Historically, Kadhis Courts existed in the East Coast of Africa long before colonization. In Kenya, they existed in the Coast, which at the time of colonization, was under the Sultan of Zanzibar. In 1895, the Sultan gave the British power to administer the 10 mile coastal strip subject to their respecting the existing Kadhis Courts among other conditions. The British did so and declared a protectorate over the coast while the rest of Kenya was a colony proper. The Sultan however retained sovereignty over the 10 mile coastal strip. During the last years of the independence struggle and at the start of the Lancaster House Constitutional talks in 1961, the status and fate of the coastal strip came up for determination. The British organised separate talks for the delegates from the protectorate of the coast and those from the Kenya Colony. The British Government and Sultan of Zanzibar also appointed a Commissioner, Mr. James R. Robertson, to study the issue of the coastal strip, consult all those concerned and report to them. In his report, entitled, "The Kenya Coastal Strip ? Report by the Commissioner", he reported that opinion was divided as to whether the coastal strip should join Kenya, or be declared independent on its own, or reverted back to the Sultan of Zanzibar. He however recommended that it should be joined with Kenya subject to the Kenya Government guaranteeing to respect the existence of the Kadhis Courts among other conditions. The Prime Minister of Kenya, Jomo Kenyatta and the Prime Minister of Zanzibar, Mr. Shamte on behalf of the Sultan of Zanzibar, then signed an agreement in October, 1963, in the form of an exchange of letters whereby the Sultan of Zanzibar relinquished/surrendered his claim of sovereignty over the coast to Kenya in return for mzee Kenyatta guaranteeing the continued existence of the Kadhis Courts among other guarantees. When the independence constitution was written, the Kadhis Courts were enshrined under the chapter on Judiciary.
At Independence, the Kenya Government expressed its sovereign desire not to be bound automatically by all the pre-independence treaties and agreements entered into by the colonial Government. By his note reference EXT. 237/003A of 25th March, 1964, addressed to the Secretary General of the United Nations, mzee Jomo Kenyatta informed the United Nations of the Kenya Government's intention to review all pre-independence treaties and agreements and determine which agreements will be honoured by the Government and those which will be abrogated or modified after appropriate notice to the interested parties. It is important to note that the 1963 agreement between the Kenya Government and the Sultan of Zanzibar concerning the Kenya Coastal Strip and the preservation of the Kadhis Courts was among those agreements that were immediately honoured by the newly independent Kenya Government. This is proved by the fact that the independence constitution of 1963 enshrined the Kadhis Courts under Chapter 5 in the Judiciary and thereafter Parliament passed the Kadhis Courts Act, the Mohammedan Marriage and Divorce Registration Act and the Mohammedan Marriage, Divorce and Succession Act to make these courts fully operational and functioning. At independence, the Kadhis Court were 3. In 1967, the Kadhis Courts Act was passed which increased the courts to 6. They have subsequently been increased and today they are more than a dozen spread over the country.
The Kadhis Courts were entrenched in the constitution as a measure of safeguarding the integrity of the agreement reached on them. If the courts were established under Ordinary Law by an Act of Parliament alone, then it would have made them vulnerable since any decision to abolish them would have required a simple majority of the members of parliament to repeal the Act. Under the present standing orders of Parliament which sets the quorum of the house at 30, it means that only sixteen (16) Members of Parliament could do so. In contrast, to abolish the courts as enshrined in the constitution would require a two-thirds (2/3) majority in Parliament. As a minority therefore the Muslims in Kenya find great relief and solace in the entrenchment of the Kadhis Courts in the Constitution.
Section 66 of the current constitution provides for the Chief Kadhi and Kadhi's Courts and states their powers as being to decide on issues of Muslim personal law between Muslims i.e marriage, divorce and inheritance.
(By Ahmed Issack Hassan, Commissioner, CKRC)
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