By Ibrahim Lethome

As Kenyans eagerly await a new constitution, several issues continue to generate a lot of debate.

One of the issues that threaten to scuttle the whole process is whether or not Kadhi’s Courts should be provided for in the new Constitution.

It is important to note that these courts existed long before Kenya’s Independence, particularly along the coastal strip and were retained in their current form in our Constitution.

For all these years that the courts have been operating in Kenya, they have not been an issue of concern to non-Muslims in this country.

Those who are opposed to the Kadhi’s courts, with a section of the Christian community leading the onslaught, have advanced several arguments to support their case. These include:

(1) That the inclusion of the Kadhi’s courts in the Constitution amounts to discrimination in favour of Muslims as a religious community. Perhaps the proponents of this view need to be reminded that the Constitution is all about addressing the needs of all; which also includes the needs of minorities and special interest groups who ask for these interests to be provided for and protected by the Constitution.

Muslims have always felt the need for the courts and have asked for them. Should Muslims be denied the courts just because other communities do not feel the need for such institutions and have, therefore, not asked for them?

Understandably, Christians in Kenya don’t need special courts because after all, our legal system has its roots in the English Common Law, which is based on Christian values.

(2) That Kenya is a secular state and hence a Constitution should not provide for anything religious. Is our Constitution really secular? What about our National Anthem contained therein and which begins with... "O God of All Creation? What about having Sunday, a Christian Sabbath day being recognised as the weekly rest and worship day? Are all these facts not a pointer to the fact that Kenya is truly a religious country with a Christian bias?

(3) That the Courts which only serve a particular community are funded by tax payers, which according to them is unfair. True, Kadhis are judicial officers whose salary is paid from taxes. On the face of it, the argument sounds very convincing. But it raises several questions.

Are they suggesting that we all get services from all institutions funded by the tax payers? Or do we get services commensurate to the taxes we pay? Are Muslims not tax payers also? The fact is that the court is part of the judiciary, a public office serving a special interest group of Kenyan tax payers who happen to be Muslims, without infringing on the rights of others in any way.

(4) That allowing the Kadhi’s courts amounts to introducing Islamic Sharia in this country. Some of the dissenting groups have boldly come out and voiced this as the main underlying fear for the Kadhi’s court. In my view this is as a result of two things;

(i) ignorance of the difference between "Islamic Sharia’’ which simply means the Islamic legal system.

(ii) The contempt and intolerance that some groups harbor towards Muslims for reasons best known to themselves.

Those advancing this argument intend to create unfounded fear in the minds of Kenyans the majority of whom do not know anything about Islamic Sharia or have very distorted information about Islam and its institutions.

My appeal to all patriotic and peace loving Kenyans is not to allow a few disgruntled voices to mislead and derail the review process because of a non contentious issue.

Kadhi’s court has been in operation here for over 46 years now and have not in any way affected the non-Muslims as it only serves people who profess the Muslim faith.

For those who do not fully understand what the courts are all about, I appeal to you to seek more information before hastening to judge them. Kenyans need to talk to each other rather than at each other.

—The writer is a former CKRC Commissioner and Secretary General of the Islamic Foundation.