WORKING DOCUMENT FOR THE CONSTITUTION OF KENYA REVIEW COMMISSION ON THE KADHI'S COURTS, CHIEF KADHI AND KADHIS By Ahmed Issack Hassan, Commissioner, CKRC. ([email protected]) (www.ahmedissackhassan.com) The Commission’s Mandate The Constitution of Kenya Review Act provides that the objects and purposes of the constitutional review is to secure provisions therein, inter alia respecting ethnic and regional diversity including the right of communities to organize and participate in cultural activities and the expression of their identities and establishing a democratic government that respects human rights - (Section 3(e) & (b). Further, under Section 5(b) of the Act, the organs of the review shall ensure that the review process accommodates the diversity of the Kenyan people including socio-economic status, race, ethnicity, gender, religious faith, age, occupation, learning, persons with disability and the disadvantaged. The Commission is also mandated to seek views on and make recommendation to the judiciary and the legal systems of Kenya. Chapter 5 of the Constitution of Kenya guarantees the protection of the fundamental rights and freedoms of every person. Section 78 guarantees the freedom of thought, religion and conscience and Section 82 prohibits discrimination of any person on account of inter alia his or her religious beliefs. The Current Status of the Kadhi’s Courts, Chief Kadhi and Kadhis The Kadhi's Court, Chief Kadhi and Kadhis are Constitutional offices established under Section 66 of the Constitution of Kenya. A Kadhi is strictly speaking a judicial officer, judge or magistrate presiding over an Islamic Court, called the Kadhi's Court, where Islamic law or Sharia is applied and subject to the jurisdiction of the Court all the parties who appear before the Court are those that profess the Muslim/ Islamic faith. A Kadhi is not necessarily a spiritual leader or imam. Section 66 of the Constitution provides for the office of the Chief Kadhi and such number of other Kadhi's, not being less than three as may be prescribed by the Law. Sub-Section 3 of Section 66 provides for the establishment of subordinate Courts held by Kadhi's as parliament may prescribe. The jurisdiction of the Chief Kadhi and the other Kadhi's is to hold a Kadhi's Court having jurisdiction within the former Kenyan protectorate and shall extend to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion. The Chief Kadhi and Kadhis are appointed by the Judicial Service Commission (Section 69(3) (d). The qualification for appointment to the office of a Kadhi (including a Chief Kadhi) under Section 66, sub-section 2 of the constitution is that one must profess the Muslim religion and possess such knowledge of the Muslim law applicable to any sect or sects of Muslims as is satisfactory to the judicial service commission. The Wakf Commissioners Act, Chapter 109 of the Laws of Kenya, defines a Muslim to mean an Arab, a member of the twelve tribes, a Baluchi, a Somali, a Comoro islander, a Malagasy or a native of Africa of the Muslim faith. The Law of Succession Act, Chapter 160 of the Laws of Kenya, also defines a Muslim as any person who professes the religion of Islam and accepts the unity of God and Mohammed as his Prophet. In the same Section, Muslim law is defined as the law applicable to a person who is a Muslim. Pursuant to the provisions of Section 66 of the constitution of Kenya and for the better carrying out of the functions of the Kadhis, parliament passed the following acts: 1. The Kadhi's Courts Act, Chapter 11 of the Laws of Kenya; 2. The Mohammedan Marriage and Divorce Registration Act, Chapter 155 of the Laws of Kenya; 3. The Mohammedan Marriage, Divorce and Succession Act, Chapter 156 of the Laws of Kenya. 4. Amendments to the Law of Succession Act, Chapter 160 of the Laws of Kenya. The following are the salient features of each of the aforesaid acts: 2 (a) Kadhi's Courts Act Section 4(3) states that it is subordinate to the High Court. This section conforms to the provisions of the constitution which give the High Court original unlimited jurisdiction over all civil and criminal matters in Kenya and section 65 which gives it power to supervise any civil or criminal proceedings before any subordinate court. Section 5 restates the jurisdiction of the Court as already provided for in Section 66 of the Constitution. Section 6 states that the law and rules of evidence to be applied in the Court are those applicable under Muslim law. However, Section 6(iii) provides that in the absence of the applicable Muslim law and rules of evidence, then the law and rules of evidence applicable in the High Court shall be used, i.e. the Evidence Act, Chapter 80 of the laws of Kenya. This is in spite of the fact that Section 2 of the same Evidence Act states that it shall apply to all judicial proceedings in or before any Court other than a Kadhis Court! Section 8 provides that the Chief Justice may make rules of Court for the procedure and practice to be followed by the Court but where no such rules are made, then the procedure and practice to be followed shall be those of the subordinate Courts i.e. the Civil Procedure Act, Chapter 21 of the Laws of Kenya. It is to be noted that to date the Chief Justice has not made the rules of Court for the Procedure and Practice to be followed by the Kadhi's Court. They therefore use the Civil Procedure rules even though they are not trained for it. Under the Kadhi's Courts Act, Parliament has established twelve Courts. The Kadhi's Courts Act passed in 1967 initially established 6 Kadhi's Courts, subordinate to the High Court, four having jurisdiction within the area of the former protectorate, one in Nyanza, Western and parts of Rift Valley Province and the last one having Jurisdiction over the former Northern Frontier Districts of Garissa, Wajir and Mandera (Ghai & McAuslan). An appeal from the Kadhi's Court can be lodged with the Chief Kadhi's Court or to the High Court. The High Court will sit in appeal with the Chief Kadhi or other Kadhi's as assessors. The opinion of the Kadhis as assessors is however not binding 3 on the judge in deciding the appeal, especially if he disagrees with their opinion. An appeal also lies to the Court of Appeal from the High Court and in that final Court, the Chief Kadhi or any other Kadhi does not sit even as assessors. (a) The Mohammedan Marriage and Divorce Registration Act This is a procedural Act which provides for the registration of marriage and divorce by Muslims, the appointment of registrars and their assistants and the keeping of the register of marriage and divorce. (b) The Mohammedan Marriage, Divorce and Succession Act This Act deals with the law relating to divorce, matrimonial causes and interstate succession. Section 2 defines matrimonial cause or suit to mean any suit relating to the validity of an Islamic marriage or any suit claiming any species of relief whether by divorce or otherwise. Section 3(1) states that Islamic law will apply in all divorce cases involving Muslims. Section 3(2) provides that the High Court and every judge shall have power to hear and determine all matrimonial cases or suits arising out of Muslim marriages at the instance of either party if resident in Kenya. In exercising this power, the High Court or the judge is to give reliefs upon the principles of Mohammedan law applicable to that marriage. Section 4 provides that the onus of proving an Islamic Law principle before the High Court is on the Party alleging it. (c) The Amendments to the Law of Succession Act This Act provides for the universal application of one Law of Succession to the estates of deceased persons in Kenya. Amendment to Section 2 of the Act vide Legal Notice No. 21/90 exempted the application of the Act to the estates of deceased Muslims and provided for the devolution of such estates in accordance with Islamic law. However Section 3(4) provides that the provisions of Part VII, relating to the grant of letters of administration shall apply to Muslims too. Section 48(2) declared that, “for the avoidance of doubt it is hereby declared that the Kadhi's Courts shall continue to have and exercise jurisdiction in relation to the estate of a deceased Muslim for the determination of questions 4 relating to inheritance in accordance with Muslim law and of any question arising under this Act in relation to such estates.” Section 50(2) stated that an appeal shall lie to the High Court from any order of the Kadhis Court in respect of the estate of a deceased Muslim and with prior leave thereof, in respect of any point of Muslim law, to the Court of Appeal. Section 50A states that the Chief justice, may in consultation with the Chief Kadhi, make rules of Court for the better carrying into effect and for regulating the exercise of the jurisdiction conferred on the Kadhi's Court by the Act. However, to date no such rules have been made thereby disabling the Kadhi's Courts in exercising the powers granted under the Act. Why the Kadhi's Courts were given Special Status and Entrenched in the Constitution In order to understand the reason why the Kadhis Courts were given special status and entrenched in the constitution, one must go back to the history of the ten-mile coastal strip of Kenya and how it lost its protectorate status to become part of Kenya at the time of independence.