Kadhi’s courts and abortion revisited

It appears that after more than 20 years of waiting Kenyans will finally have a new constitution after August 6th. The Attorney General Amos Wako (I can’t believe this man is still in office) published the document today. The electoral commission will formulate the referendum question and announce the campaign period for the August 6th referendum. It is almost a foregone conclusion that the document will be passed by a majority of Kenyans. The latest poll indicated that 64% of Kenyans support the document compared to 17% who oppose it.

The Church and a section of politicians are opposed to the document because of its wording in relation to abortion and Kadhi’s courts (see below) and on matters of resource allocation.  With regard to abortion, my stand is that the constitution does nothing against Kenya’s conservative bend. If anything it still needs some doses of liberalism on family law and social justice in order to protect our mothers and sisters and other marginalized peoples from the rather dated views of the Kenyan patriarchy.Our mothers and sisters are not crazy child-killers. They too are very conservative when it comes to abortion. In this case the law will only serve to bring out of the shadows the thousands of illegal abortions that result in the death of many women in our towns and cities. Also, if the church is so concerned with abortion, how about doing so by promoting birth control? I still don’t get the church’s justification for its consignment of millions to an early grave (thanks to HIV/AIDS) and orphanhood because of its bizarre policies on the use of contraceptives.

And on the Kadhi’s courts: the wording speaks for itself. It only applies to Muslims’ personal issues and even then only with their consent. No Christian will ever have to face a Kadhi. Plus as I have pointed out before, the church’s attempt to impose Christian morality on Kenyans through the constitution is not consistent with their opposition to Kadhi’s courts.

On Abortion:

Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

On Kadhis’ Courts

(1) There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an        Act  of Parliament.
(2) A person shall not be qualified to be appointed to hold or act in the
office of Kadhi unless the person—
(a) professes the Muslim religion; and
(b) possesses such knowledge of the Muslim law applicable to any  sects of Muslims as qualifies the person, in the opinion of the
Judicial Service Commission, to hold a Kadhi’s court.
(3) Parliament shall establish Kadhis’ courts, each of which shall have the jurisdiction and powers conferred on it by legislation,   subject to clause (5).
(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being fewer than three in number) as may be prescribed under an Act of Parliament, shall each be empowered to hold a Kadhi’s court having jurisdiction within Kenya.
(5) The jurisdiction of a Kadhis’ court shall be limited 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 and submit to the jurisdiction of the Kadhi’s courts.

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