Referendum: Kadhi courts ruling ineffective

There is nothing to be gained by the judgment declaring the Kadhi courts illegal in Kenya. The ruling can neither change the current constitution nor abolish the Kadhi courts. Examined closely the judgment seems to be a very well calculated platform by the Judiciary to hit at the Proposed Constitution which recommends Parliament to enact a legislation which shall establish mechanisms and procedures for vetting the suitability of judges. Without caring about the consequences of their judgment, the ruling exposed the caliber of people manning the Judiciary.

As it is universally accepted, judges cannot change constitutions. Their responsibility is to interpret them. It is therefore extremely strange that the three judges – Mathew Anyara Emukule, Joseph Nyamu and Roselyn Wendoh – behaved as if they had the responsibility of either to recognize or reject any part of the current constitution. They, in fact, behaved as if they had the responsibility to write a new constitution for Kenyans. They obviously intended their ruling to influence the outcome of the forthcoming referendum. But the judgment has had the very opposite effect of strengthening the willpower of the people of Kenya to say “YES” during the referendum. It has only reinforced the hand of the Greens and the “YES” camp.

Displaying a shocking attitude of self-interest, the three judges did not seem to care about the dangerous situation of Christian-Muslim conflict their judgment was likely to push Kenya into. Concerned only about their own fate, which will be at stake when the Proposed Constitution is operationalised, the judges were in fact trying to torpedo the referendum by ridiculing the legality of the Kadhi courts, which are at the centre of controversy in the whole referendum exercise.

The anti Kadhi courts ruling by the three judges made Kenya’s most respected law institutions to join hands in condemning the Judiciary. These are the Law Society of Kenya, the International Commission of Jurists, Kenyan branch, the Federation of Women Lawyers (FIDA Kenya) and Kituo cha Sheria. These four legal institutions in Kenya command more respect among the people than the Judiciary which has time and again proved to be both corrupt and incompetent.

The Waki Report clearly says that for a long time now, the judiciary has been vilified for failure to play its pivotal role in the democratic governance of this country. Of the three arms of Government, says the Waki Report, it is the least understood and has therefore acquired the notoriety of losing the confidence and trust of those it must serve because of the perception that it is not independent as an institution even if some individual members of it were.

That is why, for example, the leadership and members of the ODM refused to submit to the jurisdiction of the courts to resolve the dispute that arose after the 2007 general elections in relation to the Presidential results, says the report which adds that the institution has also been accused of delays in the administration of justice and for non-transparency in its functions.

Obviously this is the one reason why Section 44 of the Constitution of Kenya Review Act of 2008 gives the responsibility of hearing any challenges to the conduct or result of the referendum to the Interim Independent Constitutional Dispute Resolution Court established by Section 60A of the Constitution.

The framers of the law had no confidence in Kenya’s Judiciary to hear anything to do with the referendum. But the ruling on Kadhi courts by the three judges was mischievously and deliberately trying to poke the Judiciary’s nose into matters concerning the referendum.

In their case the aggrieved church leaders wanted the court to expunge from the constitution Sections 66 which introduces and entrenches the Kadhi courts in the current constitution; and in their judgement the three judges clearly said they had no powers to do so as that responsibility was in the hands of Parliamentarians and the people of Kenya through a referendum.

But all the same the three judges impudently went ahead and declared Section 66 of the current constitution unconstitutional. Paradoxically all the legal scholars and respected legal institutions have now declared that declaration by the three judges to be unconstitutional itself and the Attorney General , Amos Wako, has filed a petition seeking the rejection of that ruling by the court of appeal.

Whatever the court of appeal rules, the judgement on 24th May 2010 by Justices Nyamu, Wendoh and Emukule will go down in history as among the most notorious in Kenya’s political history. It will be among other infamous judgements which were used by oppressive regimes to torture nationalists and freedom fighters but failed to change the course of history.

According to Bombay High Court website these include the infamous judgment made in March 1922 against Mahatma Gandhi who was tried for sedition in respect of two articles he had written in his paper “Young Indians”. Despite the trial against Gandhi, India was liberated and is now one of the most respected democracies in the word. I have a feeling that despite the three judges ruling on Kadhi courts the referendum in Kenya will be a stepping stone that will lead the people of Kenya to the Third Liberation for which so many , just like Mahatma Gandhi, suffered so much.

Another judgement of similar notoriety can be found at the ANC website and involved the trial of Nelson Mandela in December 1956 when the South African nationalist was accused of participating in treasonable conspiracy, inspired by international communism, to overthrow the South African State by violence means. The trial which dragged on for four years was meant to stop South Africa from being liberated. The attempt by the apartheid regime to use the court of law to stop the trend of history failed miserably as that country was finally liberated and Nelson Mandela ended up becoming the country’s most respected President.

Also from ANC website is another example of another infamous trial against Nelson Mandela at a Pretoria Court in April 1964 the African hero told the Apartheid court that the that the suggestion made by the State that the struggle in South Africa was under the influence of foreigners or communists was wholly incorrect. Mandela then told the court that he had done whatever he did, both as an individual and as a leader of his people, because of his experience in South Africa and his own proudly felt African background, and not because of what any outsider might have said. Mandela used the apartheid court to correct wrong impressions meant to make Africans in that country the perpetual hewers of wood and drawers of water.

In more or less the same manner the courts in Kenya are now being used to make sure that the poor in this country will remain so forever and that the attempt to liberate them through a more just and democratic constitution will be perpetually frustrated. But like Mandela the people of Kenya must use the courts to expose the truth and correct the trend of history that will liberate the suffering majority of the people Kenya. That is why the whole country must unite to vote “YES” to the Proposed Constitution and liberate Kenya.

The use of courts to deny the people their democratic rights was also made here in the infamous Kapenguria trial of Jomo Kenyatta. According to a short online biography of the first President of Kenya, his trial at Kapenguria on April 8, 1953, for managing Mau Mau was a mockery of justice. As all Kenyans know the colonialists used the court to suppress the liberation movement in Kenya when they sentenced Mzee to seven years imprisonment.

But that jail term made the struggle for independence become even more vigorous with brilliant minds such as that of Tom Mboya and radical nationalism of Raila’s father , Oginga Odinga, joining hands to liberate Kenya. Courts have therefore never succeeded in suppressing the truth in any struggle for liberation. It is with this conviction that I strongly believe the move by the Kenyan Judiciary to try and torpedo the referendum will most certainly fail and fail very miserably.