, NAIROBI, Kenya, May 26- A prominent Nairobi lawyer is now cautioning that Monday’s ruling that outlawed inclusion of the Kadhis’ courts in the current Constitution can be used to derail the on-going review process.
Evans Monari told Capital News in an interview on Wednesday that all it needed was someone to file a petition before the Interim Independent Constitutional Dispute Resolution Court (IICDRC) which can issue orders halting the current review process pending a decision.
“Somebody can actually move to court and say “on the basis of the fact that the constitutional court has outlawed Kadhis’ courts, its inclusion in the proposed constitution ought to be questioned, challenged and interrogated” and it would be up to the court to make the decision,” he said.
The IICDRC has the powers of the High Court and it has been vested with powers to mediate any disputes in the current review process.
“That particular court has more muscle and more credibility and can deal with these issues if they are filed today,” he said.
Mr Monari said terming the court ruling as inconsequential was unrealistic because courts make a decision with a view to being obeyed which was the reason the Attorney General had appealed to seek annulment of the decision.
“One of the things you should get worried about is whether the court of appeal interprets the Constitution. Under our current Constitution it does not and it is left to the High Court,” he said.
“So this decision may not be appealable in the first place unless you are looking at the process,” he added.
Mr Monari said Parliament should be the one to make a law that outlaws the judgment adding that the ruling appeared like it was designed to affect the constitutional making process.
He said although it may not have done so, it “has incited feelings among voters and strengthened certain opinions.”
“Although the process of forming a new Constitution can go unhindered it has been dented by the decision,” he said.