Eunice Machuhi
26 October 2009
Nairobi — The Chief Justice has defended the existence of the Kadhis courts in the Constitution, saying they played a pivotal role in the administration of justice.
Mr Justice Evan Gicheru said that the courts which were established under the British colonial rule, have been part of the Constitution, and should therefore not be abolished.
"These courts have always been there, and we found them when we were born," he said.
The CJ who was opening a training seminar for Kadhis at the Baobab Resort in Mombasa however declined to speak much on the topic, saying that he could not comment on the ongoing Constitution-making process.
"I cannot talk about what is being discussed now, but when the issue arises, it will be dealt with at that time according to law," he said.
While highlighting the background of the emergence of the Kadhis courts, Mr Justice Gicheru noted that even the colonialists did not tamper with the judicial system which included the institution of these courts, and wondered why there were calls to have them abolished in the proposed new draft.
The Government, he said, guaranteed the existence of these courts at all times and committed itself at the United Nations to honour the agreement protecting their establishment and existence.
He added that at independence there were only three Kadhis courts but the number has continued to increase as demand for the service increase.
"The Kenyan populace at independence is different from that of today. The people are now more enlightened and know their rights," he noted.
When asked to comment on the issue, Chief Kadhi Hamad Kassim said that the courts are recognised as subordinate to the High Courts, hence their reason for existence for the long time.
"I do not see anything nothing contentious about these courts. They were included in the Bomas Draft, so why should they be left out now?" He posed.
Muslims and Christians have taken a hard line position on the issue, with the former maintaining that they should be entrenched, while the Evangelicals and the main stream churches have come out strongly against their inclusion.
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