BY DR WILLY MUTUNGA
I am very happy to preside over the swearing in of the largest number of Kadhis’ in Kenya’s history. The Constitution reaffirms in unequivocal accents the place of Kadhis Courts in Kenya’s Judiciary. They have the mandate to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Islamic faith.
Muslims constitute over 10 percent of the population of Kenya. Their status as a numerical minority places a special responsibility on the nation to uphold and protect their rights. Kadhis courts are a demonstration of the constitutional principle that grants majorities their way but still allows minorities their say.
It has fallen on my office to ensure that Kadhis courts receive all the help they need to bring them within the ambit of the justice system designed in Article 159 of the Constitution. The Kadhis Courts are, therefore, an important part of the exercise of judicial authority.
Among the first actions of the Judicial Service Commission when I took office was to promote 12 Kadhis who had served in the same grade for a long time. Significantly, thereafter, the JSC advertised 24 vacancies for the office of Kadhi. I congratulate you on your appointment. You have been weighed, you have been measured, and you have been found fit for the office to which you have ascended today by your oath.
As I mentioned earlier, this is the highest recruitment of Kadhis in the history of our nation. Many of you here are recognised scholars who hold a degree. There is a magistrate who holds a law degree and also doubles up as a Kadhi. I want to encourage you to embrace your oath as a call to service. In the transforming Judiciary, there is an opportunity to pursue further studies and take full advantage of the opportunities at the Judiciary Training Institute to better yourselves in the service of the Kenyan public. I challenge you to mainstream your scholarship so that you are not just proficient in matters of Islamic law, but also to acquire the knowledge, skills and expertise to adjudicate on matters outside the province of religion.
Ultimately, we must remember the people we serve. It is in that spirit that we have referred the question of whether or not to admit women to the office of Kadhi back to the religious leaders and scholars to help us resolve.
You are joining what is easily the best performing court in Kenya. Let me illustrate. Last year alone, the Kadhis courts resolved 5,563 cases. It means that the Kadhis in office resolved the equivalent of all the 2,212 new cases filed last year and ate into the backlog of 3,012 pending cases. What these statistics mean is that Kadhis are able to assure Kenyans that their cases can be concluded within six months.
Although these numbers are encouraging, they hide a terrible truth. Many people who would like to use the service of Kadhis courts are not able to. They are restrained by great distances to court, and the mobile courts strategy unveiled two months ago does not respond adequately to these needs. For example, my office has received representations and petitions for Kadhis courts from Migori, Kakuma, Hola, Marsabit, Mandera, Wajir, Eastleigh, Kibera and Kitui. Mosque leaders have even volunteered to offer spaces for Kadhis to hold court.
We thank them for their generosity but are even more keenly aware of our responsibility to deliver justice across the country.
We intend to increase the number of Kadhis in places where the greatest need is felt, and has been expressed. These include Mombasa, Malindi, Kwale, Nyeri, Kisumu, Homa Bay, Bungoma, Nakuru, Eldoret, Nyeri, Marsabit, Isiolo, Moyale, Wajir and Garissa, Hola and Lamu. In the previous way of looking at some of these areas, you would classify some of them as marginalised. I charge you to go and make these places a part of the normal, ordinary Kenya by extending to those who live there a service that assures them of their Kenyan-ness.
(Dr Willy Mutunga, D.Jur, SC, EGH is the Chief Justice and President of the Supreme Court of Kenya)