Kadhis: AG disapproves judges’ ruling amid fury from Muslims

By Standard Team

Except for ecstasy in Church and the ‘No’ camp, two words sum up reaction to ruling by three judges Kadhi’s Courts are illegal — outrage and defiance.

As a storm set off by the ruling that inclusion of Islamic family courts in the Constitution was discriminatory against other faiths spread, Attorney General Amos Wako declared the ruling unconstitutional and filed a notice of appeal.

Attorney General Amos Wako: ‘The court lacked jurisdiction, the judgment is wrong in law. I have ordered Notice of Appeal to be filed’ immediately’

Orange Democratic Movement, through its Secretary General Prof Anyang’ Nyong’o spoke defiantly about the ruling and declared the three judges were part of the anti-reform brigade.

Muslims fought back arguing the Constitution is clear family matters such as marriage and inheritance cannot be discriminatory.

Sources revealed the ‘No’ camp, though happy with the ruling since it could help its cause even though it was on a separate reform process, decided to adopt a wait-and-see approach.

"They see a congruence between the ruling and the attempt to sneak in amendments to the Draft while at the Government Printer, and do not want to be seen to be part of it. They are also surprised,’’ said a source familiar with the camp led by Higher Education Minister William Ruto.

Wako said the Justices Joseph Nyamu, Roselyn Wendoh and Anyara Emukule did not have powers to make such a ruling.

Wako, who is in London, sent a terse statement to newsrooms saying the judges were wrong and were setting a bad precedent for the nation.

He also assured Kenyans the current review process was shielded from the decision made by the Judges on Monday that the inclusion of Kadhis’ Courts in the constitution amounted to separate development of one religion and religious practice.

President Kibaki’s Party of National Unity and ODM called on Kenyans to ignore the ruling, saying it would not disrupt reform process.

Muslim leaders said the ruling was faulty and claimed the judges ‘conveniently’ ignored provisions of the same section they quoted that says issues of divorce, adoption, marriage and inheritance are excluded from the definition of discrimination.

Kadhi’s Courts deal with issues of marriage, divorce and inheritance among Muslims.

Vice President Kalonzo Musyoka described their judgment as shocking and urged Kenyans not to panic. The VP who spoke to Press after chairing a PNU coalition parties meeting said the timing of the decision was suspect but added the ruling will not affect enactment of a new constitution.

He said the Kadhis’ Courts owe their existence to historical agreements and their existence should not be used to cause divisions.

Nyong’o described the judges as anti-reformist. "It is not the business of the Judiciary to determine what goes into the constitution and any attempt by anti-reform judges will not affect the review process," he said.

Speaking after chairing a joint PG and National Executive Council meeting at the party headquarters in Nairobi, the Medical Services Minister said: "To us, that ruling is politically motivated and made by enemies of the reform agenda," said Nyong’o. He said ODM fully supports the AG’s move to appeal the decision.

Cabinet Minister Mohammed Elmi and Assistant Minister Adan Duale said the ruling was ill-intentioned and questioned its timing. "It is clear that those who made the ruling wanted to create tension between Muslims and Christians. They will not succeed in causing division," said Elmi.

NCCK General Secretary the Rev Peter Karanja said: "The judgment has in essence quashed the grounds upon which the Committee of Experts entrenched an illegal provision in the draft constitution.’’

He added, "Our hope is that all Kenyans will now recognise the matter of religion in the constitution as an issue of justice and not be deceived by those with vested interest."

The Chairman of the Parliamentary Select Committee on the review process Abdikadir Mohammed described the ruling as the latest hurdle in the way of the reform process by those who do not want change.

Very powerful people

"The people who are throwing these hurdles are very powerful people who do not want this Proposed Constitution to sail through (and) that is why they have employed every trick to derail it," he added,.

Abdikadir said Kenyans should also demand to be told who altered the document, which even MPs failed to change, to include the words "national security"."Don’t be fooled. The ruling by the constitutional court is not an accident and neither is the insertion of the words "national security" because all these are efforts to derail the process," he added.

Muslim leaders who addressed a Press conference yesterday said the ruling would not stop the reform train. Addressing the Press at Nairobi’s Jamia Mosque, the leaders described the ruling as "a desperate attempt to derail the new constitution".

"We remain steadfast with our fellow Kenyans who are committed to ushering in a new constitutional dispensation," said the Chairman of the Supreme Council of Kenya Muslims Prof Abdulghafur Al-Busaidy who read a statement.

The leaders dismissed the ruling, filed in 2004 by a section of church leaders saying it lacked legal merit and was made in bad faith.

They also rejected the judges’ view that Kadhis’ Courts were ‘discriminatory’ on the basis of section 62 of the Constitution. "They conveniently ignored sub-section 4 of the same section which says that matters of divorce, adoption, marriage and inheritance are excluded from the definition of discrimination," said Prof Al-Busaidy.

The ruling was calculated to sow seeds of discord among Kenyans and to adversely influence the outcome of the upcoming referendum, they added. "It is not lost upon us that the passage of the Proposed Constitution will directly affect the tenure of office of the three judges, if the new constitution passes," read the statement.

Earlier, Chief Kadhi Hammad Kassim urged Kenyans to remain calm as the matter was sorted out through proper legal channels.

"We also urge Christian leaders to exercise tolerance of other faiths and avoid issuing sermons that incite their flock against the Muslim community," he advised.

Jamia Mosque Committee member and former MP Billow Kerrow dismissed the claim that using public funds on the courts was illegal. "Like all Kenyans, Muslims also pay taxes. In fact, businesses owned by Muslims contribute significant amounts to the taxman yearly. We don’t deserve this disrespect," he said.

Assistant Minister Kazungu Kambi also dismissed the ruling, adding the Judiciary should not be used to derail the reform process. He said the public mood should not be "fouled" by the ruling.