At this stage in the constitutional review process, many words are being thrown around. Fears, mostly unfounded, are catching up with some people. And still, many voices of reason are lacking, when we need reason the most. The recent statement by the National Council of Churches of Kenya (NCCK), expresses such fear. To an extent also, it shows plain ignorance of constitutional theory and Islam. And finally, the statement is written with vindictiveness towards Islam, as if Muslims are the enemy of the Kenyan State.
The statement titled Entrench Islamic Sharia Law in the Constitution at your Own Risk was simply uncalled for. It was needless grandstanding. Article 23(6) of the current Parliamentary Select Committee (PSC) Draft, on the question of exempting persons professing Islam from the Bill of Rights, has been there in all previous drafts. It reads: “provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.”
When I encountered that Clause in 2003, I went to a Muslim scholar to get explanation of what this means. He told me this story with regard to inheritance and marriage. Imagine that you have two children: a boy and a girl. When you want to give out your wealth, in Islam the boy is given more. Why? Because bride price is directly given to the Muslim girl rather than the parents as it happens in Christian weddings. It would be unfair to give both girl and son equally since the boy-child will be disadvantaged. There are explanations for each issue including when divorce happens. So why is NCCK castigating this Clause without knowing its foundation in Muslim Personal Law?
The NCCK goes further to state that Kadhis’ administer Sharia Law, which in English, is Muslim Criminal Law. This is untrue. Unlike in countries such as Sudan, Cote D’Ivoire or the State of Kaduna in Nigeria, Kadhis’ courts in Kenya have limited jurisdiction to only Muslim Personal Law. To quote the PSC Draft, Article 161(5): “The jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance”. So it baffles many, why NCCK should go ahead and lie in public!
On religion and the constitution, the NCCK commits serious blunders. In logic, it is said that when one gets the premises wrong, one is bound to come up with a wrong conclusion. NCCK argues: “despite the provision that there shall be no state religion in the constitution, the recognition of Islamic courts and their rules on matters of personal law in the constitution is tantamount to declaring it a state religion”. First, NCCK terms Kadhis’ courts as “Islamic Courts”. This is erroneous. As seen above, there is nothing religious that Kadhis’ administer. It is only personal matters; not those related to a person and Allah. Indeed, Kadhis’ are judicial officers unlike Imams or Sheikhs who are preachers of Islam. Second, NCCK argues that recognising personal law leads to stating Islam as the state religion. The founding principles of the most constitutions in the world are Anglo-Saxon in origin and further still emerge from the Judeo-Christian tradition. Therefore, despite the recognition of Muslim Personal Law in the largely Judeo-Christian PSC Draft, is NCCK’s folly or ignorance.
Finally, NCCK states that “the Muslim community is basically carving for itself and Islamic state within a state”. This is distasteful and lack of respect and tolerance for other people. According to recent data, and hoping that the 2009 Housing and Population Census vindicates this, for every 10 people in Kenya you will usually find 6 Christians, 2 Muslims, 1 Hindu and the other 1 are agnostics or atheists. So who actually is occupying the state of Kenya?
In conclusion, there are so many holes within NCCK statement, which any sober Christian should see. We are humbly requesting more sober Christians to emerge. Indeed, we wish NCCK were true to their opening statement, which they quote from the book of Leviticus 19:15, that reads: “do not pervert justice…but judge your neighbour fairly”. If NCCK would live to this dictum, then they would sober up from their Christian extremism and radicalism that perverts Islam. Any Christian who heeds NCCK’s call to reject the Draft in the referendum, because of Kadhis’ courts, will end up with the current Constitution that entrenches them anyway. So, what would you wager on?
E debate on costitution by Tom Kagwe
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