Posted by: Family Media | May 26, 2010

Is Ruling on Kadhi’s Courts A Blow To The Review Process?

Many Christians who have been praying for the removal of the Kadhi’s court clause in the Kenyan proposed constitution have something to smile about as for now after a three-judge Bench this week declared the inclusion of Kadhi’s courts in current Constitution illegal and discriminatory . The Judges declared that Section 66 of the Constitution, which creates the office of the Chief Kadhi and also entrenches the Kadhi’s’ Court, unjust on grounds that it was unconstitutional. Those supporting the document say that the ruling was a suspect given the time it is being delivered adding that the judges acted in bad faith adding that it is a big blow to the review process. Is this true or it is for the good of all Kenyans? One may wonder.

The Judges further ruled the case was in public interest and that there are no losers or winners. Their decision arises out of a case filed in 2004 by 26 Church leaders against the Attorney General and the defunct Constitution of Kenya Review Commission. They also ruled that funding Kadhi’s Courts – which handle marriage, inheritance, divorce and personal status for Muslims – amounts to separate development of one religion and religious practice.

The three-judge Bench said the decision has been handed down on the basis that the role of the court is to interpret and declare the law. The judges went ahead to affirm that the role of the court is to interpret law and not to make amendments. The ruling though belated comes at a time when the proposed constitution has received opposition from churches in Kenya because of the inclusion of the Kadhi’s courts and the clause on abortion.

Reactions to the ruling by those who support the draft were fast and furious, while the Muslim fraternity chose to hold their horses and issue astatement soon. The ‘No’ camp to which the ruling, albeit remotely connected to the current debate, must have been godsend, kept silent as the ‘Yes’ team fought yet another fire threatening to eat up the review process.

It had just quenched the flames of the illegal ‘amendment’ sneaked into one clause at the Government Printer.

Well we can all wait and pray to God that goes well with the referendum to avoid the skirmishes that were witnessed during the post election violence.

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Responses

  1. The ruling though late in the review process, is right on time for those who doubted the men of God, over the legal soundness of their proposals. Further, it gives the red camp a legal pedestal to confidently continue to push for amendments for a better constitution for Kenya. Also, besides vindicating them, the glory of God and His power, is on display for all to see…that He is with His people and He hears them when they pray. Thanks to the Lord Jesus Christ!

  2. the argument that the kadhis courts must be entrenched in the constitution on the bases that there is an historical treat btwn the late president kenyatta and the sultan of zanzibar does not hold water in my opininion. If the river nile treaty can be repealed with so much ease how about a gentlemans agreament between two people who are simply wrote letters to each other. In the first place, doe that constitute a treaty and to what extend is it binding. Lets have a constitution devoid of discrimination and favouritsim. Kudos judges. You proved a point.

  3. The ruling brought so many reactions as expected.I was particularly happy that the world finally came to get to know the entire truth,that indeed The issue of kadhis Courts did not come about three or so months ago.All along we have been pleading with the relevant organs asking them look here;why dont we separate religion and state in earnest,and have all religions known or unknown,major or minor,true or false at a free and equal latitude as they express their faiths and religion??Then they would tell us Kadhis courts are not religious courts…they are meant to protect the interests of muslims within muslims only if they chose to seek redress through them.Then they would say it is pilipili msiyoila ilhali mnawashwa.
    I am still of the opinion that all religions be given justice…JUSTICE TO ALL OR NON TO ALL,any other competition among themselves is up to them so long as peace prevails in kenya.In fact there are so many needs that bring people to Christ even before we open the mouth to tell them how powerful God is.
    But I would also like to point out that there are some christians out there who think they should dominate the religious arena because majority of religious people in Kenya are Christians.How would you feel if you are in those countries where you are not allowed to call on the name of the lord and be saved?Where would you get that swag or arrogance?Behave like you would do, Behave like the Lord did.Love and pray for those who may not pray your style until you win them.Pressure the governments for justice..I dislike the unschooled thought that the governments are elected by God and should be respected without question.It is very narrow way of looking at it..no wonder the majority of yessers come from most churches that do not like formal and suave schooled pastors.I personally do not discuss how I will vote but the ruling will not in any way affect how I intend to vote.Sometimes we have to get difference between religious zeal and intolerance.Intolerance is not healthy because once you are through with one item or person or religion you intolerate now,you will get the next nearer intolerable thing…the cycle continues until no time when this is over and done.The chain of Intolerance should not be confused with the desire to spread the Living Word.
    I must say I was so happy that muslims handled themselves in a very composed and urbane way[subira].That way something that reminds us that we are all kenyans and things should not fall apart that easily.Apart from religion diversity we share similarities with muslims;disease,joblessness,matatu,hustling,mortality,insecurity,schools,neighbourhood,intermarriage… business and market…we are a society that we do not have to forget that we dont need one another but we cant avoid one another[sic].

    Today If I was asked the True religion I would say no other but Christian,and if I was asked of the most peaceful today I would say Hindu.I always admire the tranquility of a Hindu granny over the counter as I go textile shopping.I admire the certainty of a christian who has had a life changing encounter with the risen Lord.Halleluyah.
    The judgement in my opinion may have been flawed to as much extent as the media has informed me.It would be extreme to call these courts uncostitutional yet apart from church,even LSK which they are affiliate has never ever suggested so.They should have remembered that all that we are saying is that in the new constitution separate state and religion..hence constitution review.I particularly loved the justice bit.JUSTICE JUSTICE JUSTICE..should flow like a river until it is enjoyed downstream by all including atheist like Ochie.There is a time I never believed there is the KenCom stage as well,till I met it[right].

    Something else I liked over the ruling is that people have known the truth and the way traveled in search of Justice to all thus far.

    In conclusion, I remind you what I did write elsewhere earlier on.You saw how the state handled the church with dilly dallying tactics?And the arrogance of mortals to mortals?A time will come,and the time is nigh when the brethren will open the scripture,tacked in somewhere in Acts and st peter will speak and they will give the sermon…”

    all these shortcomings brethren,men of the crown,have come because you did not seem to listen…this very Jesus,whom you rejected,and hanged on the cross like a criminal; yet he had done no wrong…treated him like a criminal,called his servants wanafiki[however sinful they were,yet God had ability to not make them His mouth piece but chose to use them anyway… their iniquities and shortcomings not withstanding,repented or unrepented,known or unknown,them Oh brethren it Him risen who has called you today under his feet..It is Him who has done these things…and just like they of st Peter`s they will ask the bonding shot “YES INDEED,SO WHAT IS IT THAT WE GONNA DO?”And the answer may not be repent as probable,but that make all people see you value everyone.
    So again,as I had said,this ruling will not alter how I will vote.I have told a small group of christians that indeed they can vote a Yes or a No on that day and they will not have betrayed their Lord in anyway.Right now we are not fighting a battle of faiths for heavens sake.We are fighting for justice… nobody has in anyway attacked our faith leave alone our lord.It is important we understand that ,so that like a good driver you are aware on correct use of gears,and where to engage them,that is why the instructions for now are clear if you vote NO do it having been convinced that it is your unbought,uncompromised conscience that is doing so.This is what Christianity with stamina is all about.
    That is me.sometimes foolish,sometimes contradictory and other times real surely.If I three out thirty have helped you in any way;take 3.

  4. This is a landmark ruling but to the polarised, unpalatable. God help our country

  5. Christians constitute a very big majority in the nation and the world. But very few of us are following the Scriptures as the infallible Truth. Some follow the traditions of their denominations while others are still hole up in the love of the world. I wish all Christians would interpret situation Scripturally. For example, if we allow the kadhis courts in our constitution, then it will be like in ancient Israel when the Romans conquered the known world. All conquered nations were require to pay taxes to Rome. Right now we have a spiritual evil empire coming to invade our nation and world. If they conquer, we will all be required to pay Islamic instutions. They will become lords over us and we will be their slaves. We must stand firm, take up our spiritual weapons and put on the armour of God and wrestle against principalities of Persia, Assyria, Babylon and Rome that want to enslave us and our children. We must bind the powers of deception, cults, occult, witchcraft and manipulation. We must go for prayer keshas and fasting to deal with executive, judicial and legislative RULERS that make, ammend and enforce the laws of the land. We must cast out HOSTS OF WICKEDNESS that influence the masses to do evil in the land. We must demolish spiritual strongholds that house demonic planners, conspiracies, trainers and students. We must neutralise imparted, ANCESTRAL, imported, spelled and provoked CURSES. Let us arise and nullify ALL FORMS OF evil COVENANTS. Fortunately we have overcome in one area. The JUDICIAL RULERS HAVE PLAYED THEIR GOD-GIVEN ROLE. Now lets continue praying for every area of the nation. God bless.

  6. If the High Court ruling on Kadhis Courts is sound, why is it that there are no prominent lawyers coming out in support of it. Every lawyer of worth that I know thinks this was a bad ruling. Does it mean that they all these lawyers have an agenda? I think its more likely that this was a compromised Court making a bad ruling.
    I think the Church can win its campaing without riding on the work of the dirty politicians who have put undue pressure on Justices Nyamu, Wendoh & Emukule

    • Do not worry about the ruling. The bible tells us that God uses even the evil rulers for His purposes. He used Israel’s neighbouring nations..the Philistines, etc. and their evil rulers to punish Israel and on the same breadth, to bless Israel. He allows evil leaders to come to power to carry out His mission but they do not get away with the Lord’s judgement for their actions. So if the Kenya politicians/judges have been used, God has allowed it but be confident that His will will prevail.

  7. I think the Church should actively search for spokesmen. I am very disappointed in the way they present their arguments. Even when they have a strong point it is delivered in such an unpersuasive manner. Their Advocates are easily cowered like on the Louis show which aired on the 26th, when Advocate David Waihenya appeared to retreat when confronted by other lawyers. Is it that his point was weak or is he just a poor lawyer? It must surely be one of the two. Ciku

  8. Jambo Kenyans. I am originally from Idaho, I left my entire life behind in 2004 to heed the call of the Great Commission. I caught the tail end of the first referendum and I have since followed keenly the fresh debates on the Constitution. I do not wish to impose my Western views on Kenyans, on the contrary, I believe the West should learn from Africa especially about love and family. However, I was alarmed when I read about the ruling your High Court has made. In the ruling they have quoted from the case where the American Courts declared prayer in schools illegal because the US is a secular state. Your judges have treated this ruling as a good one. Be very careful dear Christians. Satan always comes with something sweet before he enslaves you. You think the Courts have done a good thing now because it serves your short term interests. What will happen when the Courts make a ruling on this doctrine of secularisation of Kenya? They will remove your chapels from Universities and one day they will even call the National Anthem unconstitutional because it mentions God. They may even remove God from the oaths that your President swears. Please think twice. The devil is cunning. Signed by Rev Mos

    • It is very true Moses.We do not have to essentially rejoice in this ruling,but have to keep on asking the Lord to lead the way.I was telling Christians that whether Yes wins or No wins,God will never be a loser[Is it easy to understand how so?I dont think so,but even thinks I do not understand works for good to those who love the Lord.One Christian asked me if I rejoiced on this ruling,and I told her not really because it would have psychologically affected those that apparently lost in the case.I meant to answer that the Bible does not teach we rejoice when we win and another loses,it says…LOVE DOES NOT REJOICE WITH EVIL[as seen in the context of a win-lose]BUT REJOICES WITH THE TRUTH[justice should be done to all christian or muslim]If I would rejoice it would not be because my friends who profess islam faith have lost a case…for what do I gain by so doing?But I would rejoice that they accept that Kenya needs neutral ground on which they are able to practise their faith without harassment or victimization[and I think Christians are considerably tolerant to other faiths,and if a few may be not, then that shows fundamentalism should not be perceived to be from that other faith alone.sic.].But am sure given that freedom and non confrontation way, all religions can practise their faith and conflict resolution mechanisms without necessarily being in a constitution.I have been told that indeed so many countries do not have kadhis courts in their constitutions,yet muslims marry,divorce,and deal with personal matters.
      Why do muslims insist that we should fund this institution yet am told it does not even require that very huge running cost?But again I have to learn if my muslims friends are willing to explain to me why it has to be this big issue in the absence of anything to hide.I would hate a situation where a section of people feel that they are not loved,may they be christian or muslim,for as such would not be christian teaching.Christ taught that I should love but did not insist I should be loved.To love does not mean to give up your right,it may mean to learn to try to understand why it should be taken or shared to someone else.
      Forbade it Lord that Kenya can be a secular state before you come again!How would it be when I miss people strolling from all walks of life coming to enjoy the saviour given.What would happen to the University chapel that has changed thousands of people from all religions to the truth.Healing.Love.Peace.I think we should not rejoice at all for that only reason;Moses.
      I think we have to pray and believe than when we first began.But God is doing a new thing.

    • An idea of having the KENYA CRISTIAN PARTY as a political party , i dont surport this idea by one of use
      one it make a cutline that if you are not a christian you caanot join,will this encourage national unity?
      I whichever politial party we are in can we prove to be christians and not treat our day to day as secular but when in church the activities are sacred,our activities should be worship and christianity all round.
      kindly comment on this.

  9. i am not against christianity or any other leader in christinity but i wonder why should christian refuse people from the minority to be protected? infact the constitution is cleaar that every kenya has a right to religion of his/her choice and so that means one has a right to be protected from laws that are discriminnatory from such religion. muslim by far have stringe rules and since its a widely accepted religion it should have its own body recognised by law mandated to solve issues of muslims. so far i dont see why and how this brings conflicts with christian. infact christian should calm down like the way we saw our muslims brothers calming down it would av been a different scenario if it was christian in the shoes of the muslims right now. not accepting and recognizing other religion in the name of which is right or wrong only distants us from the reality. we are kenyans first, whether muslims or christian. then religion comes later. the constitution is for kenyans not christians or muslims.
    lastly about abortion i wish one pastor or church leader could be in the same shoes with a woman or a doctor who is too decide to save a child whose probability of survival to adulthood may be 50% or save a woman who can later try to have another baby.

  10. I think we celebrated too early. If the Courts use this to whip Muslims, they will turn the same logic to whip Christians. If they say Kenya must be fair to all religions then even Free mason is a religion. Even aethism is a religion. What will it mean for us? Do we now have to remove “EE Mungu Nguvu Yetu” from the National Anthem just because some people believe in Satan and some dont even believe that there is a God?? Where are the lawyers. Can you explain why you allowed the Courts to do this to beloved Kenya?

  11. The ruling is extremist and a recipe for inter-faith strife. The problem with the Christian clergy in Kenya is refusing to read and acknowledge historical facts and being reactionary and extremist. Kenya is a secular state and will remain that way forever. Islam is not the greatest threat to Christianity; rather it is the divisions, greed and open commercialisation of the Gospel by clergy in the Evangelical and Pentecostal denominations. What do you think common people feel when they see people calling themselves Dr, Rev, Bishops, etc (after 2 or 3 years in service) living in extreme opulence and driving the latest top-of the range cars??? This makes the whole Church to lose its moral force over society!

    The Muslims negotiated for the Kadhis’ Courts during the 1961-62 Lancaster Conference because most of them were in the Kenya Protectorate ruled by the Sultan of Zanzibar on behalf of Her Majesty the Queen Elizabeth II. They only agreed to join part of what was the Kenya Colony in October 1963. Is the Christian Clergy in Kenya disputing the International Agreements which created Kenya as it is today??? If you preach against the Kadhis Courts, you should also support the Mwambao and North Eastern people’s right to secede out of Kenya. That is what fairness is all about; the majority should never ever remove or reduce the peculiar rights given to a minority in a secular state.

    Preach too against the greed and opulence by the Evangelical Televangelists and this will reclaim the dignity of our religion.

    As a Christian, I would want Kenya to remain as one country where people of all faiths leave in peace! The Kadhis Courts Act, Cap 11, the Hindu Marriage & Divorce Act, Cap 157 have not reduced my faith in any way. In fact, the arguments by the Christian clergy are making people who had no idea about these things to start questioning the sincerity of the Bishops. The worst happens when a man of God goes on National TV to tell pure lies about other faiths and the history of the country.

    Like many other Kenyans, I do not like everything in this draft, but having studied both the old and proposed Constitution in depth, I agree with the Rtd Archbishop Rev. Gitari, Rev. Njoya and Bishop Peter Njenga that its time for real change!

    I respect and support the right of the Christian clergy and other people to hold a different opinion.

  12. This case was low keyed until its judgement. I therefore do not think there were politicians interested in it apart from the Christian leaders who had filed it. It was important for judges of such repute to interpret this law for some us who felt very strongly that the Kadhis courts should be expunged from the proposed constitution since it seemed to give undue privilege to one religion. The 3 judges in my view are reputable and would not give a ruling just to serve public or personal interest. I am not opposed to kadhis courts except they should not be in the constitution. The government will not amend the proposed constitution once passed and this is the right time to make the changes. I think Christians like women before are being marginalized.

  13. Forget it………….thats nonsense. Church leaders are also corrupt, unfaithful and untruthful. Some of them stole elections, better the devil you know, I’d rather have politicians politicking instead of church leaders politicking. They are our worst enemies. Going to the extent of bombing innocent children in the name of attracting sympathy. Bogus and rotten to the core. I was surprised on that night that a whole preacher would come on telly to tell us how he is cursing the families of the perpetrators, the children of the perpetrators of the bombing. somewhere in the bible, Jesus said, let the children come to me(whether their fathers were murderers, thieves or even prostitutes) BUT…” let the children come to me” The children are innocent before Gods eyes………..then a demonic preacher appears on telly to ” curse” the children of the perpetrators, who does he think he is? Is he above Jesus????


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