Is the Inclusion of the Kadhi Courts in the Kenyan Constitution Against the Principle of a Secular State?

Abstract

Kenya has a significant minority Muslim population who are vocal against the government on issues affecting the community. Being a minority religious group vis-a-vis Christians, Muslims have always viewed their Christians counterpart dominating the government with suspicion. It is because of this feeling of marginalization that Muslims are constantly critical of every move and statement made by either the government or their non-Muslims compatriots in relation to the community. The article explores the religio-political debate of the Kadhi courts that forms part of the Kenya’s judicial system. Despite a hostile and emotional debate on the courts in the country public sphere, the exploration indicates a long history of the courts in Kenya. Though the courts are recognized by the Independence Constitution, a section of church clergies were in the forefront advocating for the removal of the courts in the constitution. The campaign to have the courts retrenched from both the post-colonial and the Bomas Draft constitutions created acrimony between Christian and Muslim sections of the population. The article’s focuses on the legal appeal sought by the church leaders and how the High Court responded to them.