Res Novae: A Philosophical Argument against the Kadhi’s Court

Recently, a friend asked me to comment on a debate he was having and I did. Truthfully, I started out trying to sound smart but then I realized that was an attempt unlikely to bear fruit. I am not smart. Anyhow, I later discovered that there is a difference between government and law. A government exists to protect all but the law exists to protect minorities.

In other words, there should always be a law that protects targeted minorities when targeted and to the extent to which they are targeted. A law that exists for the sake of it i.e. a law that protects a minority to an extent beyond their discriminated suffering is an absurdity.

A minority, in my definition, is one who possesses less of what another has. In so saying, a scientist who possesses the knowledge of destruction can make himself a majority over and above an entire nation. Therefore, the nation would need a law that protects the ‘minority’ against this scientist. As you can tell, the conventional use of the term minority also applies in my definition.

With these thoughts in mind, I would like to touch upon the Kadhi’s court. More specifically, why does it exist? Whom is this law protecting? Why is it protecting this person? Is the person a target? How is society targeting this person? Upon further inquiry, you will find that all that pertains to the Kadhi’s court has nothing to do with a target minority or society targeting a minority. It simply exists i.e. the court is a historical fact.

You could also say that it came into existence as a tool of discrimination i.e. to distinguish one human from the other. So why would you want to distinguish one human from another? Are we not equal before the law and God? Why bring different laws that distinguishes humans instead of harmonizing existing laws to reflect the ‘Unity of the Human Race.’ If the colonialists made a mistake, shall we not revisit this mistake and make it right.

One can also say that the person in question is a minority whose culture and religion need protection but this would be a fallacy, would it not? The state by using national resources to support this individual’s culture and religion immediately turns the rest of its citizens into a minority as per my definition of the term. In other words, the state alienates the rest of the people from their own resources and as such, the state must stop it unjust activities and protect the new minority.

Do you then see the balance i.e. for true justice to prevail there can be no religious or cultural court supported by the state unless the state supports all religions and cultures. Since the state cannot support all religions and cultures then none can receive support for supporting one automatically turns the others into a discriminated minority.

So why is the Kadhi’s court part of our laws if it is unjust? I still cannot understand it. Many Kenyans claim to support this court but talk so differently when in private. I noticed that most Kenyans ‘tolerate it’ as opposed to ‘supporting it.’ It is the fear of conflict that keeps this court alive.

So how can we expect change when fear drives us to accept or to formulate laws? Do we really expect future peace by stifling dialogue on such matters today? Are we not lost when we cannot have the laws we want but choose to settle for the laws that are? Did we really expect this constitution to change anything when our mindset was already working against us? I told you then that there is no shortcut to a revolution. You did not listen. I shall tell you once more. There is no shortcut to a revolution. It is all or nothing.

Therefore, it is my conclusion that the Kadhi’s court exists for sake of existence for it enforces the right of a minority beyond the minority’s discriminated suffering and as such, it is an absurdity.

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