Unconstitutional Court...

The constitution is still this weeks talking point as a new poll conducted by Synovate. According to the poll the yes camp is still leading but are losing ground to a continually resurgent no campaign, and as leaders continue to criss- cross the country in search of all important votes spanners are constantly thrown into the works to greet them.

Last week that spanner came in the form of Kadhis’ courts. The furore began when three judges declared the clause in the constitution on Kadhis’ courts un constitutional. In the landmark ruling, the judges sitting as a Constitutional Court, said the decision to include the kadhi courts in the country's supreme law was an illegality that favoured one religion over others. The two opposing Green and Red camps immediately leapt into action, with the Greens (otherwise known as those in the Yes corner) quick to assure the public that the judgement would not halt the referendum, while their Red counterparts (consisting of members of the clergy and some ministers) jumped for joy saying the ruling had vindicated their opposition to the proposed set of laws and called for suspension of the referendum.

In a 114-page ruling, the judges held that the enactment and application of kadhis' courts to areas beyond the 10-mile Coastal strip specified during their establishment in the colonial times is unconstitutional.

As it stands at the moment the courts are written into the current constitution, this fact has seemingly escaped those in the Red faction as they continue to vehemently oppose the courts’ inclusion in the draft.
History of the Kadhis’ courts:
They were in existence along the East Coast of Africa long before the coming of the British colonialists in the 19th century. The Kenyan coastal strip was then part of the territories controlled by the Sultan of Zanzibar.
1895: the Sultan of Zanzibar authorized the British to administer the coastal strip as a protectorate, rather than a colony as distinct from the mainland, subject to certain conditions including the British agreeing to respect the judicial system then in existence in the said protectorate. The British agreed to these conditions and throughout their administration of the coastal strip this judicial system, which included the Kadhis courts, continued to exist.

Before independence and at the beginning of the Lancaster House constitutional talks, James Robertson was appointed by the British Government and the Sultan of Zanzibar as a commissioner to report on the advisable changes to the 1895 Agreement relating to the coastal strip of Kenya as a result of the course of constitutional development of East Africa.
In his report, Mr. Robertson recommended that the coastal strip be merged with the mainland before self-government and independence, subject to certain safeguards being given to the Muslims of Kenya, which safeguards should be entrenched in the constitution.

The Commissioner recommended that the Kadhis courts should not only be retained but also integrated within the judiciary under the Chief Justices administration. Robertson also recommended that the 1895 Agreement be abolished and another one made in its place between the Governments of Kenya and Zanzibar, this was done.

A new agreement was entered into between the Governments of Kenya and Zanzibar through Prime Ministers Jomo Kenyatta and M. Shamte respectively, in which the Sultan of Zanzibar relinquished his sovereignty over the coastal strip in return for Kenya, among other things, guaranteeing the existence of the Kadhis courts at all times.

To safeguard the integrity of the agreement reached on them, the Kadhis courts were enshrined in the independence constitution under the chapter on the judiciary; they are still there to date.

After independence, the Kenya Government expressed its desire not to be bound by all pre-independence treaties and agreements entered into by the colonial government. President Kenyatta informed the United Nations of the intention of the Kenyan Government to review all such treaties and agreements and determine those which it would honor. Among those immediately honored was the agreement protecting the existence of the Kadhis courts.
The question that now begs to be answered is why oppose a law that has been entrenched into the workings of our society now? It’s a little too late to object to the courts having allowed the existence for over three decades!


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