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Kadhis Courts By AHMED ISSACK HASSAN
	Kadhis Courts: Here are the facts Kadhis Courts existed in the Eastern African coast long before colonialism. In Kenya, they existed at the Coast, then under the Sultan of Zanzibar. In 1895, the Sultan gave the British power to administer the 10-mile Coastal Strip subject to their respecting the existing Kadhis Courts among other conditions. During the last years of the independence struggle and at the start of the Lancaster House constitutional talks in 1961, the status and fate of the Coastal Strip came up for determination. The British organised separate talks for the delegates from the protectorate of the Coast and those from the Kenya Colony. The British Government and Sultan of Zanzibar also appointed a Commissioner, Mr James R. Robertson, to study the issue of the Coastal Strip, consult all those concerned and report to them. In his report, he recommended that the Strip be joined with Kenya subject to the Kenya Government guaranteeing the existence of Kadhis Courts among other conditions. Prime Minister Jomo Kenyatta and the Prime Minister of Zanzibar, Mr Shamte, on behalf of the Sultan of Zanzibar, then signed an agreement in October, 1963, whereby the Sultan of Zanzibar relinquished his claim of sovereignty over the Coast to Kenya in return for Mzee Kenyatta guaranteeing the continued existence of the Kadhis Courts among other undertakings. When the independence constitution was written, the Kadhis Courts were enshrined under the chapter on the Judiciary. At Independence, the Kenya Government expressed its desire not to be bound automatically by all the pre-independence treaties entered into by the colonial Government. Nevertheless, the Independence Constitution of 1963 enshrined the Kadhis Courts under Chapter 5 in the Judiciary, and thereafter Parliament passed the Kadhis Courts Act, the Mohammedan Marriage and Divorce Registration Act and the Mohammedan Marriage, Divorce and Succession Act, to make these courts fully operational. At independence, there were three Kadhis Courts. In 1967, the Kadhis Courts Act was passed which increased the number to six. Today, there are more than a dozen spread all over the country. The Kadhis Courts were entrenched in the Constitution as a safeguard to the integrity of the agreement. Had the courts been established under Ordinary Law by an Act of Parliament alone, any decision to abolish them would have required a simple majority of legislators. Under the present Standing Orders of Parliament which sets the quorum at 30, it means that only 16 MPs could do so. In contrast, to abolish the courts as enshrined in the Constitution would require a two-thirds majority. As a minority, therefore, Kenyan muslims find great solace in the entrenchment of the Kadhis Courts in the Constitution. Section 66 of the Constitution provides for the Chief Kadhi and Kadhi's Courts and states their powers as being to decide on issues of Muslim personal law - marriage, divorce and inheritance. The Constitution of Kenya Review Commission's mandate is to collect, collate and analyse the views of Kenyans on changes to be made to the Constitution and to recommend amendments or other changes thereto which faithfully reflects the views and wishes of Kenyans. The Commission was to study the Judiciary, among other institutions, and seek people's views on how it could be improved. The Kadhis Courts are part of the Judiciary. During the public hearings, many people, organisations and experts advocated their retention, with some modifications. Muslims generally asked for the enhancement of the role and status of the courts while in some cases like in North Eastern Province, they asked for the full application of Sharia Law. A group of human rights and legal organisations also prepared a model constitution in which they recommended the retention of the Kadhis Courts, and for the Chief Kadhi to have minimum academic qualification and to enjoy the same status and privileges as a High Court judge. In recommending improvements to the Kadhis Courts, the Commission was faithfully reflecting an analysis of the views it received. It is therefore wrong to suggest the CKRC is favouring Muslims or creating a parallel court structure or introducing Sharia Law through the back door. Kadhis Courts do not exist in Kenya alone. Several countries in Africa and the Commonwealth that have a significant population of Muslims provide for these courts in their constitutions and laws to cater for the regulation of the personal status of their Muslim citizens. Save for those countries which apply Sharia Law throughout the country, other states tend to limit the jurisdiction of these courts to matters affecting the personal status of Muslims. The Nigeria constitution provides for the establishment of Sharia Courts in the states and in the Federation. The Sharia Court of Appeal is composed of the Grand Kadi and such number of Kadis as may be prescribed by law. The major difference between the Kadhis Courts in Nigeria and Kenya is that the former apply full Sharia Law while in Kenya, jurisdiction is limited to personal law. The Gambian Constitution under Section 137, establishes the Cadi Court to be constituted by the Cadi and two other scholars qualified to be Cadi or Ulama. Appeals from this court go to a review court composed of the Cadi and four ulamas (Islamic scholars). The Cadi Court has jurisdiction to apply Islamic Sharia in matters of marriage, divorce and inheritance where the parties before the court are Muslims. The Ugandan constitution establishes the Qadhis Courts under Section 129 as one of the subordinate courts of judicature exercising judicial power to deal with matters of marriage, divorce, inheritance of property and guardianship. The argument that the provisions in the Draft Constitution treat other religions less favorably is clearly without merit. Article 44 of the Draft Bill is a basket clause containing several sections guaranteeing and protecting the freedom of religion for all. The Kadhis Courts, which fall under the chapter on the Judiciary, could not have been brought under the ambit of article 44 which comes under the Chapter on Human Rights. Kadhis Courts should be seen in the context of the Judiciary and the legal system and not as a religious or Muslim issue alone. Those opposing the Kadhis Courts and making allegations of bias for Muslims are politicising the issue and creating unnecessary tension between Muslims and their Kenyan brothers and sisters. By whipping up emotions of other people who may not have all the facts before them, these people are undermining the goals of the constitutional review process. It is the hope of all those who wish to see the continuation of the peace and harmony that exists between the different religious communities in Kenya that men and women of goodwill in Kenya will see through the propaganda war being waged against the Kadhis Courts and support the recommendations of the CKRC.
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