The public discourse on whether or not the Kadhi Courts should be included in the constitution has been wrongly interpreted by many to be a Christian vs Muslim affair. The often uninformed rhetoric by hardliners on both sides of the argument adds an unnecessary and potentially explosive element to the already charged political atmosphere.

The issue here is not about religion, but about the constitution. The move to change the current constitution springs from an acknowledgement by most people that there are wrongs in the document that need to be made right. There are some basic rights, for instance, that the original constitution did not address, and which need to be enshrined in the new document.

Similarly, there were some provisions that were included by those who negotiated the Lancaster House document that no longer hold water and need to be scrapped. The Parliamentary Select Committee (PSC) retreat in Naivasha, which was expected by many to degenerate into an ODM vs PNU muscle-flexing contest, pleasantly surprised the nation by reaching consensus on almost all of the so-called contentious issues.

In regard to the Kadhi Courts, however, the PSC missed the point and actually went astray. Curiously, the draft constitution that emerged from that retreat omitted a simple but critical phrase that had appeared in all the many draft constitutions that have been produced since the first one in 2002. All previous versions of the Draft Constitution have consistently stated categorically that “State and religion will be separate, there will be no state religion and that all religions will be treated equally. These provisions have now been removed, leaving only: There Will Be No State Religion. Most people are not aware that this small but significant change was made in Naivasha.

Why was this phrase removed, and what would be the significance of its absence in the constitution? The only logical conclusion would be that the new constitution does not acknowledge all religions as equal. The Constitution enunciates equality for all citizens. Further it provides that nobody shall be discriminated against by reason of their religion, among other things. Unfortunately, the Kadhi courts are themselves an institutionalization of inequality. They seek to favour one religion over others by creating and protecting and providing for state funding of a purely religious system of dispute resolution.

One of the central arguments from those who advocate for Kadhi courts to be included in the constitution is that the courts have been in the constitution since independence. This is very true. The courts did not accidentally end up in the constitution but were a part of the negotiations between Jomo Kenyatta and the Sultan of Zanzibar which led to the 10 mile coastal strip being incorporated into the Republic of Kenya at independence.

However, these historical reasons and context no longer apply. What was then a concession to a small part of the country and a very small part of the population has now become a demand and a right applicable to the whole country.

Excluding the Kadhi courts from the new constitution would not in any way hinder the rights of Muslims to worship Allah or to establish courts and other mechanisms of dispute resolution. The role of the Kadhi as a religious office will remain intact, organized and funded by the Muslim community, in the same way as other religions will be required to fund their own activities.

The only effect of not including the courts in the constitution would be that, like for all other religions, there would be no funding using tax payers money, and the offices for Kadhis would be recognized rightly as religious offices, and not government office. Most importantly, the draft constitution that will soon be presented to Kenyans for a referendum must include the important clause removed by the PSC: that all religions will be treated equally.

By Pete Ondeng and Peter Waiyaki.

Pete Ondeng is a development economist & author of Africa’s Moment; Peter Waiyaki is an advocate of the High Court of Kenya.