NOT ALL CHRISTIANS OPPOSE KADHIS COURTS: An Open Letter to Christian Leaders in Kenya.

[In the run up to the August 2010 referendum on the Harmonized Draft Constitution, one of the contentious issues was the inclusion of Kadhis Courts in the draft. Despite the fact that the courts had always been a part of our Constitution since independence and were being retained largely as they were, a number of Christian denominations and church leaders denounced their inclusion and decided to campaign against the draft, eventually teaming up with politicians who opposed the draft constitution to vote No. In February 2010, I wrote an open letter to the Church leaders urging them to reconsider their position and support the new Constitution. This letter was also published in the daily press and on the website of the Committee of Experts which had drafted the Harmonized Draft Constitution.]

Nairobi,

9th February 2010.

Dear Fellow Christians,

I greet you all in the Name of our Lord and Saviour Jesus Christ. I would like to introduce myself and for the avoidance of doubt to state upfront that I am a born again Christian. Baptized as an infant and confirmed as a teenager in the Anglican Church, I received Christ as my Lord and Saviour in my early twenties at a service at the Nairobi Pentecostal Church, Valley Road, and was water baptized a few years later at the Karura Community Chapel. My wife and I currently worship at the Nairobi Chapel where I serve on the Usher Board. However the views expressed in this letter are my own and do not represent the positions of any of the churches or organizations that I am associated with.

I hold degrees in law and theology, having received my legal education at the University of Nairobi and Oxford University and obtaining my MA in Theology in Christian Ministry Leadership from the Nairobi International School of Theology. I take pride in being a lawyer and a theologian because as John Witte says, Law helps to give society the structure, order and predictability it needs to survive while Religion helps to give the society the faith and the vision it needs to move forward.

I am proud of the rich heritage of the Church in Kenya and worldwide with regard to the fight for justice, good governance and human rights. The Church has indeed risen to the occasion in standing up against autocracy and dictatorship in the past. I am privileged to have been nurtured on the bosom of the Church having been brought up in a Christian home by Christian parents and attended Christian schools. Any criticism, therefore, that I have against the Church is based on the great love I have for the Church and I humbly beseech you to take this letter in the same spirit with which it has been written.

Given the background above, I have to admit that I have watched with increasing dismay and alarm as several respected Christian leaders from diverse denominations have expressed strong views against the inclusion of Kadhis courts in the Harmonized Draft Constitution. In your latest statement, published in the local dailies on 3rd February 2010 sub-titled ‘Entrench Islamic Sharia Law in the Constitution at Your Own Risk,’ you have demanded that Kadhis courts be removed from the Draft Constitution failing which “the Christian church in Kenya shall have no option but to reject it in total and vote NO.”

I have to say that I disagree with your position on this matter on historical, legal, theological, logical and moral grounds.

1. Historical objection

Your statement and your position ignore the fact that Kadhis courts have been a part of our Constitution since independence in 1963 and continue to be in the current Constitution. They are there to adjudicate on matters of personal law (marriage, divorce and inheritance) between parties who all profess the Muslim faith, which remains their jurisdiction in the harmonized draft constitution. Your view ignores the fact that the courts did not accidentally end up in the constitution but were a part of the negotiations between Jomo Kenyatta and the Sultan of Zanzibar which led to the 10 mile coastal strip being incorporated into the Republic of Kenya at independence.

There have been arguments that from the letters exchanged between Kenyatta and the Prime Minister of Zanzibar, the courts should have been confined to the coastal strip or that there was no intention for them to be put in the constitution. The first of these arguments is illogical, for if the same constitution guaranteed freedom of movement and settlement anywhere within a unitary state, it would not make sense to suggest that every time a Muslim had an issue of personal law to be adjudicated upon they would have go to the coast to have that done; and whatever the intention expressed or implied in the letters, the fact is that our founding fathers did sign onto the constitution which included the provision for Kadhis courts.

Since Kadhis courts were part of the agreement that made the ten mile coastal strip a part of independent Kenya, in all fairness, it logically follows that those of you arguing for their removal should be willing to abrogate the whole agreement and have the coastal strip revert to the sovereignty of Zanzibar (now part of Tanzania), for we cannot have our cake and eat it!

2. Legal objection

According to the law of treaties and under the international law principle of pacta sunt servanda, every treaty in force is binding upon the parties to it and must be performed by them in good faith. A party to the treaty cannot invoke provisions of its domestic law as justification for a failure to perform the treaty. In 1963, Kenya entered into a treaty with Zanzibar which is binding and must be performed. We cannot simply abrogate the treaty because of some people among us who claim that the inclusion of Kadhis courts in the constitution is part of a wider sinister Muslim plot to take over the world.

3. Theological objection

WWJD was a ubiquitous acronym in my day as a young Christian. We wore in on bracelets and necklaces, our T-Shirts and bumper stickers, we penned it in our books and scratched it on our walls, to remind ourselves that whenever we faced a dilemma in our spiritual walk, the answer was to be found in that simple question, What Would Jesus Do?

I have found myself reminded of these four simple letters lately as I have listened to the increasingly menacing voices of some church leaders whenever the question of the Kadhis courts has come up. The language being used in certain Christian radio stations and sermons in churches borders on hate speech and sectarian incitement. All sorts of conspiracy theories about Muslims planning to take over the country have spun out of control and the way many church leaders have chosen to engage in this matter is totally lacking in grace. But what would Jesus do?

First and foremost, Jesus never commissioned the Church to go and conquer territories and nations, nor to defend them by virtue of their numbers, including by threatening to vote to reject a constitution. It should not be forgotten that when Jesus came to Palestine in the First Century C.E., the whole province was under foreign Roman occupation but we do not see Jesus even once deciding to take on the colonial forces. Instead, He went about establishing the Kingdom of God by living a life wholly submitted to God the Father, and He left us the Great Commission: Go and make disciples of all nations. The making of disciples would be done “not by power and not by might but by My spirit, says the Lord.” This means that the Church would advance its mission through prayer, evangelism and a life of example, and not through threats, intimidation or conquest. This is just not the way of the cross.

Some of my Christian brothers and sisters have been heard to complain that the fact that Muslims have been buying real estate in Nairobi, especially in Eastleigh and South C, is another indicator, together with the issue of Kadhis courts, that this is part of a wider scheme to take over the country. But surely we cannot discriminate on the basis of religion as to who should own property where in the country. All Kenyans have the right to own property anywhere in the country. In any case, it is other Kenyans, including Christians, also in exercise of their rights, who are selling their property in the open market, to the Muslims. Again, from a purely biblical perspective, what would Jesus do?

In the garden of Gethsemane as the hour of his arrest and crucifixion drew near, Jesus told his disciples to “watch and pray that you may not enter into temptation.” Instead, the disciples chose to go to sleep. When Jesus’ enemies finally came to arrest him, the sleepy disciples woke up and one of them instinctively reached for a sword and slashed the ear of one of the adversaries. Jesus rebuked him and restored the severed ear.

To the extent that some Christians regard Muslims as adversaries, then the Church has been asleep instead of ‘watching and praying.’ And suddenly we are waking up and reaching for the sword to engage in a way that is not becoming of the cross nor of the gospel of love nor of the message of reconciliation that we have been entrusted with.

Finally, some have argued that Kadhis courts ended up in our current constitution through an act of treachery on the part of the Muslims. This argument has no merit nor has any evidence been adduced to support the same. But even if for argument’s sake it was true that the Muslim community managed to somehow maneouvre and negotiate to their advantage when our original covenant was being crafted in the early 1960s, then the Bible clearly teaches that we should not casually attack them and seek to marginalize them simply because they happen to be a minority whom we do not like.

In this regard, I remind you of the Gibeonite deception in Joshua Chapter 9. The Gibeonites, who were among the people Joshua had been ordered to get rid of from the Promised Land, cleverly disguised themselves and came to Joshua pretending to have come from a distant country and persuaded Joshua to sign a treaty of peace with them, only to discover shortly thereafter that he had been tricked. Despite the temptation to attack the Gibeonites, Joshua restrained the Israelites because of the oath they had sworn to them. Indeed centuries later, when King Saul attacked the Gibeonites thereby going against Joshua’s five hundred year old oath, God avenged them by sending a three year famine on Israel (2 Samuel 21)

The Kadhis courts debate has echoes of the Gibeonite story. Our forefathers signed a treaty of peace with the Sultan of Zanzibar the provisions of which led to the incorporation of the 10 mile coastal strip into the Republic of Kenya in return for certain concessions to the Muslim community among which were the Kadhis courts to adjudicate on personal matters between persons professing the Islamic faith. Even if these courts were entrenched in the constitution through some act of trickery (which as I have argued they were not), it would still behoove us to respect them or risk judgment as Israel did when future generations felt they were not bound by the oath of their forefathers.

4. Logical objection:

The vehement opposition to Kadhis courts and the latest threat to reject the Draft Constitution in total and mobilize the Church to vote No in the forthcoming referendum does not make logical sense. As Kadhis courts are already contained in the current Constitution, voting No to a new constitution achieves nothing for the opponents of the courts since we are left back where we began with a constitution that still provides for the courts.

5. Moral objection:

Morally, I hasten to remind you that the alternative to a new constitutional order is the current constitution – the same constitution that we are all agreed has provided the framework for rampart corruption, tribalism, oppression, injustice, rabid poverty and inequality, which have all exploded into post-election violence; a constitution which if not replaced with a more just and equitable order, guarantees that this country will certainly not hold together for much longer.

Conclusion:

By threatening to derail yet again a process that has taken us two decades in the search for a new democratic constitutional order, not only will you be decidedly marching against the tide of history, you will be playing into the hands of those who seek to maintain the status quo and thereby to deny the majority of Kenyans the right and the responsibility to equitably share in the burdens and the benefits of belonging.

For these reasons, I humbly beseech you to prayerfully reconsider your position on the Kadhis courts in the Harmonized Draft Constitution.

Yours in Christ,

Njonjo Mue LL.B, MA (Th.)
Advocate
Feb 2010.