In a scheme reminiscent of the Islamaphobic campaign in the prelude to the referendum, which gave the country its second constitution in 2010, churches have revived an onslaught against the Kadhi Courts, which there are now calling to be expunged from the country’s constitution.
In its proposals to the current debate on the referendum, the National Council of Churches of Kenya (NCCK) made a raft of recommendations towards the constitutional amendments process, which include the removal of the Kadhi Courts from the constitution.
The umbrella organization for Protestant churches and Christian organizations is calling for an amendment of Article 169, which legislates the Kadhi Courts and replacing it with religious courts.
“This is to provide equality of all religion by ensuring that each can establish their own courts Acts of Parliament,” the proposal states Further, NCCK called for the amendment of Article 24 of the Bill of Rights which it claims exposes Muslim women to unequal treatment.
“The Bill of Rights was intended to be applicable to all Kenyans and therefore the limitation on women, children and vulnerable members of Muslim community should be removed as it exposed them to unequal treatment,” the proposal further stated.
The calls have elicited strong reaction from the Muslim leadership with the National Muslim Leaders Forum (NAMLEF) chairman Abdullahi Abdi terming the schemes as despicable and driven by intolerance.
“At these times when calls for unity of Kenyans should be of paramount importance, it is strange that intolerant elements within Christian churches are fervently attempting to plant seeds of discord which are ultimately aimed at dividing Kenyans along religious lines. This cannot be accepted,” he said.
The chairman further accused NCCK for insulting Kenyan Muslims by claiming that Muslim women were being treated unfairly as a result of the Bill of Rights. “It is monstrous and an insult to the conscience of every Muslim to claim that their faith was insulting its followers,” he added.
He said that while every Kenyan is entitled to give their views on issues of constitution reform, this should be made in tolerance and respect of others.
“We need to tolerate and respect each other. We are not interfering in the affairs of Christians, what is their interest to interfere in our religious affairs. Such kind of myopic attitude is not good for a cohesive future of this country which we all desire to see,” he pointed out.
More so, he said the Muslim leadership, which include NAMLEF and the Supreme Council of Kenya Muslims (SUPKEM) are considering withdrawing altogether from the Inter-Religious Council of Kenya (IRCK) due to the intolerance exhibited by the NCCK which is among the main partners in the organization which brings together the country’s major faith groups.
In 2003, SUPKEM withdrew from the faith led Ufungamano Initiative after other faith groups backed proposals to remove the Kadhi courts from the constitution. The then SUPKEM chairman Prof. Abdulghafur El Busaidy accused other faith groups of “backstabbing” stating that the council would not henceforth work with them after they showed open animosity to the Muslim cause.
After the withdrawal, Ufungamano lost its glimmer and was relegated to a moribund movement. The proposals being pushed by NCCK formed part of the fundamental campaign by churches in the run-up to the referendum which culminated in the adoption of the country’s constitution in 2010.
Back then, NCCK and the so-called Kenyan Church-a grouping of evangelical churches made the same calls calling for the Kadhis courts to be removed from the constitution and enacted as an Act of Parliament.
The rationale was that as an Act of Parliament, the courts could easily be thrown out of the country’s legislation by a simple majority unlike in the constitution where it firmly buttressed. The main thrust in the campaign against the courts were premised on the allegations that retaining them in the constitution was a backdoor attempt for the introduction of the Shariah law in the country.
The courts whose current jurisdiction covers issues of personal law of Muslims-marriage, divorce and inheritance among parties who profess to be Muslims-have been part of the judiciary structure of the country even during the pre-colonial times.
They were retained in the independence constitution as part of an agreement between the then British colonial masters, Jomo Kenyatta who was then the Prime Minister and Sayyid Jamshid bin Abdulla bin Khalifa the Sultan of Zanzibar to hand over the jurisdiction of the ten-mile coastal strip to Kenya.
The coastal strip was under the sovereignty of the Sultan of Zanzibar and the agreement stipulated the Kadhi courts along with Muslims and their institutions would be protected at all times in independent Kenya.
“The jurisdiction of the Chief Kadhi and of all other Kadhis will at all times be preserved and will extend to the determination of questions of Muslim law relating to personal status (for example, marriage, divorce and inheritance) in proceedings in which all parties profess the Muslim religion,” stated the agreement which formed the basis for presence of the Kadhis courts in the Kenyan constitution.
During the constitutional review process, Muslims called for the expansion and reform of the jurisdiction and structures of the Kadhi’s courts but this was not achieved and the courts were retained in their present format in the Harmonized Draft Constitution which Kenyans overwhelmingly voted to adopt.
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