Weakly constitutional

I'm no constitutional expert, but I wanted to follow up on my last posting here. In the meantime, Onesimus Online has written a thoughtful piece on wider issues of politics and faith, covering both the US and the issue of Kadhi courts here in Kenya. I don't think I'll do much more on this, but I'm still working out what I want to put on here. Ideas from one of my two readers appreciated...

Last week, various church leaders issued a press release dealing with barriers to their support to the proposed constitution. It's worthwhile seeing what they say:

CHAPTER ONE – SOVEREIGNTY OF THE PEOPLE AND THE SUPREMACY OF THE CONSTITUTION

Article 8 provides that “There shall be no state religion”. However, previous draft constitutions had two important principles: One, “That state and religion shall be separate”; and, Two, “That the state shall treat all religions equally”. These provisions were deleted mischievously to accommodate parochial and sectarian interests in the draft constitution. We propose that Art 8 be amended to read as follows:

8 (1) State and religion shall be separate.

(2) There shall be no State religion.

(3) The State shall treat all religions equally.

Overall this seem quite sensible, though the analysis of why the section was revised seems unnecessary, especially the word 'mischievously'. It fits fine in a blog such as this perhaps, but church leaders accusing the politicians of being mischievous in an open statement doesn't feel quite... well, right to me. Not very diplomatic perhaps. True though, but never mind about that. But whether the editing was mischievous, I'm just not sure.

Hang on a minute, though. I just checked the draft constitution, and it already says all that. Are we working from different texts here? Moving on to the Bill of Rights (there's also a problem with numbering)

CHAPTER FOUR – THE BILL OF RIGHTS

Article 24 (4) provides that the Provisions of the Bill of Rights shall not apply to persons who profess the Muslim religion. The Church believes that no person should be denied or exempted from the provisions of the Bill of Rights whatsoever. We propose that Art 24 (4) is deleted.

Well, I was horrified to learn that the Bill of Rights wouldn't apply to Muslims. But the text of the draft constitution doesn't say this. It says:

The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Islamic law to persons who profess the Muslim faith in relation to personal status, marriage, divorce and inheritance.

That is somewhat different; the press release is (deliberately?) misrepresentative of what the draft says, whether one likes it or not.

Jumping over sections on right to life and religious liberty, we come back to the Kadhi courts. Here's what the press release says:

CHAPTER 10 - JUDICIARY

Art 169 (b) provides that subordinate courts include Kadhis Courts. This is unacceptable. If the Proposed Constitution shall contain any reference to Kadhis Courts, we shall REJECT the draft in total. To avoid another rejection of the draft constitution at the referendum, we propose that Art 169 (b) be deleted. Providing for Kadhis Courts alone in a multi-religious society is a recipe for chaos, is repugnant to justice. In the interest of justice for all Kenyans and in consideration of the need for the Kenya to get a new constitution, the Church extends an olive branch with regard to the Kadhis Court.

In this regard, we propose that a new Article 160 (3) and (4) be inserted to read as follows:

(3) The constitution shall recognize the jurisdiction of religious courts in matters relating to personal status, marriage, divorce and inheritance where all parties subscribe to the same religion and agree to submit to the jurisdiction of such courts.

(4) No state resources shall be used for the establishment or the operation of any religious courts.

Art 170 provides for the jurisdiction of the Kadhis Court. We propose that Art 170 is deleted.

So... there's an olive branch which says that they can have Kadhi courts after all, but just don't mention the word...? And what's more worrying is there seems now to be a desire to establish other religious courts, which is something that the NCCK a few weeks ago was specifically campaigning against. Bizarre. True, the text concerning Kadhi courts doesn't specifiy it's only for Muslims who want to be subject to them, which would be an improvement.

I don't have anything else to say. Again, if I've got something wrong, correct me. But there'll be no need to accuse me of being mischievous.