AG demands fast hearing as security chiefs meet General Amos Wako has written to the Court of Appeal requesting his appeal against a High Court ruling Islamic family courts are unconstitutional be heard before the referendum. .
It also emerged five people were on Wednesday arrested carrying copies of the Proposed Constitution which police believe they were going to destroy in Nairobi’s Gigiri area. Police said the men were carrying the copies in a pickup truck but they were tipped off around midday and swung into action. Wako dispatched his letter to the higher court from abroad as commanders of top security organs met to review the security situation in the country, especially after the controversial ruling on a case filed in 2004 but remotely connected to the Proposed Constitution.

To fast-track the process, Wako also wrote to the High Court Registrar, seeking to be supplied with uncertified copies of the proceedings to enable him prepare a Record of Appeal.

"Kindly but urgently supply us with uncertified copies of proceedings in this matter to enable us prepare a Record of Appeal. It will be prudent that a Record of Appeal be prepared and the appeal be heard before the referendum," he wrote.

Senior Principal Litigation Counsel, Mr Anthony Ombwayo, signed the letter dated May 26, on Wako’s behalf.

Imenti Central MP Gitobu Imanyara on Wednesday revealed he filed a Motion in Parliament seeking to allow Members to discuss the ‘conduct’ of the three Judges and review the rulings they have made before Monday’s.

He also wants Parliament to discuss the constitutionality of Justice Nyamu’s presiding role over a judgement in a High Court when he had already been promoted to Court of Appeal.

Mr Imanyara explained the issues he wanted discussed include why the judges delayed giving judgement on the case, which was concluded over 14 months ago, and only released it this week, two months to the referendum on Proposed Constitution.

Security matters

"The Judges should explain why they chose this particular time to give the judgement. Was the intention to sway public opinion in favour of the ‘No’ camp?" Imanyara posed.

Top security chiefs met to, among others, discuss the impact of the High Court judgement on illegality of Kadhis’ Courts in the current Constitution. Those who met under the umbrella of National Security Council at the Office of the President are said to have also discussed other security matters affecting the country.

Sources said there was a general feeling that the judgement on the courts had a security implication.

The meeting began at 2pm and ran to late evening with those in attendance agreeing the judgement by Justices Joseph Nyamu, Roselyn Wendoh and Anyara Emukule could impact on Christian-Muslim relations in the country.

Among those in attendance were Chief of General Staff (CGS) Gen Jeremiah Kianga, his vice Gen Julius Karangi, Head of Public Service Francis Muthaura, Internal Security Permanent Secretary Francis Kimemia, Commissioner of Police Mathew Iteere, National Security Intelligence Service Director General Maj-Gen Michael Gichangi and Foreign Affairs PS Dr Mwangi Thuita. Cabinet Ministers George Saitoti (Internal Security) and Yusuf Haji (Defence) also attended.

Gigiri police chief Josek Nasio said the five arrested men are suspected to have obtained the copies of the Draft from the Committee of Experts offices in Delta House, Westlands.

"We are informed they were going to destroy the copies. We want to establish their motive," said Nasio.

A senior officer working with CoE told The Standard the experts had not been informed about the recovery.

The letter from Wako to the Court of Appeal comes barely 24 hours after he filed a Notice to Appeal against the controversial judgement that has generated a lot of debate in the country.

In their judgement the judges declared Kadhis’ Courts in the current Constitution illegal.

They also declared that the financial maintenance and support of Courts from public coffers amounted to segregation, is sectarian discriminatory and unjust to other faiths and amounts to separate development of one religion.

Urgent matter

This they argued is therefore contrary to the principle of separation of State and Religion and is therefore contrary to the universal norms and principles of liberty and freedom of religion envisaged under the Constitution.

Reacting to Wako’s application, HAKI Focus director, Harun Ndubi said there was need for the AG to make an application before Court of Appeal, seeking interim orders stopping execution of the judgement.

Mr Ndubi argued that the matter was urgent because the ruling had put some of the cases pending before the Kadhis’ Courts in limbo.

Details on the deliberations at the meeting by the security chiefs remained scanty as most of those in attendance said they were confidential. "You wrote most of what was discussed in the papers while others are security issues touching on the country," said a source privy with the deliberations.

Security chiefs are said to be worried the ruling could lead to religious tensions between Kenyans and clashes if not handled carefully. They also argue it may affect the coming referendum in many ways given the time it was delivered.

Wako, who is in London on official duty, argued the court lacked jurisdiction and its ruling was wrong in law and creates a bad precedent.

Muslim leaders led by Chief Kadhi Hammad Kassim have urged Kenyans to remain calm and focused as the issue was sorted out through other legal channels.