John Ngirachu and Oliver Mathenge
27 October 2009
Nairobi — Churches on Tuesday threatened to rally their followers to reject the draft constitution if kadhi courts are not left out.
At a meeting attended by representatives of the mainstream churches -- Dr Gideon Githiga of the Anglican Church of Kenya, Bishop David Kamau of the Nairobi Catholic Archdiocese, Presbyterian Church of East Africa moderator David Gathanju and John Mugecha of the African Independent Pentecostal Church of Kenya -- the clerics said kadhi courts should not have been in the current Constitution in the first place.
The meeting was also attended by the Methodist Church in Kenya.
The evangelical churches have taken a hard line on the kadhi courts, but were on Tuesday joined by clerics from their big churches at the press conference at PCEA St Andrew's Church in Nairobi.
The kadhi courts have been in the Constitution since independence and their jurisdiction covers only Muslims on issues of personal law. It was not clear whether the statement at the press conference represented the views of the leadership of the mainstream churches, or whether the representatives attended in their personal capacities.
ACK Archbishop Eliud Wabukala said his church could only make a decision after a draft constitution was formally presented to Parliament. The archbishop said he would communicate officially after being authorised to do so by the synod.
"This, however, does not deter anyone from taking a personal stand on the matter. The meeting today was not official and I think it was a breakfast to discuss these issues," the Rt Rev Wabukala told the Daily Nation.
Bishop Kamau, the auxiliary Bishop of the Nairobi Catholic Archdiocese, could not say whether he represented John Cardinal Njue at the meeting.
"The issue here is that the matter is of interest to Catholics as well as all other Christians. These meetings are happening in Nairobi and I am also here as a bishop in Nairobi," he said by telephone.
But the National Canon lawyer of the Catholic Bishops in Kenya, Fr Dominic Kimengich, said the stand of the Church could only be communicated by the chairman of the Kenya Episcopal Conference, Cardinal Njue, who is in Rome. The cardinal can also make the decision after meeting the other Catholic bishops.
However, Fr Kimengich added that an individual bishop may attend any meeting discussing such a matter.
If the mainstream churches join the evangelicals in opposing the kadhi courts, then this will be a serious setback in consensus-building for the new constitution.
The church leaders' statement came a day after Chief Justice Evan Gicheru said kadhi courts established under British colonial rule should not be abolished.
Mr Justice Gicheru said on Monday that the courts played a vital role in the administration of justice. He said the government had 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.
According to the church leaders, the kadhi courts shouldn't have been in the current laws in the first place. They claim there was a plot to introduce sharia law in Kenya.
"There was nothing agreed then by the people of Kenya. It was the mind of an individual," said Bishop Gerry Kibarabara, chairman of the Kenya Christian Constitutional Forum.
The Committee of Experts, which is writing a new constitution has said that kadhi courts are not a contentious issue. It also made a commitment to continue educating the public and religious leaders on the matter.
The experts are meeting at Kilaguni Lodge to polish a draft which they have promised to publish in the first week of November.
But yesterday, Bishop Kibarabara argued that to include the kadhi courts in the draft would be to favour one religion over all others.
Nominated MP Mohammed Affey said Christian leaders should understand that the Constitution was being changed to improve the lives of Kenyans.
"The courts have always existed and now we think that they have another motive. They should come clean on the issue," said Mr Affey.
SUPKEM director general Abdulatif Shaban said talks between Christian and Muslim leaders to find a common ground on the kadhi courts were ongoing.
"If the draft is rejected, they will remain in the Constitution but Kenyans as a community will lose," said Mr Shaban.
He said the Inter-Religious Council of Kenya would seek a common ground to resolve the differences.
At a press conference two weeks ago, evangelical clerics had said they would still be open to discussions and Mr Shaban said that was a sign that the relationship between the faiths was not likely to deteriorate.
He said, however, that the clamour for a new constitution should not be about taking away the rights of minorities like the Muslims.
"The reform agenda is bigger than the kadhi courts," he said.
The kadhi courts came into being with the independence Constitution in 1963 but had been in operation even before.
They are anchored in the Constitution under Article 66 (8) which states: "There shall be a Chief Kadhi, and such number, not less than three of other kadhis as may be prescribed under an Act of Parliament."
Article 66 (12) says "the jurisdiction of a kadhi's court shall extend to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion."
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