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The case of Kadhi courts in a secular Kenya

The number of Muslims in Kenya is a matter of contention. The 2009 census estimated Christians to be around 81% and Muslims 11%. These figures have been dismissed by Muslim leaders who feel that their population has been underestimated as a justification for apportioning them fewer state resources and appointments to positions of power. What is certain, though, is that as a minority religious group, with the highest concentration in the coastal and northeastern regions, Muslims do not constitute a dominating force in the country, either in terms of numbers or influence. Moreover, as Brislen argues in the preceding article, each community sees the other with suspicion.   

The Muslim predicament is compounded by racial and ethnic cleavages within the community. The roots of this problem could be traced to the British-colonial policy of treating various Muslim groups differently, with a preference for Arab-Asian Muslims over African Muslims. This racialized and ethnicized Muslim identity has been the community’s main obstacle in presenting a united front on issues affecting the community. The absence of unity has influenced the way the state has perceived the Muslim community in general. Different political regimes have exploited this ethnic and racial diversity of Muslims for political expediency. During Daniel Moi’s leadership, it is alleged that he exploited these differences through clandestine support for the United Muslims of Africa as the authentic voice of ‘African’ Muslims, as opposed to the ‘Arab’ element that purportedly dominated the Islamic Party of Kenya in the early 1990s.

So, on the surface, Muslims may appear as one united group, but they remain divided along sectarian and ethnic lines: African Muslims versus Arab Muslims; Sunni versus Shia; and even coastal Muslims versus Somali Muslims or upcountry Muslims. Such divisions dilute the Muslim voice in Kenya.

Yet, when Muslims feel that their interests as a group are under threat, as in the case of the Equality Bill (2002), the Suppression of Terrorism Bill (2003) or the issue of the Kadhi courts, they display a high degree of unity. However, when it comes to pursuing objectives that are not related to their perceived marginalization, Muslims tend to abandon their Islamic identity and appear to be divided.

Muslim personal law: history and constitutional debates

Kenya’s Independence Constitution provided special protection for minority cultural interests, especially those of Muslims whose ‘autonomy’ in Kenya is closely associated with the application of Muslim (Sunni) personal law in accordance with the Islamic principles. This was made possible through the entrenchment of the Kadhi courts in the Independence Constitution. Though the courts are constitutionally recognized, a group of church leaders had been demanding their removal from the Independence Constitution. As a result, in 2010, the constitutional court declared Kadhi courts to be illegal, contravening the spirit of the Independence Constitution. The ruling drew both support and sharp criticism from the Kenyan public, and it is this verdict that this article examines, seeking to answer if the inclusion of these courts in the country’s constitution is against the pillars of a secular state.

These courts have a historical background. Before it became a British protectorate in the late 1890s, the Kenyan coast was politically administered by the sultanate of Oman based in Zanzibar. As the Oman sultanate established its base in Zanzibar, efforts were made to maintain the same political system that saw the introduction of the liwali (governors) and Kadhi system of administration in the new region. The British respected Muslim sensitivities in so far as religious practices were concerned as evident from the recognition of the sultan’s administrative and legal institutions. The Arab cadre of officers—liwalis, mudirs (lieutenant) and kadhis (court judge)—were now on the pay roll of the colonial administration. However, the jurisdiction of these courts was limited to a 10-mile strip on the Coast.

Immediately after taking over the governorship of the sultan’s dominion, the colonial administration introduced a number of changes that had far reaching implications for Kenyan Muslims. The transformation culminated in the Legislative Council enacting the Mohammedan Marriage Divorce and Succession Ordinance 1897 that institutionalized selected aspects of Muslims personal law. After independence in 1963, the constitutional status of Kadhi courts was enshrined in Article 66 (1) to (5). In 1967, the Kadhi Courts Act allowed establishment of these courts in other parts of the country and the jurisdiction of the courts was restricted to issues related to personal law.

Arguments against Kadhi courts

In 1998, Kenya began search for a new constitution that saw the creation of the Constitution of Kenya Review Commission (CKRC) to write a new constitution. In September 2002, the CKRC unveiled a proposed draft constitution, which was criticised by a section of churches over a number of issues, notably the Kadhi courts, abortion and same sex marriage.  The Kadhi courts controversy instigated an intense debate between groups of Muslims and Christians. According to the opponents of the courts, the proposed draft had provided that Islamic personal laws would be a source of laws in Kenya despite the provisions in Article 9 (1) providing for a secular state. They further argued that the proposed draft had created a parallel judicial system for Muslims, which was tantamount to favouring one religion and contravenes the principle (Article 9 (3) that the state should treat all religions equally.

After an unresolved debate at the constitution review conference in July 2004, a section of Kenyan churches went to the High Court challenging the legality of the Kadhi courts in the Independence Constitution and the proposed draft constitution. The applicants argued that the historical reasons for which these courts were given constitutional protection are no longer tenable. They claimed that after several years of independence, the former ‘subjects’ of the sultan of Zanzibar should no longer require any constitutional protection as Kenya is now a unified sovereign state where all enjoy equality irrespective of race, gender, or religion.

The petitioners argued that the entrenchment of Kadhi courts in the country’s constitution was a step towards introducing Shari’a in Kenya. It was also pointed out that the maintenance cost of Kadhi courts from public resources was unjust and amounted to development of one religion. They interpreted this practice as Islam being declared a state religion, contradicting one of three draft constitutional provisions in Article 9 (2) that there shall be no state religion. Therefore, the court was urged to declare Section 66 of the Independence Constitution, which provided for the Kadhi courts, unconstitutional and expunge the same from the proposed draft constitution.

Responding to the arguments raised by the litigants, Muslim groups insisted that the inclusion of Kadhi courts in the Independence Constitution was not because the beneficiaries were merely ‘subjects’ of the sultan of Zanzibar, but because the courts were a core institution in the practice of Islam. They claimed that the laws applied by Kadhi courts are not a creation of the sultan of Zanzibar but a product of the teachings of Islam.

A controversial ruling

In May 2010, the court declared Kadhi courts to be unconstitutional. Church leaders welcomed the ruling and urged the government to implement it; whereas the government termed the verdict unconstitutional and challenged the ruling. A section of Muslims also petitioned against the verdict claiming their constitutional rights had been violated. They argued that Kadhi courts provided an essential dispute resolution mechanism without which a vacuum will be created in administering justice.

Although the judges made categorical pronouncements in their verdict against Kadhi courts, the then Attorney General argued that the constitutional court had no jurisdiction to strike down Section 66. His position was that it was an existing provision and could not be struck out (on the basis that there is no provision of the constitution that is superior to the other). Consequently, it was wrong to declare Kadhi courts illegal if the country’s constitution provided for them.

On the other hand, the judges in their verdict declared that any form of religious courts should not form part of the judiciary as it offends the doctrine of separation of state and religion. Their position was a clear advocacy for “assertive secularism”—as opposed to “passive secularism”—which intends to eliminate any expression of religion from the public sphere.

State, politics and religion

The role of religion in politics and state structures has been widely debated by scholars and statesmen. Generally, “state policies toward religion are the result of ideological struggles” which manifest in competition between “passive secularists” and “assertive secularists” that shapes public policies. According to Ahmet Kuru, passive secularism is a political principle that attempts to uphold state neutrality towards followers of various religions, thereby allowing for the public visibility of religion, whereas assertive secularism is a “comprehensive doctrine” that intends to purge religion from the public sphere. Due to the realization that it is difficult to have a complete separation of religion and politics, modern states have grappled with the question of the extent to which this interaction in the public and political sphere should be accepted.

For instance, the 2010 court judgment also held that the application of Kadhi courts beyond the Ten Miles coastal strip to be unconstitutional. This judgment attempted to limit the courts to the Ten Miles coastal strip, even though their expansion outside the strip had been sanctioned by an Act of parliament.

Nevertheless, it was necessary for the judges to examine the circumstances under which Kenya had accepted the courts. Though associated with the coastal region, during the colonial period the British had recognized the importance of this institution and extended it outside the Ten Miles strip and appointed the first state-funded Kadhi for the Somali Muslims of the North Frontier District (NFD) in 1927.

During the early years of the first president of Kenya, the expansion of Kadhi courts to the Somalis of the NFD was used to help end the Shifta war. As part of the peace agreement brokered in Arusha in 1967, the government of Kenya accepted to expand the Kadhi courts to the residents of the NFD. This is an important background that should have informed the decision of the judges. More so, the expansion of the courts is informed by the justification that “Kenya is not a federal state and that it will be wrong to expect a citizen to enjoy a right in Mombasa and not have the same right in other parts of the country.”

Regarding government funding for the courts, the constitutional court declared that it is discriminatory. The conclusion was informed by perceiving Kadhi courts as religious courts and not part of the judiciary as such. According to the Kenyan constitution, the critics of the judgment argued, Kadhi courts formed an integral part of the judiciary, which is why the public coffers is used in maintaining them.

Conclusion

Though the High Court has yet to give a final ruling on the government’s appeal, the Kadhi courts saga seem for now to have been resolved. In August 2010 Kenyans voted for a new constitution that entrenches Kadhi courts as part of the judicial system. The adoption of the 2010 Constitution of Kenya in a referendum illustrated that most Kenyan support Kadhi courts. Despite Kenya being a secular state, Kadhi courts are recognized as subordinate courts within the legal system. Yet, an undercurrent of opposition remains palpable in many sections of civil society and churches.

To sum up, the opponents of Kadhi courts claim to have embraced the ideal of secular state against the adoption of religious laws, while it is a matter of general observation that the role of religion in public life in Kenya is pervasive and deeply entrenched. On the other hand, the supporters of Kadhi courts are oblivious of the implications of religious laws in the national context characterized by pluralism. Secularism is not about the absence of religion, but it is “an independent social category, containing multiple dimensions” that are unable to be discussed exclusively “with respect to religious behaviour.”

The constitutional and political expression of secularism in Kenya has not been anti-religious—the Independence Constitution as well as the 2010 Constitution provide for freedom of religion to all citizens. The objective—at least, on paper—is not to promote one religious conviction at the expense of others, but to provide an enabling environment to all creeds to separate religion from the politics of the country, and confine it as a private matter outside the scope of state legislation.

Nevertheless, attempt to separate religion, state and politics in Kenya have not diminished the influence of religion, as references to God are embedded in the national fabric. Despite the claim that it is a secular state, one never fails to notice the presence of religious symbols and rituals in government affairs and state functions. Religion continues to play a significant role in public life as the general public and political culture remain deeply associated with religion.

Hassan J Ndzovu is a Senior Lecturer in Religious Studies at Moi University, Kenya. Ndzovu holds a PhD in Religious Studies from the University of Kwazulu Natal, South Africa. He is the author of “Muslims in Kenyan Politics: Political Involvement, Marginalization and Minority Status.” He can be reached at ndzovuhassan@hotmail.com

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