From: Fabian Mwoshi
Sent: Tue, November 3, 2009 1:42:44 PM
Subject: KADHIS COURTS I-PLEASE IGNORE THE EVANGELICAL LEADERS
I have been following discussions on the Kadhis Courts issue and feel I we should carefully deliberate this issue without creating another basis of dividing our fragile nation on basis of Religion after the number one criteria; Tribalism.
First, the Kadhis Courts as established in the current have their jurisdiction as stated:” The jurisdiction of a Kadhi’s court shall extend to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion”.
Consequently, I beg to differ with the so called Evangelical Church Leaders who are opposed to the inclusion of these courts in draft constitution and are threatening to mobilize their followers to reject the whole draft if the courts are included.
My argument is based on the following:
1) Kadhis Courts only deal with issues of Marriage, divorce or inheritance where both parties are Muslims. How then do they affect the Christians? Why vehemently oppose a law that does not affect you surely? ‘Pilipili usiyokula yakuwashia nini’ we ask?
2) I am a Christian by faith. Christianity is a religion of tolerance of one another(but not tolerance of sin) and promotion of peace and coexistence. What our Evangelical leaders are doing, i.e. calling media conferences, chest thumping and singing solidarity songs is a recipe for disaster should our Muslim brothers and sisters feel they are being marginalized. This country is already divided and haunted by Tribalism. The actions of these Evangelical leaders are dividing Kenyans on basis of Religion. Religious conflicts are harder to resolve than political ones for instance compare the North Ireland Protestant-Catholic conflict and the Kibaki Raila Conflict in 2007/8.
3) Finally, I believe as Kenyans we can still arrive at a consensus if we choose to ignore the Evangelical church leaders point of view. I feel we should retain the Kadhis courts in the draft constitution(as they currently are in the current), and discuss more important issues like Executive Presidency vs Parliamentary system,among others. We should be wary of such leaders whose agenda I strongly feel is either to derail the whole constitution or to seek mere publicity to propel them to political offices(preachers are turning politicians). We should continue living in peace, harmony and tolerance of one another regardless of our Religion, Tribe, Race, Age, Social status, Political inclination among others.
I welcome your opinion on this.
Fabian Mwoshi
From: Okok-Obuoga Bernard
Sent: Tue, 3 November, 2009 14:10:33
Subject: Khadhi’s courts – please let us work together
Dear Fabien et al,
It is important to note that you have given key points regarding this issue. I have always tempted not to respond to this debate though I am very key in the consensus-finding process. First, I would like to point to you that as long as we treat the Khadhi’s court matter as an Islamic issue, we shall not find a solution. Secondly, this issue shall not find solution through political exchanges and street-like arguments neither shall we not solve anything thtough intimidation and threat-issuing press statement.Solution(s) shall only come through dialogue and seperation of issues from personalities. Thirdly, it is important to take note that in peaceful resolution of conflicts and/or misunderstanding (such as being demonstrated in the current debate), everyone must be involved and none should be dismissed. In this case, I still hold a belief that even the Evangelicals who hold a strong opinion against Khadhi’s courts could still be reached and invited to a common table where understanding can be generated. I have a very detailed process on this and I would not mind if I invite you to attend some sessions. I have already opened a negotiating door with some leaders in the Evangelical community and very soon a common stand shall be developed. Subsequent to this, I totally appeal to you to be patient and try to help the development of consensus instead of dismissing anyone.
Let us keep on sharing ideas and I would be happy to hear from you and even work with you in this process. My number is 0733811319.
Regards
Ben Okok
From: Steven Maina
Date: Tue, Nov 3, 2009 at 7:28 AM
Subject: Re: Khadhi’s courts – please let us work together
I think it is important to ask the question the other way around so that we can se the pesepective of the evangelicals:
If they will only deal with Muslim personal affairs, why then are they to be in the Constitution? They are actually in the right place already as a Law of Kenya!
What has been the experience of Christians in Muslim (law) countries?
Are we or are not a secular country?
Introduction.
Kadhi is an Arabic term that refers to a judge. In Kenya it specifically means a Muslim magistrate who has the power of adjudicating on matters according to Islamic law otherwise referred to as Sharia law.
The Kadhis’ Court has been in operation ever since before our country’s independence, although with limited jurisdiction. However it has been operating under Kenya’s present Constitution dispensation since 1963.
Jurisdiction.
The Kadhis’ Court has jurisdiction regarding the determination of questions of Muslim Law relating to personal status,marriage,divorce or inheritance in proceedings in which all parties are Muslims.
There are about 17 Kadhis nationwide serving in different parts of the country.
These courts are located in various parts of the country including:
Kwale,Kilifi, Mombasa and Lamu districts;
Nyanza and Western provinces;
several districts in Rift Valley province; Wajir and Mandera districts;
Nairobi, Central and Eastern Provinces;
Garissa and Tana River districts;
and Marsabit and Isiolo districts.
Hierarchy.
The structure of the Kadhis’ Courts includes:
The Chief Kadhi
Deputy Chief Kadhi
Principal Kadhi
Senior Kadhi
Kadhi 1
and Kadhi 2
They are all appointed by the Judicial Service Commission.
HOW THE COURT WORKS
The rules of procedure applied in the Kadhis’ Court are similar to those in ordinary courts. As such, the Civil Procedure Act chapter 21 of Kenya also applies to the functioning of the Kadhis’ court.
The Kadhis’ Court in Nairobi, as a point in case, is located in Upper hill.
Inquiries by prospective applicants may be made at the Registry.
There is also a court clerk who may offer assistance as to the proper documentation and payments necessary to be made before an application is made.
The litigant is permitted to bring his application himself or may appoint a representative(advocate) to do so on his behalf. An advocate of the High Court is allowed to represent an applicant in the Kadhis’ court
Kadhis’ courts operate based on the same court calendar as the other ordinary court. Consequently, the officers of the court are entitled to an annual leave, though there is no court leave. The Kadhis’ Court, however remains closed during the weekends and any public holidays.
Why are Christians leaders behaving this way, before coming out to condenm khadhi’s court, why dont they research, look for facts. I am a christian I live in Mombasa and I have never been affected by the Khadhis courts. As christians we need to accomodate the views of other people.
THE KADHI’S COURTS – Setting the Records straight
(By Ahmed Issack Hassan, Commissioner, CKRC)
The new Draft Constitution published by the Constitution of Kenya Review Commission in October 2002 has generated a lot of debate and discussion as was expected and required under the Law. Among the many Provisions of the Draft Bill that came under scrutiny and analysis was the one dealing with the Kadhis Courts judging by the copious amount of correspondence and arguments for and against that have appeared in the press. This article aims at informing the on-going debate by setting out some of the basic facts about the Kadhis Courts that appear to have been ignored in the debate and analysis.
It is important to approach every issue calmly and objectively and not subjectively, emotionally and with a pre-conceived idea/mind. But much more importantly, it is crucial to get all the facts correct about any issue before jumping to conclusion. It is only then that one can make an informed decision. An objective and honest discussion about the Kadhis Courts must consider their history and present status, the Commission’s mandate and what the people said before coming to the stage of analysing the present draft constitution.
Historically, Kadhis Courts existed in the East Coast of Africa long before colonization. In Kenya, they existed in the Coast, which at the time of colonization, was under the Sultan of Zanzibar. In 1895, the Sultan gave the British power to administer the 10 mile coastal strip subject to their respecting the existing Kadhis Courts among other conditions. The British did so and declared a protectorate over the coast while the rest of Kenya was a colony proper. The Sultan however retained sovereignty over the 10 mile coastal strip. During the last years of the independence struggle and at the start of the Lancaster House Constitutional talks in 1961, the status and fate of the coastal strip came up for determination. The British organised separate talks for the delegates from the protectorate of the coast and those from the Kenya Colony. The British Government and Sultan of Zanzibar also appointed a Commissioner, Mr. James R. Robertson, to study the issue of the coastal strip, consult all those concerned and report to them. In his report, entitled, “The Kenya Coastal Strip ? Report by the Commissioner”, he reported that opinion was divided as to whether the coastal strip should join Kenya, or be declared independent on its own, or reverted back to the Sultan of Zanzibar. He however recommended that it should be joined with Kenya subject to the Kenya Government guaranteeing to respect the existence of the Kadhis Courts among other conditions. The Prime Minister of Kenya, Jomo Kenyatta and the Prime Minister of Zanzibar, Mr. Shamte on behalf of the Sultan of Zanzibar, then signed an agreement in October, 1963, in the form of an exchange of letters whereby the Sultan of Zanzibar relinquished/surrendered his claim of sovereignty over the coast to Kenya in return for mzee Kenyatta guaranteeing the continued existence of the Kadhis Courts among other guarantees. When the independence constitution was written, the Kadhis Courts were enshrined under the chapter on Judiciary.
At Independence, the Kenya Government expressed its sovereign desire not to be bound automatically by all the pre-independence treaties and agreements entered into by the colonial Government. By his note reference EXT. 237/003A of 25th March, 1964, addressed to the Secretary General of the United Nations, mzee Jomo Kenyatta informed the United Nations of the Kenya Government’s intention to review all pre-independence treaties and agreements and determine which agreements will be honoured by the Government and those which will be abrogated or modified after appropriate notice to the interested parties. It is important to note that the 1963 agreement between the Kenya Government and the Sultan of Zanzibar concerning the Kenya Coastal Strip and the preservation of the Kadhis Courts was among those agreements that were immediately honoured by the newly independent Kenya Government. This is proved by the fact that the independence constitution of 1963 enshrined the Kadhis Courts under Chapter 5 in the Judiciary and thereafter Parliament passed the Kadhis Courts Act, the Mohammedan Marriage and Divorce Registration Act and the Mohammedan Marriage, Divorce and Succession Act to make these courts fully operational and functioning. At independence, the Kadhis Court were 3. In 1967, the Kadhis Courts Act was passed which increased the courts to 6. They have subsequently been increased and today they are more than a dozen spread over the country.
The Kadhis Courts were entrenched in the constitution as a measure of safeguarding the integrity of the agreement reached on them. If the courts were established under Ordinary Law by an Act of Parliament alone, then it would have made them vulnerable since any decision to abolish them would have required a simple majority of the members of parliament to repeal the Act. Under the present standing orders of Parliament which sets the quorum of the house at 30, it means that only sixteen (16) Members of Parliament could do so. In contrast, to abolish the courts as enshrined in the constitution would require a two-thirds (2/3) majority in Parliament. As a minority therefore the Muslims in Kenya find great relief and solace in the entrenchment of the Kadhis Courts in the Constitution.
Section 66 of the current constitution provides for the Chief Kadhi and Kadhi’s Courts and states their powers as being to decide on issues of Muslim personal law between Muslims i.e marriage, divorce and inheritance.
The Commission’s mandate under the Law is to collect, collate and analyse the views of Kenyans on changes to be made to the constitution and to recommend amendments or other changes thereto which faithfully reflects the views and wishes of Kenyans. The commission was to study the judiciary, among other institutions, and seek people’s views on how the judiciary could be improved. The Kadhis Courts are part of the judiciary and the legal systems. When the commission issued “issues and questions” for public hearing to guide the people in the collection of the views, the same contained questions on what was to be done to the Chief Kadhi and Kadhis Courts. Many of the people, organizations and experts who gave views on the Kadhis courts did not at all question their existence but advocated for their retention with some improvements or modifications. The Muslims generally asked for the enhancement of the role and status of the courts while in some cases like in N.E. Province, they asked for the full application of Sharia Law in their areas. The team of judicial experts and eminent scholars from the Commonwealth in their report on the judiciary also recommended the retention of the Kadhis Courts in their present form. A group of Human Rights and Legal Organisations such as KHRC, LSK, ICJ, FIDA, etc, also prepared a model constitution under the motto, “Kenya Tuitakayo” (the Kenya we want) and in that model constitution, they also recommended for the retention of the Kadhis Court with their present jurisdiction and for the Chief Kadhi to have minimum academic qualification and to enjoy the same status and privileges as a High Court Judge. In recommending improvements to the Kadhis Courts, the commission was faithfully reflecting an analysis of the views it received. It is therefore wrong to suggest that CKRC is favouring Muslims or creating parallel court structure or introducing Sharia Law through the back door. The commission did not receive any views for the creation of courts for Jews, Hindus or others. Sharia Law is not being introduced as the jurisdiction of the Kadhis Courts are clearly confined to matters of personal Law between Muslims. There will be no stoning to death for adultery or cutting of hands even for the Muslims in Kenya as this is covered by Islamic Criminal Law which is not permitted here in Kenya either in the present constitution or under the new draft bill.
The Kadhis Courts do not exist in Kenya alone. Several countries in Africa and the Commonwealth that have a significant population of Muslims provide for these courts in their constitutions and Laws to cater for the regulation of the personal status of their Muslim Citizens. Save for those countries that have established Islamic states which apply Islamic Law throughout the country, other states tend to limit the jurisdiction of these Courts to matters affecting the personal status of the Muslims. In some cases, the jurisdiction is exclusive to the Kadhis Courts while in others the Courts are established as subordinate Courts to the Secular High Courts or Supreme Court. The Kadhis Courts are also called Qadhis Courts (Uganda), Cadi Court (Gambia), Sharia Court (Nigeria), Shariat Court (Pakistan) and Religious Court (Jordan). The Nigeria constitution provides for the establishment of the Kadi and Sharia Courts in the states and in the Federation. The Sharia Court of Appeal is to compose of the Grand Kadi and such number of Kadis as may be prescribed by Law. The jurisdiction of the Sharia Courts is listed under Sections 262 and 277 of the Constitution. The qualification for appointment to the office of Grand Kadi or Kadi of the Sharia Court of Appeal is set out by Sections 261 and 266 of the Constitution. Sections 264 and 279 give the grand Kadi, who is equivalent to the Chief Kadhi in Kenya, the Power to make rules for regulating the Practice and Procedure of the Sharia Court. The major difference between the Kadhis Courts in Nigeria and Kenya is that the former apply full Islamic Sharia law while in Kenya, the jurisdiction is limited to personal law i.e marriage, divorce and inheritance which is the case in Gambia and Uganda. The Gambian Constitution under Section 137, establishes the Cadi Court to be constituted by the Cadi and two other Scholars qualified to be a Cadi or Ulama. Appeals from this Court goes to a review Court composed of the Cadi and four ulamas (Islamic Scholars). The Cadi Court has jurisdiction to apply Islamic Sharia in matters of marriage, divorce and inheritance where the parties before the Court are Muslims. The qualification for appointment to the position of Cadi requires a person of high moral standing and professional qualification in Sharia Law.
The Ugandan Constitution establishes the Qadhis Courts under Section 129 as one of the subordinate Courts of judicature exercising judicial power in Uganda to deal with matters of marriage, divorce, inheritance of property and guardianship. The argument that the Provisions in the Draft Constitution treat other religions less favourably is clearly without merit. Article 44 of the Draft Bill is a basket clause containing several sections guaranteeing and protecting the freedom of religion for all. The Kadhis Courts, which fall under the Chapter on the Judiciary, could not have been brought under the ambit of article 44 which comes under the Chapter on Human Rights. The Kadhis Courts should be seen in the context of the judiciary and the legal system and not as a religious or Muslim issue alone. Those opposing the Kadhis Courts and making allegation of bias for Muslims are politicising the issue and creating unnecessary tension and disharmony between the Muslims and their Kenyan brothers and sisters. By whipping up emotions of other people who may not have all the facts before them, these people are undermining the goals of the constitutional review process which is inter alia to unite the country and to respect and promote the ethnic and religious diversity of the people of Kenya.
It is the hope of all those who wish to see the continuation of the peace and harmony that exists between the different religious communities in Kenya that men and women of goodwill in Kenya will see through the propaganda war being waged against the Kadhis Courts and support the recommendations of CKRC which is a faithful reflection and analysis of the views received from the people.
Do you still think the same…
Pls i m facing issues with my husband n need to meet the chief kadhi for further discussions n solutions. Pls reply.