Christians have no basis for rejecting Kadhi’s courts

Joseph Omole

The Christian Ufungamano and the House of Anglican bishops groups have so far asserted that Kadhi’s courts is a contentious issue.

Their main argument is that since the draft talks about separation of State and religion, the constitution should, therefore, not treat any one religion preferentially.

However, the groups’ argument lacks sound logic and firm principle in castigating the inclusion of Kadhi’s courts in the draft.

The Christian groups appeared to forget the fact that Kadhi’s courts is an accrued right for the Muslims by them having been part of our legal system since Independence. In legal jargon, once a group has had to practise a certain way of life for some time, the group ends up attaining it as an accrued right. This is what has happened to our Muslim brothers and sisters.

The draft constitution at sections 208(b) and 209 provides for the establishment of the Kadhi’s courts merely as subordinate courts for marriage, divorce and inheritance applicable only where both the parties are Muslims. But in doing so, it has clearly not only protected the Muslims’ rights, but more importantly, it has gone out of its way to protect the rights of the very Christians with regard to the latter’s fear of the possibility of introduction of sharia law.

In Section 209(6), it states that the jurisdiction of a Kadhi’s court shall apply on Muslims alone in those laws relating to personal status, marriage, divorce and inheritance where both the parties are Muslims. The draft adds in Section 49(2) and (6) that every individual has the freedom of religion and shall not be compelled to do anything contrary to his or her faith.

The Kadhi’s courts are provided to the Muslims as a minority right. Section 44 outlines the entitlement of the minority groups to enjoy their rights and fundamental freedoms set out in the Bill of rights. As a minority group it befits our constitution to protect any minority group, Muslims included. Therefore, by our constitution mentioning the Kadhi’s courts, the State is not made to prefer one religion over the other.

Word of honour

In advancing their argument some Christians have tended to forget the manner in which Kenya as a nation came into being. The coastal strip belonged to the Sultan of Zanzibar up to 10 miles inside the mainland. Originally this was not part of Kenya. In order for this strip to be included into the Kenyan country so as to provide a port of entry from the sea, an agreement had to be signed in 1963 between Kenya (Kenyatta), the Sultan Seyyid bin Khalifa of Zanzibar and the government of the UK.

The Sultan had to be satisfied that his subjects’ minority rights would be distinctly protected at all times. And so our founding father and young nation undertook to assure the Sultan that this was always going to be so.

This was our word of honour, which we should never renege on if we are to be worth our salt.

Just as Christians have a right to demand that the constitution should in section 35 specify clearly that life begins with conception and ends with death regardless of the beliefs of other religions, so, too, are the Muslims right in demanding that their minority right be entrenched in the constitution.

Perhaps it is time Christians emulated the spirit of tolerance of Pope John Paul II who allowed Muslims to build a mosque in Rome during his reign.