TANZANIA CONSTITUTION REVIEW PROCESS : A LESSON FROM KENYA

A Brief History of the Kadhi’s court.

The 1895 Agreement
In 1895, the Great Britain entered into an agreement with the Sultan of Zanzibar, who controlled reigned over the 10 mile coastal strip, whereby the British government purchased the 10 miles from the Sultan of Zanzibar for £ 200,000.

 
The agreement provided, inter alia that the British government would not subject the inhabitants of coastal strip to the Christian laws of the British Colonial government. However, this agreement provided that the agreement was to terminate if Kenya ceased to be a British colony or should Britain give 6 months notice.

The 1962/1963 Lancaster Constitutional Conference
The 1962/1963 Lancaster Constitutional Conference through political intrigues erroneously entrenched the Kadhi’s court in the Kenyan constitution. During the 1962 Lancaster Conference, the issue of the Kenya protectorate along the Coast or what was otherwise known as the 1 0 miles coastal strip was dealt with but not comprehensively discussed, and the Kadhi’s court were hurriedly a improperly entrenched in the constitution. The Sultan of Zanzibar had a purported claim over the said strip which was inaccurate since the coastal strip was not his territory.

During that time, the 10 miles coastal strip consisted of other nationalities other than Arab and, their claims did not extent to the interior.

Constitutional Review Processes- Bomas and Wako Drafts
The issue of religious courts was a contentious issue at Bomas. It was also a contentious issue in Wako draft because many religious leaders were opposed to the establishment/entrenchment  of religious courts in the constitution.

Current Situation;- Engaging the Committee of Experts
The current situation is that the CoE of experts has not declared the issue of religious courts contentious and yet we know  they have decided  to include religious courts in the draft constitution that they are soon to present before the parliamentary select committee’s constitutional affairs?

What is their position on the issue? Kenyans have been actively trying to engage the CoE despite the feeling that d Committee is not keen in listening to the voices of our members.

Is there a plot to sideline a critical mass or a majority of Kenyans from airing their views?

 

Separation of Church and State;

The separation of religion and state is a trite constitutional principle founded on practicalities of constitution making. For instance, if there exists a state’ religion chances are that the state can easily infringe on the freedom of religion. This principle also involves the fact that the state should not treat one religion as superior to the other in Form of according unfair economic privileges to one religion over the others and in terms of acknowledging one religion over the others.

         a. Unfair economic privileges the current Kenyan constitution and the subsequent draft constitutions (Boma’s Draft and Wako Draft)   establishes the Kadhi’s court which legislates over matter concerning the personal law of Muslims. While this is not in contention because Muslims can enjoy this privilege; however, it is the taxpayers who have to maintain these courts. These taxpayers are forced to pay for the upkeep of Kadhi’s through public funds for a private function. The argument is that it accords an unfair advantage on those who profess the Muslim religion because the government is empowering those who do not need empowerment. Do Muslims need to be empowered when they are not a minority neither do they face discrimination? Public funds must not be used to empower a group that is already empowered

        b. Acknowledging one religion over the other; the current Kenyan constitution and the subsequent draft constitutions (Bomas Draft and Wako Draft) seem to acknowledge the Muslim religion over other religions by reason of the entrenchment of the Kadhi’s courts/ religious courts in the constitution.

The aforesaid instances in the current Kenyan Constitution, the Wako Draft and the Bomas Draft show a violation of the principle of separation of religion and state. Although Kenya is a multi-religious state, it still remains that one religion should not be exalted over the others.

The result of doing otherwise would be religious tensions and violence.

 

 Religious tensions as a source of conflict
The view of many Kenyans recorded by the Commission of Kenya on Constitutional Review (CKRC) in their report was that the Constitution (or government) must not do anything to help, encourage, set up, regulate, fund and protect one particular religion to establishment of its court.

At Bomas (National Constitutional Conference at Bomas of Kenya) the issue of religious courts was regarded as a contentious issue.

A lot of conflict ensued regarding the issue of Kadhi’s court being entrenched in the constitution during the constitutional review process at Bomas.  This conflict was exemplified by the burning of Churches.  

To prevent future religious tensions, religious courts must not be entrenched in the constitution. In my view I hold that entrenching Kadhi’s court in the constitution will provide a recipe for future religious tensions, conflicts and violence because it will be viewed that the constitution is elevating one religion over the others.

   Sharia law as the source of law for the Kadhi’s court and a source of conflict of laws
All laws have a source. The sources of Kenyan law are largely borrowed from the English common law and its legal system. Where do the Kadhi’s court originate?

The Kadhi’s court has its source in Sharia law which is a recipe for conflict in law in the future. The question this country should be asking is whether it should have Sharia law entrenched its constitution? Does Kenya want to go the Sharia way?
As a Kenyan I would propose that matters that would cause conflict in our laws should be kept away from the constitution. A constitution is a document that should steer clean of any religious conflict or rivalry. By putting Sharia law alongside our legal system, we are opening the pandoras box to future religious animosity in this country.

Matters of Muslim Personal law should be kept away from the constitution
In matters of personal law do Kenyan Muslims need religious courts to enforce? Each religion in Kenya has a mechanism for dispute resolution.

Christians for example have a “court system” whose mechanism is prescribed through the Bible. This does not mean that Christian courts have to be enacted. As Christians we do not need Christian Courts to legislate over our matters. Hindus, who are a minority in Kenya,  have their own personal law as regards marriage, divorce, child custody and inheritance. They, however, do not need Hindu courts to legislate over these matters. Why do Muslims need Kadhi’s court to legislate in matters of personal law? Is the Muslim religion superior to the Hindu and Christian religion? Why should the constitution treat one religion more favorably than the other religions.

Some people have argued that our current laws are “Christian” and therefore inconsistent with Muslim way of life. The argument has been that Islam is a way of life and therefore to appear before “Christian” courts to be judged by “Christian” judges is unacceptable and contrary to their religious teachings. This argument is fallacious because if you take a close look at our legal system it is considered to be a secular institution as opposed to “Christian”. According to Christian doctrines taking a matter before the current justice system is against God’s will. Most Christians consider the legal system as “worldly’ and “secular.” It would be absurd to call our present legal system as “Christian” because even Muslim and Hindu judges sit on the bench, neither is it a requirement that one to be a “Christian” for one to be under its jurisdiction, if it were a “Christian” court the first question that parties to a suit would be asked would be whether they believe in Christ Jesus or riot. Usually and practically this is not the case.
As a result, our current laws and judicial system is NOT Christian.

Comparative study of constitutions worldwide
A Comparative study of constitutions world wide in the context of religious courts shows that most stable democratic nations such as the United States and European countries do not have Kadhi’s court entrenched in their constitution. Even South Africa, whose constitution is widely hailed because of the struggles against the apartheid government, does not have Religious/Kadhi’s court.

  Frequently Asked Questions
     Q. Some people in Kenya have argued that the Muslims have long enjoyed the right to have the Kadhi’s court entrenched in the      constitution, why should it be taken away from them now?
A. Contrary to what some people have held, the right to have a Religious/Kadhi’s court is not a right. There is no international instrument in which Kenya is a party to that recognizes such a right nor does it exists in most if not all international instruments. There are only three types of rights recognized internationally; civil and political rights, economic, cultural and social rights and third generation rights; none of which mention a right to have a Kadhi’s court.
No international or regional instrument (International Covenant on Civil and Political Rights (ICCPR) International Covenant on Social, Economic and Cultural Rights (ICSECR) and the African Charter) sets out the right to have a Kadhi’s court as a right neither is it categorized as one of the group of rights defined above.
So which is this right that is be ascertained?

Perhaps it is the right to freedom of religion which we recognize as a right and is recognized internationally.

Q. What harm is there to Christians or to Hindus? Kadhi’s court only legislate on

    matters of Islamic personal law, it will not harm any Christian?

           What is the fuss all about? You Christians are being unreasonable.

A. The entrenchment of the Kadhi’s  court in the constitution is harm to not only Christians but to everyone in Kenya. The reasons are very simple;
      a. All laws must be neutral if they are not neutral then they are biased. A simple analogy is when in a family setup a parent treats one Sibling better than the others (Joseph story); it is a recipe for (future or apparent) conflict. This also applies in religious matters. If a state is really honest about treating all religions equally;  if a state is committed to ensure that one religion is not treated more favorably than another, then it must ensure that its mother document- the constitution-  does not create a situation where one religion perceives as being treated less favorably then the other. 

 b. Neutral laws do not prevent religious diversity; in many countries with large Muslim populations, Kadhi’s court is not provided for in their constitution and yet Muslims enjoy their freedom of religion. 

 Are Christians (and other religions in Kenya ) being unreasonable by demanding that our laws be neutral and free from religious bias? Is it unreasonable to demand that Kenyan law does not treat people who ascribe to a certain belief more favorable than others?

The argument of the majority of Kenyans has been that our constitution must always and at all times be neutral especially on religious matters. It must create a level play ground where all religions —Christianity, Islam, Buddhist, Hindus and others- can enjoy and uphold their religious freedom. It must not guarantee a position where a certain religion is empowered more than the others. But in Kenya today Muslims and Christians are not a minority. Facts are unclear as to whether Hindu’s consider themselves as a minority but Muslims in Kenya ARE NOT a minority.
If Muslims in Kenya are a minority then there should be some “sunset clauses.” These sunset clauses ensure that a minority group is not “over-empowered” over the other groups. in other words, if Muslims are truly a minority group, then those sunset clauses will set a time limit within which empowerment is no longer necessary.

Q. Why now? You did not oppose it at Bomas, what has changed?
A. Constitutions are made to remedy past injustice and past mistakes. The history of the Kadhi’s court shows that it was a mistake for the Kadhi’s court to be entrenched in the current constitution. Our study reveals that political intrigues and expediency may have played a large role in bringing about this situation.

Even at Bomas this opinion was raised but it seemed as though there was a plot to silence this voice. One of the reasons why the Wako Draft was rejected was because it established and entrenched the Kadhi’s court.
Constitutions are also made to ensure that the generations to come enjoy peace, unity and harmony. The issue of the Religious/Kadhi’s court has been a source of conflict since the beginning of tile constitutional review process. Religious leaders have come out strongly to oppose the entrenchment of the Kadhi’s court in the constitution.
In summary, nothing has changed because there was never a time when the Kadhi’s court was not an issue in this country. It did not start today and it will not end until the issue is resolved. Kenyans must make a constitution that can remedy past injustices and past mistakes. We must make a constitution that fosters peace, love and unity.

Q. Are you being biased because you are Christians and yet you do not understand the Muslim religion?
A. Islam is a way of life that much we understand from reading the Koran; however, they do not need a Kadhi’s court to be entrenched in our constitution for them to practice their religion. Christianity is also a way of life and the Bible teaches us that we should not resolve our conflicts before unbelievers. We do not need a Christian court to resolve conflicts in matters of personal law.
What many people do not understand is why over 20 million Kenyans should be forced to pay taxes in order support and sustain a system to a faith which millions of Kenyans do not ascribe to. We do not understand why a religion would need to be entrenched in the constitution for their adherents to follow their doctrines and precepts.
To demand equal treatment is not being biased. To demand that our laws and our judicial system to remain separate from religious beliefs and customs is not being unreasonable; to demand that a new constitution foster unity, peace and harmony is to realize that a constitution is made for the good of the country and for the Kenyan in general whether Christian or not.

 Q. Are we a secular State?
A. No. Kenya is not a secular state. It is a multi-religious state. In such a state, it would be disastrous to treat one religion more favorably than another.

Q. Is it not better to entrench the Kadhi’s court in the constitution so that we can check the growth and power of the Islamic religion?  if we leave the Muslim religion unchecked, it will grow dangerous....
A. That is not a valid constitutional or legal argument. It goes against the spirit and purpose of the theories of constitution making or constitutional review. It has no sound legal or moral basis. It seems malicious and intended to portray the Islamic religion as physically dangerous. The Church does not hold this view. However, we believe in Jesus Christ as the ONLY way, the truth and the light. Salvation, we hold, is through Christ Jesus the Son of God. 

Can We Consider This In Mind As Tanzanians During the New Constitution Process?