Church Sues Over Kadhi's Courts

The controversy surrounding the Draft Constitution deepened yesterday after bishops engaged the document in yet another legal tussle.

The church has now moved to court seeking to expunge the Kadhi's courts from the draft .

Their move comes only two days after a section of clerics attended the consensus-building meeting in Mombasa aimed at unlocking the current review stalemate.

The churches have assembled a six-member legal team led by Mwaura Waihiga to battle it out in court.

The bishops who have appended their names to the affidavit are Dr Jesse Kamau, Silas Yego, Boniface Adoyo, William Tuimising, Justus Musyoka, Robert Mahiri, Stephen Kiguru, Gerry Kibarabara, Patrick Mungai and Justus Wanjala.

Others are Margaret Wanjiru, Peter Njiri, Isaiah Kyalo, Stephen Kanyaru, Jeffersons Nyatuku, Arthur Kitonga, Richard Kimwele, Joseph Ogutu, David Githii, Peter Karanja, Kepha Omae, Charles Mugo, Patrick Murunga, James Maina and Ambrose Nyangau.

Their suit is set to commence in Nairobi before the end of the week.

If they lose, the bishops have vowed to mobilise their followers to shoot down the draft at the national referendum which is expected to ratify the document.

According to a draft affidavit obtained by the East African Standard, the bishops argue that the concept of the Kadhi's courts was illegal right from its onset.

"The rationale of including the courts in 1895 was based on the fact that Britain was a religious (Christian) monarchy and there was reasonable fear that Zanzibari citizens along the coastal strip would be subjected to the ideals of the said religious regime," argues the affidavit in part.

The inclusion of the courts in the independence constitution by the British was an anomaly which should be rectified by the draft constitution, say the clerics.

"Kenya at independence was not established as a Christian country to warrant fears of any other faith group at all," states the document.

The affidavit adds that the draft constitution contradicts itself.

The group cites section 66 - which establishes the Kadhi courts - as contradicting chapter 5 which states that there is no State religion.

The bishops are also questioning the integrity of the Constitution of Kenya Review Commission.

They have accused the commissioners of acting in bad faith while handling the review process, especially regarding the Judiciary.