I am very disappointed with the print and electronic media today. Reading and listening to their analysis and explanations of the ruling regarding the Kadhis Court by the High Court of Kenya, it is quite obvious that they are grossly misinforming the public on the ruling's impact on the ongoing review process. There is an obvious attempt by the media to distort facts and derail the ongoing review process.
First, this ruling is related to section 66 of the current constitution and has absolutely nothing to do with section 170 of the Draft Constitution. The ruling was against the defunct Constitution of Kenya Review Commission (CKRC) which is moribund and it does not affect or in any way bind the Committee of Experts which is the body seized of the current review process.
Yesterday’s ruling was against the independence constitution which was not enacted by the people of Kenya. It was imposed on the country in 1962 after the Lancaster Conference. The High Court is a creation of that constitution and has no power to declare its provisions or another body created by the same law unconstitutional. By declaring the Kadhis’ Courts Act unconstitutional, the High Court in effect opened an avenue for other parties to challenge the constitutionality of the African Christian Marriage Act, Cap 151 and the Hindu Marriage and Divorce Act, Cap 157.
The saving grace is that the days of the current constitution are numbered. The first chapter, section 1 of the draft constitution declares that the people are sovereign and the enactment of the draft on August 4 will be the expression of the collective and supreme will of the people of Kenya. In contemporary constitutional jurisprudence, no court or state organ has the power or authority to usurp the supreme will of the people.
The ruling by the three judges is belated and just as flawed as the constitution which the people are hoping to repeal on August 4, 2010. It is not anything for the "NO" side to celebrate about, it was made without the presentations of the Muslim people in court yet they are the ones who stood to loose in the event of an adverse ruling as happened yesterday. It flies in the face of the principles of natural justice and cannot stand in the court of public opinion. It is foolhardy for any court to make such a novel ruling without according a hearing to the party(ies) that stand to be so adversely affected by the decision. Such a ruling lacks the legitimacy and moral force to elicit voluntary compliance from the Muslims of Kenya.
It is the kind of ruling that could alter the socio-legal relations between the Muslims and Christians; the main faiths in Kenya. It should be dismissed or ignored at best by all Kenyans who have the interest of this country at heart.
By Capt. (Rtd) Collins Wanderi
Advocate, Commissioner for Oaths, Notary Public and Chair-Association of Certified Fraud Examiners (ACFE)- Kenya Chapter.
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