Kadhi's Courts and Kenya's Constitution: an International Human Rights Perspective Joseph M

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2009 Kadhi's Courts and Kenya's Constitution: An International Human Rights Perspective Joseph M. Isanga Concordia University School of Law, [email protected]

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CU Commons Citation Joseph M. Isanga, Kadhi's Courts and Kenya's Constitution: An International Human Rights Perspective, in Rule of Law Report 2009-2010: Kenya's Constitutional Moment 29, 47 (Kenyan Section of the International Commission of Jurists, ed., 2009).

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KENYA'S CONSTITUTIONAL MOMENT

(�- \c KADHI'SCOURTS AND KENYA'SCON STITUTION: AN INTERNATIONAL HUMAN RIGHTS PERSPECTIVE Dr.Joseph Isanga*

1. INTRODUCTION

Kenya's religious groups are in the vanguard of constitutional reform.33 The opposition to Kadhi's courts has energized some Christian groups,34 who have threatened a negative vote in the constitutional referendum.35 3 Muslims have threatened similar action if those courts are excluded. 6 Observers argue that the Kadhi's courts issue will "decide the approval or otherwise of any draft constitution ... whatever it's other merits."37

This issue could derail the entire process.38 This article examines Kenya's international human rights obligations and findsthat there is support for 39 religious courts, provided relevant human rights guarantees are ensured.

33 Njoya & 6 others v. Attorney General & 3 others (No 2) (2008) 2 KLR (EP) (Kenya High Court) (recognizing religious pressure groups). 34 P Mwaura, 'Kenyan Christians Are Behaving Like A Dog In The Manger,' Daily Nation available at http://www.nation.co.ke/ope:!d/Opinion/-/440808/639632/ /4mn5jq/-/index.ht ml. 35 Daily Nation 'Ghai Against Referendum On Draft Law' available at http: //www. nation.co.ke/News/-/1056/679070/-/uoSlxi/-/index.html. 36 Daily Nation 'Kadhi's Courts Will Not Touch Other Faiths, Say Lobbies' available at http://www.nation.co.ke/News/-/1056/631560/-/ulifpa/-/index.html. 37 M Ngugi & BA Siganga 'The Common Ground in Kadhi Courts Debate' Daily Nation available at http://www.nation.co.ke/oped/0pinion/-/440808/643956/ /4n5kxa/- /index.html. 38 B Omondo 'Listen to Kadhi 'Courts Opponents,' Daily Nation available at http:// www.nation.co.ke/oped/Letters/-/440806/678574/-/iy81hi/-/index.html. Daily Nation 'Spirited Bid To Eject Kadhi Courts Sinister' available at http://www. nation.co. ke/oped/Editorial/-/440804/678566/-/phpdOfz/-/index.html. 39 United Nations Human Rights Committee, Gen.eraI Comment 23, Article 27 (Fiftieth session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 38 (1994)

KENYA'SCONSTITUTIONAL MOMENT I 29 Kenya's Kadhi's courts have existed inthe constitution since independence already exist50 their abolition would be disruptive. Fourth, abolition 40 from the British. So why do some religious groups now oppose them41 of Kadhi's courts could trigger inter-religious conflict and exacerbate 51 or their enhancement42 under Kenya's Constitution?43 Opponents ethnic conflid:. Fifth, Kadhi's courts have delivered results, playing "a of 52 Kadhi's courts advance, inter aha, the followingarguments. First, Kadhi's pivotal role in the administration of justice." Sixth, removing -Kadhi's minority.53 Seventh, courts provisions favourone religion and divide Kenyans along religious courts would further alienate a marginalized Muslim 44 45 if Christian demands regarding abortion and definition of marriage lines. Second, they introduce Sharia law. Third, the historical reasons 46 are constitutionally entrenched, even-handedness would dictate similar fortheir existence have been overtaken by events. Fourth, non-Muslims 54 recognition of Islamic personal law. Key to this debate is religious shouldn't be taxed to funda particular religion's courts.47 coexistence and accommodation. Minorities55 must be protected and not ignored in Kenya's constitutional framework.The civil war and Muslim 57 Proponents of Kadhi's courts advance, inter alia,the followingarguments. Christian strife in Sudan56 and Nigeria exemplify the consequences of First, Kadhi's courts are harmless and indispensable to resolving intra this regard. A court correctly rioted in 0 ango & 12 others v. 0 failure in 1?J M Muslim disputes.48 Second, adjudicating Islamic personal law in civil Attorney General & 2 others that: � 49 � courts amounts to secularization of Islam. Third, as Kadhi's courts � �"" '-,'-· �- The whole philosophy which informedthe negotiations between � � (hereinafter "General Comment 23"}. the KANU Government ...and the religiousleaders ...was that the � � 40 M Ngugi & B Siganga 'Kadhi Courts Exceed Limits Of The Law' available at � Constitution review process should ... be inclusive of allshades � http://www.nation.co.ke/oped/Opinion/-/440808/639988/-/4mn81p/-/index. � � of opinion ...even if the majority had their way, the minority � � html. (British colonialists allowed the Kadhi's courts as did section 66 of Kenya's � � independence Constitution.}. would have their say.58 � 41 � J Ngirachu 'Kadhi Courts: Churches Split' Daily Nation available at http://www. g.� '-,'- nation. co.ke/News/-/1056/673654/-/uolOok/-/index.html. 50 J Ngirachu & 0 Mathenge. (n 11 above). � � 42 P Nzioka & M Ndirangu 'Churches Agree To Have Kadhi Courts 51 D Nyassy 'Mps Reject Plan To Divide Coast' Daily Nation available at http://www. � Under New Law, � �- But...' Daily Nation available at http://www.nation.co.ke/News/-/1056/673282/-/ nat ion.co.ke/News/-/1056/653682/-/umrwyj/-/index.html. � � � �- uoOwmc /-/index.html (Some evangelical churches agreed that the courts could 52 E Machuhi 'Chief Justice Defends Kadhi's Courts' Daily Nation available at http:// �· � stay, provided their powers were not enhanced}. ww w.nation.co.ke/Mombasa/-/519978/677568/-/nbe2gp/-/index.html. 43 53 J Ngirachu & 0 Mathenge 'Clerics Dig In For Fight Against Kadhi Courts' Daily S Cheboip 'Clerics Push For Minimum Kenya Reforms' Daily Nation availableat w Nation available at http://www.nation.co.ke/News/-/10S6/678260/-/uo4e6d/-/ http ://www. nation. co.ke/N ew s/-/105 6/672480/-/u o09vl/-/i nd ex. htm I. ,_. index.html. Daily Nation 'Seeing Contentious Issues Through The Post-Election Violence Lens' 44 The Federation of Churches in Kenya, Christian Concerns in the Constitution available at http://www.nation.co.ke/oped/Opinion//440808/660098//4obdsv// (unpublished document}. index.html. 45 J Nigrachu 'Church Leaders Threaten To Reject New Law Over Kadhi Courts' Daily 54 'We Are Ready to Draft New Law, Say Experts' Daily Nation available at http:// :Nation available at http://www.nation.co.ke/News/-/1056/677876/-/uo3tl0/-/ www. nation.co.ke/News/politics/-/1064/664984/-/xubiegz/-/index.html. index.html. 55 Muslims are about 16 per cent of the Kenyan population. J Nigrachu (n 13 above). 46 The Federation of Churches in Kenya (n 12 above) ("subjects" of the sultan of 56 Twenty-Second Activity Report.of the Afriqrn Commission on Human and Peoples' Zanzibar who needed such courts are now part of a unified Kenya}. Rights, EX.CL/364 (XI}. 47 M Ngugi & BA Siganga (n 5 above). 57 Jnterights on behalf of Safia Yakubu Husaini and et al. v. Nigeria, African 48 EO Otieno 'Kadhi's Courts Are Harmless' D,aily Nation available at http://www. Commission on Human and Peoples' Rights, Comm'. No. 269/2003 (2005). AM natio n.co.ke/oped/Letters/-/440806/632278/-/ivmmmy/-/index.html. Elmi 'Let Us Preach Unity' Daily Nationavailable at http://www.nation.co.ke/oped/ 49 Abdi 'No Need for Debate on Kadhi's Courts' Daily 'Nation available at http:// Letters/-/440806/677600/-/iy7crh/-/index.html ( "Kenya to go the Nigerian way"). www.na tion.co.ke/oped/Letters/-/440806/631812/-/ivm2v2/-/index.html. 58 (2008) 3 KLR (EP) (Kenya High Court).

RuLE OF LAw 2009-2010 KENYA's CoNSTIWTIONALMoMENT r r and runs afoul Part l of this article analyses elevant Kenya's legal framework and its maintainthat this amounts to disc imination of the r r r Under international human rights obligations and d aws on experiences of select countries principle of sepa ation of state and eligion. r r r r other nations, is the e merit beyond the African egion. Pa t 2 discusses perspectives of select African human rights law and expe ience of countries and the African human rights system. Part 3 makes relevant to this argument? recommendations. r Positive or affirmative measures of protection of mino ities do not 2. KENYA'S KADHI'S COURTS AND INTERNATIONAL necessarily violate international human rights standards if they are 65 r HUMANRIGHTS reasonably justified in a democratic society. This requi es a balancing of rights approach. A free and democratic society must embody The Constitution r of beliefs, respect for cultural and of the Republic of Kenya (Constitution) provides "accommodation of a wide va iety 59 66 for ju cial r r 60 interests cannot be met with � evi�w. of statuto y law and freedom to manifest religion. group identity." Only when opposite Conceivably, other.67 Otherwise, reasonable this mcludes the right to establish Kadhi's courts. It also accommodation does one yield to the rovides for r 68 on appears in various laws ? . coexistence of eligious groups by prohibiting unsolicited accommodation suffices. Accommodati 61 r � mtervent1on by other per r Islamic personal law and specific eligious ,<::::, .� sons. The ecognition of unity in diversity of Kenya which recognize r goes back to when Kenya's founding r of Succession Act, for example, p ovides that ·�i P esident,Jomo Kenyatta, signed an Muslim identity. The Law � r � ag eement on S October 62 r r r rules do not apply to the estates <::::, � 1963 with Zanzibar's epresentative, M . its testamenta y o intestate succession . Sh am te, 69 � r r r as ,'-, which gua anteed the continued 6 tnstead a e gove ned by Islamic law � � existence of Kadhi's courts. 3 Further of deceased Muslims; these ' r r � the Constitution provides that administered by Kadhi's' courts.7° Kadhi's cou ts can p omote religious i coexistence in Kenya.71 "[t]he e shall be a Chief r 12 � � Kadhi and ... othe Kadhis as may be prescribed by or under an r 6 r r on Civil and Political Rights � � Act of Pa liament ." 4 B u t opponents A ticle 27 of the Inte national Covenant r 2 ,'-, r r religious mino ities7 against the ·�� (CCPR) p ovides fo the protection of 59 Cons tution e � of th Republic of Kenya (Constitution), sec 3. � 6 ° Constitution, sec 78(1). 65 Sections 82(1) (3), 82{4)(d), 78(5)(b). Majority of Kenya's legislators 61 Constitution, Constitution, sec 78(5)(b). Lukoye Atwoli 'Furore Over Kadhi Courts Much Ado About 62 are Christian. At the beginning of Islam it was the at http://www.nation.co.ke/oped/Opinion/ Caliph himself who administered justice. It Nothing' Daily Nation available was only u der the rule of e � th Caliph Umar that judges-referred to as qadi _ /440808/633286/-/4mivmf/-/i ndex.html. ere a pointed. A q di's court w s s 66 (Const) 477 at 498-499. � . � � a u ually a single-judge court with gen:ral The Queeen Oakes, (1987} LRC Junsd1ctio. n. The Qad1 was supposed 67 v. Minister of Education (CCT4/00) [2000] ZACC to listen. carefully to the evidence given Christian Education South Africa by the w1tn. sses, t encourage {10) BCLR 1051 (18 August 2000), para 33. : ? compromise between parties as long as the 11; 2000 (4) SA 757; 2000 ee ZALC 4 agr ment did not violate principles of s d 68 Greef.lFour Security (LD671/03, D671/2003) [2006] I lam • Qa is were not bound bY previous Dlamini and Others v. judgm ent s an d no ru1 e of binding e pr cedent emerged in Islamic law. University (25 April 2006). of London Externship Programme 69 Chapter 4 The Courts and Procedure available Law of Succession Act (Kenya), sec 2(3). at http:/( www.l ndonext rnal.ac.uk/curre 70 (Kenya), sec 48 (2). � � nt_stud ents/programme_resources/ Law of Succession Act laws s e is not debatable" / ub1 ct_gu1des/1. slam1c/islamic_ch4.pdf. 11 Elmi (n 25 above) ("co-existence of Kenyans of all religions 63 AM P Mwaura (n 2 above). "religions that have co-existed for decades."). 64 and that Constitution, se Comment No. 32, Article 14: c 66(1). 72 United Nations Human Rights Committee, General

RuLE op LAw2009-2010 KENYA's CoNSTTIVTIONAL MOMENI' Prins/oo Van der Linde and Anothef'0 whims or tyranny of the majority in a vote or referendum.73 It is not In v. ) the court said the essence of necessary forthe Constitution to provide forspecial canonical courts for equality lies not in treating everyone in the same way, but in treating Christian groups74 because the majority in Kenya is Christian and civillaw everyone with equal concern and respect. Kenyan Muslims are conscious is modelled on Western Judeo-Christian concepts.Thus, Christian marriage of their minority status and have a pressing need for affirmative 81 has the same effects as a civil marriage.75 Therefore,special recognition protection. According to HRC the objective of minority rights is the of Islamic personal law76 and courts77 appears to be an appropriate "survival and continued development of ... religious ...id entity of the 82 democratic78 accommodation of the rights of a religious minority. minorities concerned." The South Africancourt in MECfor Education) KwaZulu-Natai and Others v Pillqy observed, "religiousand cultural practices 83 With regard to the argument based on discrimination on the basis are protected because they are central to human id�ntity." Similarly, in of religion, the United Nations Human Rights Committee's (HRC) Woodwqys CC v Moosa, where a "Christian " company demanded that the commentary on CCPR is instructive. It observes that the "enjoyment of respondent remove his fez beforehe could be served, the court observed, ;;:s 84 S' rights and freedoms on an equal footing, however,does not mean identical "a fez ... is an expression of ... identity and dignity." Moreover, the state � �"" treatment in every instance," and the has also a duty to protect minorities fromthe actions of other persons. � '-,'-· �· HRC observes that under article 27 of the CCPR ;;:s � � 0ll:: ·� -�'-' � � [P]rinciple of equality sometimes requires States parties to take - � ·� � Positive measures of protection are ...required not only against � � � � affirmative action in order to diminish or eliminate conditions � l:::t... d -l:2 which cause or help to perpetuate discrimination prohibited the acts of the State party itself, whether through its legislative, ;;:s � �'-i � � by the Covenant ...not every differentiation of treatment will judicial or administrative authoritie , but also against the acts of � � i � .:;j-. '-,'- � $ 85 � constitute discrimirnttion, if the criteria forsuch differentiation other persons within the State party. 0 � t � ;;:s � � are reasonable and objective and if the aim is to achieve a purpose � sNo' � � 79 ;:;: which is legitimate under the Covenant. It is also important that there is sufficient access to justice. Opponents �. �� f - � d question the expansion of Kadh s courts outside the 10-milecoastal strip, � �'-i ·� Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/ referredto in the Constitution as "the formerprotectorate." 86 Section 4(2) GC/32 (2007)(hereinafter General Comment 32) para 5.2. v..) � 73 Marbury v. Madison, 2 L. Ed. 60 (1803)(minority groups must be protected from of the Kenya's Kadhi's Courts Act87 (KCA) sets up three Kadhi's courts U"l � the tyranny of the majority in certain fundamental areas, like segregation). with jurisdiction within Kwale,Mombasa, Kilifiand Lamu districts.There 74 J Shilitsa Muslim Group Allege Plot to Scuttle Law Review Daily Nation, available at http://www.nation.eo.ke/News/-/1056/675602/-/uo2e7f/-/index.html. 75 M Abdi 'Unfair to Reject Kadhi's Courts' Daily Nation available at http://www. Doc. HRI/GEN/1/Rev.1 at 26 (1994), Paras. 9, 10, 13. (18 April 1997) nation. co.ke/oped/Letters/-/440806/639652/-/ivrky2/-/index.html. ("Muslims have 80 (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 accepted to be governed by Christian, Indian and Judean laws that prevail in Kenya"). (South Africa). 76 81 Constitution, sec 66(5). J Ngirachu & Mathenge (n 11 above). 1, 82 77 Constitution, sec 66(4). General Comment 23 (n 7 above) para 6.1. 78 A Kiragu 'Kadhi's Court Not Contentious' Daily Nation available at http://www. 83 KwaZulu-Nata/, and Others v. Pi/Jay, 2008(1) SA 4�4(CC) para 62. natio.n.co.ke/oped/Letters/-/440806/674792/-/iy5atg/-/index.html. 84 (A251/06) [2009) ZAWCHC 155 (31 August 2009). 79 United Nations Human Rights Committee, General Comment 18, Non 85 General Comment 23 (n 7 above) para 6.1. discrimination (Thirty-seventh session, 1989), Compilationof General Comments 86 M Ngugi & B Siganga (n 8 above). and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. 87 Cap 11 of the Laws of Kenya.

Rum OF LAw2009-2010 KENYA's C0Nsmv110NAL MOMENT i&WAiA A 95 is need forgreater access. Kadhi's courts must be accessible, expeditious88 which Kenya is a party. The HRC insists that the provisions of "article and wellresourced to serve the five million Kenyan Muslims.89 14 [CCPR] apply to all courts and tribunals within the scope of that article whether ordinary or specialized."96 Significantly, HRC notes that: In addition, Kadhi's courts' operation must be consistent with constitutional and international human rights standards. KCA provides, Article 14 is ...relevant where a State ...recognizes ... religious inter alia, that "rules of evidence to be applied in a Kadhi's court shall be courts ...such courts cannot hand down binding judgments 90 those applicable under Muslim law," all witnesses called must be heard recognized by the State, unless the following requirements are without discrimination on grounds of religion, sex or otherwise,91 each met: proceedings before such courts are limited to minor civil issue of tact must be decided upon an assessment of the credibility of all and criminal matters, meet the basic requirements of fairtrial and the evidence beforethe court and not upon the number of witnesses who other relevant guarantees of the Covenant, and their judgments 92 have given evidence, and no finding, decree or order of the court shall are validated by State courts in light of the guarantees set out in \0 ("f") be reversed or altered on appeal or revision on account of the application the Covenant and can be challenged by the parties concerned of the law or rules of evidence applicable in the High Court, unless such in a procedure meeting the requirements of article 14 of the 93 � "" application has in factoccasioned a failure of justice. KCA also provides Covenant. These principles are notwithstanding the general ..g -� � "" that "[u]ntil rules of court are made under subsection (1), and so faras such obligation of the State to protect the rights under the Covenqnt � 97 - � of any persons affected by the operation. of ... religious courts. � � rules do not extend, procedure and practice in a Kadhi's court shall be in d � �...... � accordance with those prescribed forsubordinate courts by and under the 94 rights i � Civil Procedure Act." Is that sufficient? Rules of Kadhi's courts, when In addition, the state has the obligation to ,protect not just procedural � � those who appear before religious courts. � � enacted, must be consistent with international human rights treaties to but also substantive rights of ij � Thus, in Hassam v. Jacobs No and Others,98 the court held that because the ::c:; i2� 88 The United Nations Human Rights Committee(HRC} has said that "[a]n important Intestate Succession Act worked to the detriment of Muslim women in �� d aspect of the fairness of a hearing is its expeditiousness" and "delays are caused polygynous marriages and not Muslim men it did not pass constitutional �...... -� by a lack of resources and chronic under-funding." General Comment 32 (n 40 � t above)·. Munoz Hermoza v. Peru, HRC, No. 203/1986, para 11.3 (a fair hearing and human rights muster. � necessarily entails that justice be rendered without undue delay); Fei v. Colombia, � HRC, No. 514/1992 para 8.4 (concept of a "fair trial" includes expeditious proceedings). 89 Kenya's ·chief Justice observed "[i]t is sad that the Muslims have been incurring a lot of expenses in travelling to have their cases heard" and that the government was trying to deal with the "high number of pending cases that have diminished 95 Kenya ratified the International Convention on the Elimination of All Forms of public 1confidence in the courts." G Kikami & D Nyassy 'Coast to Get Another Racial Discrimination, G.A. res. 2106 (XX), Annex1 20 U.N. GAOR Supp. (No. 14) Kadhi' Daily Nation available at http://www.nation.eo.ke/News/regional/ at 47, U.N. Doc. A/6014 (1966), 660 U.NJ.S. 195, entered into force 4 January, /1070/518412/-/70ubxg/-/index.html. 1969; the International Covenant on Civil and Political Rights, G.A. res. 2200A 9° Kadhis' Courts Act (KCA), sec 6. (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 91 KCA, sec 6(i). 171, entered into force 23 March 1976. 92 KCA, sec 6(ii). 96 General Comment 32 (n 40 above). 93 KCA, sec 6(iii). 97 General Comment 32 (n 40 above). (Emphasis added). 94 KCA, sec 8(2}. 98 CCT83/08} [2009] ZACC 19 (15 July 2009}(South Africa).

KENYA CONSTITUTIONALMOMENT Rum OF LAw2009-2010 's 3. KENYANKADHI COURTS IN REGIONALPERSPECTIVE What are the justifications for the inclusion of Islamic courts in those countries' Constitutions? Ugandans argued, "ordinary courts ... had little 108 A comparative analysis is not alien to Kenya's legal and judicial system, success in resolving disputes among the Moslems in U ganda." In most especially if it relates to countries with similar demographic characteristics.99 countries Muslims fear that if Islamic matters are adjudicated in 'secular The Uganda Constitutionprovides that judicial power shallbe exercised, courts' there is a real danger of "contamination of Muslim Personal law 109 inter alia, by "qadhis' courts for marriage) divorce) inheritance of property and within the context of a dominant system of secular law." They argue guardianship, as may be prescribed by Parliament."100 that secular courts lack competence to handle issues of a religious nature . l "110 and '"decide' whether the Is1 anuc . . perspectives and 1aws are ratlona. The Constitution of Tanzania provides for the "continuance or establishment... of the High Court of Zanzibar or courts subordinate For example, "equality" could be misconstrued by civil courts as different to it."101 Kadhi's courts have been an official part of Zanzibar's justice values and criteria between secularism and Islam exist with regard to 00 102 M system since 1985, although the proposal to include them in the judicial application of the term. In Islam, the term "equality" is based more on 111 structure of mainlandTanzania remains controversial.103 Zanzibar Muslims "equilibrium" rather than the concept "same." Muslims also resist the 112 � can appeal to the Court of Appeal of Tanzania.104 The Constitution of attempt to "secularise Islamic Law." They maintain, "secular courts ,,;:, .� 113 � Gambia provides that "[a] Cadi Court shall be established in such places should have no power in dissolving a Muslim marriage at all." Some ·� 114 � 105 (Kenya) a judge rejected the � � in The Gambia as the Chief Justice shall determine." The Nigerian courts disagree. In Gharib v. Naaman cJ � "did not understand Islamic law." In Mohamed and --.'-i � Constitution provides for Sharia courts whose jurisdiction includes suggestion that he 106 107 that the � � personal law. Malawi's Constitution provides for traditional courts Another v. Jassiem the court observed � � � >;:s whose jurisdiction includes religiousissues. � � [Q]uestion whether Ahmadisare Muslims or not may wellbe more � �� fairly and dispassionately decided by a secular Court such as this �>;:s cJ ,,;:, Certainly ... <-, 99 than by some other tribunal composed of theologians. � Onyango & 12 Others v. Attorney General & 2 Others, (2008) 3 KLR (EP) (Kenya � r High Court at Nairobi) (reference to constitutional experiences of India, South when regard is had to the considerable number of experts to be � Africa, U.S.A, and Australia). called and the considerable volume of testimony to be given by � 10° Constitution of the Republic of Uganda {1995), art 129{1)(d) (Emphasis added). 101 The Constitutionof the United Republic of Tanzania, art 114. 102 'Tanzanian Fear at Islamic Courts' BBC available at http://news.bbc.co.uk/2/ 108 Uganda Government, The Report of The Uganda Constitutional Commission - hi/africa/ 7689570.stm. B James MPs Split Along Religious Lines The Citizen Analysis And Recommendations {1993) 472. available athttp://th ecitizen.co.tz/newe.php?id=7310. 109 South African Law Commission, 'Islamic Marriages and Related Matters' F Jube 'Govt Can't Run Kadhi's Courts: MP' The Citizen, available at http:// available at · http://www.saflii.org/cgi-bin/disp.pl?file=za/other/zalc/scripts/ thecitizen .co.tz/newe.php?id=13819. 'Tanzanian Fear at Islamic Courts' BBC re port/2003/3/2003 _3-CHAPTE R-3.htm I &query= isl amic%20m a rri ages%20 available athttp://ne ws.bbc.co.uk/2/hi/africa/7689570.stm. and%20related%20matters. ' 104 Razia JafferAli v. Ahmed Mohamedali Sewji et al, Court of Appeal of Tanzania at 110 South African Law Commission (n 77 above). Zanzibar, Civil Appeal NO. 63 OF 2005. 111 South African Law Commission (n 77 above). , 105 Constitutionof the Republic of the Gambia, art 137 (1). 112 South African Law Commission (n 77 above). ' 106 Constitutionof the Federal Republic of Nigeria (1999), Art. 260(1)(2), art 262(2). 113 South African Law Commission (n 77 above). 107 The Malawi Constitution, art 110(3). 114 [1999] LLR 905 (CAK).

RuLE OF LAw 2009-2010 KENYA 'sCONSTITUTIONAL MOMENT them, this r a Cou t m y well be the most suitable forum to deal responses to Islam in countries where Muslim presence ig a recent with a 11 them nd with their evidence. 5 development and where socio-political conditions are vastly different fromthose of African countries such as Kenya. Some countries in Europe However, in 116 Iyland v. Edros (South Africa), the court there held that continue to struggle with accommodation of Muslims. In Headscarf it lacked jurisdiction r ar a 119 eg ding essenti lly doctrinal determinations. The Case, a public school teacher, Fereshta Ludin, was denied a teaching Tanzania r a a n Cou t of Appe l held th t " a purely religious one position because she refused to remove her headscarf. The German Federal Constitutional Court held that the German state's ne?-trality on [P] ath not a r a is free from d nge nd must be avoided. It was for religion shouldn't be understood as a strict separation of religion and r a this e son that the r r a 120 P ivy Council as ea ly s 1897 disapproved state. Germany has an accommodationist approach to constitutionalism. of this tendency and ra r discou ged the Cou ts of Law to put their Notwithstanding, in the aftermath of Headscaif Case several federal states own construction of Qur' an in opposition to the express ruling enacted laws prohibiting public school tea�hers (and other civil servants) of Muhammadan Commentator 117 s. from wearing the headscarf at work. In response, Human Rights Watch � � observed, "laws such as those in German states, which exclude women � �"' � The African Commission a a ...,�· .� on Hum n nd Peoples' Rights (ACHR) h a a a a a ·.§ � d who we r the he dsc rf frompublic employment, run foulof the same ��- 's) the r a � oppo tunity to ex mine human rights r ,,121 � 0� ·� in the context of eligious international standards, und ercuttmg . ... re lig10us . f ree d om. � courts in Interights - � � � on behalf of Safta Yakubu Husaini and et al. v. Nigeria.11s � cJ � Ms. Husaini wa a r � �'-i s llegedly subjected to g oss violations r a a l � of fai tri l nd In Germany and France Islamophobia persists. In the ongoing Headscaif � due process r a � i � rights in Nige i n Sharia courts, because she never r � eceived Martyr Case a German man with a deep-seated hatred of Muslims �� nor wa r r a g..::::s- i;;s s offe ed competent o ny legal repr a r r 122 · ...,� � esent tion. Mo eove , the stabbed a pregnant mother to death in a courtroom. I n respc;mse to th e ti- � accused r a t pe sons did not h ve the right of appea r a r �0 tr: l to the Nige i n Sup eme growing Muslim population in French society, President Jacques Chirac � t Court because a a � � ppe ls would end before the Sharia r a rt. �· Cou t of Appe l. proposed a ban on the wearing of symbols or clothing by whichstudents cJ Unfortunately, the a a ar �. �'-i ·.§ c se w s not he d on merits because a 123 i;;s the complain nt conspicuously manifest a religious appearance in public schools. The �· � withdrew the complaint. French National Assembly and Senate enthusiastically approved the law.124 ...... -i::,. A p articularly worr 119 isome development would be the succumbing to Bundesverfassungsgericht [BVerfG] [Federal Constitutional court] 24• September, a xenophobic purge a r 2003, 108 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 282 (F.R.G.). of K dhi's cou ts borne of blind replication of 120 PG Danchin Suspect Symbols: Vague Pluralism as a Theory of Religiqus Freedom in International Law (2008) 33:1 The Yale Journal of lnternatiopal Law, 29 115 (201/1992) [1995] ZASCA HS; 1996 (1) SA 673 (SCA); (26 September 1995) (The available at http://ssrn.com/abstract=1058641. Supreme Court of South Africa Appellate Division). 121 Human Rights Watch 'Germany: Headscarf Bans Violate Rights' available.at http://w 116 [1997] 4 LRC 70 (Supreme Court of South Africa). See also Daniels v Campbell NO ww.hrw.org/en/news/2009/02/26/germany-headscarf-bans-violate-rights. and Others(South Africa), 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC); Akthar v. 122 T Moore 'The 'Headscarf Martyr: A Trial of the Century for Muslims' available at Union of India & Ors (India), WP No 744/1992. 117 http://www.time.com/time/world/article/0,8599,1932923,00.html. Sakina Sate Kaittany 123 and Mustafa Kibet Kaittanyv. Mary Wamaitha, Kenya Court K Boustead 'The French Headscarf law Before the European Court of Human of Appeal, Civil Appeal No. 108 of 1995. Rights' (2007) 16:2 Florida State University Journal of Transnational law & Policy 118 African Commission on Human and Peoples' Rights, Comm. No. 269/2003 167-168. (2005). 124 Boustead (n 94 above) 167-168.

RuLE OF LAw 2009-2010 KENYA's CoNSTITUTIONALMOMENT Unfortunately,the European Court of Human Rights (ECHR)-perhaps freedom of religion. because of its deference to each country's socio-political conditions that 12s Human Rights Committee maintains (marginof appreciation)-has been of little assistance. In Sahin v. Turkry The United Nations the University of Istanbul policy prohibited the wearing of head coverings and beards in lectures or exams. Leyla Sahin, who wore a headscarf, was he e ecular absolutism, w r lar dominant one; (3) s affords preference to a particu excluded from exams. She unsuccessfully petitioned the ECHR, which l world view; an (4) t te in favor of a s ecu ar � are rejected by the S a . all r eligions rel1g1on endorsed the view that religious pluralism can legitimately be achieved e t neutral toward the State is indiffer n and pluralistic liberty, where arise if this is done er, different classifications through strict secularism such as that practiced Turkey. and non-religion alike. Howev th a view to (1) State ee State and religion w_i t e elationship betw n according to h r l eli (3) theocratic politica te eutrality toward r gion; l er religion; (2) Sta n contro ov secular It does not get better elsewhere. Only the dissent in the Canadian case trols the religious and e dominant religion con perceptions, wher a _ authority between of Bhinder v. CN argued that the duty to accommodate is an essential e a'nd (5) division of State hostility toward r ligion; spheres; (4) control e afforded autonomous eligious institutions b ing aspect of human rights law and necessary for the protection against State and Church by r John Witte, Introduction Johan D.van der Vyver & 126 over c ertain activities. See discrimination. Kenya must be differentbecause its Muslims have long PERSPECTIVE: LEGAL PERSPECTIVEE RELIGIOUS HUMAN RIGHTS IN GLOBAL in Altern ti ely if thi is � coexisted with people of different religious affiliations. Yet, the Kadhi's e John Witte e ds., 1996). � � � (Johan D.van der Vyv r & .�<._:;. xi, xix elief, eedom of religion or b 12 eshold conditions for fr 'i courts controversy has not precluded sentiments of fear and exclusion. 1 e on the basis of "thr don e ect ·� legitimacy and r sp � economic stability, political e., minimal pluralism, t i. distinctions ari e: (1) � e ent beliefs additional � hts o f those with diff r (3 4. MODELS OF RELATION BETWEEN STATE AND for the rig thout e where the State, wi �'-> � cooperationist regim s, absolute theocracies; (2) te losely with religious RELIGION t churches, coopera s c ecial status to dominan i J granting a sp more e which i nsist on a � (3) separation regim s, � institutions in various ways; � ertent insensiti ity, State; (4) instances of inadv . � eparation of Church and . � � rigid s eligious Many constitutions around the world provide for the separation of State ed by deliberate anti-r thorities, though not inspir � where the political au � ---.. of their regulations; l;:s and Religion. But Constitutional framers can choose from a plurality e of the religious implications � entiments r emain unawar � s h s lity toward ,,J e politica power display � � of mod here the repositori s of ! ,'-, ·� �ls to configure the relation between religion and State. Firstly, and (5) cases w . of particularly smaller r eligions. See Id. embark upon persecution religion and th t t the official State religion model which provides exclusive benefits for a t separationism, a h h once professed a s rict t e ven in countries w ic � 128 at xix. Bu hh Witte, e. For exampl , J particular religion. This does not necessarily constitute a violation of e ed as unsustainabl � � i is increasingly r gard parad gm le � t tes as both inevitab and el in the United S a 125 h more public r igion t h e sees a s ift to t Sa in v. Turkey, App. No. 44774/98, Eur. C . H.R., (2005) (Grand C amb r). t e Supreme Cour has � he last fifteen y ears h U.S. 126 e notes that over t h e he t he th t the h h e necessary. H B ind r v. CN, [1985] 2 S.C .R. 561 para 33 (T majori y ld a ard at rul h e, Jr., New Freedom e ism. See Jo n Witt e much of its earlier s paration t t t e t e e h t abandon d e f/ as no discrimina ory as i appli d o all work rs qually, including Sik s, and i s emory.edu/emoryedg /p� w_ EMORY EDGE, http://www.news. different effect on the employee was unintended and incidental to its purpose) of Public Religion, behind e tates has lagged far erved t hat the Unit d S 127 witte e dge.pdf. It is obs AM Elmi (n 25 above). Wilfred M. McClay, Two toward secularity. See 128 Western Europe in moving The constitutional mechanisms devised to this end will evidently differ in TO THE PUBLIC SQUARE: FAITH of Secularism, in .RELIGION RETURNS accordance with the premises of their founders as to the function of the Concepts McClay eds., 2003). (Hugo Heclo & Wilfred M. AND POLICY IN AMERICA 31, 33 State and the purport of the law in relation to religious belief and activity. The e as "one of the between S tate and r ligion have described s eparation arran ements, co ceptions or models can vary widely and have been variously Some � � MuqtJdar Khan, The Myth of Secularism, my ths of modernity." M.A described. Here 1s an alternative way of describing those models. There is enduring AMERICAN A DIALOGUE ON RELIGION AND in ONE ELECTORATE UNDER GOD?: (1) religious absolutism, where one particular religion is given preferential 2004) 134 (Dionne Jr. E.J, et al. eds., treatment; (2) religious toleration where the State is benign to all religions but POLITICS

KENYA'S CoNsTrruTJONALMOMENT Rum OF LAw2009-2010 The fact that a religion is recognized as a state religion or that it is non-equal degrees of protection to a particular level, which thereby enjoys established as official or traditional or that its followers comprise different relations with the State depending on the separate agreements, the majority of the population, shall not result in any impairment entered into between the State and the religious organization. Thus under of the enjoyment of any of the rights under the Covenant the Spanish Religious freedom law of 1980, there is religious freedom. [International Covenant on Civil and Political Rights], including However, not all-religious groups are officiallyrec ognized in Spain where articles 18 and 27, nor in any discrimination against adherents to there are four basic levels. First there is the Roman Catholic Church, which other religions or non-believers.129 has a special relationship with the State. Then there are three additional religious groups that each has separate agreements with the State, the For example, Greece's Constitution provides that the Eastern Orthodox Protestant group, the Jewish Faith and the Muslim Fa,ith. The third level Church is the official religion of the State. Article 2 of the Constitution is for religious communities, which do not have a special agreement with of Libya states that "Islam is the religion of the state." Article 3 of the the State, but are inscribed in the State'religious entities registry, and Constitution of Malaysia provides that "Islam is the religion of the therefore have official status. Fourthly, the remaining religious groups lack era n t o er re ions ma e ra e in a an rm n Fed tio , bu th lig y b p ctic d pe ce d ha o y legal status as religious organizations, because they have not satisfied all in any part of the federation." � � the requirements of the State to be considered a religious organization. �<;::, ·t � � These groups may qualify for legal status, as private associations but do � Secondly, there is the official multi-religious model in which only those � not have the rights and benefits of religious organizations. � religions recognized by the State under the law have specific rights � h � a r e es or e am e ustr a as t e a o u e o o nd p ivil g . F x pl A i h h l w f ch rch r c gniti n, re s o es e s t a s mo el, in which all ligiou b di � � The fourth mod l i he fullplur li tic d � which permits non-recognized religious groups to obtain a status of a e a � m er ar o rmulated crit ri ,< en o an e a re ous freedo . Th e e n fo t:::s � ess na ommuni e re t e an o so o e er t mus j y full d qu l ligi "c�:mf io l" c ty. B fo h y c d , h w v , hey t s o e am e n er t e Netherland � � r a on o religious status. F r x pl u d h first demonstrate that they have membership -of at least 300 individuals fo qualific ti f � no re stration re uirement. � r es are e entities, and there is gi q � � and submit documents for government determination whether, the group code, all chu ch l gal � e o en sa e J e e ts mo e r r eligious fr ed m vi g d by Article ·� would violate public safety, public order, health and morals, or the rights This mod l refl c the d l fo � � ts an r e o t � an on en on man Righ d A ticl 18 f he � and freedoms of other citizens. Once recognized as a religious community, 9 of the Europe C v ti of Hu � ar on o man ts. if all goes well during a twenty year observation period, the group may be Universal Decl ati f Hu Righ � granted the higher "recognized church" status, if it has achieved a certain increase in membership. But, numerical requirements may have as their 5. RECOMMENDATIONS major purpose, the exclusion of many religious groups from existence. The Kenya Constitution should provide for Kadhi's courts which are The third model is the multi-level pluralistic model, which provides also consistent with Kenya's international obligations. In response to substantial religious freedom but at different levels, affording varying Kenya's periodic report, HRC reqL�ested for information "about the courts which could be established by Parliarr:ient as subordinate to the 129 Human Rights Committee,General Comment 22, Article 18 (Forty-eighth session, High Court and court martial, about th�ir jurisdictions, and the judges 1993). Compilation of General Comments and General Recommendations Adopted by Human .Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994), para 9.

KENYA's CONSTITUTIONAL MOMENT RULE OF LAW 2009-2010 137 Kaitany and Mutafa Kibet Kaitany v. Mary Wamaitha (Kenya) Justice who served in them."130 HRC maintains, "provisions of article 14 apply to Kwach observed all courts and tribunals within the scope of that article whether ordinary or specialized."131 Commenting on a case relating to Sudan, ACHR also a decrees that a valid a a a a l a a "[A] custom, religious or secul r, which m intained th t [w]hen Sud nese tribunals pp y Sh ri' , they must do a a a l e alth and surreptitiously t the a a a a a e marri ge c n be disso v d by ste so in ccord nce with the other oblig tions undert ken by the St t of e a a a husband is one ... which I am not pr p red Sudan. Trials must always accord with international fair-trial standards."132 whim of n dulterous a a a a Kenya a legitimacy by applic tion s p rt of the l w of Responding to Nigeria's report, the Committee on the Rights of the to ccord day and age." Child was "gravely concerned that ...the Shariah court system does not in this conformto international norms and standards."133 Responding to Qatar's In general, attention must be paid to the following aspects: evidence, report, the Committee on the Discrimination of Racial Discrimination was standard of proof, access to Kadhi's courts and adequacy of appeals.138 "concerned about the criteria by which a Shariah court would determine an appropriate punishment."134 The Committee on the Convention on Elimination of Racial Discrimination (CERD) has expressed interest in � 5. CONCLUSION _;;::,. knowing the extent to which rules of the Sharia were consistent with the � Convention.135 a religious It is imperativeth at Kenya cre tes requisite conditions for a because Muslims are a minority in accord nce � a a a e coexistence, , � Supervision is critic l. In Republic v. The K dhi Kisumu, Ex P rt 9 e a and ! ational obligations.13 But the pr serv tion a 6 a a a a e with its intern � N sreen,13 court decl red the order of K dhi r quiring the return a l a a a must be in compli nce with re ev nt l tion of K dhi's courts of a wife to her Muslim husband to be unconstitutional. In Sakina Sote oper international human rights.

� United Nations Human Rights Committee, Concluding Observations: Kenya, -� CCPR A/36/40 (1981). 131 United Nations Human Rights Committee 'General Comment 13 Article 14' (Twenty-first session, 1984), Compilation of General Comments and General � Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/ GEN/1/Rev.1 at 14 (1994) para 4. 132 Amnesty Internationaland Others v. Sudan, African Commission on Human and Peoples' Rights, Comm. No. 48/90, 50/91, 52/91, 89/93 (1999) para 73. See also Mehrunnisa v. Parvez (Kenya) [1979] 133 Committee on the Rights of the Child (CRC) 'Concluding Observations of the m H.C.C.C.No.4446 of 1994 (Kenya). Daily Banglabazar Patrika & Ors v. District Committee on the Rights of the Child, Nigeria' U.N. Doc. CRC/C/15/Add.257 LLR 15 (CAK) (Kenya). Editor, The ngladesh) Writ Petition No. 5897 of (2005) paras 78-79. Concluding Observations of the Committee on the Rights of Magistrate, Naogaon & · .Another,(B� the Child, Gambia, U.N. Doc. CRC/C/15/Add.165 (2001} para 11. 2000(unreported). 134 Conclusions and recommendations of the Committee on the Elimination of 13s 'M Ngugi & BA Siganga (n 5 above). 'General Comment 22 Article 18' Racial Discrimination, Qatar, U.N. Doc. A/48/18, paras. 86-99 (1993) para 99. 139 United Nations Human Rights Committee, �f General Comments and General 135 CERD, A/57 /18 (2002) 38, para 192 available at http://www.bayefsky.com/ (Forty-eighth session, 1993). Compilation Human Rights Treaty Bodies, U.N. Doc. HRI/ themes/eq uality_before-the-law_concluding_part2.php. Recommendations Adopted by 136 1973 E. AFR. L. REP. 153 (Kenya). GEN/1/Rev.1 at 35 (1994) paras 4, 9.

KENYA's CONSTITUTIONAL MOMENT RuLE oF LAw 2009-2010