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Kadhi's Courts and Kenya's Constitution: An International Human Rights Perspective
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  • Joseph M Isanga, Concordia University School of Law
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This article examines Kenya's international human rights obligations and finds that there is support for religious courts, provided relevant human rights guarantees are ensured. Kenya's Kadhi's courts have existed in the constitution since independence from the British. So why do some religious groups now oppose them or their enhancement under Kenya's Constitution? Opponents of Kadhi's courts advance, inter aha, the following arguments. First, Kadhi's courts provisions favour one religion and divide Kenyans along religious lines. Second, they introduce Sharia law. Third, the historical reasons for their existence have been overtaken by events. Fourth, non-Muslims shouldn't be taxed to fund a particular religion's courts.

Proponents of Kadhi's courts advance, inter alia, the following arguments. First, Kadhi's courts are harmless and indispensable to resolving intra-­Muslim disputes. Second, adjudicating Islamic personal law in civil courts amounts to secularization of Islam. Third, as Kadhi's courts already exist their abolition would be disruptive. Fourth, abolition of Kadhi's courts could trigger inter-religious conflict and exacerbate ethnic conflict. Fifth, Kadhi's courts have delivered results, playing 'a pivotal role in the administration of justice.' Sixth, removing Kadhi's courts would further alienate a marginalized Muslim minority. Seventh, if Christian demands regarding abortion and definition of marriage are constitutionally entrenched, even-handedness would dictate similar recognition of Islamic personal law. Key to this debate is religious coexistence and accommodation. Minorities must be protected and not ignored in Kenya's constitutional framework. The civil war and Muslim­Christian strife in Sudan and Nigeria exemplify the consequences of failure in this regard....

Part l of this article analyses relevant Kenya's legal framework and its human rights obligations and draws on experiences of select countries beyond the African region. Part 2 discusses perspectives of select African countries and the African human rights system. Part 3 makes relevant recommendations. [excerpt]

Citation Information
Joseph M. Isanga, Kadhi's Courts and Kenya's Constitution: An International Human Rights Perspective, in Rule of Law Report 2009-2010: Kenya's Constitutional Moment 29, 47 (Kenyan Section of the International Commission of Jurists, ed., 2009).