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Clash between national and personal laws

By Pravin Bowry | October 30th 2013 at 00:00:00 GMT +0300

By Pravin Bowry

Kenya: I am writing this column from Leicester in East Midlands in England where the ethnic minorities are now the majority, and where the Hindu festival of Diwali is about to be celebrated in great national pomp with the streets lit beautifully in true Indian fashion.

I am informed all this will change to Christmas buntings towards December and then in early April in the spring to the Sikh festival of Vishaki.

This multi-ethnical climate is also creating intricate legal issues which English courts have had to grapple with and age old British traditions, concepts and even laws are being questioned and challenged in the highest courts of the land.

Celestina Mba is a devout Baptist Christian and mother of three from Africa who settled in London and is a children’s care worker.

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She is creating legal furore by appealing to the Court of Appeal against the decision by the employment tribunal forcing her to work on Sunday, her Sabbath day.

Religious right

Apparently her claim failed in the lower court on the basis that Sabbath was not ,on evidence deduced, a ‘core component’ of the Christian faith because some believers have worked for centuries and are prepared to still work on Sundays in line with work demands.

If her appeal succeeds it would establish a new religious right in the workplace and could result in other Christians refusing to work on Sundays even in the essential services as per the dictates of the Fourth Commandment in the Old Testament.

Many campaigners are hoping for a rare victory for Christian values after a period in which English and European Human Rights Court have used equality laws to promote secularism and to treat other faiths more favourably than Christianity.

Holy day

English courts have protected the rights of Sikhs to wear turbans and the traditional bracelet called the ‘kara’, afro cornrow haircuts, the wearing of the  hijab and the Muslim right to fast.

The groundbreaking and unusual case of Mba is already posing pertinent questions amongst the other communities in England. The Muslims are likely to ask to take Fridays off being their holy day and Jews might be able to claim Friday evening to Saturday evening with Seventh day Adventists also joining in.

Kenyan courts and justice system has for historical reasons followed the English legal principles and indeed the common law slavishly giving undue credence to other jurisdictions more so in terms of personal laws.

The law that all English statutes prior to 12th of August 1897 are still applicable in Kenya is now obsolete and there is merit to review it and empower Kenyan courts to develop and expound local jurisprudence. And let us now move from personal laws to personal relationships in the realm of law enforcement.

Age old statutory rules of investigations and procuring admissible evidence  in courts are also surprisingly changing and undercover detectives and police officers  have been given the green light to have sex with people they are spying on if ‘it becomes necessary and proportionate’.

Despite the public position that such behaviour is unacceptable, lawyers acting for the Metropolitan Police are arguing that having sex with a target would be justified to prevent serious crime or to maintain cover.

This matter came for public debate when eleven women and one man sought damages in a case against the police for emotional trauma they say was caused when undercover agents infiltrated their environmental campaign and engaged in sexual relationships with them.

As time goes by even in Kenya, new and many unimaginable situations are likely to come before courts and the liberalised climate of bringing public interest legislation and the freedom  given to litigants by  the now often used remedy of judicial review will result in many personal laws being defined not by legislation but by courts.

Not so long ago the media was abuzz with the story of two men in Mombasa who contracted to share one woman claiming they both could not live without her, and the woman confessing her love for both men and her inability to chose between them.

Prior to that incident, Ms. Audrey Mbugua formerly known as Andrew Ithibu went to court seeking orders to have the Kenya National Examinations Council (KNEC) recognise her sex change by changing her examination certificates. A step taken after all her requests to KNEC to effect the change had been to no avail.

Diverse customs

Despite these interesting developments, Kenya is often quoted in the Commonwealth to have integrated different religious and ethnic beliefs, customs and laws into a functional legal framework.

We still have personal laws applicable to Hindus, Muslims and African Christians being applied in concert with other laws.

The Law of Succession Act is accepted all over the common law countries as the most profound example of integrating different set of ethnic rules into law.

Not to mention that among Kenya’s sources of law is customary law which essentially takes into account the rich and diverse customs of the county’s ethnic communities.

Maybe its about time English law learns a lesson or two from its former colony and now its commonwealth partner.

The writer is a lawyer.

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Diwali Court of Appeal religion
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