African fruit basket

Kenya | A long-awaited new constitution avoids direct Islamic law but divides the electorate into bananas and oranges

Issue: "Rita: After the storms," Oct. 8, 2005

If one placed bets on the next country in Africa most likely to adopt Shariah, or Islamic law, Kenya would not be the top pick. But even the largely Christian nation and former British colony could not escape a push to codify and widen the country's Islamic influence. The good news is that the Christian community has so far succeeded in defeating it.

Muslims tried to add clout to the East African nation's small Islamic court system through Kenya's new constitution, which the nation has been drafting and debating for almost three years. It is scheduled to go to a national referendum Nov. 21.

As it stands, the final draft now up for vote offers religious courts for Christians, Hindus, and Muslims, with the option that parliament can add more. The courts will have jurisdiction over issues such as inheritance, marriage, and divorce in cases where all parties profess the same religion. But the provision, which lumps in Islamic courts with other religious tribunals, is weaker than what Muslims campaigned for, carrying over functions that have long been practiced.

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Islamic courts have existed from the time the Sultan of Zanzibar governed Kenya's coast. They were incorporated by the British into their colony in 1895. In Kenya, they are known as Khadis' courts. A khadi is an Islamic judge or magistrate, largely confined to Kenya's eastern coastal strip. The courts rule on issues such as marriage, divorce, and inheritance for Muslims, but are subordinate to Kenya's High Court.

The Khadis' courts became a sticking point in 2002, however, when Muslim members of the constitution review commission wanted to expand jurisdiction to include a broader civil law. They proposed beefing up the structure with Islamic appeals courts. And, as a gesture of fairness, they said other religions could establish similar judicial systems.

But no other religious groups in Kenya demand religious courts outside of the national, secular judicial system. Christian leaders protested that what Muslims were advocating would privilege Islam above other faiths in Kenya's constitution and would establish a parallel court system. As in other countries, it could also be used to inhibit evangelism and limit individual freedom to change religions.

Maintaining the Khadis' courts within their existing boundaries has not removed all unease among Christians. The unity among church leaders that defused the Muslims' opening salvo has now turned to division. After the government released the new draft constitution, evangelicals and other Protestants began advising their congregations to vote against it. Catholic and Anglican church leaders took a softer approach, deciding to educate their followers about the document's content but let them choose how to vote.

At root is how Christians view the Khadis' role: Some believe little threat remains, since Kenya has functioned with the Islamic courts for decades. Others think independence-era laws from the 1960s-expanding the courts from the coast to the whole nation-should have been unconstitutional from the beginning. For them, the status quo is too precarious, leaving the door open for Muslims to pursue Shariah again.

Mary Muinde is national coordinator of the Federation of Churches in Kenya, an interdenominational coalition that formed to examine the proposed constitution. She told WORLD "open eyes" are necessary because of the intriguing history behind Khadis' courts.

First mention of the Islamic courts came in Kenya's original 1963 constitution. But it was the 1967 constitution and the Khadis' Courts Act that outlined their function and quietly made them national. Muslims backed the law at a time when politicians paid little heed to religion and concentrated instead on tribal rivalries, Ms. Muinde said, hoping to shore up Islam's status. But it was not an official amendment, raising overdue questions now about how-and whether-the Khadis' Act should have been tied to the constitution at all.

Christians have mustered their resources in one High Court case against Kenya's attorney general and the commission charged with reviewing the constitution, hoping to provoke answers to those questions. The next hearings are scheduled for November, days before the referendum. "We're hoping to enlighten Kenyans about how the Khadis' courts came into the constitution and, God willing, have an act of parliament remove them from the constitution," Ms. Muinde said.

For Christian leaders, it is not time to rest. Many see the recent constitutional push for a greater Khadi system as the first step in a radical Muslim agenda that extends continentwide. That goes back to 1989 and a pan-African Islamic conference held in Abuja, Nigeria, where such courts were touted as a viable route to Shariah.


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