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So judges, why not let it alone?

By | May 26th 2010

Andrew Kipkemboi

Not for the first time and may be not for the last time have judges delivered a judgment that has left a sour taste in the mouths of many. But for this one, you may want to ask just how unlucky can Kenya be?

Overnight, Justices J Nyamu, R Wendo and Anyara Emukule have been catapulted to national psyche. By choosing to ignore the whisper from not-so-religious Melbourne, as intoned by Lord Hailsham of St Marylebone — Why not let it alone? — the judges have unwittingly waded into uncharted territory.

Their findings on the constitutionality of the Kadhis’ Courts evince a rare judicial intervention without a parallel.

And the judgment like many others, turns the spotlight on the Judiciary about its sense of judgement, efficiency, credibility and impartiality.

In truth, to deliver a ruling on a document that has stayed in the freezer for six years smacks of ill-judgment long-associated with some members of the Bench.

When they admit their obvious impediment, but yet make pronouncements smothered in legalese, the three judges plunge the country into a constitutional imbroglio. But then the Constitution is supreme and therefore anything else becomes subordinate to it.

In the end, however, it gives credence to the often-held suspicion that the Judiciary is not independent or that powerful forces leant on it.

For conspiracy theorists, the more they think about the events at the Constitutional Court on Monday; the insertion of "national security" in Article 24 three weeks ago; so does the feeling that there are dark forces keen to sabotage the new attainment of a new constitution. One of the best attributes of the Constitution is that it will unclutch the grip of power from the venal elite. It is anticipated that it will create honesty and equality by sweeping out the scoundrels and ensuring that the dregs of society too, find their place at the high table. And therein lies the rub.

Three Kadhis

The ruling could yet be a poignant reminder of how much the rich elite and those in high places have wanted the Proposed Constitution to founder especially when the debate of a document sprinkled with good intentions is narrowed to abortion, Kadhis’ courts, land and county governments.

Back to the judgment, Kadhis’ courts are designed to adjudicate on questions of Islamic law relating to personal status (for example marriage, divorce and inheritance) in proceedings in which all parties profess Islam. In other words, it is a dispute resolution forum for Muslims on matters relating to marriage, divorce and inheritance.

Currently, there are three Kadhis and 13 Representatives stationed at Eldoret, Bungoma, Kisumu, Nakuru, Nairobi, Nyeri, Isiolo, Marsabit, Mandera, Wajir, Garissa, Lamu, Mombasa and Kwale. This should give you an indication of how small a budget it must take to run them.

From their nature, Kadhis’ courts have no mandate or capacity to engender the spread of Islam. They do not carry out Islamic teachings. Neither can they forcibly apply its jurisdiction on non-Muslims.

To focus on the identity of the Kadhis’ courts as a reason to demonise them is therefore to miss the point. In fact, I find it deplorable that an argument is being advanced that almost narrows the existence of Islam to the Kadhis’ courts. It would appear that the real question that is vexing the Christian clergy is the spread of Islam.

You hear this more often when they talk about the Abuja Declaration. If that were the case, then their problems run deeper than that. For as long as Muslims are free to set up mosques throughout the country and have the freedom to practice the teachings of their faith, the removal of the Kadhis courts would be pyrrhic victory.

In fact, the ruling has the potential of fanning the embers of religious bigotry, which has suddenly engulfed the on-going campaigns on a new constitution.

The history of Kadhis’ courts is intricately entwined with the independence of Kenya. And they have not been a threat to any religion neither is it legitimate to argue that because it is funded by the exchequer, therefore the taxpayer is funding Islam. The magistrate courts spread all over every town in the country apply the African Christian Marriage & Divorce Act in resolving disputes relating to marriage and divorce involving Christians.

They also apply the Succession Act on matters relating to inheritance. The traditionalists too can go before the courts and with the help of experts on local tradition, their disputes on issues on marriage, divorce and inheritance may be resolved.

Nigerian journalist

If the resolutions of the disputes affecting the personal status of Christians and the traditionalists are funded by the Exchequer why should Muslims be an exception?

The court is supposed to be a sanctuary of the oppressed, but when 26 bishops came calling, the court assisted them in hoisting a hammer to hit a fly.

Perhaps we need to remember the tragic story of Isioma Daniel, the Nigerian journalist who with a few sentences about Miss World beauty pageant, 2002, spun her life and country into chaos when her article sparked nationwide violence that left over 200 people dead. Recalling the incident, she later said, "I unknowingly lit the match. I have not dropped it yet; it is still in my hand."

The writer is Foreign News Editor at The Standard.

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