Battle over Muslims' moon sighting role lands in court

A court battle over who should declare sighting of the moon, to mark the end of the Muslims’ holy month, has landed in court.

Abdirizak Issack Sheikh has sued the acting Chief Kadhi, Attorney General, the Judicial Service Commission (JSC), and the Interior Cabinet Secretary, arguing that the role is to announce the start and the end of Ramadan, Eid Al-Adha, and Eid-Ul-Fitr cannot be vested in the Chief Kadhi as he is a judicial officer and not an Islamic religious leader.

“ Moon sighting determinations fall ultra vires with the Kadhi Courts’ jurisdiction as defined by the constitution and statute, and that such moon sighting announcements lack the essential characteristics of judicial proceedings, proper pleadings, identifiable parties, adversarial judicial process and enforceable judgements,” argued Issack.

In his case, the man said that Kenya stands alone, internationally, as other countries have separate religious councils which have the power to declare the holy months.

He insisted that Kenyan law is silent on the powers of the Chief Kadhi, other than being the head of the Kadhi’s court.

Issack added that on the flip side, the drafters of the law presumed that Chief Kadhi would only sit in instances where there is an existing dispute, but not administrative ones.

“Requirement that “all parties profess the muslim religion” presupposes the existence of disputing parties and not unilateral administrative pronouncements and that parties must ‘submit to the jurisdiction', implying voluntary consent to adjudication, a consent inapplicable to general religious announcements affecting all Kenyan muslims regardless of their consent,” he said.

Issack insisted that there is nowhere that the law gives him the noble task of citing the moon.

“The Judicial Service Act (2011) defines a “judicial officer” to include Kadhis, subjecting Kadhis to the same administrative framework, disciplinary oversight and codes of conduct as magistrates and registrars and that allowing Chief Kadhi to make moon sighting declarations and announce the beginning and the end of Ramadan without any jurisdictional framework is unlawful and as such, are functions exercised outside the law,” Issack’s court papers read in part.

According to him, moon sighting in Kenya has always been controversial. He argued that this is because of the alleged differing opinions between the Chief Kadhi’s and other Muslim religious leaders. He asserted that courts ought to clear the process by making a finding in his favour.

“ As such, the petitioner contends that these moon sighting declarations made by the Chief Kadhi fall in conflict with the moon sighting by other muslim faithfuls thereby leading to conflict of opinions and compromising access to justice by persons who hold a different view from those of the Chief Kadhi when they appear before the Chief Kadhi, as such, rendering access to justice compromised whenever such persons appear before the Kadhi for dispute settlement,” he argued.

In his supporting affidavit, he said that the Kadhi’s Court Act is clear that a Chief Kadhi ought to settle disputes relating to the Islamic religion. He said that these included personal status, marriage, divorce or inheritance.

However, he said, moon sighting is a spiritual matter.  He accused the JSC of encouraging the Chief Kadhi to take up spiritual functions, which allegedly are not within his powers.

“The purposeful reading of both provisions limits the Chief Kadhi’s judicial functions and does not permit him to handle spiritual matters, which would ordinarily include moon sighting declarations and the announcement of Eid Al-Adha, Eid Ul-Fitr, and Ramadan. Legal provisions require the Chief Kadhi to limit himself and his powers within the provisions as provided, and in any case, do not stretch to cover spiritual and or theological considerations,” he continued.

Issack wants the court to declare that Chief Kadhi is a judicial officer and not a religious one. He also wants the court to find that he cannot and does not have the power to declare sighting of the moon. Instead, he said, the court should find that this can only be done by religious councils.