The church became a large propaganda machine with exclusive jurisdiction even over matters such as adultery, bigamy, matrimonial cases and failure to perform oaths. All these were dealt with under Canon law as opposed to secular law in a court. The church’s overwhelming power enabled it to command armies, form allies and foes in politics, and started wars.[1] The church collected taxes from the populace and made money selling indulgences to everyone from royalty to peasants.
In the United States, the establishment clause in the First Amendment was intended to separate the church from the State. This amendment states that Congress shall not make any law respecting the establishment of a religion or prohibiting its free exercise. Historically, the meaning of establishment was presumed to be directed to state-sponsored churches such as the Church of England. Today, the establishment of religion is governed by a three-pronged test which was developed in Lemon v. Kurtzman (1971)[2] by the US Supreme Court. The ‘lemon test’ as its often referred to assumes that the government can only assist religion if the primary purpose of the assistance is secular, if the assistance neither promotes nor inhibits religion and where there is no excessive entanglement between the State and the Church. The first use of the term ‘wall of separation’ metaphor was by Roger Williams who believed that any involvement of the government in religion would corrupt the church. In 1802, Thomas Jefferson then wrote to the Danbury Baptist Association on how the First Amendment created a ‘wall of separation between church and State’. The Supreme Court cited Jefferson’s letter in key cases such as the 1947 polygamy case of Everson v Board of Education, creating a direct nexus between the ‘wall of separation’ concept and the establishment clause. Later, James Madison and Thomas Jeffery, American presidents, developed the concept further by standing against the notion of compelling the citizens to support the Anglican church through taxation. They averred that that support infringed on their religious liberty and this position was supported by the Presbyterians, Baptists, Quakers and other dissenting denominations.
The Kenyan context
The preamble of the Constitution of Kenya begins by acknowledging the supremacy of the Almighty God of all creation. The Constitution then goes ahead to assert that in Article 8 that there shall be no State religion. There seems to be an inconsistency in whether the law endorses certain religious beliefs or explicitly makes Kenya a secular state. The Constitution seems not to impose a state religion by protecting the freedom of religion, belief and conscience in Article 32; and promoting incidental freedoms such as freedom of expression in Article 33; freedom of the media in Article 34 and freedom of association in Article 36. Any religious group, institution, or faith-based non-governmental organizations is allowed to register as a society.
The reality in Kenya, however, is that a majority of the people subscribe to certain religious beliefs. 85.52% of the people claiming Christianity, 11% Islam, and less than 2% being Hindus, Sikhs, Baha’is and those adhering to traditional religious beliefs.[3] Religion has been a crucial component in Kenyan society and has played a role even in the political scene. Since Kenya’s independence, the church has been the main opponent of Presidents Jomo Kenyatta and Daniel Arap Moi’s closed political systems.[4] During this era, the church was very critical of the rampant extrajudicial killings, corruption cases, pitting ethnic groups against each other, oath taking and election rigging. However, this consistency to be involved in State affairs dwindled upon the ascension of President Mwai Kibaki into power. For instance, the National Council of Churches in Kenya and the Anglican Church of Kenya who were at the forefront of finding fault with the previous regimes suddenly relegated their religious duties to keep leaders accountable.
Manifestation of religion within the State can be noted in the National Anthem, which is a symbol of national unity, where it begins with “O God of all creation…”. Another illustration of the acknowledgment of God is when State officers taking an oath conclude by stating “…so help me God”. The government of Kenya also advances religion by employing chaplains and the clergy to serve in the military.[5] Severing the ties between State and religion is a lot more difficult than it seems. This is because religion in Kenya has intertwined with numerous public institutions and has become impactful in the provision of education and healthcare. Churches have sponsored schools such as Precious Blood, Loreto Convent and St. Mary’s Nairobi as well as hospitals such as AIC Kijabe Hospital, Coptic Hospital and Mater Hospital. On the other hand, Muslims have also built schools such as Sheikh Khalifa Schools in Mombasa.
From the description given, Kenyan society seems like a deeply religious group, whose imposition of secularism would call for a contentious detachment of religion from political institutions. Besides, the tenets of secularism are not clearly defined and are reliant on an opposition of religious beliefs. Thus, the proposition that Kenya is a secular state only exists in the law and to the extent that the legislation does not establish or support a particular religious path for its people. This is the sovereign will of the people articulated in the Constitution. However, it should be noted that the relationship between the State and religion exists on a spectrum, oscillating between extremes of an absolutely opposed state such as China and Albania (1970s-1980s) and another where there exists no distinction whatsoever and the State and religion merge in a theocracy.[6] Kenya exists within the model where the separation is perceived only theoretically, but the limits of intrusion from both ends are blurred in a practical analysis. This breeds a situation of ‘a constitution without constitutionalism’; where the dictates of the law do not reflect the practical aspect of the lives of Kenyans and a subsequent problematic implementation of the same.
Jurisprudence
Religion has influenced the development of law as seen in the theories of natural law and consequently, deontological ethics. Most Abrahamic religions such as Christianity, Islam and Judaism premise their faith in the belief of a divinity who is the source of morality and order. This divine moral code is then replicated in the daily lives and acts as a means of societal organization. Other than divinely, natural law is also discernable by human reasoning. In this theory, what is consistent with the natural law is right and just and what is not aligned is wrong. This reasoning stems from rational deductions and law of nature. Regardless, both divine and human natural law are geared towards preservation of life and adherence to morals. Proponents of the divine natural law such as St. Thomas Aquinas stated that natural law is good for the preservation of life, marriage, and family. This line of thought that human rights are inherently God-given is seen in the freedoms protected in the Bill of Rights such as laws that protect life, the institution of family and marriage. The precepts of morality that are advocated for in the various religions are captured in Article 10 of the Constitution that calls for equality, social justice, human rights, non-discrimination and protection of the marginalized.
Capture
This article anticipates a bifurcated capture; the state capture by the church and the church capture by the state. In the former phenomenon, the church intrudes into the political affairs of the state and purports to have significant influence over its leadership, policy and decisions. This was mostly observed in the medieval eras as aforementioned in this article. The second instance happens where the State meddles in the affairs of the church by dictating the specificities of the religious sect, its habits, frequency of meetings, order of service and even its finances. There exists an interesting dynamic of two-way patronage between the church and State, both seeking to advance their own interests to different target groups. The church supports and provides platforms to politicians seeking votes and the politicians reward this by giving sizeable amounts of money as an offering. Recently, the activities of the President in hosting a Christian prayer service at the State House have sparked numerous debates on this intended separation. The service proceeded to another event where the First lady hosted a delegation of preachers received from various African countries.
These events raise the question whether the personal life and religious belief of the President and other political figures ought to be severed upon assumption of their respective offices. Certainly not. The President and other politicians are Kenyans too, whose rights are protected under the Constitution. This freedom of religion, conscience and belief is absolute. However, their manifestation of the religious belief is qualified; such that, given the publicity and influence of their offices, they should avoid activities that seem to endorse, support and show bias over a particular religion. If at all they are needed to participate in religious activities, they should attend to them in their personal capacities, as opposed to a political capacity.
The challenge that blurred walls of separation between state and church brings forth is the potential to disregard fundamental rights and freedoms of those who do not share in the faith, even worse for them if they are a minority. The level of tolerance for people who advocate for inclusivity such the LGBTQI community and women’s reproductive rights is likely to reduce significantly, given the misalignment of their precepts and those of religion. Another glaring effect is that a lack of accountability will be left to fester when the State and church institutions are merged instead of creating a system of checks. This can create a worrying state of heightened tension and unrest across various institutions in the country. It also goes against the sovereignty of the people who voted for specific people into leadership only for their power to be curtailed by another dominant institution alleging to advance their welfare.
Way forward
This article suggests a three-part test to evaluate whether the activities of the State reflect the intention of Article 8 and Article 32 of the Kenyan constitution. The test measures whether inclusivity was achieved; whether freedoms were guaranteed and whether equality was preserved. The first portion on inclusivity anticipates the inclusion of the various religious groups in decision-making that involves public policy. The complexities of inclusion should however be noted as it may not be possible to get every representative at that time to sit at the decision table. The concept of reasonable accommodation should be extended in such instances to prevent imposing an undue strain on the State in order to fulfill certain provisions. This was seen in the appeal by IEBC to bar Mr. Reuben Kigame from contesting the presidential elections after a declaration by the High Court[7] that the Dispute Resolution Committee violated his rights under Article 54 and Persons with Disabilities Act. The Commission cited stringent timelines and a strict budget that would jeopardize the holding of presidential elections on 9th August 2022.
The second portion tests whether the activities violate any other guaranteed freedoms in the constitutions or curtails their enjoyment. The State should not proceed with such activities that bear the potential to prevent others of a different belief system from enjoying their freedoms in the Bill of Rights. The third portion contemplates whether all persons in Kenya receive an equal treatment from the State. Whether everyone is allowed the same bandwidth to express their faith, or even access the President’s official residence for religious ceremonies. Regardless, it is much better for the State to steer clear of any relations with the church and religion than take the approach of favoring their personal belief system.
[1] History of the Medieval Church https://study.com/academy/lesson/history-of-the-church-in-the-middle-ages.html accessed 10/17/2022
[2] 403 U.S. 602
[3] ‘Report on International Religious Freedom: Kenya’ US Department of State 2020
[4] George Nyongesa, “On the relationship between Church and State in Kenya since Independence”
[5] Nairobi Law Monthly, “Why marriage between the State and Church must not happen” 5/2/2016
[6] Winfried Brugger, “From animosity to recognition to identification: models of the relationship of church and state and the freedom of religion” (2009)
[7] Lichete v Independent Electoral and Boundaries Commission & another; Constitutional Petition No. E275 of 2022
The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.
