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The Kenya Constitution: Can a Constitution be Unconstitutional?
Can a constitution be declared unconstitutional? This is the question occupying Kenyans since three judges of the High Court of Kenya ruled that the Muslim Kadhi Courts are unconstitutional although they have been part of the Kenya constitution since independence in 1963.
Almost all the prominent lawyers, led by the Minister for Lands Mr. James Orengo and former Member of Parliament for Kikuyu Mr. Paul Muite, jumped up to state that the ruling was out of order and malicious. Judges, Mr. Orengo said, have since the time of President Jomo Kenyatta, been used do defeat change. Now they are being used to defeat efforts by Kenyan to get a new constitution. (A draft constitution which also includes the contentious Kadhi Courts is due to go for referendum on August 4, 2010).
But were the judges out of order? Obviously not. A good constitution follows natural law. And the natural law was well-captured by the ancient Egyptians and clearly inscribed in a tablet by Moses in the 10 commandments. Anything that goes against natural law is unconstitutional.
Customary law as it was applied during colonial period when each cultural group was allowed to have their own customary courts to handle same issues as the Kadhi Courts do – inheritance, marriage and divorce and so on- was quite Ok. But when these customary law courts were done away with, the Kadhi Courts should have been done away with too. Similarly Christian marriage should have been delinked from the government.
In as much as these items are included in the constitution, they are unconstitutional. And the judges, very patriotic judges who obviously love to see justice, have done a good job by pointing out this anomaly. Everyone in Kenya should have equal access to similar justice system. Everything else that goes contrary is unconstitutional.
And these unconstitutional appendages are among the reasons I am voting “No” for the draft constitution.
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well done!nice job!