Debate on selection of Kenya's Chief Kadhi

The death of Chief Kadhi Athman Hussein has revived debate on the appointment of the occupier of the seat and relevance of the colonial pact that merged the coastal strip to Kenya’s jurisdiction.

On October 5, 1963, Jomo Kenyatta, then Kenya’s prime minister, and former Zanzibar Prime Minister Mohamed Shamte agreed to allow Kadhi’s courts flourish at the coastal strip.

Other than the Kadhi’s courts that arbitrate Muslim personal law on marriage and inheritance, Kenyatta also agreed to promote Arabic among Muslims at the 10-mile coastal strip. He also accepted the condition that “administrative officers in predominantly Muslim areas should, so far as is reasonably practicable, profess the Muslim religion.”

Although all other conditions were ignored after independence, the place of the Kadhi’s Courts was guaranteed in the 2010 Constitution to arbitrate Muslims personal law, and marriage was guaranteed.

Yesterday, Mombasa lawyer Abubakar Yusuf said debate on Hussein’s successor is bound to heat up going by what happened before he was appointed Chief Kadhi.

“In law, the Chief Kadhi is appointed by the Judicial Service Commission (JSC), but in recent years there has been debate on whether we should stick to the 1963 pact between Kenyatta and Shamte,” he said.

He said that given that Islam has spread to other parts of the country, the appointment should be on merit, and the Deputy Chief Kadhi, regardless of where he comes from, should ascend to the seat.

The current Deputy Chief Kadhi of Kenya is Sukyan Omar. Unlike Hussein, who hailed from Lamu, Omar hails from the Northeast. Mr. Yusuf said he should automatically be appointed the Chief Kadhi.

“It should not really matter if the Chief Kadhi is a Somali, Maasai, or Turkana. We cannot hold on to the colonial agreement to deny qualified Muslims positions because of the region they come from,” he said.

However, Sheikh Juma Ngao said that the JSC should advertise the position and shortlist the candidates, and the interviews should be conducted publicly. “If JSC does not do this, we will meet them in court,” he said.

Ngao said the late Hussein was the first Chief Kadhi from outside of “one community or family that had occupied the seat since independence,” adding that at worst the post should be rotational.

Mr Yusuf and Ngao differ on qualification for the Chief Kadhi. Yusuf roots for a candidate grounded in both secular studies and Islamic law; Ngao said English proficiency should not be a condition. “The court deals with marital affairs and inheritance; mostly it’s about the interpretation of Shariah. It’s not a must for Chief Kadhi in Russia or Qatar to learn English; why in Kenya?” said Ngao.

Muslims for Human Rights (Muhuri), Mr Khelef Khalifa, said the next Chief Kadhi should be a person well conversant in both secular and shariah laws.

He said the recent Supreme Court ruling, which sought to approve children born out of wedlock to Muslim fathers to access wealth during inheritance, was a red flag for Islamic law.

“If we had well-versed Muslim lawyers with both secular and shariah knowledge before the honourable Court, they could have advised the court properly before it arrived at the judgement,” Khalifa observed. 

He said selection of a Chief Khadhi follows laid-down regulations that include applications to the JSC before shortlisting is done and called on leaders to stop politicising the process.

“The next chief kadhi must comprehensively understand contemporary, societal contexts and advancements rather than relying solely on historical precedents. The principles of ‘Ijtihad’ remain accessible and adaptable to the evolving challenges of the 21st century.

‘Ijtihad’ refers to the process of a qualified scholar accepting efforts to interpret or deduce legal rulings from the Holy Book, the Quran, and the Sunnah (prophetic tradition) when there is no clear, direct text.

According to Natasha Ali Errey, Chairperson of the Mombasa Law Society, the next Chief Kadhi should be a pious person of integrity, qualified and experienced in matters of Shariah. “He should also enjoy the goodwill of the Muslim community. It’s not important what region the person comes from,” said Ms Errey.

Sheikh Rishad Rajab said it should be someone of experience and humility who will continue with the legacy of the late Sheikh Hussein to unite the people and demystify the office of the Chief Kadhi. 

Kadhi’s courts are established under Article 170 of the Constitution, and their jurisdiction is limited to the determination of Muslim law relating to personal status, marriage, divorce, or inheritance in which all parties profess the Muslim religion and submit to the jurisdiction of the court.

Apart from the Chief Kadhi, who sits in Mombasa, and his deputy in Nairobi, there are 65 Kadhis spread across the country.

The new Chief Kadhi is to be recruited under the revised policy of the JSC scheme of service, a position now equated to that of a Chief Magistrate.

[By Philip Mwakio, Ishaq Jumbe and Patrick Beja]