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09NAIROBI1711 2009-08-13 04:10:00 UNCLASSIFIED Embassy Nairobi
Cable title:  

KENYA: CONTINUED CONTROVERSY REGARDING

Tags:   KDEM PGOV PHUM KE 
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1. (SBU) SUMMARY: As the Committee of Experts on the
Constitution works to navigate contentious issues such as the
system of government and administrative and/or financial
devolution as they draft a proposed constitution, a recently
formed Christian lobby has resurrected a long-running debate
regarding the constitutional recognition of Muslim kadhi
courts. Kadhi courts, established during the colonial period
and recognized under the current constitution, are empowered
to rule on family law matters when all parties adhere to the
Muslim faith. Given their limited jurisdiction and GOK
oversight, kadhi courts are not the entry point for Sharia
law in Kenya as the Christian activists claim. END SUMMARY.



2. (SBU) The kadhi court system dates back to 1897, when the
British colonial administration reached an agreement with the
Sultanate of Zanzibar to recognize the rights of Muslim
citizens living on the Swahili Coast to be ruled by Sharia
law, administered by traditional courts overseen by a kadhi
or Islamic judge. At independence, Kenya's constitution
recognized kadhi courts as part of the judicial system. The
current constitution states that kadhi courts are empowered
to hear matters relating to "personal status, marriage,
divorce, or inheritance" provided that all parties to the
suit are Muslim. Decisions issued by Kadhi courts may be
appealed to the Chief Kadhi, and then to the High Court of
Kenya. Though kadhis are not required to hold traditional
law degrees, they are selected and appointed by the national
Judicial Service Commission and tend to represent moderate
Sunni judicial traditions in keeping with Kenya's majority
Sunni Muslim community.



3. (SBU) Currently there are 15 kadhi courts located
throughout Kenya. Although the GOK pays kadhi judges'
salaries and provides courtrooms, no support is provided for
clerks or recordkeeping. According to Swahili Coast scholar
David perling, as many as ninety percent of plaintiffs to
the kadhi courts are women. As Kenyan civil law provides
little recourse for women to claim child support from
absentee fathers, Muslim women turn to the kadhi courts for
judgments under stricter Sharia provisions requiring men to
provide support to their children after divorces. As a
result, Muslim men tend to regard kadhi rulings as biased
toward women.



4. (SBU) Kenya's first attempt to revise the constitution,
the 2004 Bomas Draft, retained the kadhi courts and proposed
expanding their jurisdiction to include civil and commercial
matters, while limiting the right to appeal kadhi rulings to
secular courts. The Bomas Draft proposal was supported by
the Mfungamano inter-faith coalition, which represented both
mainstream Christian denominations and the Muslim community,
but controversy arose when a number of Pentecostal churches
argued that the expansion of kadhi jurisdiction would permit
the introduction of more radical forms of Sharia law in
Kenya. The 2005 Wako/Kilifi Draft Constitution, which was
defeated in a national referendum, sought to address these
concerns by establishing Christian and Hindu civil courts.



5. (SBU) Debate regarding the constitutional provisions for
kadhi courts was reignited when the newly-formed "Kenya
Christian Constitutional Forum" issued a statement on July 21
opposing any provision for kadhi courts in the constitution
currently being drafted by the Committee of Experts. The
Forum claims that the kadhi system violates the separation of
state and religion enshrined in the current constitution, and
forces Christian citizens to support an Islamic institution.
U.S. religious advocacy group International Christian Concern
has also picked up the issue, stating that recognition of
kadhi courts would result in the persecution of Christians in
Muslim majority provinces "as it has in Sudan and Nigeria."
In response, Muslim leaders have clarified that they are not
seeking an expansion of kadhi jurisdiction, but insist that
the courts be recognized in any new constitution.



--------------------------


COMMENT


--------------------------





6. (SBU) As the Committee of Experts is still in the drafting
stage, it is unclear what provisions will be made for kadhi
courts. The posturing of religious activists ahead of the
draft release reflects two concerns: the absence of
information about the soon-to-be released draft, and ongoing
tension between Christian and Muslim communities in Coast
province.



7. (SBU) Kenyan politicians agree that eighty percent of the
content in previously proposed constitutions are not
controversial; rather, politicians are divided over several
contentious issues (the overall system of government,

NAIROBI 00001711 002.2 OF 002


administrative and/or financial devolution from the central
government to local districts, land reform, and the issue of
kadhi courts). The Committee of Experts charged with
proposing consensus solutions to these debates has engaged in
a quiet drafting exercise without providing signals as to the
positions they are taking, nor how they intend to resolve the
long-standing and known contentious issues that have doomed
prior attempts at constitutional reform. Technical experts
assisting the commission have expressed concern that the
Committee's failure to undertake political engagement as they
draft could lead to the failure of current constitutional
reform efforts as politicians and advocacy groups line up to
criticize unpalatable elements of the draft once it is
released. END COMMENT.
RANNEBERGER