By Victoria Tabut LLB (Hons)
Introduction
The political battle for religious recognition
in Kenya is as old, if not older, than the contemporary nation state. There has
been an implied state of antagonism between Islam and other religions,
specifically Christianity, which was especially perpetuated by the colonial
government. This position was reincarnated in the 2010 ruling declaring Kadhi’s
courts unconstitutional in the case of Jesse Kamau and 25 others v the Attorney
General (2010) eKLR[1].
The independence Constitution did
not explicitly declare Kenya a secular state but provided for religious freedom[2]. With religo-political tensions, the Bomas Draft
attempted to address this issue more specifically and explicitly by stating
that either: State and Religion shall be separate; there shall be no state
religion; or the state shall treat all religions equally[3]. The
current Constitution states adopted the provision stating that there shall be
no state religion[4].
Dispensing the provision on treating all religions equally stirred religious
animosity that had been sleep-induced for almost fifty years. The Evangelical
Community held the view that this allowed the maneuver of Islam into the public
sphere and eventually elevation to a higher status than other religions. The
Kadhi’s court was viewed as a legitimate mode of spreading the Islam Agenda in
Kenya.
This
paper will tackle this issue by focusing on historical relevance of Islam
preferential treatment in Kenya; what has been perceived as modes of religious
domination and the role of the state with regard to each; the reading of the
ruling in the Jesse Kamau v Attorney General case in relation to the 2010
Constitution; the implication of Article 8 of the current Constitution;
comparative analysis with other jurisdictions; and whether the Law is being
used as a tool of domination.
No Holds Barred?
The main modes of religious and
eventual political domination exercised by Islam have been cited as: political
domination; military domination; economic domination; and the use of the Law as
a tool of domination.
Conquering the Body,
Mind, Soul and Spirit
Like
much of African history whose transmission was diminished and its demise
expedited by oral traditions and foreign intrusions, most of the history of
Islam in Kenya is thoroughly limited.
There
are three main periods of the Islamic conquest in the Coast[5].
The first is the age of early settlement of Muslims which was subsumed under
Bantu leadership[6].
The second is the Shirazi period where a number of small dynasties where
established leading to intermarriage with the Bantu and the emergence of the
Swahili people[7].
The Portuguese ended up gaining dominion over this region[8].
The
third period is the most relevant to this discussion. This was characterized by
the embarrassing fail of the Portuguese conquest which led to an unstable state
of political affairs[9].
Leaders of Yemen settled in the East African coast followed by their
counterparts from Oman[10].
Around 1813, the Sultan of Oman began establishing control over East African
Islands of Lamu, Pate and eventually conquered Mombasa[11].
In 1840, he established his kingdom in Zanzibar[12].
By the time the Sultan was done with
the East African Coat, its ideologies were more similar to the Arabian
Peninsula than Africa[13].
It has essentially transformed into a typical Islamic State[14].
In fact, there was dissociation with Swahilis by the Arabian and Indian Muslims
who considered them more of African than Muslims[15].
Zanzibar was transformed into a
commercial hub, and even became one of the leading ports for slave trade,
spices and other goods in Eastern and Central Africa, attracting traders from
the Tanzanian mainland as well as Asian traders[16].
The
British declared Kenya a protectorate in 1895[17]. Islam
was confined to the coast much like commerce due to the fierce and feared
hinterland tribes[18].
By the time of independence, Muslims were more of foreigners than stakeholders
due to the Arabic influences[19].
They insisted on preserving the autonomy of the ten mile coastal strip around
Mombasa or returning it to the Sultan of Zanzibar[20].
This was unheard as a wave of total liberation from any and all conquest had
hit Africa, little did they know. The coastal strip, as well as Muslims, was
forced to remain as part of Kenya.
However,
their grievances were sufficiently addressed. A reform of education, social and
economic transformation to aptly fit the views of Muslims was implemented[21].
It was a process of compromise to create a shoe to fit all. Guarantees were
made at the Lancaster House Conference of 1963 to ensure that there was freedom
to worship, the preservation of Sharia Laws and Sharia courts[22].
This led to the spread of Islam and Muslims to the hinterland[23].
Jomo
Kenyatta, Kenya’s first president, was more concerned with pressing issues of
legitimizing his government, addressing post-colonial grievances and was
generally more concerned with ethnic politics[24].
He paid little to no attention to Muslim affairs[25].
This left the already aggrieved Muslims in an uncomfortable but not aggravated
position. His successor Daniel Moi took a holistic approach to politics. He
imposed many of his ideologies to a state that had been fashioned to be an
extension of his personality. As a Christian Kalenjin leader, he expected to
reward those who were like him. His regime saw the marginalization and aggression
toward the Muslim community[26].
This was plagued by religious organizations, aggressive state suppression of
religious riots, atrocious acts against Muslims, and political and economic
marginalization of Muslims in the coast and North Eastern Kenya[27].
In an interesting twist, Idi Amin Dada of Uganda also adopted a similar
leadership style and favoured Muslim Nubians and effectively turned a Muslim
minority country into an Islamic state.
The Kibaki and Jubilee government regime was
less political and more constitutional in religious matters due to the rise of
political pluralism and rule of law. Unfortunately, these periods saw an
unprecedented rise of extremism in Kenya. This has gradually moved from foreign
perpetrators to recruitment of locals[28].
The reason for such occurrence has been considered to have its foundations in
political, economic and social marginalization of Muslims rather than the
generally objective of anti-western views and actively seeking to establish an
Islamic state[29].
Law, the Dominant
The juristic basis for the application of Islamic
law in Kenya has its foundations in the Native Courts Regulations, 1897, where
it was provided that "native courts"[30]
within the Mohammedan Coast region, or in dealing with Mohammedans, also be
guided by, and have regard to, the general principles of the Law of Islam as
well as being guided by, and having regard to any native laws and customs not
opposed to natural morality and humanity[31].
During the Agreement between the
Sultan of Zanzibar and the British, it was established that Islamic law would
continue to govern Muslims in Kenya under the British rule[32].
This led to a number of legislations that governed matters to do personal
status of Muslims[33].
What was termed as Mohammedan law was more evident in family law and the law of
succession through various ordinances and later on Acts[34].
Other than the agreement, the colonial government had more tolerance with the
Muslim faith than African traditional life.
The independence Constitution did
not explicitly declare Kenya a secular state but provided for religious freedom[35]. Constitution reforms addressed this issue
more clearly and explicitly[36].
This is expressed in various forms of religious activities in the Kenyan public
space such as; the existence of the Kadhi’s court[37];
the establishment of madrasahs; recognition of Muslim religious attires in
public institutions[38];
and the establishment of mosques as sacred places of worship.
Section 66 of the repealed
Constitution established kadhi’s court in Kenya. In Jesse Kamau v Attorney
General, the plaintiff argued that the constitutional entrenchment of kadhi’s
court was preferential treatment of a religion over others and it promoted an
Islamic agenda whose ultimate objective is to turn Africa into an Islamic
continent and in particular Kenya into an Islamic state[39].
The Kadhi’s court was held to be unconstitutional[40].
The current constitution was voted in through popular vote in a referendum and
entrenches the kadhi’s court[41].
Kadhi’s courts are public institutions funded by
public funding. Their decisions are binding and are at equal status with the
chief magistrate’s court. It hears matters on marriage, divorce, succession and
personal status which can be widely interpreted. Furthermore, Islamic finance
has recently been reintroduced in Kenya and has begun to take footing within
this jurisdiction. Kadhi’s court has jurisdiction over Muslim affairs between
persons who profess the Muslim faith and submit themselves to the jurisdiction
of the court. There are a few Islamic banks in Nairobi, Kenya and there is a
push for a different regulatory framework from the conventional banking system
whose oversight authority is the Central Bank of Kenya whose mandate is from
the Central Bank Act.
The
Balancing Act
HLA
Hart states that moral and legal rules are similar in that: they are binding on
the individuals regardless of their consent; are supported by social pressure
to conform; and are necessary for the viability of any society[42]. There
are also significant differences in that: natural law theorists consider moral
rules to prevail over legal rules; legal rules can be changed by deliberate
acts while moral rules cannot; moral offences are usually committed voluntarily
while legal rules can attract the offence of strict liability; and conformity
to moral rule is based on the idea that the rule is intrinsically valuable
while conformity to legal rules is based on coercion[43].
In attempting to expand the reach of
the state through the incorporation of customary of religious rules, a dual
system of law usually emerges. This duality exists in many former colonies of
imperialist because of a creation of legal pluralism during the colonial era as
a means of governing a citizenry whose chemistry did not exist with its ‘sovereign’.
When two different co-existing
normative systems are in contentious existence with each other as can happen
with religious law and state law, a zone of autonomy can be provided by the
state for that particular religious sect[44].
The colonial practice of layering western legal rules on top of personal law
governed by customs and norms of indigenous communities persist to date and is
practiced even by Muslim-minority states[45].
Political and social norms can exist when state law is in
a state of antagonism with religious laws[46].
Whenever the official legal system is weak, other normative systems tend to
become more assertive and influential drawing on legitimacy and relevance from
the local communities[47].
Weak official legal institutions are not likely to prevail when in conflict
with powerful customary, religious and functional norms. The official legal
systems of recently (more like fifty years ago) liberated African countries
tend to be weak due to: imposition of laws and systems; less entrenched legal
traditions and systems; interference by foreign mechanisms; less encompassing
training of officers to implement these rules; and graft[48].
However, it has been argued that
state law has perceived full discretion to control the parameters of Islamic
law in Muslim-minority nations[49].
State law can determine the degree and relevance of Islamic law, and subjects
it to whatever rationale and limitations it sees fit to apply[50].
Therefore, it is unlikely that with such a short leash Islamic law could take
dominance and prevail over state law.
Conclusion
If
anything can be learnt from the Arab colonialism in the East African coast is
that the conquest was slow, deliberate, and targeted compliance and submission
rather than domination. The strategy of the Arabs was much more effective in
establishing political control as opposed to the military conquest of the
Portuguese that preceded that Arabian invasion.
Many secular states in Africa were
transformed into Islamic states despite having a minority of Muslim population.
This was mainly cultivated by a conducive environment that enabled the growth
of Islamic law and encouraged settlement by Muslim which effectively resulted in
a Muslim-majority state. Such is the case of Ethiopia[51].
Some states have not undergone total metamorphosis but the balance of power
shifts between the Muslim and Christians like Tanzania and Nigeria[52].
The largest elephant in the room, Jihad, does not help the opposing
argument. The most widespread illusion on the main objective of this Holy War
is thought to be the establishment of Islamic states all through the world.
Kenya has recently fallen victim to terrorism but for arguably different political
reasons. Furthermore, most states have adopted a stance against negotiating
with terrorists. Military conquest is the most unlikely form of political
domination that can be sustained. This can be equated to the forcibly
transformed Uganda under the regime of Idi Amin Dada. This is not a situation
for posterity.
However, the state has the
prerogative to protect its citizens and the rule of law. It also has mechanisms
to implement this through regulatory framework. All religions should be
accorded equal treatment and any situation that elevates one religion over
others should be effectively eliminated. According legal backing and
institutional support to religious norms is stepping into murky waters. It also
creates a slippery slope where the elevated religion has the opportunity to engage
the government in more demands. All religions have similar constitutional rights
and are therefore at liberty to reasonably set up their own regulatory
framework. Despite this provision, the government should guard against
extravagant public spending on unreasonable alternative methods. This is
especially important in a country with more pertinent development programs and
is a hub of diversity in terms of religion and customs.
Bibliography
1. The
Constitution of Kenya, 2010
2. An-Na’im
A.A, ‘The Compatibility Dialect: Mediating the Legitimate Coexistence of
Islamic Law and State Law, The Modern Law Review, Vol. 73, No. 1 (2010)
3. Maj
Jodi Vittori And Kristin Bremer, ‘Islam
In Tanzania And Kenya: Ally Or Threat In The War On Terror?’ (2009)
4. Jesse
Kamau & 25 others v Attorney General
5. Rachel
Sweet Vanderpoel, ‘Religious Equality in Kenya? Adjudicating the
Constitutionality of Kenya’s Kadhi’s Courts’ (2012) ISSN 2291-3106
[1] Nehemia
Levtzion, "Islam in Africa to 1800," in The Oxford History of
Islam, ed. John L. Esposito (New York, NY: Oxford University Press, 1999).
[2] J.
Spencer Trimingham, Islam in East Africa (Oxford, UK: Clarendon Press,
1964).
[3] Jeffrey
Haynes, "Islam and Democracy in East Africa," Democratization 13,
no. 3 (2006).
[4]
The Constitution of Kenya, 2010, Art 8
[5] Edward
A. Alpers, "The Coast and the Development of Caravan Trade," in A
History of Tanzania, ed. I.N. Kimambo and A.J. Temu (Nairobi, Kenya:
African Publishing House, 1997), 38.
[6] Nehemia
Levtzion, "Islam in Africa to 1800," in The Oxford History of
Islam, ed. John L. Esposito (New York, NY: Oxford University Press, 1999).
[7] Ibid
[8]Ibid
[9] Kenya:
When Imploding Is Not Enough," Economist (September 4, 2008), http://www.economist.com/world/mideast-africa/displayStory.cfm?story_id=12059310
[10]
Arye Oded, Islam and Politics in Kenya (Boulder, CO: Lynne Rienner,
2000), 161-3.
[11]
Ibid
[12]
Ibid
[13] Trimingham,
Islam in East Africa, 23.
[14]
Kristin Bremer and John Riley, "Kenyan Society, Women's Rights, and Kenyan
Democracy: Are They Compatible?" (Chicago: Midwest Political Science
Association, 2008).
[15]
Kenya: When Imploding Is Not Enough," Economist (September 4,
2008), http://www.economist.com/world/mideast-africa/displayStory.cfm?story_id=12059310
[16]
Trimingham, Islam in East Africa, 26-7, 44.
[17] Arthur
Banks, William Overstreet, and Thomas Muller, Political Handbook of the
World: 2000-2002 (Washington, DC: Congressional Quarterly, 2004).
[18]
paper
[19]
Oded, Islam and Politics in Kenya, 170.
[20]
Ibid
[21]
Trimingham, Islam in East Africa, 168-9.
[22]
Ibid
[23]
H. Mwakimako, “The Evolution of the Chief Kadhiship in Kenya: 1985-1963” (PhD
thesis, University of Cape Town,2003)
[24]
Banks, Overstreet, and Muller, Political Handbook.
[25]
Ibid
[26]
Kristin Bremer and John Riley, "Kenyan Society, Women's Rights, and Kenyan
Democracy: Are They Compatible?" (Chicago: Midwest Political Science
Association, 2008).
[27] Ibid
[28]
Haynes, "Islam and Democracy in East Africa," 491.
[29]
Ibid
[30]
Terence O. Ranger, "The Movement of Ideas, 1850-1939," in A
History of Tanzania, ed. I.N. Kimambo and A.J. Temu (Nairobi, Kenya:
African Publishing House, 1997), 172.
[31]
Trimingham, Islam in East Africa, 28.
[32]
Book 3
[33] Lippman,
Understanding Islam, 147-8.
[34] Oded,
Islam and Politics in Kenya, 13.
[35] J. Spencer Trimingham, Islam in East
Africa (Oxford, UK: Clarendon Press, 1964).
[36] Terence
O. Ranger, "The Movement of Ideas, 1850-1939," in A History of
Tanzania, ed. I.N. Kimambo and A.J. Temu (Nairobi, Kenya: African
Publishing House, 1997), 172.
[37] Ibid
[38]
Case of hijab
[39] Terence
O. Ranger, "The Movement of Ideas, 1850-1939," in A History of
Tanzania, ed. I.N. Kimambo and A.J. Temu (Nairobi, Kenya: African
Publishing House, 1997), 172.
[40] Mohamed
Fugicha v Methodist Church in Kenya (Suing Through Its Registered
Trustees) and Others, Civ App No 22 of
2015
[41]
The Constitution of Kenya, 2010, art 170
[42]
H.L.A ,Hart, The Concept of Law (Oxford:Oxford UP, 2ND ED, 1994)
172-179
[43]
Ibid
[44]
P.Berman, ‘Global Legal Pluralism’ 920070 80 S Cal L Rev 1155, 1197
[45]
B. Tamaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’
(2008) 30 Sydney L Rev 375,377
[46]
P.Berman, ‘Global Legal Pluralism’ 920070 80 S Cal L Rev 1155, 1197
[47]
A.A An-Na’im, ‘The Legal Protection of HUMAN Rights in Africa: How to Do More
with Less’ in A. Sarat and T.R Kearns (eds), Human Rights: Concepts, Contests, Contingencies (Ann Arbor:
University of Michigan Press, 2002) 89-115
[48]
Ibid
[49]
M, Rohe, ‘Application of Sharia in Europe; Scope and Limits’ (20040 44 Die Welt des Islams 323
[50] Ibid
[51] P.Berman,
‘Global Legal Pluralism’ 920070 80 S Cal L Rev 1155, 1197
[52] Ibid
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