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Opinion: Divisive issues may sink Kenya's constitution

Opponents to abortion and Islamic courts may cause voters to reject proposed constitution.

A Kenyan supporter cheers at a rally to launch the campaign for a the constitution referendum in the capital Nairobi, May 15, 2010. As Kenyans prepare to vote in a referendum on constitutional reform in August, many remain haunted by the tribal bloodletting that convulsed east Africa's largest economy in early 2008. (Thomas Mukoya/Reuters)

WASHINGTON — After a divisive and controversial presidential election in 2007 that led to post-election violence and a unity government lead by rivals Mwai Kibaki and Raila Odinga, Kenyans will go to the polls again on Aug. 4 to cast yet another controversial and potentially divisive vote.

This time, Kenyans will be voting on a new constitution, not for or against a specific politician. But without a doubt, the referendum votes cast for or against the new constitution will be based equally on politics and substance.

In the backdrop, the International Criminal Court has launched a new investigation into political leaders from both major political parties, President Kibaki’s PNU and Prime Minister Odinga’s ODM, that organized and supported post-election violence in 2007.

In 2005, 58 percent of Kenyans voted against a new constitution. Today, many of the issues that killed that proposed constitution in 2005 remain in the new document to be voted on in July. A survey of the issues gives an accurate representation of what divides Kenya on this vote. Roughly 80 percent of Kenya’s population is Christian while 10 percent to 25 percent is Muslim. This brings us to divisive issue number one in the proposed constitution.

Following Kenya’s independence in 1963, Muslims have had the constitutional authority to operate Kadhis’ courts. Under the proposed constitution, these Islamic law courts will have jurisdiction over Muslims to determine personal status, marriage, divorce and inheritance. This may seem benign without a further reading of the proposed constitution’s Bill of Rights. Under Article 24 of the proposed constitution, which includes the legal limitations of the bill of rights, the right of equality “shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts.”

Not only is this a violation of the right to equality guaranteed to all Kenyans, with discrimination based on sex and religion banned under the proposed Bill of Rights, it is an abject assault on the rights of Muslim women in Kenya. Further, Kenya’s dominant Christian minority has no access to religious courts of their choosing where the laws of the church would apply.

Muslim Kenyans have access to a separate legal code, Islamic law and a separate court system, Kadhis’ courts. Christian Kenyans opposed this court system in 2005 and will be opposing it again in campaigns against the proposed constitution.