A tale of minor corruption, Kadhi courts and another Mbiti link

Yesterday I had a chat with a lady who was trying to get her late husband's pension, which she has a right to. Apparently everything is OK, apart from the fact that money's not coming. She told me that everything here works with a bribe, but that's not how she does things. She keeps on going back, going up the chain until she gets access to the boss who normally will set things straight. She seemed confident that eventually she'll succeed. Good for her!

Incidentally, different ministries seem to have different reputations. She said the treasury, who she is dealing with, is the worst. But if you have all your papers in order, immigration seems to work well with no money changing hands. Good for them! In most countries immigration services are among the worst, as the clients are not citizens, and don't have votes. But Kenya bucks that trend, for some reason. But then I have been waiting for my car's registration document for over two years now....

Yesterday the high court proclaimed that Kadhi courts are illegal. A diplomat friend described this as 'interesting timing', given that the case was lodged six years ago, and this judgement comes out around 3 months before the referendum on the constitution. And apparently they're illegal even if in the constitution. So at least they're not unconstitutional... (?)

And you'll find a full record of the lecture by John Mbiti by Ben here. It's long, but that's because there was a lot to say.

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.

Constitutional disquiet

While politicians are trying to agree on a new constitution for Kenya, Christians, or at least their leaders, seem to have united against two proposals. A Christian myself, I have some feelings of disquiet about this unity (I hope I'm not promoting disunity here, but a lack of debate often covers up weak arguments) and about some of its direction.

The biggest issue seems to be the place of 'Kadhi' (ie Muslim) courts in the constitution. Now, of course, if they are to exist, mentioning them in a constitution is a good thing. I'm not a specialist on these things, but they exist at the moment, and govern matters of civil law within the Muslim community, but don't have power of enforcement. And they've been around in Kenya for a very long time - it must be over 1,000 years. The NCCK, quite a respectable institution, is very much against them being mentioned in the constitution, and a leaflet I was handed used some nice-sounding (as opposed to rabble-rousing) arguments against them - the constitution and the laws of Kenya should apply to all people, regardless of creed. Fair enough. But one can (or will be able to) also register one's marriage as monogamous, or polygamous (under traditional practices), and no-one seems to be getting very agitated about that. So what's the difference between Muslim family law courts, and family arrangements made under traditional (ie neither Christian nor Muslim) practice?

To be honest, this smacks of intolerance and/or antagonism towards Muslims, hardly being a case of 'loving one's enemies' (the argument here is not that Muslims are an enemy, but that even if they were, Christians should love them). This whole hullabaloo doesn't make Christians look very loving in Muslim (or liberal) eyes. Why not respect the right of other communities to do as they see fit, where it doesn't impinge on others' liberty (or on the liberty of members of their own communities who don't want to be part of it)? I don't know of any case (and I'm open to correction) where a Kadhi court could trump Kenyan law. Thankfully, the NCCK, and other bodies, have not expressed their concern in terms of Christian theocracy, which would not disquiet, but terrify, me. But I've heard individuals talk that way once or twice.

The other issue is abortion, which is illegal here. The churches want to go further and have a clause in the constitution saying that life begins at conception. I guess there's a perception that if it's not in the constitution, it's not a very important law, which seems to me to be a misunderstanding of what a constitution is. But now the die has been cast, and if this clause doesn't get into the constitution (don't count on it), it will look like a defeat for the anti-abortion cause. So it's hard to stand down on that. Woops. It could be an example of the churches shooting themselves in the foot, and looking like they're trying to impose certain views on the whole nation - focusing more on judgement than love. Does the church want to be an enforcer, or a liberator?

To end I'll paraphrase a Kenyan Christian friend's Facebook update, which said that he wished that Kenyan Christians would spend as much time and effort battling corruption as they did battling the Kadhi courts. Amen to that!