Consensus emerging over Kadhi courts

October 16, 2009 12:00 am

, NAIROBI, Kenya, Oct 16 – A deal may have been reached on the Kadhi courts issue at a meeting of the Committee of Experts on the Constitution review and the National Council of Churches of Kenya (NCCK).

Without divulging details (CoE) Chair Nzamba Kitonga and NCCK’s Oliver Kisaka said there was emerging consensus on the courts and it would no longer be a source of division.

“Kadhis courts do raise various concerns and yet are important socio-cultural institutions,” Dr Kitonga said.

Mr Kisaka said: “Good steps have been taken to address the issue and the new understanding will bring the matter to a rest.”

NCCK Secretary General Peter Karanja confirmed to Capital News that the council was willing to accommodate the current status quo where the Chief Kadhi is recognised in the current laws under an Act of Parliament. 

“That may be the settlement most likely and that doesn’t hurt anyone,” he said. “The briefs I am getting from the meeting are that good progress has been made.”

Muslims have demanded that the courts be entrenched in the Constitution to make them more superior. Christians have however opposed such plans and vowed to shoot down the Constitution in the referendum should the CoE entrench the courts in the supreme laws of the country.

In the 2005 referendum Christians rejected the Bomas draft on this contention. 

“Anything that envisages what was contained in the Bomas draft is not acceptable,” said Canon Karanja.

The experts failed to include the courts under the list of contentious issues raising fears that they could retain proposals contained in the Bomas draft.

At the start of the week, a group of evangelicals under the banner of the Kenya Christian Constitutional Forum called on Dr Kitonga to resign, saying he had ignored the role of the Reference Group in forming consensus on contentious issues such as the inclusion of Kadhis courts in the draft Constitution.

The Bishops had threatened to rally their followers to reject the draft constitution if Kadhi’s courts were included. Another group of Bishops had filed a case at the High Court to stop the constitutional review on accusations that the CoE is conducting the process unilaterally.

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 three. In 1967, the Kadhis Courts Act was passed which increased the courts to six. They have subsequently been increased and today they are more than a dozen spread over the country.


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