Tag Archives: Kadhi’s Courts

nairobi blasts were grenade attacks

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The Daily Nation reports that the blasts at a “NO” rally in Uhuru Park, Nairobi were caused by grenades. This confirms Kenyans’ worst fear – that the explosions were not accidents but an organized attack on those opposed to the draft constitution. One hopes that Kenyan politicians will be sober-minded as the relevant authorities investigate this incident. The last thing we need is careless finger-pointing and sabre-rattling.

I hope that the president and his prime minister will follow on their promise to bring those responsible to book. This is a potentially dangerous attack on Kenya’s young and troubled democracy. Freedom of expression is one of the key pillars of civilized society. This is an attack on every Kenyan’s freedom of expression. Those opposed to the draft constitution should be allowed to do so openly and as loudly as they can, as long as they are within the limits of the law.

Politicians all over Kenya are currently on campaign mode for or against the draft constitution. The referendum on the new document will be held on the 4th of August this year. The main sources of division in the proposed constitution include land management, devolution of power from the centre, inclusion of Kadhi’s courts to adjudicate on Muslim family law and the existence of a loophole that could allow for the legalization of abortion.

it was never going to be an easy ride

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The two decade-old clamour for a new constitution in Kenya has not been an easy ride. One is reminded of the saba saba rallies from the early 1990s. Most vivid of all was the shocking image of Rev. Timothy Njoya being clobbered by armed police men. Then came the Bomas constitutional conference under the NARC Administration that produced the document that was rejected at the 2005 referendum. The current constitutional review process also seems to have acquired a lot of enemies. On the surface – and this is what the mainstream Kenyan media seems to trumpet – it appears that those who are politically opposed to the draft are wary of the massive head-start that a YES victory would grant Premier Odinga in the 2012 presidential election. I beg to differ.

Me thinks that most of the political opposition to the document are founded on distributional concerns. The new set up will take a lot of power from the centre and redistribute it to the people. This will significantly alter resource allocation processes, including the management of land. It will also render obsolete the patronage networks that we call the provincial administration. It is not a coincidence that the biggest opponents to the draft also happen to be the biggest landowners, including former President Moi, among others. Imagine this for a second: President Kibaki is on the YES team, but the treasure continues to dilly and dally with the allocation of money for civic education… how can this be?

Mutahi Ngunyi has a different, but interesting take on things. Kwendo Opanga, shares his thoughts on the same, while Mutua tackles the rather risible decision of the courts to declare the current constitution unconstitutional!

Kadhi’s courts and abortion revisited

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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.

constitution making in Kenya and the noise around it

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Muthoni Wanyeki has this cool piece on the ongoing debate over the draft constitution.

I share in her surprise at how low the church has decided to sink in its opposition to Kadhi courts and the so called abortion clause in the draft constitution. Firstly, abortions are but a symptom of greater social problems (marital rape, poor sex education policies, the church’s intransigence over contraceptives, etc etc). People do not carry out abortions because they are baby-killers. Can someone please point this out to these men of God?

In any case personal morality is not a province of the state. People’s “moral failings” are a reflection of the church’s inability to instill in them the values that they consider to be ideal. Sending millions to their graves and creating even more orphans on the premise that God does not endorse the use of contraceptives is simply absurd. If I ran the Daily Nation I would print rates of contraceptive use and fertility rates in Rome, Canterbury and the great evangelical centres of America in the front page to make this point.

I say this knowing that Kenyan conservatism is not necessarily because of Christianity. But we don’t hear traditional elders screaming about these two issues. If the church wants to remain relevant it mus realize that before we all go to heaven we have to live through real life on earth.

And on the issue of Kadhi’s Courts. Who cares? Doesn’t the current constitution have this already? And isn’t it ironic that the same people who want to legislate personal morality on religious grounds are the ones opposed to Muslims having the option to use an Islamic judicial system? And do they even know that these courts would still be subordinate to the country’s secular court system?