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PP RUEHROV
DE RUEHNR #1711/01 2250410
ZNR UUUUU ZZH
P 130410Z AUG 09 ZDK
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 0648
INFO RUCNIAD/IGAD COLLECTIVE

UNCLAS SECTION 01 OF 02 NAIROBI 001711 
 
SIPDIS 
 
DEPARTMENT FOR AF/E SUSAN DRIANO 
 
E.O. 12958: N/A 
TAGS: KDEM PGOV PHUM KE
SUBJECT: KENYA: CONTINUED CONTROVERSY REGARDING 
CONSTITUTIONAL RECOGNITION OF KADHI COURTS 
 
NAIROBI 00001711  001.2 OF 002 
 
 
¶1. (SBU) SUMMARY: As the Committee of Experts on the 
Constitution works to navigate contentious issues such as the 
system of government and administrative and/or financial 
devolution as they draft a proposed constitution, a recently 
formed Christian lobby has resurrected a long-running debate 
regarding the constitutional recognition of Muslim kadhi 
courts.  Kadhi courts, established during the colonial period 
and recognized under the current constitution, are empowered 
to rule on family law matters when all parties adhere to the 
Muslim faith.  Given their limited jurisdiction and GOK 
oversight, kadhi courts are not the entry point for Sharia 
law in Kenya as the Christian activists claim. END SUMMARY. 
 
¶2. (SBU) The kadhi court system dates back to 1897, when the 
British colonial administration reached an agreement with the 
Sultanate of Zanzibar to recognize the rights of Muslim 
citizens living on the Swahili Coast to be ruled by Sharia 
law, administered by traditional courts overseen by a kadhi 
or Islamic judge.  At independence, Kenya's constitution 
recognized kadhi courts as part of the judicial system.  The 
current constitution states that kadhi courts are empowered 
to hear matters relating to "personal status, marriage, 
divorce, or inheritance" provided that all parties to the 
suit are Muslim.  Decisions issued by Kadhi courts may be 
appealed to the Chief Kadhi, and then to the High Court of 
Kenya.  Though kadhis are not required to hold traditional 
law degrees, they are selected and appointed by the national 
Judicial Service Commission and tend to represent moderate 
Sunni judicial traditions in keeping with Kenya's majority 
Sunni Muslim community. 
 
¶3. (SBU) Currently there are 15 kadhi courts located 
throughout Kenya.  Although the GOK pays kadhi judges' 
salaries and provides courtrooms, no support is provided for 
clerks or recordkeeping.  According to Swahili Coast scholar 
David perling, as many as ninety percent of plaintiffs to 
the kadhi courts are women. As Kenyan civil law provides 
little recourse for women to claim child support from 
absentee fathers, Muslim women turn to the kadhi courts for 
judgments under stricter Sharia provisions requiring men to 
provide support to their children after divorces. As a 
result, Muslim men tend to regard kadhi rulings as biased 
toward women. 
 
¶4. (SBU) Kenya's first attempt to revise the constitution, 
the 2004 Bomas Draft, retained the kadhi courts and proposed 
expanding their jurisdiction to include civil and commercial 
matters, while limiting the right to appeal kadhi rulings to 
secular courts.  The Bomas Draft proposal was supported by 
the Mfungamano inter-faith coalition, which represented both 
mainstream Christian denominations and the Muslim community, 
but controversy arose when a number of Pentecostal churches 
argued that the expansion of kadhi jurisdiction would permit 
the introduction of more radical forms of Sharia law in 
Kenya.  The 2005 Wako/Kilifi Draft Constitution, which was 
defeated in a national referendum, sought to address these 
concerns by establishing Christian and Hindu civil courts. 
 
¶5. (SBU) Debate regarding the constitutional provisions for 
kadhi courts was reignited when the newly-formed "Kenya 
Christian Constitutional Forum" issued a statement on July 21 
opposing any provision for kadhi courts in the constitution 
currently being drafted by the Committee of Experts.  The 
Forum claims that the kadhi system violates the separation of 
state and religion enshrined in the current constitution, and 
forces Christian citizens to support an Islamic institution. 
U.S. religious advocacy group International Christian Concern 
has also picked up the issue, stating that recognition of 
kadhi courts would result in the persecution of Christians in 
Muslim majority provinces "as it has in Sudan and Nigeria." 
In response, Muslim leaders have clarified that they are not 
seeking an expansion of kadhi jurisdiction, but insist that 
the courts be recognized in any new constitution. 
 
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COMMENT 
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¶6. (SBU) As the Committee of Experts is still in the drafting 
stage, it is unclear what provisions will be made for kadhi 
courts.  The posturing of religious activists ahead of the 
draft release reflects two concerns: the absence of 
information about the soon-to-be released draft, and ongoing 
tension between Christian and Muslim communities in Coast 
province. 
 
¶7. (SBU) Kenyan politicians agree that eighty percent of the 
content in previously proposed constitutions are not 
controversial; rather, politicians are divided over several 
contentious issues (the overall system of government, 
 
NAIROBI 00001711  002.2 OF 002 
 
 
administrative and/or financial devolution from the central 
government to local districts, land reform, and the issue of 
kadhi courts).  The Committee of Experts charged with 
proposing consensus solutions to these debates has engaged in 
a quiet drafting exercise without providing signals as to the 
positions they are taking, nor how they intend to resolve the 
long-standing and known contentious issues that have doomed 
prior attempts at constitutional reform.  Technical experts 
assisting the commission have expressed concern that the 
Committee's failure to undertake political engagement as they 
draft could lead to the failure of current constitutional 
reform efforts as politicians and advocacy groups line up to 
criticize unpalatable elements of the draft once it is 
released. END COMMENT. 
RANNEBERGER