, NAIROBI, Kenya, May 25 – Law experts say Monday’s court ruling in a case filed in 2004 declaring Kadhis courts illegal does not in any way affect the on-going Constitution making process.
Some of those interviewed by Capital News have however, warned that the ruling may be used by opponents of the proposed Constitution as a campaign tool.
Former Law Society of Kenya (LSK) chairman Ahmednassir Abdullahi said the constitutional court had acted outside its jurisdiction by declaring Kadhis court illegal.
“Parliament amended the Constitution well aware of the threat the Judiciary posed to the process and they insulated it by creating a special court that can listen to disputes on the review process. So the court’s judgment is really neither here nor there,” Mr Abdullahi said.
“It is a stupid attempt to derail the process but it failed legally because the court has no jurisdiction to touch on any aspect of the review process,” he added.
The former LSK chairman however said politically, the ruling had given the ‘No’ campaigners a reason to push harder for their stand because the current Constitution would not have the Kadhis courts.
“I think it should be read from the politics that underpin rather than the legal value that embodies the judgment of the court,” he said.
Lawyer Haroun Ndubi held the same view, arguing that “although this ruling does not have any impact on the constitution-making process, it provides ammunitions to the camp opposed to the proposed document. But I still find that a superfluous argument.”
“This ruling does not make the constitution-making process illegal, in fact the drafts that were subject of the discussions in court were not this one. It was the Bomas draft and possibly another so this ruling is retroactive,” Mr Ndubi said.
He urged Kenyans to ignore the ruling made on Monday and continue familiarising themselves with the proposed constitution which will be subjected to a national referendum on August 4.