Why Kenya’s constitution should recognise Kadhi's courts

There are few more critical factors to building Kenya as a peaceful and united nation than the way we resolve the controversy over the Kadhi's courts. As is painfully clear, we have become a deeply fragmented nation. Avoiding emotions, dogma and arrogance, we must seek a principled approach to the question of the constitutional recognition of Kadhi courts. That approach appears in the preamble of the Proposed Constitution, which says, echoing the widespread sentiments of Kenyans, that we are proud of our ethnic, cultural and religious diversity, and must build peace and unity on that diversity. In multi-ethnic states, it is wisest to search for an appropriate balance between national values and identity and communal values and identity. Denying a community its identity as expressed in its most cherished values, and which do no harm to others, is the surest way to conflict and disintegration.

WHY THE OPPOSITION TO KADHI COURTS?

Is the real opposition to the principle of Kadhi's courts and Muslim law, or merely their constitutional recognition? The former is unjustified since Kenyan law recognises different cultures and values, including several regimes of family law. Nor can we say that Muslim values are so antagonistic to national values that they should be curbed, as one might say in Europe (even there, there is no outright rejection of Muslim law – Germany applies it, and the head of the Anglican Church has strongly advocated sharia courts for Britain). And we should remember that the general law and courts in Kenya, transplanted from England, are based on Christian values and practices.

The constitutional recognition of Kadhi's courts is necessitated by Kenya’s legal obligation to guarantee them in exchange for receiving sovereignty over the Coastal Strip, which is most appropriately reflected in the constitution. Secondly, the constitution’s definition of the judicial system would be incomplete without reference to Kadhi's courts.

SECULARISM VERSUS RELIGIOUS LAWS

Another argument against Kadhi's courts is that religious laws have no place in a secular state. Secularism does not exclude religious laws in personal domains. Secular India has not abolished religious personal laws. Secularism there means that the state would not favour one religion over another, and for the most part the public space would not be dominated by religious beliefs or dogma (e.g. qualifications for public office would not be based on religion, nor would the beliefs or practices of one faith be imposed on others). The application of Muslim law in only personal matters by Kadhi's courts is fully compatible with these principles.

Nor does the recognition of Muslim law violate the principle of equal treatment of religions. Since religions have different conceptions of marriage and family, the most sensible thing is not to force the state in choosing between different religious traditions, but to respect them all. Kenya laws do precisely that.

It is ironic that those Christians who oppose the inclusion of Kadhi's courts have successfully opposed gay marriages and reproductive health on religious grounds. Many Christians groups have cited authority from the Bible for these and other proposals, which people of other or no religion find unattractive, even offensive, and which cause humiliation and suffering to thousands.

NATIONAL INTEGRATION VERSUS DIVERSITY

Some argue that the recognition of diversity prevents national integration. In the Indian Constituent Assembly, some Hindu fundamentalists said that Indian unity would be under threat unless Muslim personal law was integrated with other systems. The assembly rejected forced assimilation of this type. Since then successive governments have said that an integrated law will not be imposed on Muslims against their will. On the whole this position has reinforced rather than threatened unity.

Unity comes from each community feeling that it is free to pursue its values and diversity (within overarching common values). Forced assimilation is the sure way to conflict. Non-Christians in Kenya have tolerated many aspects of the de facto ‘Christianisation’ of the state. Recognition of Muslim law is less, certainly no more, threatening to national unity than these practices. No non-Muslim suffers any harm due to the existence of Kadhi's courts, but they mean much to Muslims. Surely here we have a clue to solving the Kadhi's court issue.

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* Yash Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a special representative of the UN secretary general in Cambodia on human rights.
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