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Religion & Law

: Religion Clause

Kenya Court Says Kadhis Courts Inconsistent With Other Parts of Constitution

By Howard M. Friedman

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In Kenya, the Nairobi High Court sitting as a Constitutional Court yesterday struck down the provision in the current Kenya Constitution that provides for Kadhis courts (Sec. 66). The court's opinion (excerpts) holds that Section 66 is inconsistent with Sec. 82 that bars discriminatory laws. Among the conclusions in the Court's 144-page opinion are:

the financial maintenance and support of the Kadhis' courts from public coffers amounts to segregation, is sectarian discriminatory and unjust ... and amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion (secularism) and is therefore contrary to the universal norms and principles of liberty and freedom of religion envisaged under sections 70, 78 and 82 of the Constitution....
the entrenchment of the Kadhis' courts in the Constitution elevates and uplifts the Islamic religion over and above the other religions in Kenya which is inconsistent with section 78 and 82 of the Constitution....

Yesterday's Daily Nation, reporting on the decision, says that the Court has raised a question about the scheduled August 4 referendum on a new Constitution, since that draft also includes Kadhis courts. (See prior posting.) The High Court in its decision held that whether provisions in the proposed document are a problem is not ripe for determination. The Daily Nation reports that opponents of the draft constitution are calling for an immediate suspension of the planned referendum.

Full post as published by Religion Clause on May 25, 2010 (boomark / email).