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Kenya judges rule Islamic courts unconstitutional

A Kenyan constitutional court ruled [judgment, PDF] Monday that inclusion of Islamic "Kadhi" courts [official website] in the nation's current constitution [text, PDF] is illegal and discriminatory. The Kadhi court system, which elevates Islam over the country's other religions, was deemed unconstitutional because it does not coincide with Kenya's secular mandate. The court also held that supporting Kadhi courts with public funds is a form of segregation as it promotes the development of one religion over another. The three-judge panel did not determine whether the Islamic courts should be included in the nation's new constitution, which will be put to a referendum on August 4. Kenyan Attorney General Amos Wako [official profile] has moved to challenge the court's decision, calling the ruling itself unconstitutional. The Kadhi courts, which were created for the use of Muslims in areas of family law such as inheritance, marriage, divorce, and personal status, have become a contentious issue between political and religious leaders as Kenya's struggle to develop a new constitution reaches its final stages.

Earlier this month, Wako published [JURIST report] the country's draft constitution [text, PDF], which proposes more balance of power in the government. President Mwai Kibaki [official profile], Prime Minister Raila Odinga, and Vice President Kalonzo Musyoka have all supported the proposed constitution [Daily Nation report] and have urged citizens to approve it in the public referendum. Despite the government leaders' widespread calls for cooperation and support, the proposed constitution still faces criticism, particularly from Kenyan religious figures who oppose [Daily Nation report] the draft's position on abortion, marriage, and divorce. The president's Cabinet members have encouraged the religious leaders to support the draft constitution and then pursue their goals through the political process [AP report] after the constitution is ratified. The draft includes several significant checks on presidential authority, including a requirement that presidential appointees face parliamentary confirmation and the removal of presidential appointment of judges. Members of Parliament receiving Cabinet positions will also have to relinquish their legislative seats. The changes are intended to reduce the widespread injustice throughout the country, and specifically address issues that led to violence following the 2007 presidential elections [JURIST news archive] where tens of thousands of protesters took to Kenya's streets accusing Kibaki of election fraud after early opinion polls suggested rival Odinga was in the lead.

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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