Sunday, August 2, 2009

Constitution: Furore over Kadhi Courts much ado about nothing

By Lukoye Atwoli
Sunday Nation 02 August 2009, Page 46

This past week Christian clerics of all shades and descriptions have been falling all over themselves pontificating against the inclusion of Kadhis' courts in the constitution of Kenya. The clerics are also arguing against the decision by the Committee of Experts to exclude these courts from the list of contentious issues and would like the debate to be reopened.
The uproar from these Christian religious leaders has not come as a surprise to those who have keenly followed the events surrounding this country's repeated attempts at constitutional review.

These leaders always emerge during critical periods to vociferously oppose having the Muslim courts entrenched in the constitution. As a matter of fact the Wako draft was rejected at the 2005 referendum partly because of these Christian clerics' protests.

These clerics know full well that their loud opposition to the Muslim courts in the constitution will result in equally forceful arguments in favour of the courts from Muslim clerics and faithful all over the country. They know in fact that arguing against these courts that are already provided for in the current law is tantamount to campaigning against a new constitution.

It is, therefore, not such a wild jump of logic to suppose that these clerics have no interest in a new constitution and are, therefore, using the Kadhis' courts as an excuse to cause such a furore that the whole process is rendered ineffectual. If this is true, then these Christian religious leaders must be exposed as one of the major stumbling blocks to achieving a new constitutional dispensation in our lifetime.

That being the case, they must be told in no uncertain terms that despite the assertion that the majority of Kenyans are identified as ``Christian'', most are in reality nominal Christians who cannot identify with the kind of fundamentalist posturing being exhibited by these pastors and bishops.

It is clear to most thinking Kenyans that despite their existence in our legal justice system for decades, Kadhis' courts have not been demonstrated to cause any harm to non-Muslims as they go about their day-to-day business. Nobody has yet been subjected to Sharia law in this country against his will; nor has anyone shown that application of the Kadhi court system has resulted in any harm to those that do not submit to it.

Assertions that Kadhis' courts constitute a misuse of taxpayers' money on one religion do not hold water, since Muslims are not ``one religion''; they are Kenyans with the same rights as all others. If they perceive the current laws to be inadequate as far as their personal matters are concerned, they have a right to use their own religious law to resolve them.

Quite to the contrary, it can be amply demonstrated that use of Kadhis' courts for personal law and religious matters serves to reduce the strain on the rest of the judicial system, thus saving the taxpayer a lot of money that would have otherwise been wasted on delays and other wastages in our courts.

Another argument being advanced is that the presence of Kadhis' courts in the constitution implies that Islam is the only recognised religion in the country.
This argument is fallacious since it assumes that the constitution controls every single function in the life of a citizen.


Ideally, the constitution only mentions certain specific issues on the premise that not doing so would result in possible injustice to segments of society. Not providing for Kadhis' courts would be putting Muslims at a disadvantage in matters of personal law.

Further, establishment of a state religion cannot be a tacit affair, and must be explicitly stated both in government policy and in the basic law of the land.

Christian clerics are called upon to play a major role in achieving a just and cohesive society, and fighting the Kadhis' courts goes against this noble ideal.

Any misgivings about the manner of implementation of these courts in the new constitution can be more soberly debated without the emotive rhetoric being currently employed.

As it is, the dispute is already generating a lot of unnecessary heat with Muslim clerics organising themselves to respond forcefully to the perceived onslaught on their faith. This is tantamount to adding fuel to an already raging fire, and must be contained at all costs.

The clamour for a new constitution will only end when we agree on a process of give and take, given that these zero-sum games only end up perpetuating the status quo.

If everyone were to predicate their acceptance or rejection of a new constitution on a single clause, Kenyans would do much better waiting for Godot than anticipating a new constitution.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University's School of Medicine


  1. The article is good. Well-disposed, as usual with you, precise, and circumspect. But you eschew the central raison d'ĂȘtre of the these, and this reason is grounded in Kenya's legal and statehood history. After all, Kenya even today is not a completely unitary state: it contains the former Colony and the former Protectorate. At least one paragraph covering this would have been necessary.

    Alexander Eichener

  2. Thanks for the comment. The historical perspective would have been useful to readers not well acquainted with our colonial history. Thanks for providing a sketch of it here...


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