Only seven months to end of the Chief Kadhi's term, debate has intensified among the Muslim community on possible successor.
Already sharp differences have merged about the process, with some clerics claiming the seat has since 1852 been a preserve of one coastal community.
Kenya Muslims National Advisory Council national chairman Sheikh Juma Ngao yesterday said the process to recruit the holder of the office should be competitive.
"We will move to court to block unfair selection. Muslims from all the 47 counties who qualify should be given an opportunity. This cannot be a seat for the Coast only,” he said.
He added that the Judicial Service Commission (JSC) should consult widely with all Muslim groups and end the tradition of sourcing the office holder from the Coast.
Supreme Council of Kenya Muslims (Supkem) has dismissed utterances by some faithful to imply that lobbying for the position of outgoing Chief Kadhi Ahmed Muhdhar had intensified.
Supkem national chairman Hassan ole Naado dismissed the claims, stating that the Chief Kadhi is a judicial position that is not influenced by lobbying or politics.
“We should allow constitutional institutions to carry out their mandate without undue interference,” said Ole Naado.
Further, he argued that the term of the current Chief Kadhi had not expired, and that the position had not been advertised.
But Sheikh Ngao and Hassan Kinyua vowed to stop the JSC from handpicking the Chief Kadhi and ensure a competitive process. They said they have already written to the JSC over the concerns.
Coast Supkem chairman Sheikh Mohdar Khitamy dismissed the perception that the Coast region and a particular community was favoured in the selection of the Chief Kadhi. He said the process had been competitive, particularly since the 2010 Constitution was enacted.
“People are invited to apply and are shortlisted. JSC has its procedure of selecting judicial officers and there should be no panic about this,” said Dr Khitamy.
Sheikh Omar Twaha, the Muslim Yatima Foundation chairman, argued that it was important to have a Chief Kadhi with experience in judicial matters in additional to academic qualifications.
“The Constitution does not have an article that reserves the office of the Chief Kadhi to a particular family, tribe or region. What is required is the academic qualification, judicial experience and integrity,” he argued.
Kadhi’s courts are established under Article 170 of the Constitution and their jurisdiction is limited to the determination of Muslim law relating to personal status, marriage, divorce or inheritance in which all parties profess the Muslim religion and submit to the jurisdiction of the court.
Apart from the Chief Kadhi, who sits in Mombasa, and his deputy in Nairobi, there are 65 Kadhis spread across the country.
The new Chief Kadhi is to be recruited under the revised policy of the Judicial Service Commission scheme of service, a position that is now equated to that of a Chief Magistrate.
The permanent and pensionable position also attracts allowances such as housing, commuter allowance, medical cover and leave.
For one to qualify for the position, he must have a degree in Islamic law or its equivalent, profess the Islamic faith, have no charges against him with complaints commission or employers, and have no integrity issues.
In the past Muslims have raised the Chief Kadhi appointment issue, with the prevailing opinion being that the government imposes the office holders on the community without involving them or their scholars.
But according to Coast-based historian and activist Stambuli Abdillahi Nasir, the position is contentious because the Muslim community lacks unity.
He said unless underlying differences in the community are fixed, issues surrounding the appointment and moon sighting would always be a source of contention.
“It is not about whether the next Chief Kadhi will come from upcountry or what his ethnicity will be, this issue has always been a reflection of the situation of the entire national Islamic community situation,” said Nassir.
The first Chief Kadhi was Shariff Abdirahman Saggaf, and since then there have been nine other Kadhis mainly from Lamu, Zanzibar and Mombasa.
Sheikh Hassan Omar of the Council of Imams and Preachers in Kenya said Sheikh Ngao should desist from trying to divide the country’s Muslim community along community lines.
“The position does not require ethnicity and tribalism,” said Omar, adding that it should never be decided based on locality.