Monday, May 24, 2010


A three-judge bench on Monday declared the inclusion of Kenya's age old Kadhi courts in current Constitution illegal and discriminatory. The judges, sitting as a constitutional court, said the decision to include the Kadhi courts in the country's ultimate law favoured one religion over others. The Courts have been in the Kenya's constitution for over four decades without causing any jittery until recently when an American fundamentalist group "cropped" the issue up to deny Kenyans the enactment of a new constitution, which they have been yearning for the past 25 years or so. 
However, the judges reserved their decision on whether the provision should be included in the Proposed Constitution, which will be subjected to a referendum on August 4.

The bench included Justice Joseph Nyamu, Justice Mathew Anyara Emukule and Justice Roselyne Wendoh.

Even Columnist Pravin Bowry, in his demistifying The Kadhi's Court, indicated, Kadhi’s Court is not and cannot be an issue to erode development of the constitutional law in Kenya.In a 114 page ruling, the judges held that the enactment and application of Kadhi’s court to areas beyond the ten mile coastal strip specified during their establishment in the colonial times is unconstitutional.

OK. That was then, but Muslims are everywhere in Kenya now and far beyond the common Coast and North Eastern Province where Kenyans of Somali origin live. 

The Judges further declared that section 66 of the constitution which introduced the Kadhi’s court infringes on the constitutional rights of a group of 26 religious leaders who went to court to challenge the inclusion of the Islamic courts but don't tell you, The courts were not written just the other day. It was through a rigorous agreement between various agencies(British colonists and the Sultans of Zanzibar) so that we make a country. So how did the constitution became a sham if Mzee Kenyatta himself didn't raise any issue with it for all those years and subsequently the Moi/Kibaki administration...........This is a fallacy...

The ongoing animated debate on the matter of Kadhi Courts needs to be undertaken soberly. It should not be undertaken from any theological perspective but from realisation of the fact that these courts —like other courts, tribunals and arbitration forums — are engaged in dispute resolution between citizens. The existence of the courts is so strongly embedded in history and international agreements that Kenyans must realise that their attempt to erase them from the statute book may result in a constitutional dispute with international dimensions.

Kadhi Courts were in existence along the East Coast of Africa long before the coming of the British colonialists in the 19th century. The Kenyan coastal strip was then part of the territories controlled by the Sultan of Zanzibar. To Quote Hon Kerrow  "IN MARCH 1964, MZEE JOMO KENYATTA wrote to the UN affirming the country’s commitment to honour the 1963 treaty obligations to safeguard these courts. The issue is a fundamental religious freedom to accommodate a minority and protect its right to manifest their faith as provided for in the proposed Bill of Rights 32(2).

This was something discussed so that Kenya can be formed into entity between the leaving colonists and the Sultan of Zanzibar so that the Kenyan Coast "Jimbo" can be put into Kenya and the newly appointed president, Mzee Jomo Kenyatta become the President of the republic.

The Kadhi courts is one of the issues that have been raised as contentious by a group of political and religious leaders who have come out against Kenya's Proposed Constitution. The American Fundamentalist organizations support the crusade against the Kadhi Court and have not hidden their intention to fund those who are saying NO to the constitution.....By the way, the proposed Kenyan constitution has 264 clauses of which 4 are said to be contentious, meaning that 259 clauses out of 264 have been agreed upon that will enhance how Kenyans are governed. The Kadhi Courts are meant to apply to Muslims who choose it for application of family law such as inheritance, marriage, divorce and personal status. They have never been contentious at all.

The fears that the courts are a step towards Islamic Sharia Law, or the Sharia Law is likely to take over Kenya or that Kenya is an Islamic state in the making are unfounded.