I have been thinking about this issue and wonder why Christian Leaders are being castigated on thier stand on this. I do agree with the article below and disagree on the Prime Minister’s stand on the issue of kadhi’s courts, though i think with his recent comments he has been playing to the gallery just to generate positive reviews.
Here is what a respected advocate of the high court had to say…
A Commentary by Pete Ondeng and Peter Waiyaki
The public discourse on whether or not the Kadhi Courts should be included in the constitution
has been wrongly interpreted by many to be a Christian vs Muslim affair. The often uninformed
rhetoric by hard liners on both sides of the argument adds an unnecessary and potentially
explosive element to the already charged political atmosphere.
The issue here is not about religion, but about the constitution. The move to change the
current constitution springs from an acknowledgement by most people that there are wrongs in
the document that need to be made right. There are some basic rights, for instance, that the
original constitution did not address, and which need to be enshrined in the new document.
Similarly, there were some provisions that were included by those who negotiated the Lancaster
House document that no longer hold water and need to be scrapped.
The Parliamentary Select Committee (PSC) retreat in Naivasha, which was expected by many
to degenerate into an ODM vs PNU muscle-flexing contest, pleasantly surprised the nation by
reaching consensus on almost all of the so-called contentious issues.
In regard to the Kadhi Courts, however, the PSC missed the point and actually went astray.
Curiously, the draft constitution that emerged from that retreat omitted a simple but critical
phrase that had appeared in all the many draft constitutions that have been produced since the
first one in 2002. All previous versions of the Draft Constitution have consistently stated
categorically that “State and religion will be separate, there will be no state religion and that all
religions will be treated equally. These provisions have now been removed, leaving only that
There Will Be No State Religion. Most people are not aware that this small but significant
change was made in Naivasha.
Why was this phrase removed, and what would be the significance of its absence in the
constitution? The only logical conclusion would be that the new constitution does not
acknowledge all religions as equal.
The Constitution enunciates equality for all citizens. Further it provides that nobody shall
be discriminated against by reason of their religion, among other things. Unfortunately, the
Kadhi courts are themselves an institutionalization of inequality. They seek to favour one religion
over others by creating and protecting and providing for state funding of a purely religious
system of dispute resolution.
One of the central arguments from those who advocate for Kadhi courts to be included in
the constitution is that the courts have been in the constitution since independence. This is very
true. The courts did not accidentally end up in the constitution but were a part of the negotiations
between Jomo Kenyatta and the Sultan of Zanzibar which led to the 10 mile coastal strip being
incorporated into the Republic of Kenya at independence.
However, these historical reasons and context no longer apply. What was then a
concession to a small part of the country and a very small part of the population has now become
a demand and a right applicable to the whole country
Excluding the Kadhi courts from the new constitution would not in any way hinder the
rights of Muslims to worship Allah or to establish courts and other mechanism of dispute
resolution. The role of the Kadhi as a religious office will remain intact, organized and funded by
the Muslim community, in the same way as other religions will be required to fund their own
The only effect of not including the courts in the constitution would be that, like for all
other religions, there would be no funding using tax payers money, and the offices for Kadhis
would be recognized rightly as religious offices, and not government office. Most importantly,
the draft constitution that will soon be presented to Kenyans for a referendum must include the
important clause removed by the PSC: that all religions will be treated equally.
Pete Ondeng is a development economist & author of Africa’s Moment; Peter Waiyaki is an
advocate of the High Court of Kenya