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Kenyan court declares kadhi courts unconstitutional

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by Rutashubanyuma, Sep 28, 2010.

  1. Rutashubanyuma

    Rutashubanyuma JF-Expert Member

    Sep 28, 2010
    Joined: Sep 24, 2010
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    As much as we may want to overlook Kenyan leadership on constitutional making we have few elsewhere we can seek guidance but there. On 25th May 2010, the Kenyan constitutional court dealt a damning blow to the Kibaki-Raila coalition government that was on a roll to ram down Kenyan gullets a new constitutional dispensation. In constitutional making, the Kibaki-Raila axis refused to adhere to past constitutional court decision of Njoya and others v. Attorney General and others 1 E.A [2004] where it was declared the House had no powers to rewrite the new constitution and those powers were vested with the people of Kenya via a constitutional Assembly.

    To make matters worse for the ruling class, another unrelated constitutional court decision of Hon. Justice Moijo Mataiya Ole Ketwua v. the Attorney general and others Misc. civil Application No. 1298 [2004] made it abundantly clear a judicial or quasi-judicial body can not delegate powers in which it never possessed in the first place. The Kenyan House was declared she had no powers of a constitutional Assembly in Rev. Njoya ruling and hence when she decided to delegate powers originally she never had to a self-patched body alias COE- Committee of Experts then; albeit inadvertently, she infringed Justice Moijo ruling too! As if that was not enough calls to vote separately on contentious issues on the Draft fell on waxed ears as new order proponents gimlet-eyed on personal legacy pushed the draft law to a referendum regardless of the entailed controversies. As long as the Kibaki-Raila vaudeville perseveres in a hoop, triaging the constitutional process was justifiable in order to quench an insatiable quest for a new order! Part of the blatant finagles bluffed - the people of Kenya have waited too long for this new order and the wait cannot be overstretched inexorably.

    In cryptic terms, the Kibaki-Raila constitutional onslaught preferred to compromise a due process for an upended result, glorifying melodrama at expense of a reality and prioritizing personal heirlooms at an extortionate exchange of sovereignty of people of Kenya to determine their collective emancipation. Nowhere did the rancour generated more stentorian decibels than in the provisions of Kadhi Courts on Chapter ten, Part 3 sections 169 (1) (b) and 170 that created them.

    Perhaps the most controversy lies in section 170 (2) (a) which made it categorically clear that a Kadhi must profess an Islam religion as that diktat clashes head on with section 32 (3) which outlaws discrimination of any forms including religious belief to access to any institution, employment or facility or the employment of any right. What section 32 (3) has vitiated as an unconstitutional section 170 (2) (a) has permitted under the ruses of special rights to Muslims in jurisdictional caveats of family related disputes and inheritance.

    The Kibaki-Raila axis’ principal feint had always been if you reject Kadhi courts in the new order you will still have them in an old order…What a nonsense! The main reason of crafting a new constitutional order was to better the existing one and hence advancing such a howler was unfortunate. In fact, section 32 (3) outlaws all forms of discrimination based upon religious belief in particular employment but section 170 (2) curtailed access to employment of Kadhi to only those professing Islam! Section 32 (4) went even further in protecting right to religious belief from being coerced to do anything that is contrary to one’s belief.

    Christian denominations have expressed vitriol opposition to the recognition of Kadhi courts in the new Draft but the Kibaki-Raila axis that earlier had issued reconciliation camaraderie went on to assume defiant stance and accused religious leaders of incitement and deceit! In chapter one, section 2 (3) reminds all doubting Thomases that an era of dictatorship is still very much entrenched in Kenyan culture.

    That section outlaws courts from investigating the validity or legality of the new constitution! It is obvious the framers of this awkward path to new constitutional order foreboded constitutional petitions from start and wanted to stop them from getting a fair hearing because the constitutional assaults were “too legit” to fail!