Divisive Issues May Sink Kenya's Constitution

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 Kibakis PNU and Prime Minister Odingas 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 Kenyas population is Christian while 10 percent to 25 percent is Muslim. This brings us to divisive issue number one in the proposed constitution.

Following Kenyas 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 constitutions 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 Kadhis courts.

Read the rest of Jordan's opinion editorial in the GlobalPost here.

Please note that in discussing political issues, candidates positions and political party statements, Jordan Sekulow is offering analysis in his individual capacity as lawyer and commentator. He is not speaking on behalf of the American Center for Law & Justice. The ACLJ does not endorse or oppose candidates for public office. Nothing contained in this article should be construed as the position of the ACLJ.