Christian fundamentalists and hardliners are right in one respect: no matter how we look at them, Kadhis' Courts are based on Islamic law and, therefore, ARE religious institutions. Where they are totally wrong is in their demand that they be removed from the Revised Harmonised Draft as they will 'Islamicise' the nation or some such stupid reason. On the other hand, family law under Islam is essentially civil in nature and therefore, even though family law is addressed in the Holy Quran, this interpretation is essentially civil in nature. The irony is not lost on me: a religious text making secular provisions. Therefore, on that basis, Kadhis' Courts are not religious institutions and since we shall have the Judiciary given constitutional protection, this protection should be extended to the Kadhis' Courts too. The length of their stay under the current constitution should be persuasive but not conclusive. Ultimately, it is irrelevant how long the Kadhis' have been retained under our current constitutional framework. What is relevant is that they are deserving of constitutional protection, just like any other court within the judiciary. This is not to say that specialised tribunals should also receive such protection, but that because the Muslims in Kenya are an identifiable minority in a Christian majority nation they must be protected from the tyranny of the majority. The objections raised by the various leaderships of the various Christian church denominations in the past few months should be sufficient proof of such tyranny.
Marriage, divorce and succession should not be contentious in any way. That they have been made to seem so indicates the level of ignorance about the role that the Kadhis play in today's judicial framework. Christians have Christianity as the basis of the African Christian Marriage and Divorce Act as well as the Marriage Act. Indeed, even the preamble to the Revised Harmonised Draft declaims the special role of God. This does not in any way make the draft any less secular than it is.
The Minister for Justice has his work cut for him trying to convince the Christian objectionists to the relevance of the Kadhis in today's legal framework. Their's is not an objective, logical or rational objection but one that has been fuelled by ignorance and misinformation about the need to offer some recognition that Muslims in Kenya are a minority deserving of at least some semblance of constitutional recognition and protection. The argument that Kadhis' Courts were inserted into the Constitution by way of fraud or blackmail does not hold water. Many of the amendments to the constitution made by the Kenyatta and Moi governments since 1963 were based on the need to entrench executive power in the hands of the president to the detriment of the needs of the people of Kenya. The draft attempts to reduce the power enjoyed by the president and to ensure that we shall no longer be at the mercy of the executive. Indeed, even the chapters on representation and devolution go a long way in reducing the power the executive has to make decisions or take actions in the name of the people without ensuing that such decisions or actions are indeed in the interests of the people.
A new constitution has been a long time coming. It has become a mantra that we require a new constitution without looking at the merits or otherwise of such a need. It is time that we reminded ourselves of the perfidy that has been perpetrated against us as a nation under the current constitutional dispensation and admit that though not all our desires have been addressed in the draft, it goes a long way in offering a new contract between the governed and the governors. We cannot go into the next general elections knowing that the head of state and head of government will be essentially free to do as they please without some sort of supervision or overriding authority in certain circumstances. The draft offers us a chance to reshape the role that political power plays in our lives.
Christian leaders cannot make the case the Christians in Kenya are a minority. Muslim leaders can make that case for all Muslims in Kenya. A nation is only as strong as the protections it offers its minorities. The Christian majority should take this to heart for it is only when a minority is subjected to tyranny that it truly rebels and takes up arms against the majority.
Marriage, divorce and succession should not be contentious in any way. That they have been made to seem so indicates the level of ignorance about the role that the Kadhis play in today's judicial framework. Christians have Christianity as the basis of the African Christian Marriage and Divorce Act as well as the Marriage Act. Indeed, even the preamble to the Revised Harmonised Draft declaims the special role of God. This does not in any way make the draft any less secular than it is.
The Minister for Justice has his work cut for him trying to convince the Christian objectionists to the relevance of the Kadhis in today's legal framework. Their's is not an objective, logical or rational objection but one that has been fuelled by ignorance and misinformation about the need to offer some recognition that Muslims in Kenya are a minority deserving of at least some semblance of constitutional recognition and protection. The argument that Kadhis' Courts were inserted into the Constitution by way of fraud or blackmail does not hold water. Many of the amendments to the constitution made by the Kenyatta and Moi governments since 1963 were based on the need to entrench executive power in the hands of the president to the detriment of the needs of the people of Kenya. The draft attempts to reduce the power enjoyed by the president and to ensure that we shall no longer be at the mercy of the executive. Indeed, even the chapters on representation and devolution go a long way in reducing the power the executive has to make decisions or take actions in the name of the people without ensuing that such decisions or actions are indeed in the interests of the people.
A new constitution has been a long time coming. It has become a mantra that we require a new constitution without looking at the merits or otherwise of such a need. It is time that we reminded ourselves of the perfidy that has been perpetrated against us as a nation under the current constitutional dispensation and admit that though not all our desires have been addressed in the draft, it goes a long way in offering a new contract between the governed and the governors. We cannot go into the next general elections knowing that the head of state and head of government will be essentially free to do as they please without some sort of supervision or overriding authority in certain circumstances. The draft offers us a chance to reshape the role that political power plays in our lives.
Christian leaders cannot make the case the Christians in Kenya are a minority. Muslim leaders can make that case for all Muslims in Kenya. A nation is only as strong as the protections it offers its minorities. The Christian majority should take this to heart for it is only when a minority is subjected to tyranny that it truly rebels and takes up arms against the majority.
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