Separation of church and state: Advocating for the repeal of sections 162 and 165 of Kenya’s penal code

This is especially relevant since the former Attorney General, in his affidavit in the consolidated Petition 150 and 254 of 2016 mentioned the fact in challenging the prayers sought in the case stating ‘The preamble to the Constitution acknowledges the supremacy of the almighty God who is the objective moral lawgiver and that this informed the decision to retain the impugned provisions’.[1] This raises a few questions: is Kenya a secular state? What even is a secular state, and if so does this change the outcome in Eric Gitari[2]? Since Kenya is not a theocracy, but a democracy, should it not honour liberty above all else? The promulgators of the 2010 Constitution found it important to add those new provisions to the supreme law of the land, guaranteeing the freedom of Kenyans to live according to their own beliefs.

Freedom to believe means freedom not to believe, and freedom to not believe gives an individual freedom to act according to his conscience, within the ambits of the law. However, this freedom is limited when the law favours provisions of religion, seeking to govern individual moralities. In my view, this undermines the separation of church and state, which is the basis upon which liberty is founded.

  1. Separation of church and state

The separation of church and states has roots in the biblical text, with Jesus telling his disciples to give to Caesar what is Caesar’s and give to God what is God’s.[3] Its development through the years has seen tension between the church and state, with various thinkers contributing to the discussion. John Locke (1632-1704) was of the opinion that the church must be ‘absolutely separate and distinct from the commonwealth’.[4] He believed that the church and civil society should not influence each other, since the two were separate and distinct in their functions and the authority they had.

Perhaps the most famous account of the separation of church and state was contributed by the American founding father Thomas Jefferson. He presented an account of the separation of church and state representing the American understanding of the concept. The first was to prevent the state from interfering with church affairs for which he wrote ‘…desist from intermeddling with religious institutions, their doctrines, discipline or exercises’[5]. He was also of the opinion that the church should be separate from the state, which he addressed in his famous Letter to Dansbury Baptist church, detailing that religion is ‘…a matter which lies between a man and his God…’.[6] The third understanding is to protect the individual’s liberty of conscience from the intrusions of either state or church, conspiring together.

This is the focus of my argument. This is when the state, the coercive authority, favours the provisions of religion over its subjects. It is when a state upholds morals rooted in religion.

  • Secularism and the secular state

In Kenya, the principle of separation of church and state is vague at best. The 1963 Constitution had no provisions on the matter, leading to external considerations on questions of secularism in Kenya demonstrated in Jesse Kamau and 25 others v Attorney General. The considerations were:

‘(1) A secular state is neither supposed to compel its citizens to support a particular religion nor can it give preferential treatment to the followers of a certain religion;

(2) A secular state means one that protects all religions equally and does not uphold any religion as a state religion;

(3) In a secular state it is assumed that the state will minimally have to contend with and respond to each of the demands of equality, liberty and neutrality’.[7]

The Constitution of 2010 however states that there shall be no state religion.[8] While establishing the democratic nature of the Constitution, it falls short on the extent to which religion can influence the state as well as the state’s influence on religion. This is unlike the Constitution of Ethiopia (1994) which has clear provisions on the separation of church and state:  ‘1. State and religion are separate. 2. There shall be no state religion. 3. The state shall not interfere in religious matters and religion shall not interfere in state affairs’.[9] The practical application of these provisions however remains in question in light of religious tensions in the country.

Among the freedoms provided for in the Constitution are the freedom of conscience, thought, belief and opinion.[10] It also prevents the person from being compelled to act contrary to their belief or opinion.

  •  Tracing the relationship between church and state in Kenya

The state-church relationship in Kenya is long-standing. Since its independence in 1963, the church has been an authoritative figure in Kenyan politics influencing leadership regimes in the country. During the Moi regime, the church became a spokesperson for the people of Kenya, since the executive had gained a monopoly of the legislature and judiciary, forming a dictatorship in which dissenters were met with strict consequences. The Justice and Peace Commission of the Anglican Church of Kenya 1992 stated that the church was the only institution able to speak on behalf of the people. The Reverend Okullu was quoted saying ‘We, the church, have our large constituency in the hearts and minds of Kenyans…’.[11]

This relationship evolved into a partnership where in later years the church and state worked to protect each other’s interests, with the church gaining special privileges in the process. The church has worked to maintain the status quo in the country, influencing even constitutional provisions, such as the inclusion of art. 26(4) on the prohibition of abortion. This influence has largely contributed to efforts at maintaining the provisions of sections 162 and 165 of the Penal Code, a provision originating from Christian beliefs, inherited from the British Colonial regime.

The influence of the church is deeply rooted in Kenyan institutions and drives important decisions that affect the everyday lives of Kenyans.

  1. History of sections 162 and 165 Cap 63: Case studies
  • Laws inherited; Britain

The relationship between the Church and the State in Great Britain in medieval times was very close. The King was also the head of the church and all his subjects were expected to abide by the Anglican doctrines. Failure of this brought severe punishment, one being the famous witch trials which saw many lives taken, following the Bible text ‘Though shall not suffer a witch to live’.[12]

The church and the state were synonymous. The religious doctrine was followed in legislations, one of which was the Buggery Act 1533, passed under the reign of King Henry the eighth, which condemned sodomy, the punishment being death until 1861 when other sentences were employed. In 1885 a new law, the Criminal Law Amendment Act came into force, which outlawed homosexual acts. For the next 400 years, male homosexuality was targeted and punished under the Act until 1957, when the Wolfenden Report was published.

The report, put together by the Wolfenden Committee, recommended the decriminalization of homosexual behaviour between consenting adults in private. Sir Wolfenden was of the view that the law had no business governing morality. It is the findings of this report, that spearheaded the decriminalisation of homosexuality in England in 1967, with the promulgation of the Sexual Offences Act 1967. The role of the established church in this reform was a central one, as the church, in general, rallied behind the recommendations of the Wolfenden Report,[13] becoming an arbiter and supporting secularization of the criminal law. This is the opposite of the Kenyan Church, which has repeatedly petitioned against the decriminalization of homosexuality.

  • Laws repealed: South Africa

Section 9 of the Constitution of South Africa 1996 states;

‘(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair’.[14]

These provisions were central in finding the invalidity of common law sodomy provisions and provisions relating to unnatural offences in the case of National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998). The applicant filed the suit in court after being denied employment as a security officer due to his sexual orientation, pursuant to Schedule 1 of the Security Officers Act 92 of 1987 which was to the effect that any person convicted of the common law offence of sodomy was ineligible for employment. Section 12(1)(b) of the Security Officers Act provided that any person convicted of sodomy is prohibited from registering as a security officer. Section 15(1)(a)(i); the registration of a security officer who is found guilty of sodomy may be withdrawn and Section 20(1)(b) that commission of sodomy amounted to improper conduct of a security officer. These provisions along with Section 20A of the Sexual Offences Act 1957 were declared unconstitutional for inconsistency with the 1996 Constitution of South Africa.

The court relied heavily on section 9(3) of the Constitution which prohibits discrimination on grounds of, among others, sexual orientation. Although a similar provision is not part of the Kenyan Constitution, the right to dignity is a common factor between the two. The court expressed this as a key factor in finding for the applicants, stating ‘the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society’.[15]

  1. Conclusion

The case of Eric Gitari & 7 others v Attorney General; DKM & 9 others (interested parties) Katiba Institute & another (amicus curiae) highlights the crux of my argument: that religious influence has played a major role in barring the granting of rights to members of the LGBTQI community, and that this is against freedom of conscience. It is also my argument that religious considerations should not be tabled in cases concerning minority rights, as the subjects of these rights are in fact, a minority in the larger population. This creates a need for special privileges to alleviate their position.

A sociological approach to the question of granting rights to members of the LGBTQI community in Kenya defeats the purpose of granting the historically marginalized group its rights since the society, by and large, does not support it. This is mainly due to religious beliefs, with 85.5% of Kenyans identifying as Christian and 11% identifying as Muslim.[16]

Therefore, I contend that sociological considerations are indirectly based on religious beliefs and therefore should be disregarded as a factor in considering the legal validity of sections 162 and 165 of the Penal Code Cap 63. Since it is a minority in Kenya, protection should be accorded to them, the first step being through the decriminalization of their private adult consensual conduct.

has been shown by the British case, decriminalization leads to less stigmatization. As the court stated in the case of S v Makwanyane & another(CC73194) (1993) ZACC3, ‘ Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour’.[17]

The author is a third-year undergraduate from the University of Nairobi law school.

[1] EG & 7 others v Attorney General; DKM & 9 others (interested Parties); Katiba Institute & another(Amicus Curiae) pp.66

[2] Ibid

[3] Holy Bible, Mark 12:17

[4] John Locke, Letter Concerning Toleration(1689), in The Works of John Locke, 12th edn, 9 vols(1824), p.21

[5] Phillip Kurland and Ralph S. Lerner, ‘Thomas Jefferson, Letter to Rev Samuel Miller(1808), in the Founder’s Constitution’ (1987) vol. 5, (edn) p.98-99 Chicago 3: University of Chicago Press

[6] DREISBACH, D. L. (1997). ‘Sowing Useful Truths and Principles’: The Danbury Baptists, Thomas Jefferson, and the ‘Wall of Separation’. Journal of Church and State, 39(3), 455–501.

[7] Jesse Kamau and 25 others v Attorney General(2010)KLR pg.  46

[8] Constitution of Kenya 2010, art 8

[9] Constitution of Ethiopia 1994, art 14

[10] Supra at 9, art 32

[11] Okullu, as quoted in Weekly Review, 15 September 1989

[12] King James Bible, Exodus 22:18

[13] Ramsay LM, ‘The Church of England, Homosexual Law Reform, and the Shaping of the Permissive Society, 1957–1979’ (2018) 57 Journal of British Studies 108

[14] The Constitution of the Republic of South Africa, 1996

[15] National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998). Pp. 28

[16]‘Report on International Religious Freedom: Kenya’ US Department of State 2020

[17] S v Makwanyane & another(CC73194) (1993) ZACC3 pp. 88

Guest author for The Platform Magazine