THE KADHIS COURTS
Prior to independence and at the beginning of the Lancaster House constitutional talks, the British Government and the Sultan of Zanzibar appointed a commissioner, James Robertson, to report on the changes considered advisable in the 1895 Agreement relating to the coastal strip of Kenya as a result of the course of constitutional development of East Africa. In his report, Mr. Robertson recommended that the coastal strip be merged with the mainland before self-government and independence subject to certain safeguards being given to the Muslims of Kenya, which safeguards should be entrenched in the constitution. The Commissioner recommended that the Kadhis courts should not only be retained but also integrated within the judiciary under the Chief Justice s administration. Robertson also recommended that the 1895 Agreement be abrogated and another one made in its stead between the Governments of Kenya and Zanzibar. This was done and on 5/10/1963 a new agreement was entered into between the Governments of Kenya and Zanzibar through Prime Ministers Jomo Kenyatta and M. Shamte respectively, in which agreement the Sultan of Zanzibar relinquished his sovereignty over the coastal strip in return for Kenya, among other things, guaranteeing the existence of the Kadhis courts at all times . To safeguard the integrity of the agreement reached on them, the Kadhis courts were enshrined in the independence constitution under the chapter on the judiciary; they are still there to date.
After independence, the Kenya Government expressed its desire not to be bound by all pre-independence treaties and agreements entered into by the colonial government. President Kenyatta informed the United Nations of the intention of the Kenyan Government to review all such treaties and agreements and determine those which it would honour. Among those immediately honoured was the agreement protecting the existence of the Kadhis courts.
The Kadhis courts, as with any other court, must be provided for in the constitution, as otherwise their establishment would be unconstitutional. Once provided for under the constitution, the courts themselves can either be established in the constitution also or in an Act of parliament. The problem with establishing them under ordinary law by an Act of parliament is that it would make them vulnerable since any decision to abolish them would require a simple majority of the members of parliament. Under the present standing orders of parliament, which sets the quorum of the house at 30, it means that the approval of only sixteen (16) members of parliament would be sufficient to repeal the Kadhis courts. In contrast, to abolish the courts as enshrined in the constitution would require a two-thirds (2/3) majority in parliament. Kenyan Muslims therefore find great relief and solace in the entrenchment of the Kadhis courts in the constitution.
The history of the Kadhis courts illustrates that this institution is a crystallised right of the Kenyan Muslim minority. The Kadhis' courts have embodied a manifestation of the beliefs of the Kenyan Muslims without conflict with other Kenyans. Any move to deprive the Kenyan Muslim community of its constitutional rights to this practice is discrimination based on religion, which is a contradiction of the rights of citizens under the constitution.
The jurisdiction of the Kadhis courts, then as now, is to adjudicate on matters relating to personal law (marriage, divorce and inheritance) where both parties are Muslims. Throughout the centuries that they have been in existence, the Kadhis courts have provided an efficient and cost-effective resolution of the disputes before them. However, in view of the various changes that have taken place over the years, not least being the increase in the number of Muslims, the Kadhis courts need to be streamlined and made even more efficient to better equip them to handle the challenges of a growing nation. For instance, it is not feasible to expect the current 18 Kadhis to effectively adjudicate between the millions of Kenyan Muslims, hence the need to increase the number of these courts. Similarly, the qualifications of the Kadhis need to be streamlined to enable the office-holders to render effective service. It is in light of this that, in reviewing the current constitution, Kenyans examined and recommended improvements to the existing institutions, including the Kadhis courts, to facilitate governance as an integral part of the enabling environment for development. It is worth noting that the civil society is in support of the retention of the Kadhis courts. Indeed some human rights and legal organisations had even prepared a model constitution in which they not only recommended the retention of the Kadhis courts but also the enhancement of the qualifications and status of the Chief Kadhi.
The Kadhis courts are not mosques, they are courts of law set up to deal with specific types of disputes. The office of a Kadhi is not a religious office, it is a legal office whose holder is versed in Muslim personal law. They provide a specialised forum for dealing with personal law disputes where both parties are Muslims. Any religious role, which a Kadhi may play, is outside his official duties. For example Muslims out of respect for the holder of the office of the Chief Kadhi, request him to perform certain duties like announcing the sighting of the moon. This is not an official duty of the Chief Kadhi but is merely an exercise by Muslims of the constitutional freedom of association granted to all Kenyans.
The Constitution of Kenya Review Commission, in including provisions for the improvement of the existing Kadhis courts in the Draft Bill, was abiding by its mandate to ensure that the review process accommodate the diversity of the Kenyan people, including religious faith, that the outcome of the review process faithfully reflect the wishes of the people of Kenya and that the review process secure provisions which strengthen national integration and unity.