Hi All
I have read the constitution. It contains the chapter which defines the national holidays and the weekly working days.
My greatest concern, though I stand to be corrected is that I have not seen anywhere where it is categorically stated that “We shall work n-number of days in a week”.
Further more, even if you perform a search for Saturday on the Online version of the document, you will not find it at all.
The draft does not mention anything directly about Saturday, which the Seventh-day Adventist believe to be the Sabbath of the Lord and hence shall be hallowed
However, there is the mention of Sunday under “Construing this Constitution” Article 259 (6) and (7) which states thus:
259 – 6: If a period of time prescribed by this Constitution for any purpose is six days or less, Sundays and public holidays shall not count when calculating the time.
259 – 7: If, in any particular circumstances, the period of time prescribed by this Constitution ends on a Sunday or a public holiday, the period extends to the first subsequent day that is not a Sunday or public holiday.
In clause 6 and 7 above, it implies that the Supreme Law of the Land recognizes six days of working, Saturday inclusive.
The Seventh-day Adventist believe the verse below (Exodus 20:8-11) and in as much as they work six days, Saturday is always set aside and observed as the Sabbath:
[8] Remember the sabbath day, to keep it holy.
[9] Six days shalt thou labour, and do all thy work:
[10] But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates:
[11] For in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it.
The big question:
Are we about to pass a constitution that will deny us Adventists the freedom of worship and obeying the Saturday Sabbath of the Lord?
Where are the Adventists and what is their say concerning this?
Arreddo Nyang’
————————-
You Call Me Arreddo Nyang’, I’ll Respond
Permanent Address:
P.O. Box 36 Rangwe, Homa Bay Kenya
Mobile: +254 – 724 – 203 – 516
what does the current constitution say about this? Maybe the wording is the same.
I am an adventist and my being adventist does not depend on provisions of a secular constitution.
We have many countries in the world where there are laws that clearly states that sunday is the recognized rest day but that has not and shall not stop adventist from being in those countries from observing the Seventh -day Sabbath. The reason is that the Sabbath is provided for in the divine precepts of God and was in existence even before the ten commandments were given to the Israelites.
You therefore do not need a man made constitution as a basis for Sabbath keeping.
In addition, the Sabbath is so divine that reducing it to wordly things and introducing it as a part of the debate on the new constitution borders blasphemy.
The other thing is the ill advised attempt to use the issue of the Sabbath to confuse adventist faithfull about th constitution. It will backfire badly on the sponsors and the agents. Aredo osiepna, ayie.
As for the proposed constitution, my vote is YES!
@Nyang’ I’m sure this would make for humour and I sincerely hope it is else I don’t see anywhere else except theocracies where worship days are defined explicitly in any case Sunday I believe is only mentioned to imply a day of rest not worship… have a better Yes! campaign 😉
A BIREF HISTORY OF KADHI COURT IN KENYA UNDER CURRENT CONSTITION
Now let’s turn to Articles 169, 170 and 172(a). The Questions of the Kadhi’s courts has been linked by commentators to our views on Article 26. There is no such link.
In brief, the article establishes Kadhis courts as part of our judiciary. In so doing they give a special treatment, to a section of the population that professes the Muslim religion. These courts would then be funded by the state.
The debate on Kadhis courts has been widely misunderstood and has created a lot of unnecessary suspicion amongst Kenyans on the basis of religion. It is not a Christian versus Muslims affair. It is simply about equality of all before the state. Here we are stating an anomaly that is in the current constitutional and still maintained in the proposed constitution.
It is a Question of Justice, not to give privileges to certain Kenyans (as opposed to others) because of their religion, race or tribe. That is the beginning of discrimination – more so if the if the issue refers to a religious group.
What we are stating is that there is NO EQUALITY. This right is only reserved to those professing one faith.
Justice calls that the Constitution provides a similar rights to other religious groups. This could be regulated by Acts of parliament. All the Christian Churches , Hinduism, Islam, etc which have legitimate concerns, fears or expectations, should rectify and consolidate these through Acts of Parliament.
All are equal before the supreme law of the land and therefore need to be granted equal opportunity to enjoy all the liberties accorded to others.
In allowing certain groups, whether religious, tribal, geographic or otherwise to negotiate special privileges that will be enshrined in the Constitution, then we shall be going against the very fundamental principle that we are all equal. We believe a solution can be found to provide for the equality that justice calls for and requires.
Let all religions be treated equally as provided for in the very proposed Constitution “There Shall be no state religion” Article 8.
In conclusion my dear Brothers and Sisters, lets pray for Kenya and her Children as we discern the best way forward. The Church as in the past and now written concerning, the legitimate concerns concerning these two articles of the proposed constitution. Our patriotism and commitment has never been in doubt
May the Lord bless all of us.
In the Lord’s service
For Injili Timilifu Team
Mombasa
A Brief History of the Kadhi’s courts.
reigned over the 1 0 mile coastal strip,
whereby the British government purchased the 1 0 miles from the Sultan of Zanzibar for £ 200,000.
The 1895 Agreement
In 1895, the Great Britain entered into an agreement with the Sultan of Zanzibar, who controlled The agreement provided, interlay that the British government would not subject the inhabitants of coastal strip to the Christian laws of
the British Colonial government. However, this agreement provided that the agreement was to terminate if Kenya ceased to be a British colony or should Britain give 6 months notice.
The 1962/1963 Lancaster Constitutional Conference
The 1962/1963 Lancaster Constitutional Conference through political intrigues erroneously entrenched the Kadhi’s court in the Kenyan
constitution. During the 1962 Lancaster Conference, the issue of the Kenya protectorate along the Coast or what was otherwise known
as the 1 0 miles coastal strip was dealt with but not comprehensively discussed, and the Kadhi’s court were hurriedly a improperly entrenched in the constitution. The Sultan of Zanzibar had a purported claim over the said strip which was inaccurate since the coastal strip was not his territory.
During that time, the 10 miles coastal strip consisted of other nationalities other than Arab and, their claims did not extent to the interior.
Constitutional Review Processes- Bomas and Wako Drafts
The issue of religious courts was a contentious issue at Bomas. It was also a contentious issue in Wako draft because many religious leaders were opposed to the establishment/entrenchment of religious courts in the constitution.
Current Situation;- Engaging the Committee of Experts
The current situation is that the CoE of experts did not declare the issue of religious courts contentious and yet we know they have included Kadhis courts in the draft constitution that they are soon to present before the Kenyan voter.
What is their position on the issue?
Kenyans have been actively trying to engage the CoE despite the feeling that d Committee is not keen in listening to the voices of our members.
Is there a plot to sideline a critical mass or a majority of Kenyans from airing their views?
Separation of Church and State;
The separation of religion and state is a trite constitutional principle founded on practicalities of constitution making. For instance, if there exists a state religion chances are that the state can easily infringe on the freedom of religion. This principle also involves the fact that the state should not treat one religion as superior to the other in Form of according unfair economic privileges to one religion over the others and in terms of acknowledging one religion over the others.
a. Unfair economic privileges the current
Kenyan constitution and the subsequent draft constitutions (Bomas Draft and Wako Draft) establishes the Kadhi’s court which legislates over matter concerning the personal law of Muslims. While this is not in contention because Muslims can enjoy this privilege; however, it is the taxpayers who have to maintain these courts. These taxpayers are forced to pay for the upkeep of Kadhi’s through public funds for a private function. The argument is that it accords an unfair advantage on those who profess the Muslim religion because the government is empowering those who do not need empowerment. Do Muslims need to be empowered when they are not a minority neither do they face discrimination? Public funds must not be used to empower a group that is already empowered
b. Acknowledging one religion over the other; the current Kenyan constitution and the subsequent draft constitutions (Bomas Draft and Wako Draft) seem to acknowledge the Muslim religion over other religions by reason of the entrenchment of the Kadhi’s courts/ religious courts in the constitution
The aforesaid instances in the current Kenyan Constitution, the Wako Draft and the Bomas Draft show a violation of the principle of separation of religion and state. Although Kenya is a multi-religious state, it still remains that one religion should not be exalted over the others.
The result of doing otherwise would be religious tensions and violence.
Religious tensions as a source of conflict
The view of many Kenyans recorded by the Commission of Kenya on Constitutional Review (CKRC) in their report was that the Constitution
(or government) must not do anything to help, encourage, set up, regulate, fund and protect one particular religion to establishment of its court.
At Bomas (National Constitutional Conference at Bomas of Kenya) the issue of religious courts was regarded as a contentious issue.
A lot of conflict ensued regarding the issue of Kadhi’s court being entrenched in the constitution during the constitutional review process at Bomas. This conflict was exemplified by;
1.The burning of Churches
2.The recent violent clobbering by the police of a peaceful procession by Church
leaders and members in Mombasa to express dissatisfaction.
To prevent future religious tensions, religious courts must not be entrenched in the constitution. In my view i hold that entrenching Kadhi’s court in the
constitution will provide a recipe for future religious tensions, conflicts and violence because it will be viewed that the constitution is elevating one religion
over the others.
Sharia law as the source of law for the Kadhi’s court and a source of conflict of laws
All laws have a source. The sources of Kenyan law are largely borrowed from the English common law and its legal system. Where do the Kadhi’s court originate?
The Kadhi’s court has its source in Sharia law which is a recipe for conflict in law in the future. The question this country should be asking is whether it should have Sharia law entrenched its constitution? Does Kenya want to go the Sharia way?
As a Kenyan I would propose that matters that would cause conflict in our laws should be kept away from the constitution. A constitution is a document that should steer clean of any religious conflict or rivalry. By putting Sharia law alongside our legal system, we are opening the Pandora’s Box to future religious animosity in this country.
Matters of Muslim Personal law should be kept away from the constitution
In matters of personal law do Kenyan Muslims need religious courts to enforce? Each religion in Kenya has a mechanism for dispute resolution.
Christians for example have a “court system” whose mechanism is prescribed through the Bible. This does not mean that Christian courts have
to be enacted. As Christians we do not need Christian Courts to legislate over our matters. Hindus, who are a minority in Kenya , have their own personal law as regards marriage, divorce, child custody and inheritance. They, however, do not need Hindu courts to legislate over these matters. Why do Muslims need
Kadhi’s court to legislate in matters of personal law? Is the Muslim religion superior to the Hindu and Christian religion? Why should the constitution treat one religion more favorably than the other religions.
Some people have argued that our current laws are “Christian” and therefore inconsistent with Muslim way of life. The argument has been that Islam is a way of life
and therefore to appear before “Christian” courts to be judged by “Christian” judges is unacceptable and contrary to their religious teachings. This argument is fallacious because if you take a close look at our legal system it is considered to be a secular institution as opposed to “Christian”. According to Christian doctrines taking a matter before the current justice system is against God’s will. Most Christians consider the legal system as “worldly’ and “secular.” It would be absurd to call our present legal system as “Christian” because even Muslim and Hindu judges sit on the bench, neither is it a requirement that one to be a “Christian” for one to be under its jurisdiction, if it were a “Christian” court the first question that parties to a suit would be asked would be whether they believe in Christ Jesus or riot. Usually and practically this is not the case.
As a result, our current laws and judicial system is NOT Christian.
Comparative study of constitutions worldwide
A Comparative study of constitutions world wide in the context of religious courts shows that most stable democratic nations such as the United States and European countries do not have Kadhi’s court entrenched in their constitution. Even South Africa , whose constitution is widely hailed because of the struggles against the apartheid government, does not have Religious/Kadhi’s court.
Frequently Asked Questions
Q. Some people in Kenya have argued that the Muslims have long enjoyed
the right to have the Kadhi’s court entrenched in the constitution, why should it be taken away from them now?
A. Contrary to what some people have held, the right to have a Religious/Kadhi’s court is not a right. There is no international instrument in which Kenya is a party to that recognizes such a right nor does it exists in most if not all international instruments. There are only three types of rights recognized internationally; civil and political rights, economic, cultural and social rights and third generation rights; none of which mention a right to have a Kadhi’s court.
No international or regional instrument (International Covenant on Civil and Political Rights (ICCPR)J, International Covenant on Social, Economic and Cultural Rights (ICSECR) and the African Charter) sets out the right to have a Kadhi’s court as a right neither is it categorized as one of the group of rights defined above.
So which is this right that is be ascertained?
Perhaps it is the right to freedom of religion which we recognize as a right and is recognized internationally.
Q. What harm is there to Christians or to Hindus? Kadhi’s court only legislate on
matters of Islamic personal law, it will not harm any Christian?
What is the fuss all about? You Christians are being unreasonable.
A. The entrenchment of the Kadhi’s court in the constitution is harm to not only Christians but to everyone in Kenya . The reasons are very simple;
a. All laws must be neutral if they are not neutral then they are biased. A simple analogy is when in a family setup a parent treats one Sibling better than the others (Joseph story); it is a recipe for (future or apparent) conflict. This also applies in religious matters. If a state is really honest about treating all religions equally;
if a state is committed to ensure that one religion is not treated more favorably than another, then it must ensure that its mother document- the constitution-
does not create a situation where one religion perceives as being treated less favorably then the other.
b. Neutral laws do not prevent religious diversity; in many countries with large Muslim populations, Kadhi’s court is not provided for in their constitution and yet
Muslims enjoy their freedom of religion.
Are Christians (and other religions in Kenya being unreasonable by demanding that our laws be neutral and free from religious bias? Is it unreasonable to demand that Kenyan law does not treat people who ascribe to a certain belief more favorable than others?
The argument of the majority of Kenyans has been that our constitution must always and at all times be neutral especially on religious matters. It must create a level play ground where all religions —Christianity, Islam, Buddhist, Hindus and others- can enjoy and uphold their religious freedom. It must not guarantee a position where a certain religion is empowered more than the others unless there is a reason to do so i.e. the religious group is a minority. But in Kenya today Muslims and Christians are not a minority. Facts are unclear as to whether Hindu’s consider themselves as a minority but Muslims in Kenya ARE NOT a minority.
If Muslims in Kenya are a minority then there should be some “sunset clauses.” These sunset clauses ensure that a minority group is not “over-empowered”
over the other groups. in other words, if Muslims are truly a minority group, then those sunset clauses will set a time limit within which empowerment is no longer
necessary.
Q. Why now? You did not oppose it at Bomas, what has changed?
A. Constitutions are made to remedy past injustice and past mistakes. The history of the Kadhi’s court shows that it was a mistake for the Kadhi’s court to be entrenched in the current constitution. Our study reveals that political intrigues and expediency may have played a large role in bringing about this situation.
Even at Bomas this opinion was raised but it seemed as though there was a plot to silence this voice. One of the reasons why the Wako Draft was rejected
was because it established and entrenched the Kadhi’s court.
Constitutions are also made to ensure that the generations to come enjoy peace, unity and harmony. The issue of the Religious/ Kadhi’s court has been a source
of conflict since the beginning of tile constitutional review process. Religious leaders have come out strongly to oppose the entrenchment of the Kadhi’s court in the constitution.
In summary, nothing has changed because there was never a time when the Kadhi’s court was not an issue in this country. It did not start today and it will not end
until the issue is resolved. Kenyans must make a constitution that can remedy past injustices and past mistakes. We must make a constitution that fosters peace, love and unity.
Q. Are you being biased because you are Christians and yet you do not understand the Muslim religion?
A. Islam is a way of life that much we understand from reading the Koran; however, they do not need a Kadhi’s court to be entrenched in our constitution for them
to practice their religion. Christianity is also a way of life and the Bible teaches us that we should not resolve our conflicts before unbelievers. We do not need a
Christian court to resolve conflicts in matters of personal law.
What many people do not understand is why over 20 million Kenyans should be forced to pay taxes in order support and sustain a system to a faith which millions of
Kenyans do not ascribe to. We do not understand why a religion would need to be entrenched in the constitution for their adherents to follow their doctrines and
precepts.
To demand equal treatment is not being biased. To demand that our laws and our judicial system to remain separate from religious beliefs and customs is not being unreasonable; to demand that a new constitution foster unity, peace and harmony is to realize that a constitution is made for the good of the country and for the Kenyan in general whether Christian or not.
Q. Are we a secular State?
A. No. Kenya is not a secular state. It is a multi-religious state. In such a state, it would be disastrous to treat one religion more favorably than another.
Q. Is it not better to entrench the Kadhi’s court in the constitution so that we can check the growth and power of the Islamic religion?
if we leave the Muslim religion unchecked, it will grow dangerous….
A. That is not a valid constitutional or legal argument. It goes against the spirit and purpose of the theories of constitution making or constitutional review. It has no sound legal or moral basis. It seems malicious and intended to portray the Islamic religion as physically dangerous. The Church does not hold this view. However, we believe in Jesus Christ as the ONLY way, the truth and the light. Salvation, we hold, is through Christ Jesus the Son of God.
In the Lord’s service
I would like to share with you a great resource that you can tell
visitors to your website.
It will allow them to read the Proposed New Constitution of Kenya.
http://katiba.mobi allows Kenyans to read the Proposed Constitution of
Kenya on their mobile phones in English and Kiswahili. They can even
search for particular words i.e arrest, family etc
Please distribute to all so we can make an informed decision come the
Referendum.
Regarding the sections you stated,it is only fair to say that sabath day shall stand the test of time.Despite our being in the world,the sabath day has been their and it will continue to be their.Probably a question for you-dont we have seventh day adventists in those countries that have officially launch sunday as the rest day.If the constitution had stated sunday as the worship day then this cuold be disastrous to the adventist as me.
I want to refer you to the bill of rights and the interpretation clause of the proposed constitution.The constitution embraces freedom of worship and that the constitution shall be interpreted in a way that in shall up hold;(a) rule of law (b) it shall promote the purpose of the constitution among others.This is in article 259.No cause of alarm brother,lets not fight fo the kingdom of this world but for the kingdom of heaven