Kenya: “Place of Sharīʿa in the Constitution”

PART THREE KENYA: “PLACE OF SHARĪʿA IN THE CONSTITUTION” Halkano Abdi Wario - 9789004262126 Downloaded from Brill.com09/25/2021 07:52:30AM via free access Map 5 Map of Kenya: Showing principal places referred to in Part Three Halkano Abdi Wario - 9789004262126 Downloaded from Brill.com09/25/2021 07:52:30AM via free access CHAPTER SEVEN DEBATES ON KADHI’S COURTS AND CHRISTIAN-MUSLIM RELATIONS IN ISIOLO TOWN: THEMATIC ISSUES AND EMERGENT TRENDS Halkano Abdi Wario Introduction Since 1992, Kenya has been characterised by demands for new constitutional dispensations. It has also seen heightened competing interests emerge in which religion and politicised ethnicity have played a pivotal role in the political game of the day. The same scenario has been replicated at a grass roots level. Elsewhere, as in the Kenyan case, the increased calls for recognition and empowerment of courts applying aspects of sharīʿa almost instantly elicit strong negative responses from Christian communities. One of the contentious issues in the referendum on a draft constitution was the issue of Kadhi’s courts. Should they be empowered, or left to stay as in the current Constitution? The resultant debates are the concern of this chapter. The findings of the research have strong implications for Christian-Muslim relations. The chapter examines how different views evolved in Isiolo, a small Northern Kenyan town. The town has a his- tory of strained Christian-Muslim relations. Contests over resources and ownership of the town feature highly in every new conflict. The chapter explores the role of ethno-religious ascriptions and elite mobilization in the increasing misunderstandings about Kadhi’s courts. It also illustrates that, despite efforts by concerned civic educators to teach the residents, the resultant decisions were informed by insufficient knowledge about courts’ functions. The purpose of this chapter is threefold. Firstly, it problematises the two main concepts used herein, Kadhi’s courts and Christian-Muslim relations, by outlining their conceptual and practical frameworks. Secondly, it analyses the seven main thematic issues arising out of debates, as per- ceived by Muslims and Christians of Isiolo Town in Kenya. This involves exploring the complex issues that came to be part of the debate, despite being explicitly unrelated to the operations of the Kadhi’s courts, and how the debate shaped the resultant skewed understanding of the constitutional debates during the Referendum campaigns in Kenya during 2005. © Halkano Abdi Wario, 2014 | doi:10.1163/9789004262126_008 Halkano Abdi Wario - 9789004262126 This is an open access chapter distributed under the terms of the CC BY-NCDownloaded 4.0 license. from Brill.com09/25/2021 07:52:30AM via free access 150 halkano abdi wario Finally, the chapter concludes by examining emergent trends that arose as a result of the debates on Kadhi’s courts and Christian-Muslim relations. Isiolo Town,1 considered to be the gateway to Northern Kenya, is a melting pot of peoples and different cultures of Northeast Africa. The town developed in the early 20th century as a colonial administrative out- post and a centre for the then Northern Frontier District (NFD), which was separately administered from the rest of the country, as well as being the staging-post for long-distance trade and hunting expeditions during its early years.2 Following Independence in 1963, the shifta3 conflicts in Northern Kenya during the mid to late 1960s and the collapse of the pastoral economy, the greater population of the destitute were drawn to the town by the demands for services, labour, farm and livestock products and petty trade. From early days, Asian and Somali traders provided the economic activities in the form of small retail shops (Swah.: duka), while the Turkana, Waso Borana4 and Samburu herders served as their main customers. Since then the Igembe and Tigania Meru subgroups, who had been displaced from the Meru region due to population pressure and scar- city of farm land, have moved into the town to set up consumer business. Apart from engaging in keeping livestock, the former pastoralists are also involved in small scale subsistence farming through irrigation. Religious communities in the town include Muslims and Christians of the following denominations: Roman Catholics, Methodists, Presbyterians and Anglicans, as well as a host of Pentecostal churches. Ethnic and religious identities more often than not overlap, providing the actors with mul- tiple identities. Ethnically and culturally, the population divides into what is colloquially referred to as the Bantu speakers, represented by the Meru; 1 According to Isiolo District Poverty Reduction Strategy Paper: Consultative Report for the Period 2001–2004, Ministry of Finance and Planning, page 3, the estimated population of the Isiolo Central division, of which the town is the centre, was 52,588 persons as at 1999. 2 Hjort, Anders, Savanna town: Rural Ties and Urban Opportunities in Northern Kenya, Stockholm: Stockholm Studies of Social Anthropology, 1979. 3 Shifta wars refer to the secessionist conflicts waged from 1963 to 1969 by the Somali and a section of, largely Muslim, Waso Borana in order to join their culturally and religious brethren in the Republic of Somalia. The term Shifta has its origin in an Amharic word, meaning bandit. 4 Waso Borana refers to the Borana group which emigrated from Ethiopia due to expansionist wars of Menelik in the late 19th century. According to Mario I. Aguilar’s Being Oromo in Kenya, Trenton: Africa World Press, 1998, these Borana groups who occupy Merti, Garba Tulla, Isiolo Town, and Sericho were separated from their kinsmen in the homelands in Ethiopia in early 20th century due to colonial rule and, as a result, religious diversification is a common feature. Halkano Abdi Wario - 9789004262126 Downloaded from Brill.com09/25/2021 07:52:30AM via free access thematic issues and emergent trends 151 the Cushitic communities of the Borana5 and the Somali; and the Nilotic speakers of Turkana and Samburu. These, however, are not self-identifying cultural categories. Rather, the communities divide themselves into their ethnic groups, where self-identity is stronger within groups than across groups. While the Meru, a significant minority in the town, are predominantly Christian, the Borana and Somali are largely Muslim. In essence, the national perception of a Muslim minority in a predominantly Chris- tian majority state is negated in the town’s demographic balance as the majority-minority dynamics are reversed. However, it should be noted that in each religious community there exists a high ethnic conscious- ness, which often translates itself in the form of, for instance, the Borana, the Somali, the Meru, the Turkana and Samburu. This is also reflected in the settlement patterns of different communities, with each of the groups occupying different areas of the town. Besides this, the more pastoral groups frequently clash over scarce resources, such as grazing lands and water.6 Conflicts in the area have a great propensity to depict the fluid and volatile identities of ethno-religious crises, as the division between the two is often blurred. The Conceptual and Practical Contours of Kadhi’s Courts Post-1990, Africa has been characterised by the (re)introduction of political pluralism, the liberation of airwaves and enhanced adherence to human rights and freedoms. The period has also witnessed agitation to put in place constitutional dispensations that reflect the will of the citi- zenry, to replace the irredeemably amended independence constitution. Since the fall of the Soviet bloc, in most African countries, ideologies that had gained currency due to Cold War rivalry ran out of ammunition. 5 Different spellings have been used by researchers to refer to Borana, a branch of Oromo found in Isiolo, Marsabit and Moyale Districts of Northern Kenya and Southern Ethiopia. They include Boran, Booran, Boorana and Borana. Booran(a) is considered by Aguilar (1998) as closer to the phonetic sound of the word. The long ‘o’ is a long vowel while the second vowel ‘a’ is accented and the terminal vowel ‘a’ is optional and is usually dropped in phonetically restricted environments. Legesse, Asmarom, Oromo Democracy: An Indigenous African Political System, Trenton and Asmara: Red Sea Press, 2006. For uni- formity I use ‘Borana’ in the chapter, as no standard format has been accepted and all the variants are considered legitimate. 6 See Ruto, P., M. Adan & I. Masinde, Conflicts in Northern Kenya: A Focus on the Inter- nally Displaced conflict victims in Northern Kenya, Nairobi: ITGA-EA & DTP Martin Karimi Publishers, 2003, for further reading on conflicts in Northern Kenya. Halkano Abdi Wario - 9789004262126 Downloaded from Brill.com09/25/2021 07:52:30AM via free access 152 halkano abdi wario Ethnicity and other forms of identities took the centre-stage as the ral- lying ground for political, economic, and social and cultural bargains and negotiations.7 In Kenya, members of different religious communities face similar socio-economic and political predicaments; however, the drive for the new rules of the game has often led to divergent, if not incompatible, views on constitutional matters regarding issues such as the status of Kadhi’s courts. Although the calls for their empowerment and expansion were largely expressed to the Constitution of Kenya Review Commission (CKRC) when it collated and collected the views from Kenyans of all walks of life in the early 2000s, such calls cannot be divorced from the opening up of the democratic space in 1992 and the subsequent opportunity it offered to members and elites of the different faiths to add their input to the tools of governance in the spirit of a ‘people-driven’ process. In the following section, the chapter examines the constitutional development of Kadhi’s courts from an historical perspective. Kadhi’s Courts: An Historical Continuum Along the East African coast, the institution of Kadhi’s courts existed much earlier than the period of establishment of British colonization.

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