Strictly speaking, neither Christians nor Muslims have made a logical, persuasive and coherent argument for the reasons why the structure and powers of the Kadhis courts as contained in the current or in the draft Constitution of Kenya, should be retained or removed.
Kibe Mungai

Under both the current Constitution and the draft Constitution, Kadhis courts have jurisdiction to determine questions of Muslim Law relating to personal status, marriage, divorce, or inheritance in proceedings in which all the parties profess the Muslim religion. It is important to note that Section 82(4)(b) of the current constitution, allows Parliament to make any law with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law. What this means is that any community or religious group is entitled to lobby for enactment of laws governing matters of personal law. In this sense, therefore, Sections 82 (4) and 66 of the current Constitution embody the spirit of giving choice with respect to administration of justice in matters of personal law. The only significant difference is that Section 66 makes provision for establishment of Kadhis courts to deal with matters of personal law between parties who profess the Muslim faith.

Since 1963 when the current Constitution was made, Christians have never expressed disapproval with Kadhis courts as provided for in Section 66 of the Constitution. The principle that every Kenyan, irrespective of his or her religious faith, is entitled to be governed by the personal law of his choice has not been denied or repudiated by anyone. Therefore, there is more than meets the eye in the current controversy about the Kadhis courts provided for in the draft Constitution.

For avoidance of doubt, it helps to recall that the constitutional status of Kadhis courts is based on a treaty to which British, Kenya and Zanzibar governments were parties in 1963, when the Sultan of Zanzibar agreed to cede his sovereignty over the coastal strip to Kenya. On its part, the Kenya government undertook to implement various measures for the protection of the former subjects of the Sultan, among them the system of Islamic law and courts.

In principle, a state that constitutionally recognizes individual choice in matters of personal law need not make provision for constitutional entrenchment of a court system to guarantee realization of that ideal. Yet, during the period of agitation for independence (1960-1963), it was necessary to make political concessions, some of which found their way into the Constitution. This is how the Kadhis courts found a place in the independence Constitution. It bears noting, too, that the original 1963 Constitution entrenched a majimbo (regional) system and provided in a detailed manner about the relationship between the central and regional governments. These details were not really matters of the Constitution, but they were included in order to allay the fears of various groups.

Those opposed to the retention of Kadhis courts in the new Constitution are partly motivated by fears that with passage of time the courts may turn out to be the fertile ground for introduction of other aspects of Islamic Law in Kenya. And if Nigeria and Sudan are anything to go by, the prospect for introduction of Sharia law in our country is indeed scaring. In 1963, Kenyans generally were not asked to give their views on the Kadhis courts and it is essential that this time round they should be listened to without eliciting any kind of hostility. Even if the opponents of the Kadhis courts are wrong, the project at hand requires us to listen to everyone, even when they are speaking in error.

In my opinion, it is misconceived for the Muslims to suppose that they have a constitutional right to have the Kadhis courts entrenched in the Constitution under the terms of the treaty between the Sultan of Zanzibar, the British and the first African Kenyan governments. The Kadhis courts had to be entrenched in the Constitution as part of a political deal but that in itself does not make it a constitutional right in the same way that Muslims, like all other Kenyans, have a constitutional right to protection from discrimination.

If both Muslims and Christians can understand that the constitutional entrenchment of Kadhis courts does not imply a special right for Muslims, then there should be no reason for controversy. By extension, this means that the Kadhis courts would have to be retained as provided for in the current Constitution which captures the terms of the triad treaty. The important point to note is that, unless the Government of Kenya wants to renege on that treaty, then the Kadhis courts should be retained as provided for in the current constitution.

This now brings us to the provisions of the draft Constitution. The provisions in the draft bill are not entirely about improvement of the existing Kadhis courts in terms of the details about appointment and qualifications of the Kadhis. The proposed changes are far-reaching in at least three ways.

First, it creates a new hierarchy of Kadhis courts with District Kadhis Courts as courts of first instance, Provincial Kadhis Courts to be presided over by a Senior Kadhi and a Kadhi Court of Appeal. The latter shall be presided over by the Chief Kadhi and two other Kadhis. Appeals from the Kadhis Court of Appeal to the proposed Supreme Court shall apply only to constitutional matters. What this means is that for all intents and purposes Kenyan Muslims would except for criminal matters be governed by Islamic Law. It is doubtful whether this is desirable for the country, particularly when we consider that for one to be appointed as a Kadhi, he or she must have a degree in Islamic Law from a recognized university, yet no Kenyan university offers degree courses in Islamic Law.

Secondly, it is proposed that the jurisdiction of the Kadhis courts be extended to cover civil and commercial law in cases where all the parties profess the Muslim faith. In all fairness, there is absolutely no reason why the State in essence all tax payers should incur the expense of running Kadhis courts in matters of civil and commercial law. This is because, these not being matters of personal law, there is nothing offensive or wrong for Muslims to be governed by the same courts as people professing other faiths or those who profess none. Moreover, entrenching separateness for any religious or ethnic community may in the long run prove detrimental to the goal of national unity.

Thirdly, the draft Bill proposes to remove Kadhis courts from the supervisory jurisdiction of the High Court since the Kadhi Court of Appeal will be the final appellate court unless a dispute involves a constitutional question. In essence, this means that for certain specified matters, Muslims will have a court system parallel to the regular courts. In my view, the supervisory jurisdiction of the High Court over the Kadhis courts under the current constitutional dispensation ensures a coherent development of a national jurisprudence. To establish a two-tier jurisprudence might prove detrimental to the rule of law and national unity because the draft bill does not contain a mechanism to minimize or resolve conflict of laws, which would be inevitable under such a dual system.

It seems to me that proposals to broaden the powers and structures of the Kadhis courts are fraught with risk. Today, the demand may relate to allowing Muslims to resolve civil and commercial disputes in accordance with Islamic law. Tomorrow the Muslims will demand that criminal disputes between them be dealt with in accordance with Islamic Law, that is, Sharia. Shall we tell them their religious freedom does not include resolution of criminal disputes under Islamic Law?

This is not a minor matter nor as remote a possibility as it may appear at first sight. In a paper by Kenya Muslims to the Constitutional of Kenya Review Commission, they state as follows:

Islam is a complete way of life. It has a political ideology, an economic policy, a legal framework and a social agenda and were Muslims to exercise in full the freedom guaranteed by article 44 (of the draft Constitution) then they are justified to demand for the implementation of the Sharia law in its entirety and not just its personal law aspect. A Muslim is obliged to be governed and guided by the Sharia. It is a mandatory requirement and we have no option but to totally submit to the divine law. The provisions on Kadhis courts have actually limited the infinite right given to us by article 44.1

The writing is clearly on the wall. Sadly, in Kenya we have a deficit of moral courage. However, on the issue of Kadhis courts we must summon up enough courage to do what is right for our country and not what is merely convenient for the moment.

Notes: 1. The Kenya Muslim s position on the recommendations by the Kenya Church to the Constitution of Kenya Review Commission. Unpublished paper.
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