April 20, 2010

The Muslim News: Kadhi Courts in Kenya

By Ahmed Nassir Abdullahi

Kenyans have religiously co-existed for a remarkably long time. The debate spinning around the Kadhi’s courts seems to unnecessarily strain the harmony.

This debate has generated considerable ill-feelings ever since the country undertook the constitutional review process.

This endless agitation against the Kadhi’s courts, coupled with a new policy that targets the Muslim community, seems to be forcing Kenyan Muslims to rethink their stand on a number of issues, including the Kadhi’s courts. A faint sign of an emerging paradigm seems piping from a distant.

We have heard the views of some of the churches, especially from Central Province, which is categorical in their opposition to the Kadhi’s courts. They wrongly but deliberately equate Kadhi’s courts with Sharia law. I think it is fair to say that these views are very extreme. Two issues arise on this.

First, it is almost certain that the views of the majority of Christians in the country are different from those of these vocal churches. The overwhelming majority of Christians in this country don’t have a problem with the Kadhi’s courts.

The courts have been in our constitution all along and it has never been a source of discord.

Second and more fundamentally, where do these churches get the prerogative that they can sit in judgement over the constitutional rights of the Muslim community? Who has erected for them this high pedestal from which they piously pontificate to the rest of the country?

Constitutional making is a progressive process that makes what we already have just better. It is not about the curtailment of rights that are already in existence.

The Muslim community has fairly been silent on the Kadhi’s courts and its place in the constitution. Whereas a number of Muslim organisations and some individuals have voiced their support for the courts, the majority have fairly been silent. The silent majority compromise two groups.

The majority have assumed the posture that the issue is non-negotiable and the churches are without jurisdiction. However, there is a minority among the silent, especially at the Coast and in Nairobi, who advocate an extreme view.

The Muslim extremists have their views and are an antipode to the extreme views of some of the churches. Their views are that the vociferous opposition to the Kadhi’s courts that cater for the needs of the Muslim minority means one thing.

These far right Muslims think that in light of the intransigence of some of the churches, it is time to go full throttle and demand the introduction of Sharia law in Coast and the Northern regions.

Their views are informed by the place of minorities in the history of the world. Historically, when a religious minority is oppressed and denied the right to practise its religion, a corresponding right to demand the maximum crystallises in law and in morality.

From the perspective of these fringe Muslim groups, there are issues that inform the need to introduce Sharia law in these regions, and underscore the constitutional imperative to accommodate Sharia.

The Coalition government has lately reached a consensus when it comes to the Muslim community. It has, over time, come to see Northern Kenya and the Coast Province through a new spectrum informed by flawed and fussy intelligence.

According to the coalition, these regions pose a mortal danger to the rest of the country. This new attitude, underpinned by both overt and covert oppression and intimidation, seems to have implanted in these regions a corresponding need to rotate outside the usual axis.

Second, there is a need for the country to learn from our neighbours if we are to avoid their mistakes. Sudan is a country that holds many lessons. The policies, principles and the struggle of the people of Southern Sudan didn’t just come out of the blue.

It was forced on them by the North. Successive governments in Khartoum had deliberate policies that dehumanised the South.

At one time, even Sharia law was forced on both Christian and animist inhabited regions of the South. It was because the North refused to give a constitutional recognition to the difference between the North and the South that the latter has taken the trajectory it adopted over the years.

Through the twin issues of opposition to the Kadhi’s courts and the new policy of the coalition government, the Muslim community, just like Southern Sudan, is being forced to see themselves as being different from the rest of the country. This situation is pushing them to Sharia as a shelter.

We must stop pulling the country in different directions, because pulling it together might prove difficult in future. Kenyans must reject both Christian and Muslim extremists.

Ahmednasir Abdullahi is a former chairman of the Law Society of Kenya


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