Muslim Women in Postcolonial Kenya: Leadership, Representation, and Social Change

Chapter 4: Judge Abida Ali-Aroni: First Muslim Woman Justice of the Kenya High Court

Introduction The increase in the proportion of Muslim women in the Tenth Parliament was partly a product of the gains from civic and political struggles for constitutional reform in Kenya. As Willy Mutunga () demonstrates in his insightful study, these struggles go back to the final years of Daniel arap Moi’s presidency, during which civil society, under the leadership of the National Conference Executive Council, put pressure on the government to constitute a national conference. And when the government would not submit to popular pressure, except by way of making changes in electoral laws and procedures to level the playing field, the council went ahead and drafted a symbolic constitution. It was not until the post-Moi era and under Mwai Kibaki’s first term as president that the process of constitutional review was finally taken over by the government (Katumanga ; Mutunga ). Mwai Kibaki himself understood only too well the need to move quickly to put a comprehensive constitution review process in place. After all, it was the same civil society forces pushing for constitutional reform that put him in power. So in  the Kibaki government established the Constitution of Kenya Review Commission under the chairmanship of Yash Pal Ghai. The constitutional conferences organized by the commission used to meet at the Bomas of Kenya— essentially a modern village that serves as a tourist attraction—and documents arising from it are widely known as the Bomas Draft Constitution.The first  4 Judge Abida Ali-Aroni First Muslim Woman Justice of the Kenya High Court My agenda really is the agenda for women generally speaking and the agenda for the Muslim community. —Abida Ali-Aroni and most popular of these documents was known as the Ghai Boma Draft. Further negotiations and compromises, after Yash Pal Ghai, a Kenyan of Asian origin of Hindu faith,resigned from the commission in protest against the Kenya government’s alleged tampering with the constitution-making process (Rutten ) and was replaced by Ali-Aroni, resulted in the second Bomas Draft.This document was then further doctored by the then attorney general,AmosWako,resulting in theWako Draft.And it was theWako Draft that was rejected in the  constitutional referendum (Rutten ). The dispute over the results of the  presidential elections exploded into weeks of widespread violence in the country. This situation resulted in the negotiations headed by former UN secretary-general Kofi Annan, which led to the national accord and a power-sharing formula between the contending parties. A key requirement of the accord was a new constitution for the country.As a result,Parliament enacted the Constitution of Kenya Review Act in , appointing a committee of experts to solicit the views of the citizens on various contentious issues and produce a new draft constitution that was finally adopted after receiving overwhelming support of Kenyans in the  referendum. The imperative of representation along gender, religion, ethnicity, age, and disability lines consistently framed the constitutional struggles in Kenya.This demand naturally led to the participation of several Muslim women at the center of the constitutional reform movement, representing one civil society constituency or another (Cussac , ; Kabira ). Indeed, a number of “minority” representatives rose to sudden visibility during this period. Among those Muslim women who became very involved in the process was Sultana Fadhil.With Naima Bin Daghar,she was among the very few Swahili women to be trained in and enter the practice of law,serving first at the bench as a magistrate and later at the bar with her own chamber in Mombasa, Fadhil and Kilonzo Advocates. Fadhil was a founding member of Muslims for Human Rights and for a while served as the chair of its executive board. Partly because of her training in law, her human rights and women’s rights work,and her community orientation,she was among the first Muslim women whose participation in the constitution review process was sought after by Muslims on the Kenyan coast. Another Muslim woman similarly sought after for the review process is the one who is the subject of this chapter,Abida Ali-Aroni, a lawyer by training and a judge of the High Court of Kenya since June . In fact, AliAroni is the first Muslim woman ever to be appointed a judge of the High Judge Abida Ali-Aroni  Court in Kenya. Prior to this most recent national judicial appointment, she had achieved public prominence in  after her appointment in July  as the second chairperson of the Constitution of Kenya Review Commission . Given the tendency toward the...