu (now an Appellate Judge), Anyara Emukule and Roselyn Wendoh.
They were unanimous in their declaration the entrenchment uplifts Islam over and above other religions in Kenya , which is inconsistent with Sections 78 and 82 of the Constitution.
The impact of the ruling on a case filed in 2004 by Christian leaders, protesting against a proposal to retain the Kadhi’s Courts in Bomas and Zero Drafts, spilled over to Kenya’s second bid for a new constitution through a national referendum.
Clergymen who went to court six years ago include Reverend Dr Jesses Kamau, who was then Moderator of Presbyterian Church, Bishop Silas Yego of Africa Inland Church, Bishop Margaret Wanjiru of Jesus is Alive Ministries, Reverend Dr David Githii of PCEA, Bishop Arthur Gitonga of Redeemed Gospel Church and Bishop Boniface Adoyo who was until this year the presiding Bishop of Christ is the Answer Ministries.
Their ruling that taxpayer’s financing of Kadhi’s Courts amounted to, “segregation, is sectarian, discriminatory and unjust as against the applicants,” threatened to upset the reform applecart just two months to the referendum.
Though the ruling was not about the current reform process, which is cushioned by the Constitutional Review Act (2008) from derailment unless on the referendum platform, its arguments dovetailed with the Church’s opposition to the Proposed Constitution.
Reactions to the ruling by those who support the draft was fast and furious, while the Muslim fraternity chose to hold their horses and issue a comprehensive statement today.
The ‘No’ camp to which the ruling, albeit remotely connected to the current debate, must have been godsend, kept silent as the ‘Yes’ team fought yet another fire threatening to eat up the review process.
It had just quenched the flames of the illegal ‘amendment’ sneaked into one clause at the Government Printer.
In quick succession, the Parliamentary Select Committee and the ‘Yes’ team fought back accusing the Judges of acting in bad faith.
“This ruling is suspect given the time it is being delivered,” said Mandera Central MP Abdikadir Mohammed who is the PSC Chairman.
He asked: “How do you say a section of the Constitution is unconstitutional? We are not talking about an Act of Parliament but a section of the Constitution.” He argued the ruling had no legal bearing on the current review process adding it was determining a matter from a bygone era. He asked: “Why are the judges giving this ruling when they know there is a special court dealing with such matters?”
The Chairman of Supreme Council of Kenya Muslims (Supkem) Prof Abdulghafur Al-Busaidy said he was shocked and revealed that Muslims leaders would meet and issue a substantive statement today. “We will have Muslim lawyers, MPs and religious scholars study the document and inform Kenyans on the way forward. We take this matter very seriously,” he said in a hurriedly convened news conference at Supkem offices.
The Judges declared that Section 66 of the Constitution, which creates the office of the Chief Kadhi and also entrenches the Kadhis’ Court, unjust on grounds that it was unconstitutional. The Judges further ruled the case was in public interest and that there are no losers or winners.
The Judges’ decision arises out of a case filed in 2004 by 26 Church leaders against the Attorney General and the defunct Constitution of Kenya Review Commission.
The CKRC became defunct after the National Referendum of 2005 in which the Draft Constitution was voted out.
Prayer Number Three
The Judges declined to issue a declaration stating, “that any provision similar to Section 66 of the Constitution of Kenya in word or effect as proposed in the draft known as Zero or Bomas Draft or any other draft infringes on their (applicants) rights.”
“As regards Prayer Number Three, we hold and declare that any provision similar to Section 66 in any other Draft of a Constitution in word or effect is not ripe for determination,” they ruled.
Justices Nyamu, Emukule and Wendoh also declared financial maintenance and support of Kadhis Courts was unjust against the applicants and others.”
The Judges were quick to point out that their 114-page ruling had been handed down on the basis that the role of the court was to interpret and declare the law.
“The doctrine of separation of powers quite rightly prevents us from amending the law (which role rests with Parliament) or the enactment of a new constitution including its contents which role is vested in the people of Kenya,” they ruled.
They argued that Section 66 of the Constitution, which creates the office of the Chief Kadhi and also entrenches the courts in the Constitution infringes on the constitutional rights of the applicants to equal protection of the law.
It was their view that it is discriminatory and unconstitutional and “should be expunged in its entirety from the said Constitution.”
The clergymen were in court challenging the extension of the jurisdiction of the Kadhis’ Court from the 10-mile Coastal strip of the former Colonial Protectorate areas to those falling outside through enactment of the Kadhi’s Court Act.
The 26 applicants had also argued that the process leading to inclusion of the Kadhis’ Courts in the Zero or Bomas Draft was flawed, lopsided and biased
They urged the court to grant them the declaratory orders that any form of religious courts should not form part of the Judiciary in the Constitution as it offends the doctrine of separation of State and Religion