Thursday, May 27, 2010

Church lawyers say Muslims to blame for kadhi ruling

David Mwaura, a lawyer who represented the Church on the kadhi courts (right) and Dr Bishop Michuki of Hope Restoration Centre (left) at a news briefing at Ufungamano Hall May 27, 2010. The lawyers said Muslims did not send representation to court on the kadhi courts case. Photo/ ANTHONY OMUYA

David Mwaura, a lawyer who represented the Church on the kadhi courts (right) and Dr Bishop Michuki of Hope Restoration Centre (left) at a news briefing at Ufungamano Hall May 27, 2010. The lawyers said Muslims did not send representation to court on the kadhi courts case. Photo/ ANTHONY OMUYA 

By DAVE OPIYO

Muslims have only themselves to blame for the controversial ruling that declared the inclusion of the kadhi courts in the constitution illegal

This follows revelations that the Supreme Council of Kenya, which had been invited alongside the Hindu Council to express their views on the case when it was filed, did not appear nor send a lawyer to represent them in the case whose ruling has elicited uproar.

The revelations were made Thursday by three lawyers, who represented the Church in the case.

The lawyers Mr Mwaure Waihiga, Ms Judy Madahana and Mr Julius Kitheka said the invitations were "satisfactorily and conclusively served not once but twice".

Unfortunately, they added, it was only the Hindus who responded and that the Muslims "did not even appear or send a lawyer".

"When an affected party fails to take this chance, the court has no option but to proceed since justice has to be done. It is, therefore, insincere for anyone to complain of an injustice when they refused to appear or make a presentation,” concluded the lawyers.

Locus standi

When contacted, Supkem’s director general Mr Abdullatif Shaban said there was no way they could appear in court since they had "no locus standi" on the case.

“It would have been absurd for us to appear in court since we had nothing to do with the case,” said Mr Shaban in a telephone interview.

“On what basis should we have appeared before the court?” he posed.

The official said they will not be drawn into any 'negative discussions’ with the Church as this was  likely to paint 'a negative picture’ of them.

At a news conference, the three lawyers also defended the controversial ruling.

They further expressed concern over the attacks being directed at the judges saying this "disparaged the administration of justice in Kenya".

And they called upon Attorney General Amos Wako to come out strongly to "defend the Judiciary and institute legal proceedings where necessary" at those belittling it.

Free to appeal

“The accusations of impropriety or compromise against the judges are regrettable and undermines the very essence of independence of the judiciary,” the lawyers said at a news conference at Nairobi’s Ufungamano House.

“This is in fact contempt of the Judiciary...those not satisfied with the ruling are free to appeal.”

Mr Wako has already filed an appeal notice against the ruling by Justice Joseph Nyamu, Roselyne Wendoh and Mathew Anyara Emukule, but, the lawyers confirmed that they had not seen it.

In the landmark ruling on Monday, the judges, sitting as a Constitutional Court, said the decision to include the kadhi courts in the current constitution was an illegality that favoured one religion over the others.

However, the lawyers said there was nothing sinister with the timing of the ruling.

“It was not incidental...this date was communicated on March 25 this year when the case was last in court for judgement,” they said.

“Such a scheduling of judgement date is done everyday and any practising lawyer knows that. It is greatly insincere for anyone to try and imply that the lawyers in this case played any role in setting this date.”

Prior to the setting of the judgement date, it emerged the delivery of the judgement had been postponed on two other occasions.

On both dates, the lawyers from both parties were informed and made to understand that one or two of the judges were not available on the particular date.

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