Kenya is an extremely religious society. Churches, mosques and temples of every description are found on most street corners. We waken to the Islamic Adhan call to prayer and go to rest accompanied by the racket of a thumping kesha or disco matanga. Article 8 of the Constitution states, ‘There shall be no State religion’! Still, few can forget how Daniel arap Moi’s attendance at a Sunday Church service was first item on news bulletins for two decades. Nowadays, a Sunday newscast would hardly be complete without William Ruto preaching and handing over another sack full of cash to some denomination. Due to its colonial origins and the weight of numbers, there is no doubt that Christianity does have a favoured place in this country.
The preamble of the Constitution includes, ‘PROUD of our ethnic, cultural and religious diversity and determined to live in peace and unity as one indivisible nation’. This is a beautiful statement that needs to be frequently repeated. For despite the apparent harmony between religions, there occasionally erupt suspicions and tensions that remind us that more effort at appreciating diversity and understanding others’ believes and values is required. Some of that tension, ignorance and prejudice surfaced in the making of the same Constitution.
The major contentious issue concerned whether Kadhis’ Courts should be included in the Constitution. A large percentage of the Christian leaders believed that entrenching the courts in the Constitution would give special privileges and status to the Muslim faith. As a result they felt that they were being discriminated against and also asked to pay for the Kadhis’ Courts.
Kadhis’ Courts had already been in existence and operational before the constitutional review but Muslims wanted to guarantee their security and permanence in the Constitution so that they would be recognised and funded like all the state courts. Ultimately, reason and compromise won the day. The argument went that why should the courts be removed since they are not a threat to non-Muslims, but an important feature of Muslim Law.
But the issue did reveal the suspicions and ignorance that prevail among religions. Kadhis’ Courts were granted the status of a subordinate court like Magistrates’ Courts. Article 170 described in detail the role of the Kadhis and their powers. However, the final clause said, ‘The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhis’ Courts’.
This confirmed two things. Firstly, the law only applied to Muslims. Secondly, there was an opt out clause if one of the parties chose not to submit to the Kadhis’ Court but decided instead to have the matter dealt with in a regular court.
The outcome illustrated the challenges and the benefits of living in a truly pluralistic society. The state recognised the uniqueness of Islamic Law and acknowledged that it should be accommodated and respected as equal in rights to European law. Muslims only represent 11 per cent of the population according to the 2009 census. One should not underestimate how any minority and especially a religious one requires special consideration to ensure that their rights are respected. Article 56 on minorities recognised that right and the need for affirmative action to protect their interests and Kadhis’ Courts inclusion could indeed be viewed as an affirmative action outcome.
Recently religious tensions and differences have resurfaced over the right of Muslim girls to wear hijab as part of school uniform. The matter has been referred back to the High Court by the Supreme Court. However, should such matters ever appear in court at all? Adversarial justice should rarely apply in matters of such a sensitive and delicate nature.
Common sense, dialogue and respect for religious diversity should take precedence over judicial decisions that could divide Kenyans along religious lines. Schools that welcome students of different faiths should respect the religious culture of all of their students. If the school cannot integrate a diversity of religious practices, then how can it claim to be an institution of education and nation building?
The hijab, sikh turban, Jewish skullcap and the Christian cross are all explicit symbols, but they do not represent a threat or insult to others. Courts are a last resort and frequently give unsatisfactory judgments on religious and cultural matters. Surely this is the best argument for Alternative Dispute Resolutions (ADR) for addressing such matters.
- [email protected] @GabrielDolan1
The Standard Group Plc is a
multi-media organization with investments in media platforms spanning newspaper
print operations, television, radio broadcasting, digital and online services. The
Standard Group is recognized as a leading multi-media house in Kenya with a key
influence in matters of national and international interest.
join