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Separating the Church from State: The Kenyan High Court's Decision in Jesse Kamau and 25 Others v Attorney General (Judgment of 24 May 2010)

Published online by Cambridge University Press:  14 September 2011

Jamil Ddamulira Mujuzi
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Abstract

Section 66 of the 1963 Kenyan Constitution established the Kadhi's courts with the jurisdiction to determine “questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion”. 26 Christians petitioned the High Court and argued that section 66 was unconstitutional because it, inter alia, violated the principle of separation of Church and state. The court found in their favour and held that Kenya is a secular state, that section 66 violated the doctrine of separation of state and Church, and that it was discriminatory and contrary to section 82 of the constitution which prohibits discrimination. This note gives the facts of the case, the issues before the court and the court's decision. It also analyses the court's decision.

Type
Recent Developments
Information
Journal of African Law , Volume 55 , Issue 2 , October 2011 , pp. 314 - 319
Copyright
Copyright © School of Oriental and African Studies 2011

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References

1 Sec 170 of the new 2010 constitution substantially reproduces sec 66 of the 1963 constitution.

2 Kadhi's Courts Act, chap 11 of the Laws of Kenya.

3 Id, sec 4.

4 The exceptions are: (i) all witnesses called shall be heard without discrimination on grounds of religion, sex or otherwise; (ii) each issue of fact shall be decided upon an assessment of the credibility of all the evidence before the court and not upon the number of witnesses who have given evidence; and (iii) no finding, decree or order of the court shall be reversed or altered on appeal or revision on account of the application of the law or rules of evidence applicable in the High Court, unless such application has in fact occasioned a failure of justice.

5 Kadhi's Courts Act, sec 6.

6 Jesse Kamau and 25 Others v Attorney General [2010] KLR 1 (judgment of 24 May 2010) (Jesse Kamau).

7 Id at 4–5.

8 Id at 7. The applicants' counsel, Mrs Madahana, argued that “the inclusion of Kadhi's courts in the Constitution violates the doctrine of separation of Church and State, discriminates other religious faiths and is a threat to the secular nature of the State”: see id at 28.

9 Id at 17.

10 Id at 22, para (y).

11 Id at 42.

12 Id at 41.

13 Id at 43.

14 Sec 3 provides that the Constitution is the supreme law of Kenya and prevails over any other law which is inconsistent with it.

15 Jesse Kamau, above at note 6 at 43.

16 Id at 44.

17 Ibid.

18 Id at 46.

19 Id at 80.

20 Id at 85.

21 Id at 87.

22 Sec 7 of the Kenyan Constitution of 2010 expressly provides that Kenya shall not adopt a state religion.

23 The Constitution of Yemen (1994), for example, provides that “The Republic of Yemen is … an independent sovereign state” (art 1) but also provides in art 2 that “Islam is the religion of the state”. Art 1 of the Constitution of Qatar provides that “Qatar is an independent Arab state. Its religion is Islam and Shari'a law shall be a main source of its legislations. Its political system is democratic.” See also the Constitution of Kuwait (art 1 on sovereignty and art 2 on Islam as the state religion).

24 The Constitution of Yemen provides for a multiparty democracy (art 5) but also declares Islam to be the religion of the state (art 2); see also the Constitution of the Islamic Republic of Iran which declares Islam to be a state religion but also provides for multiparty elections (art 26).