Excerpt : Role and status of Khadi courts in Kenya
On a hot, Friday afternoon in early 1999, a frail, old man walked into the NSSF offices of the Presidential Commission on Harmonization of Terms & Conditions of Service of Public Servants in which I served at the time as a Commissioner. He had arrived a short while earlier by bus from Mombasa, and had walked all the way from the River Road bus terminal, carrying a small plastic paper bag full of documents. He introduced himself as the Chief Khadi. We were taken aback, as we all thought the Chief Khadi was a senior judge who would fly by plane, be chauffer driven, with body guards, etc.
His submission to the Commission was hand-written. He revealed to us that he had an old typewriter in his office, one copy typist and a clerk who handles two registries, one for the Chief Khadi and the other for all the other Khadis. Hence a backlog of proceedings work to be processed and he could not get the submission typed. He had no other staff, and had no computer, filing cabinets, official car or other trappings of a modest public office. He acted as both the Chief Khadi and the Khadi of Mombasa where he was based. He had no deputy or other senior Khadi to assist him, and had limited jurisdiction to hear and determine cases anywhere in the Republic as do the Senior Resident Magistrates and Judges.
There are 17 Khadis nationwide, in addition to the Chief Khadi still based in Mombasa. They are stationed in parts of Coast province, and the former Northern Frontier Districts. In addition, every provincial capital such as Nairobi, Nyeri, Nakuru, Kisumu and Eldoret have a Khadi. Majority are form four leavers with little or no formal training in Islamic or secular law, and join the service as third class magistrates equivalents. They do not have a specific scheme of service, and are recruited by the Judicial Service Commission, with no representation from the Muslim organizations. The courts have no appellate jurisdiction, and plaintiffs can only opt to go the High Court.
The total budget of the Khadis courts for 2009/10 is just about shs 10 million, a major portion of it, shs 7.5 million, being salaries and housing allowances. The Chief Khadi is at Job Group P, a grade lower than the Chief Magistrate but on the same salary grade as a senior executive secretary at the High Court. The Khadis are on Job Group J, earning just under shs 25,000 per month, and in the same salary grade as junior accountants, librarians and water bailiffs in the Magistrate’s courts. These are the Khadis Courts which the Churches allege have placed Islam above other religions, and are creating a financial burden on the Government.
To the Muslim community, the Khadis courts status in the judiciary are a sore embarrassment, and an embodiment of the low esteem in which these revered institution is held by the Government. Hence, when the defunct CKRC collected views from Kenyans in 2002, the Muslim community was unanimous that the qualifications and status of the Khadis be enhanced, and the jurisdiction of the court be expanded to include appellate court. However, at Bomas, all the proposed reforms were scrapped and status quo maintained as a compromise to retain the courts.
The Church does not have the authority to challenge the constitutional rights of other faithful. If Muslims want safeguards in the constitution, what injury does the church suffer? Will Christianity suffer any prejudice by the existence of the Khadis courts? By fulminating about the establishment of religious laws in a secular state, the Church is engaging in moral fraud.
Isn’t it hypocrisy to argue on secularity of our state when the Constitution’s preamble starts with ‘the supremacy of the Almighty God of all creation’ The church cannot blow hot and cold on secular order when it rejects Khadis courts as religious, yet argue against abortion and homosexuality on the same religious grounds. How far can we separate the Church and the State? Shall we stop teaching Islamic law in our universities, schools etc?
Protection of minority rights is not a priviledge, and is not subjected to the wishes of the majority. It is also not correct to say that the constitution must of necessity apply equally to all Kenyans as there are several provisions giving special rights and priviledges, eg to certain communities, areas, women, and various sectors of the society.
In March 1964, Kenyatta wrote to the UN affirming the country’s commitment to honour the 1963 treaty obligations to safeguard these courts at all times. The issue is a fundamental religious freedom in order to accommodate a minority and protect its right to manifest their faith as provided for in the proposed Bill of Rights 32(2).
It has often been argued that other religions have not enjoyed equitable state patronage and history as has Christianity in Kenya. The country is not an ecumenical state, and the conduct of the State is manifestly Christian and does not reflect neutrality. The Church has often stated that Kenya is a Christian state; on the other hand, Muslims would never say that Islam is the state religion. To grumble the inclusion of the Khadis courts is much ado about nothing