CJ backs Kadhi’s courts, says they are historical

By Maureen Mudi

Chief Justice Evan Gicheru has defended the existence of Kadhi’s courts in the Constitution and gave an account of how they came to be part of the Kenyan legal system.

While opening a training workshop for 17 Kadhis at the Baobab Beach Hotel in Mombasa yesterday, the CJ said the courts have played a pivotal role in the administration of justice.

"Kadhi’s courts already exist in the Constitution, it is up to the Committee of Experts (CoE) to give Kenyans the best document, though the courts existed way back before we were even born," Justice Gicheru said.

While reflecting on the history of the courts, Gicheru said Islamic law was in use at the Coastal strip long before colonialism.

The British entered into an agreement with the Sultan of Zanzibar who ruled the strip in 1895, who permitted the British to administer the strip as a protectorate rather than a colony.

"The agreement entered into between the two was subject to certain conditions including that the British agree to respect the Islamic law judicial system practiced by the locals," he said.

The CJ added that throughout the administration of the Coastal strip, the British did not tamper with the judicial system, which included the courts.

Gicheru added it was recommended that the courts be integrated within the judiciary under the control of the CJ adding the 1895 agreement was changed two months before independence and a new one was entered into where Kenya agreed to guarantee the courts forever.

Coastal trip

"Kenya entered into a new agreement where Zanzibar relinquished its sovereignty over the Coastal strip and in reciprocity, it guaranteed the existence of the Kadhi’s courts at all times," he said.

He added that the Government also committed itself at the United Nations to honor the agreement protecting the existence of the courts.

"Chapter Five of the Independence Constitution recognised the courts and in 1967, the Kadhi’s Courts Act was passed," he said.

The CJ noted that the courts have continued to increase as demand for service increases.

Chief Kadhi Mohammed Kassim said the courts are not a contentious issue in the Constitution and said it was up to the experts to bring out the best.

The chairman of the Committee of Experts Nzamba Kitonga and his team have maintaned inclusion of the Kadhi’s court is not a contentious issue.