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Kenya’s Constitution and the Church: David Opderbeck

Kenya’s Constitution and the Church 

 A wide range of Christian churches in Kenya have issued a joint statement opposing Kenya’s proposed new Constitution, which is being voted on in a referendum on August 5. They argue that the new Constitution would expand abortion rights, and they oppose provisions that would allow Muslims to use khadi courts “for matters such as law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”
 I claim no expertise in the dynamics of the Kenyan Constitutional process or in Kenyan culture. I have to confess, however, that the issue of khadi courts generally seems more difficult and subtle than the Kenyan Church opposition suggests. 
 Is it in the interests of religious liberty to require religious people to use government provided courts rather than also having access to the judicial system of their religion? Is a conflict between secular Western and Islamic views of justice inevitable in any democractic state with a Muslim population that desires to employ internal community / religious justice mechanisms? 

I also have to confess a worry that America’s religious-cultural wars have been exported to the Global South through the influence of American fundamentalism on Kenya’s evangelical Christian groups. At least one Kenyan religious leader and civil rights activist, Rev. Timothy Njoya, feels the same way. Watch the clip below from about 2:00 to about 7:00 to get a flavor for Njoya’s views. 

But then again, Njoya suggests that Kenya’s evangelical Christians should read Thomas Payne’s “The Age of Reason” — a strange choice to say the least — and makes some other outlandish claims. Moreover, it is not only Kenya’s evangelicals, but also the Catholic and Anglican Churches in Kenya, as well as Njoya’s own Presbyterian Church of East Africa, that oppose the new Constitution. 
And, if an amendment to the U.S. Constition were proposed that would allow abortion whenever it is “permitted by any other written law,” I would expect opposition from an equally wide range of Churches in the U.S., not only from fundamentalist groups. I’d be very curious to hear from Islamic law and religion scholars about their views on this dispute. I’d also be curious to hear from anyone with more knowledge than myself of Kenyan politics and history about whether the opposition of these Kenyan churches has deeper historical and cultural roots that overshadow the influence of American culture war politics. 
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posted August 9, 2010 at 7:51 am

We don’t really have to think to hard about Islamic Law to know how we’d feel, let’s just think about the Christian theonomic movement. There are (were) Christians in this country, that want a complete return to the biblical case law when a ‘large enough’ portion of the society becomes Christian. Guys like Bahnsen and Rushdoony. So, since a large portion of this country is already Christian, how would you feel if they got to set up a separate court system in which they enforced old testament case law? They could put homosexuals to death, put adulterers to death, etc. This is not a stretch, they are post-millenialists and believe that eventually the whole world will become, more or less, Christian and when the whole world is essentially Christian, whose law, other than God’s, would you want in place.
The only difference is that they are smart enough to know to not try to institute it until we have a truly Christian country, while the group in Kenya is trying to set it up as a separate judicial system in a pluralistic country.

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posted August 9, 2010 at 9:03 am

If I thought that moderate Muslims, or nominal Muslims, or even non-muslims living in rural areas or homogenized urban districts would have a real opportunity to opt out of Kadhi then I could understand supporting the constitution, I just don’t think that is the case. Below is an article by a woman who has lived in Turkey for a couple of decades. She deals with why she thinks banning something as simple as head coverings is not only an affront to religious liberty, but also absolutely necessary because of how the community enforces the cultural code on believers and non-believers alike.
From her article: “In these neighborhoods, women have indeed begun veiling only to escape harassment and violence. In the suburb of La Courneuve (France), 77 percent of veiled women report that they wear the veil to avoid the wrath of Islamic morality patrols.”
This is what happens with a cultural (no-legal) standard in the secular, first-world nation of France. What do you think the results are going to be when you codify it into the constitution in a developing nation like Kenya?
Same article, in secular Turkey: “Five years ago, the historically Jewish and Greek neighborhood of Balat, on the Golden Horn, was one in which many unveiled women could be seen. It is not anymore. Recently I visited a friend there who reluctantly suggested that I dress more modestly ? while in his apartment. His windows faced the street. He was concerned that his neighbors would call the police and report a prostitute in their midst.”
Here again, the veil isn’t codified, it is cultural, and yet this non-Muslim, who is visiting the home of a non-Muslim, is told that she might want to wear the veil while INSIDE HIS APARTMENT because neighbors might see and take action.

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posted August 9, 2010 at 11:44 am

India has a separate civil code for Muslims which occasionally throws up a controversial case involving divorce. I personally favor the reconciliation process that is required before a divorce can be granted in the Islamic system.
Also a Hindu movie star once converted in order to be able to marry his mistress without divorcing his wife.

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Matt Edwards

posted August 9, 2010 at 11:55 am

Thanks for posting this. I don’t have any answers, but you’ve given me something to think about for a while.

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kevin s.

posted August 9, 2010 at 5:17 pm

If this is an example of the extension of our culture wars, then it is evidence that our culture wars are worth fighting. We have every reason to believe the scenarios Robin delineates will come to pass, because they already do come to pass.
If you allow a separate religious court to dispense justice, that version of justice invariably defines regions. If any other religion were interested in doing so, they would meet strong opposition. Some on the left, here and abroad, have a special affinity for Islam as an overreaction to the conservative viewpoints. This is leading to strange and dangerous conclusions.

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posted August 9, 2010 at 6:49 pm

I’m not sure you need to bring American culture wars into the debate over khadi courts in Kenya. It seems like it makes more sense to look around at the African experience of Islamic courts. The extreme example is neighbouring Somalia which has experienced a lot of misery at the hands of proponents of the Shari’ah (and, to be fair, their opponents). I suspect there is a lot of guilt by association going on in the opposition to this constitution: the much milder khadi courts get tarred with the same brush as the vicious civil war next door. But Nigeria is probably a better analogue. The Voice of the Martyrs profile for that country ( briefly mentions how the implementation of Islamic law in some northern Nigerian states was officially intended only for the Muslims living there, but has spilled over to affect religious minorities too. This recent news story ( is about truckloads of beer being destroyed by morality police, with no indication that it was being marketed to Muslims. Worries about scope creep by Islamic courts are well-founded in African experience, it seems to me.

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