, NAIROBI, Kenya, May 24 – The National Council of Churches of Kenya (NCCK) was on Monday elated by a court ruling that declared the inclusion of the Kadhis courts in the Constitution illegal, and immediately demanded a delay of the August 4 referendum.
Secretary General Cannon Peter Karanja said the government should now look for a way to build consensus before subjecting the draft to a vote.
“We hope that Kenyans can appreciate that the Church has not been reckless, careless or ignorant. We have maintained that our objection to the provisions that touch on the enhancement of Islam at the expense of other religions is a matter of justice,” he said.
A ruling made by Justices Joseph Nyamu, Mathew Emukule and Roselyne Wendoh (in a case that was filed in 2004) stated that the inclusion of Kadhis courts in the current constitution was illegal and discriminatory.
In an interview with Capital News soon after the ruling, Cannon Karanja reiterated that there must be a level playing field for every Kenyan through the provision of an environment where the beliefs of everyone are promoted on equality and justice.
He however said the Church had no intention to challenge the contentious clause on Kadhis courts in the proposed Constitution in court.
“We hope that Parliament can do what the court has said; carry out the formalities that are necessary for the expunging of the Kadhis courts from the Constitution, revisit the section that provides for the Kadhis Courts Act and harmonise it with the declaration of the court,” Cannon Karanja said.
The judges said the inclusion of the courts contravened the principle of separation of State and Religion and as such should not form part of the Judiciary in the Constitution.
In a 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.”
The court however declined to expunge section 66 of the Constitution which introduces and entrenches Kadhis courts in the law and said 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.
“We commend the court for having the courage finally after waiting this long to conclude that matter and issue a declaration in favour of the plea of the Church,” Cannon Karanja said.
“We hope that Kenyans can now appreciate the reason for rejecting this draft (proposed new law) because it seeks to entrench and expand illegality with respect to the Kadhis courts. It virtually shows that the provision is equally mischievous and has no reason being in the Constitution,” he added.
He maintained that the Church would continue rallying for the rejection of the proposed Constitution if no amendments are made.
“We cannot go to court to seek for the expunging of a mischievously entrenched provision in a draft constitution going to the referendum. We will tell Christians and Kenyans to reject the draft. The burden of sorting out that inconsistency lies on the government,” he said.