Justice Kariuki Erred On His Khadhi’s Court Ruling
By Najar Nyakio Munyinyi,
To the issue that the High Court made a ruling that the Kadhi’s Court cannot adjudicate on Child Custody cases – specifically children of Muslim Parents and therefore. Justice Kariuki is meddling in things he does not know about, and is showering in his vain and hurtful ignorance. Do we have Muslim Lawyers here ?
Education is stressed in Islam, in a way that it’s not in most other societies and it’s not 8-4-4 education that we’re talking about, it’s about wholesome education.
What most people do not know, is that the Kadhi’s Court is an autonomous government institution with its provision clearly stipulated in the Constitution. “Kadhi’s Courts are established under Article 170 of the Constitution. Their jurisdiction though, is strictly to the determination of questions on Muslim Law relating to:- Family Law. Marriage, divorce, children, inheritance and those proceedings in which all the parties profess the Islamic Faith..”
Kadhi’s Court is based on Islamic Fiqh (Jurisprudence) and to learn Fiqh one has to study for many years the various branches of the Islamic religion. It is harder and takes longer than any conventional law degree in Kenya. In a changing world, Scholars of this branch of knowledge contextualize Fiqh, conduct research upon research of the other fields of Islamic science and contemporary culture of the society to make a ruling. It is not something a conventional judge of the High Court can just wake up one day and make a rush ruling that is detrimental to the child and the society at large.
As stated, the Kadhi’s Court has everything to do with Sharia Law. Christians are free to go to the High Court to have their cases arbitrated, but on what grounds would two Christians approach the Kadhi’s court to have a case heard? Similarly, on what grounds would two Muslims approach the High Court when according to the Constitution there is a space which has been created for their matter to be arbitrated according to their culture and belief.?
Islam has a set of Family Laws that follow a strict guideline, and it is what holds Muslims together – these matters are not ‘paid for’ and argued over as they do in “Court TV” in a Western World – as opposed to the High Court, where hiring a well known lawyer to debate your case based on lies would require few million shillings which has no much space for substance and truth. Throw in the time-factor, because cases that go through High Courts are heard for many years .Khadhi Court rulings are faster, because the backlog is not as long, and cases are heard and dealt with urgently.
Now, according to Justice Kariuki and himself alone, without him consulting
and sitting down with Muslim Scholars and other wise stakeholders, he has declared in a speedy solo voice that “….the Kadhi’s Court can’t adjudicate Child Custody Cases…”. What I find dangerous in his ruling is that he runs roughshod over not just the culture of Islam, but all of Kenya’s diverse cultures by stating that; “… the Children’s Act 2001 relates to all children irrespective of their religious affiliations and/or cultural backgrounds…”. This is wrong and;
• Muslim Elders and scholars should look into this archaic 18 year old
inconsiderate law, challenge, rewrite and take before Parliament a new
• non-Muslim and other indigenous communities should discuss the relevance of culture, particularly when dealing with the sensitive issue of children, and how to apply laws regarding custody of the same children.
Cultures must be respected in regard to family life, for Kenyans are as
diverse as those huge rocks in Bondo, and this is both our strength and beauty as Kenyans. Our laws cannot ignore this neither should they try and force us into one mould.
The Children’s Court must take hard look at the culture of the child– the Children’s Court itself states that the Rights of the Child are paramount. Why then, would Justice Kariuki dismiss or overlook this factor? Why is he dissing a culture – for among Muslims and according to the Qur’an, there are specific ways that Child Custody Cases are dealt with, and it has absolutely nothing to do with the High Court whose laws are built upon English Foreign Colonial Laws – and how, according to Judge Kariuki does a Muslim Affair become the business of the High Court? Will they keep Qu’ran in the Courts, will they call upon Imams and Elders – a thing which is the duty of the Kadhi’s court and the reason it was established?
Unfortunately and despite their presence in every ‘children’s court
session’ SUPKEM does not cover Fiqh, as they are more of an “umbrella
body of all Muslim Organizations, societies, mosque communities and groups in Kenya”. Maybe at this juncture what Kenyan Muslims need to do is establish an independent people based non- governmental Fiqh Council,
made up of scholars that will interpret Muslim Law in a Kenyan society that is increasingly morphing into a western lifestyle, which in turn is
gradually turning to western foreign European laws.
Najar is an Environmental Consultant and a Social Commentator