Experts can lead the way out of Kadhi’s Courts impasse

Ibrahim Rashid

The Committee of Experts (CoE) on Constitutional Review has soaked in criticism from religious and political leaders since it made public what it considers as contentious issues.

The Committee also classified other concerns as resolvable within a short while.

The CoE’s statutory mandate and timeline to peruse previous drafts and solicit further submission from the public and other stakeholders to produce a harmonised draft constitution is crystal clear.

In such a short time the CoE confirmed receipt of over 12,000 submissions before their regional hearings by July.

After rigorous analysis, the team listed preferred system of government, devolution and transitional arrangements as the three main issues as contentious that Kenyans would like to address before a new document is taken to a referendum.

The Kadhi’s Court has been in operation since Independence, albeit with limited jurisdiction. However it has been operating under the Constitution of Kenya since 1963.

The Court has jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties are Muslims and, therefore, cannot be contentious at any level.

What harm has it done to members of other faiths? Could this be a ploy to antagonise bona fide Muslims and deny the country a new constitution?

Seems unavoidable

Without appearing to besmirch their reputations and integrity, shouldn’t any universally credible constitution hold the majority accountable to the minority’s well being?

Why won’t the majority Christian brothers and sisters in this spirit support a credible constitution that upholds the minority Muslims’ religious rights?

Kenya Church leaders should emulate Dr Rowan Williams, the Archbishop of Canterbury, of the Church of England who said in February last year that adoption of certain aspects of Sharia law in the UK "seems unavoidable".

And for that, Dr Williams faced the wrath of the British media, Church, leaders and populist politicians, but he categorically told them they have to "face up to the fact".

He was only advocating for the rights of migrant Muslims and their either second generation British-born Muslims.

Prime Minister Gordon Brown and the Lord Chief Justice, Lord Phillips, applauded the archbishop for his stand.

Why can’t Kenya’s two principals of the Grand Coalition address the neutrality of the Committee of Experts on the Kadhi’s Courts and root for retention of the Courts?

Like Williams argues, adopting parts of Sharia law (Kadhi’s Courts here) would help maintain social cohesion. For example, Muslims could choose to have marital disputes or financial matters dealt within Sharia courts.

Right to vote

Sharia courts and the Jewish Beth Din, which already exist in the UK, fall into the category of Kadhi’s Courts.

During the political parties retreat in Mombasa with the CoE, some political leaders were quoted as saying "Countries only write or review constitutions when faced with crisis".

Did they perhaps imply that Kenya was not in crisis and therefore did not need a new constitution?

What more crises do we need more than the National Accord and Reconciliation Act 2008 that was penned in the blood of over 1,300 innocent Kenyans who were merely exercising their democratic right to vote?

The writer is a political and development analyst.