- When I was Chief Justice, this issue came up when a Muslim woman applied to the Judicial Service Commission (JSC) for a position of a Kadhi in one of the positions we had advertised.
- She did not meet the basic qualifications (being a woman was not one of them) and consequently, she was not shortlisted.
My friend and fellow Muslim, Honourable Duale, the Cabinet Secretary for Defence, recently resurrected the debate on the issue of women Kadhis in our judicial system.
In his view, Chief Kadhi should not be a woman. And he holds the same view about women as Kadhis in Kadhi courts.
When I was Chief Justice, this issue came up when a Muslim woman applied to the Judicial Service Commission (JSC) for a position of a Kadhi in one of the positions we had advertised.
She did not meet the basic qualifications (being a woman was not one of them) and consequently, she was not shortlisted.
The Supreme Council of Muslims (SUPKEM) treated the issue of a Muslim woman applying to be a Kadhi very seriously and did not waste time before they showed up in the Chief Justice’s Chambers to express their opinion on the matter.
Their opinion was simple and direct. The JSC should never consider any application from any Muslim woman who applied for the position of a Kadhi. I was told Sharia does not allow it.
Rather than debate, SUPKEM I decided to talk to Chief Kadhi about it.
SUPKEM took the Sunni position on the issue.
I talked to the Shia about it. I was not able to talk to Almaddhiya about it.
The Shia has no objection to women serving as Kadhis. I asked Chief Kadhi to convene the various sects to discuss this issue to avoid disputes among the Muslim community.
He was to seek a consensus on the matter. I also suggested to Chief Kadhi that he could visit Sudan, Malaysia, Indonesia, and other Muslim countries that had no issue with women serving as Kadhis and seek their wisdom and guidance.
I also talked to a few Muslim women who are practising Advocates to find out if they would be interested to apply to serve as Kadhis.
None of the women I talked to seemed willing to consider this proposition.
I left the issue in the safe hands of Chief Kadhi. Sadly, by the time I retired, I had not heard from Chief Kadhi.
My Spiritual Journey
My own spiritual journey has made me realize how important matters of Faith are.
My views on the issue are in the public domain for those who followed my interview with both the JSC and Parliament when I applied to be Chief Justice and President of the Supreme Court. I believe both interviews can be found on YouTube.
I was born into a family that practised the traditional Kamba religion.
I know how to pour libations to my ancestors for protection.
I was also a member of the Africa Inland Church, joining when it was called Africa Inland Mission.
I was baptized in that Church. I have also been a Roman Catholic, baptized and confirmed.
I converted to Islam in 1981 because I was married to a Muslim woman and I wanted my children brought up as Muslims.
I was also attracted to Islam because of two reasons: Jesus was not the son of Allah (indeed he and his mother, Maryam, are prophets in Islam) and Allah has no partners.
The fact that I could talk and pray to Allah directly resonated with me.
In my life, I have been in all houses of Worship including Shrines, Temples, and Synagogues.
I have been very critical of religious divisions and their alliances with various political leaderships.
I seek the Almighty God, including the traditional ones, where I can get her/him.
The Vision of 2010 Constitution
Rarely do we ask ourselves when we take our Oaths of Office why the Holy Bible, Quran, or any other Holy book is in unity and unanimity with the Constitution.
Indeed, at times those who are sworn into office hold both the Constitution and the Holy Books.
In my view, our Constitution has a vision that we can export to the rest of the world.
When we read the Preamble (acknowledging the supremacy of the Almighty God of all Creation) and declare we are proud of our religious diversity there is a vision of religious co-existence in our Motherland.
Article 8 states clearly that there is no state religion.
Article 10 clearly decrees the national values and principles of governance. Specific ones include inclusiveness, equity, equality, human dignity, non-discrimination, and protection of the marginalized. Women are implicated in all these values.
Article 27 (4) decrees that the state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Article 32 (1) decrees that every person has the right to freedom of conscience, religion, thought, belief, and opinion. Article 32 (4) decrees that a person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.
Article 32 is the one that embraces the totality of secularism: traditional religions, devil worshippers, atheists, agnostics, humanists, and the worship of many Faiths (Syncretism).
Without a doubt the vision of the 2010 Constitution is for a democratic secular Kenyan state and society
Kadhi Courts are established under Article 170. Sub-Article (5) in my view makes it clear that Muslims can agitate their disputes in other courts if they do not submit to the jurisdiction of the Kadhi’s courts.
Indeed, in matrimonial property issues Muslim women divorced by rich Muslim husbands find justice in the High Court.
Without a doubt, the vision of the 2010 Constitution is for a democratic secular Kenyan state and society. If we achieve this vision we will be a country to be emulated by others in the world.
We will be a beacon of peace, religious tolerance, and religious co-existence, and a country where freedom of worship is upheld, protected, and respected. Which other country in the world can claim to be envisioning such a society and state?
Turning to the Matter of Women Kadhis
Simply put, I do not believe the JSC, reading Article 27, the Articles quoted here including Article 259 (which decrees how the Constitution is to be interpreted) would allow a Muslim woman who applies and qualifies to serve as Kadhi, to be discriminated on the basis of sex.
The JSC would protect her rights under Article 10. Honourable Duale and others will disagre
Well, I believe the Supreme Court will eventually have the last word on the issue.
* Willy Mutunga, Chief Justice & President of the Supreme Court, 2011-2016