A constitutional battle to expand the scope of Islamic courts in Kenya threatens to ignite religious tensions at a time when authorities are on high alert against Muslim extremists with ties to Somalia.
Constitutional provisions for Islamic or Kadhis’ courts have existed in Kenya since 1963, with the courts serving the country’s coastal Muslim population in matters of personal status, marriage, divorce, or inheritance. Kenya’s secular High Court has jurisdiction over civil and criminal matters, and even a decision in the Islamic courts can be appealed at the High Court.
The Islamic courts have functioned only in Kenya’s Coast Province, but in a hotly debated draft constitution, their jurisdiction would expand across the nation and their scope would increase. The proposed constitution has gathered enough momentum that 23 leaders of churches and Christian organizations released a statement on Feb. 1 asserting their opposition to any inclusion of such religious courts.
“It is clear that the Muslim community is basically carving for itself an Islamic state within a state,” the Kenyan church leaders stated. “This is a state with its own sharia [Islamic law]- compliant banking system; its own sharia-compliant insurance; its own Halaal [lawful in Islam] bureau of standards; and it is now pressing for its own judicial system.”
Muslim leaders are striving to expand the scope of Islamic courts to include civil and small claims cases. They also want to upgrade the Muslim tribunals to High Court status. These demands have alarmed Christians, who make up 80 percent of the population and defeated a similar proposal in a 2005 referendum. Muslims make up 10 percent of Kenya’s 39 million people, 9 percent of the population follows indigenous religions and less than 1 percent are Hindu, Sikh and Baha’i.
The National Council of Churches of Kenya (NCCK) said the Committee of Experts (CoE) responsible for “harmonizing” drafts from various stakeholders ignored their concerns. The committee was responsible for determining what matters would be unduly “contentious” and was charged with keeping them out of the draft.
“We wrote to them, but we have been ignored,” said the Rev. Canon Peter Karanja, NCCK general secretary. “Who told the CoE that Kadhis’ courts were not contentious?”
Saying the committee ignored the crucial requirement of omitting what is “contentious,” Karanja said it did little to build consensus. He said that unless the Islamic courts are stricken from the constitution, Christians might be forced to reject the document in a national referendum later this year.
Muslim leaders, just as stridently, insist that recognition of the Islamic courts does not elevate Islam over other religions, and that if the courts are removed they will shoot down the draft in the referendum.
The 2005 referendum split the country and was followed by a bitterly disputed presidential election in 2007 that sparked rioting, reportedly leaving 1,300 people dead. The election dispute was resolved with one candidate becoming president and the other prime minister, and at the heart of the proposed constitution is an attempt to transfer presidential powers to the prime minister.
Christian leaders point out that the “Harmonized Draft” of the constitution discriminates against non-Muslims and contradicts its own Article 10 (1-3), which states that there shall be no state religion, that the state shall treat all religions equally and that state and religion shall be separate. They see the attempt to expand the scope of the Islamic courts as part of a long-term effort by Muslims to gain political, economic and judicial power.
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