National Council of Churches of Kenya

1. Preamble
The Christian church in Kenya has been at the forefront in the fight for the welfare of all the people of our nation for more than 100 years. This has been borne on the responsibility bestowed on us by the Lord our God as recorded in Leviticus 19: 15 - “Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neigbour fairly.”

To push for justice for all people of Kenya, the church in the 1980s and 1990s braved autocracy and constantly proved to be the watchdog for the people. It was during this period that it emerged clearly that without a new constitution founded on the principles of justice and equality, the lives of the people would remain difficult and terrorized. It is then that the Christian church became the harbinger of the calls for comprehensive review of the constitution. Subsequently, the church became the shelter and strength of many of the reformers.

Recognizing the importance of a new constitution for the establishment of justice and promotion of equity, and noting the unwillingness of the government to facilitate the process towards the same, the church in Kenya gave leadership to the Ufungamano Initiative. The Initiative on its part established the People’s Commission to collect views from the people and thereafter prepare a draft constitution. It was in good faith that Ufungamano Initiative agreed to have the People’s Commission merge with the Constitution of Kenya Review Commission established by Parliament.

2. Mishandling of Cardinal Issues
Regrettably, the good faith exercised by the Christian church in Kenya was not reciprocated by the Constitution of Kenya Review Commission, the BOMAS delegates, the political camps, and more recently, by the Committee of Experts and the Parliamentary Select Committee. In fact it is to us an indictment to the CoE that the PSC did a much better job than they did. We the Church leaders state categorically that we have not had a fair hearing from both the Committee of Experts and the Parliamentary Select Committee.

3. Views on PSC proposals
The following are our comments on the proposals presented by the Parliamentary Select Committee. We do note that any constitution that misses out on the cardinal issues we raise below would lead to the creation of an unjust and unstable nation.

i. System of government
We affirm the consensus reached by the PSC on a pure system of government.

ii. Right to life
We affirm the inclusion of the provision that human life begins at conception, which will ensure that abortion remains outlawed. It is the duty of every well meaning Kenyan to safeguard the vulnerable unborn.

iii. The family
The family is the foundation block of any society. For this reason, we affirm the inclusion of the provision that families are to be founded on the basis of consent between two persons of the opposite sex. Sexual unions between persons of the same sex do not produce any offspring, and are essentially an affront on the creator. The constitution should not create any loopholes for legalization of homosexual and lesbian unions.

iv. Legislature
We affirm the inclusion of criteria for delimitation of constituencies in the constitution. However, the number of constituencies proposed is too high. Kenyans should not be made to shoulder the burden of financing constituencies established for political mischief and rigging of ascension toward management of power. Our position is that the constitution should fix the number of constituencies and nominated representatives at a maximum of 250 and future delimitations be for the purposes of balancing populations. We note that other established democracies such as India and the United States have smaller numbers of elected representatives despite their populations being higher than that of Kenya. The number of constituencies and nominated representatives should never be increased again.

4. Remove Islam from the Constitution
Despite the consensus reported to have been reached on various issues by the PSC, we regret that they too perpetuated the mishandling of the issue of religion in the constitution. We wish to restate the following concerns:

i. Exemption from the Bill of Rights
The Bill of Rights in our constitution is what defines who a Kenyan is. No Kenyan should be denied their rights whatsoever, and therefore we are opposed to the inclusion of Article 23(6) of the PSC draft which exempts persons professing Muslim religion from the Bill of Rights. We as the Christian community will therefore reject a draft that limits any Kenyan from enjoying their rights and fundamental freedoms. The choice by a people to forgo their rights cannot be a function of constitutional condemnation.

ii. Religion and the Constitution
The proposal by the PSC to remove the provision that the state should treat all religions equally and that the state and religion shall be separate is in our view mischievous. It is quite telling that they did not remove references to the Islamic religion from the constitution so as to give equal grounds to all religions. Despite the provision that there shall be no state religion in the constitution, the recognition of Islamic courts and their rules on matters of personal law in the constitution is tantamount to declaring it the state religion. We are extremely opposed to this. Christians will not support a constitution that elevates Islam to such a level.

iii. Kadhi Courts
We remain extremely opposed to the inclusion of Kadhi Courts in the constitution. It is clear that the Muslim community is basically caving for itself an Islamic state within a state. This is a state with its own Sharia compliant banking system; its own Sharia compliant insurance; its own Halaal bureau of standards; and is now pressing for its own judicial system. Such a move is tantamount to dividing the nation of the basis of religion, and is a dangerous trend that will destroy Kenya. We should learn from nations that have moved in that direction and suffered instability.

While Christians were not consulted when the current constitution was crafted, we took the opportunity during the Ghai-led Constitution of Kenya Review process to voice our objection to the inclusion of the Kadhi Courts. All subsequent draft constitutions have ignored our sentiments on this issue. We wonder why the Committee of Experts not only took sides on this issue but also arrogated itself the responsibility of campaigning for the Kadhi Courts. We further wonder whether this approach has had to do with the fact that Muslims have dominated all the review processes.

On various occasions, it has been said that the Kadhi Courts have been in the constitution all along without objections by Christians. But we wish to remind all that in 2004, Christians filed a case in court seeking the removal of the Kadhi Courts from the constitution. It is an indictment on the judiciary that judgment on this case has never been delivered though hearings ended in February 2009. Why should it take more than an year to reach a judgment? It is therefore saddening that the Chief Justice is on record defending the presence of Kadhi Courts in the constitution.

In addition, we remind all that Kadhi Courts are maintained by public resources raised from taxes. We do not find it fair and just that all Kenyans are required to pay to maintain what amounts to a dispute resolution mechanism for only one religious group.

We assert that a religion does not have to be in the Constitution for its adherents to enjoy its systems.

5. Conclusion
The constitution is the document that defines the nation, its principles and values. It is therefore of great importance that these cardinal issues be dealt with if the current constitution review process is to succeed.

We restate our position here and declare that we owe no one any apologies for the positions we take. We reserve the right to oppose any draft that carries what is not just and fair. We see Kenya headed for a ditch and cannot approve such a direction whatsoever. The embedment of Islam in the constitution, beginning with the exemption from the Bill of Rights and inclusion of Kadhi Courts, is a snare to the country. This is routinely the first step towards introduction of Sharia law in a country.

This is the warning we bring to Kenyans today. Entrenchment of one religion in the constitution is a risk that we should not take. We have witnessed many countries that have broken up because of religion.

We further state here that if the draft constitution presented at the referendum does not reflect these cardinal principles, we as the Christian church in Kenya shall have no option but to reject it in total and vote NO.

May God bless Kenya.

Signed on this 1st day of February 2010 at Ufungamano House, Nairobi, by: