WILLY MUTUNGA: Ramadan and sighting of moon by our naked eyes

The issue of sighting the moon has engaged the Muslim faithful for many years now.

In Summary

•The Bohra Muslims have settled this issue by following the lunar calendar.

•I always ask them when they will start fasting and when they will celebrate Idd. I have always fasted and celebrated Idd with them.

Former Chief Justice Willy Mutunga
Former Chief Justice Willy Mutunga
Image: FILE

My Religious and Spiritual Journey

I was born into a family that practiced the African religion, the traditional Kamba religion.

I have been a Muslim since my conversion in 1981. Before then I had been on a religious and spiritual path that included the African Inland Church, and the Roman Catholic Church.

In between these paths, I never lost my anchor, the African religion. I have been to Temples, Synagogues, and Shrines in various countries.

I ultimately settled down on my spiritual journey as a man of all Faiths. I have good relations with atheists, agnostics, syncretists, and others. It is a position for which I have been glorified and vilified in equal measure.

I am also very committed to the struggle to build in Kenya a democratic secular state and society, a vision that our 2010 Constitution reflects in its theology.

I believe all religions preach great humanity, and have great values. It is us human beings that believe we own our Gods and that our Gods are the most superior of all.

It is us human beings that have been behind the religious wars. The African religions have never been involved in these wars.

Indeed, they have been tolerant and accommodating to other religions. Their values which are based on great humanity are not different from those of other religions.

 The Sighting of the Moon

The issue of sighting the moon has engaged the Muslim faithful for many years now.

Once when flying over the Sudanese airspace I saw the new crescent from my window seat.

Upon landing at JKIA, the debate about the sighting of the moon raged on. I told the then Chief Kadhi I had sighted the new crescent.

“Where did you sight it?” he asked. I told him from a plane, high up in the clouds. He told me that that was not a Kenyan moon. I engaged him in some scientific arguments and my interpretation of the various verses in the Holy Quran on the issue to no avail.

 The Bohra Muslims have settled this issue by following the lunar calendar.

I always ask them when they will start fasting and when they will celebrate Idd. I have always fasted and celebrated Idd with them.

I have taken the position that Islam is a global religion now, and embracing science and technology as our sisters and brothers, the Bohra Muslims have done, makes the utmost sense.

I have been told that the Bohra Muslims are Shia and that the Sunnis frown upon their practice. I know such differences have their consequences.

Matters of Faith are very important to us human beings, but as long we keep on either playing or owning Allah/God (who has no partners) our wars will never end.

Religions will never co-exist peacefully. Our faith in God will eventually be affected and the young generations may end up missing out on the great values of our many religions.

 The Current Dispute

Professor Kithure Kindiki, the Cabinet Secretary for Interior Security, has gazetted Id-ul-Fitr to be celebrated on April 21, 2023.

He is rightly criticized for not seeking the participation of the Muslims in his decision. Knowing that this debate has existed year in and year out, and for many decades, it would have been wise for the Cabinet Secretary to seek such participation.

Participation of the people in all societal, including religious matters, is decreed by Article 10 of the Constitution. I must add that I do not believe that he would have gotten a consensus from us Muslims on the issue.

Divisions on the issue are still rampant. However, this was no reason for the Cabinet Secretary to subvert the Constitution.

Professor Kindiki is criticized for gazetting the holiday when he should have known that the moon has to be sighted by our naked eye, and Chief Kadhi is the one to make that call.

I recall on many occasions when Chief Kadhi has made the call and he has been disobeyed by various sects of our Muslim community.

I believe that Saudia still has a great hold on what happens here over this issue. I know there are Muslims who wait until Saudia says they have sighted “their” moon and they then comply.

Saudia’s interpretation of the relevant verses (seeing the moon by the naked eye and the issue of deciding the issue on the basis of calculation) has been accepted by some sects and denounced by others.

One may wonder if a great global religion such as Islam should be enslaved by interpretations of the Holy Quran by Saudia and other Gulf states.

In all fairness to these Gulf states, I do not know whether they are aware of these conflicts in Kenya and whether they think a consensus on the issue is long overdue. It is, of course, common knowledge such religious rifts exist among these states.

 What is to be done?

 I strongly believe the various Muslim sects in Kenya should have this discussion and agree once and for all on a solution.

If this is not done I see a situation where the dispute will never end and it will continue to weaken the Muslim community in Kenya.

I personally believe the path taken by the Bohra Muslims has the potential to be a solution.

Since invariably the decision to gazette has in the past been made by ministers who are Christians this could also create religious tensions.

The Minister may in future endorse the Bohra Muslim position by relying on Article 8 of the Constitution that decrees Kenya has no state religion and create divisions among the Muslims.

 I believe also this debate should happen between Muslims in a peaceful fashion. I know there is a Fatwa Council in Kenya. I do not know whether they have the power to declare Fatwas on Muslims if they had this discussion.

Well, I hope my write-up has not put me under the jurisdiction of the Council.

In the event it does, I will wait for the Council’s summons and our impending debate on both issues of Fatwas and the sighting of the moon.

* Willy Mutunga, Chief Justice & President of the Supreme Court, 2011-2016

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