Table of Contents

Page

Introduction 1

Kadhi’s Courts in Kenya: Reactions and Responses 3 JOHN CHESWORTH

Historical and Legal Foundations of the Kadhi’s Courts in Kenya 18 SAMUEL MBITHI KIMEU

Kadhi’s Courts in Kenya: Current Debates on the Harmonized Draft Constitution of Kenya 32 DR. MOHAMED MRAJA (MOI UNIVERSITY)

Anglican Responses to Kadhis Courts1 in Kenya 39 JOSEPH WANDERA (UNIVERSITY OF CAPE TOWN/ST PAUL’S UNIVERSITY, LIMURU)

Islamophobia among Christians and its Challenge in Entrenchment of Kadhis Courts in Kenya 49 KAHUMBI MAINA (KENYATTA UNIVERSITY)

Muslim Responses to Kadhis Courts as part of Kenya’s Constitutional Review 56 ABDULKADER TAYOB Constitutional Review in Kenya and Kadhis Courts

List of Contributors

Dr John Chesworth

John Chesworth is a lecturer at The Centre for Muslim Christian Studies, Oxford. He is a Honorary Research Fellow at St Stephen’s House, Oxford, and editor of Christian-Muslim News Digest for the Network for Interfaith Concerns (NIFCON). He is also an Associate Member of Bayreuth International Graduate School of African Studies, University of Bayreuth.

Dr Newton Kahumbi Maina

Newton Kahumbi Maina is a Senior Lecturer in the Department of Philosophy and Religious Studies, Kenyatta University in Kenya. His research interests include religion and culture.

Dr Samuel Kimeu Mbithi

Samuel Kimeu Mbithi is the Executive Director of Transparency International (Kenya). Previously, he was the Governance Specialist at the Finnish Embassy in Nairobi. He has wide experience in Human Rights Law and advocacy.

Dr Muhammed Mraja

Muhammed Mraja is a lecturer in the Department of Philosophy and Religious Studies at Moi University, Eldoret, Kenya. His areas of research interest include Islamic Law and Muslim Marriage and Family in Kenya.

Professor Abdulkader Tayob

Abdulkader Tayob is a professor in the Department of Religious Studies at UCT. He is also the director of the Centre for Contemporary Islam and holds the South African Research Chair in Islam, African Publics and Religious Values, funded by the Department of Science and Technology and managed by the National Research Foundation.

Mr Joseph Wandera

Joseph Wandera is a doctoral candidate in the Department of Religious Studies at the University of Cape Town. He is studying public sermon given by Muslim and Pentecostal preachers in Western Kenya and its infl uence on interfaith relations. Introduction

Abdulkader Tayob

rom 1996 to 2010, Kenya was engaged in an important and extensive process of re-writing the Fconstitution. Initiated by civil society groups, the review of the constitution was part of an important part of the democratizing process after the fall of the Berlin wall that swept the globe. A new constitution was fi nally accepted at a referendum on 4 August 2010. During this fourteen-year period, the place of the Kadhis courts in the constitution became a source of heated debate among some Christian and Muslim leaders and organizations. At some point, it seemed the review of the constitution was going to be derailed on the fractious relations between Christian and Muslim relations in the country. This set of essays documents various aspects of the Kadhis Court debate in Kenya during this process. They emerged from a conference organized jointly by St. Paul’s University’s Department of Religious Studies and the Centre for Contemporary Islam of the University of Cape Town on 20 March 2010. The papers were selected among many others, and they have been reviewed and revised for this publication. The conference and the publication of these papers were supported by the research chair held by Abdulkader Tayob on “Islam, African Publics and Religious Values” managed by the National Research Foundation, fi nanced by the Department of Science and Technology, and hosted at the University of Cape Town. The collection begins with a contribution by John Chesworth who presents a detailed chronology and legal trail of the Kadhis courts in Kenya. This full documentation of the sequence of events, and texts of agreements and draft constitutions provides an important overview of the Kadhis Courts. This is followed by Samuel Mbithi Kimeu’s article that covers the material from a legal perspective. His article frames the Kadhis courts as a minority rights issue in the Kenyan legal structure. In his essay, Hassan Mraja turns to the popular debate around the Kadhis courts in the same period, particularly as refl ected in newspapers and some public meetings. His article shows some of the assumptions and presumptions the Kadhis courts dominated the public sphere in Kenya. Joseph Wandera’s essay diff erentiates among Christian groups in the country, arguing that they were far from unanimous in their approach to this matter. Moreover, he makes the important and critical comment that the Anglican Church’s response to the Kadhis courts refl ects its general approach towards the public sphere. From a once-active engagement in the public sphere, the Anglican Church now followed the new churches in promoting a sectarian approach in public life. The next article by Kahumbi Maina shows how the Kadhis courts for many Christians became part of a larger threat that Muslims appeared to pose to the Kenyan state. The Kadhis Courts was clearly a Muslim issue, which was closely associated with the US Embassy bombings in 1998, the attacks on an Israeli-owned hotel and aircraft in Kilifi in 2005, and other global attacks carried by Islamic militants. This Islamophobia, as Maina calls it, determined some Christian leadership opposition to the Kadhis courts in the constitution. The fi nal paper by Abdulkader Tayob turns to a deeper analysis of some Muslim responses to the Kadhis courts, showing that Muslims were signalling the development of a new politics and a new approach to the Kadhis courts. Such views were often buried in the reactionary responses that Muslims took in public debate. The Kadhis court issue raised important questions about the relationship between religion and politics in the region. Initially, religious groups across Kenya played a constructive and important role in the development of a broad-based movement for constitutional change. Without them, the constitutional change would have been limited to politicians and legal professionals. Religious groups ensured that it was an inclusive and broad-based process. Nevertheless, the Kadhis court debate also showed the limitation of religious engagement in the public sphere. It showed how religious groups could easily slip into 2 Constitutional Review in Kenya and Kadhis Courts another mode of engagement. Public engagement could and did become a site for sectarian competition for symbolic presence. For some Christian groups, thus, the mere presence and mention of the Kadhis courts in the constitution was unacceptable. It gave Muslims a distinct advantage over others, particularly Christians. At the same time, it was also evident that the political space of Kenya was infused with religious symbols. Political parties and leaders sought out support from what they considered clearly infl uential religious leaders, and their extensive followings. All religious groups were willing to lend their support in return for greater public exposure. The third point in the Kadhis court debate was signalled by the result of the referendum, and could not have been made in March when our workshop was held in Limuru. The overwhelming support for the constitution showed that the majority of Kenyans ignored the highly controversial religious debates on the Kadhis courts. Newspaper reports and public meetings over the Kadhis courts up to August 2010 would have given observers the impression that Kenya would be engulfed in deep civil confl ict along religious lines. The Kadhis court would have been a catalyst for this confl ict. Nothing of the sort happened. Support for the referendum showed the importance but also the limitation of the religious public debate. Support for the constitution showed that religious organizations could not direct or guide the public deliberations. Their rhetoric revealed as much as it obscured what Kenyans wanted from their government. Kadhi’s Courts in Kenya: Reactions and Responses1

John Chesworth

y setting out the historical context, the paper sharīa the qāḍī passes judgement; in a matter Bseeks to fi nd the reasons why Islamic Courts other than that, the members of the council (Kadhi’s Courts) have become such a contentious pass judgement, that is, the ministers and issue in Kenya. The paper begins by reviewing the amīrs. In a matter where there is need the historical context until independence; it then of consultation with the sultan, they write examines the ways in which independent Kenya about it to him and he sends out the reply to dealt with Islamic law and the place of Kadhi’s them immediately on the back of the note in Courts within the Constitution of Kenya. accordance with his view. And such is always Two matters need clarifi cation: How do you spell their custom (Hamdun and King 2003, 21). Kadhi’s Court? and What issues are dealt with by the He then moved to Mombasa and reveals that the Kadhi’s Courts? Kadhi is the Swahili transliteration inhabitants follow Shāfi ʿī jurisprudence. of the Arabic word Qāḍī, as Swahili has no letter q. But whether a comma should appear or not when Then I sailed from the city of Maqdashaw applied to the court overseen by a Kadhi is a mystery. going towards the land of the Sawāḥil, Legal documents give every variation possible. The intending to go to the city of Kulwā [Kilwa] fi rst constitution of independent Kenya, uses “court which is one of the cities of the land of of a Kadhi”, which circumvents the question as to Zunūj. We arrived at the island of Manbasā where the apostrophe should go. The following [Mombasa] ... a large island with two days spellings occur in offi cial documents from 1888- journey by sea between it and the land of 2010, sometimes within the same paragraph: Kathi, the Sawāḥil. It has no mainland. ... They are Kadhi, Kadhis, Kadhi’s, Kadhis’, Cadi’s. Shāfi ʿī by rite, they are religious people, Under the British, the Courts were codifi ed trustworthy and righteous. ... (Hamdun and and restricted in the areas they could hear. The King 2003, 22-23). cases that are heard in Kadhi’s Courts are those that concern personal status, that is, ‘Family Law’: From this we know that long before the modern era Marriage, divorce, custody and inheritance. an Islamic legal system was already operating and that the Muslims followed the Shāfi ʿī Madhhab. Historical scene setting The colonial era began in 1498 with the arrival Around 1330 the Moroccan traveller Abū ʿAbdallāh of the Portuguese. After 200 years, in 1698, the ibn Baṭūṭa travelled along the coast of East Africa. Omanis helped to liberate the East African coast As a part of his lengthy travels the report of what from the Portuguese and subsequently colonised it he found is informative. While in Maqdashaw themselves. The Omani rulers were Ibādi (khawārij) [Mogadishu] Ibn Baṭūṭa refers to legal practices. and established a system of both Ibādi and Shāfi ʿī courts on Zanzibar; on the Ten Mile Strip. Shāfi ʿī Then the sheikh goes into his house and the law was regarded as the norm. qāḍī, the wazīrs, the private secretary, and four of the leading amīrs sit for hearing litigation [T]he Islamic judicial system … continued between the members of the public and under the rule of the Omani rulers who later hearing the cases of people with complaints. [moved] shifted [sic] their base to Zanzibar in In a matter connected with the rules of the the 19th century laying claim a 10-mile strip 4 Constitutional Review in Kenya and Kadhis Courts

along the East African coast (Ebrahim n.d.). that it will be protected and respected by the new Administration, and that all mosques and religious During the second part of the 19th Century the festivals, and Cadis and Ulema will receive all European states began their ‘Scramble for Africa.’ honour at our hands, The Mahommedan religion The Berlin Conference of 1884 divided the continent will remain the public and established creed in into spheres of interest between the European the Sultan’s territory, and all cases and lawsuits powers. In East Africa it was divided between the between natives will continue to be decided Italians around the Horn and Somalia, the British, according to the ‘Sheira,’ [sic] but although the in what is now Kenya, and the Germans in what is Mahommedan is and remains the State religion, we now mainland Tanzania. Over a number of years the intend that there shall be the fullest liberty for all Sultan of Zanzibar negotiated separate agreements others, and that all their adherents, whether they with each of the powers allowing the Ten Mile Strip be Christians, or Parsees, or Hindoos, shall freely to be controlled by these European Powers. These worship God according to their respective rites. International agreements drawn up with Britain (Hertslet 1967, 380-382) and Germany maintained the existing legal system in the protectorates. The Concession granted by This shows that the British were intent on ensuring the Sultan of Zanzibar to the British East Africa the continuation of an Islamic legal system, whilst Company drawn up on 24th May 1887 (Hertslet desiring freedom of religion for those of other faiths 1896, 110-117) included a clause concerning the living in the Sultan’s territories. The British also appointment of Judges on the mainland territories set up Islamic Courts in up-country areas, outside of the Sultan of Zanzibar which were taken under the ten-mile strip, where there were signifi cant the protection of the Company: numbers of Muslims (Anderson 1970, 107). The Judges shall be appointed by the The British set up a tripartite legal system for Association, or their Representatives, subject local courts, all being approximately at the same to the Sultan’s approval, but all “Kathis” shall level: Magistrate’s Courts, hearing cases following be nominated by His Highness. British Common Law; Native Courts, which used local traditional law; and Muslim Courts. The Further to this on 1st July 1895, during a speech British, in cases of Muslim law often applied laws made by Sir Lloyd Mathews, Wazir [chief minister] that they had previously promulgated in India and of the Sultan of Zanzibar, during a baraza [council] as such the law applied could no longer be viewed marking the transfer of territory administered on as being purely Shāfi ʿī. the mainland, held in Mombasa, stated: The British Colonial Government legally recognized the operation of Kadhi’s courts in the [A]ll aff airs connected with the faith of Islam coastal area, as one of three classes of ‘Muslim will be conducted to the honour and benefi t Subordinate Courts’. The Courts’ Ordinance, 1931, of religion, and all ancient customs will be Section 17 (as amended) defi nes them as follows: allowed to continue, and his wish is that everything should be done in accordance Liwalis’ courts: Full jurisdiction over Arabs, Balu- with justice and law (Hertslet 1967, 380). chis and Africans (including So- malis, Malagasies and Comoro A speech given by A.H. Hardinge, Her Majesty’s Islanders), in all matters in which Consul-General at Zanzibar, on 16th June 1895 was the value of the subject-matter read in Arabic and translated into Swahili. The in dispute does not exceed one speech affi rmed what the Wazir had announced thousand fi ve hundred shillings. concerning Muslim Law and Religion for the Qādīs’ courts: Full jurisdiction over Muham- citizens of the Sultan of Zanzibar who were resident madan Arabs, Baluchis and Af- on the mainland: ricans (including Somalis, Mala- gasies and Comoro Islanders), in Mahommedan Law and Religion. Religious Liberty to all matters relating to personal all: status, marriage, inheritance and And with respect to what the Wazir of the Sultan divorce, and, within the coast dis- has told you about religion, let it be known to you tricts, over all Arabs, Baluchis and CHESSWORTH – Kadhi’s Courts in Kenya 5

Africans (including Somalis, Mal- of Muslim law relating to personal agasies and Comoro Islanders), in status (for example, marriage, divorce all matters in which the value of and inheritance) in proceedings in the subject does not exceed one which all parties profess the Muslim thousand shillings. religion. Mudīrs’ courts: Full jurisdiction over Arabs, Balu- chis and Africans (including So- It is this clause, contained in the Exchange of Letters malis, Malagasies and Comoro between the Prime Ministers of Kenya and Zanzibar Islanders), in all matters in which that confi rms the existence of Kadhi’s Courts and is the subject-matter in dispute does the basis of their presence in the post-independent not exceed fi ve hundred shillings. Constitution of Kenya. (quoted by Anderson 1970, 89) Independent Kenya The Baluchis had been employed as bodyguards by After Kenya gained independence in December the Sultan of Zanzibar and they made up a distinct 1963, Jomo Kenyatta’s (1963-1978) government minority group. Unlike all the other groups they chose to respect the agreement even after the followed Ḥanafī law. All others whose cases would Sultan of Zanzibar was removed from power in have been heard followed Shāfi ʿī law. However, January 1964. The initial Constitution set out it appears that judgements for cases involving the place of Kadhi’s Courts in Kenya, following Baluchis regularly followed Shāfi ʿī law. independence: During the British colonial period the offi ce of the Chief Kadhi continued to be based in Mombasa. 179. (1) There shall be a Chief Kadhi and such The Chief Kadhi was the head of the Islamic judicial number, not being less than three, of system, appointed by the colonial administrators other Kadhis as may be prescribed by in the same way as other members of the judiciary Parliament. since he was a civil servant (Ebrahim n.d.). Beyond (2) A person shall not be qualifi ed to be the Coastal Strip, Kadhi’s courts were established in appointed to hold or act in the offi ce of Isiolo in Eastern Province and Mumias in Western Kadhi unless: Kenya (Trimingham 1964, 158). Hassan Mwakimako (a) he professes the Muslim religion; has written about the appointment of a Kadhi for and Mumias, during the colonial period (2008, 424- (b) he possesses such knowledge of the 443). Muslim law applicable to any sect or In the move towards Independence from sects of Muslims as qualifi es him, in the British, the Sultan of Zanzibar wished that the opinion of the Judicial Service the agreements concerning the Ten Mile Strip Commission, to hold a court of a should be retained. Seyyid Jamshid bin Abdullah Kadhi. bin Khalifa, Sultan of Zanzibar, Duncan Sandys, (3) Without prejudice to the generality of British Secretary of State on behalf of H.M. Queen section 178 (1) of this Constitution and Elizabeth II, Jomo Kenyatta, Prime Minister of subject to the provisions of subsection Kenya, and Mohammed Shamte Prime Minister of (4) of this section, there shall be such Zanzibar met for talks held at Marlborough House subordinate courts held by Kadhis (in and signed a joint agreement concerning the this section referred to as “courts of a Kenyan Coastal Strip, dated 8th October 1963.2 Kadhi”) as Parliament may establish and The agreement includes the texts of two letters, each court of a Kadhi shall, subject to signed by the two Prime Ministers, and dated 5th the provisions of this Constitution, have October 1963, both of which included a clause such jurisdiction and powers as may be stating: conferred on it by any law. (4) The Chief Kadhi and the other Kadhis, (2) The jurisdiction of the Chief Kadhi or the Chief Kadhi and such of the and of all other Kadhis will at all other Kadhis (not being less than three times be preserved and will extend in number) as may be prescribed by or to the determination of questions under an Act of Parliament, shall each 6 Constitutional Review in Kenya and Kadhis Courts

be empowered to hold a court of a Kadhi a multiparty system was restored. The having jurisdiction within the former Constitution does not provide for any offi cial Protectorate or within such part of state religion. Article 66(1) to (5) provides for the former Protectorate as may be so the establishment of Qadis’ Courts (An-Na’im prescribed: 2002, 55). Provided that no part of the former Protectorate shall be outside the Why are Kadhi’s Courts in the jurisdiction of some court of a Kadhi. Constitution at all? (5) The jurisdiction of a court of a Kadhi shall At Independence the Constitution’s chapter on extend to the determination of questions the Judiciary included a section called Subordinate of Muslim law relating to personal Courts, which included Magistrates Courts, Native status, marriage, divorce or inheritance Courts and Kadhi’s Courts. When the Native Courts in proceedings in which all the parties were abolished they were removed from the profess the Muslim religion. Constitution, whilst the Kadhi’s Courts remained The process of integrating the judicial system began together with the Magistrates Courts. Even though in 1962, when powers of administrative offi cers to the Constitution has been revised the original review African Courts’ proceedings were transferred wording of the clauses has been retained, with a to magistrates. The process was completed by the few minor changes. The clause concerning Kadhi’s passage of two acts in 1967. The Magistrates’ Courts Courts in the present constitution is as follows: Act 1967 abolished African Courts and the Court of Review and established District and Resident Constitution of Kenya—Revised Edition Magistrates’ Courts and a High Court. The Qadis’ (1998) 1992 Courts Act 1967 established six Qadis’ Courts for 66. Kadhi’s Courts. the application of Muslim personal status law (An- 1. There shall be a Chief Kadhi and such Na’im 2002, 54). Rather than just maintaining the number, not being less than three, of Kadhi’s Courts at pre-independence levels, Kenya other Kadhis as may be pro-scribed by or increased the number of Kadhi’s Courts to 14, one under an Act of Parliament. in each province, as well as additional locations in 2. A person shall not be qualifi ed to be Coast and North East provinces. appointed to hold or act in the offi ce of Kadhi unless— The 1967 Kadhi’s Courts Act established the a. he professes the Muslim religion; present system of courts, extending them and to all the provinces of Kenya. Islamic law b. he possesses such knowledge of the is applied by Qadis’ Courts, where “all the Muslim law applicable to any sect or parties profess the Muslim religion” in suits sects of Muslims as qualifi es him, in relating to “questions of Muslim law relating the opinion of the Judicial Service to personal status, marriage, divorce or Commission, to hold a Kadhi’s court. inheritance.” There are eight Qadis’ Courts 3. Without prejudice to section 65 (1), there in Kenya, presided over by a Chief Qadi or shall be such subordinate courts held by a qadi appointed by the Judicial Services Kadhis as Parliament may establish and Commission. Appeals to the High Court, [are each Kadhi’s court shall, subject to this conducted] sitting with the Chief Qadi or two Constitution, have such jurisdiction and other qadis as assessor(s) (An-Na’im 2002, powers as may be conferred on it by any 55). law. 4. The Chief Kadhi and the other Kadhis, An-Na’im also refers to the place of Kadhi’s Courts or the Chief Kadhi and such of the other within the Constitution and the constitutional Kadhis (not being less than three in status of Islamic law in postcolonial Kenya: number) as may be prescribed by or The Constitution was adopted on 12 under an Act of Parliament, shall each December 1963, and has been amended be empowered to hold a Kadhi’s court several times, most notably in 1964, when having jurisdiction within the former Kenya became a republic, and in 1991, when Protectorate or within such part of CHESSWORTH – Kadhi’s Courts in Kenya 7

the former Protectorate as may be so House (the Christian Students’ Leadership Centre), prescribed: which is jointly owned by the NCCK, the umbrella Provided that no part of the former organization for the Protestant churches, and Protectorate shall be outside the the Kenya Episcopal Council (KEC), the umbrella jurisdiction of some Kadhi’s court. organization for the Catholic church. The 5. The jurisdiction of a Kadhi’s court shall membership of this group was drawn from diff erent extend to the determination of questions faith groups, including the Catholic Church, of Muslim law relating to personal member churches of the NCCK, the Supreme status, marriage, divorce or inheritance Council of Kenya Muslims (SUPKEM) and the Hindu in proceedings in which all the parties Council of Kenya. In June 2000 they announced the profess the Muslim religion. formation of a People’s Commission, which would draw up its own proposals for the Constitution. Having seen the changes following independence It could be said that the establishing of the we can date the start of public discourse about People’s Commission impelled the government Kadhi’s Courts to 1998, following the demand for a to start the long-expected process of establishing review of the Kenyan Constitution. an offi cial commission. The Parliamentary Select Resulting from the pressure that the church and Committee on Constitutional Reform guided an civil society had put on the government during Enabling Act through Parliament in October 2000, the 1997 election campaign, the Government of the Constitution of Kenya Review Act, under which Kenya announced that the Constitution of Kenya the 15-member Constitution of Kenya Review would undergo a comprehensive review. The new Commission headed by Prof. Yash Pal Ghai was parliament subsequently passed the Constitution established (CKRC 2002b, 2). of Kenya Review Commission (Amendment) Act of 1998. This established the Constitution of Kenya Joint Process between CKRC Review Commission (CKRC), with a membership and the People’s Commission appointed by a Parliamentary Select Committee. As Yash Pal Ghai, as head of CKRC, insisted on a joint the process was parliament-led, the establishment process with the Ufungamano Initiative’s People’s of the CKRC was viewed with suspicion by many Commission. In March 2001, agreement was organizations in civil society (Andreassen and reached on the merger of the commissions, and Tostensen 2006, 1). The President, Daniel Arap Moi in June 2001, the Constitution of Kenya Review (1978-2002), was defensive about the Constitutional Act was amended to increase the membership Review process and in February 1998 all but of the CKRC by including ten members from attacked church leaders. the People’s Commission and two nominees of the Parliamentary Select Committee on the The Kenyan head of state was addressing a Constitution (CKRC 2000a, 2). public meeting in Eldoret on 20th February The report of the CKRC published in September ... he said the churches had been on a smear 2002 explained the processes of public hearings campaign against the government and were held throughout Kenya from December 2001 to now “curiously joining the many shady and August 2002: illegal groups opposed to the formation of a Constitutional Review Commission”. He The Commission began Listening to the People said that that this was a betrayal of Christian public hearings in Nairobi and provincial doctrine. President Moi’s attack came capitals in early December 2001. Hearings closely after several church organisations continued in Nairobi until the end of July had issued a hard-hitting statement which 2002. From late April to early August 2002, criticised the Kenyan government. (ACNS 10 the Commission visited every constituency March 1998, no. 1545) for hearings, in panels of fi ve or three commissioners, spending two days in every In December 1999 various civic organizations constituency and three days in the larger initiated the Ufungamano Initiative. This was a constituencies. Altogether 35,015 submissions “faith-based” group, named after the building were received, many from organised groups, where the initiative was launched, Ufungamano like political parties, religious communities, 8 Constitutional Review in Kenya and Kadhis Courts

professional organisations, trade unions, Muslim evidentiary law. The Muslims also NGOs, and ethnic communities, so that advocated the need to legislate relevant through formal hearings and memoranda, terms of service for the Chief Kadhi and all millions of Kenyans, throughout the country the Kadhis (Kanyoni 2006, 6). and overseas, have spoken to the Commission. The CKRC draft contained a clause on Kadhi’s (CKRC 2002b, 4) Courts, which in essence refl ected the existing clause in the constitution, whilst simplifying it and Soon after the publication of the CKRC draft, the leaving details to Acts of Parliament. author participated in a meeting of Anglican clergy, held at St. Stephen’s Church, Jogoo Road, Nairobi, CKRC Draft having been invited specifi cally to respond to The Kadhis’ courts concerns about Kadhi’s Courts in the draft. Many of the comments by speakers and participants 199 (1) There are established Kadhis’ Courts the were negative towards Muslims and showed offi ce of Chief Kadhi; offi ce of Senior little awareness of the purpose of Kadhi’s Courts, Kadhi and the offi ce of Kadhi. refl ecting much of what was to occur during the (2) There shall be a number being not less latter phases of constitutional reform. than thirty, of other Kadhis as may be David Kanyoni, now an Anglican priest in the prescribed by the Act of Parliament. Diocese of Nyahururu, whilst undertaking research (3) A Kadhi is empowered to hold a Kadhis’ for his Master of Arts in Islam and Christian Muslim court called a District Kadhi Court, having Relations at St. Paul’s University, Limuru, made an jurisdiction within a district or districts examination of the submissions made by Muslims as may be prescribed by, or under, an Act and he reports: of Parliament. During the constitutional review process, the CKRC received a number of submissions expressing The publication of the report and a draft the need for the expansion and reform of the constitution was followed by a series of National jurisdiction and structures of the Kadhi’s courts, Constitutional Conferences (NCCs) held at the primarily from the Muslim communities. Muslims Bomas of Kenya on the outskirts of Nairobi. claimed that they should be properly integrated Because of the location, they became known into the national legal system. Most specifi cally, the as Bomas I, II and III. These three conferences Muslim Communities asked the review commission produced the Bomas Draft Constitution. The Bomas to ensure that there were enough Kadhi’s courts; I conference lasted from April to June 2003, Bomas and that the jurisdiction be extended to civil and II from August until September 2003 and Bomas commercial matters. III, which fi nalized the “Bomas draft constitutional Bill”, lasted from January until March 2004. These recommendations received considera- Around 630 representatives from locally elected ble opposition from some Christian quarters. bodies, members of selected nongovernmental Regarding their proposals to expand the Ka- organizations and all members of parliament dhi’s courts, the Muslims cited a number of attended the Bomas conferences (Andreassen inadequacies in the current constitution, and Tostensen 2006, 2). The proceedings became which needed redress. They felt, for exam- increasingly acrimonious during Bomas III. The ple, the role of the Kadhi or the Chief Kadhi place of Islamic Law within the Constitution of as an assessor in the High Court is not given Kenya issue led to the collapse of the multi-faith the weight that their contribution deserves. aspect nature of the Ufungamano Initiative. Mutava The procedure of appointment of Kadhis was Musyimi, General Secretary of NCCK, resigned as a also questioned. The Muslims also expressed commissioner. the need to codify into legislation the Muslim Bomas Draft (2004) personal law on marriage, divorce, inherit- Kadhis’ Court ance and succession. They also disputed the need for the Kadhis to observe the guidance 198. (1) There is established the Kadhi’s Court. of the Evidence Act and the Civil Procedure (2) The Kadhi’s Court shall— Act, which according to them contradict the (a) consist of the Chief Kadhi and such CHESSWORTH – Kadhi’s Courts in Kenya 9

number of other kadhis, all of whom other constitutional issue. profess the Islamic faith; and (5) For the purposes of hearing and (b) be organized and administered, determining an appeal within its as may be prescribed by an Act of jurisdiction, the Provincial Kadhis’ Court Parliament. and the Kadhis’ Court of Appeal have all Jurisdiction of the Kadhis’ Court the powers, authority and jurisdiction 199. The Kadhis’ Court shall be a subordinate court in the court from which the appeal is with jurisdiction to determine questions brought. of Islamic law relating to personal status, (6) The Chief Kadhi shall, in consultation marriage, divorce and matters consequential with the Chief Justice and the Law Society to divorce, inheritance and succession in of Kenya, make rules of Court for the proceedings in which all the parties profess practice and procedure to be followed by the Islamic faith. the Kadhis’ Courts. The subsequent clause then set out in great detail This proposed draft extended the role of the Kadhi’s the jurisdiction of the Kadhi’s Courts: Courts to include a ‘small claims’ procedure, the Jurisdiction of Kadhis’ courts administration of wakf and the establishment of an 200. (1) The jurisdiction of a Kadhis’ court extends Appeal Court. The increase in the apparent powers to of the courts shows some of the reasons for some (a) the determination of questions of Christian stakeholders objecting to the presence of Muslim Law relating to personal the Kadhi’s Courts. status, marriage, divorce, including The ‘Kenyan Church’, formed from a broad matters arising after divorce, and spectrum of Christian groups, has taken upon inheritance and succession in itself a role of defender of Christianity and Kenya proceedings in which all parties against kadhi’s courts in the constitution, without profess Islam; apparently taking it on themselves to understand (b) the determination of civil and the historical place of the courts nor to exhibit any commercial disputes between sensitivity towards the Muslim community. The parties who are Muslims, in the ‘Kenyan Church’ argued that: manner of a small claims court as • [The Kadhi’s Courts] can no longer be by law established, but without accommodated as the draft clearly states the prejudice to the rights of parties to relationship between the state and religion and go to other courts or tribunals with indicates that there is no state religion. similar jurisdiction; • Article 10(3) on which they based their (c) the settlement of disputes over or arguments states: arising out of the administration of – State and religion shall be separate wakf properties. – There shall be no state religion (2) Subject to the Constitution, an appeal – All religions will be treated equally lies, as of right, from a judgement, decree or order of the District Kadhis’ Court to Attacks such as this left Muslims feeling the Provincial Kadhis’ Court, presided marginalised; confi rming them in their feeling of over by a Senior Kadhi, in any matter or being treated as second-class citizens. cause determined by the lower court: The debate, which focussed itself on the kadhi’s (3) An appeal lies, as of right, from a courts and the constitutional review, allowed judgement or order of the Provincial extreme elements from both sides to speak out Kadhis’ Court to the Kadhis’ Court of with great vehemence and so increased tensions Appeal, presided over by the Chief Kadhi between the two communities. It has crystallised and two senior Kadhis. the perceived hurts and prejudices that have (4) An appeal from the Kadhis’ Court of Appeal lain under the surface of a thin veneer of mutual lies to the Supreme Court only on a point tolerance. Aspects of the entire situation must be of Islamic Law or on an issue aff ecting the examined for the infl uence of political elements interpretation of the Constitution or any that use religion for their own ethnic reasons. 10 Constitutional Review in Kenya and Kadhis Courts

In an interview with David Kanyoni in January laws relating to personal status, marriage, 2004, David Gitari, the former Archbishop said: divorce and matters consequential to divorce, inheritance and succession in The personal laws of all minority groups proceedings in which all parties profess cannot be given a constitutional recognition the respective faith, as may be prescribed in the total exclusion of all other religions by an Act of Parliament. in Kenya and especially of the mainstream (“Wako Draft” 2005) Christian religion which comprises over 80% of the total population (Gitari, 6th January The referendum campaign divided the nation 2004, in Kanyoni 2004). into Bananas (Yes) and Oranges (No) and led to the creation of the Orange Democratic Movement Kanyoni also reports on a seminar run by NCCK in (ODM). Machakos where Oliver Kisaka, the Deputy General The referendum was held on 21st November Secretary of NCCK and Eric Simiyu, formerly of Life 2005. The results of the referendum, issued on 22 Challenge Africa and Oliver’s brother, both spoke. November 2005, showed a resounding rejection of He reports that Kisaka said: the proposed constitution. Nationally, the “No” side received 57 per cent, and the “Yes” side 43 Having dialogue with the Muslims is a waste percent. of time and resources, as Muslims are never When the votes on a provincial basis are trusted as they bombed American Embassy analysed, we see that only in the home province and the following day they were celebrating of the president (Central) was there a majority in ... (Oliver Kisaka NCCK Seminar, 4th March favour of the constitution, with 92 percent voting 2004, in Kanyoni 2004). “Yes,” whilst in the home province of the leader of the “No” campaign (Nyanza), 87 percent voted The arguments set out at that time refl ect some against it. This indicates that many people voted of the current discourses. One strand concerned on ethnic lines. The two provinces with a majority the idea that no religion should be favoured over of Muslims (Coast and North Eastern) also heavily others in a secular state, such as Kenya. The other rejected the draft constitution, 80 and 75 percent, centred on distrust of Muslims, containing aspects respectively, also indicating that Muslims were not of Islamophobia. This was at a time when Hope FM in favour of the proposals. was conducting a weekly phone-in where Islam Whilst other factors led to the rejection of the was being criticised and there were explanations draft constitution, it can also be said that for both being given about the ‘hidden agenda’ of the Abuja Christians and Muslims, the place of Kadhi’s courts Declaration.3 in the constitution, was regarded as a signifi cant reason for their rejection of the Wako draft of the November 2005 Referendum on the constitution. Paul Giff ord writing about church proposed New Constitution involvement in the whole process and Kadhi’s Following the various Bomas meetings a fi nal Courts comments: draft Constitution was produced by the Attorney General, Amos Wako, which became known as the … these courts seemed to become a major Wako draft. Whereas the clause concerning Kadhi’s issue especially for the newer churches whose Courts in the earlier drafts had kept closely to agenda was adopted by the Catholics and the existing Constitution the Wako Draft sought NCCK; … much Christian activity against the to appease Christians and other non-Muslim new constitution revolved around narrowly stakeholders, by establishing a Religious Courts evangelical concerns rather than the broad Clause rather than Kadhi’s Courts. human rights issues that initiated the drive for a new constitution (Giff ord 2009, 41). Wako Draft (2005) 179. (3) The subordinate courts are— Constitution of Kenya Review and the (a) The Magistrates’ courts, Christian Committee of Experts 2009 courts, Kadhis’ courts, Hindu courts Following the December 2007 elections and the and other religious courts. ensuing Post Election Violence and the agreement 195. (4) To determine questions of their religious brokered by Koffi Annan and others, a process was CHESSWORTH – Kadhi’s Courts in Kenya 11 set in train to draw up a new draft constitution. The Kadhis’ Courts Constitution of Kenya Review Act was passed in 209. (1) There shall be a Chief Kadhi and such December 2008 and the Committee of Experts sworn number, not being fewer than three, of in March 2009, charged with the task to review all other Kadhis as may be prescribed by or previous drafts and reports. Their modus operandi under an Act of Parliament. meant that they largely sidelined Civic Society (2) A person shall not be qualifi ed to be initiatives. In an interim statement issued at the appointed to hold or act in the offi ce of end of October 2009 ‘Progress on the Constitution Kadhi unless the person— Review process by the Committee of Experts (CoE) (a) professes the Muslim religion; and and Reference Group (RG) as at October 2009’ two (b) possesses such knowledge of the weeks before the Harmonized Draft was published Muslim law applicable to any sects they stated that: of Muslims as qualifi es that person, in the opinion of the Judicial Service The RG and CoE appreciated that the Kadhis Commission, to hold a Kadhi’s court. Courts raise various concerns and they are (3) Without prejudice to Article 208, there shall important socio-cultural issues in our society. be such subordinate courts held by Kadhis as To this extent, the RG and CoE have deliberated Parliament may establish and each Kadhi’s on the issue of the Kadhis courts and there court shall, subject to this Constitution, is an emerging consensus. While members have such jurisdiction and powers as may of CoE and RG will continue to educate and be conferred on it by any law. engage with Kenyans and religious leaders, (4) The Chief Kadhi and the other Kadhis, or the CoE and RG wish to affi rmatively state the Chief Kadhi and such of the other Kadhis that the Cadis [sic] will no longer be a reason (not being fewer than three in number) as to object to the process of constitution making may be prescribed by or under an Act of or to defeat the draft constitution. Parliament, shall each be empowered to This revealed that they were aware of the ‘socio- hold a Kadhi’s court having jurisdiction cultural’ issues, but did not see these as a barrier within the former Protectorate or within to retaining the Kadhi’s courts clause in the such part of the former Protectorate as harmonized draft. may be so prescribed. The Committee of Experts published the (5) No part of the former Protectorate shall Harmonized Revised Draft Constitution in mid be outside the jurisdiction of some Kadhi’s November 2009. As expected it included a clause court. concerning Kadhi’s Courts. (6) The jurisdiction of a Kadhi’s court shall extend to the determination of questions Harmonized Draft Constitution of Kenya (2009) of Muslim law relating to personal Part 3—Subordinate courts status, marriage, divorce or inheritance Subordinate courts in proceedings in which all the parties 208. (1) The subordinate courts are— profess the Muslim religion. (a) the Magistrates’ Courts; (b) the Kadhis’ courts; In general it followed the current constitution. (c) the Courts Martial; and However sub clauses 209 (4) and (5) both include (d) any other court or local tribunal reference to ‘the former Protectorate’, a phrase that as may be established by an Act of needs some clarifi cation. It appears to refer to the ‘ten Parliament. mile strip’ that the Sultan of Zanzibar had controlled (2) Parliament shall by legislation confer and subsequently ceded to British ‘protection’ in jurisdiction, powers and functions on the 1895. That is the same area in which Kenyatta had courts established under clause (1). agreed to retain Islamic Law at independence, with the Marlborough House agreement. If this is the This retained the Kadhi’s Courts’ place as a case, it implied that the Kadhi’s Courts clause only subordinate court, together with Magistrates’ applied to this geographically defi ned region, which Courts, as in the current constitution. The next lies within Coast Province, but does not incorporate clause then set out the place of the Kadhi’s courts. the whole province. 12 Constitutional Review in Kenya and Kadhis Courts

On the 29th January 2010 a revision of the (3) Without prejudice to Article 160, there harmonised draft constitution by a Parliamentary shall be such subordinate courts held by Select Committee was published. The accompanying Kadhis as Parliament may establish and report included a section on the judiciary 4.1 which each Kadhi’s court shall, subject to this makes no reference to Kadhi’s courts and stated Constitution, have such jurisdiction and that: powers as may be conferred on it by law. (4) The Chief Kadhi and the other Kadhis, The Chapter on Judiciary was not considered or the Chief Kadhi and such of the other contentious by the Committee of Experts Kadhis (not being fewer than three in although Judiciary is one arm of Government number) as may be prescribed by or that has raised concern among the public in under an Act of Parliament, shall each its dispensation of justice and the question of be empowered to hold a Kadhi’s court its independence. The Committee deliberated having jurisdiction within Kenya. on the Chapter and made to remove (5) The jurisdiction of a Kadhi’s court clauses which could be addressed through shall be limited to the determination legislation (Report of the Parliamentary of questions of Muslim law relating to Select Committee on the Review of the personal status, marriage, divorce or Constitution on the Reviewed Harmonized inheritance in proceedings in which all Draft Constitution 29th January 2010). the parties profess the Muslim religion This revision retained the Kadhi’s Courts clause: and submit to the jurisdiction of the Kadhi’s courts. Revised Harmonised Draft Constitution of Kenya The Revised Harmonised Draft Constitution of 29th January 2010 Kenya clause concerning Kadhi’s Courts makes Part 3—Subordinate courts no reference to ‘the former Protectorate’, thereby Subordinate courts removing one area of contention. 160. (1) The subordinate courts are— On 6th May 2010 the Attorney General published (a) the Magistrates courts; the text of the Proposed Constitution to be put to a (b) the Kadhis’ courts; referendum on 4th August 2010. The wording of the (c) the Courts Martial; and two clauses concerning Kadhi’s Courts is almost (d) any other court or local tribunal identical to that of the Revised Harmonised Draft as may be established by an Act of Constitution of 29th January 2010. Parliament. (2) Parliament shall by legislation confer Part 3—Subordinate courts jurisdiction, powers and functions on the courts established under clause (1). Subordinate courts 169. (1) The subordinate courts are— Kadhis’ Courts (a) the Magistrates courts; 161. (1) There shall be a Chief Kadhi and such (b) the Kadhis’ courts; number, not being fewer than three, of (c) the Courts Martial; and other Kadhis as may be prescribed by or (d) any other court or local tribunal under an Act of Parliament. as may be established by an Act of (2) A person shall not be qualifi ed to be Parliament, other than the courts appointed to hold or act in the offi ce of established as required by Article Kadhi unless the person— 162(2). (a) professes the Muslim religion; and (2) Parliament shall enact legislation (b) possesses such knowledge of the conferring jurisdiction, functions and Muslim law applicable to any sects powers on the courts established under of Muslims as qualifi es that person, clause (1). in the opinion of the Judicial Service Commission, to hold a Kadhi’s Kadhis’ Courts court. 170. (1) There shall be a Chief Kadhi and such CHESSWORTH – Kadhi’s Courts in Kenya 13

number, being not fewer than three, of Conclusion other Kadhis as may be prescribed under This article serves to document the history of the an Act of Parliament. Kadhi’s Courts clause in the Constitution of Kenya (2) A person shall not be qualifi ed to be and the draft proposals to modify it. Kadhi’s Courts appointed to hold or act in the offi ce of have had a place within Kenyan coastal society from Kadhi unless the person— at least the thirteenth century. Their existence was (a) professes the Muslim religion; and recognised and incorporated by colonial powers, (b) possesses such knowledge of the both the Omanis from the late seventeenth century Muslim law applicable to any sects and the British from the late nineteenth century. of Muslims as qualifi es the person, This historical presence led to the acceptance in the opinion of the Judicial Service and continuation of the system of Kadhi’s Courts Commission, to hold a Kadhi’s court. following independence. (3) Parliament shall establish Kadhis’ courts, Various changes have been made to the each of which shall have the jurisdiction Constitution of Kenya over the years since and powers conferred on it by legislation, independence, but none were made to the clauses subject to clause (5). referring to Kadhi’s Courts. (4) The Chief Kadhi and the other Kadhis, The presence of the Kadhi’s Courts in the or the Chief Kadhi and such of the other Constitution led to no adverse comment until the Kadhis (not being fewer than three in Constitutional Review of 2002. At that stage it would number) as may be prescribed under appear that other proposals in the review, taken an Act of Parliament, shall each be together with events elsewhere, raised awareness empowered to hold a Kadhi’s court having of Kadhi’s Courts. The review initially included jurisdiction within Kenya. proposals for a Federal system of government. Events (5) The jurisdiction of a Kadhis’ court in northern Nigeria, where under a federal system, shall be limited to the determination beginning in 1999, several states had re-introduced of questions of Muslim law relating to sharia raised concerns that the same could happen personal status, marriage, divorce or in Kenya. These concerns were largely generated inheritance in proceedings in which all by a lack of understanding of the system of sharia in the parties profess the Muslim religion operation in Nigeria when compared to Kenya. and submit to the jurisdiction of the With the support given to the proposed Kadhi’s courts. Constitution on 4th August 2010, the clauses allowing Kadhi’s Courts will remain until they are The only diff erences are found in 169(1)(d) and removed or amended through due process. 170(3). The fi rst instance refers to additional courts listed in 162(2): Notes 1 This paper refl ects research carried out in Kenya for the ‘Sharia Debates and Their Perception by Christians and System of Courts Muslims in Selected African Countries’ project that John 162. (2) Parliament shall establish courts with Chesworth is involved in. Some of the material is drawn from research carried out by John Chesworth for a recently the status of the High Court to hear and published chapter ‘The Church and Islam: Vyama Vingi determine disputes relating to— (Multipartyism) and the Ufungamano Talks’, in Religion and Politics in Kenya, Ed. B. Knighton, Palgrave 2009. (a) employment and labour relations; 2 Please see appendix for the full text of the agreement, and and the full texts of the two rescinded agreements, neither (b) the environment and the use and of which specifi cally refers to the status of the courts. Please note that the Marlborough House talks were held occupation of, and title to, land. in October 1963 with the sole purpose of drawing up an agreement between Zanzibar and Kenya on the Coastal Strip. These talks were separate from the Lancaster House Whilst 170(3) appears to restrict the potential talks which had dealt with other issues concerning the powers of Kadhi’s Courts to those listed in 170(5), independence process for Kenya. rather than the possibility of additional powers 3 See Hassan Mwakimako ‘Christian-Muslim Relations in Kenya: A Catalogue of Events and Meanings’, ICMR 18.(2) referred to in 161(3), January 2010: “each Kadhi’s 2007, Pages 287-307; see also John Chesworth ‘Challenges to court shall, subject to this Constitution, have such the next Christendom: Islam in Africa’. In: Global Christianity: Contested Claims, eds. Frans Wijsen and Robert Schreiter, 117- jurisdiction and powers as may be conferred on it 132. Amsterdam: Editions Rodopi, (2007), especially pages by law”. 119-124 which examines the Abuja Declaration in detail. 14 Constitutional Review in Kenya and Kadhis Courts

Appendix Majesty’s Government and those territories being at present administered accordingly as part of Kenya Coastal Strip Agreement 8th October 1963 Kenya under the name of the Kenya Protectorate: And whereas by an Exchange of Letters Full Text of Agreement: completed in London on 5th October 1963 between the Prime Minister of Zanzibar and the Prime [Cover Page 1] Minister of Kenya the Government of Kenya agreed Coat of Arms of the United Kingdom of Great Britain to certain undertakings concerning the protection, and Northern Ireland after Kenya has attained independence, of the Title: Kenya Coastal Strip interests of His Highness’s present subjects in the Agreement between the Government of the United Kenya Protectorate and their descendants: Kingdom, His Highness the Sultan of Zanzibar, NOW THEREFORE it is hereby agreed and the Government of Kenya and the Government of declared that on the date when Kenya becomes Zanzibar independent Presented to Parliament by the Secretary of State (1) the territories comprised in the Kenya for the Colonies by Command of Her Majesty Protectorate shall cease to form part of His October 1963 Highness’s dominions and shall thereupon London form part of Kenya; (2) the Agreement of 14th June 1890 in so far as it [Contents Page 2] applies to those territories and the Agreement Agreement Page 3 of 14th December 1895 shall cease to have Letter of the Prime Minister of Kenya to the Prime eff ect. Minister of Zanzibar Page 4 Signed Letter of the Prime Minister of Zanzibar to the DUNCAN SANDYS. Prime Minister of Kenya Page 5 SAYYID JAMSHID BIN ABDALLA. JOMO KENYATTA. [Agreement Page 3] M. SHAMTE. AGREEMENT BETWEEN THE GOVERNMENT OF THE Marlborough House UNITED KINGDOM, HIS HIGHNESS THE SULTAN OF London ZANZIBAR, THE GOVERNMENT OF KENYA AND THE GOVERNMENT OF ZANZIBAR [Letter from Jomo Kenyatta Page 4] An agreement made this 8th day of October 1963 LETTER FROM THE PRIME MINISTER OF KENYA TO between the Right Honourable Duncan Sandys, THE PRIME MINISTER OF ZANZIBAR M.P., one of Her Majesty’s Principal Secretaries of London, State, on behalf of Her Majesty Queen Elizabeth 5th October 1963 II, His Highness Sayyid Jamshid bin Abdulla bin Khalifa Sultan of Zanzibar, Jomo Kenyatta Prime My Dear Prime Minister, Minister of Kenya on behalf of the Government of I have the honour to refer to discussions held Kenya and Mohammed Shamte on behalf of the between our respective Governments on the Government of Zanzibar: subject of the future of the Kenya Protectorate (the Whereas by an Agreement made on behalf of Her Coastal Strip) and to place on record the following Majesty Queen Victoria on 14th June 1890 with His undertakings by the Government of Kenya in Highness Sultan Seyyid bin Ali Said it was agreed, relation thereto:— among other things, that His Highness’s dominions should be placed under Her Majesty’s protection: (1) The free exercise of any creed or religion will And whereas by an Agreement made on behalf at all times be safeguarded and, in particular, of Her Majesty Queen Victoria on 14th December His Highness’s present subjects who are of 1895 with His Highness Sultan Seyyid Hamed the Muslim faith and their descendants will bin Thwain it was agreed that His Highness’s at all times be assured of complete freedom possessions on the mainland of Africa and adjacent of worship and the preservation of their own Islands, exclusive of Zanzibar and Pemba, should religious buildings and institutions. be administered by others appointed direct by Her (2) The jurisdiction of the Chief Kadhi and of all the CHESSWORTH – Kadhi’s Courts in Kenya 15

other Kadhis will at all times be preserved and religious buildings and institutions. will extend to the determination of questions (2) The jurisdiction of the Chief Kadhi and of all the of Muslim law relating to personal status (for other Kadhis will at all times be preserved and example, marriage, divorce and inheritance) will extend to the determination of questions in proceedings in which all parties profess the of Muslim law relating to personal status (for Muslim religion. example, marriage, divorce and inheritance) (3) Administrative Offi cers in predominantly in proceedings in which all parties profess the Muslim areas should, as far is reasonably Muslim religion. practicable, themselves be Muslim. (3) Administrative Offi cers in predominantly (4) In view of the importance of the teaching Muslim areas should, as far is reasonably of Arabic to the maintenance of the Muslim practicable, themselves be Muslim. religion. Muslim children will, so far as is (4) In view of the importance of the teaching of reasonably practicable, be taught Arabic and, Arabic to the maintenance of Muslim religion. for this purpose the present grant-in-aid to Muslim children will, so far as is reasonably Muslim primary schools now established in practicable, be taught Arabic and, for this the Coast Region will be maintained. purpose the present grant-in-aid to Muslim (5) The freehold titles to land in the Coast primary schools now established in the Coast Region that are already registered will at all Region will be maintained. times be recognized, steps will be taken to (5) The freehold titles to land in the Coast ensure the continuation of the procedure for Region that are already registered will at all the registration of new freehold titles and times be recognized, steps will be taken to the rights of freeholders will at all times be ensure the continuation of the procedure for preserved save in so far as it may be necessary the registration of new freehold titles and to acquire freehold land for public purposes, the rights of freeholders will at all times be in which event full and prompt compensation preserved save in so far as it may be necessary will be paid. to acquire freehold land for public purposes, in which event full and prompt compensation I have the honour to propose that this letter and will be paid. your reply in confi rmation thereof shall constitute an agreement between our two Governments. I have the honour to confi rm the contents of Yours sincerely, your letter and to accept your proposal that your JOMO KENYATTA. letter and this reply shall constitute an agreement between our two Governments. Yours sincerely, [Letter from M. Shamte Page 5] M. SHAMTE. LETTER FROM THE PRIME MINISTER OF ZANZIBAR TO THE PRIME MINISTER OF KENYA London, Text of the two agreements referred to in the 5th October 1963 Coastal Strip Agreement: My dear Prime Minister, The Agreement of 14th June 1890 I have the honour to refer to your letter of today’s No. 42. — PROVISIONAL AGREEMENT concluded date on the subject of the future of the Kenya between the Sultan of Zanzibar and Her Protectorate (the Coastal Strip) in which you Britannic Majesty’s Agent and Consul- placed on record the following undertakings by the General (subject to the approval of Her Government of Kenya in relation thereto:— Majesty’s Government), respecting the (1) The free exercise of any creed or religion will British Protectorate of the Sultan’s at all times be safeguarded and, in particular, dominions, Succession to the Throne of His Highness’s present subjects who are of Zanzibar, &c.§ Zanzibar, 14th June, 1890. the Muslim faith and their descendants will British Protectorate. at all times be assured of complete freedom Art. I.—His Highness Seyyid Ali-bin-Saïd, the of worship and the preservation of their own Sultan aforesaid, accepts freely and unreservedly 16 Constitutional Review in Kenya and Kadhis Courts for himself, his subjects, and his dominions, the Witness to the signature of Colonel Euan-Smith: Protectorate of Great Britain, to commence from ERNEST J.L. BERKELEY, any date which may hereafter be fi xed by Her Her Britannic Majesty’s Vice-Consul. Majesty’s Government. ______Relations of Zanzibar with Foreign Powers to be The Sultan of Zanzibar to the Marquis of Salisbury. conducted through British Government. (Translation.) Art. II.—His Highness Seyyid Ali-bin-Saïd further Zanzibar, 14th June, 1890. understands and agrees that all his relations, We have heard from our true friend, your of whatever sort, with foreign Powers, shall be Consul-General Colonel Euan-Smith, all that your conducted under the sole advice and through the Lordship proposes to do for our good. And we channel of Her Majesty’s Government. know, indeed, that the English Government is Sultan’s Dominions lying between the Umba and always desirous of doing good to us, and we are Rovuma Rivers. very grateful to your Lordship in our heart, and Art. III.—As regards that portion of His Highness we accept everything proposed. And now, please the Sultan’s dominions lying between the Umba God, our interests will be safely in the care of the and Rovuma Rivers, His Highness Seyyid Ali agrees English. to abide by any equitable arrangement that may This is from your friend. be come to by Her Majesty’s Government with ALI-BIN-SAÏD. Germany regarding its retention by the Germans, § See Notifi cation of British Protectorate, 4th and his just interests in this question entirely to November, 1890, p.310. the care of Her Majesty’s Government. || See Agreement, Great Britain and Germany 1st British Guarantee of Sultan’s Throne to Himself July, 1890, Art. I, §§ 1 and 2, pp. 899, 900. and his Successors. (Hertslet 1967, 308-309) Art. IV.—Colonel C.B. Euan-Smith, Her Majesty’s Agent and Consul-General aforesaid, hereby The Agreement of 14th December 1895 guarantees, on behalf of Her Majesty’s Government, the maintenance of His Highness the Sultan of No. 77.— AGREEMENT between Great Britain and Zanzibar’s throne to himself, Seyyid Ali, and also Zanzibar, respecting the Possessions of the to his successors. Sultan of Zanzibar on the Mainland and Succession to the Throne of Zanzibar. adjacent Islands, exclusive of Zanzibar and Art. V.—Colonel C.B. Euan-Smith further Pemba. Signed at Zanzibar 14th December, guarantees to His Highness Seyyid Ali, on behalf of 1895. Her Majesty’s Government, the right of nominating Zanzibar Possessions on Mainland and Islands, his own successor to the Throne, subject to the exclusive of Zanzibar and Pemba, to be administered by approval of Her Majesty’s Government. British Government. Agreement to be binding permanently. His Highness Seyyid Hamedb-in-Thwain, Art. VI.—His Highness Seyyid Ali hereby declares Sultan of Zanzibar, agrees for himself, his heirs that the above Agreement shall be for ever binding and successors, that as regards his possessions upon himself, his heirs and successors. on the mainland and adjacent islands, exclusive Done at Zanzibar, in duplicate English and duplicate of Zanzibar and Pemba, the administration shall Arabic copies, on the 14th day of June, in the year be entrusted to offi cers appointed direct by Her 1890. Brittanic Majesty’s Government, to whom alone (Signature in Arabic) they shall be responsible. Translation: (“This is true. Written by Ali-bin-Saïd These offi cers shall have full powers in with his own hand.”) regard to executive and judicial administration, the Witness to the signature of His Highness the levy of taxes, duties, and tolls, and the regulation Sultan: of trade and commerce. They shall have control MOHAMMED-BIN-SAEF. over public lands, forts, and buildings, over all SALIM-BIN-ASSAN. roads, railways, waterways, telegraphs and other (L.S.) C.B. EUAN-SMITH Colonel, means of communication, and shall regulate Her Brittanic Majesty’s Agent and questions aff ecting lands and minerals. All custom Consul-General duties, taxes, and dues shall be accounted for to, CHESSWORTH – Kadhi’s Courts in Kenya 17 and shall be expended by, Her Britannic Majesty’s PParliamentaryarliamentary SelectSelect CommitteeCommittee 2010.2010. RReporteport ofof thethe ParliamentaryParliamentary SSelectelect CommitteeCommittee onon thethe ReviewReview ofof thethe ConstitutionConstitution onon thethe Government. RReviewedeviewed HarmonizedHarmonized DraftDraft ConstitutionConstitution 2929tthh JanuaryJanuary 20102010. All assets purchased by the Sultan’s RRepublicepublic ooff KKenyaenya 22005.005. TThehe ProposedProposed NewNew ConstitutionConstitution ofof KenyaKenya. Government from the Imperial British East KKenyaenya GazetteGazette SupplementSupplement 6363, commonlycommonly referredreferred toto asas ‘Wako‘Wako DDraft’.raft’. Africa Company at the time of the surrender 22009.009. HHarmonizedarmonized DraftDraft ConstitutionConstitution ofof KenyaKenya. of its Concessions shall be the property of Her 2010.2010. RRevisedevised HarmonisedHarmonised DraftDraft ConstitutionConstitution ofof KenyaKenya. 2929tthh JJanuaryanuary 2010.2010. Britannic Majesty’s Government, who shall also 2010.2010. PProposedroposed ConstitutionConstitution. 6tthh MayMay 2010.2010. retain as their own property all public works of UUfungamanofungamano IInitiativenitiative 22004.004. PProposedroposed DraftDraft ConstitutionConstitution ofof any description which may be constructed by the tthehe RepublicRepublic ofof Kenya:Kenya: DraftedDrafted byby thethe UfungamanoUfungamano InitiativeInitiative ffromrom DocumentsDocuments PreparedPrepared forfor thethe NationalNational ConstitutionalConstitutional offi cers administering under this Agreement. CConferenceonference IncludingIncluding thethe SummarySummary ofof thethe ViewsViews ofof KenyansKenyans Her Britannic Majesty’s Government shall aandnd thethe AnnotatedAnnotated DraftDraft ConstitutionalConstitutional BillBill. www.ncck.org/www.ncck.org/ ddownloaddocs/Proposed%2520constitution%2520by%252ownloaddocs/Proposed%2520constitution%2520by%252 pay to the Sultan’s Government annually the sum 00Ufungamano.pdfUfungamano.pdf ((accessedaccessed 2244 JulyJuly 2008).2008). of £11,000, as well as of £6,000 representing interest at 3 per cent., on the sum of £200,000 disbursed SSecondaryecondary SSourcesources AAnderson,nderson, J.J. N.N. D.D. 1970.1970. IIslamicslamic LawLaw inin AfricaAfrica. London:London: CCassass by the latter for the surrender of the Company’s ((reprintreprint ooff 11954954 1sstt editionedition withwith newnew prefacepreface byby author).author). Concessions, and for the purchase of its assets. AAndreassen,ndreassen, B.B. A.A. andand A.A. TostensenTostensen 2006.2006. OOff OrangesOranges andand BBananas:ananas: TheThe 20052005 KenyaKenya ReferendumReferendum onon thethe ConstitutionConstitution. CMICMI This Agreement shall not aff ect the WWorkingorking PPapers,apers, BBergen:ergen: CChr.hr. MMichelsenichelsen IInstitute.nstitute. sovereignty of the Sultan in the above mentioned AAnglicannglican CChurchhurch NNewsews sserviceervice (ACNS),(ACNS), 1998.1998. PresidentPresident territories or the Treaty rights of foreign Powers. AAttacksttacks Churches.Churches. ACNSACNS 1545.1545. 1010 MarchMarch 1998. www.www. aanglicancommunion.org/acns/news.cfm/Kenyanglicancommunion.org/acns/news.cfm/Kenya Her Britannic Majesty’s Government shall AAn-Na’im,n-Na’im, A.A. A.A. 2002.2002. IIslamicslamic FamilyFamily LawLaw inin a ChangingChanging WorldWorld. have the power of terminating this Agreement on LLondon:ondon: ZZeded BBooks.ooks. CChesworth,hesworth, J.J. A.A. 2004.2004. Kadhi’sKadhi’s CourtsCourts andand thethe ConstitutionalConstitutional giving six months’ previous notice to the Sultan of RRevieweview Process.Process. Zanzibar of their intention to do so. TThehe VoiceVoice, 2004:9-12.2004:9-12. (Signature of Sultan in Arabic) 2007.2007. ChallengesChallenges toto thethe nextnext Christendom:Christendom: IslamIslam inin Africa.Africa. IInn eeds.ds. F.F. WijsenWijsen andand R.R. Schreiter,Schreiter, GGloballobal CChristianity:hristianity: ARTHUR H. HARDINGE, CContestedontested Claims.Claims. 117-132.117-132. AAmsterdam:msterdam: EditionsEditions Rodopi.Rodopi. Her Britannic Majesty’s Agent 2009.2009. TheThe ChurchChurch andand Islam:Islam: VVyamayama VingiVingi (Multipartyism)(Multipartyism) aandnd tthehe UfungamanoUfungamano TTalks.alks. IInn RReligioneligion andand PoliticsPolitics inin KenyaKenya, and Consul-General eed.d. B.B. Knighton,Knighton, 1155-180.55-180. Basingstoke:Basingstoke: Palgrave.Palgrave. Zanzibar, 14th December, 1895. EEbrahim,brahim, A.A. A.A. n.n. d.d. IslamIslam inin Kenya.Kenya. JamiaJamia MosqueMosque WebsiteWebsite (Hertslet 1967, 382) UURL:RL: http://www.islamkenya.com/html/islamkenya.htmlhttp://www.islamkenya.com/html/islamkenya.html ((accessedaccessed 12th12th MarchMarch 2009).2009). GGiiff ord,ord, P.P. 2009.2009. CChristianityhristianity PoliticsPolitics andand PublicPublic LifeLife inin KenyaKenya. References LLondon:ondon: HHurst.urst. HHamdun,amdun, SS.. aandnd NN.. King.King. 22003.003. IIbnbn BBattutaattuta inin BlackBlack AfricaAfrica. PPrimaryrimary SSourcesources PPrinceton:rinceton: MMarkusarkus Wiener.Wiener. CCommitteeommittee ofof Experts/ReferenceExperts/Reference GroupGroup 2009.2009. ProgressProgress onon thethe HHertslet,ertslet, E.E. 1896.1896. TThehe MapMap ofof AfricaAfrica byby TreatyTreaty ((33 volumes),volumes), CConstitutiononstitution ReviewReview processprocess byby thethe CommitteeCommittee ofof ExpertsExperts LLondon:ondon: HHMSO.MSO. ((CoE)CoE) andand ReferenceReference GGrouproup ((RG)RG) aass aatt OctoberOctober 2009.2009. 1967.1967. TThehe MapMap ofof AfricaAfrica byby TreatyTreaty ((33 Volumes),Volumes), (reprint(reprint ooff 3rrdd CConstitutiononstitution ofof KenyaKenya 1963.1963. TThehe ConstitutionConstitution ofof KenyaKenya eeditiondition 1909),1909), London:London: FrankFrank Cass.Cass. 1964.1964. TThehe ConstitutionConstitution ofof KenyaKenya KKanyoni,anyoni, DD.. 2004.2004. Kadhi’sKadhi’s CourtsCourts inin Kenya:Kenya: ‘A‘A ContentiousContentious 1998.1998. TThehe ConstitutionConstitution ofof Kenya:Kenya: RevisedRevised EditionEdition (1998)(1998) 19921992. IIssue’.ssue’. BDBD dissertation,dissertation, Limuru:Limuru: StSt Paul’sPaul’s UnitedUnited TheologicalTheological NNairobi:airobi: GGovernmentovernment PPrinter.rinter. CCollege.ollege. 2009.2009. TThehe ConstitutionConstitution ofof Kenya:Kenya: RevisedRevised EditionEdition (2009)(2009) 20082008..”” 2006.2006. Kadhi’sKadhi’s Courts:Courts: ImplicationsImplications forfor Christian-MuslimChristian-Muslim CConstitutiononstitution ofof KenyaKenya ReviewReview CommissionCommission (CKRC)(CKRC) 2002a.2002a. DDraftraft RRelations.elations. MAMA dissertation,dissertation, Limuru:Limuru: StSt Paul’sPaul’s UnitedUnited BBillill ofof thethe ConstitutionConstitution ofof KenyaKenya ReviewReview CommissionCommission. Nairobi:Nairobi: TTheologicalheological CCollege.ollege. CCKRC.KRC. MMwakimako,wakimako, H.H. 2007.2007. Christian-MuslimChristian-Muslim RelationsRelations inin Kenya:Kenya: 2002b.2002b. TThehe People’sPeople’s Choice:Choice: TheThe ReportReport ofof thethe ConstitutionConstitution ofof A CatalogueCatalogue ofof EventsEvents andand Meanings.Meanings. IIslamslam andand Christian-Christian- KKenyaenya ReviewReview Commission,Commission, ShortShort Version.Version. Dated,Dated, SealedSealed andand MMuslimuslim RelationsRelations, VolumeVolume 18/2:287-307.18/2:287-307. IIssuedssued byby thethe ConstitutionConstitution ofof KenyaKenya ReviewReview CommissionCommission inin 2008.2008. KadhiKadhi CourtCourt andand AppointmentAppointment ofof KadhiKadhi inin KenyaKenya MMombasaombasa atat 10.0010.00 a.m.a.m. onon WednesdayWednesday thethe 18th18th dayday ofof September,September, CColony”olony” RReligioneligion CompassCompass 22/4/4 (2008):424–443.(2008):424–443. 22002002. Nairobi:Nairobi: CCKRCKRC TTrimingham,rimingham, JJ.. S.S. 1964.1964. IIslamslam inin EastEast AfricaAfrica. Oxford:Oxford: ClarendonClarendon GGovernmentovernment ofof thethe UnitedUnited KingdomKingdom 1963.1963. KKenyaenya CoastalCoastal Strip:Strip: PPress.ress. AAgreementgreement betweenbetween thethe GovernmentGovernment ofof thethe UnitedUnited Kingdom,Kingdom, HisHis U.S. State Department 2000. Kenya: International Religious HHighnessighness thethe SultanSultan ofof Zanzibar,Zanzibar, thethe GovernmentGovernment ofof KenyaKenya andand Freedom Report 2000.http://www.state.gov/g/drl/rls/ tthehe GovernmentGovernment ofof ZanzibarZanzibar. irf/2000/23714.html (accessed 18 April 2008). National Constitutional Conference 2004. The Draft Constitution 2003. Kenya: International Religious Freedom Report 2003. of Kenya 2004, Adopted by the National Constitutional Conference http://www.state.gov/g/drl/rls/irf/2003/23714.htm on 15th March 2004. Nairobi: NCC (‘Bomas Draft’). http:// (accessed 25 April 2008). www.scribd.com/doc/438024/Bomas-draft-2004 (accessed 17 August 2008). Constitutional Review in Kenya and Kadhis Courts

Historical and Legal Foundations of the Kadhi’s Courts in Kenya

Samuel Mbithi Kimeu

Introduction Parliamentary Group (IPPG) agreement.4 Three he clamour for a new constitution in Kenya laws resulted from this agreement: one making Tgained momentum in the early 1990s following several minor changes to facilitate a level playing the repeal of section 2 A of the Kenyan Constitution ground in the 1997 general elections. The Kenya to allow for multi-party democracy. The inadequacy Constitution Review Act was enacted to codify the of the current constitution to manage the aff airs of IPPG agreement that the entire constitution be the Kenyan state had been widely recognized and reviewed through an independent commission. the lobby for a review of the constitution became After the 1997 elections and with continued more pronounced. The main reasons for the clamour pressure for constitutional change, a series of for review of the constitution were to check the talks was held in the Bomas of Kenya and Safari excesses of the presidency while strengthening Park Hotel leading to the enactment of the Kenya the protection of fundamental rights and freedoms Constitution Review Commission (Amendment) from encroachment by the state. Act, 1998 to repeal the 1997 Act and to incorporate Kenya’s independence Constitution in 1963 a broad spectrum of stakeholders. provided for a decentralized form of government Disagreements followed the sharing of the that gave powers to the regions and limited thirteen available slots in the commission, with the powers of the central government (Akivaga KANU insisting on keeping seven of the slots. A 2005) (Editor’s note – Akivaga not mentioned motion in parliament sponsored by Raila Odinga’s in bibliography). It provided for a bicameral National Development Party (NDP) was amended legislature and a Prime Minister as the Head of by KANU to lock out civil society from the Review Government. Important changes were made in Commission occasioning a split. KANU and NDP the independence constitution that had the eff ect supported a process led by a Parliamentary Select of strengthening the presidency and weakening Committee (The Parliamentary process). The Civil Parliament and other institutions1. This was Society, the Christian groups composed mainly followed by systematic constriction of the political of NCCK affi liates, the Anglican and the Catholic space and fundamental rights and freedoms. With churches teamed with the Supreme Council of the political space narrowed, the church became Kenya Muslims (SUPKEM) and the Hindu Council to the voice of political opposition. form a parallel reform initiative popularly known The agitation for constitutional change at the as the Ufungamano Initiative5 chaired by Dr. Oki beginning of the 1990s forced the Kenya African Ooko-Ombaka. Meanwhile the Parliamentary Select National Union (KANU) to appoint a Review Committee after hearing views from a few Kenyans Committee to improve the image of that party and to and some foreign experts proposed amendments accommodate dissident politicians. More pressure to the 1998 Act in the form of the Constitution of from pro-reform groups and the donor community Kenya Review Commission (Amendment) Act, 2000, coupled with changes in geo-politics2 made the which legalized the exclusion of other bodies from government accept change through the repeal of nominating commissioners. These powers were Section 2 A of the Constitution.3 Further changes vested solely in parliament. came just before the elections in 1997 through an President Daniel arap Moi appointed Prof. Yash agreement of various political parties represented Pal Ghai as the chairman of the Parliamentary in parliament in what was known as the Inter-Party Commission. In March 2001 after protracted KIMEU – Foundations of Kadhi’s Courts 19 negotiations led by Prof. Ghai with the Ufungamano neither Kadhis nor their courts are given Initiative, agreement was reached on the merger suffi cient respect and recognition … More of the Commissions. Parliament enacted the specifi cally, the Muslim community asked Constitution of Kenya Review (Amendment) Bill 2001 the Commission to ensure that there were to legalize the merger between the Constitution of suffi cient Kadhi courts throughout the Kenya Review Commission6 (CKRC) and the People’s country; that their jurisdiction be extended Commission (Ufungamano Initiative)7 and allow two to civil and commercial matters, that the nominees of the Parliamentary Select Committee8 qualifi cations of Kadhis should be raised on the Constitution. The CKRC conducted and to ensure their competence, and that a facilitated civic education, listened to Kenyans and separate structure of appeals be established recommended proposals for constitutional reform. for Islamic law.”15 The CKRC report and draft Bill were debated on, amended and adopted in a National Constitutional Those who opposed the entrenchment of Kadhi’s Conference9 held at a cultural centre popularly Courts, mainly Christian evangelical groups, argued known as the Bomas of Kenya. 10 that the courts are not a constitutional issue and The Bomas process was undermined when the should thus not be in the constitution. Some posit government side (the Cabinet) walked out of the talks that Kadhi’s courts are religious entities and since over disagreements on the system of government. Kenya is a secular state, they have no place in the The Cabinet led a process that culminated in a draft Kenyan state structure which serves all people Constitution popularly known as the Wako draft that irrespective of religion or creed.16 Other grounds of was subjected to a referendum and soundly rejected objection are examined below. on 21st November 2010. The Bomas process also saw This paper is an exposition of the historical and the break up of the Ufungamano Initiative with legal foundations and developments of Kadhi’s the rise of the Kenya Church and the withdrawal courts in Kenya. The paper traces the history of from the initiative of the Muslim members over Kadhi’s courts from the colonial times to the present disagreements on the place and status of Kadhi’s11 and their entrenchment into the Constitution and courts in the draft Constitution. laws of Kenya. It also examines the legal import The pursuit of a new constitution has continued of the treaty or exchange of letters that President for two decades now. Political and ethnic divisions Kenyatta and the Sultanate of Zanzibar had, on the and contests have compromised any meaningful administration of justice along the ten mile coastal progress towards the attainment of a new strip and examines, also, the legal underpinnings constitution. The latest eff ort at writing a new of the Kadhi’s courts with regard to international constitution derives directly from the National human rights law. Accord and Reconciliation Agreement.12 A new Religious groups in Kenya play a very important Constitution of Kenya Review Act13 was enacted role in the governance and political development of setting up organs of review and providing a tight the nation. They are recognized for their role and roadmap, expeditiously to guide the process of contribution to the discourse for a new constitution constitution-making. in Kenya (Njoya & 6 others v. Attorney General & 3 others The subject of Kadhi’s courts has been a silent (No. 2) (2008) 2 KLR (EP) (Kenya High Court). The one in Kenya until the process of writing a new largest religious groupings in Kenya are the Christians constitution commenced in 2001. Given opportunity and Muslims who also have been at the forefront in for the fi rst time to determine how they wished advocating for a new constitution and laws to guide to be governed, the Muslim community asked for Kenya to greater prosperity. The Muslim quest for an enhanced jurisdiction of Kadhi’s courts. The expanded jurisdiction of Kadhi’s courts and some Constitution of Kenya Review Commission in its Christian groups’ opposition even to its inclusion report, The People’s Choice14, states as follows: in any future constitution have brought the two groups against one another, ( Mwaura n.d.) and “The Commission received a number of threaten the whole constitution-making exercise submissions on the expansion and reform (Daily Nation ‘Ghai Against Referendum On Draft of their (Kadhi Courts) jurisdiction and Law’ ; Daily Nation ‘Kadhi’s Courts Will Not Touch structures, primarily from the Muslim Other Faiths, Say Lobbies’ ). Observers argue that communities. They considered that the Kadhi’s courts issue will “decide the approval 20 Constitutional Review in Kenya and Kadhis Courts or otherwise of any draft constitution…whatever its to administer British East Africa and to build a other merits.” (Ngugi and Siganga n.d.) This issue railway line from the coast to Uganda. In 1895 it could derail the entire process (Omondo n.d)). was declared a British protectorate, the East Africa Protectorate. In 1920 it became the Kenya Colony Historical Origins and Development and was to remain so until 1963. Tanganyika was of Kadhis Courts German East Africa and later became Tanganyika The history of Kadhi’s courts along the East African Territory under the British in 1919. After the First coast is a long one. It is recorded that Hajj Ibn World War (1914-1919), it was administered as a Battuta, the famous Moroccan explorer found League of Nations Mandated Territory. Kadhi’s courts in operation along the East African The British and Germans found the Coastal areas coast (Mogadishu) when he visited around 1331.17 of East Africa under the dominion of the Sultanate The history of Kadhi’s courts in Kenya may be as of Zanzibar who had representatives along the old as the advent of Islam along the East African coast administering it on his behalf and resolving coast. The phrase Kadhi is derived from the Arabic disputes among his Muslim subjects (Salim 1973). word Qadi which literally refers to a person who The ten mile coastal strip along the Kenyan coast traditionally has jurisdiction over all legal matters had two types of representatives of the Sultan; involving Muslims and passes judgments based on administrators (Liwali) (Annual Departmental prevailing consensus (ijmā‘) of traditional Islamic Reports relating to Kenya and the East Africa High scholars (ulamaa) (Majamba 2007). At the beginning Commission, 1903/4-1963, Publication no. R 97282, of Islam it was the Caliph himself who administered p.2) and judges (Kadhis). In 1895, Sultan Hamid justice. It was only under the rule of Caliph Umar bin Thuwain (1893-1896) leased to and permitted that judges—referred to as qadis—were appointed. the British to administer the coastal strip as a A qadi’s court was usually a single-judge court with protectorate on his behalf, ushering in colonialism general jurisdiction. The Qadi was supposed to listen over his subjects along the Kenyan coastal region. carefully to the evidence given by the witnesses and The Sultan became only a symbol of Muslim to encourage compromise between parties as long political sovereignty without any authority to make as the agreement did not violate principles of Islam. decisions (Ndzovu and Hassan n.d.). To smoothen Qadis were not bound by previous judgments and no their administration and secure the co-operation rule of binding precedent emerged in Islamic law.18 of the Muslim Arabs along the coastal region, the Today, the practice pertaining to Kadhi’s courts British entered into an agreement with the Sultan is varied in diff erent countries with some states of Zanzibar in 1895. Through this agreement, the limiting the jurisdiction of the courts to matters British undertook not to interfere with the Islamic aff ecting the personal status of Muslims while in system of dispute resolution in the administration others the courts have exclusive jurisdiction over all of the coastal strip. The Kadhi’s courts, then in matters aff ecting Muslim adherents. This system of existence, were preserved. The British agreed to dispute resolution among the Muslims was inspired respect and protect the right of the Muslims to have by religion and had therefore taken root long before their personal law matters adjudicated by Kadhi’s. the colonialists came into the East African coast. In 1920 when the Kenya Colony was established, The Imperial British East Africa Company was the ten mile deep coastal strip was not part of it. one of the chartered companies that preceded That coastal strip was referred to as the Kenya imperial annexation in Africa. When the Germans, Protectorate. This constitutional change did not British and the French were partitioning East however aff ect the general administration of the Africa among themselves, the dominion of the territory and both the Colony and the Protectorate Sultan of Zanzibar over the ten mile (16 km) coastal continued to be governed as one unit (Annual strip between Tana River and River Ruvuma was Departmental Reports, 1903/4). The British also recognized. When the European colonial powers established some Kadhi’s Courts in areas outside came into the territories now known as Kenya, the coastal strip (in mainland or upcountry) in Uganda and Tanzania (then Tanganyika and Isiolo and Mumias (Trimingham 1964). Noteworthy Zanzibar Island), they found long existing Islamic however is that Kadhi’s Courts gradually lost infl uence. Kenya came under the infl uence of authority under British Rule. The type of cases the Imperial British East African Company (IBEA) they were allowed to deal with was regulated until through a Royal Charter in 1888 requiring the IBEA they only dealt with family law. KIMEU – Foundations of Kadhi’s Courts 21

At the imminence of independence for Kenya Muslim areas should, so far as is reasonably and as part of negotiations on the nature of the practicable, themselves be Muslims. constitution that should be adopted, the Sultan of (4) In view of the importance of the teaching Zanzibar and the British Government appointed of Arabic to the maintenance of the Muslim Commissioner James Robertson to examine religion, Muslim children will, so far as is administration of the coastal strip in the light of reasonably practicable, be taught Arabic and, the 1895 agreement. Arab-Muslim nationalism was for this purpose, the present grant-in-aid to already simmering, advocating that the coastal Muslim primary schools now established in strip be returned to the administration in Zanzibar the Coast Region will be maintained. with whom they shared a lot in common. The (5) The freehold titles to land in the Coast Region Arab-Muslims had enjoyed privileged positions that are already registered will at all times be and treatment during the colonial rule that meant recognized, steps will be taken to ensure the their unity with the rest of Kenya would have led continuation of the procedure for registration to their loss of privileges (Ndzovu and Hassan n.d.). of new freehold titles and the rights of Besides, they feared the fast rising nationalistic freeholders will at all times be preserved save movements dominated mainly by Christians in so far as it may be necessary to acquire from the mainland. The recommendations of freehold land for public purposes, in which the Commissioner were that the coastal strip be event full and prompt compensation will be merged with the mainland before independence paid.21 on the condition that Kadhi’s courts be protected in the independence constitution and be subject A subsequent agreement was signed on 8th October to the supervision and control of the Chief Justice 1963 to cement the agreement in the exchange (Majamba 2007). of letters. The latter agreement was signed by The 1895 agreement ‘ceased to have eff ect’19 at the two Prime Ministers in addition to the Sultan independence and the Governments of Kenya and of Zanzibar22 and Duncan Sandys, Her Majesty’s Zanzibar entered into another agreement through Principal Secretary of State after discussions held which Zanzibar formally gave up claim over the ten at Marlborough House in London. This agreement mile coastal strip while Kenya agreed to safeguard referencing the exchange of letters, provided the existence of Kadhi’s courts at all times.20 The that: fi rst part of the 1963 agreement consisted of letters exchanged between Prime Minister Jomo (1) the territories comprising the Kenya Kenyatta for Kenya and Prime Minister M. Shamte Protectorate shall cease to form part of His for Zanzibar on 5th October 1963. The exchange of Highness’s dominions and shall thereupon letters covered fi ve undertakings by Kenyatta in form part of Kenya; relation to the Kenya Protectorate (coastal strip) in (2) the Agreement of 14th June 1890 in so far as it the following terms, applies to those territories and the Agreement of 14th December 1895 shall cease to have (1) The free exercise of any creed or religion will eff ect. (sic) all times be safeguarded and, in particular, His Highness’s present subjects who are of The exchange of letters in themselves and the Muslim faith and their descendants will the subsequent agreement between the three at all times be assured of complete freedom States constitute a treaty in International Law. of worship and the preservation of their own A treaty may be concluded through exchange of religious buildings and institutions. instruments whereby their consent to be bound (2) The jurisdiction of the Chief Kadhi and of all the is specifi cally stated and the instruments declare other Kadhis will at all times be preserved and that to be the intended eff ect (Shaw 2008). Kenya will extend to the determination of questions and Zanzibar have a legally binding treaty to of Muslim law relating to personal status (for preserve the existence and jurisdiction of Kadhi’s example, marriage, divorce and inheritance) courts in accordance with the stipulations of the in proceedings in which all parties profess the exchange of letters and agreement of 1963. A treaty Muslim religion. is basically an agreement between parties with (3) Administrative Offi cers in predominantly international legal personality on the international 22 Constitutional Review in Kenya and Kadhis Courts scene. The fundamental principle of treaty law (3) Without prejudice to section 65 (1), there shall is the proposition that treaties are binding upon be such subordinate courts held by Kadhis as the parties to them and must be performed in Parliament may establish and each Kadhi's good faith (Shaw 2008). This principle, known as court shall, subject to this Constitution, pacta sunt servanda, is at the core of treaty making have such jurisdiction and powers as may be and is the rationale upon which states continue conferred on it by any law. to conclude treaties. Kenya may not therefore (4) The Chief Kadhi and the other Kadhis, or the unilaterally abrogate this treaty and cannot use its Chief Kadhi and such of the other Kadhis (not domestic law to defeat the object and purpose of being less than three in number) as may be the treaty. (Shaw 2008) The only means relevant prescribed by or under an Act of Parliament, to the amendment or termination of this treaty in shall each be empowered to hold a Kadhi's international law is to re-negotiate it or bring it to court having jurisdiction within the former an end through an agreement with Zanzibar or a Protectorate23 or within such part of the successor state. former Protectorate as may be so prescribed: Noteworthy however is the conduct of the Provided that no part of the former independence Kenya government with regard to Protectorate shall be outside the jurisdiction the matter of Kadhi’s courts. While Prime Minister of some Kadhi's court. Kenyatta wrote to the Secretary General of the (5) The jurisdiction of a Kadhi's court shall extend United Nations expressing independent Kenya’s to the determination of questions of Muslim sovereign desire not to be bound automatically by all law relating to personal status, marriage, the colonial treaties and agreements, it is important divorce or inheritance in proceedings in which to note that the agreement between Kenya and all the parties profess the Muslim religion.” Zanzibar was one of those agreements that were immediately honoured when provision was made Subsequently, the power vested in parliament in the Constitution to establish Kadhi’s courts. under section 66 (1) (3) of the constitution gave Subsequently the Kadhi’s Courts Act was enacted birth to the Kadhi’s Courts Act (Chapter 11, Laws together with several facilitative legislations. of Kenya (commenced on 1st August 1967). This Act establishes several Kadhi’s courts whose collective Constitutional and Legal Foundations jurisdiction covers the entire country (Kadhi’s of Kadhi’s Courts Courts Act, Chapter 4,Laws of Kenya (1967, Sec 4) . Following the treaty between Kenya and Zanzibar, Section 5 establishes the jurisdiction of the Kadhi’s legal obligations arose in international law for courts in the following terms:- Kenya to protect Kadhi’s courts in accordance with the provisions of their exchange of letters A Kadhi’s court shall have and exercise the and agreement on the Kenya Coastal Strip. This following jurisdiction, namely the determi- informed the inclusion of Kadhi’s courts into the nation of questions of Muslim law relating to Kenyan Constitution and law. Section 66 of the personal status, marriage, divorce or inherit- Independence Constitution of Kenya provides ance in proceedings in which all the parties that: profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the (1) There shall be a Chief Kadhi and such number, High Court or of any subordinate court in any not being less than three, of other Kadhis proceeding which comes before it. as may be prescribed by or under an Act of The jurisdiction of the Kadhi’s courts Parliament. therefore only extends to personal law, spe- (2) A person shall not be qualifi ed to be appointed cifi cally on matters of marriage, divorce and to hold or act in the offi ce of Kadhi unless- inheritance and applies only where both (a) he professes the Muslim religion; and parties are Muslims and submit to the courts. (b) he possesses such knowledge of the The law however does not preclude Muslims Muslim law applicable to any sect or sects from approaching the other ordinary state of Muslims as qualifi es him, in the opinion courts for vindication of their rights nei- of the Judicial Service Commission, to ther does it oust the jurisdiction of other hold a Kadhi's court. courts to hear and determine personal law KIMEU – Foundations of Kadhi’s Courts 23

issues aff ecting Muslims.24 The jurisdiction mile coastal strip that was formerly the dominion of Kadhi’s courts is therefore concurrent of the Sultanate of Zanzibar. with other secular courts. Legally, Kadhis The justifi cation for this extension may be in Kenya have no jurisdiction to hear and found in the practical application of any law in a determine matters involving non-Muslims unifi ed country. With the constitutional right to or Muslims and non-Muslims. Such matters free movement and to own property anywhere in must go to the ordinary secular state courts the republic fi rmly entrenched in the constitution, which are not bound to apply Muslim law in it would pose considerable diffi culties to Muslims if the course of determining cases brought be- they were to be required to move from their abodes fore them (Harvey 1975 – (Editor: this refer- to seek justice in personal matters in Kadhi’s courts ence is missing from Bibliography). only found geographically within the ten mile coastal strip. Besides, there is a signifi cant area Kadhi’s courts are subordinate courts under the outside this strip inhabited by Muslims also keen supervision of the High Court and the Chief Justice on accessing the services of Kadhis and Kadhi’s (Kadhi’s Courts Act, Chapter 4, Laws of Kenya courts. (1967, Secs 7 & 8). The Chief Justice has the power The rationale for the 1963 treaty was the to appoint Kadhi’s (Kadhi’s Courts Act, Chapter 4, protection of Muslim minorities along the Coast Laws of Kenya (1967), Sec 3) and to establish Kadhi’s where they were concentrated. This rationale holds courts ( Kadhi’s Courts Act, Chapter 4, Laws of Kenya to date and has been vindicated in many ways.25 (1967), Sec 4).in consultation with the Chief Kadhi Minorities26 must be protected and not ignored in (Kadhi’s Courts Act, Chapter 4, Laws of Kenya (1967), Kenya’s constitutional framework. This principle Sec 4). Kadhis are employees of the Judicial Service is at the root of religious and ethnic co-existence Commission and must be persons who profess recognized in many nations and internationally. It the Islamic faith and are versed with Muslim law is at the core of national cohesion and peace. The applicable to any sect of Muslims (Kadhi’s Courts High Court in Kenya correctly noted in Onyango & Act, Sec 4). The law and rule applied by the court are 12 others v. Attorney General & 2 others that: those applicable under Muslim law (Kadhi’s Courts The whole philosophy which informed the Act, Chapter 4, Laws of Kenya (1967), Sec 6). The negotiations between the KANU Government Act empowers the Chief Justice to establish rules of … and the religious leaders … was that the procedure and practice for the Kadhi’s courts and in Constitution review process should … be the absence of any rules requires the court to make inclusive of all shades of opinion … even if use of the Civil Procedure Act (Chapter 21, Laws of the majority had their way, the minority Kenya ) applicable in all other courts (Kadhi’s Courts would have their say (3 KLR (EP) (Kenya High Act, Chapter 4, Laws of Kenya 1967, Sec 8). Appeals Court, 2008). from the Kadhi’s courts lie fi rst to the High Court and may proceed to the Court of Appeal. In the High It is therefore imperative in democratic societies Court, the Chief Kadhi sits during proceedings as an to recognize minorities and the disadvantages assessor. that come with minority status and seek to protect A notable deviation from the 1963 treaty is that them. This notion informs the trend now gaining while the material and geographical jurisdiction of currency to recognize the political disadvantage of the Kadhi’s courts remains as envisaged in the letter women in many countries and to seek to address of the treaty and the constitution, its geographical that disadvantage through affi rmative action jurisdiction has been enlarged. The powers to that requires the setting aside of special (Editor: establish Kadhis Courts have been utilised to set up parliamentary?) seats for women. It is recognition additional courts outside the former protectorate. that in a democracy, the will of the majority The proviso under Article 66 (4) of the constitution prevails but it is also prudent that the voice and only envisages a geographical jurisdiction of the concerns of the minorities be heard and protected. courts limited to the ten mile coastal strip (former This protection is acceptable if it can be reasonably Kenya Protectorate). The setting up of Kadhi’s courts justifi ed in a democratic society (Constitution, outside the former protectorate is contested as an secs 82 (1) (3), 82 (4) (d), 78 (5) (b). The majority of enlargement of the Kadhi’s jurisdiction beyond the Kenya’s legislators are Christian.( Atwoli n.d.). This protective purpose envisaged only within the ten requires a balancing of rights approach. 24 Constitutional Review in Kenya and Kadhis Courts

Evolution of Kadhi’s Courts in various matters consequential to divorce, inheritance and Draft Constitutions succession in proceedings in which all the parties The contestations attending the issue of profess the Islamic faith. After the walk-out from constitutional protection of Kadhi’s courts are better Bomas by delegates sympathetic to the government understood by a scrutiny of relevant provisions and the strained relationship between Muslims and in the various draft constitutions made since the the churches under the Ufungamano Initiative, exercise of reviewing the constitution commenced. the NCCK produced its own draft constitution The key documents are the Bomas draft, the Kilifi that completely excluded any mention of Kadhi’s draft, the Ufungamano draft, the Wako draft, the courts. Harmonized draft constitution (HDC) and the After the Bomas fi asco, the Parliamentary Proposed Constitution of Kenya (PCK). Select Committee retreated to Naivasha to come The initial Bomas draft provided for the up with a document produced by consensus. The enhanced jurisdiction and stature of Kadhi’s courts. Naivasha process was disowned by sections of the The relevant Article 198 provided as follows: politicians. Civil society similarly felt excluded. A section of politicians further retreated to Kilifi to 198. (1) There is established the Kadhis’ Court. iron out issues in the Naivasha draft and reach a (2) The Kadhis’Court shall – compromise document. The Kilifi draft at Article (a) consist of the Chief Kadhi and such 179 provided the following on Kadhi’s courts:- number of other kadhis, all of whom profess the Islamic faith; and (1) The Judiciary consists of the judges of the (b) be organized and administered, superior courts of record and other judicial as may be prescribed by an Act of offi cers. Parliament. (2) The superior courts of record are the Supreme Court, the Court of Appeal and the High Article 199 addressed the jurisdiction of the courts. Court. It stated that: (3) The subordinate courts are – (a) the Magistrates’ courts, Christian courts, The Kadhis’Court shall be a subordinate court Kadhis’ courts, Hindu courts and other with jurisdiction to determine questions religious courts; of Islamic law relating to personal status, … marriage, divorce and matters consequential to divorce, inheritance and succession in The Attorney General received the Kilifi draft and proceedings in which all the parties profess developed what is popularly known as the Wako the Islamic faith. draft which was also subjected to the fi rst ever referendum in Kenya on 21st November 2005 and The above compromise was as a result of enormous resoundingly defeated. Section 195 of the Wako hostility to the enhanced jurisdiction of Kadhi’s Draft established Kadhi’s courts under the broad courts in Bomas from the mainly Pentecostal/ umbrella of religious courts, alongside Christian, evangelical churches. The enhancements made Hindu and other religious courts and left their to the material and geographical jurisdiction of actual structure and jurisdiction to be elaborated Kadhi’s courts in the “zero draft” were deleted. This through an Act of Parliament. Section 195 provided hostility marked the break up of the Ufungamano as follows:- Initiative with the Muslims pulling out of the Initiative. (1) There are established Christian courts, Kadhi’s Despite the controversy surrounding the courts and Hindu courts. inclusion of Kadhis’ Courts in the constitution, (2) Parliament may, by legislation, establish other all the drafts developed have included the court. religious courts. In the 2004 Bomas draft, section 198 (1) provided (3) Christian courts, Kadhi’s courts, Hindu courts for Kadhi’s courts in the manner and stature of and other religious courts shall respectively- the current set-up. It provided for the Chief Kadhi (a) consist of Chief presiding offi cers, Chief and such number of other kadhis, all of whom Kadhi and such number of other presiding profess the Islamic faith. Their jurisdiction was offi cers or Kadhis, all of whom profess the restricted to personal status, marriage, divorce and respective religious faith; and KIMEU – Foundations of Kadhi’s Courts 25

(b) be organized and administered, as may Parliament may establish and each Kadhi’s be prescribed by the respective Act of court shall, subject to this Constitution, Parliament. have such jurisdiction and powers as may be (4) Christian courts, Kadhi’s courts, Hindu conferred on it by any law. courts and other religious courts shall have (4) The Chief Kadhi and the other Kadhis, or the jurisdiction to determine questions of their Chief Kadhi and such of the other Kadhis (not religious laws relating to personal status, being fewer than three in number) as may be marriage, divorce and matters consequential prescribed by or under an Act of Parliament, to divorce, inheritance and succession in shall each be empowered to hold a Kadhi’s proceedings in which all the parties profess court having jurisdiction within the former the respective faith, as may be prescribed by Protectorate or within such part of the former an Act of Parliament. Protectorate as may be so prescribed. (5) No part of the former Protectorate shall be It is important to note that Christians and Hindus outside the jurisdiction of some Kadhi’s court. had never agitated for special religious courts. In (6) The jurisdiction of a Kadhi’s court shall extend fact no other group apart from Muslims has ever to the determination of questions of Muslim wanted a religious court. The Attorney General law relating to personal status, marriage, nonetheless chose the appeasement path by creating divorce or inheritance in proceedings in which courts that were neither required nor requested all the parties profess the Muslim religion. to stem the tide of opposition to the inclusion of Kadhi’s courts in the constitution. Sections of This provision is almost identical to that contained Christians and Hindus rejected the structure and in the 1963 constitution, the only diff erence being the Wako draft was outvoted in the November 21st minor editorial changes. It retains the geographical 2005 referendum. This 2005 referendum was the and material jurisdiction of Kadhi’s courts. beginning of the “banana” and “orange” divide. The Committee of Experts made changes to the The Electoral Commission of Kenya identifi ed the HDC after input from the Parliamentary Select Com- symbols to represent those who are for and against mittee to produce the Revised Harmonized Draft the constitution respectively. Constitution of Kenya (RHDC).27 The RHDC contained The Committee of Experts released its important changes to the provisions relating to Kadhi Harmonized Draft Constitution of Kenya (HDC) courts by removing any restriction on the geographi- on 17th November 2009. This was a product of a cal jurisdiction of the courts. The new provisions were synthesis of the views presented on contentious contained in Article 155 as follows, issues together with previous draft constitutions. Article 208 provided for Kadhi’s courts as one of (1) There shall be a Chief Kadhi and such number, the subordinate courts. Article 209 provided for not being fewer than three, of other Kadhis Kadhi’s courts in the following terms, as may be prescribed by or under an Act of Parliament. (1) There shall be a Chief Kadhi and such number, (2) A person shall not be qualifi ed to be appointed not being fewer than three, of other Kadhis to hold or act in the offi ce of Kadhi unless the as may be prescribed by or under an Act of person— Parliament. (a) professes the Muslim religion; and (2) A person shall not be qualifi ed to be appointed (b) possesses such knowledge of the Muslim to hold or act in the offi ce of Kadhi unless the law applicable to any sects of Muslims as person— qualifi es that person, in the opinion of (a) professes the Muslim religion; and the Judicial Service Commission, to hold (b) possesses such knowledge of the Muslim a Kadhi’s court. law applicable to any sects of Muslims as (3) Without prejudice to Article 154, there shall qualifi es that person, in the opinion of be such subordinate courts held by Kadhis as the Judicial Service Commission, to hold Parliament may establish and each Kadhi’s a Kadhi’s court. court shall, subject to this Constitution, (3) Without prejudice to Article 208, there shall have such jurisdiction and powers as may be be such subordinate courts held by Kadhis as conferred on it by law. 26 Constitutional Review in Kenya and Kadhis Courts

(4) The Chief Kadhi and the other Kadhis, or the courts but fundamentally their inclusion in the Chief Kadhi and such of the other Kadhis (not constitution.29 being fewer than three in number) as may be The National Accord and Reconciliation prescribed by or under an Act of Parliament, Agreement (NARA) that was signed by the shall each be empowered to hold a Kadhi’s protagonists in the disputed 2007 Presidential court having jurisdiction within Kenya. Elections agreed to fast-track the review of (5) The jurisdiction of a Kadhi’s court shall be the constitution of Kenya. Subsequently the limited to the determination of questions Constitution of Kenya Review Act (2008) was of Muslim law relating to personal status, enacted providing the organs of review and the marriage, divorce or inheritance in proceedings roadmap to a new constitution. Among the organs in which all the parties profess the Muslim of review was the Committee of Experts which was religion and submit to the jurisdiction of the composed of Kenyans30 and foreign31 legal experts Kadhi’s courts. with the mandate of harmonizing the views of Kenyans as expressed in the CKRC, the Bomas The removal of the clause providing “no part and the Wako drafts. They were also to identify of the former protectorate shall be outside the contentious issues and facilitate consensus on jurisdiction of some Kadhi court” was contested as them. While drawing a list of contentious issues for an enhancement of the jurisdiction and status of the consideration by the public and the Parliamentary courts. The voices that had consistently opposed Select Committee, the Committee of Experts32 the courts continued to voice their resistance to omitted the issue of Kadhi’s courts from the list.33 the move.28 This meant offi cially that the inclusion of the courts in the constitution was not a contentious matter, a Contestations on the inclusion of Kadhi’s position that sections of the Christian community Courts in the Constitution does not agree with. This diff erence of views and Kadhi’s courts have existed in Kenya even before beliefs threatens to derail the realization of a new the onset of colonialism in Kenya and before the constitution. attainment of independence from the British Those opposed to the inclusion of Kadhi’s Courts (Constitution of Kenya, section 66: Ngugi and in the constitution argue that Kenya is a secular Siganga n.d.)). Section 66 of Kenya’s independence state with a secular Constitution. It therefore constitution negotiated in Lancaster House (?) provides no room for religious institutions within provides for Kadhi’s Courts as follows:- the state structure. They cite Section 10 of the Harmonized Draft Constitution which provides “(1) There shall be a Chief Kadhi and such that the State shall provide equal treatment to number, not being less than three, of other all religions, to argue that providing for Kadhi’s Kadhis as may be prescribed by or under an courts in the constitution favours one religion and Act of Parliament. elevates that religion into a state religion34 with the … potential of dividing Kenyans along religious lines (3) Without prejudice to section 65 (1), there (The Federation of Churches in Kenya, Christian shall be such subordinate courts held by Concerns in the Constitution (unpublished document). Kadhis as Parliament may establish and each Further, they are opposed to the exemption of Kadhi's court shall, subject to this Constitution, Muslims from the Bill of Rights.35 They opine that have such jurisdiction and powers as may be this introduces Sharia law into matters of state conferred on it by any law.” (Ngirachu n.d.). They oppose any justifi cation for There has been no opposition or questions about having the courts in the Constitution on the basis the Kadhi’s courts until the process of writing of historical reasons as having been overtaken by a new constitution began. Muslims advocated events as the subjects of the Sultan of Zanzibar for an enhanced role, jurisdiction and status of who would have needed protection when the the courts nationwide. Muslims from the North courts were fi rst entrenched into the Kenyan law Eastern province asked for the full application of are now members of a unifi ed Kenya and protected Sharia Law in their areas (Issack 2010) A section of by the Constitution and laws of Kenya on a uniform the Christian community has strongly opposed not basis with everyone else.36 They also oppose the just the enhancement of the jurisdiction of Kadhi’s use of taxes paid by non-Muslims to fund what is KIMEU – Foundations of Kadhi’s Courts 27 essentially a religious institution that they may legal status by virtue of the existence of Islam for not agree with or have any utility for (Ngugi and hundreds of years. After the Italian war in the 1930’s Siganga). Lastly they accuse Muslims of ‘seeking courts known as shariat were established, presided to carve for themselves an Islamic State within a over by Kadhi’s appointed by the Italian colonial State’ with Sharia compliant banking, judiciary, authorities. The Kadi Courts Proclamation of 1944 insurance and bureau of standards.37 by the Emperor legally established shariat courts On the other hand, those in support of the after persuasion from the Muslim community (40%). Kadhis courts argue that the courts are harmless These courts had jurisdiction to deal with matters to non-Muslims as they concern themselves with of marriage, divorce, maintenance, guardianship of matters between or among parties who profess minors and family relations concluded in accordance the Islamic faith. They fi rmly hold the view that with Islamic law. The Kadhi was appointed by the the courts are indispensable in resolving disputes Emperor after recommendation by the Minister. among Muslims (Otieno n.d.). They want Kadhis After the revolution by Mengistu the profi le of Islam courts to continue adjudicating Islamic personal was raised with the management of the state as a law as doing so in secular courts amounts to secular entity (the Orthodox Church )weakened. secularizing of Islam (Abdi n.d.). According to them, Eventually a compromise was arrived at in 1994 the courts already exist in law and reality and that to retain Shariat courts while ensuring a choice abolishing them would be unfair, unreasonable and of forum to would-be litigants. The jurisdiction of disruptive (Ngirachu n.d; Mathenge n.d)(Editor: no the shariat court is limited to marriage, divorce, reference to Mathenge in bibliography) and could maintenance and matters relating to guardianship ignite or exacerbate ethnic and religious confl ict. of minors and family relations. Besides, the courts have played a pivotal role in The Constitution of the Federal Republic of the administration of justice (Machuhi n.d) and Nigeria (1999) provides for the establishment of their removal from the constitution would further Kadi and Sharia Courts in the States and in the alienate a marginalized Muslim minority. They Federation. There is therefore a Sharia Court of argue that since the Kenyan Constitution is based Appeal comprising a Grand Kadi and other Kadis. on Christian values, similar recognition should be The jurisdiction of the Sharia Courts is provided for had to Islamic personal law (Daily Nation. We Are under Sections 262 (2) and 277 of the Constitution. Ready to Draft New Law, Say Experts. ). It is limited to Islamic personal law, marriage and guardianship. Experiences in other Countries There are many countries that have the Kadhi’s International Law on Religious Courts courts protected in their constitution. The Uganda International law recognizes religious courts and Constitution provides at art 129 (1)(d) that judicial does not forbid their establishment. Article 27 of power shall be exercised inter alia by Qadhi’s courts the International Covenant on Civil and Political for marriage, divorce, inheritance of property and Rights (ICCPR) provides for the protection of guardianship, as may be prescribed by parliament religious minorities.38 As Kenya is a largely Christian (Constitution of the Republic of Uganda (1995), art society, the recognition of Islamic personal law and 129 (1)(d). system of dispute resolution seems appropriate Zanzibar has the most developed Kadhi courts and justifi able in a democratic society. What in the region. Before the emergence of the Sultan international law requires is that any established empire Islam was the main law administered court or tribunal conforms with international by the Kadhis in Zanzibar. Kadhi’s then had no human rights standards, including accessibility, formal places of hearing and determining their fairness and eff ectiveness (International Covenant cases and did so from their homes and wherever on Civil and Political Rights, G.A. res. 2200A (XXI), their services were required. The British did not 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 interfere with the functioning of the courts and (1966), 999 U.N.T.S. 171, entered into force 23 March instead established a parallel system of common 1976., Article 14). The United Nations Human Rights law. The 1895 agreement between the British and Committee in this regard notes: the Sultan is instrumental in preserving the courts in Zanzibar. Article 14 is … relevant where a State … In Ethiopia, Kadhi’s courts existed with no recognizes … religious courts … such courts 28 Constitutional Review in Kenya and Kadhis Courts

cannot hand down binding judgments fails to recognize that “enjoyment of rights and recognized by the State, unless the following freedoms on an equal footing, does not mean requirements are met: proceedings before identical treatment in every instance”. The United such courts are limited to minor civil and Nations Human Rights Committee speaking on this criminal matters, meet the basic requirements issue states: of fair trial and other relevant guarantees (P)rinciple of equality sometimes requires of the Covenant, and their judgments are States parties to take affi rmative action in validated by State courts in light of the order to diminish or eliminate conditions guarantees set out in the Covenant and can which cause or help to perpetuate discrimi- be challenged by the parties concerned in nation prohibited by the Covenant…not a procedure meeting the requirements of every diff erentiation of treatment will con- article 14 of the Covenant. These principles stitute discrimination, if the criteria for such are notwithstanding the general obligation diff erentiation are reasonable and objective of the State to protect the rights under the and if the aim is to achieve a purpose which Covenant of any persons aff ected by the is legitimate under the Covenant (United operation of … religious courts.39 Nations Human Rights Committee, General Comment 18, Non-discrimination (Thirty- International law and practice does not frown upon seventh session, 1989), Compilation of Gen- religious courts. It is concerned with the procedur- eral Comments and General Recommenda- al and substantive justice practiced by such courts. tions Adopted by Human Rights Treaty Bod- As long as religious courts meet minimum inter- ies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994), national standards of natural justice and human Paras. 9, 10, 13). rights, they could co-exist with secular courts. It is therefore sometimes necessary to treat people Conclusion diff erently in order to address certain conditions of The matter of Kadhi’s courts in the Kenyan marginalization. It is upon this basis that affi rmative Constitution is a diffi cult one to handle if viewed action has been recognized the world over as a from purely a religious perspective. To determine legitimate means of ensuring that the voices and whether there is any justifi cation in constitutionally needs of marginalised and minority groups are protecting them, one has to look at the history heard and taken into account. In Kenya, conditions and legal foundations of the courts. The history of and perceptions of marginalization exist to warrant Kadhi’s courts is as old as the history of Muslims the retention of Kadhi’s courts in the constitution. along the East African Coast. Their protection in the What is critical is the need to ensure that the courts law was by way of an agreement fi rst between the observe certain basic principles in their work and British colonialists and the Sultanate of Zanzibar share the same threshold with the secular courts and then Prime Minister Kenyatta in independence in terms of rules of evidence, respect for basic rules Kenya and the Prime Minister of Zanzibar. These of fairness, access and adequate appeals in order to agreements were based on the need for Muslims ensure justice. in the Kenyan Protectorate to feel secure in The Muslims in Kenya have therefore acquired a upholding their religious courts in the wake of vested interest in the continued existence of Kadhi’s independence and a dominant up-country non- courts. Their constitutional protection is perhaps Muslim nationalistic movement. more critical now than ever before, noting that the Protection of Kadhi’s courts in the constitution institution has come under increased threat and may be justifi ed on the basis of the treaty which failure to protect it would be open a window for its can only be abrogated through re-negotiation. annihilation to the detriment of the constituency The minority status of Muslims remains a fact in it serves. Kenya’s socio-political structure and Muslims need protection especially in the wake of perceived Post Script: marginalization of areas predominantly occupied The provisions of the Revised Harmonized Draft by people of the Islamic faith. Constitution of Kenya were carried with minor The argument that establishment of Kadhi’s drafting changes to the Proposed Constitution courts in the constitution amounts to discrimination of Kenya (PCK) published by the Committee of KIMEU – Foundations of Kadhi’s Courts 29

Experts on 6th May 2010. The PCK was subjected to 4. This resulted in the enactment of the Statute Law th (Repeals and Miscellaneous Amendments) Act, 1997, the a referendum on 4 August 2010 and approved by Constitution of Kenya (Amendment) Act, 1997 and the a super majority of 68% of all votes cast. The new Kenya Constitution Review Act, 1997. constitution was promulgated on 27th August 2010. 5. This initiative was formerly known as the People’s Commission of Kenya, formed in June 2000. The new constitution provides for Kadhi’s courts at 6. The Commissioners were Prof. Yash P. Ghai (Chairman), Article 170 in the following terms, Ms. Kavetsa Adagala, Mrs. Phoebe M. Asiyo, Pastor Zablon F. Ayonga, Mr. Ahmed I. Hassan, Mr. John M. Kangu, Bishop (1) There shall be a Chief Kadhi and such number, Bernard N. Kariuki, Mr. Githu Muigai, Prof. H.W.O. Okoth- Ogendo, Mr. Domiziano M. Ratanya, Prof. Ahmed I. Salim, not fewer than three, of other Kadhis as may be Dr. Mohamed Swazuri, Mr. Keriako Tobiko, Mr. Paul M. prescribed by or under an Act of Parliament. Wambua, Mrs. Alice Yano, Mr. Amos Wako ( Attorney (2) A person shall not be qualifi ed to be appointed General, Ex-offi cio) and Mr. Arthur O. Owiro (Ex-offi cio and Secretary). to hold or act in the offi ce of Kadhi unless the 7. The Ufungamano Commissioners were Dr. Oki Ooko- person- Ombaka, Mrs. Abida Ali-Aroni, Dr. Charles M. Bagwasi, Ms. Nancy M. Baraza, Mr. Isaac Lenaola, Dr. Wanjiku M. (a) professes the Muslim religion; and Kabira, Mr. Ibrahim A. Lithome, Ms. Salome W. Muigai, Mr. (b) possesses such knowledge of the Muslim Abubakar Zein Abubakar and Mr. Riunga L. Raiji. law applicable to any sects of Muslims as 8. The Parliamentary Select Committee nominated Dr. Mosonik arap Korir and Dr. Abdirizak A. Nunow. qualifi es the person, in the opinion of the 9. The Conference was made up of all Members of Judicial Service Commission, to hold a Parliament then, members of the CKRC (had no vote), one representative from every political party that was Kadhi's court. registered when the process began in 2000, three people (3) Parliament shall establish Kadhis’ courts, from every District (only one of these could be a Councillor each of which shall have the jurisdiction and and one had to be a woman), and representatives from civil society. powers conferred on it by legislation, subject 10. This gave rise to the Bomas Constitution Draft, the name to clause (5). given to the document that was adopted in Bomas of Kenya. (4) The Chief Kadhi and the other Kadhis, or the 11. Variations of the word Kadhi are in use in many parts of Chief Kadhi and such of the other Kadhis (not the world. In some countries and publications, the word being fewer than three in number) as may be used is Qadi, Kadi or Kadhi. For purposes of this paper, we shall use the term Kadhi as has been used in offi cial prescribed under an Act of Parliament, shall documents in the East African region and as used by the each be empowered to hold a Kadhi's court people of East Africa. 12. Kenya experienced unprecedented violence after the having jurisdiction within Kenya. 2007 disputed presidential elections. Calm only returned (5) The jurisdiction of a Kadhi's court shall be after international eff orts led by an AU-appointed Panel limited to the determination of questions of African Eminent Personalities chaired by former UN Secretary General, Koffi Annan brokered a deal between of Muslim law relating to personal status, President Mwai Kibaki of the Party of National Unity (PNU) marriage, divorce or inheritance in proceedings and Raila Odinga of the Orange Democratic Movement (ODM). The two sides had appointed three representatives in which all the parties profess the Muslim to the Kenya National Dialogue and Reconciliation team religion and submit to the jurisdiction of the to dialogue with each other. Agreement was reached on Kadhi’s courts. 28th February 2010 when the National Accord was signed. Subsequently, the National Accord and Reconciliation Act (NARA) was enacted to create the Grand Coalition It is noteworthy that the opposition from the Kenya Government (GNU) and amend the Constitution to provide Christian Leaders Forum to the inclusion of the for power sharing and the position of the Prime Minister. new constitution remained until the referendum. The National Accord provided for four agendas that were to be pursued within a set timeframe. Under Agenda 4, the The Forum is currently pushing for amendment of review of a new constitution was one of the items agreed the issues they had raised, among them the Kadhi’s on and pursuant to which the Constitution of Kenya Review Act 2008 was enacted to lay the foundation for yet courts. another attempt at reviewing the Constitution. 13. The Constitution of Kenya Review Act, 2008. 14. The Report of the Constitution of Kenya Review Commission (Short Version) was released on 18th September 2002. 15. The People’s Choice, The Report of the Constitution of Notes Kenya Review Commission (Short Version), (2002), p. 54-55. 1. Act No. 28 of 1964 created a pseudo-presidential system 16. See the contributions of Pastor Oginde at Bomas National giving the presidency more powers at the expense of Constitutional Conference in the Verbatim Report of parliament. Act No. 14 of 1965 Plenary Proceedings Decisions of the Committee of the 2. The collapse of the USSR produced a world dominated by Whole Conference (11th March 2004), p 11, available Western liberal democracy that had impact in the way at http://www.constitutionnet.org, (accessed on 19th world powers like the United States of America related to September 2010). other countries. 17. Ibn Battuta was invited to the ‘qadi’ of Mogadishu upon 3. Act No. 12 of December 1991 was enacted to reinstate his arrival in Somalia. He records that the ‘Qadi’ heard multi-partyism. and resolved disputes of religious law (shari’a) while the 30 Constitutional Review in Kenya and Kadhis Courts

council of ministers (“waziers” and “amirs”) resolved 36. The Federation of Churches in Kenya (n 12 above) civil cases. See http://courses.wcupa.edu/jones/his311/ (“subjects” of the sultan of Zanzibar who needed such lectures/16battut.htm (accessed on 18/9/2010. courts are now part of a unifi ed Kenya). 18. University of London Externship Programme Chapter 37. Entrench Kadhi’s Courts in the Constitution at your own 4: The Courts and Procedure available at http://www. peril, p.6 londonexternal.ac.uk/current_students/programme_ 38. United Nations Human Rights Committee, General resources/laws/subject_guides/islamic/islamic_ch4.pdf. Comment No. 32, Article 14: Right to equality before courts 19. See Agreement between Kenya and Zanzibar signed on 8th and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 October 1963 signed by Kenyatta, Shamte, Duncan Sandys (2007)(hereinafter General Comment 32) para 5.2. and Sultan Seyyid Khalifa to the eff ect that the ‘Agreement 39. General Comment 32 (n 40 above). (Emphasis added). of 14th December 1895 shall cease to have eff ect.” 20. This was done vide sec 66 of the Constitution of Kenya (1963). Reports indicate that Kenya committed itself before the United Nations to honour the agreement on Kadhi’s courts. References 21. Exchange of letters between Jomo Kenyatta and M. Shamte Abdi, S. 2009. No Need for Debate on Kadhis Courts. Daily dated 5th October 1963 (London). Nation (Nairobi) http://www.nation.co.ke/oped/ 22. Sultan Seyyid Jamshid bin Abdulla bin Khalifa. Letters/-/440806/631812/-/ivm2v2/-/index.html 23. This refers to the ten-mile coastal strip otherwise known as (Accessed November 24, 2010.) the Kenya Protectorate. Atwoli (n.d.). Daily Nation (Nairobi)_ 24. Kadhi’s Courts Act, Chapter 4, Laws of Kenya (1967), Sec 5, http://www.nation.co.ke/oped/Opinion/- “…nothing in this section shall limit the jurisdiction of the /440808/633286/-/4mivmf/-/i ndex.html High Court or of any subordinate court in any proceeding Annual Departmental Reports relating to Kenya and the East which comes before it.” Africa High Commission, 1903/4-1963. Publication no. R 25. In the framework of the Kenya Constitution which the 97282, Microform Academic Publishers. draftsman used in preparing the 1963 Constitution, the Constitution of the Republic of Uganda (1995), art 129 (1) (d). constitutional makers stated that “Our objective is a united Cheboip,S. Clerics Push For Minimum Kenya Reforms. Daily Kenya nation capable of social and economic progress in the Nation (Nairobi) http://www.nation.co.ke/News/- modern world…in which men and women have confi dence /1056/672480/-/uo09v1/-/index.html in …the proper safeguarding of the interests of minorities.” (Accessed on November 24, 2010.) (Editor’s note: I was 26. Muslims are about 16 per cent of the Kenyan population. J unable to fi nd any citation in text) Ngirachu (n 13 above). Committee of Experts, Invitation for Proposals on Contentious 27. Comprising the recommendations agreed upon as a result Issues http://www.constitutionnet.org/fi les/invitation%20 of the deliberations of the Parliamentary Select Committee for%20Proposals%20on%20contentious%20Issues.pdf. on the Review of the Constitution in accordance with (Accessed on November 2010.) section 32(1) (c) of the Constitution of Kenya Review Act, Daily Nation (Nairobi). 2009. Seeing Contentious Issues 2008 and presented to the Committee of Experts pursuant Through The Post-Election Violence Lens. http://www. to section 33(1) of the Constitution of Kenya Review Act, marsgroupkenya.org/youth/index.php?option=com_ 2008 on 29th January 2010. See Article 155. mmedia&story=266861 28. These mainly were the Kenya Christian Leaders Forum (Accessed on 24, November 2010.) consisting the National Council of Churches of Kenya Daily Nation (Nairobi). 2009. We are ready to Draft New Law, (NCCK), The Kenya Episcopal Conference (KEC) and The Say Experts. Evangelical Association of Kenya (EAK) among others. http://www.nation.co.ke/News/ 29. A Statement by Kenya Christian Leaders, Entrench politics/-/1064/664984/-/xubiegz/-/index.html Islamic Sharia Law in the Constitution at your own risk, (Accessed on November 24, 2010.) dated 1st February 2010 (National Council of Churches Daily Nation (Nairobi). 2009. Ghai Against Referendum On Draft of Kenya) available at http://www.ncck.org/index.php? Law. view=article&catid=43%3Anews&id=146%3Achristians- http://www.nation.co.ke/News/-/1056/679070/-/ statement&format=pdf&option=com_content&Itemid=29 uo51xi/-index.html 30. These were appointed by the Grand Coalition partners. They (Accessed on November 24, 2010. ) included Nzamba Kitonga (Chairman), Atsango Chesoni Daily Nation (Nairobi). 2009. Kadhi’s Courts Will Not Touch (Vice-Chairman), Abdirashid Abdullahi, Njoki S. Ndung’u Other Faiths, Say Lobbies. http://www.nation.co.ke/ and Otiende Amollo. Dr. Ekuru Aukot (Secretary) and Amos News/-/1056/631560/-/ulifpa/-/index.html Wako (Attorney General) served as ex-offi cio members. (Accessed on November 24, 2010.) 31. This was appointed by the Panel of African Eminent Daily Nation. (Nairobi). Spirited Bid To Eject Kadhi Courts Personalities that presided over the Kenya National Sinister. Dialogue. They appointed Dr. Chaloka Beyani (Zambia), http://www.marsgroupkenya.org/youth/index. Prof. Fredrick Ssempebwa (Uganda) and Prof. Christina php?option=com_mmedia&story=270770 Murray (Australia). (Accessed on November 24, 2010.) 32. Established under the Constitution of Kenya Review Act Issack, A. 2010. The Kadhi’s Court - Setting the record Straight. (2008) www.braissac.com. 33. Committee of Experts, Invitation for Proposals on Kadhi’s Courts Act, 1964, Chapter 4, Laws of Kenya, Sec 4. Contentious Issues http://www.constitutionnet.org/fi les/ Kadhi’s Courts Act, 1967,Chapter 4, Laws of Kenya, Section 3 Invitation%20for%20Proposals%20on%20Contentious%20 Kichamu, A. 2005. Federalism and Unitary Government: What Issues.pdf Option for Kenya? In informing a Constitutional Moment: Essays 34. A Statement by Kenya Christian Leaders, Entrench Islamic on Constitutional Reform in Kenya. M. Odhiambo, O. Ambani, Sharia Law in the Constitution at your own risk, p. 5 W. Mitullah ( eds.), Nairobi, Claripress. (Editor’s note: I was 35. Section 26 (3), Report of the Parliamentary Select unable to fi nd any citation in text) Committee on the Review of the Constitution on the Machuhi,E. Chief Justice Defends Kadhi’s Courts . Daily Nation Reviewed Harmonized Constitution, (29.1.2010) (including (Nairobi) input by Parliamentary Select Committee), http:// http://www.nation.co.ke/Mombasa/-/519978/677568/-/ kenyastockholm.fi les.wordpress.com/2010/02/report_of_ nbe2gp/-/index.html psc-_naivasha_retreat-fi nal1.pdf (13.3.2010) (Accessed on 24 November 2010.) KIMEU – Foundations of Kadhi’s Courts 31

Majamba, H. 2007. Possibility and Rationale of establishing Nyassy, D. Mps Reject Plan To Divide Coast. Daily Nation Kadhi Courts in Tanzania Mainland, Unpublished paper. (Nairobi) Mwaura, P. Kenyan Christians Are behaving Like a Dog in a http://www.nation.co.ke/News/-/1056/653682/-/ Manger. Daily Nation (Nairobi) http://www.nation.co.ke/ umrwyj/-/index.html oped/Opinion/-/440808/639632/-/4mn5jq/-/index.html. (Accessed on 24 November 2010.) (Editor’s note: I was (Accessed on 24 November 2010.) unable to fi nd any citation in text) Ndzovu and J Hassan (n.d). Muslim relations in the Politics of (Accessed on 24 November 2010.) nationalism and secession in Kenya, PAS Working Papers Otieno, E.O. Kadhi’s Courts Are Harmless. Daily Nation (Nairobi Number 18,Moi University. http://www.nation.co.ke/oped/ Ngirachu, ,J. Church Leaders Threaten To Reject New Law Over Letters/-/440806/632278/-/ivmmmy/-/index.html Kadhis Courts. Daily Nation (Nairobi) Salim, Ahmed, Idha, 1973, Swahili Speaking Peoples of Kenya’s http://www.nation.co.ke/News/-/1056/677876/-/ Coast, 1895-1945 (Nairobi:East) Africa Publishing House. uo3tl0/-/Nairobi Shaw,M.N. 2008. International Law, Cambridge University (Accessed on 24 November 2010.) Press. Ngugi, M and B. A.Siganga. The Common Ground in Kadhi The Constitution of Kenya Review Act, 2008. Courts Debate. Daily Nation (Nairobi) The Federation of Churches in Kenya, Christian Concerns in the http://allafrica.com/stories/200908240364.html Constitution (unpublished document). (Accessed on 24 November 2010.) The People’s Choice, The Report of the Constitution of Kenya Ngugi, M. and B.A.Siganga. Kadhi Courts Exceed Limits Of The Review Commission, 2002. Law’ Daily Nation (Nairobi) http://www.nation.co.ke/oped/ Trimingham, J. 1964. Islam in East Africa, Oxford University Opinion/-/440808/639988/-/4mn81p/-/index.html Press. Constitutional Review in Kenya and Kadhis Courts

Kadhi’s Courts in Kenya: Current Debates on the Harmonized Draft Constitution of Kenya

Dr. Mohamed Mraja

Introduction surrounding the debates on Kadhi’s courts, ince the release of the Harmonised Draft including why the CoE did not consider the courts SConstitution of Kenya on the 18th of November as contentious, and the arguments for and against 2009, much debate has been generated among entrenching the courts in the constitution. Given Kenyans, including politicians, religious groups the recent nature of the topic under discussion, and members of civic society. After the defeat the primary source of data used in this paper is of the Wako Draft in the 2005 referendum, the newspaper reports. Constitution of Kenya Review Bill 2008 was passed in parliament. This Act of Parliament created a The Kadhi’s Courts in the Constitution Committee of Experts (CoE) and revived the process It is not the intention of this paper to look at the of constitutional review. Under this Act, the CoE was historical background to the Kadhi’s courts and given the mandate to identify contentious issues and the various drafts that evolved in the course of to invite representations from the public, interest the country’s review process. Suffi ce it to say that groups and experts and prepare a harmonized draft Muslim judicial offi cials (kadhis) presided over constitution. Issues that were not contentious had all matters of Islamic law (sharia) in a number of to be identifi ed as agreed and closed, and the issues coastal towns prior to the establishment of British that were contentious identifi ed as outstanding rule in the 19th century (Carmichael 1999, 298- (Art. 27 (2). A contentious issue is one for which 98). The British appointed Arab-Muslim offi cials, there is no consensus or agreement in all previous including liwalis, kadhis and mudirs, whose duties drafts as well as the Independence Constitution were to administer justice, settle disputes, and of Kenya. According to the chairman of the CoE, serve as intermediaries between the coastal people there were three contentious issues: the fi rst was and the colonial government, among others. The the Executive and Legislature, the second was courts presided over by kadhis had jurisdiction in the Devolution (of Powers) and the third was the all matters relating to personal status, marriage Transitional Clauses (Daily Nation, August 22, 2009). and divorce, and within the Coast districts, over Following the public release of the Harmonized all Arabs, Baluchis and Africans, in all matters in Draft Constitution and the Proposed Constitution, which the value of the subject-matter in dispute the question of Kadhi’s Courts has occupied centre did not exceed one thousand shillings (The Courts stage in the public discourse and submissions to Ordinance 1931, Sec. 17). Kadhi’s courts had also the CoE, particularly pitting Christian against criminal jurisdiction similar to the Liwalis’ courts. In Muslim groupings. It is imperative to note that practice, though, Kadhi’s courts exercised criminal not all Christians were opposed to the retention jurisdiction only in places where no Liwali’s court of the Kadhi’s courts in the Proposed Constitution had been established (Anderson 1970, 107). Only the of Kenya. Many Christians chose to go against the institution of the kadhi survived Kenya’s transition views of the clergy of the Evangelical, Catholic and from colonial rule to independence in 1963. Anglican Churches. Kenya’s Independence Constitution provided This paper examines some of the core issues for the establishment of Kadhi’s courts as part MRAJA – Current Debates 33 of the judiciary. Section 66 of the Constitution of Christians. These courts also apply the Succession Kenya gave these courts constitutional recognition, Act on matters relating to inheritance. Muslims, with the defi nition of a kadhi given as a person on the other hand, were upset by the provisions who “possesses such knowledge of the Muslim of the Wako Draft that appeared greatly to weaken law applicable to any sect or sects of Muslims as Kadhi’s courts and made it easier for parliament to qualifi es him, in the opinion of the Judicial Service remove the religious courts from the constitution Commission, to hold a Kadhi’s court.” The mandate by a simple majority. For this and other reasons, of the courts was given as “the determination of the Wako Draft was rejected at the referendum. The questions of Muslim law relating to personal status, Wako Draft was followed by the Harmonised Draft marriage, divorce or inheritance in proceedings in Constitution. However, this too has has generated which all parties profess the Muslim religion.” The a lot of debate. sphere of operation of the Kadhi’s courts was also defi ned as applicable to areas within the former Debates on Kadhi’s Courts as Provided protectorate or within such parts of the former for in Harmonised Draft Constitution protectorate as may be prescribed by an Act of and the Proposed Constitution of Kenya Parliament. Muslims and Christians were clearly divided on the The Constitution of Kenya Review Act of 2000 Proposed Harmonised Draft Constitution. A section initiated a period of constitutional rewriting. This of Christians faulted the decision by the Committee Act established the Constitution of Kenya Review of Experts (CoE) for not listing the Kadhis Courts Commission (CKRC) chaired by Yash Pal Ghai. In as a contentious issue. The CoE did not consider 2005 Kenyans voted in a referendum on the Wako the Kadhi’s courts as contentious in the statutory Draft. This draft established subordinate religious sense, meaning that they had been enshrined in courts, including Christian courts, Kadhi’s courts, the current constitution since independence, and and Hindu courts. Section 195 of the Wako Draft had also been present in earlier drafts. There was thus stated, inter alia, that: no religious bias in this decision, as the members of the CoE consisted mainly of legal experts who Christian courts, Kadhi’s courts, Hindu courts professed the Christian faith. According to Nzamba and other religious courts shall respectively Kitonga, the chairman of the CoE, the decision not – (a) consist of Chief presiding offi cers, Chief to regard the courts as contentious was arrived Kadhi and such number of other presiding of- at out of the many submissions presented to the fi cers or Kadhis, all of whom profess the res- commission. He asserted that: pective religious faith; and (b) be organized and administered as may be prescribed by A small section of evangelicals (Christian) respective Act of Parliament. who are dissatisfi ed with our failure to categorise the Kadhis courts as a contentious The jurisdiction of these religious courts was similar issue made their submissions that, in their to that given in the Independence Constitution; view, the kadhi’s courts are a contentious that is, matters of religious law relating to issue. personal law, marriage, divorce, inheritance and But that is not our view because we had succession and matters consequential to them in invited memoranda from Kenyans and proceedings in which all parties profess the same received over 12,000 written ones; very few religious beliefs. Parliament was also empowered said the issue is contentious (Daily Nation, to enact legislation to establish religious courts August 22, 2009). as circumstance and need may arise. Clearly, the Wako Draft aimed at treating religious groups The Harmonised Draft Constitution thus included equally by granting them the right to govern their the Kadhi’s courts among other subordinate courts. respective personal laws via formal structures Section 209 of the Harmonised Draft Constitution within the judiciary. Many Christians, however, of Kenya, inter alia, provided for the following: did not see the need for Christian courts since the existing Magistrates Courts apply the African (a) There shall be a Chief Kadhi and such number, Christian Marriage & Divorce Act in resolving not being fewer than three, of other Kadhis disputes relating to marriage and divorce involving as may be prescribed by or under an Act of 34 Constitutional Review in Kenya and Kadhis Courts

Parliament. Anglican Archbishop David Gitari and Rev. Timothy (b) To qualify to be appointed as Kadhi, a person Njoya of the Presbyterian Church of East Africa must profess the Muslim religion, and (PCEA). Using the jurisprudential principle of possesses such knowledge of the Muslim law choosing a “lesser evil rather than the greater evil”, applicable to any sects of Muslims as qualifi es the prelate David Gitari urged Kenyans to accept the that person, in the opinion of the Judicial Proposed Constitution as being far preferable than Service Commission, to hold a Kadhi’s court. the current supreme law and warned them against (c) The Chief Kadhi and other Kadhis shall each turning the referendum into a battle between be empowered to hold a Kadhi’s court having Christians and Muslims. He was unequivocal when jurisdiction within the former Protectorate or he argued that “As a Kenyan and a Christian saying within such part of the former Protectorate “Yes” to the constitution is evil. But saying “No” as may be so prescribed. The part under this will be a greater evil. If I was to choose I will go for clause touching on the former Protectorate was the lesser evil” (The Standard, April 19, 2009). subsequently revised following reservations Nevertheless, sections of the Christian leaders, by Muslims to read, inter alia, in the Proposed especially from the Evangelical and the Protestant Constitution of Kenya as: “The Chief Kadhi Churches, have opposed the Harmonized draft on and other Kadhis shall each be empowered to the basis of Kadhi’s courts. Bishop Margret Wanjiru hold a Kadhi’s court having jurisdiction within led a group of evangelical churches that vowed to Kenya.” have the Kadhi’s courts “removed” from the draft. (d) The jurisdiction of a Kadhi’s court shall extend The National Council of Churches of Kenya led by its to the determination of questions of Muslim General-Secretary, Rev. Peter Karanja, also added its law relating to personal status, marriage, di- voice against entrenching the Kadhi’s courts in the vorce or inheritance in proceedings in which new constitution (The Standard, December 13, 2009). all parties profess the Muslim religion. Karanja’s words may have been shared by others: “If the draft presented at the referendum has loopholes Muslims supported the Harmonised Draft with for legislation of abortion, exempts Muslims from some reservations. Muslim demands that the the Bill of Rights, or includes the kadhi’s courts, we Kadhi’s courts should have a High Court and Court shall mobilise Kenyans to reject it.” “Our demand for of Appeal were not included in the Harmonized removal of the courts from the constitution is not Draft. Similarly, the Chief Kadhi remains excluded negotiable” (Daily Nation, April 8, 2010). from the Judicial Service Commission. Muslims It should be noted this was not the fi rst time have also taken issues with the proposal in the some Christian leaders have taken such outright draft to limit the operation of the Kadhi’s courts opposition to the inclusion of the Kadhis’s courts to the coastal region (former protectorate area). in the constitution. In August 9, 2005, Bishop The Supreme Council of Kenya Muslims (SUPKEM) Kihara Mwangi, also the MP for Kigumo, when Coast Chairman, Sheikh Mohdhar Khitamy, for asked by President Kibaki to close a meeting of instance, noted that the draft should make it MPs discussing constitution-making with a prayer, clear that the Kadhi’s courts will cover the whole invoked divine intervention to save Kenya, adding country, given that such a right should be enjoyed that the “new constitution should not condemn by all Muslims and not those living in one region the country into a sharia state”(Mwaura 2009, 11). only (The Standard, November 29, 2009). Despite In 2004, a group of Church leaders including the such misgivings, the Harmonized Draft and the Rev Jesses Kamau (then Presbyterian Church of Proposed Constitution were well received by a East Africa moderator), Bishop Silas Yego of the section of Muslim leaders for retaining the Kadhi’s African Inland Church and Bishop Margret Wanjiru courts in the constitution, among them the Chief of the Jesus is Alive Ministries fi led a case against Kadhi, Sheikh Hamad Kassim, and the SUPKEM the Attorney General and the Constitution of Director-General, Abdulatif Shaaban (The Standard Kenya Review Commission for, among others, the , November 18, 2009). extension of the jurisdiction of the Kadhi’s courts It is imperative to note that not all Church beyond the 10-mile coastal strip, and sections of leaders are opposed to the Proposed Constitution. the current constitution that provide for their The most visible Church clergy in support of a introduction. It was not until 2010, and long new constitutional dispensation include former after the 2005 referendum had rejected the Wako MRAJA – Current Debates 35

Draft, that three High Court judges ruled that the be the height of judicial arrogance and usurpation Kadhi’s courts were unconstitutional and funding of the supremacy and legislative functions of them amounted to favouring one religion. Such Parliament” (The Standard , June 7, 2010). The provisions, they argued, contradicted the principle implication of this ruling is that the Judiciary had of separation of State and Religion (Daily Nation, no powers to declare any section of the Constitution May 26, 2010; The Standard ,May 26, 2010). The to be unconstitutional (Daily Nation, June 1, 2010). decision by the judges was declared by the Attorney Catholic leadership, headed by the Cardinal General, Amos Wako, as “itself unconstitutional”. John Njue, also added its voice against the Proposed He opined that “The court lacked jurisdiction, Constitution, expressing “gravest reservations” on (and) the judgement is wrong in law.” Muslims the articles touching on Kadhi’s courts and abortion. have argued that the Constitution does not regard The Standard, May 12, 2010, reports that although family matters such as those under the purview of the Catholic clergy agreed that the Proposed the Kadhi’s courts, discriminatory. Abdulghafur Al- constitution was better than the current one, they Busaidy, Chairman of SUPKEM, fi nds fault in the remained adamant in opposing it at the referendum, decision by the judges on the courts arguing that pointing out that “the constitution is not a bag of “They conveniently ignored sub-section 4 of the potatoes, which you can remove fi ve bad ones and same section (Sec. 62 of the Constitution) which retain the 95 that seem to be good. It is like an egg. If says that matters of divorce, adoption, marriage it begins to go bad, it goes bad wholly.” and inheritance are excluded from the defi nition Some public fi gures and Christian leaders have of discrimination” (The Standard ,May 26, 2010). described the opposition of a section of Church It has been argued that the judges overstepped leaders to the Proposed Constitution as unfair their mandate, since the court had no jurisdiction and misguided. For instance, Mutula Kilonzo, the to grant the orders sought (Daily Nation, May 26, Justice Minister, posits that “Christians opposed 2010). According to Ben Sihanya, the dean of the to this wonderful draft are unfair...The current School of Law University of Nairobi, the Kadhi constitution is silent on abortion but the new courts are constitutional and recognise the need draft is clear that abortion is illegal...it holds to protect minorities and historical agreements, responsible doctors who illegitimately terminate and that the judges arrived at the decision without pregnancies...” (The Standard, April 6, 2010). The considering historical circumstances (Daily Churches have been accused of serving the interest Nation, May 25, 2010). Martha Karua, a Member of of evangelicals in the United States, particularly Parliament and the immediate former Minister on their stand on the Kadhi’s courts and abortion. for Justice and Constitutional Aff airs, declared the Regarding the issue of abortion, some within the ruling as “legally and socially unsound.” religious ranks have argued that issues such as The latest bid by another group of Church leaders abortion are moral subjects that the Church should under the auspices of Mombasa Pastors Fellowship have eff ectively dealt with at the congregational asked the High Court in 2009 to declare illegal the level (Sunday Nation, April 18, 2010). According to Kadhi’s courts in the Proposed Constitution. They The Standard (April 6, 2010), Kiraitu Murungi, the wanted the review process stopped because they Energy Minister, accused the Church of goal-shifting alleged that their rights would be infringed upon and argued that “During the 2005 referendum by, among other things, the inclusion of Kadhi Catholic bishops told their faithful to vote with Courts in the new law. In the middle of 2010, the their conscience while the provisions on abortion presiding judge ruled that the High Court had no (and Kadhis’ Courts) were not any diff erent from mandate to determine the case, arguing that the today. Why can’t they ask them to vote with the courts had no jurisdiction to deal with any matter same conscience now?” touching on the Constitutional Review Process. He pointed out that the High Court lacked the power A Synthesis of the Arguments for and to decide whether sections of the Constitution against the Kadhi’s Courts were legal or illegal. As though making reference The Christian arguments against entrenching these to the earlier ruling by the three judges, the judge courts in the constitution may be summarized as of the High Court in Mombasa pointed out that any follows: attempt by the Court to question and interpret the constitutionality of the Constitution itself “would (a) The constitution declares that the state and 36 Constitutional Review in Kenya and Kadhis Courts

religion shall be separate and that there shall is recognized by the state as a holiday. The be no state religion. The Kadhi’s courts in the separation of state and religion is an idealistic draft implied the favouritism of the Muslims concept and practice has shown that many by the state, or primacy of Islam above other nations try to accommodate the religious religions. needs, rights and freedoms of their citizens. (b) Though nowhere stated in the Constitution, Muslims do not get the services off ered by some Christians and other Kenyans have argued the Kadhi’s courts free of charge. Muslims also that Kenya is a secular state and no religion pay taxes like any other Kenyans. According to should be embedded in the constitution. Lethome (2009), “the court is part of the judi- (c) The Bill of Rights already provides for the ciary, a public offi ce serving a special interest freedom of conscience, religion, thought, belief group of the Kenyan tax payers who happen to and opinion (Section 49 of the Harmonized be Muslims, without infringing on the rights Draft). Why should Muslims have such of others in any way.” Similar sentiments have “religious” courts which are already catered also been echoed by Mwaura (2009): “Kadhi’s for in the Bill of Rights? courts are part of the Judiciary and tax pay- (d) The Kadhi’s courts are a burden to the ers, including Muslims, are already paying for exchequer and tax payer. As one reader puts them, and will continue to do so regardless of it: “Remove the kadhis’ courts, the exchequer whether they are entrenched or not.” cannot use public resources to satisfy a • The process of re-writing the constitution section of religions” (Sunday Nation, February does not involve taking away already existing 7, 2010). rights enjoyed by a group of people. As Abdullahi (2010), the former chairman of the In response to these sentiments, the Muslims and a Law Society of Kenya puts it: “Constitutional number of non-Muslim writers and commentators making is a progressive process that makes have advanced the following views to defend what we already have just better. It is not about Kadhi’s courts: the curtailment of rights that are already in existence.” Muslims in Kenya have had • Mwaura (2009) argues that the Kadhi’s constitutional rights to have their matters and courts are part of Kenya’s judicial system, disputes on law of personal status decided by subordinate to the High Court and the Court these courts since the time of independence in of Appeal. Though presided over by the Chief 1963, and in some parts of Kenya long before Kadhi and Kadhis, these courts, like the rest of the coming of the British colonialists. country’s courts are all under the ambit of the Chief Justice. The Kadhi’s courts are thus not Some writers have considered the hard-line a religion. position take by Christians as immoral and a sign • The constitution is a document that addresses of intolerance. Wambilyanga (2009), the Chief Sub- the needs of all citizens, including those of Editor of the Standard (Weekend Editions), writes: the minorities and special interest groups who ask for such interests to be provided for Intolerance has never been a virtue. Church and protected by the constitution. Muslims in leaders do not want to hear anything about Kenya have always felt the need for the courts Kadhi’s courts in the new constitution. Not and have asked for them. It would be unfair even if the word comes from the experts. for the government to deny the Muslims such Is their call genuine? Will it be of national courts on the ground that other communities good to rally faithful to shoot down a or religious groups have not asked for them. new constitution on the premise of one • The notion that the country must separate idea viewed as giving prominence to one state matters from religious ones in a secular religion?... frame has been unconvincing. The current The Church should be at the forefront constitution and the Harmonized draft have in fi ghting for a new constitution. For the a national anthem which recognizes God Church to threaten to marshal faithful as the Originator of all creation. Moroever, against the new constitution on the basis of Sunday, a Christian day of worship, not Friday, Kadhi’s courts is immoral. MRAJA – Current Debates 37

If the new document will ensure It should be noted that aspects of the Islamic law development of the whole country and seal applied in the Kadhi’s courts are not an exception avenues that the politically-correct use to to this provision. make illicit money, we should support it. It While many aspects of the Sharia are daily is wrong for the clergy to incite the faithful observed by Muslims without the trappings of to reject it because Kadhi’s courts have been the state machinery, some require the safeguards acknowledged. of the state. For instance, there is nothing that a local Sheikh can do to compel a husband to answer Aol (2009) also considered the statement by the charges raised by his estranged wife in relation evangelical churches against the Kadhi’s courts to the provision of maintenance to the divorced as unwarranted. He accused the group of acting wife, or over a dispute on the custody of children in ignorance and asserted that there are adequate following divorce. The state, however, has the provisions in the Constitution and international power to do so under the law of contempt of court law – treaties and conventions that the Government and thus ensure justice to the aggrieved party. has signed and ratifi ed – to protect Christians In the Kenyan context, moreover, entrenching and non-Muslim faiths from being subjected to the Kadhi’s courts in the new constitution is Kadhis courts or ‘sharia law’. In view of this, the necessary given that Muslims are a minority. (Christian) clergy should use their energy to According to the 2009 National Census, the total strengthen existing relations between Christians population of Muslims is 4. 3 million while that and Muslims instead of provocations in a manner of Christians including Catholics and Protestants akin to political activism. number about 32 million. The country’s population The support for the inclusion of the Kadhi’s stands at 38.6 million (Daily Nation, September courts in the constitution should not be construed 1, 2010). Mwaura (2009) asserts that unlike their as a concern of Muslims only. A number of NGOs Christian counterparts, Muslims do not constitute a have voiced their support for the entrenchment politically, educationally, or economically dominant of Kadhi’s courts. For instance, the Centre for group. Without any constitutional safeguard, Multiparty Democracy – Kenya (2010), on a such courts could also be easily expunged by an statement on the work of the Parliamentary Select overzealous Christian-dominated Parliament. Committee on the constitution at Naivasha, wrote: “We fully support retention of the Kadhi’s Courts Conclusion and call upon the church leaders to avoid extremism This paper has shown that the Kadhi’s courts have and be magnanimous. Kadhi’s Courts are a judicial been in Kenya long before and since independence, and not a religious matter.” and have not breached any of the rights or freedoms of Christians. Having been entrenched in the Need to Entrench the Kadhi Courts in Independent Constitution and other drafts in the the Constitution course of Kenya’s constitutional review process, As a unitary state, Kenya cannot allow a judicial the Kadhi’s courts have been seen as part of the system such as the Kadhi one to operate separately country’s judicial system serving genuine interests outside the watchful eye of the state. Such a state of a section of the population. Muslim and a section of aff airs may lead to “Taliban-styled” courts or of Christian leaders as well as those drawn from the an extremist interpretation of the Muslim law. civic and political groupings have supported the Entrenching the Kadhi’s courts in the constitution provisions of the Proposed Constitution catering thus gives the government some leverage to control for the Kadhi’s courts. Eff orts by a number of and regulate the operations of such courts, while at Church clergy to use the High Court to contest the same time safeguarding the genuine concerns of the constitutionality of entrenching the Kadhis a section of its citizens. Indeed, one such safeguard courts in the constitution have not been successful. is the supremacy provision under Section 2 (4) of The Kadhi’s courts have thus been retained and The Proposed Constitution of Kenya (2010), which entrenched in the proposed supreme law. states that “Any law, including customary law that An analysis of the workings of the CoE shows is inconsistent with this Constitution is void to the that despite the many submissions made by extent of the inconsistency, and any act or omission Muslims demanding some reforms on the Kadhi’s in contravention of the Constitution is invalid.” courts, the committee simply retained the status of 38 Constitutional Review in Kenya and Kadhis Courts the courts as they are in the current constitution the Kadhi’s courts but to endorse it and rally their of Kenya. Perhaps the CoE in so doing wanted to support to garner the requisite numbers to eff ect respond to the sensibility of the Christians by only the changes they desire. accepting from the Muslims the least irreducible If the entrenchment of the Kadhi’s courts is the minimum, namely retaining the courts as they main bone of contention against the adoption of a were before. The accusations levelled against the new constitution and Christians feel disadvantaged CoE for ignoring the views of the Church to treat and discriminated, then, instead of demanding the Kadhi’s courts as contentious were found to be the removal of the courts – a move which will unjustifi ed. certainly be rejected by Muslims – Christian A “Yes” vote at the referendum will have the leaders may demand a provision in the proposed implication of retaining and entrenching the Kadhi’s law or an amendment of the constitution once it is courts in the new constitutional dispensation. A passed that grants any religious group the right to “No” vote will be of no consequence to the fate of establish courts of their own to govern matters of the courts as they will still be provided for by the personal status. Only when Christians make such current constitution. Thus for Christians opposed a demand and is rejected would the provision on to the Proposed Constitution, the above scenario Kadhis courts be seen as discriminatory. presents a lose-lose situation. This position is shared by Archbishop Eliud Wabukala, the Head of the Anglican Church of Kenya, who reasoned that even if Christians gang up to defeat the Proposed References Abdullahi A. 2010. We must reject both Christian and Muslim Constitution at the referendum because of the extremists. Sunday Nation (Nairobi) 7 February, 18. clause on Kadhi’s Courts they will still have lost the Anderson, J. N. D. 1970. Islamic Law in Africa. London: Butterworth & Co. war as the courts are in the current Constitution. Aol, P. 2009. Clergy’s views on Kadhi courts selfi sh. The Standard In addition, Christians will be blamed for failure to (Nairobi), 7 November 17. pass new laws that would do away with an imperial Carmichael, T. 1997. British ‘Practice’ Towards Islam in The East Africa Protectorate: Muslim Offi cials, Waqf Administration, presidency among other positive aspects (The and Secular Education in Mombasa and Environs, 1895- Standard, April 4, 2010). 1920. Journal of Muslim Minority Aff airs 17 (2): 293-309. Centre for Multiparty Democracy – Kenya. 2010. Statement on While a section of Christian leaders has the Work of the PSC on the Constitution at Naivasha. Daily rejected the possibility of amending the Proposed Nation (Nairobi), 19 February, 36. Constitution after it is passed into law, the document Harmonized Draft Constitution of Kenya. 2009. Nairobi: Committee of Experts. itself provides for a mechanism through which an Lethome I. (2009). Opposition to Kadhi courts uninformed and aggrieved party can seek redress. Section 257 (1) misplaced. The Standard (Nairobi) , 16 November, 15. Mwaura, P. 2009. Kenyan Christians behaving like a dog in the of the proposed law gives the Church the option to manger. Saturday Nation (Nairobi) 15 August, 11. change a section of the Constitution by raising one Republic of Kenya. 2010. The Proposed Constitution of Kenya. million signatures from among registered voters. Nairobi: Attorney-General. Wambilyanga, W. 2009. There’s more to law reform than the The onus is thus upon the Church leaders, not to Church locking out Kadhi’s courts. The Standard (Nairobi),, stand in the way to a new constitution because of 1 November, 16. Anglican Responses to Kadhis Courts in Kenya

Joseph Wandera

Introduction he Anglican Church of Kenya (ACK) was founded In the mid-1950s, two Anglican missionaries, Andrew Tby the Church Missionary Society (CMS) and is Hake and Stanley Booth-Clibborn, came to Kenya to the oldest Protestant Church in Kenya. The history work in the then Christian Council of Kenya (CCK), of the Anglican church dates back to 1844 when now National Council of Churches of Kenya (NCCK). the fi rst missionary from the Church Missionary It was Booth-Clibborn who recruited Henry Okullu Society (CMS), Dr.Johann Ludwig Krapf, arrived in as editor of Target newspaper, which succeeded Rock Mombasa. With a membership of over four million, (Okullu 1997, 48–55). Okullu, later was appointed as the ACK is the largest Protestant Church in the the fi rst indigenous Provost at All Saint’s Cathedral country. There was a close relationship between in Nairobi in 1971 and subsequently became Bishop the Anglican Church and the colonial state in of Maseno South Diocese (1974-1994). Candid and Kenya to the extent that the church was the offi cial soft spoken, Okullu became one of the most fi erce church of the colonial government. Most of the critics of the government. His commentaries on early missionaries sent to the Anglican Church political issues were born out of his past experience were evangelicals who typically stressed personal in Uganda in the era of dictator Idi Amin where conversion to Christ. This historical heritage of the he had previously worked as a clerk. His ability in ACK may be a signifi cant contributing factor to its research coupled with a natural wit contributed engagement in public debate at present. Some of to his eff ectiveness in public engagements. Other the early Anglican missionaries were quite critical key Anglican players in the church’s contestation of what they saw as unjust practices of the colonial with the state included Bishop Alexander Kipsang government. Thus David Gitari, a retired ACK Muge of Eldoret Diocese (1983-1990), Bishop David Archbishop has observed: Gitari of Mt Kenya East Diocese (1975-1990) who later served in Kirinyaga Diocese (1990-1996) and The early CMS (Church Mission Society) later became Archbishop of the Anglican of Kenya missionaries were well grounded in their (1997-2002) and to a lesser extent Archbishop theology and did not refrain from commenting Mannasses Kuria. There were church leaders from on sensitive political issues. Archdeacon other denominations who by 1985 had already been W.E Owen of Kavirondo (Western Kenya) identifi ed as critics of the ruling party. Notable helped to found the Kavirondo Taxpayers among them were Timothy Njoya of Saint Andrew’s Welfare Association (KTWA) to articulate Church, a major Presbyterian congregation in the political and economic interests of the Nairobi and Bishop Ndingi Mwana wa Nzeki of the Luo. The colonialists disliked Owen so much Catholic Church, Nakuru Diocese. Thus, the public that they derogatively referred to him as engagement of Anglican Church leaders in the ‘Archdemon’. Archdeacon (later Archbishop) 1990s had an earlier missionary impetus and also Leonard Beecher represented the interests an ecumenical approach, although the context had of indigenous Kenyans in the Legislative greatly changed from the colonial one. Council. This spirit of political prophetic Several factors led to the increased public role of witness continued after independence the Church in the 1990s, including the availability through the Church leaders who took over of greater space for dissent in society. The latter from the missionaries (Karanja, 2008, 72). result of a global democratic inspiration that swept 40 Constitutional Review in Kenya and Kadhis Courts the world following the collapse of the Berlin wall exercise their democratic rights as members of this on October 3, 1990. The opening up of democratic nation” (Weekly Review, August 29, 1986, 3), without space in Kenya in 1992 followed this trend. Such alienating members of their fl ock because of their factors have made people more critical of the political position. Theological argumentation also church and its leadership. Paradoxically, while such played a role in the Anglican opposition to voting developments have increased space for political through queuing. The then Archbishop Manasses participation in general, including religious ones, Kuria described the proposed new voting method it has also placed a spotlight on the weaknesses of as ‘unchristian’ and cited the election of Matthias the church. to replace Judas (Acts 1:25–26) to back his position This contribution looks at the engagement of the (Weekly Review, August 25, 1986). Later, President ACK in three public discourses in Kenya and seeks Moi announced that clergymen, civil servants and to show how the present discourse on Kadhis courts members of the armed forces would be exempt refl ects a shift in the Church’s public engagement. from queuing and would be permitted to vote While in the past, the church has spoken out on in primary elections by proxy. With the holding real issues facing society such as corruption, bad of the general elections in 1988, the question of governance, and poverty, its focus today on Kadhis queuing was brought back to the forefront of courts, an essentially marginal issue, has reduced political debate. Bishop Alexander Muge claimed the moral standing of the Church. The position of that the general election in Nandi district, which the Anglicans on Kadhis courts has also divided the had unseated moderate Cabinet Minister Henry Church. Kosgey, had been rigged. This seemed to vindicate the concerns raised by the church on the new I. Anglicans Engage the State: voting system (Githiga 1997, 165). Queue Voting Debate (1986–1990) In this public discussion, Anglican bishops On August 19, 1986, the national executive were seen as the champions of the voiceless. In a committee of the Kenya African National Union country where freedom of expression was limited, (KANU) made a proposal to the ruling party’s the church remained virtually the only means of annual delegates’ meeting that elections to the expressing dissent. This role by the church won National Assembly should be reformed. The most them overwhelming support from Kenyans. controversial aspect of the proposal was the abolition of the secret ballot in the fi rst round of II. The Multi-Party Debate voting and instead, voters would have to queue After Kenya gained independence in December behind the candidate of their choice. The ruling 1963, the fi rst government led by the Kenya African party KANU argued that the new voting system National Union (KANU) invited the opposition, would be faster and more transparent than the Kenya African Democratic Union (KADU) to merge secret ballot. During the 1987 elections this with it in 1964. This eff ectively transformed Kenya method of voting was used. This new method into a single party state. In 1966, Jaramogi Oginga of voting threatened to disenfranchise sections Odinga formed the Kenya People’s Union (KPU) of the population such as civil servants who after “losing’’ the vice presidency of KANU. This feared that an open ballot would jeopardize their temporarily returned Kenya into a Multi Party careers (Karanja, 2008, 77). However, observers state. In 1969, however, KADU was banned by the saw the new system of voting as an indication Kenyatta government. These changes were later of the increasing authoritarianism of the Moi to be enshrined into law under President Moi’s government (Throup and Hornsby, 1998, 39). regime. On June 10, 1982, changes were made to The KANU delegates’ conference coincided with the Constitution of Kenya, Section 2A , as well a meeting of pastors organised by the National as Sections 5(3) and 5(5) a. It was henceforth Council of Churches of Kenya (NCCK) of which illegal for anyone who was not a KANU member Anglican Bishop David Gitari was chairperson. to participate in competitive politics (Sabar 2002, Under Gitari, the gathering opposed the new 204). Moreover, Section 39(1) required members system of voting. In a statement drafted by Gitari of parliament who defected from KANU to vacate and signed by the General Secretary of NCCK, the their seats in parliament. gathering asked the ruling party to “to fi nd an During the term of the fi rst president, Jomo alternative method in which church leaders can Kenyatta (1964–1978), and during the initial years WANDERA – Anglican Responses 41 of the second president, Daniel Arap Moi, (1978– David Gitari, Canon Gideon Ireri (then provost, 2002), the church was generally silent (Chesworth, Embu Cathedral) and Revd. Dr Timothy Njoya, a 2009, 157). This may be explained by the great hopes Presbyterian minister. Other support was received which Kenyans placed for the country. Kenyatta, from an ex-detainee and prominent constitutional a Kikuyu, was seen by many as an independence lawyer Gibson Kamau Kuria and Gitobu Imanyara, hero who meant well for the country. His age, the editor of the Nairobi Law Monthly. charismatic personality and leadership style also On May 10–11, 1990, President Moi, addressing made it diffi cult for most politicians to express the public in Kirinyaga and Kamukunji respectively, dissent towards government policy. President Moi, denounced Okullu and Gitari, who had supported a Kalenjin was equally revered during his fi rst early Okullu. The president asserted that the Anglican term in offi ce and his cry embraced for ‘peace, love Church was involved in a plot to undermine the and unity’. His ethnic affi liation to the Tugen group government. This was refuted by ArchBishop. of the Kalenjin was interpreted as an underdog one Manasses Kuria. who would redeem the rest of the Kenyans from what In 1990 under the chairmanship of George was hitherto seen as Kikuyu political hegemony. His Saitoti, (the Vice President of Kenya), KANU image as a God fearing man,who attended Church conducted an inquiry into multi-partyism. Both each Sunday earned him admiration from many. Bishop Gitari and Bishop Muge appeared before An active member of the theologically conservative it to argue the case for multi-partyism. In their Africa Inland Church, Moi strictly adhered to the evidence to the committee, the Anglican Church disciplinary code of the church, which forbids argued that queuing should be abandoned, and smoking and alcohol intake. Each Sunday, the state- election-rigging reduced through the establishment run Kenya Broadcasting Corporation presented its of a credible electoral commission. The Anglican lead item: the president at a church service. Church’s memorandum repeated the call for a On August 1, 1982, after an attempted coup national conference in which there would be against the government, Moi became increasingly debate on proposals to return the country to multi- autocratic and hostile to any form of political party politics. The Anglican bishops clearly did not dissent. The President also continued to reduce consider the KANU Review committee suffi ciently the infl uence of the Kikuyu in the civil service and impartial and hence credible. Subsequently, the the army and shifted state resources from Central committee reported that there was no justifi cation Kenya to the Rift Valley from where he originated. for a change of status quo. There was an increase in cases of corruption and a International pressure in the early 1990s general economic decline. together with internal pressure by Churches In this context of reduced space for free political and other civic groups eventually forced the participation in the late 1980s, the Anglican Church government to remove the Section 2-A of the (then known as Church of the Province of Kenya current constitution in December 1991. This (CPK), began to speak out. As with the previous allowed the registration of opposition parties and subject of queue voting, Bishops Henry Okullu, multi-party elections in 1992. Mainly because of David Gitari and Alexander Muge began to call for divisions among opposition parties in their quest opening up of democratic space through the re- for power, KANU won the election. The Anglican introduction of multi-partyism. The local debate in Church, led by its Bishops, remained a critical voice Kenya for multi-partyism was not taking place in in the pursuit for democratic space. In conjunction isolation but in tandem with events elsewhere in with civil society and international pressure, the the world. Thus, Throup, (1995, 163), observes that church demanded a comprehensive review of the the end of the communist rule in Eastern Europe Kenyan constitution. and demands in other parts of Africa for the ending of one-party rule pushed KANU leadership III. Anglicans, the Constitutional at the end of February 1990 to consider a public Review Process, and the debate on discussion on multi-party politics. Towards the Kadhis Courts. end of April 1990, Bishop Henry Okullu critiqued The process of reviewing the constitution started in one-party rule, calling for free debate on Kenya’s earnest in 1998 with the passing of the Constitution economic and political future (Throup, 1995, of Kenya Review Commission (Amendment) Act. While 163). The bishop’s call was supported by Bishop KANU, the National Development Party (NDP), and 42 Constitutional Review in Kenya and Kadhis Courts some opposition legislators argued that the process A. The Discourse on the Place of Kadhis should be directed by parliament, religious groups, Courts in the Constitution most opposition legislators and civil society were The main purpose of this constitutional review sceptical that the government would spearhead was to decentralize power, inherited from colonial the process with impartiality (Andreassen and To- times and entrenched by the post-independence stensen 2006, 1). The groups argued that the proc- political leadership. The matter of religious courts ess should be composed of representatives from the in the constitution did not feature as key in the main religious groups, opposition legislators, civil preliminary agitation for democratic reforms in society and others. On December 15, 1999, a com- Kenya. However, in the 1990s, the provision of mittee consisting of fourteen KANU legislators and Kadhis (Islamic Judges) in the country’s legislative thirteen members of the opposition was set up to framework became a major issue of contestation lead the process. The following day at Ufungamano between Muslims and some Christian groups. This House, near the University of Nairobi, Kenya’s specifi c issue became so contentious that it led to the main religious groups (the Catholic Church, mem- collapse of the multi-faith aspect of the Ufungamano ber churches of the NCCK, the Supreme Council of Initiative. In particular, Mutava Musyimi, General Kenya Muslims (SUPKEM) and the Hindu Council of Secretary of NCCK resigned as a commissioner. A Kenya) convened. The ecumenical signifi cance of section of the Christian community argues that this grouping was unmistakable. For the fi rst time, these courts privilege one religion (Islam) over diff ering religious groupings were coming together others. On the other hand, Muslims argue that some to fi ght for democracy. This group with the back- legal adjudication is absolutely necessary in the ing of opposition legislators and non-governmental practice of their religion. But what is the specifi c organizations, set up a parallel group to lead talks provision in this draft on the Kadhis courts? on constitutional reforms. In June 2000 the group announced the formation of a People’s Commis- 1. Bomas Draft (2004) sion that would put across its own proposals for the Kadhis Court 198. Constitution. Chesworth rightly argues that ‘the es- tablishment of the People’s Commission impelled 1. There is established the Kadhis’s Court. the government to start the long-expected process 2. The Kadhis Court shall: of establishing an offi cial commission’ (2009, 164). a. consist of the Chief Kadhi and such On the government side, the Parliamentary Select number of other Kadhis, all of whom Committee on Constitutional Reform put in place an profess the Islamic faith; and Enabling Act through Parliament in October 2000. b. be organized and administered, as may be Thus, the Constitution of Kenya Review Act Com- prescribed by an Act of Parliament. mission was established with Prof. Yash Pal Ghai as the head (CKRC 2002b, 2). As head of CKRC, Yash Pal The subsequent clauses then provide in greater Ghai, demanded a Joint process with the Ufunga- detail the jurisdiction of the courts. mano Initiative of the People’s Commission. Thus, in March 2001 there was an agreement on merging 2. Referendum on the New Constitution of the two commissions, and in June 2001, the Con- Following the various Bomas meetings, a fi nal draft stitution of Kenya Review Act was amended to take Constitution was produced by the Attorney General care of membership from the People’s Commission. Amos Wako, which became known as the Wako From early December 2001, the commission began draft. Whereas the clause concerning Kadhis Courts receiving submissions in Nairobi and provincial cap- in the earlier drafts had kept closely to the existing itals. From late April to early August 2002, the com- Constitution, the Wako Draft provided for religious mission visited every constituency. courts in general and not just Kadhis courts. This A report and draft constitution was subsequently suggestion seemed to appease religious groups published, followed by a series of its deliberations other than Muslims. lasting from April to June 2003, August until The referendum was held on November 21, 2005, September 2003 and January until March 2004. with the results indicating a strong rejection of the These deliberations have been referred to as Bomas draft Constitution. Although other reasons caused I, II and III in reference to a cultural centre by that the defeat of that draft, it can be posited that name where the meetings took place. the place of Kadhis courts, for both Muslims and WANDERA – Anglican Responses 43

Christians was a strong factor its rejection. Other The leadership of the Anglican Church in Kenya provisions in the draft such as devolved power, bill has generally taken a critical stance towards the of rights, gender balance etc were not taken into provision of the Kadhis Courts in the Constitution. account in voting. Of course the nation was also There are other Christian churches who are equally polarised along ethnic lines on key aspects of the vehement against the constitutional provision proposed law. for the courts, while a few, notably the Seventh Following the December 2007 elections and Day Adventists, have remained silent on the the post-election violence in which thousands matter. The “Kenya Church,” composed mainly were killed and hundreds of thousands displaced, but not exclusively of Charismatic Pentecostal an agreement was brokered by the international groups, argues that Kadhis Courts can no longer Community led by Kofi Annan and others. Several be accommodated in the constitution as the draft steps were put in place and among them was clearly provides for a separation between state and the need for constitutional review, as a way of religion. Thus, they argue that article 10(3) of the rebuilding Kenya towards a stable and secure harmonised draft states that “State and Religion future. The public role of the Anglican Church in shall be separate”; “There shall be no state religion”; the period leading up to the general elections in and “All religions will be treated equally.” 2007 has been criticised severely. This is because The arguments presented in the early period the Church appeared to play a partisan role in the of the review process resonate with current political campaigns. Some bishops from western arguments. The Anglican voice on Kadhis courts Kenya, where Presidential candidate Raila Odinga has not been unanimous, however. There are church hails from, openly voiced support for his party leaders and adherents who have broken ranks with while those from Central Kenya rallied behind the bishops of the Anglican Church in support of Mwai Kibaki and his PNU party. Refl ecting trends the constitution and the provision Kadhis courts. in the rest of Kenya, the aff airs of the Anglican David Gitari, the retired Archbishop, earlier quoted church, including the election of its leaders, are to as objecting to Kadhis courts in the constitution in a signifi cant extent infl uenced by ethnic dynamics. a recent sermon at All Saints Cathedral, Nairobi, As a result of its partisan role, the voice of the supported the draft law and cautioned Christians Church was barely audible during the violence, that the constitution should not be a contest death and destruction which followed the disputed between Muslims and Christians (Daily Nation, 2007 Presidential election results. Although the Monday April 19, 2010).Other bishops in recent present Anglican leadership is seeking to build on times have expressed their support for the draft the legacy of their predecessors, the context and constitution even while showing discomfort with moral standing of the Church has greatly been the provision of Kadhis courts including Bishop challenged. There is generally suspicion and even Beneah Salala of Mumias Diocese and Bishop Mwai contempt against Church leadership. Perhaps it is Abiero of Maseno North Diocese. for this reason that Paul Giff ord observes that: “The On the November 27, 2009, the Anglican House of Church’s current attempt to reinvent itself is part Bishops released a Press statement concerning the of a dangerous trend where leaders and institutions Harmonized Draft Constitution which included a fail to read the signs of the times or to accept that resolution on Kadhis Courts. The resolution stated: their time is up, because citizens have lost faith in “Remove the Kadhis Courts from the constitution in them” (Giff ord, 2009b, 201-221). total since Parliament has the power to create any other courts through legislation” (“Justice Be Our 3. Anglicans and the Current Discourse Shield and Defender,” Nairobi, November 27, 2009). Even before the new harmonized draft was It is worth noting that the bishops were calling for produced, the clause on Kadhis courts was causing Kadhis Courts to be removed from the Constitution, contestation as could be seen in various media they were not calling for their removal. As already coverage: observed, other church leaders especially from the Pentecostal churches have raised concerns about Anti-Kadhis Courts fuelling Islamophobia. the courts. Muslim leaders have in turn raised Weekly Bulletin, November 6, 2009. concern of Islamophobia. Clerics dig in for fi ght against Kadhis courts. Between December 2009, and February 2010, Daily Nation, November 10, 2009. I interviewed fi ve Anglican bishops and a senior 44 Constitutional Review in Kenya and Kadhis Courts clergy on the debate on Kadhis Courts and the anywhere else so to me that argument does position of the Anglican Church. The following not arise because if we agree that we’ll put it views, recorded digitally and later transcribed, in the constitution but limit it to the ten-mile serve to show the various underlying reasons for coastal strip, will that serve the interests of the Anglican stance against Kadhis Courts in the the Muslims? It will not serve the interests of constitution. Bishop Joseph Wasonga of Maseno the Muslims. (Mumias, December 22, 2009) West Diocese stated: From the above quotation, the constitutional The constitution should simply say there provision of Kenya as a secular state and the need will be religious courts which then an act of for equal treatment of religions is advanced for parliament can bring into being because we the opposition to Kadhis courts in the draft. These were seeing although for now we see only same reasons were advanced by Anglicans and Kadhis. The Muslims are the ones asking other religious leaders in past discourses between for them but we think there is wisdom in 2004 and 2005. However, the discourse on Kadhis making provision for religious courts; for courts is also opening space for discussion on the instance, most Christians we do weddings but place of religion in a secular dispensation. Thus, when there is annulity we cannot annul any while Bishop Wasonga contests the place of Kadhis marriage, we have to go through the secular courts in a secular state, he at the same time court and then when it is annulled, then the suggests that religions should have a place in the Bishop’s court will eventually accept off ers national constitution. from the secular court but we think if there Bishop George Mechumo of Bungoma Diocese were religious courts, issues like marriage observed: where we have actually been the offi ciants then we could judge and then register The draft itself was inconsistent. It was not whatever it is we think with the High Court clear because it says that all religions shall be or whatever courts, so we think in future treated equally, also Kenya shall be a secular there is wisdom for religious courts which state, so we are asking why is Islam being would cover Muslims, Christians and Hindus. given this preferential treatment? Also the But the reason we were feeling it shouldn’t religion itself is coming out openly to say we be in the constitution is because we feel it want this preferential treatment? Also the is like a contradiction. The philosophy [of religion itself is coming out openly to say we the constitution] is that Kenya is a secular want this to be there, so when we looked at state, there shall be separation between it, we talked about a few things, one, if Kadhis religion and state, no religion would be Courts are to be there at all, the way they favoured, then in the same constitution in a were at independence then the best way is section you say Kadhis will be there and for not to have it the way it is but to have, you you to be a Kadhis you must be a professing remember the previous drafts, it had a clear Muslim. Because a Christian can read Kadhis arrangement with a provision for religious law and become a Kadhis, why should it be courts so that every religion, if they want to a professing Muslim? So that is why we are have religious courts can have. If not, then we saying to avoid that contradiction we say would rather have no religious courts at all. If there will be religious courts which will be they say “No”, then we shall come and suggest, created by an act of Parliament then the we as the Anglican Church are supposed to act of Parliament can give details saying it be the state church because we had our place is because of these special circumstances we in parliament, we had our seat there from will allow religious courts. the colonial times, we want that reinstated. The second [reason for objecting against It should be added in the constitution, then the inclusion of Kadhis courts], many people we shall demand that bishops and clergy be are saying that because it was an international paid by the state because Muslims are going treaty between Kenyatta and Sultan but that to benefi t from the tax payers money. So we treaty was only concerned with the ten mile stood at that. So we decided to say, let us do coastal strip not Kisumu or Kakamega or away with Kadhis courts ... Whether they are WANDERA – Anglican Responses 45

a minority, they are Kenyans, we know one law]. And I think that was the agenda, it is tribe which is a minority and its on Mt. Elgon the agenda even now. Because walikuwa and it has a religion. Every minority has wanataka kuongeza mengine [because they their religion. And even the African people wanted to add other issues] on top of these who pray in Parliament have not had their social, ethical issues such as marriage. I think religion included in the constitution. We they must have had something. Hapo ndipo know Muslims; Muslims have caused a lot of wakristo wakasema hapana [that was when damage everywhere in the world. (Mumias, the Christians objected] It cannot be. So that December 22, 2009) is why we are saying, we better do without it, we don’t need it in the constitution, so The above sentiments are evidence of a general that all religions are the same. Yes, it has fear of Muslims based on negative events elsewhere been there but now we are looking at a new in the world in which alleged players have been constitution. Ile ilikuwa ya wakoloni [The Muslims. Such events may include the September previous constitution was for colonial ties] 11, 2001 attacks in the United States of America. to accommodate them, so that they can However local tragic events such as the bombing colonize well (Mumias, December 22, 2009) of the American Embassy in Nairobi and the attack on the Israeli owned Kikambala hotel play a role In the above reasoning by Bishop Were, there are in what others have referred to as ‘Islamophobia’. fears about the introduction of Sharia laws in Kenya Thus global and local events play a role in these and that introduction of Kadhis courts is a mere perceptions against Islam and Muslims. stepping stone. The matter of the equality of all Bishop Josiah Were of Nambale Diocese religions in a secular dispensation is also raised as reasoned: is the historical contingency of Kadhis courts and the need for a new constitutional order. When you read the constitution, there is state Bishop Beneiah Salala of Mumias Diocese and religion. The reason why we are saying, argued: historically , the kadhis were supposed to be on the ten mile Coastal strip, the coast The draft separates clearly the state and was mostly dominated by Muslims; now religion. As Christians we are not against to accommodate them and their religion, Kadhis courts. We are not against Muslims. wakapewa iyo [they were given that] ten mile But it is the contradiction[s] we fi nd in Coastal strip which was to cover Zanzibar and the draft which makes us question what is parts of Kenya. So that was meant to be at the so special with a particular religion. The coast, not all over Kenya. So that is why we same constitution allows, if there is any are saying hio ilikuwa wakati wa ukoloni [that other courts or tribunal to be set, it can be was during the colonial period] so we don’t set through an act of Parliament. So if at have to ... Catholics, Anglicans are here. So all the Muslims will want special courts to we are not claiming anything. How can we address their personal issues relating to take one religion to be superior than others marriage, divorce or inheritance, why don’t wapewe [let them be given] kadhi, you know we set up that kind of Court through an act the government pays the Kadhis, so should of parliament. Why we entrench a religion one religion benefi t from government tax in a constitution which says there shall be and not the other? We should be given equal no state religion, all religions will be equal. rights. Sasa kama [now if] Anglicans, Roman By setting Kadhis in the constitution we Catholics, hawana mambo ya [they do not are removing the equality of religions in have Bishop or Archbishop] mentioned, why this country, we are elevating one religion; Kadhi’s Courts? To balance the whole thing, that is what we are questioning. Muslims let us do without it. And you know if people have asked a number of times: that this would not have made noise. With these thing has been in the constitution since Muslims, you never know. In future wanaweza independence. Why is it that Christians ingiza hiyo iwe kadhi na baadaye iwe sharia law are advocating against it? But why are we inaanza kuingia. [They might introduce sharia reviewing the same constitution and how 46 Constitutional Review in Kenya and Kadhis Courts

did the same constitution come into being? the constitutions. Muslims will need their Did Kenyans participate in making this right as Muslims because they will say we constitution? This is a constitution we were existed in the constitution of this country given by colonialists. Furthermore, how did from independence and that is why we are the Kadhis courts enter the constitution? saying No, if ours is not there... But if they This was a personal arrangement between want Muslims to be in the constitution, Kenyatta and Shamte, the Sultan of Zanzibar. something about Christianity should also be And in fact it is unconstitutional to set Kadhis in the constitution. (December 22, 2009) courts outside the ten-mile Protectorate. (Mumias, December 22, 2009) In the above interview with Archdeacon Ajiba, Islam is feared to be spreading fast in Kenya and poised The question about the legitimacy of the current to ‘rule Kenya’ if nothing is done. The notion of the constitution which was negotiated with the spread of Islam may be related to the much talked colonial government is presented for the position about Abuja Declaration in Nigeria which allegedly against Kadhis courts. sets the background for the Islamization of the According to Archdeacon John Ajiba: African continent3. The fear of the introduction of Sharia law in Kenya is also advanced for the It is very unfair for one religion to be opposition to Kadhis courts. considered in a Kenyan constitution. Why we feel it is risky is for one, we know that B. Commentary on Emerging Themes in Muslims are penetrating in very intricate Bishops’ Opposition to Kadhis Courts ways. They in future will want another An important concern raised by the bishops is thing to be added and then if we are not that of the need for equality for all religions as keen enough, they will have to rule this implied in the constitutional provision, ‘There country with Sharia kind of constitution. shall be no state religion’. What seems to lack in That is why we are trying to avoid them this discourse is a recognition that granting ‘legal from the word Go because if we don’t, they accommodations’ to religious convictions may not are going to overtake Christians. We are not a breach of the argument, invoked regularly, that just seeing here. Abraham was told by God there should be one law for all. On the contrary, to see yonder, that means Christians are it may actually be an affi rmation of this principle the lineage of Abraham. Unless we see far, of equality. It is a specifi cation of how the principle Muslims are seeing far. These politicians are of equality might apply to a diverse citizenry who not interested about Christianity, they are happen to have intensely held religious loyalties as serious about their own positions as PNU the case is in Kenya. Thus, the point here is for the and ODM. That is why Christians are saying principle of equality to “underpin” not “supersede” No to Sharia. These people are coming in our plural identities. slowly and they are going to develop because It seems to me that the basic argument of those this is like a process, they want to say these in support of Kadhis courts in the constitution is courts were there but now you see how they that to be a citizen is not necessarily to be guided have agitated and how serious they have by a uniform law of a sovereign state, in such a become. If it was not a serious matter, even way that any other relations, commitments of on their side, this debate that has gone on behaviour are left to the private realm. The secular would have helped them to withdraw and law is just one part of a religious believer’s identity say we don’t need Sharia. If the word Sharia and the believer has other rules of engagement in can cause a problem, then let us as Muslims public life. withdraw and leave it out of the constitution Further, this principle of equality before the law but you see how they have agitated. And it is not in any way compromised by recognising the is just like when the government wanted independent jurisdictions (i.e spheres of authority) money from outside to come and count of non-governmental institutions, such as churches, people who don’t exist here –gay and we trade unions etc. It is an essential feature of a free said no because once you count them even society that there should be many self-governing if they are four they will need their rights in institutions able to resist the tendency of the state WANDERA – Anglican Responses 47 to exceed its mandate, a possibility which resonates was under way, it has allowed itself to be diverted with Kenya’s past history. from a close scrutiny of the whole constitutional Perhaps the following biblical texts might serve process, in order to focus on what are essentially to show a basis for such religious laws: “We must marginal issues. obey God rather than men!” (Acts 5.29) or Paul’s The public discourse about Kadhis courts has rebuking of Corinthian Christians (1 Cor. 6.1.8) for pitted Christians and Muslims in an adversarial way the way in which some of them sought recourse to and is likely to infl uence negatively the relations their secular courts: “if any of you has a dispute between members of the two traditions. As I wrote with another, dare he take it before the ungodly this paper, leafl ets, texts-messages, e-mails are for judgement instead of before the saints?” Its in circulation vilifying one tradition and raising wider social and political implications and deeper alarm over the consequences of passing a law that theological basis are seen in Paul’s letter to the provides for Kadhis courts. proud Roman colony of Phillipi, “our citizenship is Commenting on the whole process and the in heaven” (Phil. 3.20). Church’s involvement, Giff ord observes that “these Whether or not such provisions should be placed courts seemed to become a major issue especially in the constitution may be answered by the specifi c for the newer churches whose agenda was adopted contexts of the countries. Muslims, a minority in by the Catholics and NCCK;....much Christian Kenya, have the fear and perhaps legitimately, activity against the new constitution revolved that letting Kadhis courts be regulated by an act of around narrowly evangelical concerns rather than parliament would expose them to being removed the broad human rights issues that initiated the in future in a Christian dominated parliament. drive for a new constitution” (Giff ord 2009, 41). An important reason for the adverse and fearful The theological leaning of the churches, which reaction of some Anglican bishops to Kadhis courts tends to be generally conservative with regard to is that they have been associated with Sharia, the other traditions, may also be playing a role in which is popularly used as a synonym for the penal the position which the Anglican Church has taken. law with its fi xed penalties that can involve capital Most of the Anglican missionaries were evangelicals punishment. However, there has so far not been any who typically emphasise the centrality of individual Muslim representative body in Kenya advocating conversion to Christ. Such missionaries may feel Islamic penal law in Kenya. Furthermore, the term closer to fellow Evangelical Christians from other “Sharia” itself is an umbrella concept that includes churches, than to non-evangelical Anglicans. criminal and civil law, ethics, personal morality and Perhaps, it this affi nity that may partly explain conduct and matters of worship. Therefore, due to the common ground taken by Anglicans and this semantic confusion, attacks on the Sharia can Pentecostals on the issue of Kadhis courts. often be misconstrued by Muslims as an attack A signifi cant development in the public discourse upon their core values. There is dire need for clarity on Kadhis courts is the interest generated in re- about what Sharia actually means in order to move thinking about the place of religion in a secular the discourse forward constructively. state. Thus, Bishop Joseph Wasonga has suggested that there might be good reasons for providing for Conclusion religious courts in the constitution, including some The Anglican Church spoke out against the for Anglicans to assist in arbitration on matters Moi regime in the early 1990s, leading to the such as marriage. introduction of multi-partyism and eventually The tension generated in the country over Kadhis regime change. Once that was achieved the Church courts may also be blamed on the failure of the seemed to lose its ethical and moral focus. This was colonial and post-colonial state to build a national seen in the division within the Church during the identity that can act as its political and social basis. period leading to the 2007 election and the failure The consequence of such failure is the construction to speak out against the post election violence. of various interest groups, including religious and The Church has campaigned for a new constitution ethnic. In this scenario Kenyan Muslims perceive and for the improvements in human rights for the themselves as an endangered group who must be Kenyan people. Once the constitutional review protected from the majority Christian state. 48 Constitutional Review in Kenya and Kadhis Courts

Githiga, G. 1997. The Church as a Bulwark against Extremism. References Oxford: Open University/Oxford Centre for Mission Andreassen, B.A., and A. Tostensen. 2006. “Of Oranges and Studies. Bananas: The 2005 Kenya Referendum on the Constitution,” Justice Be Our Shield and Defender. November, 27, 2010. Press CMI Working Papers. Bergen: Chr. Michelsen Institute. Statement by Anglican Church of Kenya. Chesworth, J. 2009. “The Church and Islam: Vyama Vingi Kanyoni, D. 2006. Kadhis Courts: Implications for Christian- (Multipartyism) and the Ufungamano Talks,” in Ben Muslim Relations. M.A. dissertation. Limuru: St Paul’s Knighton, Religion and Politics in Kenya. New York: Palgrave. United Theological College. Constitution of Kenya Review Commission. 2002b. “The Karanja, J. 2008. Evangelical Attitudes toward Democracy in People’s Choice: The Report of the Constitution of Kenya Kenya, In Evangelical Christianity and Democracy in Africa. ed. Review Commission, Short Version. Dated and Issued by Terence O. Ranger , Oxford: Oxford University Press. the Constitution of Kenya Review Commission in Mombasa Okullu, H. 1997. Quest for Justice: An Autobiography of Bishop John at 10.00 a.m. on Wednesday, the 18th day of September, Henry Okullu. Kisumu (Kenya): Shalom Publishers. 2002.” Nairobi: CKRC. Sabar,G. 2002. ‘Politics’ and ‘Power’ in the Kenyan Public Daily Nation (Nairobi)., April 19, 2010. Former ACK leader Discourse and Recent Events: The Church of the Province queries Church’s ability over new law. of Kenya (CPK), Canadian Journal of African Studies, vol. 29, Giff ord, P. 2009. Christianity, Politics and Public Life in Kenya. no. 3–4. pp. 429–453. London: Hurst. Throup, D.W. and H. Charles. 1995. Multi-Party Politics in Kenya: Giff ord, P. 2009b. ‘Christianity co-opted’, in Ben Knighton, The Kenyatta and Moi States and the Triumph of the System in Religion and Politics in Kenya. NewYork: Palgrave, pp.201- the 1992 Election. Oxford: James Currey. 221. Islamophobia among Christians and its Challenge in Entrenchment of Kadhis Courts in Kenya

Kahumbi Maina

Introduction the kadhi courts in the constitution. However, it is The issue of the kadhi courts has been a bone on record that the Seventh Day Adventist Church of contention in Kenya’s constitutional reform unequivocally supported the kadhi courts (Seventh process. It has generated a lot of debate and Day Adventist Church in Kenya statement on kadhi controversy within a cross section of the Kenyan courts n.d). An item in the Saturday Nation (February populace, both Muslims and Christians, clergy and 6, 2010) also reported that some Christian leaders lay people, members of parliament and a cross in the North Rift and western parts of the country section of scholars and legal experts. The debate supported the courts. polarized Christians and Muslims and further There were many voices of opposition to the strained their relations on the eve of the National kadhi courts in the top leadership of the church Referendum set on 4th August 2010. The mainly and church organizations. The Church was Christian clergy perceived the retention of the represented by the “mainline churches” including courts in a new constitution as a pointer towards the Catholic, Anglican and Methodist churches, giving Islam a privileged status vis-à-vis other and the Evangelical and Pentecostal churches religions. Consequently, these clergy wanted to have represented by the Deliverance Church, Reformed the courts expunged from any new constitution. Church and a motley of other small church forums The kadhi courts debate produced extreme forces and groups. The main face of Church organizations on either side of the Christian-Muslim religious in the debate was the National Council of Churches divide. The Christian side disregarded the historical of Kenya (NCCK), the umbrella organization of place of the courts in the old constitution. This the “mainline” Protestant churches – such as the paper shows that entrenching the kadhi courts in Anglican and Methodist churches – and the Kenya the constitution generates a sense of Islamophobia Church, an umbrella of 40 groups comprising among Christians. The paper posits that Islamophobia among others: Christ is the Answer Ministries fundamentally informed the Christians’ attitude and (CIAM) of the Baptist Church, Jesus Is Alive response towards the entrenchment of the kadhi Ministries (JIAM), and Neno Evangelical Ministries. courts in the Kenyan constitution. The other church organisation was the Evangelical Christian Churches of Kenya which brings together The Church response to the Kadhi the evangelical churches not represented by the Courts in the constitution NCCK. While Cardinal John Njue was undoubtedly It would be presumptuous to argue that the Church the voice of the Catholic Church, Rev Canon Peter in Kenya approached the issue of kadhi courts in Karanja, the General Secretary of NCCK, was the one voice as a united body of Christians. There most visible fi gure and arguably emerged as the is no empirical evidence to show the number of de facto leader of the entire Kenyan Church’s Christians who were opposed to the inclusion of opposition to the kadhi courts. 50 Constitutional Review in Kenya and Kadhis Courts

We cannot explore the individual church or Based on the arguments postulated above, church group responses to the issue of the kadhi courts. leaders accused the Committee of Experts that There was an apparent unanimity or at least a was mandated to draft a new constitution and the facade of unity of purpose among the church Parliamentary Review Committee on Constitution, leaders in their opposition to some clauses in the of favouring the Muslim community by various drafts of the constitution. Apart from the campaigning for the kadhi courts, while ignoring kadhi courts which are our concern, there were the views of Christians opposed to their inclusion. other contentious issues in various clauses that the Items appearing in the Daily Nation (February churches opposed in the drafts. These included: 2, 2010) and Saturday Nation (February 6, 2010) Articles: 26 (4) on Abortion; 27 (4) on Equality and demonstrate the strongest concerns of the General freedom from discrimination; and 66 on Regulation Secretary of the NCCK on behalf of the Christian of land use and property (Republic of Kenya 2010). community in the country and various churches The reasons for the Church’s opposition to the and Christian organisations over the kadhi courts. inclusion of the kadhi courts in a new constitution He is reported to have said that their inclusion was were many and varied, but the main ones are a prelude to religious division in the country: hereby identifi ed and discussed. We are extremely opposed to the inclusion of kadhi courts in the constitution … the move Kadhi courts give Islam precedence is tantamount to dividing the nation on the over other religions in the constitution basis of religion, and that it is a dangerous Christian leaders alleged that the establishment of trend…. We should learn from the nations the courts is tantamount to giving precedence to that have moved in that direction and Islam and Muslims over other faiths and religious suff ered instability (Muindi 2010). groups. Accordingly, this makes Islam the offi cial religion in the country as no other religious institution is recognised in the draft. They further Kadhi courts will introduce Shariáh and argued that the inclusion of the kadhi courts into Islamic rule in Kenya the draft constitution confl icted with Article 8 of Despite the kadhi courts being in the old the Constitution which stipulates that: “there is no constitution, their inclusion in a new constitution state religion” (Republic of Kenya 2010). The leaders was perceived by Christian leaders as an attempt to were adamant that no religion in the country introduce the Shariáh in Kenya. This, they argued, should have a privileged status and demanded the was a prelude to the establishment of Islamic rule courts’ removal from the draft constitution. They in the country. In the mind of some clergy, the cited the cases of Tanzania and Zanzibar where retention of the kadhi courts in a new constitution Muslims are in the majority yet religion and state is a long term plan of Muslims to establish Islamic are separated with the muftis (jurists) running law in Kenya. This was captured by Rev. Peter religious issues that are outside legislations (Muindi Karanja in the following: 2010). This position was maintained by a pastor of It is possible to think Christians are being the Deliverance Church who observed: sensational, but if you look ahead at the next 50 years ...100 years ... or couple of All religions are equal, there is no state centuries, when none of us is working on a religion… religion and state are separate. new constitution, ... or the full impact of this Why would Kenya as a sovereign state decision is experienced, people will look back make for the Islamic religion to have kadhi and ask: Were Christians so naïve to allow courts? Like all other religions, Islam should this to happen (Anglican Journal 2010)? support their own agenda without involving the state. Revoke the entire or any related Rev. Karanja’s argument struck the same chord as clause on kadhi courts from the constitution. that of a prominent legal scholar Kibe Mungai who Let the interested parties know that the asserts that: contention of this issue is real and draws more attention and concern than can be Those opposed to the retention of the kadhi ignored and these voices cannot be silenced courts in a new constitution were partly (Personal communication 2009). motivated by fears that with passage of MAINA – Islamophobia among Christians 51

time the courts may turn out to the fertile She further noted that the history of the courts ground for introduction of other aspects should be taken into account (Shiundu 2010). In of Islamic law in Kenya. And if Nigeria and this view, Muslim personal status law under the Sudan are anything to go by, the prospect for kadhi courts does not lead to the introduction of introduction of Shariáh law in our country is Shariáh: indeed scaring (Maina 2008). There will be no stoning to death for adultery or cutting of hands as this is covered by These arguments were supported by the fact Islamic Criminal Law which is not permitted that Muslims wanted the role and status of the in Kenya, either in the present constitution kadhi courts to be enhanced. In some cases like or under the new draft constitution (Hassan in North Eastern Province, Muslims asked for 2002). the full application of Shariáh. This demand was unacceptable to Christians. Consequently, the Kadhi Courts in the independent kadhi courts were lumped together with Christian, constitution was a historical wrong Hindu, Traditional and other religious courts in Given that the kadhi courts have been in operation the “Wako draft” which was subjected to the 2005 in Kenya since independence and Christians did Referendum. According to reports from the East not disapprove them, there arises the question why African Standard (30 April 2003; 2 May 2004), some Christians suddenly realised that the courts should Muslim clerics saw this move as downgrading the not be in the constitution. Some Christian leaders kadhi courts, since they had enjoyed special status advanced the argument that the introduction of the in the old constitution. They threatened armed kadhi courts in the independent constitution was a confl ict if the new constitution did not enshrine historical wrong that the constitution continues the kadhi courts: to perpetuate. According to Gerry Kibarabara, We should try to mobilise Muslims Chairman of the Kenya Christian Constitutional countrywide for jihad if anyone will try to Forum and Joseph Methu of the Evangelical and intimidate us and provoke our religion… Indigenous Churches of Kenya, the inclusion of we shall fi ght up to the end with all ways to the kadhi courts was not “agreed then by the retain the kadhi courts in the constitution people of Kenya. It was the mind of an individual… even if it means to seek help from our fellows their inclusion was a mistake in the fi rst place” around the globe (Maina 2008). (Kenya: Church leaders threaten to reject new law over kadhi courts n.d). This is in reference to These threats confi rmed Christian fears about the agreement signed in 1963 between founding the intentions of Muslims. This was aggravated father, Jomo Kenyatta and the Prime Minister of when the then Chairman of the Council of Zanzibar, Muhammad Shamte. Imams and Preachers of Kenya (CIPK) Sheikh Ali The agreement between Kenyatta and Shamte Shee threatened secession of the Muslim areas in two letters signed and exchanged became one of Coast and North Eastern provinces if there focus of the kadhi courts debate. According to some was no provision for the kadhi courts in the new Christian leaders, the letters signed on October 5 constitution. 1963, did not spell out categorically legislation of It should be pointed out that the link between the courts because: kadhi courts and the introduction of the Shariáh either in the long term or short term is however They only refer to the application of the contested by many Christians. Indeed, according to Islamic personal law for Muslims along the some opinions, this view is considered farfetched 10 miles coastal strip, not throughout the and perhaps a product of ignorance of, and phobia country. The letters never said kadhi courts for, Islam. According to the President of the National will be in the constitution. The fact that it Civil Society Congress (NCSC) Morris Odhiambo, was entrenched in the constitution does “Kenyans know that kadhi courts do not translate not close the door for its revision. Whatever into Shariáh.” The Chairperson of Kenya National happened in the past, Kenyans need to Commission on Human Rights, Florence Jaoko expedite the resolution of this potential termed as “totally unfounded” the fear that kadhi confl ict about the kadhi courts in the new courts will introduce Islamic law into the country. constitution (Lagho 2010). 52 Constitutional Review in Kenya and Kadhis Courts

The Kadhi courts should not apply The number of kadhis has continued to outside the 10 mile coastal strip increase as demand for services increases. Kenyatta – Shamte letters were used by Christian The Kenyan population at independence is leaders to buttress their argument against the diff erent from that of today, the people are kadhi courts. This is in view of the proposals for now more enlightened and they know their fi ve undertakings that Kenyatta made on behalf of rights (Friday Bulletin 2009). the Kenya government in respect to the future of the Kenya Protectorate or the 10-mile coastal strip. The words of the Chief Justice, Evans Gicheru, The two points in the letters that relate to the kadhi may be seen as an indictment of the weakness of courts debate are hereby reproduced: the Kenyatta-Shamte agreement that limited the operations of the kadhi courts to the Muslims of The free exercise of any creed or religion will the coastal strip without regard for future Muslim at all times be safeguarded and in particular, populations outside the Protectorate. His Highnesses’ present subjects who are of Muslim faith and their descendants will at Christian taxpayers should not pay for all times be ensured of complete freedom of Muslim religious practices worship and the preservation of their own Another reason behind the clergy’s opposition to religious buildings and institutions. the kadhi courts in a new constitution was that the The jurisdiction of the chief kadhi and of taxes that Christians pay to the government will all other kadhis will at all times be preserved and are used to pay the kadhis instead of their own and will extend to the determination of clergy. This is a view that was shared by a cross- questions of Muslim law relating to personal section of Christian leaders: status (for example, marriage, divorce and inheritance) in proceedings in which Initially when they were only a few, the all parties profess the Muslim religion kadhis were not paid by the government. (Kenyatta-Shamte letters 2010). Why should they be paid by the government now…how many bishops and pastors are Islamic personal law was to be applied only to the being paid by the government….The draft Muslims in the Protectorate and not the rest of requires the state to use tax payers’ money the country. It is in this regard that some Christian and resources to fund what is essentially a leaders argued that the historical reasons that led to religious practice. Referring a dispute to a the kadhi courts being enshrined in the constitution kadhi court is essentially observance of a no longer hold. What was then a concession to a religious practice, ritual and duty (Sermon small part of the population has brought a demand notes 2010). for special treatment of all Muslims throughout the country. A church leader observed: The foregoing argument is strengthened further Christians are not opposed to the kadhi by Erick Simiyu, a preacher with the Evangelical courts. Muslims could have them up to the Association of Kenya, who said: “the use of 10 mile coastal strip … but they have slowly taxpayers’ money to run the kadhi courts favours and slowly covered the rest of the country Islam … Christians are being taxed to run kadhi and now there are 18 (sic) kadhi courts in the courts and pay their salaries, which is unfair” country (Sermon notes 2010). (Bocha 2009). This argument is based on the original intent of the Kadhi Courts should continue under the letters mentioned above and which has limitation in Judicature Act view of the current debate. Undoubtedly, the kadhi Some Christian leaders argued that the kadhi courts were a political compromise between the courts should be placed under the Judicature Act; Sultan of Zanzibar and Kenyatta so that Kenya had that is, the law under which other similar courts access to the Indian Ocean (Maema 2010). Over the are established. This is because the conditions and years, the Muslim population outside the coastal status of Muslims in the country have changed: strip and the interior of the country has grown by leaps and bounds necessitating the services of the Unlike in 1963, Muslims are today fully kadhi courts: integrated into the Kenyan society and it MAINA – Islamophobia among Christians 53

would be unthinkable for any government electronic. The internet has been a fertile breeding to ever contemplate antagonising them ground for Islamophobia. The churches, especially needlessly by denying them the right to have the Evangelicals and Pentecostals, have used their kadhi courts even if they were not enshrined pulpits to spread this phobia against Islam and in the constitution (Maema 2010). Muslims in their sermons. Although Islamophobia is not a common phenomenon to all Kenyans, owing Kadhi Courts should be under Chapter 4 to the media and other sources, some Christians – Human Rights have come to have an inherent phobia for Islam Some Christian leaders argued that the kadhi courts and Muslims. should be under Chapter Four on Human Rights in It has not helped matters that since extreme the draft constitution. This Chapter has several Muslim groups invoke the name of Allah, the sections guaranteeing and protecting the freedom general Christian populace has developed a fear of of religion for all. Islam and Muslims. Islamophobia is founded on past and current events perpetrated by Muslim extreme Kadhi courts are discriminatory groups such as Al-Qaida and Al-Shabab such as Another reason that Christian clergy advanced the following: the August 1998 twin bombings of in opposition to the kadhi courts is that they USA embassies in Nairobi and Dar es Salaam; the discriminate against non-Muslims, thus September 11, 2001 attacks in the USA; the co- contravening the very essence of the constitution ordinated attempt to shoot down an Israel jetliner as found under Chapter Four of the Bill of Rights at Mombasa Airport with the bombing of an Israeli which guarantees rights and fundamental freedoms. owned hotel at Kikambala in Kilifi District in 2005; This is because the application of Muslim law only the petrol bombing of Hope FM Radio Station in the applies to persons who profess the Muslim faith heart of Nairobi in 2006 which is owned by Christ and a kadhi must be a Muslim (Republic of Kenya Is the Answer Ministries (CITAM), and the 11th July 2010). This implies that Christians and Kenyans of 2010 bomb attacks in Uganda which killed about 80 other faiths who may have the requisite expertise people. and knowledge of Islam and Islamic law could never Islamophobia has become a socio-religious ascend to the offi ce of the kadhi. discourse that some Christian leaders of the Evangelical and Pentecostal churches employ to Issues of Muslim Family (Personal) law warn their followers about the menace of Islam. should be resolved in the mosque The warning about the danger of Islam derives According to some clergy, a kadhi is a religious from a perception that Islam is competing with offi cer similar to a pastor, priest or vicar but not Christianity. Statements and sermons from a judicial offi cer whose area of jurisdiction is a Christian religious leaders point to this scenario. mosque. Accordingly, clergymen like Jembe-wa- In the nineties, the Archbishop of the Catholic Mumba of the East Africa Pentecostal Church Church in Kenya, the late Cardinal Otunga called argued that since Christians solved their marriage for “Christians to stand up and fi ght the spread and divorce disputes in their churches, Muslims of Islam in Africa” (Maina 2009, 91). While Bishop should do the same in their mosques. “We use our Kewasis of the Anglican Church of Kenya, Diocese churches to resolve marriage and divorce cases and of Eldoret reportedly urged Christians to intensify Muslims should follow suit” (Bocha 2009). evangelism in North Eastern and Coast provinces. He argued that spreading Christianity to the The underlying fear of Islam: strongholds of Islam through building of churches Islamophobia was the best method of meeting the challenge of Islamophobia is an irrational or perceived fear of Islam (Maina 2009, 92). The competition between Islam and Muslims which is predicated on past Christianity and Islam has therefore provided activities and incidents allegedly linked to some fodder for propaganda purposes, hence more Muslim extreme groups and/ or individuals either Islamophobia. in Kenya, neighbouring countries or other parts of The media also plays a tremendous role in the world. furthering Islamophobia through stereotypical Islamophobia thrives on propaganda and is and negative portrayal of Islam as an inherently perfected through the media, both print and intolerant, brutal, militant, irrational, fanatical, 54 Constitutional Review in Kenya and Kadhis Courts violent, extremist, terrorist and menacing religion because reports from other parts of the world (Maina 2003, 175; Kimball 1991, 3). The media where Islamic law is applied shows its eventual portrays Islam as a threat to Christianity, and hegemony. This is apparent in the Northern states stability and order in the world (Kimball 1991, 1). of Nigeria and the Sudan where Islamic law has This threat is subsumed under the growing fear been implemented. The opinion of some Christian of “Islamic fundamentalism”. Indeed the terms clergy is that Muslims in Kenya have embraced the “Islamic fundamentalism” and “fundamentalist” “Islamic Agenda” as demonstrated through their have become catch phrases to describe Islam and leaders’ call for secession and establishment of a Muslims (Maina 2009, 94; 2001, 290-291). The mere federal Islamic state in the Muslim predominant mention of the terms causes phobia in the minds areas of Coast and North Eastern provinces. Such of some Christians. The latent fear of Islam and calls tend to confi rm to the Christian leadership Muslims borders on paranoia for anything Islam that the “Islamic agenda” is real. A few examples and Muslim. are worth mentioning. In the wake of the Christian Islamophobia infl uenced the Christian position opposition to the kadhi courts, an unnamed Muslim on the kadhi courts. Some Christian leaders fear leader was reported to have said in Mombasa on 28th that the kadhi courts would propagate Islamic July 2009: "if they think we are few, we are ready to extremism. In a forum organised by Coast Interfaith break [a]way from the country (Kenyan Christians Council of Clerics, the Coast branch chairman of and Muslims clash over courts in constitution n.d). NCCK Bishop Pius Kagwe, was categorical that the In addition, the Secretary General of Supreme events of September 11th infl uenced the Christian Council of Kenya Muslims (SUPKEM), Adan Wachu position on the kadhi courts for fear that: “the has in the past threatened secession (federalism) courts would propagate extremism, leading to if Muslims are pushed to the wall, arguing that it anarchy” (Bocha 2009). is the only way Muslims would be in a position to tackle their problems (Okora 2003). “An Islamic Agenda for Kenya?” The phobia of establishing a Shariáh governed Islamophobia is also tied to a belief of an “Islamic Islamic federal state in North Eastern and Coast agenda.” Indeed, the propaganda about the provinces occupied the minds of some Christians “Islamic agenda” was rife among Christian clergy on the eve of the 2007 general elections. This during the debate on the proposed constitution. resulted from the leaked details of a surreptitious Muslims were seen to be furthering this agenda, and controversial Memorandum of Understanding hence the more reasons why Christians were (MoU) purportedly signed on 29th August, 2007, prepared to vote against the draft constitution. by Hon. Raila Odinga of the Orange Democratic They also made much of the fact that the people Movement (ODM) and by the National Muslim heading the constitutional reform agencies were Leaders Forum (NAMLEF), which represents Muslims: Issack Hassan of the Interim Independent and articulates the aspirations and concerns of Electoral Commission (IIEC); Abdikadir Mohamed Muslims in Kenya. Although this could have been of the Parliamentary Review Committee on the a campaign tool to woo the Muslim vote, the MoU Constitution; and the chairman of the Committee confi rmed the “Islamic agenda” in the minds of of Experts were all Muslims. some Christians. According to opinions that have gained currency among some Christian sources, this “agenda” Conclusion is based on the Islam in Africa Organization, The kadhi courts debate provided a theatre of a movement whose brain child was the Abuja contest between Christians and Muslims. This Declaration of 29th November 1989, whose aim contest which disregarded the merits and (or) is to make Africa the fi rst all-Islamic Continent demerits of the courts underlined the competition (Personal Communication with clergy 2010). that characterises the relations between Christians Regarding the kadhi courts, the opinion of and Muslims in Kenya. This competition is the some Christian clergy is that eff orts to entrench bedrock of Islamophobia and informed the Christian them in the constitution are part of a long term opposition to the kadhi courts in the proposed plan to impose Islamic law in order to lay the constitution. foundations for the Islamic Republic of Kenya. For The climax of the debate was the National some clergy, this is a cause of worry for Christians Referendum held on 4th August 2010. The clergy MAINA – Islamophobia among Christians 55 represented by the mainline churches under the Sermon notes 2010. Deliverance Church Zimmerman, Nairobi, March 7. NCCK, Evangelical and Pentecostal churches had , 2010. Deliverance Church Zimmerman, Nairobi, galvanised their followers with a plea to vote March 14 against the proposed constitution over the kadhi courts and other contentious issues. Whether Newspapers Bocha, G. 2009. No let-up in kadhi courts row. Daily Nation Christians heeded the appeal or not is a matter of (Nairobi), November 5. conjecture, in view of lack of empirical evidence to Lagho, W.K (Fr). 2010. Kadhi courts is an agenda for a puritan Muslim sect. The Star (Nairobi), February 5. support any such a claim. The status quo regarding The Friday Bulletin (Nairobi) October 30, 2009. Kadhis courts are the kadhi courts, however, stands, and will remain pivotal for justice, says Chief Justice, (Dhul Qaada 1430). a focus for Christian clergy as they engage their Maema, W. 2010. Abortion and kadhi courts pose big danger. Daily Nation (Nairobi), March 15. followers and Islam. Muindi, B. 2010. Drop kadhi courts, Clerics insist. Daily Nation (Nairobi), February 2. Web Sources References Anglican Journal. 2010. Kenyan churches protest Islamic Kimball, C. 1991. Striving together: A way forward in Christian- courts' clause in constitution, http://www.anglicanjournal. Muslim relations. New York: Orbis Books, Maryknoll com/.../kenyan-churches-protest-islamic-courts-clause- .Maina, N.K. 2001. Understanding Islamic fundamentalism. in-constitution/-Canada. (Accessed November 23, 2010.) African Ecclesial Review 43 (6): 279-295. Kenyatta-Shamte Letters 2010. E-mail communication from 2003. Christian-Muslim dialogue in Kenya. In Quests for Dr. Barrack Okoba, 23 March 2010. integrity in Africa, ed. Grace Wamue & Matthew M. Theuri, Kenya Christians and Muslims clash over courts in constitution, 171-184. Nairobi: Acton Publishers n.d. http://www.ekklesia.co.uk>uk News Brief>World Maina, K. 2009. The historical roots of confl icts between News – Cached Christians and Muslims in Kenya. In Interfaith dialogue: Kenya: Church leaders threaten to reject new law over kadhi Towards a culture of working together, ed. Frederic N. Mvumbi, courts, n.d. http://www.irsmm.org/node/2158. (Accessed 91-92. Nairobi: The Catholic University of Eastern Africa. November 23, 2010.) 2008. Confl ict, religion and politics in Africa: The rise of Hassan, A.I. 2002. The kadhi courts - setting the record political Islam in Kenya, a paper presented at St. Paul’s straight. Constitution of Kenya Review Commission. http:// University. Contested Space: Confl ict, Religion and Politics in www.commonlii.org/ke/other/KECKRC/2002/11.html. Africa, June 28 (Accessed November 23, 2010.) Personal communication with a Pastor of a Deliverance Church Okora, S. 2003. Kadhi courts: Muslims vow to fi ght back. http:// in Nairobi, Friday, December 11 2009. www.kbc.co.ke/story.asp?id=16508 Personal communications with clergy of Deliverance Church Seventh Day Adventist Church in Kenya statement on on diff erent dates, 2010 kadhi's court. http://www.coekenya.go.ke/index. Republic of Kenya, 2010. The proposed constitution of Kenya. php?option?=com_kunena: Published by the Attorney-General in accordance with Shiundu, A. 2010. Groups warn church leaders over kadhi section 34 of the Constitution of Kenya Review Act (No. 9 courts. http://www.allafrica.com/stories/200908240364. of 2008). Nairobi: Government Printer. html Constitutional Review in Kenya and Kadhis Courts

Muslim Responses to Kadhis Courts as part of Kenya’s Constitutional Review

Abdulkader Tayob

he debate over Kadhis Courts in the the more than 40 interviews conducted, this article Tconstitutional review process was led by some presents an analysis of four individuals from Christian leaders who were vociferous in their diverse backgrounds. Eventually only interviews condemnation of the special recognition given to from 2003 were chosen, but they were interpreted Islam and Muslims in both the old and the draft in the light of the 2010 interviews as well. They proposals. Not all Christian leaders and certainly do not represent the views of all Kenyan Muslims, not all Christians were in agreement with these but bring up common issues and present unique objections. However, this Christian response was perspectives. The analysis balances between the loud enough to suppress the silent majority until common and the idiosyncratic dimensions. I begin the referendum in 2010. More signifi cantly, it also with the presentation of two individuals who may suppressed the various and varying reactions of be characterized as religious activists in Nairobi Muslims to the Kadhis’ courts in general, and the and closely connected with the central mosque in review process that touched on the Kadhis court the city. They are followed by the perspectives of in particular. In public forums, Muslims often an attorney and then the Chief Kadhi at the time, appeared only to react to the Christian objections, Qadi Hamed. and did not seem to have their own perspective and From these interviews, I argue that the Kadhis view of the Kadhis courts, their history, present Courts dispute should be located within the broader and future. history of Muslims in postcolonial Kenya. Muslim This article argues that there were a number responses should not be limited to their reactions of Muslim perspectives to the Kadhis Courts. to Christians, but to their own diverse attempts They were expressed in various manners to the at representing Muslims in national politics and Kenya Constitutional Review Commission during in the public sphere. These positions have varied its national consultation, and subsequently considerably from the foundation of independent incorporated in the fi rst draft proposal. Muslims Kenya when secessionist movements on the coast wanted an appeals process within the Kadhis Courts and the north-east rejected incorporation in a before cases were taken to higher national courts; unifi ed Kenya. These were not Islamic religious they wanted more training for Kadhis (judges) movements, but they may be seen as representing and some also wanted the jurisdiction of the the attitudes and interests of Swahili and Somali Kadhis extended to include small claims involving Muslims respectively (Mazrui 1993; Oded 2000). The fi nancial transactions. A few Muslims wanted the Muslims have since come to be part of an imagined jurisdiction of Kadhis courts to include criminal nation, but with an uncertain membership matters (Hassan 2002). This article presents the according to most commentators. views of a sample of Muslims who were interviewed One of the fi rst observations made by many in 2003 and 2010, on their personal involvement scholars is that Muslims are marginalized in the body in the Kadhis’ courts, and their views on the role, politic of Kenya from diff erent perspectives. Alamin meaning and future of Kadhis courts in Kenya. Of Mazrui’s provocative assessment of Moi’s rule TAYOB – Muslim Responses 57 argued that he employed an idiosyncratic Christian accommodation continued to dominate Muslim symbolism to inscribe the nation and support his responses to the state. Haynes has examined authoritarian rule. In this national imagination, the extent of the threat to Kenya from religious according to Mazrui, religious minorities could not militancy within Islamic groups in the region. be accommodated (Mazrui 1993). From a diff erent The focus of his study turned attention to the perspective, Kresse has confi rmed this perception tragic attacks on U.S. Embassies in Daressalaam of Muslims suff ering marginalization (Kresse 2009). and Nairobi in 1998, and against Israeli targets Interestingly, Kresse relates the threat of former in Mombasa in 2002. As elsewhere, these events President Moi made to Muslims in the early 1980s have raised questions about the extent of Kenyan to eliminate the Kadhis courts. support for militancy. Haynes found limited Others have agreed with this marginal position support for militancy among Kenyan Muslims. It of Muslims, but they have pointed how some seems that the studies by Oded and Haynes pointed Muslims benefi ted from the post-colonial state, or out that this greater assertiveness or militancy did at least took advantage of authoritarianism where not represent a shift in Muslim politics or public possible. The dominant Christian symbolism did engagement in the region in general, or in Kenya not completely emasculate Kenyan Muslims. in particular. Constantin and Haynes have documented a Muslim views on Kadhis courts become more common pattern of Muslim accommodation to salient when placed within this longer history of post-colonial East African states. They argued that public engagement with the state and public life. the various national Muslim organizations worked The Kadhis Courts issue did not by itself result in a with ruling governments and parties, irrespective new political culture for Kenyans. Muslims hardly of their political philosophies and ideologies. expected negative response to Kadhis Courts Following the example of the national leaders, in the fi rst decade of the twenty-fi rst century. however, Muslim leaders were also partial to their Nevertheless, the interviews presented here suggest own groups and constituencies (Constantin 1988, a search for an alternative to both the politics of 1993, 1995; Haynes 2006). The national Muslim accommodation and the politics of resistance. Both organization in Kenya leading this political these options are refl ected in the interviews, but accommodation was the Supreme Council of Kenya another path is being developed in a state in which Muslims (SUPKEM) which was founded in 19731, and Muslims are marginalized, dominated by Christian offi cially recognized by the Kenyan government symbolism and a weak state. as the representative of Kenyan Muslims in 1979 (Oded 2000). From marginalization to civic Oded and Haynes have confi rmed the resilience engagement of this approach to politics even after 1992 when I begin with Abdul Hamid Slatch and Abdulrahman multiparty politics was inaugurated (Haynes 2006, Wandati2, who were leading members of activist 2005; Oded 2000, 1996). Both have studied more organizations in Kenya. At the time, they were recent developments since the 1990s when a global members of the Muslim Consultative Council revival of Islam impacted more noticeably on founded in 1997 to represent Muslims in Kenyan Kenyan Muslims. An assertive approach to politics public life in general, and in the constitutional challenged the politics of accommodation led by process in particular. Slatch was born in Nairobi SUPKEM and other national Muslim leaders. Oded in 1942, and studied Business and Management focussed on the rise and fall of the Islamic Party Studies in Kenya, and Islamic Studies in Kenya and of Kenya, tracing its inspiration to the infl uence of Malaysia. He was one of the founders of the Young religious scholars trained outside Kenya. The latter Muslim Association fi rst registered in 1964.3 He was off ered a more antagonistic approach to politics to an executive member of central mosque in Nairobi. Kenyan Muslims who felt deeply aggrieved of their Wandati (born 1961) hails from Western Kenya, marginalization. Refused registration by the Moi and completed high school in Uganda. He followed government, the supporters of the Islamic Party these studies in Pakistan (Islamabad), Portugal and took their frustrations to the streets of Mombasa. the USA as Democracy Scholar at Les Aspin Centre There they were eventually quashed by the state. for Government in Washington D.C. Both Slatch The memory of the IPK looms large in Kenyan and Wandati hold positions in various Islamic and politics, but Oded found that the older model of Kenyan public bodies. 58 Constitutional Review in Kenya and Kadhis Courts

Slatch and Wandati were deeply involved in saw government activity closely related to Christian the constitutional review process from 1996. They symbols. At the same time, it shows how Muslims recognized the review process as an opportunity were struggling to fi nd a way of negotiating their for Muslims to escape their marginalization in political engagement with it. Kenya since independence. They believed that With this understanding of politics in Kenya, Muslims should accept some of the responsibility Wandati off ered his refl ections on the Kenyan for marginalization by refusing secular education state. He suggested that, given the strong religious and failing to acquire the necessary skills for a conviction of Kenyans, a secular state was not an modern state. But the situation at the end of the 20th option. Kenya should rather defi ne itself as an century was diff erent, and Muslims had no excuse ecumenical state, a concept fi rst proposed by the to (fail to?) assert themselves this time around. internationally renowned Kenyan scholar, Ali Slatch and Wandati, in fact, believed that Mazrui. An ecumenical state, according to Wandati, they were the fi rst religious activists to approach was one wherein “benefi ts that accrue from Anglican and later other Christian leaders to form the state … should not be based on the fact that a civil society group for a new constitution. They these individuals, or this community of citizens developed their civic engagement that later came are subscribed to a particular religious order.” to be known as the Ufungamano initiative and An ecumenical state “recognizes” the particular recognized by state and society. From 1996, they worship in which religious groups engage in, believed that they were making a constructive and then “goes out of its way to facilitate all its contribution to the future constitution of the infrastructure” so “that all the diff erent religious country. In 2003, however, Slatch and Wandati groupings within the country … enjoy … religious were devastated when their Christian comrades worship or practice to the fullest extent.” Wandati rejected Kadhis courts in the new constitution. was adamant that the Kadhis courts could not be With other Muslims, they then withdrew from the removed from the new constitution. Ufungamano, but kept a vigilant presence in civic Interestingly, Wandati did not regard the and public life. They co-operated with Christian service off ered by Kadhis courts as part of the groups, but witnessed the rise of a strong Christian religious needs of Kenyan Muslims: “we do not presence in Kenyan politics. In search for votes regard … the Kadhis court in Kenya as a religious and support, they saw how politicians turned even institution. We regard it as part of the judicial …”. government activity into Christian gatherings as Wandati was aware of Kadhis performing a range the following quote from Slatch illustrates: of religious activities, in addition to their judicial duties. He thought, however, that such functions … last week Tuesday there was breakfast should henceforth be performed by a new offi ce prayers meeting for the city council, the within the Muslim community: councillors, organized by the mayor. Again, it was this Christian Leadership Development Now all the things the Muslims are toying initiative … Fortunately I was invited to with, is that we then need to have a mufti attend, but unfortunately I told them I could [jurisprudent in Shariʿa]. And if they do not go. Because we discussed, me and Wandati have a mufti then what will be his role, we … he said ‘No, this is a political process, have never experienced this. I know that in you [should] go!’ [But I said] ‘No, it’s not a Uganda they do have a mufti. political process, it is a prayer meeting’. How do you expect me to stand and you know sing Summing up his thinking, Wandate went on:

hymns with them, and … the program said That’s my understanding … the mufti will be fi rst reading from the Old Testament, second a people’s leader, if we do have a mufti here, reading from the New Testament, singing of he will that one who we regard as the Shaykh hymns, I will be very uncomfortable… So I [an elder or recognized religious leader]. decided not to go. So I received a message from the deputy who happens to be a Muslim, The ecumenical state of Kenya would support all they said, oh there has been some kind of talk religious activities, but Wandati also revealed [on political matters]. a distinct understanding of the Kadhis courts. This lengthy quote relates how Slatch and Wandati They were clearly part of the judiciary, while TAYOB – Muslim Responses 59

Kenyan Muslims needed a diff erent religious possibility: “Iran, maybe, maybe, but right now representation for the Kenyan nation and state. I have not really focused my attention on living, His last remark seemed to lead in the direction of living outside this country.” When asked about a the Supreme Council of Kenya Muslims. Wandati secular option, he responded that both Christian did not discuss the umbrella organization, but here and Muslims would not support such an idea. seemed to suggest that an alternative organization Secularists in both communities would be isolated, be founded to engage the state and represent even though there were many such individuals Muslims in Kenya. in Kenya. He then added that the secular option In summary, we see Slatch and Wandati diving was inevitable in Kenya. He was critical of the into civil activism for a new constitution that secularism supported by Christian leaders, though. would end the marginalization of Muslims in It was a ruse to oppose the Muslims: “Christians the country. However, they were shocked by how are pushing for a secular state just to counter the the political space was overtaken by Christian Muslim position as far as the Kadhis courts are leaders, with the collusion of Christian political concerned.” What they really wanted was contained leaders. They off ered the ecumenical state as an in a document that the Kenya Church, a coalition alternative to both the secular and the Christian of Christian Evangelical Churches opposed to dominated state. Equally importantly, the idea the Kadhis courts, issued in 2002. This document of an ecumenical state was also an opportunity declared that the Kenya Church wanted to “ensure to rethink established Muslim approaches to the that that the fi nal Constitution not only refl ects the state. And one of these was a redefi nition of the wishes of Kenyans, but also the eternal purposes Kadhis courts as part of the judiciary, excised from of God” (The Kenya Church 2002). In light of these its religious function. developments, Khamis believed that a secular state I turn now to Muhammad Khamis4 who studied was the best option for Muslims: “the reality is that Islamic law in the Sudan, and then completed his we are better off as compared to living in a strictly legal training in Nairobi. He has a successful legal Christian state - we are better off living in a secular practice in Nairobi, and occasionally represents state than living in a Christian state as such.” clients at Kadhis courts. Khamis’s interview covered Khamis believed that Kadhis courts should be a range of aspects, including some of those raised reformed. There were two areas of reform required. by Slatch and Wandati. He discussed the issue of Firstly, the “structures and the jurisdiction of the the Kenyan state as well, but also refl ected on the Kadhis courts” needed to be enhanced. On one level, reforms required of the Kadhis Courts. With regard this was related to the training and appointment of to the latter, he believed that lawyers and attorneys the Kadhis which the Kenya Constitutional Review should take some of the responsibility for how the Commission heard in general: “on qualifi cations of courts function: “we are really heavily to blame for the Kadhis, and they [Muslims in Kenya] think that the state that the Kadhis courts fi nd themselves you know, the current crop that we have is not really in today.” In light of the improved function of up to date”. This sentiment came up frequently in a the courts, Khamis also turned to the distinction number of my interviews as well, and was in some between the religious and legal function of the respects supported by Kadhis. Khamis himself Kadhis courts. Understandably, given his legal specifi ed his remark by mentioning the need for background, he did not propose the appointment training in reforms in Islamic law. I particularly of a Mufti to take over national religious decisions asked him if the issue of human rights was relevant for Muslims but pointed to a concrete problem in the discussion on Kadhis courts. His responses faced by Kenyans. may be divided into two. Firstly, he argued that Khamis was not in favour of an ecumenical state, the right to go to the Kadhis was guaranteed for but veered towards support for a secular state under Muslims only. Non-Muslims were never going to be the particular circumstances facing Kenya. He began impelled to live under Shariʿa: with a likely response expected of a Muslim that he would like to live in an Islamic state in Kenya. Upon The law applicable as I said in the Kadhis probing the question in the interview, he revealed court would be Islamic law, and as a Muslim some interesting refl ections and reversed his fi rst you are supposed to … to be happy that the response. He could not imagine living in an Islamic law has been applied … but if you are not a state such as Saudi Arabia. Iran was more a likely Muslim and law is applied onto you, you 60 Constitutional Review in Kenya and Kadhis Courts

could talk about infringement of your right … that the latter could not easily be extricated from in my in my entire practice I have not come Islamic practices in general. across a case where a party has claimed that The fi nal issue raised by Khamis related precisely their rights are being infringed in the Kadhis to the possible judicial limitation of Kadhis courts court, just because they don’t profess the raised by Wandati. As mentioned earlier, Khamis Muslim religion. expanded on the recommendations heard by

the Kenya Constitutional Review Commission. Khamis seemed to take the view that Islamic These recommendations seem to bring up the law was a matter of horizontal civil relations, in entanglement of religious and judicial matters, which human rights did not apply. The state was some of which needed to be separated, according to not imposing Islamic law on its citizens. Muslim Khamis. Muslims of Kenya recommended that the citizens were turning to the Kadhis to seek redress appointment of Kadhis should be clarifi ed and the against other Muslims who were depriving them of requirement for a Kadhi, particularly Chief Kadhi, their rights in terms of Islamic law. be upgraded. At the time, Kadhis were appointed But Khamis did explore a second dimension of rights by a Judicial Services Commission which seemed in terms of the interpretation of Islamic law. Here an anomaly to Khamis. He framed this situation he was clear that Muslims in general and Kadhis in in a rhetorical question: “Muslims as I said have particular needed to think about the application held the Chief Kadhi to be a spiritual leader at one of Islamic law in modern contexts. Since social time and a judicial offi cer at another time, so if he contexts had changed, some of the rules in Islamic is going to be a spiritual leader, what role should law needed to change as well: “I think there ought the government have in appointing that spiritual to be development of … law, Islamic law, in the leader?” This is an important question that can be sense that … we are living in a diff erent, completely equally directed at Muslims. Like Wandati, Khamis diff erent world from the world that the prophet believed that some of the functions performed by lived in”. Specifi cally, he mentioned two examples the current Chief Kadhi, like the confi rmation of in this regard. The fi rst was the law of evidence in the sighting of the moon for Kenyans at the end of which, according to certain issues in Islamic law, Ramadan, caused confusion. Perhaps it was even for “the evidence of one man, you have to have bringing the position into disrepute. The fi rst step the evidence of two women.” In Kadhis courts in toward a solution seemed to lie in recognizing that Kenya, however, Khamis quickly reminded me that judicial and spiritual matters had to be divided. the law of procedure followed on this issue did not In summary, then, Khamis revealed the disadvantage women: views of a Muslim legal professional. He too was … the present system according to the grappling with the viability of an Islamic state, Kadhis Act, it, it clearly states that there and tended to prefer a secular state in the face should be no discrimination on the evidence, of an ascendant Christian Church. Kadhis’ courts the evidence is not based on the number of served only Muslims, but perhaps Khamis was people that give the evidence… it basically also alluding to changing social relations within means that the evidence of a man is the same Muslim families. Moreover, according to Khamis, as the evidence of the woman. the development of Kenya society, and the impact of modernization as evidence in the sighting of On this point, at least, it seems that the Shariʿa as the moon, called for a diff erentiated approach followed in Kenya had in fact already developed within the public sector. for Kenyan Muslims. On the second issue, Khamis I turn now to Chief Kadhi Hamad whom I met in referred to the social discrimination faced by some Mombasa in 2003.5 Kadhi Hamad had recently taken Kenyan Muslim women. He mentioned a custom in on the position, after having served as a Kadhi for the North East where women were not supposed to about 10 years. He conducted most of his studies in sit on chairs. He accepted that this was a cultural Kenya, with his father Muhammad Qasim who was practice restricted to this region, but admitted that Kenya’s Chief Kadhi from 1963 to 1968, and other it could be an interpretation “of a certain verse of scholars. He was then sent to Iraq to further his the Quran which says that men, for example, are studies, but studied physics there instead because superior to women.” This second example was not he found the college teaching Islamic sciences to specifi cally related to Kadhis courts, but suggests be attended mainly by dropouts. He had to leave TAYOB – Muslim Responses 61

Iraq because of the outbreak of the Iran-Iraq war, of children also … the father might be having and then turned to Saudi Arabia where he studied these rights, the mother might be having science education. He fi nally completed a Masters these rights, but the child also has rights, has degree in Islamic law in Nigeria, at the Ahmadu Bello rights also. Will the child really be better off University in Zaria. in the hands of the father than in the hands The Kadhi refl ected mostly on the required of the mother? reforms in the Kadhis courts, revealing both the strengths and weaknesses of the existing system. Clearly, Kadhi Hamad’s views are in line with major These reforms also turned to the relationship modern reformist scholars of Islamic laws who between Islamic law and Kenya’s national laws. favour the adaptation and even development of He then turned to the public perception of Kadhis rulings in contemporary society. courts, divided between Christian opposition and The Kadhi refl ected also on the need for a better growing Muslim support. appointments system. However, he did not see Kadhi Hamad opened immediately with his the need for Muslims to sit on the Judicial Service desire to develop rulings within Islamic law Commission, as many other Muslims had asked. He that would support victims of the AIDS virus. He thought that interview process for new Kadhis was commented on cultural practices among Muslims in far too simplistic, and did not provide a sound basis Kenya that made women and children particularly for evaluating the qualifi cation of a Kadhi. He also vulnerable. did not see the need for further legal training of the Kadhis. However, Kadhis courts were not following AIDS is a very serious problem among the procedure in a systematic and consistent manner Muslims. And what pains me a lot is that which, according to Kadhi Hamad, often led to many of the victims are innocent. grave injustices. The following quotes illustrate And what pains me even more is that Kadhi Hamad’s train of thought on training in because of… traditions that we have, of procedure, adopting procedure from Kenyan law usually pointing fi ngers at the women … and serving the ends of justice: mostly it is the women who are accused.

… I believe they should be trained in the The usual response to the HIV and AIDS pandemic civil procedure. Because the civil procedure is to focus on sexual promiscuity in society. In the is the tool that is used now to, to fi le cases, Kadhis’s words, Muslims “still insist that it is zinaa, evidence… and most of the things agreed zinaa, zinaa [sexual promiscuity] that causes it.” In totally with … Islamic law response to this situation, he would like to train Islamic law might not be talking a lot about other Kadhis to be attentive to the harm caused those things, but we as Muslim scholars, we to the innocent. For Kadhi Hamad, this was not a can also come up with those things which complicated matter within Islamic law. The legal agree … with Islamic law. tradition of injury could be expanded quite easily … the Kadhi himself also should be, should to apply to cases of AIDS infection. be well trained so that something should not There were also cases in the practice of Islamic happen that is unjustifi ed according to the law where the tradition was silent, and which also procedure, and it ends up with somebody needed to be changed. Thus, Kadhi Hamad appealed losing his rights, or something. to his colleagues for taking into consideration the rights of children in cases. The following quote From an Islamic legal point of view, judicial makes this very clear: procedure was open to development and adaptation. … a Kadhi in Lamu made the ruling of such In many respects, then, the Kadhi was supportive a nature, where he allowed the woman to of measures to improve the system by adopting give away her infant child, in exchange for a values and measures in modern legal thought, and house. So things which are there sometimes incorporating them in the practices of the Kadhis in … books, but these books have been written courts. or the scholars who have been commenting The Kadhi, however, did not see the eventual on such issues lived … a hundred years [ago, amalgamation of the Kadhis courts into the judicial when] there were no discretions about rights system of Kenya. This can be seen on his views on 62 Constitutional Review in Kenya and Kadhis Courts one particular recommendation proposed to the on a case where Kadhis were asked to judge case in Kenya Constitutional Review and that received a lot Kenyan law, he referred particularly to its impact of attention. I am referring to an appeals process on Muslims: “And the Muslims said that they had within the Kadhis courts, which has been eventually no confi dence with these Kadhis anymore, because left out of the fi nal constitution. Kadhi Hamad was they were hearing cases that were un-Islamic so concerned that the lack of an appeal process did it means that they believed in these other laws not allow judicial pluralism to work effi ciently. also to be applicable even to the Muslims.” This Litigants who lost their cases in Kadhis courts were comment raises an important question of how forced take their appeals to a court where the full Kenyan Muslims accept national laws passed by the impact and implications of Islamic law were not parliament, if these have not been adjudicated by considered. Moreover, the Kadhis courts were not Kadhis courts. In this short quote, it would appear able to develop and address problems: that the application of personal law in Kadhis courts might be creating a particular attitude towards The people have themselves agreed that national laws. Whilst focussing on personal law, they are Muslims and they want to be Kadhis courts were perhaps alienating Muslims judged Islamically, then there should be no from other laws. allowance to go and be heard by another law This last point is clearly related to emerging just because he lost the case in the fi rst. He religious identities raised by Khamis, Slatch and should be heard again by another Islamic Wandati. Turning to the public perception of the court that will see to it whether the Kadhi Kadhis courts, the Chief Kadhi refl ected on the really did a mistake. It could be that he made polarization between Muslims and Christians in the a mistake, it could be that he did not consider public sphere. According to Kadhi Hamad, Christians part of the evidence that was given, it could were afraid of the growing Islamic presence in be that he was biased, it could be that he was Kenya: “I visited Nairobi twenty years ago, you corrupt, you know there are so many things could hardly fi nd a woman in Hijab, but now it’s the that could happen. opposite.” This presence was matching a general

Islamic revival globally, but it was supported by This was a hypothetical example, but seems to the desire of Kenyans who “fi nd Islam to be more reveal some of the problems that the Chief Kadhi agreeable to their own traditions and customs.” recognized in the application of Islamic and state Since Christians were concerned about conversion law. It also perhaps revealed the challenges facing as much as Muslims, the Kadhi argued, they were Kadhis courts. Kadhi Hamad, for one, believed using the Kadhis courts to undermine the national that the problems could be addressed within the profi le of Islam. At the same time, Muslims were system. becoming sensitive to any encroachment to the This last point was also related to his view on application of Muslim personal law. He specifi cally the interface between the Islamic court as applied referred to demonstrations in Mombasa when a in the Kadhis courts, and Kenyan national law. higher court reversed a decision in a Kadhis court The Kadhi was clearly supportive and open to on a custody case. the impact of new ethical directions on Islamic Kadhi Hamad then presented a perspective on law. The example of children’s rights given above Kadhis courts that seemed to go in two directions. makes this very clear. However, he was clear that On the one hand, reforms in Kadhis courts were the distinctiveness of Kadhis courts from other vital to take into considerations changing mores courts should be maintained: and values. These could be developed within Islamic We believe that if somebody is appointed as law, or they could be drawn from general ethical and a Kadhi he should only be [a Kadhi] of Islam. legal considerations. There were also other more You know it shouldn’t be that he wears one technical areas that needed attention in the Kadhis hat at one time then wears another hat at courts. On the other hand, the Kadhi favoured a another time. clear separation of the systems of Kadhis courts and national courts. Apart from preserving the He was particular concerned that Muslims coming integrity of Kadhis courts, Kadhi Hamad pointed to to the court should always make a distinction how this separation matched polarization between between Islamic and national laws. Commenting Muslims and Christian within public life. TAYOB – Muslim Responses 63

Conclusion considerable discussion on the reforms necessary The interviews illustrate a range of discussion within Kadhis courts to maintain their ability to among Muslims on Kenyan politics and Kadhis address the needs of litigants. The courts were courts. It is not possible to generalize from these clearly popular in their ability to deliver decisions remarks to Kenyan Muslims in general. However, the and justice, but there were concerns on procedures interviews suggest some aspects of Kadhis courts and interpretations that did not necessarily lead that have been suppressed in antagonistic posturing to desirable results. Khamis and Kadhi Hamad between Muslim and Christian representatives. revealed two important but diff erent dimensions The interviews very clearly refl ect some Kenyan of these reforms. Khamis was concerned about Muslim positions on the general nature of the state, the judicial operations of the courts, while Kadhi the place of Muslims therein and the particular role Hamad refl ected on the extensive reforms needed and function of the Kadhis court. There is a clear within Islamic legal thinking to address new perception of the marginalization of Muslims from challenges within society. The public debate had Kenyan society. This marginalization comes from clearly suppressed both dimensions of reforms two sources. Firstly, Muslims believe that they within Kadhis courts that had been brought to the had not embraced modern education and allowed attention of the review commissions. Discussions themselves to be excluded from the fruits of state on reforms were pushed to the background as power and the capitalist economy. And secondly, Muslims and Christians took antagonistic positions the Kenyan state was dominated by politicians towards each other. who were using Christian symbols to support their Closely related to the public antagonism from policies and their electoral base. The deliberation some Christian leaders was an indication that over ecumenical or secular state options was a Muslims regarded the public sphere as a site of response to this status quo. In a positive sense, the competition with Christians. This seems evidently discussion moved away from antagonistic positions the case with Christians as well. In spite of the between Muslims and Christians. healthy signs for diff erent political options, the Closely related to this political discussion was public sphere was characterized by competition a realization that the Kadhis courts needed a as far as religious activists were concerned. As diff erent justifi cation than before. The agreement represented by Slatch and Wandati, Muslims and between the new Kenyan state and the Sultan of Christians made a signifi cant contribution to Zanzibar in 1963 was a distant memory. The Kadhis pressure the Moi government in the 1990s to review courts were there because of Muslim citizens in the the constitution. However, given the desire to infuse Kenyan state. More importantly, the Kadhis courts the public space with its own symbols, Christians were addressing the judicial needs of a section of could not cooperate with Muslims who were not Kenyan citizens. This transformed perception of prepared to compromise on Kadhis courts. Similarly, Kadhis courts was necessary to justify them in a Kadhi Hamad revealed some of the spirit with which public discussion. More importantly, they refl ected Muslims see the revival of Islamic practices in Kenya. developments within Kenyan Muslim societies on With a deep sense of satisfaction, Muslim symbols how to represent themselves in Kenyan public life. were read in a competitive spirit. Whilst Muslims The Kadhi were recognized as state functionaries and Christians may continue to make a constructive who could not represent the Muslims as part of the contribution to public life, their eff orts may also civic sphere. be limited by their desire to see their respective Interestingly, the interviews also included symbols dominate the public sphere. 64 Constitutional Review in Kenya and Kadhis Courts

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