Kenya, despite being a Christian-majority country, has a legal framework that enshrines everyone’s rights with regards to their religious affiliations. However, there seem to be confrontational conflicts between various religions competing for influence within the country and religious groups fighting for control of the national culture. Perhaps this is attributable to the dominance of Christianity in the State’s functions which to some serves to legitimize State power, religious and political organisations competing for ‘institutional and expressive power’. Also, human rights groups and prominent Muslim leaders and religious organizations continue to state that the government’s antiterrorism activities disproportionately affect Muslims, especially ethnic Somalis and particularly in areas along the border with Somalia where there have been several reports of extrajudicial killings, enforced disappearances, torture, arbitrary arrest, and detention.[1] Thus, it is very pitiful that people on the upper echelons of power, of certain religious opinions, would impose their beliefs and practices on other people who are least involved in that form of religion. Citizens are now more concerned that their government may violate or offend their religious sentiments. This has become a problem bedevilling a somewhat previously tranquil relationship between the state and religion in Kenya.
By drawing on extensive primary source materials and tracing controversial government functions, this article examines the legal framework in place for the protection of freedom of conscience, belief and religion; the religious demography of Kenya; and the radiating effects of the State’s activities on popular religious consciousness. This article has taken note of the topic of a religion becoming very sensitive in Kenya, hence it is a regular subject in political or general debates. It, therefore, intends to shed new light on the Sangam of law, religion, politics, and society.
This article is not an attack on those theorized practices, commonly classified as ‘religious’, which many people hold to encompass what is truly valuable in our personal and collective lives. In the same vein, I do not reject Christians’ role in politics wholesale. However, I argue that democratic government must reflect the society it represents. Since Kenya has several religious groups inter alia; Christians, Muslims, Hindus etc, the government must have a religious character capturing this religious diversity.
Defining Key terms
It is essential that I define religion (a key concept), before engaging in the current discourse. It is not obvious in what sense any particular ‘religion’ exists at all.[2] Thus, defining religion has an inherent difficulty. Horton summarises three prominent definitions of religion.[3] One defines religion as ‘covering an area of human activity which lacks sharply delineated boundaries’, the second refers to religion as ‘a class of metaphorical statements and actions obliquely denoting social relationships and claims to social status’, whilst the third definition is ‘the belief in the supernatural’.[4] However, despite the ingenuity of these definitions, Horton concludes that they are not satisfactory.
Religious demography in Kenya
Organisations that claim to have undertaken quantitative research on religious statistics and general census in Kenya have come up with generally consistent reports. For instance, the 2021 Report on International Religious Freedom in Kenya estimates the total population at 54.7 million (midyear 2021). The government estimates that as of 2019, approximately 85.5 per cent of the total population is Christian and 11 per cent Muslim.[5] Groups constituting less than 2 per cent of the population include Hindus, Sikhs, Baha’is, and those adhering to various traditional religious beliefs. Nonevangelical Protestants account for 33 per cent of the population, Roman Catholics 21 per cent, and other Christian denominations, including evangelical Protestants, African Instituted Churches (churches started in Africa independently by Africans rather than chiefly by missionaries from another continent), and Orthodox churches, 32 per cent.[6]
Most of the Muslim population lives in the Northeast and Coastal regions, with significant Muslim communities in several areas of Nairobi. Religion and ethnicity are often linked, with most members of many ethnic groups adhering to the same religious beliefs. For example, ethnic Somalis and Swahilis living in the Coastal region account for the majority of the Muslim population. The five largest ethnic groups (the Kikuyu, Luhya, Kalenjin, Luo, and Kamba) are predominately Christian. There are more than 230,000 refugees and asylum seekers in the Dadaab refugee camps near the Somali border, mostly ethnic Somali Muslims. The Kakuma refugee camp in the Northwestern part of the country has more than 177,000 refugees, including Somalis, South Sudanese, and Ethiopians, who practice a variety of religions.[7]
Legal framework and the practice of religion
A religious society embraces religion in large part because it accords with society’s general sense of justice. Today this sense includes respect for human rights. If a government defends human rights, it also defends religion because a just understanding of religion incorporates human rights.
There is not much legislation dealing with the practice of religion in Kenya. The most elaborate legislative text on religion in the Kenyan legal system is the Constitution which conceptualises the practice of religion. The Constitution stipulates there shall be no state religion[8] and prohibits religious discrimination.[9] The Constitution provides for freedom of religion and belief individually or in communities, including the freedom to manifest any religion through worship, practice, teaching, or observance, and to debate religious questions.[10] The Constitution also states individuals shall not be compelled to act or engage in any act contrary to their belief or religion. These rights shall not be limited except by law, and then only to the extent that the limitation is ‘reasonable and justifiable in an open and democratic society’.
The Constitution requires parliament to enact legislation recognizing a system of personal and family law adhered to by persons professing a particular religion. It also specifically provides for Kadhi courts to adjudicate certain types of civil cases based on Islamic law, including questions relating to personal status, marriage, divorce, or inheritance in cases in which ‘all the parties profess the Muslim religion’. The secular High Court has jurisdiction over civil and criminal proceedings, including those in the Kadhi courts, and accepts appeals of any Kadhi court decision.
According to the law, new religious groups, institutions or places of worship, and faith-based nongovernmental organizations (NGOs) must register with the Registrar of Societies, which in turn reports to the Attorney General’s Office. Indigenous and traditional religious groups are not required to register, and many do not. To register, applicants must have valid national identification documents, pay a fee, and undergo security screening. Registered religious institutions and places of worship may apply for tax-exempt status, including exemption from duty on imported goods. The law also requires that organizations dedicated to advocacy, public benefit, the promotion of charity, or research register with the NGO Coordination Board.
The normative content of freedom of religion or conscience may also be drawn from the African Charter on Human and Peoples’ Rights (African Charter),[11] as well as the International Covenant on Civil and Political Rights (CCPR), both of which are part of the domestic law of Kenya. Article 18 of CCPR provides as follows: ‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching’. Article 8 of the African Charter provides that ‘[f]reedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms’.
The state of religious values and practices in Kenya: How political and social pressure has succumbed other religions
Democracy is both a value system and a method of governance. As a value system, it respects human rights, and the public’s rights to elect its leaders and hold them accountable. Therefore, no government official should stand above criticism and must be all accountable to the public.
Many countries across the world favour a specific religion, either as an official, government-endorsed religion or by affording one religion preferential treatment over other faiths. Islam is the most common government-endorsed faith, with 27 countries (including most in the Middle East-North Africa region) officially enshrining Islam as their state religion. States with a preferred or favoured religion have government policies or actions that favour one (or in some cases, more than one) religion over others, typically with legal, financial or other kinds of practical benefits.[12] These countries may or may not mention the favoured religion in their constitution or laws; if they do, it is often as the country’s ‘traditional’ or ‘historical’ religion (but not as the official state religion). Some of these countries also call for freedom of religion in their constitutions—though, in practice, they do not treat all religions equally.[13]
Kenya is a society where both the belief and practice of various religious groups and secular and syncretistic tendencies are fast spreading, practically taking over virtually all spheres of life. Christian churches receive preferential treatment in Kenya than any other unofficial but favoured faith. Religious expression in public meetings or government functions has been very consistent, in the sense that the business of the day in governmental departments usually begins with a prayer, often with a flavour of Christian doctrine, though this is not a legal requirement. This advantage is not extended to Muslims, Hindus, Jews and Buddhist communities who, by virtue of being religious minorities, need protection. Consequently, confrontational or violent conflicts between religions as a result of state activities have become a norm.
Accordingly, issues regarding conversion into or out of the faith, access to religious sites and pilgrimage routes have become a regular occurrence. It is appalling that religious congregations would differ on matters of religion because the State has shown preferential treatment to one or some of these religious congregations.
Moreover, human rights groups and prominent Muslim leaders and religious organizations continue to state the government’s antiterrorism activities disproportionately affect Muslims, especially ethnic Somalis and particularly in areas along the border with Somalia where there have been several reports of extrajudicial killings, enforced disappearances, torture, arbitrary arrest, and detention. For example, in November 2021, the Supreme Council of Kenya Muslims called for weekly protests to demand government accountability regarding alleged enforced abductions. According to the council, security forces killed or disappeared 133 individuals during the year.[14] The governmental Independent Policing Oversight Authority (IPOA), established to provide civilian oversight of the work of police, and human rights organizations reported numerous complaints from predominantly Muslim communities, particularly in the Eastleigh neighbourhood of Nairobi and coastal regions, regarding intimidation, arbitrary arrest, and extortion by police. Some complainants stated police accused them of being members of al-Shabaab.[15]
Also, some predominately Muslim ethnic groups, including Kenyan Somalis and Nubians, have reported difficulties obtaining government identification cards. These communities stated government officials at times requested supporting documents not required by law and implemented vetting processes in a biased manner. The government reportedly halted the issuance of identification cards in this region due to concern that al-Shabaab terrorists from Somalia could pose as Kenyan nationals to fraudulently obtain government-issued identification cards. MUHURI and other human rights organizations stated the government was unfairly profiling Muslims.
A government in a religious society may claim legitimacy either based on an interpretation of their religious activity or through the representation of the popular will. The former leads to the reduction of their religious activities to an ideology while the latter circumvents this problem and leads to democracy. Consequently, an extremely religious ideological State, in order to legitimize its activities and affirm its credibility, would most likely exclude other aspects of religion (different from the ones they subscribe to). This is because it requires an interpretation of its activities that accords primary importance to its religious ideology. This creates a class of State-allied ideologies which may result in repressing the growth of other religious knowledge and/or activities by limiting religion to the ideological notion of Christianity. Christian ideology may pervert religious rights and blight the development of other religious knowledge and/or activities.
Smith also notes that monopoly providers of religious services tend—as monopolies do generally—to become non-innovative and indolent.[16] He particularly observed this behaviour in the Roman Catholic Church and the Church of England. Specifically, he argued that the behaviour of the state favouring a specific religion reflected the lack of a strong connection between financial support and the provision of good service to citizens. In response, religion favoured by the State tended to devolve, losing the aspects of religious devotion that are relevant to people practising their faith and the authority of its doctrine. Moreover, religion favoured by the State tended to become a religion for elites, and to the extent that the clergy itself became an elite group of elites. Consequently, instead of focusing on the religious needs of their congregants, the clergy tended to engage in secular activities, including politics and the arts, and intellectual learning. In other words, having reached a level of affluence and a substantial degree of disconnection between income and service quality, the clergy were not very motivated to provide a high level of customer satisfaction.[17]
Continued involvement by the government in a lot of only Christian activities and oppressing the Muslims in its antiterrorism activities portrays a lousy message to other religious groups. For example, Muslims may feel left out in government activities and that may be Islam needs to be reconstructed or revived in order to meet the needs of modern society. However, despite the modern world’s continued changes, there is a need to reconcile the change in the external world with the involvement of all religious activities in State functions without oppressing the other.
As much as a religious government embodies religious values, it must thus use methods developed outside of religion to protect these values.[18] And instead of defending religious rights and implementing religious knowledge, having a religion favoured by the State may compromise other rights and inhibit the depth to govern properly.[19] For a government to be both religious and democratic, it must protect the sanctity of religion and the rights of its citizens. Yet in defending the sanctity of a particular religion, the government must not value a particular conception of religion over human rights. A government that rules by one official interpretation of religion, and demands that its citizens live accordingly to this interpretation of religion, sacrifices human rights for ideological purity [20]
Unlike an ideological government, a democratic government is rooted in the public understanding of religion and hence does not oppress nor repress the growth of religious understanding and knowledge. A democratic government does not follow a strict implementation of religious laws. Instead, religious laws, as they appear in the core religious texts are interpreted and expanded upon using the tools of religious and non-religious branches of law.
By showing no preference for a particular religion, but rather permitting any religion to be freely practised, Smith argued that the state would create an open market in which rational discourse among religious groups would generate a public display of ‘good temper and moderation’.[21] In an open religious market, Smith predicted a continual subdividing of sects so that a pluralistic structure would naturally emerge in which no single religion dominated. He also contended that, where there is State support for a religious monopoly or an oligopoly among religions, one will find zealousness and the imposition of ideas on a public that lacks choices. In contrast, where there is an open market for religion, he predicted that one would find moderation and reason.[22]
Conclusion and recommendations
Religion has had a heightened profile in Kenyan politics and social contexts for a very long time. Human rights are a fundamental political and social criterion, and democracy is the only form of government that can both protect human rights and preserve a proper role for religion in politics and social contexts. A government based on the will of the people does not derive its legitimacy from only one side of religion. It retains its legitimacy so long as it rules in accordance with the wants of its citizens.
Also, despite religion and politics being connected intimately, religion should not be reduced to a political platform. Religiously derived methods are insufficient for the governance of a modern State. A religious government must be a just government, and justice is a term defined outside of religion.[23] No form of government is capable of forcibly making a people religious, this is something individuals choose for themselves.
All religions are virtually the same and thus should co-exist peacefully. The government should not favour one religion over the other nor oppress the other for its religious sentiments. For example, the Muslim religion is, in some respects, similar to the Catholic religion in that redemption is possible at any time, even in Purgatory, by attaining belief in Allah and otherwise ascribing to the Five Pillars of Islam. Thus, an older person—even one that has already been condemned—can always rise above past sins.
[1] https://www.state.gov/reports/2021-report-on-international-religious-freedom/kenya/ Accessed on 3 March, 2023.
[2] Timothy Fitzgerald, ‘Religion and Politics in International Law: The Modern Myth’.
[3] R Horton ‘A definition of religion, and its uses’ (1960) 90 Journal of the Royal Anthropological Institute of Great Britain and Ireland 201.
[4] Ibid.
[5] 2021 Report on International Religious Freedom: Kenya, Office of International Religious Freedom. Available at https://www.state.gov/reports/2021-report-on-international-religious-freedom/kenya/ Accessed on 4 March, 2023.
[6] 2021 Report on International Religious Freedom: Kenya, Office of International Religious Freedom. Available at https://www.state.gov/reports/2021-report-on-international-religious-freedom/kenya/ Accessed on 4 March, 2023.
[7] Ibid.
[8] Constitution of Kenya, 2010, Article 8.
[9] Ibid, Article 27.
[10] Ibid, Article 32.
[11] Adopted at Nairobi, Kenya, in June 1981 and entered into force in October 1986.
[12] https://www.pewresearch.org/religion/2017/10/03/many-countries-favor-specific-religions-officially-or-unofficially Accessed on 4 March, 2023.
[13] https://www.pewresearch.org/religion/2017/10/03/many-countries-favor-specific-religions-officially-or-unofficially Accessed on 4 March, 2023.
[14] https://www.state.gov/reports/2021-report-on-international-religious-freedom/kenya/ Accessed on 4 March, 2023.
[15] https://www.state.gov/reports/2021-report-on-international-religious-freedom/kenya/ Accessed on 4 March, 2023.
[16] Adam Smith, ‘An Inquiry into the Nature and Causes of the Wealth of Nations’, 6th ed., London, A. Strahan, 1791.
[17] Ibid.
[18] Abdolkarim Soroush, ‘Qabz va Bast dar Mizan-i Naqd va Bahs’ (Qabz va Bast at the Level of Critique and Discussion) Kiyan 1. No. 2 (1991): 5.
[19] Ibid.
[20] Ibid.
[21] Adam Smith, ‘An Inquiry into the Nature and Causes of the Wealth of Nations’, 6th ed., London, A. Strahan, 1791.
[22] Ibid.
[23] Abdolkarim Soroush, ‘Qabz va Bast dar Mizan-i Naqd va Bahs’ (Qabz va Bast at the Level of Critique and Discussion) Kiyan 1, no. 2 (1991): 5. A full elaboration of Soroush’s theory of religion can be found in Abdolkarim Soroush, Qabz va Bast-i Tiorik-i Shari’at (The Theoretical Contraction and Expansion of the Shari’a), (Tehran: Mu’assassah-yi Farhangi-yi Sirat, 1990). Qabz va Bast-i Tiorik-i Shari’at originally appeared as four separate articles in the monthly journal Kayhan-i Farhangi, from 1988-1990. The publication of the articles sparked a controversial debate within Iranian intellectual circles, reflected within the pages of Kayhan-i Farhangi. For a summary of this debate, see Mehrzad Boroujerdi, ‘The Encounter of Post-Revolutionary Thought in Iran with Hegel, Heidegger, and Popper,’ in Cultural Transitions in the Middle East, ed. Serif Mardin (New York: E.J. Brill, 1994), 248-255.
