The anchoring of the Kadhi Courts in the constitution is an issue which has dominated the current debate on whether to adopt the proposed constitutional changes or reject them.
Christian leaders and some politicians are also reported to oppose any move towards the retention of the Kadhi Courts in the constitution and have declared that such a move would “lead to the nullification of other religions”. They further suggest that such a move would make it look as if Islam was the official state religion in Kenya.
This demand for the protection of Muslims rights through ways such as the anchoring the Kadhi Courts to the constitution is not new and dates as way back as to the time of the British colonialism. Many of us have failed to recognize that the Kadhi Courts have been part of our Constitution and were included in the constitution at the time of Independence.
Personal law involving Muslims is handled by the Kadhi Courts and Muslims have been unanimous in their demand for the anchoring of the Kadhi to the Constitution.
The claims by some Christian groups to the effect that “Kenyans want separation of State from religion and no interference with the freedom of worship” are in contradiction with each other. Muslims, unlike Christians do not separate the secular from the sacred and so the removal of the Kadhi Courts from the Constitution would amount to interference with the freedom of Worship guaranteed to Muslims in our constitution.
The Kadhi Courts in Kenya have jurisdiction over Muslims personal law. The Kadhi (Muslim judge) has the power of adjudicating on matters related to Muslims’ personal law in accordance with the Sharia (Muslim law). The Kadhi court has jurisdiction regarding the determination of questions of Muslim law related to personal matters such marriage, divorce, and inheritance. The parties involved are required to be Muslims. The Chief Kadhi is the head of this institution. The rules of procedure applicable in the Kadhi Courts are similar to those applied in other courts.
Muslim Religious Courts were in existence along the East Coast of Africa prior to the arrival of the British Colonialists. The 1887 Order-in-Council stated that the British Colonialists recognized the application of the Sharia along the Coastal areas of Kenya. Later, the British Colonialists extended the recognition of the Sharia to the interior of Kenya. The British Colonialists treated the Sharia as the fundamental law during the initial period of colonialism but it was later supplemented by the English Statutory Law in matters of the Criminal Law and the Law of Evidence. The Kenyan Coast was for a long time under the protectorate of Zanzibar. The Zanzibar Courts Decree (Section 7) stated that the Sharia was the fundamental law in the Protectorate of Zanzibar. However, the 1917 Evidence Decree replaced the Sharia Law of Evidence in favor of English Law of Evidence. Other Decrees were made which encroached on the supremacy of the Sharia along East Coast of Africa.
Persons domiciled in the protectorate of Kenya as opposed to those living in the Colony were subject to the Sultan’s Court (which applied the Sharia) if they were Muslims. Initially, the Sultan’s Court applied the Islamic Law and Procedure in both personal and public aspects of law among Muslims. The extent of the application of the Sharia was later limited to only personal status laws. The 1923 British Subordinate Courts Order and the Zanzibar Courts Decree of the same year limited the application of the Sharia to civil and family legal matters. Before the promulgation of these decrees in 1923, the Sultan’s Court applied Islamic Criminal Law and the Law of Evidence.
In the Colony of Kenya, the Muhammedan Marriage, Divorce and Succession Ordinance empowered the Kadhi Courts to apply the Sharia among Muslim litigants. The Muslim Courts were under the authority of the Sultan of Zanzibar prior to the arrival of the British Colonialists.
The Kadhi Courts played a central role in safeguarding the interests of Muslims during the Colonial period and continues to play a very significant role in dispensing justice to Muslims in Kenya.
During the negotiations for the Constitution of Kenya in 1962, Muslims were assured that their fundamental rights would in future be protected and preserved by the successive independent Kenyan Government(s) . Muslims were guaranteed at this time freedom of worship and were assured that their rights would be preserved and protected.
In Kenya, the British Colonialists adopted the Indian code in areas such succession. The Indian code was also applied in post independent Kenya before the application of the controversial “uniform Law of Succession” in 1981. Muslims have been consistent in the opposition to the introduction of any law which would conflict with their faith. For example, they opposed the 1967 Commission on the Law of Succession because it aimed at forcing Muslims to abandon their religion through the enactment of a uniform law of Succession.
The law of succession Act which became operational in 1981 after the former President Moi gave consent was meant to have a “universal” application to all cases of intestate and testate succession among Kenyans. Muslims in Kenya waged a protracted opposition to the Law of Succession Act from the day when the Late President Jomo Kenyatta appointed the Commission on the Law of Succession (March 17th, 1967). Muslims were unanimous in stating that the Law of Succession Act threatened to undermine the base of their religious beliefs and their way of life. Muslims demanded that they get exempted from the Law of Succession Act
Islam demands that a Muslim follow Islamic Personal Law and so any move towards forcing Muslim to follow any other law would be tantamount to infringing on their freedom to worship. The Islamic Personal law is binding to all Muslims due to it’s divine origin. The Holy Qur'an guides Muslims on their daily lives and has broadly laid down principles to guide them through the Quranic injunctions as well as the teaching of Prophet Mohammed and those of his successors.
Muslims hold Islamic Personal law with very high esteem. The hold of the Sharia to the Muslims is strongest on the Family Law compared to other aspects of Islamic Law.
There is no doubt that Muslims would not accept to have their lives to be governed by non-Islamic personal laws. Non-Islamic personal laws are likely to be incompatible with Muslims religious beliefs and practices. The Islamic Personal Law affects the core of Muslims life and religion and so any move which would infringe on their right to worship would be met with the strongest opposition possible.
An application of a non-Islamic law would run counter to the numerous Quranic injunctions. Such laws are likely to contradict the teachings of Qur'an and those of Prophet Mohammed. For example, the Uniform law of succession had recommended sharing of deceased property in a manner which would be incongruous with the teaching of the Qur'an. The Qur'an has clearly laid down injunctions outlining how the estate of a deceased person should be distributed (S4:11-14). The divine injunctions are fully binding to Muslims. Muslims are urged to ignore or oppose any law which is in conflict with their faith. It is not possible for a Muslims to be subjected to a law which contradict their faith and at the same time remain a Muslim.
Muslims freedom of worship is guaranteed under Section 22 (1) of the Constitution. The removal of the Kadhi Courts from the Constitution would amount to gross erosion of the freedom to worship. Christian groups should avoid antagonizing Muslims and taking a position which would infringe on Muslims constitutional rights. Muslims also submits that the Kadhi Courts are protected by Section 78 of the Constitution. This Section of the Constitution prohibits the National Assembly from passing laws which contradicts the guarantee(s) enshrined under Section 66 and 78 of the Constitution. Section 26 (1) of the Constitution prohibits the enactment of laws which are discriminatory either in themselves or in their effects.
Hussein Abbas (Muslim)
Mombasa .
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