Kenyan Vote on New Constitution Pitting Christians Against Muslims - July 8, 2010

The thought was that a new Constitution would help unify Kenyans, after the violence of 2008.  It is designed to create a fairer balance of power among Kenya’s ethnic groups.  While religion didn’t play a significant role in the violence, it is now the focal point of the tensions rising as the vote on the new constitution nears.

Under the present constitution, Islamic Sharia law has been quietly operating, issuing Muslim marriage certificates, divorcing Muslim couples and weighing in on Muslim inheritance disputes. They do not hear criminal matters and while they have been operating for centuries, they have far less power than Kenya’s higher courts.  There are 17 judicial bodies that administer sharia.

It is only lately that these kadhis courts have come into the spotlight.  Relations between Christians and Muslims, who make up about 10% of the population in this overwhelmingly Christian nation, began to fray with the 1998 bombings of the US embassies in Kenya and Tanzania and the 9-11 attack.  Fears of radicalization and terrorism increased as well because of the civil war in Somalia, where the al-Qaeda-linked al-Shabab militia is seeking to overthrow the US-backed government.  There has been a massive influx of Somali refugees, almost all Muslim.

Christians are worried about a Muslim community that is growing in numbers and influence, and they have been backed by US-based evangelical groups.   Muslims are concerned about the rising influence of conservative Christian organizations backed by American Christians.

According to Rashid Abdi, a Nairobi-based analyst with the International Crisis Group, the khadis courts are a red herring.  He said “They feed into historical prejudices on both sides and misperceptions which have increased in the last 10 years."

In 2004 a group of churches filed a court case to remove the khadis courts from the present constitution, but it move slowly through the system.  So when the vote on the new constitution was announced, Christians saw it as an opportunity to get the Muslim courts shut down.  They have argued that if included in the new constitution, it could be used to justify an expansion of sharia law in Kenya.

The official US stance is that Kenyans should vote in favour of the new constitution, including the khadis courts, seeing it as the best way to maintain stability in the country.  The US ambassador has publicly urged a Yes vote.  The American Center for Law and Justice opposes the new constitution and has opened an office in Nairobi.  On its web site it says that the “"high number of Muslims in the slums and a significant increase in the number of Somalis" have brought the kadhis courts issue into “sharp focus.  There are those who believe there is an overall Islamic agenda geared towards the Islamisation of the country.”

Kenya’s high court ruled last month that the khadis courts should be removed from the new constitution.  The ruling is being appealed.  Some politicians have spoken out against removing the khadis courts from the draft constitution, partly because the Muslims have become a powerful voting bloc.

According to Bishop Joseph Methu, a senior evangelical Christian leader, “We want unity in Kenya, but not a unity that will compromise us.” Christian leaders say they fear that if the courts are enshrined in the constitution, "sooner or later, you will find an enclave where they will say we are predominantly Muslim and Islamic laws rule here," according to Oliver Kisaka, deputy general secretary of the National Council of Churches of Kenya. "You have created space for the creation of a nation within a nation."

Christian leaders point to the example of an incident in northern Kenya, near the Somali border, where Muslim clerics imposed a ban on broadcasts of films and soccer in advance of the World Cup.

Muslim leaders respond by arguing that khadis courts protect their community’s rights and cultural values. Abdalla Murshid, a Muslim lawyer and community leader says “A good constitution is gauged by the extent to which it protects minorities.”

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