High Court fans the flames of Kadhis court firebrand in constitution

By John Harrington Ndeta,
NAIROBI, Kenya _ MAY 26_High Court of Kenya on Monday made a historic ruling in a case filed in 2004 by church leaders seeking to expunge Kadhis courts from the constitution. A three-judge bench comprising Justice Joseph Nyamu, Justice Mathew Anyara Emukule and Justice Roselyne Wendoh declared the inclusion of Kadhi courts in current Constitution illegal and discriminatory.

Church leaders in Kenya led by Moderator of Presbyterian Church Rev Jesse Kamau, Bishop Silas Yego of Inland  Church, Bishop Margaret Wanjiru of Jesus Chris Alive Ministries, Dr David Githii (Presbyterian Church), Bishop  Arthur Gitonga(Redeemed Gospel Chuch) and Bishop Boniface Adoyo (Nairobi Pentecostal) among other had in 2004 applied to court seeking removal of Kadhis courts in the constitution of Kenya.

The plaintiffs contended that Kadhis courts could introduce Sharia law in Kenya as part of the wider Islamic agenda to acquire political power, supremacy and control of the entire continent of Africa.

In their ruling, the judges said the decision to include Kadhis courts in the Kenyan constitution favored Islamic religion over other religions operating in the country.

The court further said that the entrenchment of the Kadhis courts in the Bomas draft had a hidden agenda intended to advance and promote the popularly known as Abuja declaration whose main objective was to turn Africa into Islamic continent..

One of the contentious issues in the proposed constitution set to be voted for in August 4 referendum is the inclusion of the Kadhis courts in the judicial systems of the country. Under the proposed law, public funds would be used to run Kadhis courts just like any other Subordinate courts in the country. The judges argued that this would amount to "separate development of one religion and religious practice" contrary to the principle of separation of state and religion.

The bench also held that the enactment and application of Kadhi’s court to areas beyond the ten mile coastal strip specified during their establishment in the colonial times is unconstitutional.
To this effect, the judges declared that section 66 of the current constitution (under review) which introduced the Kadhi’s court as infringing on the constitutional rights of other religions in the country.

Reaction
The High Court ruling that inclusion of Kadhi’s courts in the constitution was illegal continued to elicit mixed reaction from a cross section of Kenyans.

Proponent of the YES campaign for the adoption of the proposed constitution which also provides for Kadhis courts have held that these court are meant to apply to Muslims who choose it for application of family law such as inheritance, marriage, divorce and personal status

But Kenyan Lawyers have stood up against the ruling averring that once an article is in the constitution, the only court of law mandated to query or reverse constitutional matters is the Interim Independent Constitutional Dispute Resolution Court or a constitutional court set up and mandated by Parliament period.

Kenya's Attorney General, Amos Wako

Some have even read a sinister motive in the ruling considering that the Chief Justice, all Court of appeal Judges and High Court Judges are required to be inducted afresh after being vetted by Parliament if the proposed constitution goes through come August 4th 2010. Some have read the ruling as an act of desperation by the Judiciary to derail the attainment of a new constitution and block reforms targeting the widely perceived to be a corrupt institution in the land.

Politicians speaking to the press at the Parliament buildings on Tuesday and led by Tourism Minister Najib Balala said the timing of the ruling by a three judge bench was suspect coming four years after the case was filed in court and targeting the 2005 referendum. Balala said the High court does not have the power to amend the constitution thus rendering the judges’ ruling null and void and that it was only meant to derail the constitutional review process and avoid reforms targeting the Judiciary.

Minister for Northern Eastern Development Mohammed Elmi on his part said the ruling did not particularly target Islam or Muslims but that it was being advanced by anti-reformists.

Sports and Youth Assistant Minister Kabando Kabando on his part said: “The ruling was clearly a desperate, belated attempt by merchants of impunity to divert public attention from dialogue on the constitution and derail the ‘Yes’ campaigns.”

Lands Minister James Orengo said it was regrettable that the courts can be influenced into making such a decision through corruption and questioned the ruling’s timing that he assured would not interfere with the forthcoming referendum.

Orengo questioned the character of the three judges in the sense that all of them have at one point or another presided over cases of corruption including the Anglo Leasing and Goldenberg scandals.
Former Justice Minister under which the judiciary fall Martha Karua said the ruling had brought the judiciary into contempt and that it was meant to scuttle the review process. Karua said the move was also a clear manifestation of the Judiciary’s resistance to reforms.

On his part Attorney General Amos Wako sought to assure Kenyans that the decision of the high court to exclude the Kadhi’s courts from the 2005 proposed draft does not affect the present constitutional review process and the referendum scheduled for August 4.
 
The AG who spoke from London said that contrary to decision of the High Court, it is the constitutionally established Interim Independent Constitutional Dispute Resolution Court which has exclusive jurisdiction to make decision to matter related to constitutional review.

“The dispute court is the only one which has jurisdiction to decide on matters related to  current constitutional review process” said Wako.

Consequently the AG has filed a notice of appeal to the Appellate Court of Kenya.
On the NO side, church leaders opposed to the proposed constitution welcomed the court ruling terming it a triumph of light over darkness. 

Speaking at a press conference in Nairobi the church leaders led by the National Council Churches of Kenya Secretary General Rev Canon Peter Karanja said the ruling was timely and would help inform ongoing debates on the inclusion of Kadhis court in the proposed constitution.
Canon Karanja said that it is not too late to amend the proposed constitution and give Kenyans a new constitution agreeable by the majority.
“It is not too late to achieve the constitution but parliament should make amendments before referendum”, said Karanja.