Towards a new constitutional dispensation in Kenya JULY 2009 Issue NO. 7.09 Much ado about Kadhis’ Courts * Evolution of contentious issues * Are we a failed State? * The Mau forest nightmare ABOUT THE MEDIA DEVELOPMENT ASSOCIATION he Media Development issues and their link to journalists; Association (MDA) is journalism; a n a l u m n u s o f oReinforcing the values T o graduates of University of Carrying out research of peace, democracy Nairobi's School of Journalism. on issues relevant to and freedom in society It was formed in 1994 to journalism; through the press; provide journalists with a o o forum for exchanging ideas on Organizing tours and Upholding the ideals of how best to safeguard the excursions in and a free press. outside Kenya to widen integrity of their profession journalists' knowledge Activities of MDA include: and to facilitate the training of of their operating pAdvocacy and lobbying; media practitioners who play environment; an increasingly crucial role in pPromoting journalism shaping the destiny of the oPublishing magazines exchange programmes; country. for journalists, and any other publications that pHosting dinner talks; The MDA is dedicated to are relevant to the helping communicators come promotion of quality pLobbying for support of to terms with the issues that journalism; journalism training affect their profession and to institutions; respond to them as a group. oEncouraging and assist The members believe in their m e m b e r s t o j o i n pInitiating the setting up ability to positively influence journalists' associations of a Media Centre the conduct and thinking of l o c a l l y a n d w h i c h w i l l h o s t their colleagues. internationally; r e s e a r c h a n d recreation facilities; The MDA aims at: oCreating a forum oBringing together through which visiting pW o r k i n g f o r t h e journalists to entrench journalists from other development of a news friendship and increase countries can interact network; professional cohesion; with their Kenyan Providing a forum counterparts; pProviding incentives in t h r o u g h w h i c h terms of awards to journalists can discuss oHelping to promote outstanding journalists the problems they face journalism in rural areas a n d j o u r n a l i s m in their world and find particularly through the students; ways of solving them; training of rural-based correspondents; pInviting renowned oOrganising exhibitions journalists and other in journalism-related oAdvancing the training speakers to Kenya; a r e a s s u c h a s o f j o u r n a l i s t s i n photography; specialised areas of pNetworking and liking communication; u p w i t h o t h e r oOrganising seminars, j o u r n a l i s t s ' workshops, lectures oCreate a resource organisations locally and other activities to centre for use by and abroad. discuss development KatibaNews JULY 2009 This newsletter is meant to: JULY 2009 1 Give critical analysis of democracy and governance issues in Kenya. 2 Inform and educate readers on the ongoing Constitution Review Process. KatibaNews is published by Media Development Association (MDA). This publication has been made possible with the kind support of the Konrad Adenauer Stiftung (KAS) in Kenya. MDA is not-for-profit organisation registered under the Societies Act. Managing Editor Stephen Ndegwa Associate Editors Susan Kasera Patrick Mwangi Henry Owuor Contents Office Assistant Monica Muthoni Photography Nation Media Group 2. Much ado about Kadhis’ Courts World Wide Web Art Direction & Design Khafre Graphics 5. Evolution of contentious issues in the Constitution review process KatibaNews is published monthly and is distributed free to all media houses, civil society organisations, and the public. All are welcomed to send their observations on the constitutional review 9. Going down the drain process to be the Editorial Board. Are we a failed State? Views expressed in this newsletter do not necessarily reflect those of MDA, KAS or partners. Reprinting of materials permitted provided the source is acknowledged. All Correspondence to: 13. The Mau forest nightmare The Editor Katiba News P.O. Box 64254-00620 Tel. 2712309 Nairobi, Kenya Email: [email protected] 1 KatibaNews JULY 2009 Kadhi Courts KMaudchh iasd’ oC aobuorutst The issue of Kadhis' Courts has generated heated debate over the last few months, but of course emerges from the past constitutional review process. The current debate is about whether or not these courts should be or should not be entrenched in the new constitution, as Kenyans seek to write a new one for the second time. The grandstanding witnessed by some Christian and Muslim groups in favour of either has been seen before: in Bomas (the National Constitutional Conference), which run from 2003-2004 and later on, during the 2005 pre-referendum debates on the Proposed New Constitution. Our writer tries to analyse what the heat is all about. By Albert Irungu ne of the expressions The controversy of personal liberty is Before this, the Kadhis' Courts have Othe ability to practice never been a problem as such. or worship a religion However, after the commencement or God of one's of the many attempts to review the choice. Everyone must also have the country's constitution, the Kadhi's freedom to observe and to practice courts have repeatedly come into their faith without fear of, or the limelight. The fervour against interference from others. It is in this anything Islamic in the context of the context that the issue of Kadhis Court Kenyan constitution has reached an has risen. all time high in a post September 11 World. The arguments brought Before the agitation for a new forward by all sides are; the draft Constitution and the creation of the Constitution gives precedence to draft Constitution, the Kadhis courts Islam above all other religions by had never been in the limelight. But referring to it and the Kadhi's Courts. Chief Kadhi Kassim Hamad after the formulation of various Furthermore, Kenya being a secular drafts, pressure has been mounting state should have no religion given on the political class to deliver one reference in the draft Constitution. District and Appeal Court levels. document that will satisfy every In addition, the Kadhis Courts can citizen's needs. However, there are easily be legislated against by Christian leaders and the MPs who contentious issues that have to be Parliament if they are not support them have come out addressed before this can become a entrenched in the draft Constitution. strongly rejecting these proposals. reality. In addition, the Kadhi's Courts have On one side, the opponents of been entrenched in the current these proposals, majority of them The Committee of Experts on Constitution since independence Christians, argue that Kenya is a Constitutional Review in accordance and they have caused no harm. secular state. Thus, the elevation of to Section 23 (b) and 30 (1)(b) of the o n e r e l i g i o u s g r o u p o r Constitution of Kenya Review Act The Kadhi's Court debate stems from denomination will bring inequality. 2008 has been engaged to look into proposals in the draft Constitution The elevation of Kadhi's Courts the contentious issues in the draft to extend the scope of these courts they argue will bring about full- Constitution, top of which has been from dealing with civil matters only fledged Sharia Law courts and Kadhis Courts. This has mainly pitted to include criminal litigation. The establish a parallel court system for Christian religious leaders and draft Constitution provides for Kenyan Muslims. Things have not Muslim clerics. expansion of these courts from continued page 3 2 KatibaNews JULY 2009 Kadhi Courts from page 2 been made easy especially with the consider that for one to be minimize or resolve conflict of Muslim phobia that is being appointed as a Kadhi, he or she must laws, which would be unavoidable experienced worldwide. have a degree in Islamic Law from a under such a dual system. recognised university, yet no Kenyan The fight has been taken into the university offers degree courses in Taking into consideration that Islam media with Evangelical Fellowship of Islamic Law. is a way for life to those who Kenya, an organization vehemently profess it, the objectives of these against these proposals, running paid Secondly, it is proposed in the provisions are to broaden the advertisements in the Nation one of provisions that the jurisdiction of the powers and structures of the Kadhis the local dailies arguing that the draft Kadhis courts be extended to cover Courts. Then, nothing will stop a constitution granted special civil and commercial law in cases Muslim from demanding that privileges to Muslims by creating two where all the parties profess the criminal disputes among them be parallel judicial systems; one for Muslim faith. There is no reason why dealt with in accordance with Muslims and the other "for everyone the State, quintessentially all Islamic Law. else". The advertisement asserts that taxpayers should incur the expense this move would legitimize Sharia of running Kadhis courts in matters Jurisdiction of Kadhis courts Law in an otherwise secular state. It of civil and commercial law. These Muslims in Kenya are a religious also took issue with the elevation of are not matters of personal law; minority of between 15 to 33 the Chief Kadhi, to the same status, hence, there is nothing offensive or percent of the total population.