The secular state premise and the Kadhi court debate during Kenya’s constitutional review moment

Abstract

The entrenchment of the Kadhi court in the 2010 Constitution, during the constitutional moment in Kenya resulted into religious tensions to a level rarely witnessed before in the politics of the country. The purpose of this study was to find out how the secular state premise had been seized upon to argue against the entrenchment of the Kadhi court in the 2010 Constitution of Kenya. The problem of the study was to establish the extent to which the argument against the entrenchment of Kadhi court in the constitution on the secular state premise conformed to the core concern of the secular state of Kenya as it grappled with religious pluralism among its diverse population. The problem entailed an investigation of the phenomena of state secularism in the context of Kenya, as well as examining the secular state premise as it was used to oppose the entrenchment of the Kadhi court in the 2010 Constitution. The study maintained in this respect that the secular state as a phenomenon applied differently in different national contexts, and that to oppose the entrenchment of Kadhi court in the 2010 Constitution of Kenya on grounds of strict separation of religion and state, as did a section of the Church, did not reflect the nation of Kenya. The study was anchored on the socio-cultural evolution, critical and conflict theories as they related to the public policy of state on religion in the modern nation state. The study recognized in this respect that the secular state premise could be used to enhance political control by majority Christians over the minority Muslims in Kenya. The study, while employing a qualitative compressed ethnographic design, carried out critical analysis of data from the defunct Constitutional Review Commission of Kenya (CRCK) on the issue of Kadhi court. This was followed by interviews and questionnaires administered to the key informants from the Christian and Muslim communities in Kenya. It was clear in the study that the understanding of secular state phenomenon in Kenya did not necessarily exclude religion, but instead constituted a rather complex mediation between religion and the state. The study further established that the entrenchment of the kadhi court in the 2010 Constitution, much as it introduced religious import in the Constitution, left the secular premise intact