, NAIROBI, Kenya, May 24 – A constitutional court on Monday declared the inclusion of Kadhis courts in current Constitution illegal and discriminatory.
The landmark ruling was made by Justices Joseph Nyamu, Mathew Emukule and Roselyne Wendoh following a case that was filed in 2004.
The judges said the inclusion of the courts contravenes the principle of the separation of State and Religion and as such should not form part of the Judiciary in the Constitution.
In an unanimous decision, the judges ruled that the entrenchment of the Kadhis courts in the Constitution “elevates and uplifts the Islamic religion over and above other religions in Kenya.”
This, the Bench held, is inconsistent with section 78 and 82 of the current Constitution and discriminatory in its effects against Kenyans of other faiths.
The judges said this while delivering a verdict on a constitutional application filed in 2004 by 26 applicants led by Very Right Reverend Jesse Kamau (Presbyterian Church of East Africa), Bishop Silas Yego of the Africa Inland Church, Reverend David Githii, Bishop Arthur Kitonga, Bishop Margaret Wanjiru of Jesus Is Alive Ministries and Bishop Boniface Adoyo of the Nairobi Pentecostal Church challenging the inclusion of the Kadhis courts in the Constitution.
The religious leaders had filed the suit against the Attorney General and the defunct Constitution of Kenya Review Commission (CKRC).
The Bench also ruled that financial maintenance and support of the Kadhis courts from public coffers amounts to segregation, is sectarian, discriminatory and unjust against the applicants.
“This amounts to separate development of one religion and religious practice contrary to the principle of separation of State and Religion and is therefore contrary to the universal norms and principles of liberty and freedom.\’\’
In reference to the enactment and application of the Kadhis courts to areas beyond the 10-mile Coastal strip, the judges said: “We find and hold that the purported extension of the Kadhis courts through the enactment of the Kadhis Courts Act beyond the former protectorate areas contravenes Section 64(4) and Section 4(2) (b) of the Constitution and is unconstitutional and therefore null and void.”
The three-judge Bench said the decision has been handed down on the basis that the role of the court is to interpret and declare the law.
The court however declined to expunge section 66 of the Constitution which introduces and entrenches Kadhis courts in the Constitution saying the doctrine of separation of powers prevents it from amending the law or enactment of a new Constitution including its contents as that role is vested in the people of Kenya.