Ruling on Kadhis’ Courts was judicial impunity

I.MUGANDA & B. BIRIQ

On May 24, three High Court judges held that section 66 of the Constitution is inconsistent with section 82 and that the inclusion of Kadhis’ Courts in the current law was discriminatory, oppressive and unconstitutional.

We have stretched our collective minds and belaboured the peculiar brand of legal reasoning informing the judges’ decision and conclude this was blatant judicial hooliganism. It is legally untenable that one section of the Constitution is inconsistent with another.

But why section 66 and not section 82 that is at fault? Was the selection of one section over the other a game of chance? Were the judges trying to tell us that, in terms of importance, the later sections are the test against which the preceding sections are tested thus informing their selection?

The irony is that if we were to accept the judges’ reasoning, the Chief Kadhi should deliver a ruling declaring the High Court constituted by section 60 of the Constitution illegal, and a waste of public funds. This approach would reduce the weighty issues of constitutional interpretation to legal gibberish and a mere game of chance.

A disturbing aspect of the ruling is its bigotry and mindless diatribe against Islam. The court delved into issues like the aims of jihad, burning of churches, ‘Of an Islamic Agenda’ to take over Africa and rights of women in Islam.

This was irresponsible and reckless. Courts do not operate in a vacuum. They make decisions conscious of the social consequences of their pronouncements. It is a judge’s social responsibility to ensure the interest of the nation and its people is not endangered. We do not see how the judges acted in anybody’s interest. In any case, it is not the business of judges to join the bandwagon of religious extremism and warlords.

Sultan of Zanzibar

This bizarre piece of jurisprudence also attempts to limit Kadhi Courts to the 10-mile coastal strip. They, however, failed to discuss how the Court ended up in the Constitution in the first place, the circumstances under which Kenya accepted them, whether Kenya can renege on the promises given to the Sultan of Zanzibar and the agreement to end the Shifta War.

The judges would have mentioned that Kenya is not a federal state and that it will be wrong to expect a citizen to enjoy a right in Mombasa and not have the same right in other parts of the country. At the minimal, expansion of Kadhis’ Courts will be informed by this justification.

It is not lost on Kenyans that the Constitution of Kenya Review Commission, which was a defendant in the case, had been wound up and the Wako Draft defeated.

This means the judges heard a case without a defendant and like a soldier honoured posthumously, resurrected a case that was buried in court archives for two years. This was a classic case that should have been dismissed on the grounds it had been overtaken by events.

There is no clear explanation of how the entrenchment of Kadhis’ Courts has affected Christians in the 50 years of the court’s existence. Was this not a waste of judicial time and public funds? In any event, it is against natural justice to condemn a party without being heard, as fair trial is a hallmark of impartial tribunal. But, there are reasons this ruling is fundamentally misguided and constitutionally incompetent.

First, a basic constitutional principle is that the Constitution is distinct from ordinary law and as such cannot be inconsistent with itself. The judges accepted as much before the late somersault into their conclusion.

Second, the ruling was legally unsound and a fallacy. Ponder this: "Section 66 of the Constitution on Kadhis’ Courts is inconsistent with the secular nature of the state and... we declare that section 66 does not advance the values which characterise a secular state".

in the name of God

Is Kenya secular? True, Kenyans are religious people. You could only fault them for their loyalty to tribe over religion and their country but they cannot be described as secular. Every oath is taken in the name of God and our National Anthem epitomises our religiosity.

However, the judges want us to believe, despite clear manifestation to the contrary, that Kenya is a secular state. If the judges got this fact wrong, is it surprising they got everything else wrong?

It is scandalous for a judge to challenge validity of the Constitution they swore to protect. The three judges have violated our Constitution, and when judges challenge validity of the constitution, they should do the decent thing and leave the Bench.

Writers Innocent Muganda and Abdiwahid Biriq are advocates.