DIVIDED

The ‘Yes’ and ‘No’ camps were on Monday divided over the ruling by a three-judge bench to declare kadhi courts an illegality.

The Committee of Experts described the ruling as “wrong” and said it will not stop the August 4 referendum.

Cabinet ministers Mutula Kilonzo and Musalia Mudavadi, who belong to the ‘Yes’ camp, said the three judges had acted beyond their powers.

But the ‘No’ camp, which brings together the Church and some politicians, described the ruling as “brave” and called for the immediate suspension of the referendum.

Mr Kilonzo, the Justice minister, and Mr Mudavadi, the Deputy Prime Minister, questioned the timing of the ruling on a case filed by evangelical bishops in 2004, arguing that it was meant to negatively affect the push for a new constitution.

Mr Kilonzo submitted that the High Court had no powers over the fate of the new document, which is awaiting the verdict of Kenyans at the referendum.

The powers, he said, were handed over to the Interim Independent Constitutional Dispute Resolution Court (IIDRC).

Parliament established the IIDRC, which is not a division of the High Court, by amending the Constitution to insert a new Section 60A which gave it powers to exclusively handle review disputes.

Added Mr Kilonzo: “I consider the judgement of no consequence.”

Mr Mudavadi, claimed some people were using technicalities to block the passage on the proposed constitution. “They (judges) have no legal standing because the review process was shielded from such manoeuvres,” he said.

Mr Nzamba Kitonga, whose team prepared the proposed constitution, described the ruling as “wrong” and said it will not stop the referendum.

“I think that decision is wrong. You cannot declare what is in the constitution unconstitutional,” he said.

They were responding to the decision by Appellate judge Joseph Nyamu and High Court judges Mathew Anyara Emukule and Roselyne Wendoh — sitting as a Constitutional Court — to declare inclusion of kadhi’s courts in the constitution illegal and discriminatory.

The decision was saluted by the ‘No’ camp. National Council of Churches of Kenya secretary-general Peter Karanja described it as a brave decision.

“The judiciary has taken the courage that other review organs shied away from. I would advice that the referendum is suspended to resolve this matter,” he said.

Mutito MP Kiema Kilonzo also called for the suspension of the process.