The hidden colonial hand in contentious issues

By Gakuu Mathenge

As debate on the Harmonised Draft Constitution continues, it is emerging some contentious issues are rooted in agreements and treaties the Government signed with departing foreign powers at Independence.

Kenyans will now have to decide the implications of overturning treaties signed by founding President Jomo Kenyatta, and if they were still valid. For instance, the debate on Kadhi courts being included in the Constitution is not just between Evangelical Christian Churches and Muslims.

Just before Independence, Kenyatta – then Prime Minister – signed an agreement with the Sultan of Zanzibar and the British Government and pledged to protect the Kadhi courts, Muslims and their institutions.

Although Kadhi courts have always been part of the Kenyan Laws, a section of Christians now opposes proposed entrenchment of the courts in the Constitution, arguing it would amount to conferring superior status on Islam. The courts have been part of the Judiciary since independence. Muslims fear failure to offer constitutional protection makes them vulnerable and even possible disbandment by Parliament.

At independence, an agreement was signed between Duncan Sandys, then a British principal secretary of State, Seyyid Jamshid bin Abdulla bin Khalifa (Sultan of Zanzibar), and Kenyatta (Prime Minister, Kenya) and Zanzibar counterpart, M Shamte.

Sultan of Zanzibar

The agreement, dated October 8, 1963, between the Government of the United Kingdom, His Highness the Sultan of Zanzibar, the Government of Kenya and Government of Zanzibar states: "By an Exchange of letters concluded in London on October 5, 1963, between the Prime Minister of Zanzibar and Prime Minister of Kenya, the Government of Kenya entered into certain undertakings concerning protection after Kenya has attained independence, of His Highness’s present subjects in the Kenya Protectorate and their descendants".

Three days earlier, on October 5, 1963, Kenyatta had committed himself and his government "to place on record the following undertakings:

• At all times to safeguard, His Highness’ present subjects who are of Muslim faith, and their descendants will at all times be assured of complete freedom of worship and preservation of their own religious buildings and institutions.

• The Jurisdiction of Chief Kadhi and all other Kadhis will at all times be preserved and will extend to the determination of Muslim law relating to marriage, divorce and inheritance...

• In view of importance of teaching of Arabic in the maintenance of the Muslim religion, Muslim children will be taught Arabic, and for that purpose, the present grant-in-aid to Muslim primary schools in the Coast region will be maintained

• The freehold titles to land in the Coast region will at all times be recognised, steps will be taken to continue the procedure of registration of new freehold titles and the rights of the freeholders will at all times be preserved...

It is only after Kenyatta undertook these commitments that the British and Sultan of Zanzibar agreed to dissolve the Kenya Colony and Protectorate to give way to independence.

Lawyer and human rights advocate, Wanyiri Kihoro, says Kenya is obliged to respect the agreement in relations to Kadhi courts.

"They are part of the Lancaster discussions, their protection part of the conditions for dissolving the colonial State. We are bound to protect the Kadhi courts owing to reality of Kenyan situation," he said. Safina leader Paul Muite says he had no problem with the Kadhi courts but now that a section of Christian faithful had made it a contentious issue, it needed to be recognised as such.