Posted by: Family Media | April 19, 2010

Can We Overcome The Constitution Standoff?

If you clearly remember back in 2005 during the constitution referendum Kenyans were divided into two camps: ‘Bananas and Oranges’. The division that resulted led to the post election violence witnessed in 2008. This year we are facing yet another referendum and some church leaders have vowed to rally their followers to vote NO. Their rejection of the draft constitution arises from two contentious issues: abortion and Kadhi courts. On the other hand, top government leaders are championing for the YES vote. Their argument is that the document is almost 100 percent good and the contentious clauses can be amended after the draft is passed. Given the kind of passion both sides are displaying, isn’t there a risk that this constitution is going to divide our nation instead of uniting us? Can’t we reason together and find a middle ground where we can all stand as one?

Kadhi Courts do not have to be entrenched in the constitution to be functional. The constitution is supposed to cater for all Kenyans equally and inclusion of the courts which serve only Muslims is not justified. An act of parliament should be sufficient to define their role. Regarding abortion, the Church can let the matter rest as it is but focus on teaching (and condemning) about the evils of the practice. Do you think leaving out Kadhi Courts and retaining the abortion clause as it is would be a sensible and workable way out of the standoff?

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Responses

  1. This seems to be the best way forward. If the Kadhis courts are deleted from the draft then the church can begin to re-consider her stand. The most contentious issue in the draft remains the Kadhis court clause.. every thing else can be deliberated. The abortion clause is more personal and can be addressed from a different platform through teaching but once Kadhis courts are passed.. that’s it and it will affect all of us as Kenyans.

  2. It bears mentioning here that the two issues classified above as contentious in my humble opinion are not and I stand to be corrected on this. One, the Kadhis courts fall under the judiciary and their scope of reference are as limited as it goes. It also bears mentioning here that the head of the judiciary is the chief justice as in the current constitution; who bears the ultimate direction to be taken in whichever judicial matter and not the chief kadhi. If the latter was the case then there could have been cause for alarm.

    Two, the issue of abortion is clearly stated in the draft as “not permitted” but only under circumstance which according to me again, is pro-life; “when the life of the mother is in danger”. The question the church should be contending with as of now, I reckon is; “what mechanisms have the constitution provided to deal with people who intend to misuse this exception?” And I think whoever does what is contrary to the constitution is a criminal whose case can only be judged in a court of law and not from the pulpits.

    I think the church is losing sight of its cardinal role; point out the wrongs in the society, lead people to repentance and show them the right way, the rest are matters of personal decisions that can only be left to self accountability to God. Again as I said I stand to be corrected on this.

  3. The constitution (Draft) is a big joke. The size of a dictionary and fatally defective by including matters which not of universal representation such as Kadhi Courts. If anything, these MPs should create a Kadhi Courts Act they are taken care of but not entrenching such matters in the supreme law of the land. I vote NO!

  4. I sincerely do not agree with your views that the church should let the issue of the Kadhi courts go. therefore my take is that we should mobilize all Christians who have the future of this country at heart to vote no.

    My reason is based on Clauses 306 to 308 of the draft. It will be extremely impossible to change the draft. Just read and see for yourself. If i am wrong i am willing to be educated.

  5. I reckon that controversies have never failed to dog nations since the day of old.
    Suffice is to say, what we are going through as a nation right now is in no wise about Kadhis courts and abortion or whatever, but is a true picture of what we have become and our moral standing as a people in Kenya.
    We are so intellorent towards one onother and will hardly take in another’s opinion when its contrary to ours. Instead of seeking solutions amicably & dlilgently, we choose to battle and show supremacy till we are so wounded and divided for good.
    Laws do not make a great people……………….. It is the fear of God. Constitution or not we continue to whimper and bruise each other. You can be sure that as soon as we are thro’ with the constittution, not withstanding the result, we will raise another issue to fight about.
    If we do not sit to reason as a nation, we will definately remain a very divided and wounded lot after the constitution process.
    Solomon judged well over the two ladies who laid claim to the baby……………… He was the leader then……………………….. It is thus our leadership and yours prayers that shall salvage us.
    We can overcome if we stop to reason and consider dialogue.

  6. I agree with you. Leave the Kadhis court out, as it very contentious especially if you have studied Islam. However the abortion clause is sufficient, and it still states that abortion is illegal.Lets give people a choice, because we all have a free will that even God does not interfere with. There are instances where it is unavoidable to terminate a pregnancy like during ectopic pregnancies. Religious leaders should not take a moral high ground on this, instead they should listen to what their congregants are saying and focus on teaching about abortion because it is real even if they want to bury their heads in the sand.

  7. Oh, and for that reason alone (Kadhi courts) I will vote NO!

  8. I am persuaded to vote NO in the forthcoming referendum unless the issue of kadhi’s courts and abortion are adressed satisfactorily. more comments later please.

  9. Leave the Kadhis court out and divide the country. Frankly, the church leaders are playing with fire. they want to polarize the nation and draw a line, a battle line in fact, between its Muslim and Christian members. If the Church leaders think that we are a weak minority that doesn’t deserve this clause, without which Kenya would have been land-locked, then they should prepare to taste living without a port.

  10. I disagree with some of the people here saying that the Kadhi courts are not controversial. One thing is true they are in the current constitution but not as prominent.

    The fact of the matter is that Kadhi courts are religious courts and i do not see why Kenyans should be made to pay for the running of the courts in the entire country. THE DRAFT SAYS THEY WILL BE ESTABLISHED IN EVERY area of the protectorate as opposed to the independence clause of the coastal strip.

    Would people be willing to meet costs of having Christians courts throughout the country.

    They should be deleted and not given prominence as at now. Why promote one religion over others not fair.

  11. I have followed with keen interest on the Issue of the kadhi courts and abortion.Being a mainstream protestant minister I can say I am a professing Christian and I am not intimidated by the Kadhi courts!What I can say pointblank is that justice has not been done to other religions.Frankly speaking,when I did comparative religion in the seminaryIwas informed that kadhis courts is not the same as Sharia law.Sharia law is mainly broader and is derived from The Quran and also the tradition[Hadith]Note that even this Sharia Law is interpreted differently in different countries.The fear of many Christians is that Kenya may be islamised by force.It would not be force because christians never wrestle with flesh and blood[Violence is not Christian,although I am aware of theology of liberation]we would call it persecution and the result would be more powerful and more prayerful and more united church.It is not force but persecution to Christians.But I do not think it will go there anyway.If it goes there,then Christians will know who to call.
    I would always remind christians that I struggle to understand the Mind of Christ;especially a time like now.What does He expect?Should we love Moslems regardless of what they may do to us,or should we give them their space [knowing that it feels so hurting to every human being to know they live in a country where they are not loved by majority]?
    This is the feeling of Christians living in northern nigeria,and probably cairo,Egypt.It pains me.I think we should love moslems expecting nothing in return.
    BUT
    Do not forget that not all moslems are bad people,violent and jihadist ,or fundamentalists for this matter.I am aware where Christians are coming from.I know they watch video clips from far away and they see bombings and blood and they associate it with a religion.That is the fear,but do you not think kenyan moslems know each and everywhere churches are?And,that if they were all jihadist they should have known where to strike long time ago?[I am symphathetic to them but am sure to ask some very pertinent questions when I meet a Sheikh in future,and He should as well ask me cos am always ready to give an account of the faith I profess!!]I love doing that.
    Removing kadhi courts will hurt a neighbour and it will not be Christian.If anything it should be the work of internal security to give me security as I take the gospel of the lord anywhere and everywhere.To whoever heareth[thats how radical I am].The same internal security should protect all moslems whenever they feel insecure.They are people of Gods Image.
    But as kenya grows,so are the challenges.A time will come when christians and moslems will be facing one another discussing their faith,not to compete in the sense of the word,but because we would love a united kenya for longer.Not everybody should do this though,only those who know they can never lose their faith in the process after all.It is precious to be lost anyway.How I wish Kadhis courts are not in the National Constitution.
    Abortion?It is not at all good.But being a pastor I have to admit I know people who confess to have done it.The only way I can condone is the medical way,with the same feelings and heaviness at heart I have whenever I conduct burial at the langata cemetary.Losing these angels pain me.It pains God,but it happens.Whereas I do not want to seem to impose my faith to the unbelievers or half believers,it should not be done for the sake of it. Exhaust all option medical,spiritual and psychological with fear of God and sanctity of life.The church has more chalenges to tackle.We may succeed in taming the reckless abortionist merchants of death but we are equally aware that our girls are buying the morning-after pill over the counter.After.The challenges are here to keep us going,praying and relevant.
    The two opinions are personal and should be taken at that light.
    God see us through,Huh.

    • I am convinced that there is a serious issue of fear whipped into the country. What no one has yet explained to me sufficiently, is:
      1. What is the effect of the Khadhi Courts on Christians? I have read lots of commentary that speak of conspiracies and islamic evangelisation agendas, but I am yet to be shown specifically and objectively how this is being promoted by the presence of the Khadhi Courts in the constitution.

      I am not comfortable with the conspiracy theories going around Christian circles intimating about an agenda that arose from the “Abuja Declaration” where those of the Islamic faith pledged to proselytize by use of any means possible.

      This is where I think the church (of which I am a part) and the leadership have gone wrong:
      a. Handing down an edict/statement of fact on this clause. What this has done as a by the way, is that the entire body of believers is split in two. This was not handled in wisdom, as the problem of Christian unity is going to be tackled by the same church leaders who have polarized the entire church with edicts or church positions that are ‘acceptable”
      b. Worse still, the church leadership has pointed to a clause which, when read by a normal literate person, actually doesn’t present a conflict in interpretation. I point to the clause that shows that the Khadhi Courts will have jurisdiction “for those who profess the Moslem Faith and submit to the jurisdiction of the Khadhi Courts”. I have not found any explanation offered by any in the church as to how this is in fundamental conflict with either my Christian values/practice or my attempts to evangelize the Moslems. I beg someone to shed light on this.

      Let me state here. The church is getting more polarized day by day with the leadership in church at odds with the national political leadership. If the church leadership requires respect, then there must be a way in which communication about the issue by the church should not only be handled as ‘a word of God’, one that we should just adopt by Faith. The church leadership should ‘market’ this position through the use of modern methods to include statistical analysis, case studies, and empirical evidence, so that the argument is compelling to the average churched but literate follower. If this was done timeously, we would not have these issues polarizing us. Unfortunately, the church leadership has gone the way of convincing the followership using faith methods, thus the total backfire.

      On the abortion issue, I am less inclined to accept the church position, unless they provide empirical evidence that this is another example of hidden agendas in the constitution.

      Finally, it is my prayer that the church and church leadership move on to discuss other fundamental issues like land and the system of governance. These issues are remarkably more fundamental than the ones that are being raised in the general fora. Let the church and church leadership not be caught up on the merits and demerits of this issue, but examine the wider constitution as well, to ensure that all aspects that govern our daily lives have been tackled equitably and fairly to all Kenyans.

  12. Am getting distubbed with the kind of leadership we have in these country, especially when they give a reason that we have wiated for close to 20 years now to get a constitution and now we should pass these one.
    They were the same politicians who fought against the last draft brcause it din’t have their interests at heart. As it is i will vote NO, because of abortion and kadhis courts.
    But i can suggest that they do away with kadhis courts and about abortion let it be captured as illegal and can only be done when the life of the mother is in danger, without adding any words.

  13. The whole issue of abortion is very key and for any person, it should be sufficient to disallow the proposed constitution. The whole issue is hinged on your view of truth.That is, with an absolute perspective, life is precious and any law that will allow for the termination of life irrespective of the situation should be treated with caution. We are not the author of life and therefore we should not give ourselves any latitude to end it. It is a sign of our societal values and when we cross the line of instituting killing in constitution, we are losing. Any tragedy befalling the lady, however grave should never warrant such a grave misdeed. Are you speaking for the child or protecting yourself? The supporters of this bill are mostly people who are promiscuous and don’t want to take responsibility. Most of the vocal supporters of this clause are women lawyers who are in bad marriages and have refused to give their husbands their children.(Female law lecturers in Parklands campus who are members of LSK). Something that relies on relativism like a constitution should never include issues that are factual and thus not subject to negotiation. The absolute truth we have no clue of how a baby is formed really, neither can we control the health of the child in the womb or the pregnant mother but we know the one who created the child and He is the final say and he says no.
    Trained medical practitioner? Man is naturally wicked and we are giving him the chance to decide whether he wants to make money or not? What do you think is the obvious choice? remember it is the era of relativism thus one man’s meat is another man’s poison. Killing at whatever stage, and lets not sugar coat it because that is what it is, is simply not acceptable. That is my official take on this issue.

  14. Reason, justice & fairness must prevail and be seen to be done so that we can overcome these issues of contention

    1) It is absolutely REASONABLE & Christian to demand for fairness & justice for ALL religions before the law.

    2) Reason dictates that All religions must have EQUAL privileges & status before the Constitution.

    3) Just as it is Reasonable that the constitution does not give prominance to ONE political party over the others, nor give one political party a special place or mention by name or special treatment under the judiciary in the constitution the SAME principle must be applied to all other bodies/groups where membership is optional & / or voluntary. Historical factors or issues do not justify a change or a transgression of this fundamental principle.

    4) It is most reasonable, just & fair to conclude that the rights of EQUAL TREATMENT before the law by all other religions /faiths are COMPROMISED when the Khadi courts are left intact in the constitution while they are DENIED & REFUSED a similar status.

    5) It is a reasonable that the fact that khadi courts ONLY deal with muslim personal law links them directly to being RELIGION based courts. They have no other mandate but dealing with muslim personal law.

    6) If some of our political leaders find it difficult to remove Khadi courts then RIGHT REASON, Justice, Equity demands that we be fair & just & have Religion based courts in the constitution for ALL faiths/religions registered in Kenya. This then gives real equality of religions as they then enjoy the same privilege of having their own courts sould they choose to have them.

    7) it is also absolutely Reasonable & Just & Fair & Christian to protect the weak & the voiceless such as is the life of the unborn child. This is one of the functions of any reasonable, just & fair law so that the mighty & strong do not oppress,supress, exploit and destroy the weak thus denying them their inalienable rights such as life itself.

    Yes with sound reason, fairness & justice the contentious issues in the constitution can be dealt with effectively before the referendum so that Kenya is united for the comon good of all.

  15. if is say yes to the draft contititution kadhi courts are there also the abortion clause.
    if a say no the older contitution which is governing us will remain which still has kadhi courts.
    its high time we remove both of the now.
    it would be lesser evil to retain kadhi courts.but for abortion this is a matter which God will charge us dearly for just passing this contitution which allows it.
    church has not lost its focus, taking the church as a body of christ,
    we as christian has may differ in opinion but that doesnt mean we have lost direction or unity.
    prayer work its a call for prayer for enhanced unity which God has heard only waiting for the fullfilment of our request.
    God never fail.

  16. The church should shut up! its easier to get rid of unwanted pregnancy than face the stigma from the church. why should i keep a pregnancy that will have me excomunicated from church. the church in Kenya has no ‘balls’ they are scared of dealing and teaching with any thing related to sex…condoms, contraceptives, sex outside marriage, pregnancy. they leave the youth to learn about sex the hard way, and abortion is their way of dealing with mistakes that happen during the learning process. Am sorry but am not supporting your NO

  17. This constitutional debate is a spiritual battle and the church more than ever should stand strong and oppose it to the full.The Freemasons led by the political class in Kenya are trying to sell our birth right to the devil but they will not succeed in Jesus name.

  18. Thanks for this informative blog. I want to share something about the Kadhi’s courts that has been provoked by a very close Muslim friend. The impression that has been created by the constitution noise is that all Muslims are obsessed with the Kadhi’s courts. Nothing can be further from the truth. My friend told me that in reality these courts are a nightmare for many women. When her father married her off at only 14, her mother protested. The matter divided their home and ended up in Kadhi’s court. Her mother was told she could not change that decision and her protest was against religion and tradition. When she stuck to her position, her husband decided to divorce her. The whole process was again overseen by the Kadhi. She was thrown out of marriage with hardly anything to hold onto … and my friend was married off to a wealthy businessman more than four times her age as a third wife. She never got to enjoy her marriage and her life ever after. She told me that as a result she lost her self-esteem and never finished her education though she was very bright at school. She told me that like many other Muslim women who suffer in silence, she’ll be voting “NO” in protest against Kadhi’s courts because they oppress women and are likely to become more powerful if entrenched in the constitution.

  19. Much as I embrace and love my muslim brothers, I feel as a nation, we all need to be guided by the same Constitution without some section of the nation demanding preferential treatment. If it is true that the Kadhi’s courts are judicial courts and not religious courts, why does article 170 (2), state that; A person shall not be qualified to hold or act in the office of the kadhi unless the person-
    (a) professes the Muslim religion and
    (b) possesses such knowledge of the Muslim law…
    This clearly contradicts article 32 (3) that states: A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion. I thought the Kadhi’s office being a government office (as alleged by Yes proponents) should be open to any Kenyan who possesses knwledge on the Muslim law, just as Muslims who are magistrates in the other regular courts are allowed to preside over family , divorce and inheritance cases involving the Christian adherents. We do not insist that we require the presiding magistrate to profess the christian religion.

  20. The ACK is at it again.How can the leadership support a documents that negates the basic principle of the christian faith?any way i guess this isn’t the first time they have gone against the teachings of the bible seing that they even consecrated an openly gay person ,who devoced his wife,abuses drugs and is living in a homosexual relationship all these in contravention of the law of God.
    When you think about it though you can’t blame them seing that the head of the church of England is the queen of England and not Jesus Christ .They can’t thus support the other christian leaders in opposing this bad document seing that they might not necessarily be serving the same master.I stand to be corrected though.

  21. George,

    Do not be surprised by the ACK stand. As you have already alluded to, most of their clergy and prominent personalities both locally and internationally ( South Africa, US) have openly welcomed homosexuality in their midst and have seen no wrong in abortion. As a Christian it would be prudent that we follow the word of God and the teachings of our Lord Jesus Christ and refrain from modelling our faith along some of our said “shepherds”.

  22. Dear Elder,

    That is why true christians should be very wary of Freemasons who have infutirated the church pretending to be christians yet we all know that real christians and the jews are the mortal enemies of these people.
    It is important that christians fight for their birth right because if this draft goes through then kenyans will understand what these people are capable of and it isn’t pretty.
    Elder please keep preaching and i believe where 2 or more stand in the gap, good things are bound to happen.

  23. True the current draft constitution is by far better than the one we have in so many ways except for “afew” clauses that make it extremely dangerous. Waiting 20 years to have a constitution does not warrant us running off with a document that divides us religiously and in so many other ways.

    Abortion, whether we like it or not, is a choice that involves God, the giver of life . It’s also very personal as it’s the mothers decision; however as a nation we have to show our fear of God by not legitimizing it by craftly illegalising it but in the same breath leaving words that open it to abuse; afterall we all suffer the consequenses when God’s wrath befalls us for the actions of afew of us. I have heard the churchs arguement in this issue and contrary to what some critics of the church have said, the church (in my understanding) has no quarrel with abortion where professional medical advice recommends it should the life of the mother or both are in danger.

    As for the Kadhi’s courts, they should simply be ommited from the constitution which is a national document affecting all citizens of this country irregardless of their faith, origin, colour, geographical location etc. We are all equal in the eyes of God; every human being is created in the image of the most high God and it’s very unfair to now try and elevate those who practice Islam above the others. Arguing that other religions can also be entrenched in the costitution is not good enough as there are non-believers who in this case will be left out and besides it’s almost inpractical and will lead to even further divisions as we will eventually find traditional courts etc asking for recognision. The other arguement that the kadhi’s courts have always been is shallow in that we are changing the constitution to improve it on issues such as this which are actually a historical injustice we have to correct. One BIG question…. don’t we have so many other countries with muslims who refer to their kadhis in desputes as have been written in our draft constitution and such kadhis are not in those countries constitutions??? Don’t muslims in such countries have peace? Why is our country Kenya being isolated for such courts and the subject treated as if it’s a matter of life or death for our muslim brothers and sisters? In instances where the kadhi is unable to arbitrate, aren’t such cases referred to common law courts??? (I know of a case involving inheritance currently in High Court) Why then have the kadhi courts which are also run by the taxes we all pay?? Kenyan law recognises religious and traditional customs, the kadhis fall under this and not necesarily be in the constitution. I have so many friends who are muslims, have schooled with some and work with quite a number very amicably and despite our different faiths we respect each other, sharing even our food and exchanging views; I love them and wouldn’t want to be pitted agains’t them in issues such as religion because afterall, my battles belong to the Lord. We christians should pray now more than ever before for the unity of this country and against powers and principalities in high places bent on destroying this blessed nation and it’s people.

  24. The Wako published proposed constitution:

    Chapter 2, among other things, says:

    1) there will be no State religion.

    My take:
    ** All religions should be kept out of the constitution

    Chapter 4, among other things, says:

    1) every person has the right to life

    2) the life of a person begins at conception

    3) abortion is permitted if, in the opinion of a trained health professional there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law

    My take:
    ** God in His wisdom tells us in His Word that He knew us before we were conceived in our mother’s womb

    ** life begins at conception

    ** what parameters will be used for one to be a “trained health professional”? Where lies danger

    ** I dont want my creator the Almighty God to ask me why I contributed to the current chaos by voting YES

    In the most unlikely scenario of there being only one NO vote in the ballot box, you can be sure it will be mine. After all my fellow Christian brother Hon Stephen Kalonzo Musyoka has not tired to declare to all and sundry how he shall vote

    ** it matters not how people will vote, at the end of it all the Almighty God will be the victor

  25. Just because we vote “NO” to the proposed constitution does not mean we AGREE & ACCEPT the Khadi Courts in the CURRENT constitution & the limited abortion provided for by an Act of parliament. This is because at least 99% of us NEVER had anything to do with the current constitution nor the said Act of parliament. Our opinion was NEVER sought. We were NEVER consulted as we should have been over such important matters of conscience & governance and so we CANNOT be held responsible for what we NEVER agreed to & never voted for. Similarly we NEVER voted/agreed to Kenya being a one party state, or that the President be above the law and many other evil & oppressive things that the constituition or acts of parliament imposed on Kenyans. But if we NOW agree/vote “Yes” to the proposed constitution then we are fully responsible for ALL its contents and find ourselves DISOBEDIENT to God’s commandments of not killing the innocent & failing to do what is just & fair. I REFUSE to be responsible/agree to the deliberate & intentional murder of children in their mother’s womb as is enshrined by the proposed constitution. I REFUSE to agree/vote that my taxes be used to murder the innocent. I rREFUSE to accept the proposal that we agree to murder our children at the referendum UNTIL we can ammend the contentious clause in parliament at some future date. I REFUSE to vote Yes to the injustice of ONE religion being given special treatment & mention by name in the proposed constitution.I will vote an absolute NOOOOOOOOOOOOOOOO….OO. The proposed constitution may have very many good things in it but as the Bible warns us, what does it profit a man to gain the whole World and loose his life. Further the Bible also teaches us that we are either with God or against Him. There is no middle ground.

  26. The draft in its current form indirectly legalises abortion. It states that it is not permitted, unless in the opinion of a trained health professional the life or health of the mother is in danger. Life and health in this instance is vague. The world health organisation (WHO) defines health as the complete state of phyisical, mental and social well being and not merely the absence of a disease or infirmity. Many people seeking abortion or health professionals who want to conduct abortion can justify any using the mental and social aspect of health. Legally the draft does not protect the life of the unborn child at all and makes the choice a moral one between the mother and the ‘health professional’. Therefore the statement that abortion is not permitted is a lie. We need to be well informed and make decisions from a point of information. It is simply an indirect decision on whether one is pro life or pro choice.


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