Mr Tom Kagwe gave a satisfactory account of the historical background of the Kadhi’s courts in Kenya as currently found in our Constitution, but ended up with an inaccurate, and a pre-determined, subjective conclusion. (East African Standard, July 30, 2004).
The Kadhi’s courts are as old as Islam itself. It is not possible to imagine an Islamic society without one form or another of these courts any where in the world. That is why the people in our coastal belt had the Kadhi’s courts much before any European set foot in Africa. In communities where majority of the people are of Islamic faith, the Kadhi’s courts have wider roles and more comprehensive powers.
However, where Muslim population is in the minority, the jurisdiction of these courts have been limited to what section 66(5) of our constitution defined as "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." In the draft constitution of Kenya, 2004, section, 198/199, "there is established Kadhi’ s courts" and their jurisdiction strictly restricted to what they have always been since 1963. One principle normally observed when undertaking any kind of reviewing legal or social issues is "if one cannot improve them, one should not impoverish the beneficiaries of the legal or social issue being reviewed by taking away an existing benefit".
It is important to appreciate that the Kadhi court is a major pillar of an Islamic society. We know in a Muslim community, it is a taboo and shameful to have children outside marriage. No marriage is recognised unless conducted before a Kadhi or a person of similar qualification. Then in a population of 9 million, it is easy to estimate the amount of work that will translate in the form of courts to administer them. For example, in Wajir District, most of the times, there are more cases handled by the Kadhis’ court than the District Magistrate court.
Mzee Jomo Kenyatta and the British colonial power of the time knew the importance and seriousness to which the Muslim people attached to their courts. That is why in 1895 the Sultan of Zanzibar gave away his sovereignty of the Coastal region to the British in exchange for what could appear to the non-Muslims a simple thing; "the protection and retention of Kadhi’s courts. At independence, the late President Kenyatta ensured the Kadhis’ courts were enshrined in our Constitution. The late Mzee Kenyatta was a pragmatic, wise man and was a person of integrity; not a later-day ‘MoU’ trashers as Kagwe suggests, when he says that the very Kenyatta who guaranteed in writing the continued existence of the Kadhi’s courts expressed his desire "not to be bound by all pre-independent treaties and agreements." Mzee Kenyatta, like all leaders worldwide, was a defender of the interests of his countrymen. For sure, whatever troubles Kenyan Muslims definitely troubles all Kenyans. To quote Barack Obama’s now well-known recent speech, we have to be our "brothers’ and sisters’ keeper."
Some anti-kadhi individuals state that they are not against the Islamic courts, but their inclusion in the constitution. The question is, if one is not against the Kadhis’ courts themselves, does it matter whether the courts are established under the Constitution or under an Act of Parliament?
There are many things found in the draft constitution. These include mundane issues such as "the election of district councillors and Commission for Gender". Is someone saying then that the Kadhi’s courts are not important enough to be included in the Constitution of the Republic? Such a person for sure should seek the sermon and prayers of the 13th century St Francis of Assisi of Italy.
The historical justifications and relevance of the Kadhis’ courts in Kenya today are as critical and timely as ever to the interest and welfare of Muslims in particular and Kenya in general for all times to come.