Kenya's draft constitution under fire for Islamic courts

Kenya judges ruled this week that an Islamic ‘khadi’ court system that could expand under the new constitution is discriminatory. Human rights advocates say the issue has been ‘hijacked’ by those opposed to the draft constitution.

Kenya's efforts to pass a new constitution – aimed at preventing a repeat of 2007 ethnic violence – hit another hurdle this week, as judges ruled that it permits an Islamic 'khadi' court system that is discriminatory.

A three-judge panel said May 24 that the ‘khadi' court system, which arbitrates on matters of marriage and inheritance for Kenya’s Muslim minority, is discriminatory as it is based on religion. Kenyan law stipulates separation of church and state, though both the current constitution and the new draft constitution permit kadhi courts. A nationwide referendum on the draft constitution is set for Aug. 4.

Monday's ruling was reportedly praised by Kenya's church leaders, who in 2004 filed the original lawsuit against the constitutionality of kadhi courts. Nearly 70 percent of Kenya's population is Protestant or Roman Catholic and its powerful churches have already voiced opposition to the constitution because they say it eases restrictions on abortion.

Kadhi courts are in fact a very minor part of the new draft,” says Mwalimu Mati, director of Mars Group Kenya, a governance watchdog in favor of the new constitution. “But we are entering the phase where both sides of the referendum are starting to square up to each other, and it will be a dirty war in which any issue is fair game for manipulation.”

Some members of parliament immediately called for the referendum's delay while the implications of Monday's court ruling are investigated.

Kenya’s attorney general, Amos Wako, has filed an urgent appeal against the ruling, saying today that he wants the issue resolved before the August 4 referendum.

Concern: Draft constitution extends jurisdiction of Khadi courts

Opponents of the khadi courts argue that the new constitution allows the courts to extend their jurisdiction from the majority-Muslim Kenyan coast across the whole country, which they claim will open the way to strict sharia law.

“That’s patently absurd,” says Hassan Omar Hassan, vice-chair of the Kenya National Human Rights Commission. “In fact, on both abortion and khadi courts, the new constitution barely changes the situation from the status quo we have now.”

Khadi courts are no different from other corners of Kenyan law which have been built up over decades of jurisprudence, Mr. Hassan says.

“It is another example of an issue which has been hijacked by those opposed to the new constitution,” he adds.

Looking for reasons to oppose constitution

At the same time, powerful Kenyan individuals who have built up large landholdings during previous governments – marred by persistent allegations of grand corruption – have reason to fear land reform clauses in the new constitution.

“I very much doubt that those ranged with the 'No' side really care that much about abortion or Islamic courts,” says one European diplomat in Nairobi on condition of anonymity. “But they will jump on any bandwagon which will keep prying eyes out of their affairs by keeping things the way they are.”

Historical tensions over land were key among the tensions whipped up following the last election in 2007, when violence left 1,300 people dead.

There are growing concerns that unless the new constitution is approved – with its focus on land reform – the stage is set for further clashes as Kenya heads towards the next national poll, due in 2012.


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