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The route Kadhi’s Courts have travelled justifies their presence in the Constitution

The rivalry between Islam and Christianity in Kenya is older than this country. By 100 AD, Arabs fleeing political persecution in Arabia had begun settling in the East African Coast. Historians record that these Arabs were accepted by the local people but lived apart from them.

This community of Arabs created centres along the coast where they settled and engaged in the thriving Indian Ocean trade in gold, spices, cowry shells, porcelain and silk. Many married local women and started families. These settlements and families formed the nucleus of the Islamic evangelism. By the time Muhammad Ibn Abdullah Ibn Battuta, the famous Arab traveller, visited the East African coast in 1331, he observed that all the people in the towns he visited were devout Muslims.

The government along this region remained those of the African tribes who had settled at the coast. These Africans were mainly Cushites who had travelled from the Nile Valley and Bantus who had come from the south. They practised their own traditional religions and governed themselves by their tribal laws. It was not until the entry of the Portuguese that an attempt was made to place the East Coast under one central command.

Vasco da Gama invaded the coast in 1502 and took over the town of Kilwa. He arrested and detained Sultan Ibrahim and forced him to swear allegiance to the King of Portugal. In 1505, yet another Portuguese traveller Fransisco d’Almeida, came with more soldiers and conquered Mombasa and the rest of the East Coast. By 1509, Portugal controlled the region.

The Portuguese established military garrisons that were ruled by the Viceroy at Goa. They created their separate communities, built churches and invited missionaries to convert the locals. But the experience of the coast with Christianity was unpleasant. The areas were already largely Islamic. The Portuguese on their part had been too aggressive in their conquest and had pillaged and plundered many towns they invaded. The historians record that the Portuguese burned probably some of the best Afro-Arab architecture down.

This Portuguese administration was viewed not just as foreign but also most importantly, Christian. In many ways, the Portuguese were avenging their experience under the Arabs in 700 AD. At that time, Muslim Arabs from North Africa had invaded the Iberian Peninsula (as Portugal and Spain were then known) and persecuted Portuguese Christians forcing many to accept Islam. The struggle to force Muslims out of Christian Europe had taken 500 years till the late 1400s.

To rescue themselves from the dictatorship of Portuguese, many of the Muslim rulers along the coast turned to Turkey, and particularly one Turkish pirate called Amir Ali Bey. He had visited many of the towns between Mogadishu and Mombasa telling the Muslims that the Sultan of Turkey would help them in a holy war against the Christian Portuguese. Most of the local Sultan, apart from the Sultan of Malindi, welcomed him and in 1588, he came to the coast in five ships and took over the entire coast.

When the Sultan of Pemba refused to join Ali Bey, his subjects rebelled, disposed him and killed all the Portuguese on the island. Ali Bey established his headquarters in Mombasa. Ali Bey could not hold the territory together. He was soon driven away by the Portuguese.

The wars were vicious and bloody. For instance, the Portuguese enrolled the help of the army of Zimba, which is said to have invaded towns and slaughtered everyone on sight. Many towns are recorded as having been left almost deserted after encounters with Zimba.

After the Turks failed at their attempt to rescue the East Coast people, the local Sultans now turned to Oman. The Sultan of Oman had himself fought the Portuguese at home to regain Muscat, which the Portuguese had captured and ruled. In 1696, the Sultan, Said Ibn Sultan, sailed to Mombasa with 3,000 men and laid siege on Fort Jesus. After a 33 month siege, he captured Fort Jesus.

The capture of Fort Jesus marked the beginning of a new era at the East African Coast. It laid the foundation on the essential character of this region that defines it till today. The coastal people had hated the Portuguese and rejected everything they brought, from their dressing, architecture, traditions and Christianity. The entry of the Sultan of Oman rekindled the afro-arabic character of the region and solidified Islam as the most influential region in the area.

The Establishment of Islamic and Christian rule at the East Coast

When he took control of the East Coast, the Sultan of Oman began setting up an Islamic system of administration in the region. Through political strife between the Oman and the local Sultans, the foreigners established an administration that put the local Sultans under a governor called a wali. Though previously religion had little influence on the government of the East Coast, the coming of the Omanis introduced an Islamic based administrative system.

At the same time however, Christianity was taking a foothold in the region. In 1772, Britain outlawed slavery in its country and later on forbade any of its subjects from dealing in slaves. It then initiated a campaign to convince other countries to follow suit. Through anti-slavery treaties, Britain agreed with various countries to outlaw slavery and that the British Navy could board ships from these nations and arrest slave traders.

This fight against slavery brought in Christianity through missionaries. It also brought to the East Coast a Christian based administration. In order to punish slave traders who were arrested in the sea, Britain had to establish courts along the slave routes. These courts were naval in nature and administered a Christian based British law.

A dichotomous way of life slowly took route at the East Coast. On the one hand, there was the Sultan of Oman who was establishing an Islamic based system of administration from his country. On the other, there was the British who were establishing a Christian based system of administration from their country. And at the same time there existed centuries old following of Islam and now a new evangelism of Christianity among freed slaves.

In 1822, the British signed a treaty with the rulers of Oman allowing them to establish an admiralty jurisdiction at Zanzibar and elsewhere in the East Coast. To enforce this jurisdiction, Britain passed laws at home to establish courts in these regions to punish slave traders. These laws gave power to the admiralty courts to try any persons subject to anti-slavery treaty signed with the various nations. But this new British system created conflict since the Omani rulers had their own system of courts in the region.

The Islamic administration was based on two courts. There were the Liwali and Mudir courts that enforced general civil and criminal law and then there were Kadhi’s courts that dealt with matters relating to personal status. The British admiralty courts were slowly extending their jurisdiction to deal with civil and criminal cases affecting British subjects who resided in these regions. What was to be done when a “mixed” case occurred between a British subject and a subject of the Sultan?

The two administrations grappled with this dichotomy through various agreements. The first was the Convention of Commerce in 1839 which preserved jurisdiction over British subjects to British courts. The Sultan retained control over his subjects. These vague agreements continued until 1895 when Britain declared a protectorate over British East Africa.

Recognition of Kadhi’s courts by British Administration

The establishment of the protectorate over what came to be known as Kenya was preceded by the creation of an independent Sultanate in Zanzibar. In the mid-1800s Seyyid Said, the Sultan of Oman, died and his two sons were fighting over the inheritance. After an arbitration done by the British Governor-General of India, it was agreed that one son would take Zanzibar. Zanzibar was also declared independent from Oman.

By the time the partition of Africa started in Berlin in 1885, The Sultan of Zanzibar was recognized as the sovereign ruler of Zanzibar, Pemba, Lamu and Mafia and the coastal strip with “an internal depth of 10 nautical miles measured into the interior from high water mark”. Great Britain and Germany had signed a treaty in 1886 recognising this sovereignty. They had also agreed on the boundary between Kenya and Tanzania which exists till today.

The establishment of the protectorate had also been preceded by the coming of the Imperial British East Africa Company.  Incorporated for purposes of extending British trade and given a Royal Charter by the British Monarch, the company came and set up base at the coast. It hoped to open up East Africa to British commerce and civilization.

In May 1887, the company negotiated and signed with the Sultan of Zanzibar a Provisional Concession Agreement. By this agreement, the Sultan gave the company all the power he possessed on the 10 mile strip, to carry out those powers in the Sultan’s name and subject to his sovereign rights. This agreement was renewed in October 1888 after the Royal Charter was granted.

Under the agreement, the Company could appoint administrators in the regions who could make laws and operate courts. In respect to the subjects of the Sultan, the company would act as the Wazir of the Sultan and would administer following the Sharia. The company’s charter also allowed it to explore the mainland.

Over several years, the company signed treaties with chiefs in the mainland, giving it control over the territory. But the interests of the British government over the same regions were also growing. Government now wanted to take control of the territories given to it at the Berlin Conference.

So on August 4, 1890, the British government passed the Foreign Jurisdiction Act that gave it power to establish a legal system of government over foreign lands under rule of the British crown. With this power, the government, for a negotiated price, took over the assets of the Imperial British East African Company. As the company withdrew from the 10 mile coastal strip, Britain declared the area a British protectorate.

The reasoning of Britain was that the company had welded together the 10 mile coastal strip belonging to the Sultan with the interior in such a way that the two could no longer be divided. But during the transfer of authority from the company to the British government, Sir Lloyd Mathews, the Wazir of the Sultan, proclaimed: “I have come here today by order of our lord, Seyyid Hamed bin Thwain, to inform you that the company has retired from the administration of the territory, and the great English government will succeed it, and Mr. Hardinge, the Consul-General at Zanzibar, will be the head of the new and administration, and will issue all orders in the territory under the sovereign of His Highness. And all affairs connected with the faith of Islam will be conducted to the honour and benefit of religion, and all ancient customs will be allowed to continue, and his wish is that everything should be done in accordance with justice and law.”

This became the first assurance to Muslims in Kenya that although Islam was losing administrative control in the region to Christianity, matters concerning religion would be respected and protected. But equally important is that the sovereignty of the Sultan of Zanzibar remained.

In 1920, when the British declared Kenya as their colony, it excluded from the Kenya Annexation Order in Council all the dominions of the Sultan. Instead, it passed a separate order, the Kenya Protectorate Order in Council, designating the 10 mile coastal strip as a protectorate. So, the rest of Kenya was now part of the British Empire but the coastal strip remained part of the Sultanate of Zanzibar.

Islam and Independent Kenya

The legal and religious dichotomy at the 10 mile coastal strip became pronounced under the colony. Great Britain had given assurance that it would protect the subjects of the Sultan, his sovereignty and their religion. As it set up a British system of government at the coast and the rest of Kenya, it protected the Sultan’s system of government over the Muslims.

But there was need for the Sultan’s system to merge with the general legal system. The colonial government therefore made law to set up the Sultan’s courts as courts of the land. By several court ordinances, the Liwali, Mudir and Kadhi’s courts were given official sanction. Though the supreme court of the colony sat appeal over them, in respect of the Kadhi’s courts decisions, the Supreme Court sat with the Chief Kadhi as an assessor to assist the court in its application of Muslim law.

The Kadhi’s courts, however, were fully religious. When the British Administration tried to force all subordinate courts to use British law of evidence in their proceedings, the Liwali’s and the Mudir’s employed the directive. But the Kadhi’s had to weigh whether in doing so, the British law would produce an un-Islamic decision. The Kadhi’s courts therefore developed a distinct identity in Kenya’s legal framework. Nevertheless, all Liwali’s, Mudir’s and Kadhi’s courts became recognised as part of the British Administration. They were all considered as part of the colonial civil service and were appointed and paid by the colonial administration. The Sultan was never consulted on any issue regarding their employment. Their decisions were also sanctioned by the authority of the administration.

When the Lancaster Constitutional Conferences were called in the 1960’s, the future of the 10 mile coastal strip became one of the thorny issues facing delegates. Initially, the British government took the position that questions regarding the coastal strip were outside the competence of the conference and these territories belonged to the Sultan of Zanzibar.

However, the Kenyan African political leaders wanted to discuss the independence of Kenya as a single territory. They argued that Africans had migrated to the coast and were now the majority in the region. They also argued that the coastal strip was the “front door” for the colony and Britain had administered the colony and protectorate as one region. The same could not now be divided.

The Sultan of Zanzibar, Sir Abdulla bin Khalifa, did not wish to insist on having the territory back, and in a statement he issued on March 12, 1962 at Lancaster House, the Sultan said: “The period of colonial rule in Africa is rapidly drawing to an end. The question, however, arises as to how in future the coastal strip is to be governed. His Highness’ main concern is not with abstract juridical questions or with his own legal rights although these, he is advised, are beyond dispute. A large number of the people living in and around the coastal strip are his subjects. His Highness’ sole concern is for the welfare of his people. Before he could agree to any arrangements for their future government, he would wish to be satisfied that their institutions and way of life would be fully safeguarded.”

The previous year, the Sultan and the British government had commissioned Sir James Robertson to do a report on the changes necessary in the concession agreement relating to the coastal strip in order to facilitate constitutional development in East Africa. Sir Robertson had reported that:

  1. There was a strong feeling at the coast that the needs of its people had received little attention from the government in Nairobi. There was little development that the British had done in that region.
  2. That if the coastal people had suffered under the British who had a reputation of fairness and justice, their fate would be insecure under a new set up in which inexperienced people from up-country regions would dominate the government.
  3. That in the British Administration there was a special cadre of courts, particularly the Kadhi’s courts. These courts had existed before the British Administration and to the Muslim people at the coast they were nationalistically, religiously and historically of “very great importance”.
  4. That the Muslim religion is not only a faith, it is a way of life, and one of the most cherished rights of a Muslim is the exercise of the Sharia law in all his personal affairs.

Sir Robertson also found out that although some of the people at the coast thought that the coastal strip should be made into an autonomous federal region under the East African Federation, there was universal support for joining the new Kenyan country subject to safeguards. The most essential of these safeguards was the Kadhi’s courts. Sir Robertson therefore proposed that Kadhi’s courts be integrated into the judicial system under the administration of the Chief Justice.

To secure these safeguards, the report said they should be part of Kenya’s independence constitution. Subsequently, a special conference called the Kenya Coastal Strip Conference was held between March and April 1962. It came up with constitutional provisions that adopted the recommendations to Sir James Robertson. The conference was attended by, among others, Mzee Jomo Kenyatta, ex-President Moi, Ronald Ngala, Masinde Muliro, Robert Matano, Timothy Mboya and Mwanyumba.

Representatives of the coastal protectorate, the government of Zanzibar, the Kenya colonial government, the government of the United Kingdom and an observer from Uganda attended. It culminated assurances given by the Prime Minister of Kenya to the Prime Minister of Zanzibar regarding the protection of the Sultan’s subjects. An agreement was also entered into between Kenya, Zanzibar, the Sultan and the United Kingdom. The new constitution included special provisions for Kadhi’s courts. And in 1967, Kenya’s Parliament passed the Kadhi’s Courts Act establishing six Kadhi’s courts subordinate to the High Court of Kenya.

Kadhi’s courts therefore have come a long way. They are entrenched in our history and constitutional development. Their protection is one of the solemn undertakings that our forefathers exchanged in order to create Kenya as it exists today. These undertakings were issued in exchange for territory and sovereignty over that territory. It is doubtful whether their existence and constitutional protection can be open to negotiation.