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Monday’s decision outlawing Kadhis’ Courts has shocked many and some have branded it ‘irresponsible, mischievous and politically motivated’. They have questioned its timing, in view of the ongoing debate on Kadhis’ Courts and impending referendum. There are other reasons why this ruling is constitutionally incompetent.
The judgement lacks political savvy and is irresponsible for at least two reasons. First, in one fell swoop, it invalidates — on flimsy and badly argued legal grounds — a political arrangement that in 1963 created Kenya , as we know it today. History shows that the ten-mile coastal strip, previously under the Sultan of Zanzibar, would not be part of Kenya without the political compromise reached on land and Kadhis’ Courts.
Secondly, while the judges pretend to articulate an artificial distinction between provisions on Kadhis’ Courts in the current Constitution and the Proposed Constitution, by saying their ruling does not affect the latter, only a fool would believe them. It is difficult to believe that the judgement is not politically motivated, because, as lawyer Paul Muite put it, ‘it muddies debate on the referendum’.
Simply put, it provides fodder for the ‘No’ camp. That is why the timing of this judgement in a suit filed on 2004 is not fortuitous: it could only have been calculated to point the debate in a particular direction. Let us turn to the legal aspects of the judgement.
First, to the extent that the judgement has a bearing on the constitutional review process, the judges should never have decided the case. They lack jurisdiction. As a result of the National Accord, the Constitution of the post-Accord era differs in one important respect to that of 2004.
First-year student
In terms of the post-Accord constitution, all disputes touching on the review process can only be decided by the Interim Independent Dispute Resolution Court. It is a product of mistrust of our judges, and the judgement appears to vindicate that decision.
In the second place, the judgement is legally unsound. By purporting to declare provisions of the Constitution (creating Kadhis’ Courts) ‘unconstitutional’, the judges portray a peculiar brand of legal reasoning unknown even to upstart lawyers.
One of the most basic constitutional principles is that you cannot declare a provision of the Constitution ‘unconstitutional’ or ‘illegal’. Only Acts of Parliament as well as regulations and rules made under such Acts — are tested against the constitution, which is the foundational law. Any first year law student will tell you this is the case.
When a constitution is drafted, there has to be internal harmony and coherence between provisions of the same constitution. Where judges find disharmony, they have to interpret the provisions to bring internal coherence, while remaining faithful to the original objects and modern societal realities.
The judges ruled unconvincingly that inclusion of the courts and paying Kadhis from public coffers is ‘discriminatory’, ‘sectarian’ and advances one religion over others. The suggestion that Muslims don’t pay taxes is baffling.
The suggestion that Kadhis’ Courts be restricted to the ten-mile coastal strip is an argument living in the past. The interpretation is narrow, unrealistic and unjustifiable mechanical reading of the law.
If Muslims are Kenyans who deserve judicial services on matters of marriage, divorce, and inheritance (only!), how else can that governmental objective and purpose be achieved if we don’t create courts for Muslims all over Kenya? The limited number of Kadhis’ Courts in Kenya should in fact be increased, not wiped from the map!
Judges occupy important offices. What they say matters. Therefore, they must be responsible. Judges called to adjudicate on our Constitution must be the first to know that a constitution is not — contrary to popular view — a consensus document.
It is a document forged on political compromise. Consensus means we all agree on particular issues, which is impossible. Compromise means different sectors of the body politic give and take in order to construct a diverse national whole. Kadhis’ Courts best exemplify this. Judges cannot undo these political compromises on flimsy grounds. They have to provide compelling reasons.
The writer is an advocate and consultant.
..."Wewe ni mtu mdogo sana....na mwenye amekuandika pia ni mtu mdogo sana!".