The behaviour of some religious groups is a cause for worry. They have launched a vicious attack on gays in respect of their application for registration of a society using the words Gay and Lesbian and Rights as part of its name, and on judges who upheld their right to do so.
Muslim schoolgirls have been barred from wearing clothes signifying their religion, this time with the support of the Judiciary (but against the rules laid down by the ministry of education).
Church leaders have condemned the entire Muslim community as terrorists, and shown no respect for their religion. The same leaders earlier held numerous prayer sessions for the dismissal of the cases against Uhuru and Ruto before the ICC (presumably regardless of the facts), and gave them the use of prayer sessions to lobby their congregations for their cause, so as to undermine the judicial process.
Church leaders (and sometimes their Muslim counterparts) have spoken on a number of social and economic issues. And perhaps sensing a rather weak and ineffective Presidency, they have propounded policies for the government to follow. Many leaders have openly said that because Christians are a huge majority of the Kenyan people, their wishes should be given special preference by the state. I am not ignoring the fact that religion is very important in the lives of many Kenyans.
My concern is with the stance taken by religious leaders, denigrating fellow citizens, and undermining the tolerance of individual differences that the constitution emphasises.
There is no doubt that position taken by various Church leaders violates the spirit if not the text of the constitution – which many of those leaders tried hard to defeat in the August 2010 referendum, but lost by a big majority.
The ostensible cause of its objection was the continuation of Kadhi courts, and the place of Islamic law for personal matters pertaining to Muslims. But many voters sensed other motives, like preserving ownership of huge tracts of land. Its followers showed a better sense of the challenges facing the country, and the importance of consensus building. People are closer to the values of the constitution than most religious leaders.
The provisions of the 2010 constitution on religion (in this respect largely similar to that of the CKRC/Bomas) were drafted after much consideration of the future of Kenya. While it was important to protect the right to belief, conscience and religion, it was also necessary to acknowledge other rights that had been ignored by successive governments, leading to the neglect of some communities and their rights.
The preamble begins with the statement of objectives. Although it begins by “Acknowledging the supremacy of the Almighty God of all creation” and ends by invoking “God bless Kenya”, in between it states the principles and policies that must govern the conduct of government as well as of the people. It claims – and Article 1 endorses – the supremacy of the people of Kenya to determine the constitution and to be governed by it.
The gist of the preamble is captured by paragraph three: “Proud of our ethnic, cultural and religious diversity, and determined to live as one indivisible sovereign nation”. It commits all Kenyans to “nurturing and protecting the well-being of individual, the family, communities and the nation”. It was only through the inclusion of and fairness to all communities that national unity will come about.
In the pursuit of this goal, the constitution grants to “every person” the freedom of “conscience, religion, thought, belief and opinion” and the right to associate with people of similar beliefs. No one may be denied access to any institution or facility, or the enjoyment of any right, because of his or her belief or religion. Nor should a person be compelled to act that is contrary to his or her belief (Art. 32).
It is clear that the freedoms given in this Article are not confined to mainstream religions, or even to religion at all, but to a whole variety of beliefs, including agnosticism or disbelief in god. The constitution is committed to Kenya’s culture as the “foundation of the nation” (Art. 11(1)).
Every person has the right to participate in the cultural life of their choice (Art. 44). The persecution of gays that religious leaders are bent on is against the constitution — and the quest for human dignity as well as national unity and common citizenship, as well as hate speech and the incitement to violence (Art. 33(2)).
Religious leaders and their followers need to be reminded that the constitution gives them the freedom of their religion, and of expression, but not to dictate to the state public policies. Affairs of the state belong to the secular sphere where religious groups have no special prerogatives.
Article 8 says that “There shall be no State religion”. Affairs (and that includes policies and practices) of a religion must be separate from those of the state. Its import was clearer in the CKRC/Bomas drafts which stated additionally: “State and religion shall be separate” and “All religions will be treated equally”. The objective of the separation is not only to give equality to non-believers, but also to ensure all religions are equally treated — an important consideration when a nation has multiplicity of religions, some more dominant than others (as is Kenya’s case where there is widespread feeling that the Christian church has a special and superior status).
The separation of state and religion is further emphasised in Chapter Seven on the Representation of the People which prescribes that every political party shall have a national character, and shall promote and uphold national unity, promote the rule of law and other objectives of the constitution, or “be founded on a religious, linguistic, racial, ethnic, gender or regional basis, or seek to engage in advocacy of hatred on any such basis”.
In 1992 after the end of the one party system, some young Muslims formed the Islamic Party of Kenya “to represent the Muslims of Kenya and cater to their interests. Its registration was refused on the grounds that it was a religious group, not a party. The Church strongly advocated its ban. Now the rule has been constitutionalised, reinforcing the principle that the state and religion must be separated. A leading political scientist has defined religious fundamentalists as religious actors with political goals, who criticise contemporary developments using religion with the aim of suggesting and enforcing radical social and political reforms. Religious leaders will do well to respect the principle of separation, lest its violation lead the country to conflict and chaos.
As far as the gay issue is concerned, religious leaders will do well to disabuse themselves of the notion that homosexuality was imported in Africa by the wicked west. Research demonstrates that homosexuality was widely tolerated in Africa as it was in India and China, and among the faiths of these places.
On the contrary, it was Britain that criminalised homosexuality in the 19th century throughout its then considerable empire. Britain removed that legislation at home many decades ago, leaving large parts of the former empire still saddled with it. And prompting African cardinals and archbishops to lecture the religious leaders of countries which brought Christianity here on the true doctrines of the Church!
The author was the Chair of the CKRC and of Bomas, and is recognised internationally as a leading constitutional scholar.