A draft constitution that Kenya votes on next week guarantees women the same rights as men — unless a judge in a Muslim family court decrees otherwise.
Critics, including some American evangelicals, complain that the document carves out too many exceptions for the country’s Muslim minority and could create tensions between Muslims and Christians.
Creating a new constitution was a key part of a power-sharing deal that ended weeks of bloody riots 2 1/2 years ago. More than 1,000 people were killed in the violence after a disputed presidential election.
But the inclusion of the publicly funded Muslim courts has galvanized opposition among some Christians ahead of next Wednesday’s vote. A clause in the bill — which polls show is likely to pass — grants equality to women, as long as it doesn’t interfere with the application of Muslim law.
“All Kenyans should have the same rights regardless of ethnicity, religion or gender,” said Oliver Kisaka, the deputy general secretary of the National Council of Churches in Kenya. “This is the unfair creation of a system within a system. And why should taxpayers pay for a judicial system that doesn’t include them?”
Muslim leaders call that kind of attitude scare mongering, and point out that Kenya’s Islamic courts predate the country’s independence from Britain, when they were formally brought under the Ministry of Justice. Muslims make up about 10 percent of Kenya’s 40 million people.
Everyone involved in a case before a Kadhi court must be Muslim, and must be there voluntarily. Muslim Kenyans also have the right to pursue cases in the congested secular courts. The harshest punishment the Kadhis can impose is a fine, and their mandate is limited to matters of divorce, marriage and inheritance. Appeals go to Kenya’s secular High Court.
“How does this threaten Christians?” asked Fatima Abeyd Anyanzwa, an anti-rape activist and mother of six. She studied in California and has a certificate from the U.S. ambassador praising her as an “unsung hero” hanging on her wall. “This is just more propaganda against Muslims.”
Both sides recognize the traditionally cordial relations between Muslims and Christians have worsened since the Sept. 11, 2001 attacks in the U.S.
Anyanzwa, echoing the complaints of many Muslims in Kenya, say followers of Islam here are often discriminated against.
“People don’t even want to sit next to you on the bus when you wear this,” said Anyanzwa ruefully, touching her bright pink headscarf.
Even some conservative American groups are weighing in on the Muslim courts issue ahead of the vote.
“This is a government-sponsored Islamic law system,” said Jordan Sekulow, the director of international operations at the Center for Law and Justice. It was founded by U.S. evangelical Pat Robertson and has recently opened a branch in Kenya.
Press releases sent by the organization describe Sekulow as “heavily involved in grass-roots efforts with Christian organizations in opposition to the Kadhi courts.”
Sekulow says public funds should be directed to reforming Kenya’s secular courts instead, where cases that can be resolved within a month in the Kadhi courts can wait years for a judgment.
But Judge Ahmed Sharif Mudhar, a Kadhi judge in the capital of Nairobi, says Kadhi courts are already providing Christians with a service by dealing with 4,000 cases a year that would otherwise further clog the system.
“Muslim families feel if this section is removed they are being deprived of their rights,” said Mudhar, who has a leather-bound copy of the Kenya Civil Procedures Act on his desk alongside the Quran. “Our brothers, the Christians and the Hindus and other religions, they have nothing to fear. Maybe this problem with the Kadhi courts is a foreign one that has come to Kenya.”
Ali Mohamed, a lawyer who was preparing to enter Mudhar’s court to argue a case last week, said Kadhi court clause in the draft constitution has become an issue only because of “agitation by the evangelicals.”
“They fear their influence might be eroded by Muslims. Islam is one of the fastest growing religions in the world,” he said.