Nairobi — Religion is playing a major role in undermining Kenya's draft constitution. Christians and Muslims, who have lived peacefully for decades, have now suddenly found themselves at loggerheads over the document.

Muslims are insisting that Islamic sharia (laws), which call for floggings for consuming alcohol and stoning to death for committing adultery, be enshrined in the new constitution.

This has angered Christians who make up about 85 percent of Kenya's estimated 30 million people.

A referendum is set for November to resolve the dispute.

But the government is worried because members of 'The Kenya Church', who met in the capital Nairobi Aug 25, said they would mobilise their congregations to vote 'no'.

"We are saying that all religious courts and traditional courts not be included in the constitution. These courts are out-rightly unconstitutional," David Githii, chairman of The Kenya Church, an umbrella for 40 church groups, said during their meeting last week.

Clause three of article 179 of the proposed constitution provides for traditional and Sharia courts, while at the same time the first clause of article 10 stipulates separation between the state and religion.

"We have strategies of getting right to the village level to get the persons there to vote 'no' to this constitution. We have branches down in the villages and we interact with the grass-roots almost on a daily basis. This campaign for a 'no' vote will go on even after the referendum. It will continue up to the next general elections in 2007," Bishop Margaret Wanjiru of 'Jesus is Alive Ministries', a charismatic church, told the gathering.

"Our vote and that of our congregations remain 'no' until clause 179 changes. If the government chooses to remain adamant, it is their choice. The ball is in their court," she said.

The inclusion of the traditional courts in the draft constitution last week sought to appease Christians who have been against sharia courts or Kadhi's courts, as they are commonly known in Kenya. Kadhi's courts have been operating in Kenya for decades.

At a National Constitutional Conference in 2003, sharp differences emerged when Muslims demanded that Kadhi's courts be upgraded to national level and be allowed to preside over commercial, civil as well as criminal disputes just like the Supreme Court.

Christians rejected the idea. They demanded that the courts be scrapped altogether from the draft constitution, as it gives preference to Muslims. Christians argued that the courts would pave way for Kenya to become an Islamic state and plunge the country into a religious war as it has happened in Sudan and Nigeria.

Defending themselves, the Muslims argued that they would accept nothing less than upgrading the Kadhi's courts.

In neighbouring Sudan, religion has fuelled the conflict between the Arab-dominated regime in Khartoum and the mainly Christians in the south since 1955. The latest conflict, which erupted in 1983, has claimed over two million lives, mostly in the south, when former president Gaafar Nimeiri imposed the Sharia. A January 9, 2005 peace deal brought the war, considered as Africa's longest running, to an end.

Sharia is also creating animosity in the West African state of Nigeria with frequent reports of conflict between members of the two religions. Almost half of the 36 states in Africa's most populous country have adopted the law.

In Kenya, the furthest the conflict has ever done is the burning of a mosque and two churches. An Anglican clergyman was injured in the clash that took place in 2000.

Due to the disagreement between the two religions, the National Constitutional Conference, which concluded its deliberations last year, agreed in its final document not to upgrade the Sharia courts. It has recommended to leave them to operate at local level as they had always done; dealing with only personal laws relating to divorce, inheritance and marriage.

Last week (Aug 23) the government met with the church leaders to try to change their minds about voting against the planned referendum. But the two reached a deadlock when the church maintained that it would only vote 'yes' if the government removed the contentious clauses including the sharia courts.

"If they say 'no' to the draft constitution, the repercussions are going to be phenomenal. The government may obviously lose the referendum," Mutahi Ngunyi, a political scientist in Nairobi, told IPS last week.

President Mwai Kibaki's government has already launched a campaign for a 'yes' vote.

Another contentious issue contained in the draft constitution is the presidency, which has caused a split within Kenya's ruling National Rainbow Coalition (NARC). One wing of the ruling party, the Liberal Democratic Party (LDP) has been supporting the idea of a non-executive president and a powerful prime minister.

Roads and Public Works minister Raila Odinga, LDP's front-liner, has been tipped as the most likely candidate for the prime minister's post.

The National Alliance Party of Kenya (NAK), the other wing of the ruling coalition, which comprises mostly the president and politicians close to him, prefers a strong president.

Civic education by the Constitution of Kenya Review Commission is expected ahead of the referendum. If the controversial draft is rejected, Kenya will revert to the old constitution. If accepted, President Kibaki may declare the document as Kenya's new constitution on Dec 12, 2005.