JESSE KAMAU & 25 others v ATTORNEY GENERAL [2010] eKLR

Key Facts

Issues

• The Applicants contended that the entrenchment of Kadhis' Courts is part of an Islamic agenda to spread Sharia law in Kenya, threatening the secular state and national unity as outlined in the 'Abuja Declaration' and similar documents.
• The Applicants claimed that Section 66 of the Constitution discriminates against non-Muslims by privileging Islamic law and allocating judicial powers solely to Muslim Kadhis, violating the constitutional prohibition on creed-based discrimination.
• The Applicants argued that Kenya's multi-religious and multi-cultural nature is offended by Section 66, which entrenches a religious court system for Muslims alone, potentially undermining national unity and equality among faiths.
• The Applicants contended that Section 66 of the Kenya Constitution, which establishes Kadhis' Courts, is unconstitutional as it contradicts the provisions and spirit of Chapter 5 and discriminates against them. The court was asked to determine if this section is inconsistent with the Constitution's principles of equality and non-discrimination.
• The Applicants claimed the constitutional review process leading to the inclusion of Kadhis' Courts in the draft Constitution was biased, partisan, and excluded equitable representation of non-Muslim communities.
• The Applicants challenged the extension of Kadhis' Courts' jurisdiction beyond the former Protectorate, arguing it is oppressive and discriminatory, violating constitutional provisions on territorial limits.
• The Applicants argued that the personal laws envisioned in Section 66 should not override or qualify the Bill of Rights, as they conflict with constitutional guarantees of equality and non-discrimination.
• The Applicants sought a declaration that Sections 197-200 of the 'Zero Draft' Constitution are inconsistent with Chapter 2 Section 9 and unconstitutional, as they propose expanding Kadhis' Courts' jurisdiction and authority.
• The Applicants contended that Section 66 violates the doctrine of separation of state and religion by entrenching Islamic law in the Constitution, which they asserted undermines the secular state principle and constitutional neutrality.
• The Applicants raised the question of whether there is any valid legal or constitutional basis for the inclusion of Kadhis' Courts in the Constitution, which they claim is not justified and should not be entrenched.
• The Applicants argued that using public funds to maintain Kadhis' Courts amounts to segregation and preferential treatment for Islam, violating the constitutional principle of equal treatment of all religions.
• The Applicants asserted that the Kadhis' Courts Act is ultra vires the Constitution as it extends the jurisdiction of Kadhis' Courts beyond the former Protectorate without proper constitutional authority.

Holdings

• Provisions similar to Section 66 in other constitutional drafts are not ripe for determination and are speculative.
• The entrenchment of Kadhis' Courts in the Constitution elevates Islam above other religions, violating sections 78 and 82 and being discriminatory.
• The purported extension of Kadhis' Courts via the Kadhis' Courts Act beyond the former Protectorate areas is unconstitutional and null and void due to inconsistency with Section 66(4).
• Funding of Kadhis' Courts from public coffers is discriminatory, sectarian, and violates the separation of state and religion (secularism), conflicting with sections 70, 78, and 82.
• Sections 66 and 82 are inconsistent with each other. Section 66 is superfluous but cannot be expunged by the court; this remains a matter for Parliament and the citizenry.
• Prayers 9, 10, 11, 12, 14, and 15 regarding the Bomas Zero Draft and Islamic Agenda are moot and speculative, not justiciable.
• Section 66 of the Constitution is inconsistent with sections 65 and 82, and its effect is discriminatory against the Applicants and other non-Muslim Kenyans.
• The extension of Kadhis' Courts beyond the 10-mile coastal strip of the former Protectorate is unconstitutional.
• Religious courts should not form part of the judiciary in the Constitution as they offend the doctrine of separation of state and religion.

Remedies

• The court issued a declaration that any form of religious courts should not be part of the judiciary in Kenya's Constitution, as they offend the doctrine of separation of state and religion. This aligns with constitutional values of secularism and equality.
• The court declared that Section 66 of the Constitution, which establishes Kadhis' Courts, is inconsistent with Sections 65 and 82 of the Constitution. It found that Section 66 discriminates against the applicants by elevating Islam over other religions and violating the secular nature of the state as per Sections 70, 78, and 82.
• The court held that entrenching Kadhis' Courts in the Constitution preferentially elevates the Islamic religion above other religions, violating Section 82's non-discrimination clause. This was found to undermine the secular state and infringe on the applicants' constitutional rights.
• The court ruled that the Kadhis' Courts Act's extension of jurisdiction beyond the former Protectorate (10-mile coastal strip) contravenes Section 66(4) of the Constitution and is therefore void to the extent of inconsistency. This expansion was deemed unconstitutional.
• The court found that financing Kadhis' Courts from public funds constitutes segregation, is sectarian, and violates the principle of separation of state and religion. This practice was deemed discriminatory against non-Muslims and contrary to constitutional principles of liberty and freedom of religion.

Legal Principles

• The judgment emphasizes the separation of powers between the judiciary, legislature, and executive, noting that constitutional amendments must be enacted by Parliament and not judicially altered.
• The principle of 'ut res magis valeat quam pereat' (a provision should be given effect rather than declared void) was considered but found inapplicable due to the clear constitutional language.
• The judgment underscores the rule of law by declaring that the Constitution's supremacy overrides any other law, and provisions inconsistent with it are void under Section 3.
• The court exercised judicial review to determine that parts of the Kadhis' Courts Act were unconstitutional, citing inconsistency with the Constitution's supremacy.
• The Literal Rule was used to interpret Section 66(4) of the Constitution, which explicitly restricted Kadhis' Courts to the former Protectorate.
• The Purposive Approach was applied to evaluate whether Section 66 advanced the values of a secular state, concluding it favored one religion over others.

Precedent Name

• KENYA BANKERS ASSOCIATION vs MINISTER FOR FINANCE & ANOTHER
• SOCITE UNITED & OTHERS vs MAURITIUS
• ANARITA KARIMI NJERU vs THE REPUBLIC
• ELK GROVE UNITED SCHOOL DISTRICT vs. MICHAEL A. NENDON ET AL.
• ENGEL vs. VITALE
• BHEWA & ANOTHER vs GOVERNMENT OF MAURITIUS
• ROYAL MEDIA vs TELKOM
• MATALINGA & Others vs Attorney – General
• GITHUNGURI vs REPUBLIC
• NGANGA vs KENYATTA UNIVERSITY COUNCIL & OTHERS
• BLACKBURN vs ATTORNEY-GENERAL
• BISHOP OF ROMAN CATHOLIC DIOCESE OF PORT LOUIS & OTHERS v. TENGUR & OTHERS

Cited Statute

• Kadhis' Courts Act, Chapter 11 of the Laws of Kenya, which established and extended the jurisdiction of Kadhis' Courts beyond the former Protectorate, is inconsistent with the Constitution and declared unconstitutional.
• Constitution of Kenya Amendment Act 1969 (No. 5 of 1969), which consolidated amendments to the Constitution, including provisions related to Kadhis' Courts.
• Constitution of Kenya Review Act, Chapter 3A of the Laws of Kenya, which established the Commission for constitutional review and influenced the inclusion of Kadhis' Courts in the draft Constitution.

Judge Name

• R. V. P. Wendo
• J. G. Nyamu
• M. J. Anyara Emukule

Passage Text

• The financial maintenance and support of the Kadhis' Courts from public coffers amounts to segregation, is sectarian, discriminatory and unjust as against the Applicants and others and amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion.
• The establishment of Kadhis' courts outside the protectorate violates Section 66(4) of the Constitution. ... The Kadhis' courts were intended to have territorial application within the Protectorate as defined.
• We declare that section 66 does not advance the values which characterize a secular state. ... To the extent that Section 66 sought to give to religious principles and commandments the force and character of law, religion stepped out of its own sphere and encroached on that of law-making.