Moon sighting: Court petition seeks end Chief Kadhi’s role
According to the petition, moon-sighting is a religious obligation and it should not be undertaken by a state-appointed judicial officer.
Before the advent of colonial rule in the 19th century, moon-sighting along the East African coast was managed locally by Kadhis and Islamic scholars. As part of an established judicial and religious system, these scholars were responsible for receiving and verifying physical moon-sighting reports before declaring the beginning and end of Ramadhan, as well as the dates of Eid celebrations.
During the British colonial era, the office of the Chief Kadhi assumed a more centralized role in moon-sighting declarations, largely aimed at fostering unity within the Muslim community. Owing to their scholarly standing and religious authority, Chief Kadhis earned widespread recognition from both the colonial administration and society.
Although regarded as judicial officers, Chief Kadhis were accommodated within the colonial religious framework and occupied a significant position within the Protectorate's governance structure.
More than six decades after Kenya attained independence, the tradition of the Chief Kadhi announcing the commencement and conclusion of Ramadhan, as well as Eid celebrations, has largely remained intact. However, in an unprecedented legal challenge, a petitioner has moved to the Constitutional and Human Rights Division of the High Court seeking a declaration that such pronouncements by the Chief Kadhi are unlawful as they lack legal foundation and statutory authority.
The petitioner, Abdirazack Issack Sheikh, through his lawyers, Okoyo and Orina Advocates, has filed a constitutional petition against Acting Chief Kadhi Sheikh Hassan Sukyan Omar. Also named as respondents are the Attorney General, the Judicial Service Commission, and the Cabinet Secretary for Interior and National Administration.
In addition, the petitioner seeks orders barring the Cabinet Secretary for Interior and National Administration from consulting the Chief Kadhi when designating Eid-ul-Fitr and Eid-ul-Adha as public holidays.
According to the petition, moon-sighting is a religious obligation that should be undertaken by a religious council rather than a state-appointed judicial officer. However, the petitioner does not specify which religious body should assume that responsibility.
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Abdirazack argues that moon-sighting declarations are fundamentally religious in nature and that judicial officers should not be vested with such authority. He further contends that the role of declaring moon sightings is not provided for under the Kadhis' Courts Act and that neither the Chief Kadhi nor other Kadhis, who serve as judicial officers, should participate in the process.
Traditionally, the Chief Kadhi coordinates nationwide moon-sighting exercises by receiving and verifying reports from Kadhis and Islamic scholars across the country before making an official declaration.
“The Petitioner avers that the moon-sighting declarations or powers to make moon-sighting declarations as exercised by the Chief Kadhi are not derived from any law, are not provided for in law, and that the Chief Kadhi does not possess such powers, not even under Muslim law,” the petition states.
He goes further to state that by involving himself in moon sighting matters, the Acting Chief Kadhi has abused his constitutionally and statutory mandated powers, “causing disagreements within the Muslim community.”
Among the orders sought, Abdirazack asks the court to prohibit the Chief Kadhi from declaring Eid-ul-Adha, Eid-ul-Fitr, and the commencement and conclusion of the holy month of Ramadan on the grounds that he lacks lawful authority to do so.
In his prayers, he sought the court to forthwith issue an order prohibiting the Chief Kadhi from declaring Eid Al-Adha, Eid-Ul-Fitr and to declare the start and end of the holy month of Ramadhan for lack of lawful authority.
“An order of declaration declaring that the Chief Kadhi as a judicial officer does not have powers to declare Eid-Al-Adha, Eid-Ul-Fitr and to announce the start and end of the holy month of Ramadan for want of such powers prescribed in law,” he said.
