Kenyan AG fires back on Kadhis Courts

May 25, 2010 12:00 am

, NAIROBI, Kenya, May 25 – The Attorney General has moved to court to challenge the ruling made on Monday declaring the inclusion of Kadhis’ Courts in the Constitution illegal.

The AG said he had filed notice of his intention to appeal the decision.

“The Attorney General is of the opinion that the Court lacked jurisdiction and in any event, the judgment is wrong in law and creates a bad precedent. Consequently, I have directed that the Notice of Appeal be filed immediately,” Mr Amos Wako said in a statement.

He urged the court to urgently issue his office with certified copies of the proceedings and judgment, in view of the importance of the case.

Download the landmark ruling here.

“It must be stressed that the decision of the court does not from a legal point of view affect the ongoing constitutional review process and the referendum to be held on 4th August,” Mr Wako said.

He said it was worth noting that arguments in the case were closed on March 11, 2009 but judgment was delivered 14 months later.

He added: “Only the constitutionally established Interim Constitutional Disputes Resolution Court has exclusive jurisdiction in matters relating to the current constitutional review process.”

Judges to the Interim Constitutional Disputes Resolution Court were sworn into office in January this year.

Those who sit on the court are Justice Samuel N. Mukunya, Justice Ms Violet Khadi Mavisi, Justice Ms Scholastica Omondi, Justice Ms Jamila Mohamed, Justice Sankale Ole Kantai and Justice Mburugu M’Nkanata Kioga.

Others are Justice Michel Bastarache of Canada , Justice Ms Unity Dow of Botswana and Justice Alistair Cameron of the United Kingdom .

The Interim Independent Constitutional Dispute Resolution Court has exclusive and original jurisdiction to handle and resolve disputes related to the constitution of Kenya review process.

The ruling that declared Kadhis Courts unconstitutional was made on Monday by Justices Joseph Nyamu, Mathew Emukule and Roselyne Wendoh following a case that was filed in 2004.

They ruled that the inclusion of the courts contravened the principle of the separation of State and Religion and should not form part of the Judiciary in the Constitution.

The judges said 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 case was filed 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.

The religious leaders had filed the suit against the Attorney General and the defunct Constitution of Kenya Review Commission (CKRC).

The Bench 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.


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