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Constitution of Kenya Review Commission
(By Ahmed Issack Hassan, Commissioner, CKRC)
The new Draft Constitution published by the Constitution of Kenya Review Commission in October 2002 has generated a lot of debate and discussion as was expected and required under the Law. Among the many Provisions of the Draft Bill that came under scrutiny and analysis was the one dealing with the Kadhis Courts judging by the copious amount of correspondence and arguments for and against that have appeared in the press. This article aims at informing the on-going debate by setting out some of the basic facts about the Kadhis Courts that appear to have been ignored in the debate and analysis.
It is important to approach every issue calmly and objectively and not subjectively, emotionally and with a pre-conceived idea/mind. But much more importantly, it is crucial to get all the facts correct about any issue before jumping to conclusion. It is only then that one can make an informed decision. An objective and honest discussion about the Kadhis Courts must consider their history and present status, the Commission's mandate and what the people said before coming to the stage of analysing the present draft constitution.
Historically, Kadhis Courts existed in the East Coast of Africa long before colonization. In Kenya, they existed in the Coast, which at the time of colonization, was under the Sultan of Zanzibar. In 1895, the Sultan gave the British power to administer the 10 mile coastal strip subject to their respecting the existing Kadhis Courts among other conditions. The British did so and declared a protectorate over the coast while the rest of Kenya was a colony proper. The Sultan however retained sovereignty over the 10 mile coastal strip. During the last years of the independence struggle and at the start of the Lancaster House Constitutional talks in 1961, the status and fate of the coastal strip came up for determination. The British organised separate talks for the delegates from the protectorate of the coast and those from the Kenya Colony. The British Government and Sultan of Zanzibar also appointed a Commissioner, Mr. James R. Robertson, to study the issue of the coastal strip, consult all those concerned and report to them. In his report, entitled, "The Kenya Coastal Strip ? Report by the Commissioner", he reported that opinion was divided as to whether the coastal strip should join Kenya, or be declared independent on its own, or reverted back to the Sultan of Zanzibar. He however recommended that it should be joined with Kenya subject to the Kenya Government guaranteeing to respect the existence of the Kadhis Courts among other conditions. The Prime Minister of Kenya, Jomo Kenyatta and the Prime Minister of Zanzibar, Mr. Shamte on behalf of the Sultan of Zanzibar, then signed an agreement in October, 1963, in the form of an exchange of letters whereby the Sultan of Zanzibar relinquished/surrendered his claim of sovereignty over the coast to Kenya in return for mzee Kenyatta guaranteeing the continued existence of the Kadhis Courts among other guarantees. When the independence constitution was written, the Kadhis Courts were enshrined under the chapter on Judiciary.
At Independence, the Kenya Government expressed its sovereign desire not to be bound automatically by all the pre-independence treaties and agreements entered into by the colonial Government. By his note reference EXT. 237/003A of 25th March, 1964, addressed to the Secretary General of the United Nations, mzee Jomo Kenyatta informed the United Nations of the Kenya Government's intention to review all pre-independence treaties and agreements and determine which agreements will be honoured by the Government and those which will be abrogated or modified after appropriate notice to the interested parties. It is important to note that the 1963 agreement between the Kenya Government and the Sultan of Zanzibar concerning the Kenya Coastal Strip and the preservation of the Kadhis Courts was among those agreements that were immediately honoured by the newly independent Kenya Government. This is proved by the fact that the independence constitution of 1963 enshrined the Kadhis Courts under Chapter 5 in the Judiciary and thereafter Parliament passed the Kadhis Courts Act, the Mohammedan Marriage and Divorce Registration Act and the Mohammedan Marriage, Divorce and Succession Act to make these courts fully operational and functioning. At independence, the Kadhis Court were 3. In 1967, the Kadhis Courts Act was passed which increased the courts to 6. They have subsequently been increased and today they are more than a dozen spread over the country.
The Kadhis Courts were entrenched in the constitution as a measure of safeguarding the integrity of the agreement reached on them. If the courts were established under Ordinary Law by an Act of Parliament alone, then it would have made them vulnerable since any decision to abolish them would have required a simple majority of the members of parliament to repeal the Act. Under the present standing orders of Parliament which sets the quorum of the house at 30, it means that only sixteen (16) Members of Parliament could do so. In contrast, to abolish the courts as enshrined in the constitution would require a two-thirds (2/3) majority in Parliament. As a minority therefore the Muslims in Kenya find great relief and solace in the entrenchment of the Kadhis Courts in the Constitution.
Section 66 of the current constitution provides for the Chief Kadhi and Kadhi's Courts and states their powers as being to decide on issues of Muslim personal law between Muslims i.e marriage, divorce and inheritance.
The Commission's mandate under the Law is to collect, collate and analyse the views of Kenyans on changes to be made to the constitution and to recommend amendments or other changes thereto which faithfully reflects the views and wishes of Kenyans. The commission was to study the judiciary, among other institutions, and seek people's views on how the judiciary could be improved. The Kadhis Courts are part of the judiciary and the legal systems. When the commission issued "issues and questions" for public hearing to guide the people in the collection of the views, the same contained questions on what was to be done to the Chief Kadhi and Kadhis Courts. Many of the people, organizations and experts who gave views on the Kadhis courts did not at all question their existence but advocated for their retention with some improvements or modifications. The Muslims generally asked for the enhancement of the role and status of the courts while in some cases like in N.E. Province, they asked for the full application of Sharia Law in their areas. The team of judicial experts and eminent scholars from the Commonwealth in their report on the judiciary also recommended the retention of the Kadhis Courts in their present form. A group of Human Rights and Legal Organisations such as KHRC, LSK, ICJ, FIDA, etc, also prepared a model constitution under the motto, "Kenya Tuitakayo" (the Kenya we want) and in that model constitution, they also recommended for the retention of the Kadhis Court with their present jurisdiction and for the Chief Kadhi to have minimum academic qualification and to enjoy the same status and privileges as a High Court Judge. In recommending improvements to the Kadhis Courts, the commission was faithfully reflecting an analysis of the views it received. It is therefore wrong to suggest that CKRC is favouring Muslims or creating parallel court structure or introducing Sharia Law through the back door. The commission did not receive any views for the creation of courts for Jews, Hindus or others. Sharia Law is not being introduced as the jurisdiction of the Kadhis Courts are clearly confined to matters of personal Law between Muslims. There will be no stoning to death for adultery or cutting of hands even for the Muslims in Kenya as this is covered by Islamic Criminal Law which is not permitted here in Kenya either in the present constitution or under the new draft bill.
The Kadhis Courts do not exist in Kenya alone. Several countries in Africa and the Commonwealth that have a significant population of Muslims provide for these courts in their constitutions and Laws to cater for the regulation of the personal status of their Muslim Citizens. Save for those countries that have established Islamic states which apply Islamic Law throughout the country, other states tend to limit the jurisdiction of these Courts to matters affecting the personal status of the Muslims. In some cases, the jurisdiction is exclusive to the Kadhis Courts while in others the Courts are established as subordinate Courts to the Secular High Courts or Supreme Court. The Kadhis Courts are also called Qadhis Courts (Uganda), Cadi Court (Gambia), Sharia Court (Nigeria), Shariat Court (Pakistan) and Religious Court (Jordan). The Nigeria constitution provides for the establishment of the Kadi and Sharia Courts in the states and in the Federation. The Sharia Court of Appeal is to compose of the Grand Kadi and such number of Kadis as may be prescribed by Law. The jurisdiction of the Sharia Courts is listed under Sections 262 and 277 of the Constitution. The qualification for appointment to the office of Grand Kadi or Kadi of the Sharia Court of Appeal is set out by Sections 261 and 266 of the Constitution. Sections 264 and 279 give the grand Kadi, who is equivalent to the Chief Kadhi in Kenya, the Power to make rules for regulating the Practice and Procedure of the Sharia Court. The major difference between the Kadhis Courts in Nigeria and Kenya is that the former apply full Islamic Sharia law while in Kenya, the jurisdiction is limited to personal law i.e marriage, divorce and inheritance which is the case in Gambia and Uganda. The Gambian Constitution under Section 137, establishes the Cadi Court to be constituted by the Cadi and two other Scholars qualified to be a Cadi or Ulama. Appeals from this Court goes to a review Court composed of the Cadi and four ulamas (Islamic Scholars). The Cadi Court has jurisdiction to apply Islamic Sharia in matters of marriage, divorce and inheritance where the parties before the Court are Muslims. The qualification for appointment to the position of Cadi requires a person of high moral standing and professional qualification in Sharia Law.
The Ugandan Constitution establishes the Qadhis Courts under Section 129 as one of the subordinate Courts of judicature exercising judicial power in Uganda to deal with matters of marriage, divorce, inheritance of property and guardianship. The argument that the Provisions in the Draft Constitution treat other religions less favourably is clearly without merit. Article 44 of the Draft Bill is a basket clause containing several sections guaranteeing and protecting the freedom of religion for all. The Kadhis Courts, which fall under the Chapter on the Judiciary, could not have been brought under the ambit of article 44 which comes under the Chapter on Human Rights. The Kadhis Courts should be seen in the context of the judiciary and the legal system and not as a religious or Muslim issue alone. Those opposing the Kadhis Courts and making allegation of bias for Muslims are politicising the issue and creating unnecessary tension and disharmony between the Muslims and their Kenyan brothers and sisters. By whipping up emotions of other people who may not have all the facts before them, these people are undermining the goals of the constitutional review process which is inter alia to unite the country and to respect and promote the ethnic and religious diversity of the people of Kenya. It is the hope of all those who wish to see the continuation of the peace and harmony that exists between the different religious communities in Kenya that men and women of goodwill in Kenya will see through the propaganda war being waged against the Kadhis Courts and support the recommendations of CKRC which is a faithful reflection and analysis of the views received from the people.