Magistrates Courts
Other than just a brief mention, the New Constitution does not say much else about these Subordinate Courts except to grant Parliament the powers to define the functions, roles and jurisdiction of these courts. Part 3 - Subordinate Courts, Article 169, excerpts:
169. (1) The subordinate courts are— (a) the Magistrates courts;
(2) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).
Subsequent to the 2013 General Elections, the Magistrate Courts were engaged in hearing electoral petitions for County Assembly seats. The Chief Justice has also been granted by the Industrial Court Act, 2011 the authority to appoint some Magistrates Courts to hear and determine employment and labour relations (industrial) disputes. Obviously, appeals from these courts would then fall back on the Industrial Court.
Kadhis' Courts
Although a Subordinate court, the inclusion of the Kadhi's courts in the New Constitution elicited close debate in the 2010 constitution referendum mainly for the reason that Kenya is a secular state, and Islam is practised by a minority. The major religions felt that this inclusion was unnecessary with some being of the suspicion that it was mischievous, and could impose Muslim law on non-Muslims. They also argued that the expected indirect funding of these courts by non Muslims (through taxation) was unfair to them because they too have historically had well established dispute resolution mechanisms within their religions and which they have funded themselves.
The Constitution is specific about the jurisdiction of this court; Part 3 - Subordinate Courts:
170. (5) The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.
As is the case with magistrate courts, Parliament is granted the power to define the jurisdiction, functions and powers of the Kadhis Courts. MPs (and Senators) professing the Muslim faith will by default be a minority; hence it will be interesting to follow debates and enactment of the laws governing the Kadhis Courts.
Kadhis Courts will be headed by a Chief Kadhi:
170. (1) There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament.
Persons appointed as Kadhis may or may not be advocates of the High Court but will be sufficiently proficient in Muslim Law and be professed Muslims.
Courts Martial
This is a Subordinate Court established by the New Constitution.
169. (1) The subordinate courts are— ........ (c) the Courts Martial; ........
(2) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).
The legislation referred to above is effected in the detailed Kenya The Kenya Defence Forces Act, 2012, that also numerates the various offences that this particular Court can try - mainly involving serving members of the Forces.
Of particular note is that the Director of Public Prosecution DPP has not been granted any powers over prosecutions in the Courts Martial. Excerpts from Article 157 of Chapter 9 The Executive, Part 4 - Other Offices:
157. (6) The Director of Public Prosecutions shall exercise State powers of prosecution and may — (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) ....... (b) take over and continue any criminal proceedings commenced in any court (other than a court martial) ...... .
However, the Act provides that a convict of this Court can appeal to the High Court and that the DPP can also lodge a similar appeal: The Kenya Defence Forces Act, 2012 Part X: Appeals From Courts Martial:
186. (1) If a person has been convicted by a court martial–– (a) the person convicted may appeal to the High Court and make subsequent appeals to any
other superior court, against the conviction, the sentence, or both; or (b) the Director of Public Prosecutions may appeal to the High Court against the sentence.
(2) If a person has been acquitted of a charge by a court martial, the Director of Public Prosecutions may appeal to the High Court against the acquittal.
