On the 9th of April 2013, three members of parliament from West Pokot held a media press conference in Nairobi during which they vehemently protested the characterization of the Pokot people of northern Kenya as “criminals and thieves“. They were reacting to a statement attributed to President Yoweri Museveni of Uganda, who was giving a speech on behalf of other invited heads of states during the inauguration of President Uhuru Kenyatta and his Deputy William Ruto.

President Museveni, perhaps in jest, had said, “These people have been stealing my cattle.  I have agreed with these [Pokot] MPs. . . . I urge Uhuru, this people from West Pokot should stop stealing my cows.”

In their rebuttal, the three MPs claimed that they had been compelled to respond to the neighbouring president’s “wholesome condemnation” of the Pokot since, as they averred, it had become his practice to make such spurious statements about the Pokot people. The MPs claimed that following President Museveni’s statement, they had faced taunting and disparaging remarks from fellow Kenyan MPs who called them “the president’s thieves”, amongst other unsavoury epithets. They, therefore, wanted to change the perception and stereotyped portrayal of the Pokot as cattle bandits.

The MPs arguments were based on a phenomenon that social psychologist Claude Steele calls the “stereotype threat”, the fear of what effects such stereotypes may have on an individual or targeted group. In this case, the impact it may have on the innocent Pokot who does not practice cattle rustling and banditry as well on inter-communal relations between the Pokot and other communities. “In as much as these remarks could pass off as soft, friendly and populist, we are not averse to the grave repercussions that remarks could have in mopping [sic] ethnic passions and cross-border tensions particularly among pastoralist communities in the said regions,” said Pkosing, who is the MP for Pokot South.

The MPs highlighted the risks associated with persistent stereotyping and misguided narratives about “others” and raised the challenge of what needs to be done to maintain social cohesion in Kenya.

But there were those who disagreed with the pronouncements of the Pokot leaders. “While we abhor the general characterization of a whole community as cattle rustlers, it does not help either to deny the shame and embarrassment the few errant elements have caused our people and neighbours,” said the then Baringo County Speaker William Kamket.

Stereotyping is pervasive, persistent, but…

Kenya is a multi-ethnic, multi-linguistic and multicultural country where any individual or ethnic community may be subjected to stereotyping and coded language by others. There are, however, concerns that the open and persistent stereotyping of particular communities — bordering on hate speech — could be counterproductive in many respects.

Stereotyping “other” communities could lead to prejudice, discrimination, and open hostility amongst groups. This, therefore, begs the question of whether it would not be prudent to educate social groups on the need to avoid using wounding words that could ignite prejudice, discrimination, tension, and conflict. Indeed, the National Integration and Cohesion Commission (NCIC) gives ethnic stereotyping as grounds for prosecution.

Stereotyping is an instance of what the psychologist Jerome Bruner calls “going beyond the information given”, the capacity for equivalence grouping — assigning objects to categories and making inferences about their specific attributes based on what we think we know about the class in general. It is part of the cognitive machinery that allows us to deal with novelty in everyday life. As Bruner puts it, “If we were to respond to each event as unique and to learn anew what to do about it or even what to call it, we would soon be swamped by the complexity of our environment. This is the reason why stereotyping is a common human feature.

Just because stereotyping is cognitively inescapable, however, does not mean that stereotypes are generally accurate. We also have cognitive mechanisms in place that make stereotypes resistant to change in the face of conflicting evidence. Despite evidence to the contrary about the targeted social groups, the in-group tends to always hold onto the adopted stereotypes. This is especially the case when stereotypes are laden with emotional content and thus form the basis for prejudice.

Concerning prejudice and discrimination, it may not be uncommon for stereotypes and misleading narratives to influence official attitudes, policy, institutional and administrative orientations towards certain ethnic/social groups or regions, resulting in unfavourable social, economic, political, and administrative outcomes. This is irrespective of how remotely realistic such assessments may be. Officers, in any case, are part of society, dominant or otherwise.

Stereotypes and narratives on pastoralists and arid lands

Pastoralists have long borne a barrage of unfavourable and misleading stereotypes and narratives that have impacted their well-being. These are either based on their livelihoods, their environment, or their cultural practices. Importantly, these stereotypes and narratives have led to, or become, a reflection of these communities’ marginalization, exclusion, and discrimination.

There are several ways in which pastoralists and other social groups are socially constructed and (re)presented in daily discourse. These forms vary from well-publicized political speeches, policy statements and approaches, to media coverage, and commentaries expressing concern about conflicts and insecurity in pastoralists’ areas. Kenyans are therefore well exposed to the different ways in which pastoralists and other minorities are constructed as essential categories.

In his report titled The Unrelenting Persistence of Certain Narratives, Michael Ochieng catalogues the narratives and stereotypes about Kenya’s arid and semi-arid regions where pastoralists reside, and their adverse effects on social policy change. He identifies the national actors responsible for defining policy narratives on development and climate change adaptation in Kenya, their perceptions about ASALs (Arid and Semi-Arid Lands) and the premises that underpin these perceptions and narratives.

Ochieng observes that powerful narratives about the ASALs are a legacy of the Sessional Paper Number 10 of 1965 that laid the basis for subsequent policy and marginalization of arid lands.  These include the security/insecurity/conflict narrative perpetrated by the state of emergency that revolved around security (specifically, insecurity). He notes, “The area and the people came to be viewed largely in terms of security, and interactions between them and organs of the state were defined in the same terms. Most government resources spent in these areas went to security, law and order, albeit with little respect for the rule of law.”

Hardly any investments were made in social service delivery or economic development between independence in 1963 and the reintroduction of multi-party politics in 1992. As a result, the ASALs, particularly those in northern Kenya, missed out almost entirely on the development opportunities of the first three decades of independence. The narrative that mobile pastoralism was irrational, unproductive, and environmentally destructive was essentially an all-embracing narrative with economic, socio-cultural and environmental overtones. “It had devastating effects on the way both policymakers and the rest of the society viewed pastoralists – largely as backward and resistant to change, refusing to modernize and take advantage of the benefits of civilization and development. Anthropological explanations such as ‘cattle complex’ were used to validate such characterization.”

Hardly any investments were made in social service delivery or economic development between independence in 1963 and the reintroduction of multi-party politics in 1992.

The little policy attention extended to the ASALs in the late 1970s led to the creation of the Ministry of Reclamation of Arid and Semi-Arid Areas and Wastelands, a perfect condemnation of the ASAL areas based on their perceived non-productivity. This, notwithstanding that the country continued to rely on these regions for the steady supply of livestock and livestock products and to benefit from its rich biodiversity in support of a thriving tourism economy. Ochieng links this narrative to the proclamation of Sessional Paper No. 10 of 1965 that the ASALs could only benefit from the economy as recipients of “grants of subsidized loans” from the more economically productive parts of the country.

Purveyors of stereotypes, hostilities

Whether held by the majority/dominant or minority/non-dominant groups, stereotypes explain things easily. They take less effort and give the appearance of order without the difficult work that understanding the entire hierarchy of things demands. They reinforce the belief and disbelief of its users and furnish the basis for the development and maintenance of solidarity for the prejudiced.

Minority groups do not escape the tendency toward stereotype, partly because of the set of economic, political, cultural, and personal reasons they find themselves in. The hostility of the minority/target group is expressed partly towards other minority groups and in part towards the dominant groups (pastoralists amongst themselves and pastoralists jointly against farmer/ agricultural groups). And when minorities become dominant groups, they sometimes discriminate against their own (non-dominant clans). Claude Steele, for instance, has pointed out that stigmatized populations may adopt counter-stereotypical behaviours to dissociate themselves from stereotypes. Thus, prejudice and discrimination affect not only the attitudes and behaviour of minority group members towards the standards set by the dominant society but also their responsibility to themselves and their groups. Self-regarding attitudes are as much part of one’s social experience as attitudes toward other persons and social norms.

When minorities become dominant groups, they sometimes turn to discriminate against their own.

An assessment of descriptive content of cultural stereotypes not only indicates their consensual sharing but also that the content influences accepted norms for inter-group relations that finally justify discrimination.

Content of Kenyan ethnic group stereotypes

In their study, An Examination of Ethnic Stereotypes and Coded Language Use in Kenya and its Implication for National Cohesion, Joseph Naituli and Sellah King’oro have provided stereotypes of nearly every community in Kenya based on region. The graphic below presents the common stereotypes used in Baringo and Elgeyo Marakwet counties.

Source: Naituli and King’oro (2018)

Just what is it with the Pokot and others?

The Pokot (Pochoon singular, Pokot plural) of north-western Kenya and the Amudat District of north-eastern Uganda have been at the centre of national and regional discussions, narratives and stereotypes around cattle raiding, conflict and insecurity. Often portrayed as the exemplars of cattle rustling and banditry in the north-western corner of Kenya, many Pokot strongly protest what they perceive as the tendency to criminalize the entire community because of the practice of a few. In the narratives and stereotypes, they are usually accompanied by a supporting cast of their neighbours — the Keiyo, Marakwet, and Turkana, not forgetting fellow travellers from across the Ugandan border —  the Karamojong, amongst others.

Some members of the Pokot community and their allies argue that most individuals in the community are against the practice of cattle raiding. Yet, the Pokot community is persistently cast in blanket, villainous terms. Little consideration is given to context and the historical realities in which the Pokot, and indeed the other communities in their localities, have found themselves. It should be noted that the Pokot also have stereotypes of their own that target other communities.

Many Pokot strongly protest what they perceive as the tendency to criminalize the entire community because of the practice of a few.

While the “transformative” school of thought in conflict studies holds that cattle rustling — an activity that has been practised for hundreds of years — might have radically changed and acquired a horrendously sophisticated character in manifold ways, it is imperative, the Pokot argue, to interrogate the deep and tangled roots of the persistence of the practice and find urgent, pragmatic, and long-term measures to eradicate it rather than condemning a whole community.

A quick sampling — from different timelines and sources — of the various favourable or unfavourable narratives, stereotypes and analytical proclamations targeting the Pokot, that could well refer to other communities too, might be illustrative:

“The region’s most formidable and battle-hardened ethnic war machine” — Paul Goldsmith, The Cost of Cattle Rustling in Northern Kenya, 1994.

“The Pokot have hostile relations with almost all of their neighbours.”

“Vulnerability to frequent harassment from their neighbours has made the Pokot a tough and ruthless people.”

“The heaviest losses of the Kenya military since independence has been sustained during the ill-fated suppression of the Pokot.”

“Due to their small territory the Pokot have remained the most ethnically cohesive society, and often their conflict for grazing area is about community survival.”

“It is therefore important to educate the Pokot and other communities on issues related to stereotypes and coded language because it is evident that it can cause violent reactions between one community and another.”

“Cattle are symbols of wealth, blessings, and the male identity. Raiding has been common place, as warriors are expected to replenish declining herds or to take vengeance on those who have raided them.”

“You have reached the Heart of Africa. You are now entering Karamoja Closed District. No visitor may enter without an outlying districts permit” — Colonial signposts marking Karamoja region.

“Pokot raids do not aim at expanding their territory.”

“Conflict is concentrated in the village of Loruk, where Pokot and Tugen live. Three districts meet at this ribbon-built village, and the boundary lines are unclear, which causes tension because both groups suspect each other of encroaching on their own land. Furthermore, the Pokot claim their right to a primary school that was allegedly built for them in 1984 but later was assigned to Baringo Central where Tugen are the majority.”

“There is the facile, shorthand cultural explanation that conveniently fits preconceptions of timeless ‘tribal’ warfare. This ‘cultural’ explanation is facile not because it is untrue, but because it is only one of several entangled causes that range from the colonial and independent Kenyan governments’ culpability in resource depletion through underdevelopment and reduction of land holdings.”

“The overriding factor that makes pastoral communities prone to conflict (whether violent or otherwise) is their ambiguous relationship with the state and the majority of sedentary populations that reside within them.”

“Recent new factors fuel ongoing conflicts along the Pokot–Turkana border. Successful oil-prospecting missions and a proposed geothermal power plant increase the desirability of land areas claimed by both sides. The Pokot are not the main aggressors.”

“No common policy on intervention by the states is available. Attempts at interventions have been poorly coordinated and executed, too often taking a narrow definition of security that has focused on coercive disarmament without focusing sufficiently on providing viable economic alternatives to those whose  livelihoods have become dependent on gun. Finally, traditional structures of  authority within communities have been gravely weakened, as have some of the cultural restraints upon violence that operated in the past.”

“Currently, the Pokot in Uganda are allied to the Pokot in Kenya and jointly carry out raids on the Karamojong and the Karamojong from Uganda also have alliances with the Turkana of Kenya and carry out raids in Pokot North (Kenya).” — David Aliker

In early September 2021, Dr Abdiwahab Sheikh Abdisamad, a Horn of Africa security expert, was abducted by unidentified men in Nairobi’s Central Business District. The academic was forced into a vehicle that took him to an undisclosed location where he was held hostage for close to two weeks. His abduction was allegedly triggered by his critical comments online on regional politics. Immediately after the incident, Kenyans took to social media to report his disappearance. #FreeAbdiwahab and other hashtags were created, and a week-long discursive discourse erupted online, consistently calling for his immediate release.

While Kenyans from different communities joined this discourse, Somalis from northern Kenya, where Abdiwahab hails from, dominated this wave of digital protests. The Tweets were explicit that the communities from north-eastern Kenya are victims of abductions that are normalized and justified under the guise of countering terrorism. The Tweets also pointed fingers at the Kenyan government’s reluctance or failure to investigate, and its covert involvement in some of the kidnappings.

Going through my social media timelines, I realized how the online discourse not only resulted from the absence of critical coverage by the Kenyan media regarding the lack of investigations of these kidnappings but also how digital media is employed by this marginalized community to highlight the unique challenges they face.

In short, the reaction following Abdiwahab’s abduction reflected how the absence of accountability institutions cemented the normalization of kidnappings that often end in extrajudicial killings. Moreover, the critical online discourse that followed this incident serves as an ideal case study of how Twitter and other digital media platforms enable marginalized communities to set the agenda for the media and the public.

Twitter as a public sphere  

Counter-narratives constructed on Twitter by citizens from northern Kenya allow them to not only claim power but to also “broadcast these ideas to a wide audience to court support for these ideas, and to form networks with like-minded individuals.”

There has been a rise in abductions and subsequent extrajudicial killings targeting the Muslim community following the al-Shabaab attacks of the last decade. In counties along the coast and in northern Kenya, national security agencies have been accused of being behind the deaths of young Muslim men suspected of having ties with the terror group in Somalia.

The abduction of Abdiwahab in broad daylight was not the first and, judging by the government’s tight-lipped response, it will not be the last. Following the Kenya Defence Forces (KDF) 2011 invasion of Somalia to “fight al-Shabaab”, numerous terror attacks have been carried out across the country, prompting a response from the political and security elites to counter the violence perpetrated by the Somali-based terror group. The group has taken advantage of unemployed and traditionally marginalized youths in counties like Mombasa, Isiolo, Garissa, and even Kiambu, by brainwashing them and promising them economic and religious benefits if they join the militants.

The normalization of these illegal counter-terror tactics has been brought about by the precedents set by Western countries led by the US in their efforts to curb terror attacks in cities like New York, Paris, and London. Since 9/11, Western military elites have justified the illegal capture and killings of Muslim men from the Middle East suspected of working with groups like the Taliban, al-Qaeda, and Islamic State.

For instance, the existence of Guantanamo Bay, a detention camp that holds hundreds of terrorism suspects from countries like Afghanistan, Iraq, and elsewhere, serves as a reminder of how governments operate in a lawless universe when dealing with “terror suspects”. These Western tactics have informed how terror-afflicted countries like Kenya deal with citizens accused of being terrorist sympathizers.

In 2012, the controversial cleric Abud Rogo was shot dead in Mombasa County. Rogo was accused of spearheading the recruitment of youth from the coast to join the terror group in Somalia. Rogo was not the only Muslim cleric gunned down by the Kenyan security agencies. Between 2012 and 2014, Haki Africa, a Mombasa-based human rights group, documented the killing of 21 Islamic clerics across coastal Kenya. The Kenyan government has continuously denied any involvement in the kidnappings and killings. The lack of investigations and the covert support for these acts explains why fingers have been pointed at the government.

Western military elites have justified the illegal capture and killings of Muslim men from the Middle East suspected of working with groups like the Taliban, al-Qaeda, and the Islamic State.

The global advocacy group, Human Rights Watch (HRW), revealed that between 2013 and 2015 “at least 34 people, including two women, were taken into custody by security forces during counterterrorism operations in north-eastern Kenya . . . whose whereabouts remain unknown.”

These are just the numbers documented by rights groups. Because of fear and the sensitivity surrounding the issue of terrorism and al-Shabaab, numerous cases go unreported. The few known ones remain unresolved since, as HRW puts it, “police have not meaningfully investigated these deaths.” Nonetheless, it is important to point out that while such cases have skyrocketed since 2011 when terror events surged in Kenya, communities in north-eastern Kenya have faced these challenges since Kenya’s independence in 1963.

In 1980, thousands of residents in Garissa County were rounded up and many died in what came to be known as the Bula Karatasi Massacre. The Kenyan security agencies were responding to an incident where civil servants were gunned down in a bar in the Bula Karatasi neighborhoodneighbourhood. Farah Maalim, a prominent Kenyan politician, notes that “Many people were killed,” because of the Kenyan government’s response to this incident. “Soldiers shot anything in sight.”

In Wajir County, it is believed that over 5,000 men were killed in 1984 by the Kenyan army when it went in to disarm Somalis in the county following ethnic conflicts. These are just a few examples that demonstrate how Kenyan elites have been dealing with generations of Somalis from north-eastern counties.

The role of the media 

The Kenyan mass media’s systematic lack of critical coverage of these acts means that the government has not been held to account. As I have argued before, Kenyan journalists based in Nairobi have cemented the culture of portraying northern Kenya as a region engulfed by conflict, with the result that no substantive or thematic coverage is undertaken.

With few journalists from this region working for the mainstream news media, and in the absence of correspondents on the ground to cover these acts of violence, the community has been left out of the national conversation. There were no avenues that could have been used to create awareness about the unique challenges faced by Kenyan citizens in the north. This explains why the Somali community in the region is embracing social media platforms to not only push back against misrepresentations of their issues but also to prominently place their narratives in the national agenda.

The Digital Media 

The historical and contemporary injustices faced by communities in north-eastern Kenya have led them to embrace digital media. But it is also essential to note that a majority of Kenyans are unable to own smartphones or access the internet in order to be active participants in on-going debates on platforms like Twitter.

Only 17 per cent of Kenyans use social media and as a result of this digital divide, most Kenyans access news through traditional media like radios and newspapers. These traditional, mainstream mediums have failed to adequately advocate for the critical coverage of issues like the systematic abductions and killings of citizens in northern Kenya.

There is a growing body of literature on how marginalized communities like African Americans in the US and Muslims in Europe use digital media to counter the predominant narratives constructed by the mainstream media. These studies show that digital platforms like Twitter “offer citizens most invisible in mainstream politics radical new potentials for identity negotiation, visibility, and influence.”

It is believed that over 5,000 men were killed by the Kenyan army in 1984 when it went in to disarm Somalis in the county following ethnic conflicts.

A classic example of the power arising from the intersection of marginalized publics and digital media is the #BlackLivesMatter (BLM) movement. This group, which was created and organized by youthful online activists highlighting racial injustice in the US, remains impactful and has been successful in setting the agenda in the US and elsewhere. The killing of George Floyd in Minnesota in 2020 that ignited an explosion of protests from Minneapolis to Accra, demonstrates how digital media has the power to set the agenda for national and global discourses.

In Nigeria, the lack of critical coverage of campaigns such as the #EndSARS movement prompted protesters and community leaders to take to social media platforms. Protesters in the West African country called for the abolition of the notorious Special Anti-Robbery Squad (SARS) that has terrorized Nigerians for years. South Africa’s #FeesMustFall was also successful in fighting plans to increase fees in higher education, advocating instead for increased funding to universities. These examples are testaments to the importance of social media for excluded citizens such as Kenyan Somalis.

Human rights lawyer Abdinassir Adan was among the Twitter users who tirelessly advocated for the release of Abdiwahab. He affirms that social media remains an important tool “because it is an easy way to get attention from the state [and] it is a quick way of making it trend. Our main aim is to create awareness and stand up against enforced disappearances and injustice [that are] contrary to the rule of law.”

Adan shares the frustrations of many, pointing out that the limited and uncritical coverage of these abductions by the Kenyan mass media forces them to raise this awareness online. “It is very unfortunate that the mainstream media over the years has been ignoring challenges faced by the Somali community in Kenya. Social media has rendered the hollow and the gibberish media useless. In a nutshell, we felt that digital media is more effective, and it easily helped us to achieve our goals.”

Are social media platforms the solution? 

Judging by the reaction to the abduction of Abdiwahab, it is evident that marginalized communities in northern Kenya are systematically using social media to change the culture of news media production in Kenya. The result is that, as a primary agenda-setter, the Kenyan press has been forced to adopt the social media agenda created by the public and make it part of the national agenda.

While this is a good opportunity for minority communities across Kenya, it is important to address the question of whether this is good in the long run. Most of the citizens in these northern counties still receive their news through traditional media, particularly community radios. While young people like Adan, who mostly reside in urban areas, can afford smartphones and have internet access to push back against government discrimination and media bias, a large proportion of the population of these counties is left out.

Moreover, by their very nature, these platforms have helped advance free speech, prompting some African governments to try to curb the freedom of expression among citizens by introducing high taxes on digital activity and passing restrictive legislation.

Further, online platforms have also been infiltrated by users who spread propaganda on behalf of the state. Social media influencers are paid as little as US$15 to spread disinformation, creating negative perceptions for institutions like the judiciary. This can have a negative impact on marginalized communities that depend on these platforms to share their challenges.

As a primary agenda-setter, the Kenya press has been forced to adopt the social media agenda created by the public and make it part of the national agenda.

The mainstream media should not remain passive, waiting for social media to highlight cases of human rights abuses against the people of northern Kenya. The demonstrated systematic pattern of targeting this group by government security agencies is enough to warrant a comprehensive, critical coverage of this important issue.

The Twitter conversations are also a reminder to Kenyan security agencies that, unlike the past, neglected citizens like those from north-eastern Kenya are now armed with digital platforms to counter-narratives constructed by the political and media elites.

In an age where information is shared within seconds, it is time the Kenyan government drops its abusive counter-terrorism tactics and systematically investigates cases like that of Abdiwahab. The Kenyan government and mass media need to treat Kenyans equally and to apply the law equally to citizens accused of any crimes. When communities in northern Kenya are accorded the same treatment as others across the country, then perhaps people like Adan will not be forced to use Western-owned digital media tools to highlight the challenges faced by Kenyans like him.

Kadhi courts are arguably the oldest judicial institution in Kenya, being the judicial system prevailing in the Sultanate of Zanzibar that controlled a substantial portion of the East African coast.

In the 1963 agreement between Prime Minister Muhammad Shamte of Zanzibar and President Jomo Kenyatta of Kenya, the coastal strip was brought within the territorial jurisdiction of Kenya. In exchange, the Kenyan government would guarantee the preservation the Muslim religion and its institutions, courts, officers, schools, lands and the Arabic language within the new state.

Kadhi courts have thus been an integral part of the judiciary since pre-colonial times and were the focus of fierce contestations during the 2010 constitutional review process in Kenya.

Kadhis, especially the Chief Kadhis, have always been males, appointed from Muslim communities and from scholarly Arab Muslim families at the coast (the Saggafs, the Mazruis, the Bākathirs and the Barawa). After independence, Kadhis were also appointed from other non-coastal communities, notably the Somali.

Female Kadhi

Following the promulgation of the 2010 constitution, Kadhi courts now reflect the face of Kenya. In the last decade, the Judicial Service Commission (JSC) has recruited Kadhis from a pool of scholars of Islamic law, some hailing from such minority Muslim communities as the Maasai, the Agikuyu, the Ameru, the AbaGusii, the Turkana and the iTeso. Yet the gender composition of the courts remains unresolved, and it has become a topic of debate in the last few months.

It is not clear what has sparked the recent debates, but the impending retirement of the current Chief Kadhi, Hon. Ahmed Muhdhar, must have animated discussions among the various interest groups over the possibility of appointing a Chief Kadhi of non-Arab descent and the appointment of female Kadhis, both of which are unprecedented in Kenyan legal history.

The Kenya Muslim National Advisory Council (KEMNAC), led by Sheikh Juma Ngao, had in the months before the women Kadhis debate erupted called successive press conferences pitching for the appointment of a non-Arab Chief Kadhi.

The women Kadhis discussion only came to the fore after The Standard published an article asking whether the time was ripe for a female Kadhi.  Another piece followed in The Nation. In early July 2021, the Garissa Township Member of Parliament, Hon. Aden Duale, weighed in on the question while addressing a gathering. He came out strongly in opposition to the appointment of women Kadhis. Duale wields immense authority among the Muslims of northern Kenya and his comments generated debate within the Muslim social spaces. I followed the debates closely and actively participated in some of the discussions, especially on Facebook. I documented some of the comments, followed almost every discussion on social media, on television and in the Friday Khutba sermons such as those by Sheikh Feisal Al–Amoody of Malindi and Ibrahim Lethome of Jamia Mosque Nairobi. Various sheikhs also commented on the debate in their darsas (mosque lessons), notably Al-Sayyid Ahmad Ahmad Badaway, aka Mwenye Baba, who is regarded by the Muslim faithful as one of the foremost religious authorities.

Contestation

The contestation over the appointment of female Kadhis in Kenya first arose during Chief Justice Willy Mutunga’s time at the judiciary. The Chief Justice, a known crusader for equality and human rights, openly backed the appointment of women to serve as Kadhis. Predictably, this put him on a collision course with the National Muslim Leaders Forum (NAMLEF) and the Supreme Council of Kenya Muslims (SUPKEM). Both strongly objected to such appointments. They occasionally used the Friday sermons to teach and remind Muslims of the position of Islamic jurisprudence on the appointment of female Kadhis. Sheikh Bahero of Bakarani Mosque, Mombasa, for example, dedicated khutba after khutba to this issue.

The latest debates have seen the two organizations take a measured approach while KEMNAC has taken centre stage in shaping the discourse. I can confirm that KEMNAC, Jamia Mosque Nairobi, SUPKEM and the Council of Imams and Preachers of Kenya (CIPK) have all written to the JSC urging that women should be not be appointed as Kadhis. So far, the only organ that has come out clearly in support of the appointment of women Kadhis is Muslims for Human Rights (MUHURI) led by Khelef Khalifa.

Perhaps the most eloquent opposition to the appointment of female Kadhis is from Hon. Aden Duale’s speech transcribed below:

We will not listen to what the NGOs will tell us. We will not listen to what government will tell us. We will not listen to what Western countries and powers will tell us. Sisi ni Waislamu, katiba yetu sisi ni hiyo kitabu ya Qur’an awwalan (We’re Muslims and our Constitution is that book of Qur’an first). Hii ingine ya Kenya inakuja second (This other one of Kenya comes second). We will not accept a woman to be a Kadhi. It is not found in the Qur’an, and it is not found in the teachings of the Prophet. Wakati wa nikaah, umeona mwanamke huko? (During marriage solemnization, do you see a woman there?). Islam has given the roles women can perform and the roles they cannot achieve. [Hon.] Martha Koome is a Chief Justice in a secular judiciary, and she is not a Chief Justice over religious organization or religious belief. Msijaribu kuweka mkono yenu katika (do not try to interfere in) how Islam is run in this country, the same way we will not allow you to run the Christian faith. We must leave it to the bishops. We must respect religious leaders kama nyinyi mnataka hii Kenya ikuwe nchi nzuri (If you want Kenya to be a nice country). . . .”

Such a speech conjures up images of past contestations over the inclusion of Kadhi courts in the 2010 constitution and raises questions as to whether the debate was concluded. Even though the Christian clergy who vehemently opposed the inclusion of the Kadhi courts in the 2010 constitution have moved on, some of the fears they raised at the time now seem to have caught up with Muslims.

The Jurists

As Duale stated, there is no specific Quránic verse or Hadith (Sayings) of the Prophet that approves of the appointment of women to the position of Kadhi or to any other position of leadership. The Hadith that says, “There shall not prosper a nation that appoints a woman to rule them,” is often quoted as a direct prohibition. There are verses of the Qur’an, like 4:34, that show men’s authority over women, and only in the story of the Queen of Saba (Sheba) is a woman seen to have power over men.

Some verses discourage women from mixing with men or appearing “unnecessarily”   in public places. Further, the two-women-equals-one-man ratio in the inheritance law and in the law of testimony during evidentiary proceedings signifies, in the opinion of the majority of jurists, that the woman is not a man’s equal.

The only organ that has come out clearly in support of the appointment of women Kadhis is Muslims for Human Rights (MUHURI) led by Khelef Khalifa.

Furthermore, in the fourteen centuries of Islamic history no woman has been appointed to the position of judge (Kadhi). Then there is the Hadith that says a woman is deficient in intellect and religiosity, which is taken to warrant her disqualification from holding such an important office.

A majority of Muslim exegetes and jurists in the pre-modern era took to these arguments as a restatement of the law on this particular question: Women should obey their husbands, stay at home, and have no authority over men.

Another class of jurists has provided interpretations that seem more gender-egalitarian and have used historical, logical, textual and contextual nuances in the explanation of the texts relied upon by the first strand of jurists. Their discussions can be found in the studies by Prof Mohammad Fadel  of the University of Toronto School of Law and by Dr Abdulkadir Hashim, a Senior Lecturer in the Department of Philosophy and Religious studies of the University of Nairobi.

All the verses and Hadith relevant to the question of female Kadhis are analysed in their two works using exegetical, hermeneutical and comparative perspectives. Fadel uses tools within the philosophy of Islamic jurisprudence to argue that appointing women as judges in Kadhi courts is possible even without resorting to extraneous sources of law for justification. On the other hand, Hashim uses both historical and comparative law approaches to answer this question while situating it within the immediate Kenyan context.

Women should obey their husbands, stay at home and should have no authority over men.

On comparative perspectives, there is a text titled Women Judges in the Muslim World: A Comparative Study of Discourse and Practice by Nadia Sonneveld and Monika Lindbekk. This work documents the practice of appointing Muslim women in Muslim majority countries to be judges, and even more specifically, Sharia court judges who are the equivalent of Kadhis.

These countries include Malaysia, Pakistan, Palestine and Indonesia. Most of these countries are, like Kenya, commonwealth-common law jurisdictions with a rich Islamic heritage and a robust jurisprudence. Islamic law forms part of its basic structure and can provide parameters for consideration in Kenya.

Pakistan, for example, has a Federal Shariat Court (FSC) that checks on the repugnancy of any law to the doctrines of Islam. Twice, a petition was filed to bar women from being appointed as judges using arguments from within the Islamic legal tradition. The FSC threw out both petitions.

Reflections on the female Kadhis debate

The female Kadhis debates have generated a few thoughts. First, most Muslims are not aware of the historical developments in the court across the years, the laws that regulate the functionality of the court, the recruitment procedures for Kadhis, and the status and place of Kadhis and Kadhi courts in the judicial structure in Kenya. One discerns from the discussions that they are speaking of an idealized Islamic court, in a historicised Islamic state far removed from modernity, globalization and the realities of the nation-state that is Kenya.

Second, secular-religious dialectics pop out in these discussions. There are questions as to whether the constitution is superior, or whether it is God’s law that is superior. Some other Muslims are asking whether Kadhis are judicial officers performing religious duties or religious leaders performing secular judicial functions, or even both.

Third is the crisis of Islamic scholarship and religious authority in Kenya, something that has been alluded to in the past. Unlike the Catholic Church, for example, Muslims do not have a papal figurehead. Their religious and legal authority derives from allegiance to the Qur’an, the Hadith and the interpretation of these sources by Muslim jurists of the four schools of law across the centuries and geographies. Muslim states, and some Muslim minority states such as Uganda, have an official Mufti who is the ultimate authority on issues at the intersection of religion and governance.

On the particular question of female Kadhis, there was a whole mix of people attempting to issue a fatwa on a question that no one, not even the JSC, raised. The rules of fatwa in the Islamic legal tradition are that there must be someone or an entity that asks a question seeking legal interpretation. A juristic authority must exist to answer the question authoritatively. Neither has the JSC asked anyone to provide a ruling on the appointment of female Kadhis, and nor do we have such a fatwa-issuing authority in Kenya currently. I have previously asked for the constitution of such authority.

Women in the pre-modern era in the Roman, Persian and Islamic civilizations essentially did not have authority over men and did not hold public office except in monarchical structures. The absence of women in public office was not limited to the judgeship only. Before the modern nation-state, we did not have Muslim women as presidents, ministers of state, peoples’ representatives, or managers in public corporations. In a strictly “Islamic sense” as expounded by the first group of jurists, no Muslim woman would be qualified today to hold any such office.

There are questions as to whether the constitution is superior, or whether it is God’s law that is superior.

It is true that women, even in other religious groups, do not solemnize marriages. But Kadhis today rarely solemnize marriages as Muslim marriage officers appointed under the Marriage Act 2014 are spread across the country. Imams even solemnize the bulk of marriages, and parties only come to court to make applications before the Kadhi for marriage recognition and registration. What prevents a female Kadhi for example, from making judicial orders that a potential couple have met the requirements of marriage in Islamic law and can therefore proceed to a recognized marriage officer of their choice for solemnization of their marriage?

There is also the apprehension that as Kadhis, Muslim women will have the authority to dissolve marriages, an authority popularly exercised by men within the domestic sphere. It is a known fact that Muslim women have been unilaterally dissolving their marriages through the khul’ procedure and nothing in Islamic law denies them that jurisdiction. As Kadhis, Muslim women would be exercising public authority in dissolving marriages by judicial decree, the same way women magistrates do. They would only be observing the regulations for the judicial dissolution of such marriages as provided for under Islamic law.

Moreover, Kadhis’ appeals go to the High Court, and women judges in the High Court dissolve the same Muslim marriages. So, it smacks of cognitive dissonance to deny Muslim women an opportunity to serve in the Kadhi courts on the basis that women did not have that jurisdiction in the past. Yet, the same jurisdiction is exercised at appeal by women, and Muslim women judges in particular.

The ignored Constitutional context

Unlike the Independence Constitution, the 2010 Constitution provides in Article 27 for the two-thirds gender rule, which requires that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. Article 170 of the constitution that provides for the appointment of Kadhis does not specify the gender of the Kadhis, and that has been a fundamental aspect for those agitating for the appointment of female Kadhis.

It smacks of cognitive dissonance to deny Muslim women an opportunity to serve in the Kadhi courts on the basis that women did not have that jurisdiction in the past.

A notable aspect is that the constitution is absent in the intra-Muslim discussions on female Kadhis, either because Muslims do not believe in the supremacy of the constitution as suggested in Hon. Duale’s remarks, or Muslim religious authorities see it as a hot potato, or both. I expected someone like Sheikh Ibrahim Lethome, an advocate, a former CKRC Commissioner (Constitution of Kenya Review Commission) and someone trained in Islamic law to have a broader approach to this question that situates the constitution within the discourse. He has been on many platforms speaking about this issue, but he has chosen to gloss over the place of the constitution in the question.

Old jurists’ opinions are authoritative but not timeless; neither are they eternal in their signification. They are embedded in a context, and contexts change, and such changes require the expenditure of juristic energy in finding solutions to old questions posed in a different environment. That energy is what Muslim scholars in Kenya worth the name must expend.