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No consensus yet on Kadhi courts

NAIROBI, Kenya, Oct 17 – Protestant Churches have disowned a reported deal with the Committee of Experts (CoE) to retain Kadhi courts in the new Constitution.

Under the banner of Kenya Christian Constitution Forum (KCCF) Evangelical Bishops on Saturday maintained that their position on the exclusion of the courts from the Constitution had not changed.

The clergymen said they were not consulted before the joint statement between CoE Chairman Nzamba Kitonga and one of their own, Bishop Wellington Mutiso was made on Friday.

“Rev Mutiso did not speak for us. We are categorical that we will not accept the courts (Kadhi) in the Constitution,” said Bishop Margaret Wanjiru.

“Dr Kitonga is not fit to deliver a new Constitution. He should resign and leave the process to non-partisan professional Kenyans,” she added.

The group accused CoE of dishonesty in the matter claiming that Dr Kitonga had refused to meet them despite numerous attempts to seek his audience.

“I spoke to Rev Mutiso today for over half an hour and from what I gathered he was cornered into making the statement,” said Bishop Gerry Kibarabara.

A statement issued on Friday stated that the clergy had accepted to the current status quo in which the courts are recognised in the Constitution by an Act of Parliament. Without divulging details (CoE) Chair Nzamba Kitonga and the National Council of Churches of Kenya Oliver Kisaka said there was emerging consensus on the courts and it would no longer be a source of division.

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Rev Mutiso of Evangelical Association of Kenya who was in the Friday press conference was cautious only saying that he would ‘consult his principals.’ However the KCCF team questioned why Rev Mutiso who is ‘one of them’ consented to the statement without getting their consensus on the stand.

Bishop Kibarabara maintained that they would mobilise their members, who they claim to be 90 percent of Kenyans to shoot down the Constitution in the referendum should it include the court.

“You cannot midwife a process properly in which you have interests,” he said.

At the start of the week, KCCF 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 Kadhi courts in the draft Constitution. 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 Kadhi courts under Chapter 5 in the Judiciary and thereafter Parliament passed the Kadhi 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 Kadhi courts were three. In 1967, the Kadhi Courts Act was passed which increased the courts to six. They have subsequently been increased and today they are all over the country.


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