Kenya's constitutional vote on sharia courts pits Muslims against Christians

Kenyans protest the proposed constitution, which goes for a vote next month. Ten percent of the country is Muslim. (Tony Karumba/AFP/Getty Images)

By Sudarsan Raghavan
Wednesday, July 7, 2010; A01

NAIROBI -- For 13 years, Judge Mudhar Ahmed has worked in relative obscurity, issuing Muslim marriage certificates, divorcing Muslim couples and weighing in on Muslim inheritance disputes. Now, he's facing an issue unlike any he has seen. He has one word to describe it: "Islamophobia."

Ahmed is the head of Nairobi's Kadhis Court, one of 17 judicial bodies that administer sharia, or Islamic law, to Kenya's Muslim minority. The courts were enshrined in the nation's constitution decades ago, but Christian leaders are seeking to remove them from a proposed new constitution, scheduled for a referendum Aug. 4. They argue that Kenya is a secular state and that Muslims should not receive special privileges.

Muslim leaders say the maneuvers are part of an agenda to deny their community rights and undermine their beliefs. "They are creating hatred between Muslims and Christians," said Ahmed, his soft voice hardening.

The tussle portends a larger collision between Islam and Christianity in Kenya, a vital U.S. ally in a region where Washington is quietly fighting the growth of Islamic radicalism. Many Kenyans are concerned that the tensions, if not contained, could deepen political fissures and spawn the sort of communal upheaval that left more than 1,000 people dead in 2008 after elections.

In this predominantly Christian nation, Christians are worried about a Muslim community that is growing in numbers and influence, and they have been vocally backed by U.S.-based Christian groups. Muslims are wary of the rising power of fundamentalist Christian organizations backed by American Christians.

The 1998 bombings of the U.S. embassies in Kenya and Tanzania frayed relations between Christians and Muslims. Those links have further eroded in the decade since the Sept. 11 terrorist attacks, as concerns about Islamic radicalization and terrorism grew in this East African country.

Many Kenyans today fear that the civil war in neighboring Somalia, where the al-Qaeda-linked al-Shabab militia is seeking to overthrow the U.S.-backed government, could spread into Kenya. A massive influx of Somali refugees, almost all Muslim, has spawned xenophobia and extended misconceptions of Islam.

"The kadhis courts issue is a red herring," said Rashid Abdi, a Nairobi-based analyst with the International Crisis Group. "They feed into historical prejudices on both sides and misperceptions which has increased in the last 10 years."

Centuries of tradition

The kadhis courts have existed in Kenya for centuries. Under Kenya's constitution, their jurisdiction is limited to matters concerning personal law, such as marriages, divorces and inheritances for Muslims, who form 10 percent of Kenya's population. The courts do not hear criminal matters and have far less power than Kenya's higher courts.

For decades, the courts operated without controversy, under the radar of most Kenyans.

But after the Sept. 11 attacks, church leaders grew concerned that the courts could breed extremism. In 2004, a group of churches filed a court case to remove the kadhis courts from the current constitution, but it languished for years in the judicial system. Some Christian leaders worry that the courts could be used to justify an expansion of sharia law in Kenya.

The proposed constitution is part of an effort to create a fairer balance of power among Kenya's ethnic groups. It was that perceived imbalance that led to much of the 2008 violence. While religion did not play a significant role in the violence, it is now dominating the debate on the upcoming vote.

The U.S. ambassador to Kenya has publicly urged Kenyans to vote in favor of the proposed constitution, including the kadhis courts, arguing that passage is key to keeping Kenya stable. But on Web sites and in opinion pieces, conservative U.S. Christian groups have denounced the proposed constitution. They are opposed to the kadhis courts provision, and they see other aspects of the constitution as being pro-abortion. Some have organized petition drives against the courts.

The American Center for Law and Justice, founded by evangelical Pat Robertson, opened an office in Nairobi this year to oppose the new constitution. On its Web site, the group says that the "high number of Muslims in the slums and a significant increase in the number of Somalis" have brought the kadhis courts issue into "sharp focus."

"There are those who believe there is an overall Islamic agenda geared towards the Islamisation of the country," the group says.

Last month, Kenya's high court ruled that the kadhis courts provision should be removed from the draft constitution. That decision is being appealed. Some senior politicians have railed against removing the courts from the draft constitution, partly because Muslims have become a powerful voting bloc.

'We want unity'

On June 13, explosions ripped through a park in Nairobi during a demonstration against the constitution, killing five people and injuring dozens. No one asserted responsibility, but the assault deepened the suspicion among Christian groups.

"We want unity in Kenya, but not a unity that will compromise us," said Bishop Joseph Methu, a senior evangelical Christian leader. Christian leaders say they fear that if the courts are enshrined in the constitution, "sooner or later, you will find an enclave where they will say we are predominantly Muslim and Islamic laws rule here," said Oliver Kisaka, deputy general secretary of the National Council of Churches of Kenya. "You have created space for the creation of a nation within a nation."

As evidence, the Christian leaders point to an incident in April in which a group of Muslim clerics in the northeastern town of Mandera, near the Somalia border, imposed a ban on public broadcasts of films and soccer ahead of the World Cup.

Muslim leaders say the kadhis courts protect their community's rights and cultural values.

"A good constitution is gauged by the extent to which it protects minorities," said Abdalla Murshid, a Muslim lawyer and community leader.

Other Muslim leaders said the courts would stem Islamic radicalism in Kenya. Judges, not mosque imams, would regulate the uses of sharia law. Muslims would feel a deeper sense of national identity.

Kadhis courts are an entity that binds "Muslims to the Kenyan state," said Hassan Ole Naado, head of the Kenyan Muslim Youth Alliance. "It is for the best interests of Kenya to have such courts."

A recent public debate about the courts at a hotel in Nairobi quickly degenerated into a Muslim-vs.-Christian fight.

A Muslim woman named Fatima said that removing the courts from the constitution would make it too easy for Christian members of parliament to get rid of them altogether.

"That's what we want," muttered a man in the audience.

Then a Christian said: "Who are the Muslims? Are they Kenyan or non-Kenyan? If they are Kenyan, they should be satisfied with only one court."

"The Christian clergy have a problem with Islam," said Hussein Mahad, a sheik from the northeastern town of Garissa. "But we are here to stay. We are not going anywhere."

Afterward, he declared: "This is a Christian agenda to keep Islam contained. They think we are all terrorists."

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Obama Barred Constitutionally From Accepting Nobel - washingtonpost.com

Image by Renegade98 via Flickr

By Ronald D. Rotunda and J. Peter Pham
Friday, October 16, 2009

People can, and undoubtedly will, argue for some time about whether President Obama deserves the Nobel Peace Prize. Meanwhile, though, there's a simpler and more immediate question: Does the Constitution allow him to accept the award?

Article I, Section 9, of the Constitution, the emolument clause, clearly stipulates: "And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State."

The award of the peace prize to a sitting president is not unprecedented. But Theodore Roosevelt and Woodrow Wilson received the honor for their past actions: Roosevelt's efforts to end the Russo-Japanese War, and Wilson's work in establishing the League of Nations. Obama's award is different. It is intended to affect future action. As a member of the Nobel Committee explained, the prize should encourage Obama to meet his goal of nuclear disarmament. It raises important legal questions for the second time in less than 10 months -- questions not discussed, much less adequately addressed anywhere else.

The five-member Nobel commission is elected by the Storting, the parliament of Norway. Thus the award of the peace prize is made by a body representing the legislature of a sovereign foreign state. There is no doubt that the Nobel Peace Prize is an "emolument" ("gain from employment or position," according to Webster).

An opinion of the U.S. attorney general advised, in 1902, that "a simple remembrance," even "if merely a photograph, falls under the inclusion of 'any present of any kind whatever.' " President Clinton's Office of Legal Counsel, in 1993, reaffirmed the 1902 opinion, and explained that the text of the clause does not limit "its application solely to foreign governments acting as sovereigns." This opinion went on to say that the emolument clause applies even when the foreign government acts through instrumentalities. Thus the Nobel Prize is an emolument, and a foreign one to boot.

Second, the president has indicated that he will give the prize money to charity, but that does not solve his legal problem. Giving that $1.4 million to a charity could give him a deduction that would reduce his income taxes by $500,000 -- not a nominal amount. Moreover, the money is not his to give away. It belongs to the United States: A federal statute provides that if the president accepts a "tangible or intangible present" for more than a minimal value from any foreign government, the gift "shall become the property of the United States."

This is at least the second time that Obama has run afoul of the emolument clause. On June 3, 2009, the day before he gave his speech in Cairo on relations with the Muslim world, he accepted (and even donned) the bejeweled Collar of the King Abdul Aziz Order of Merit, Saudi Arabia's highest honor, from the hands of King Abdullah. (President Bush was awarded the Order in January last year.)

Aside from whether a president shows questionable judgment in accepting any preferment from the House of Saud named for its anti-Semitic modern founder, there is another issue: The Collar is clearly a chivalric "order" of the Saudi monarchy conferring a rank in that system of titled royalty and nobility. It is not a mere decoration or campaign ribbon. There does not seem to be any record of congressional permission asked for, much less granted, for the president to accept this bauble. Washington, Madison and Hamilton would have clearly understood that the Abdul Aziz Order falls under the same ban they had in mind for any public officials coveting awards made under the honors system of the British monarchy.

Taking President Obama at his word that the Nobel award is "an affirmation of American leadership," Congress should allow him to accept the award. The prize money, which legally belongs to the United States, ought to be applied by Congress to some worthy cause, such as reducing the deficit.

As for the Abdul Aziz Order, Congress should withhold approval and return the chain -- until the Saudis show their support for international peace by recognizing the right of Israel to live in peace within secure borders. That would honor Alfred Nobel's desire to promote "fraternity between nations" and fulfill the intent of the Framers that congressional approval would guard against attempts by foreign governments to meddle in American politics by dangling presents, titles or any other emoluments in front of our public officials.

Ronald D. Rotunda is distinguished professor of jurisprudence at Chapman University Law School. J. Peter Pham is senior fellow at the Foundation for Defense of Democracies.

Now It’s a Census That Could Rip Iraq Apart

By ROD NORDLAND

BAGHDAD — When Iraqis were drafting their Constitution in 2005, the parties could not agree on who would control Kirkuk, the prized oil capital of the north. They couldn’t even agree on who lived in Kirkuk, which is claimed by the region’s Kurds, but also by its Turkmen minority and Sunni Arabs. For that matter, they couldn’t even agree on where Kirkuk was — in Tamim, Erbil, or Sulaimaniya Province.

So the Iraqis punted, inserting Article 140, a clause that called for a national census, followed by a referendum on the status of Kirkuk, all to be held by the end of 2007. What followed were a succession of delays, against a backdrop of sectarian violence and warnings that Kirkuk could blow apart the Shiite-Kurdish alliance that has governed Iraq since the Americans invaded.

Massoud Barzani, president of the Kurdish regional government, warned two years ago that if “Article 140 is not implemented, then there will be a real civil war.” He’s still waiting.

But so is the threat of civil war, which lurked quietly in the polling places this weekend as residents of Iraq’s Kurdish-dominated areas voted for their regional president and Parliament. Until the status of Kirkuk is clear, nobody really knows how much power those regional officials can wield within the national government, or even whether the Kurds will want to remain part of Iraq.

The problem with settling that is the Kirkuk referendum. There can’t be a referendum until Iraqis figure out who is eligible to vote in Kirkuk, which they can’t do until there’s a census. And any attempt to hold a census in this country may well end up, all by itself, provoking a civil war.

Even now, Sunnis don’t agree that they’re a minority of the nation, and that the Shiites are the majority, though it’s patently obvious. And in Kirkuk, everyone is in denial, one way or another.

Ethnically mixed and awash in oil, Kirkuk has always been something of a numbers game. There are 10 billion barrels of proven oil reserves — 6 percent of the world’s total and 40 percent of Iraq’s — all within commuting distance of downtown Kirkuk. Its fields, though half destroyed, still produce a million barrels of oil a day.

Both Turkmen and Kurds claim to be in the majority; the last reliable estimates, from a 1957 census, gave Turkmen a plurality in the city and Kurds a plurality in the surrounding district, with Arabs second in the countryside and third in the city. In the Saddam Hussein years, the Kurds declared Kirkuk part of their autonomous region of Kurdistan, but the dictator sent the army after the Kurdish guerrillas, known as pesh merga, and held onto the prize. He then set about Arabizing it, forcibly relocating families from the south while evicting Kurds and Turkmen alike.

After 2003, pesh merga troops quickly took control of Kirkuk as the Iraqi Army collapsed. Some local Arabs revolted, nurturing an insurgency that still festers. Others simply remained. Meanwhile, Turkmen appealed to powerful patrons in Turkey that they were undercounted and ignored by everyone, and Turkey came to their aid to make sure the Kurds didn’t get Kirkuk, which supplies much of Turkey’s oil. Only the presence of American troops has kept a lid on things; a brigade is still kept in Kirkuk.

And still there is no census. “The Iraqi government for the last three years, every year they say it will come this year,” says Mahmoud Othman, a Kurdish member of Parliament.

A date for a census is on the calendar — Oct. 24. But it is subject to ratification by Iraq’s cabinet, the Turkmen have announced that they will boycott it and Arabs in Kirkuk may well do the same.

One proposal for getting past this problem would be to hold a census everywhere but in Kirkuk. If that happened Kirkuk could end up, in effect, a disenfranchised province when the next general national elections are held in January.

Another suggestion is to hold a referendum on Kirkuk without a census, but that would invite a dispute about the validity of the results.

And then there’s the Lebanese solution, the one that so far seems likeliest: just do nothing. The last census in that sectarian hodge-podge of a country was in 1932; no one would dare hold one now, since the groups who would almost certainly lose representation — Maronite Catholics, Druze and Sunni Muslims — would simply go back to war rather than get counted out.

Already, the Kurdish regional government has been defying Baghdad and issuing contracts to develop its oil fields, including some in Kirkuk. The Iraqi government showed its displeasure by moving its 12th Division, some 9,500 troops, up to Kirkuk; there they have been provocatively patrolling into pesh merga-held areas and setting off a series of minor incidents recently.

“It’s very worrisome that these incidents continue to happen,” said Joost Hilterman, of the International Crisis Group. “Perhaps they will be contained, but the stakes are huge.”

For the moment, there are still plenty of American troops around to do the containing, but all American combat troops are due to pull out by next summer. That doesn’t leave a lot of time to broker an agreement, especially when no one is likely to really want it.

Abeer Mohammed contributed reporting.