Judge rejects fresh case on kadhi court

A high court judge has thrown out a fresh bid to declare kadhi’s courts illegal and to legislate on the right to life.

Mr Justice Mohammed Ibrahim instead referred the group of applicants under the auspices of Mombasa Pastors Fellowship to the Interim Independent Constitutional Dispute Resolutions Court.

The group had claimed that the Committee of Experts had failed to accommodate their views.

Sanctity of life

They had wanted the court to re-examine issues on the sanctity of life, the family, define the right to a sound family as that between a biological man and woman; separation of state and religion, the Kadhi’s court and provisions regarding citizenship and declare them contentious issues.

The petition had been filed by Bishop Joseph Kimani, Rev Musyoka Nzui and Ms Agnes Mbinya, who wanted certain sections of the Review Act, one of them dealing with the Kadhi’s courts, nullified.

The judge ruled that the High Court had no mandate to determine the case as an alternative authority had been created to deal with constitution review issues.

Courts, he noted, must reject any invitation to question or interpret the Constitution for itself.

“The High Court is established by the Constitution. How can I as a sitting judge question, disparage or sit over the judgment of the very Constitution that established it?” he asked.

The Council of Imams and Preachers of Kenya, which had applied to be included in the case, was in celebration yesterday after the High Court in Mombasa struck out the suit.

Only last week, three judges sitting as the constitutional court caused uproar after declaring kadhi’s courts unconstitutional.

Justices Joseph Nyamu, Roseline Wendoh and Anyara Emukule also ruled that religious courts should not form part of the country’s Judiciary, declaring Kenya a secular state.

On Monday, Law Society of Kenya chairman Kenneth Akide said the High Court ruling in Mombasa had clearly shown that the Judiciary has no powers to declare any section of the Constitution to be unconstitutional.

“The Ruling puts the review process back on track and lays down the correct jurisprudence of constitution-making process in the country,” he said.

Mr Akide said the ruling had made it clear that the process of constitution-making was a preserve of the people and not courts.

“The High Court ruling has recognised the fact that courts cannot interfere in constitution-making and emphasised the fact that this process is the preserve of Parliament,” he said.

Also pending before the new election dispute court is a case by convicts seeking to be allowed to take part in the plebiscite.

Inmates from Mombasa’s Shimo La Tewa had moved to court saying the constitution bars them from voting in national and presidential elections and not the referendum.

Their exclusion from the exercise, they say, is unconstitutional and amounts to a violation of their rights.

Referendum question

The second case, which is before the High Court, is one filed by two voters challenging the referendum question as framed by the Interim Independent Electoral Commission (IIEC).

The two, namely Mr Kamau Daniel Chege and Mr Cosmus Kipkemoi Ng’eno, want the court to stop the referendum until their case is heard and determined.

They say that Section 37(3) of the Constitution of Kenya Review Act 2008 violates their right of expression. They said the mode of voting, in which one has to say “Yes” or “No” is constraining as one might agree with some provisions of the draft and disagree with others.

The two said being required to agree or disagree with the entire document left them with limited options.

Mr Justice Ibrahim instead ruled that the petitioners were at liberty to pursue their complaints elsewhere.

The three under the auspices of the Mombasa Pastors Fellowship filed the suit against the Attorney-General, the Committee of Experts (CoE) and the chairman of the Parliamentary Select Committee (PSC). They wanted the court to declare Sections 2, 23, 24, 30, 31, 32 and 33 of the Constitution of Kenya Review 2008 Act unconstitutional, null and void.

On Monday, the court held that it had no jurisdiction to issue any order in respect of the suit filed last year as it had already been overtaken by events with the establishment of the Interim Independent Constitutional Dispute Resolutions Court.

“No useful purpose shall be served by this petition pending in the High Court registry and it must therefore be terminated,” Justice Ibrahim said.

On Friday, nominated MP Sheikh Dor, who is also CIPK’s secretary-general and Sheikh Hassan Omar who is the treasurer through Mr Mohammed Balala sought for leave to be enjoined in the petition saying it was of great public interest, and their inclusion in it as interested parties would assist the court arrive at a wise decision.

But the petitioners opposed the application and asked the court to refer the case to the Dispute Resolution Court, which, they said, had the jurisdiction to hear matters arising from the Constitutional review process.

Mr Balala, however, noted the petitioners had not shown under what law they were opposing his application to come on record orally, adding that the only order the court can make was to strike out the entire suit.

Dispute resolution

In his ruling, Justice Ibrahim said that with the establishment of the dispute resolution court and subsequent gazettement, appointment and swearing of the judges, it was only right for the High Court to withdraw from the proceedings.

“The High Court had no jurisdiction to deal with any matter touching on the Constitutional Review Process, neither can it direct that it be referred to the constitutional dispute resolution court. To grant any order sought would be unconstitutional,” he said.