Monday, May 03, 2010

Consitutional Anatomy - 001- Kadhi's Courts

Jumping straight into the fray, I want to get started on one of the more thorny topics - kadhi's courts. The churches have made this one of the stickling issues to their opposition of the draft constitution, so I sought to read the clauses myself and see what all the noise was about.

At first glance the sections on Kadhi's courts in the current constitution (s.66) and draft constitution (s.169,170) appear similar.
  1. Both give parliament the power to determine how the Kadhi courts will be run
  2. Both make the courts subordinate courts. Subordinate courts means that their decisions can be appealed on and overturned by superior courts. 
  3. Another similarity is that both specifically state that these courts will deal only with matters of a personal nature, to people professing Islam.
I have noticed at least one difference. In the proposed constitution, in addition to professing Islam one is also required to submit to the jurisdiction of the court. I'm curious how this works, if I'm Muslim and I know I'm likely to come out on the losing end of a matter ending up in this court, can't I just say that I do not submit to the jurisdiction of the court? I guess the person bringing the claim would then have to go to the high court.

I've also picked out one more mention of Kadhi's courts in another sections in the proposed constitution, in section 24(4). This section limits the rights and freedoms of Muslims appearing under the Kadhi's courts, who might not enjoy the Bill of Rights in its absolute form.

The debate on Kadhi's courts has been expanded to one of equality of religions, so I went fishing for what the draft says about this. I did not find any section specifically giving all religions equality. What I found was sections 27(1) giving all persons equality, 27(4) and 27(5) preventing the discrimination of someone based on their religion, and 32 giving every person the right to freedom of religion and the preamble recognizing Kenya's cultural, ethnic and religious diversity.

Away from the legalese what does the inclusion of Kadhi's courts in the constitution mean to you in practical terms? How does it affect the sufurias of ugali on your table?


Anonymous said...

As a non-Muslim, he Kadhi courts drama does not affect me, and It do not see the problem for non-Muslims. This is just jealously, the "Church" (don't even get me started on the hypocrisy of it all), is looking for more power. They want to "fight" to exclude the Muslims to get funding. Anything with madrasa, Islam, Muslims, in the west is seen as a threat, and the money spigot pours to remove that threat.

I am surprised the church hasn't started scream Al-Qaeda, this Al-Qaeda that.

Harry Karanja said...

@anon. An interesting point of view, but I don't understand what you mean by Muslims not getting funding if the courts are excluded from the constitution.

Anonymous said...

By funding I meant funding from the western, right wing "Christian" groups to the Kenyan "Church". The "fight against Islam" will generate donations.

The recent attempt in New York, has made many go hardline.

See comment 1046 in the New York Times (will require registration).

"I'd like to see it easier for our hard working neighbors to the south, a majority of which are Christians to legally emigrate to the US while making it harder for those in the Middle East to even step foot in America. Just my $0.02?"

To clarify, the "church" is looking at 2 things:
1. Money from the west
2. A seat at the political table.