• The determination of civil and commercial disputes between parties who are Muslims, in the manner of a small claims court as by law established, but without prejudice to the rights of parties to go to other courts or tribunals with similar jurisdiction; • The settlement of disputes over or arising out of the administration of wakf properties. A Wakf is a trust created under Muslim law for purposes considered pious, religious or charitable. Currently a commission appointed under the Wakf Commissioners Act administers Wakf properties. The debate surrounding these provisions stem from various arguments the following are but a few: • The draft Constitution gives precedence to Islam above other religions by referring to Islam and the Kadhi Courts. • Kenya is a secular state hence no religion should be referred to in the draft Constitution. • The Kadhi Courts can easily be legislated against by Parliament if they are not entrenched in the draft Constitution. • The Kadhi Courts have been entrenched in the current Constitution since independence and they have caused no harm. Between the 8 th and 11 th of April 2003 the Kenyan Section of the International Commission of Jurists held a Constitutional Symposium which brought together technical experts from civil society, legal practitioners, the Ministry of Justice and Constitutional Affairs and other stakeholders to substantially discuss the draft constitution, more specifically Chapter Nine which refers to the Legal and Judicial system, and other contentious issues arising. Due to the huge debate surrounding the Kadhi Courts an entire day was dedicated to discussing this. It was stressed that constitution making was a negotiative process and that consensus would not always be reached. Below are the views of the majority of participants. The Kadhi Courts The following recommendations were made: ­(i) The Kadhi Courts should be retained in the draft constitution as per the current constitution section 66 3 . Hence sections 199 to 204 of the draft constitution should be replaced by section 66 of the current constitution. (ii) Section 66(4) should be amended to read“…within the country or within such part of the country as may be prescribed. Provided that no part of the country shall be outside the jurisdiction of some Kadhi Court.” (iii)The Kadhi Courts should be further provided for by parliament through the relevant statute. The constitution should establish the Kadhi courts leaving their operationalisation to an Act of Parliament. 4 We urge the delegates of the National Constitutional Conference to adopt the above recommendations as a compromise for the benefit of the nation. 1 Ahmed Issack Hassan, Commissioner, CKRC“Working document for the constitution of Kenya review commission on the kadhi’s courts,chief kadhi and kadhis” 2 Ahmed Issack Hassan, Commissioner,CKRC“Working document for the constitution of Kenya review commission on the kadhi’s courts,chief kadhi and kadhis” 3 Note amendment to section 66(4) of the current Constitution. 4 A reservation was noted.There were those of the view that all matters of religion should be deleted from the constitution, as Kenya was a secular state. ICJ(K) P.O. Box 59743 Kileleshwa Nairobi, Kenya Friedrich Ebert Foundation(FES) P.O. Box 14932 00800 Peponi Plaza Nairobi, Kenya The Draft Constitution: Chapter 9 The Kadhi Courts