Dear Rev Musyimi,
This is a preliminary response to your task force’s invitation to the public to comment on the issues that the President has asked you to consider arising from the terrible events in Shakahola.
It is reassuring that you are giving Kenyans time to communicate their views, and also, I hope, a reasonable time for yourselves to consider your recommendations in a way not driven by concerns of the moment.
I remain a bit concerned about the risk of law being passed under the influence of a ‘moral panic’. That is when an event or situation causes a strong reaction in the public, including the media, that leads to a solution that does not truly respond to the realities of what has occurred, and may be ineffective or even have unforeseen and negative consequences.
Cults, sects and persecution
Over the centuries breakaway groups have been restricted, even persecuted, in many countries. I was brought up as a Baptist, early in their existence undoubtedly called a sect, which was persecuted in England - and the first Baptist church was set up in exile in Amsterdam. These days they are perfectly respectable.
The Mormons, the Jehovah’s Witnesses and various other groups are often called sects or cults. The Baha’is broke away from Islam and have been persecuted in Iran. The Ahmadiyya sect is persecuted in, for example, Pakistan. The Ismailis and the Bohras can be described as sects of Islam. Sikhism has several sects.
All these groups have adherents in Kenya.
These reflections are prompted by the repeated use in your terms of reference of ‘sect’ and ‘cult’. Particularly: ‘Recommend to the competent authorities what actions may be taken against individuals and groups suspected of founding, leading, or part of religious extremist organisations, sects, cults, and other similar outfits.’
In other words, merely being a religious extremist organisation, sect, or cult is envisaged as possibly being a crime and membership itself even punishable. But who defines what is extremist? And why should a sect as such be dubious? Even being a cult?
These are all words and phrases generally used by majority and dominant groups to describe those they dislike or see as a threat or just consider ‘other’. The Oxford English Dictionary says ‘sect’ is ‘applied by Anglicans to the various bodies of dissenters, by Roman Catholics to all forms of Protestantism.’
That dictionary explains ‘cult’ as: ‘A relatively small group of people having (esp. religious) beliefs or practices regarded by others as strange or sinister, or as exercising excessive control over members.’ Having a charismatic leader is often a characteristic. But how many religions or now mainstream denominations have begun through the work of charismatic leaders?
One could say that Christ was a victim of just the sort of enterprise that you have been charged with. At least on some views, he was considered a threat not just by the Romans, the political power, but by the established sects of the Jewish faith.
Constitutional framework
To limit the right of people to preach, or organise a religious activity is a breach of various rights: to associate and assemble, to religion and to expression. And for law to do that effectively it must follow the principles laid down in Article 24.
The purpose of the law must be justifiable in a democratic society. To be valid as ‘law’ it must be clear, but I suggest that using words like ‘sect’ or ‘cult’ in law would be imprecise – and unconstitutional. The importance of the rights affected and of the rights protected by the law must be considered and a balance achieved.
And – most important and most difficult – the limits on the rights affected must be no more than necessary to achieve the legitimate purpose.
If the objective of the law is to prevent people being grossly misled into killing themselves and their children, it is hard to see who would object. But, when we come to the last requirement, I feel there would be difficulties.
Is there a vetting process that would really identify those who would be likely to do this?
Other unorthodox teachings have been attributed to Mackenzie: that education is sinful and medical treatment unacceptable, for example. But there is nothing wrong – or illegal - about an individual refusing medical treatment. Some other denominations believe that cures lie in prayer and faith, not medication. If they deny this to their children, however, that can already be dealt with by law.
The law and the constitution already provide that everyone has a right to education. For children there is a right to compulsory education –precisely to deal with the parent who is uncaring, or positively refuses to send their child to school, for religious or any other reasons.
The ordinary law can deal with them. And someone who positively encourages or indoctrinates people not to send their children to school probably commits an offence under the existing law.
People with these unorthodox beliefs do not necessarily believe in self-starvation. And — on the other hand — we know that over the centuries dreadful things have been done within the most orthodox of religious bodies.
I suggest there is a fallacy at the heart of your terms of reference: that certain people can be identified as wrongheaded and need to be stopped. The risk is of having a far wider impact than is necessary to prevent real wrongdoing. The law should attack actual wrongdoing, not some supposed propensity to do wrong.
It is quite right to insist that doctors have a proper qualification. For them there are recognised and justifiable skills and knowledge. Theological training will teach certain approaches to faith and life. But will it guarantee no damaging tendencies? The world’s great religious leaders have mostly not had formal training in orthodoxy. What degrees did Christ, John the Baptist, Guru Nanak, or the Prophet Mohammed have?
You are being required to recommend yet another set of regulations. We are very fond of passing laws to regulate things – but not very good at enforcing them. They languish on the books unless someone wants to use them to harass someone or raise a bribe.
Even changes to the school curriculum are required. The latter would be best achieved by teaching children to use their brains. In theory the CBC is supposed to do that as opposed to the old learn-it-and-regurgitate-it approach.
So: what is it you are supposed to deal with? You – and we all - need a better understanding of how in our society people could be convinced to starve themselves to death, and how our governance system was unable to detect what was going - or if they did why they did nothing about it.
Without this understanding it is hard to see that your task force’s suggestions can deal with the realities of the problem. It is regrettable that the commission of inquiry intended to look into these issues has been stopped in its tracks by the courts. It seems unlikely that any agency — commission, parliamentary committee or other — will have completed this task before you have finished yours.
I worry about possibly difficult and divisive decisions. Will agencies of a predominantly Christian society be ruling on who may act as an imam? And how about Indian religions? I see no apparent Hindu, Sikh or Jain among your membership.
Those – sensible, I am sure – members should bear in mind that any law they recommend will not be administered by them. This will be the task of people who may less wise, and who may, in the future, be under the direction of leaders who are not tolerant and understanding of other cultures and religions.
Can we be sure that the law would not be used to impose a particular religious philosophy upon others — banning those with oddball but not necessarily dangerous views? Or that it would not be used to try to prevent people having prayer meetings, Bible study or religious discussions in their homes?
