By Chris Maina
The Preamble to the Constitution of Kenya 2010 acknowledges the centrality of religion in Kenya.[i] Article 8 goes on to provide that there is no state religion. In essence, Article 8 has appreciated the religious and cultural differences that exist among Kenyan communities. Based on Article 8, Kenya is a secular state. A secular state has is one that does not impose a particular religion on its citizens.[ii] In such a setting, the state does not adopt or promote any religion.[iii] In interpreting this provision, the High Court in Republic v Head Teacher, Kenya High School & Another ex-Parte SMY,[iv] was emphatic in affirming that Kenya is a secular state,[v] reiterating in Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others[vi] that the provision means that no religion should be promoted over another and, that no religion dominates over others.[vii] Prof Ambani has argued that in as much as Kenya is a secular state, it does not fall within the category of other secular states such as France and Turkey which take stricter measures to exclude religious content in the Constitution and some of the national emblems.[viii] He argues that the essence of religious content in the Preamble and other national emblems such as the National Anthem is to inspire the people and to show their loyalty and commitment to their country.[ix]
It is undeniable that religion plays a fundamental part in Kenyan – and African – politics. A case in point is the political agenda witnessed during the just concluded 2022 general elections campaigns. Historically, politicians have been in the habit of using religion to woo the electorate to support them in their political ambitions.[x] Additionally, the notorious use of state resources for religious purposes by political figures is manifestly in conflict with Article 8 since it can be construed as advancing a particular religion and creating the notion of superiority of one religion over another. Furthermore, elected and appointed state officials may feel the need to mask the dire economic situation in Kenya with the advancement of religious ideologies that the majority subscribe to. Despite a majority of the population in countries such as Guinea, Mali, Nigeria and Senegal being muslim, they opted, just like Kenya, not to have a state religion in their constitutions.[xi] This comes from the diversity in our religions as Africans and the danger that comes with much involvement of the state and religion.[xii]
Having a state religion as a democracy restrains the exercise of the freedom of religion affirmed under Article 32 of Kenya's constitution. It is also discriminatory to religious minorities which in turn might lead to division among the people. For example, Algeria which is an islamic state is well known for its repression of religious minorities.[xiii] The government of Algeria on 15 October 2019 cracked down on the protestant community through church closure and raids because the state had prohibited the use of those sites as places of worship.[xiv] State religion can also be used to advance political interests as was seen in Sudan in 1983 when the then President Jaffer Numeiry promulgated a penal code that imposed the Sharia on the nationals.[xv] The government of Sudan, in addition to this, executed Mahmoud Muhammad Taha for fighting the Islamicisation of the country on the ground of being a heretic.[xvi]
Having a state religion is not a new concept in African politics. Most African states of Arabic descent have a state religion – Islam – deriving their power from the Quran which is supreme over the constitution and other state laws.[xvii] In Sub-Saharan Africa, Zambia is the only Christian religious state.[xviii] It all began when the then President, Fredrick Jacob Titus Chiluba, who was an evangelical, on 29 December 1991 declared his country, Zambia, a Christian nation.[xix] Chiluba rose to power using the trade union and the church which at the time supported him due to his commitment towards it, unlike Kaunda who associated with the Eastern religions.[xx] The Christian media also gave him coverage which made him popular among his followers. In addition to this, the church took part in active politics where it organised peaceful political discussions between different political parties which culminated in a constitutional moment that brought back multiple parties.[xxi] The declaration led to an uproar among Christian bodies and the politicians who felt that there ought to be consultations before a decision which threatened the democracy they had fought for, was made.[xxii]
The public manifestation of religion by the government in a young democracy poses a danger to the exercise of the freedom of religion. It may also advance a state religion which is not the intention of Article 8 of the constitution of Kenya. It is undeniable that different religions play important roles in a state such as the promotion of education, healthcare services, and other services. However, there ought to be a distinct separation between the state and religion. A given government should not be seen to elevate a particular religion as religious minorities might feel discriminated against. The relationship can also be abused by the state as happened in Sudan. Looking at the relationship between the evangelicals and the state, it seems we are trotting on a slippery path to state religion just like Zambia.
[i] Constitution of Kenya 2010, Preamble, para 1.
[ii] Ogbu Osita Nnamani. 'Is Nigeria a secular state? Law, human rights and religion in context', 1 The Transnational Human Rights Review (2014) 141.
[iii] Nnamani, 'Is Nigeria a secular state? Law, human rights and religion in context', 141.
[iv] Republic v Head Teacher, Kenya High School and another ex-parte SMY , Miscellaneous Civil Application 318 of 2010, Judgment of the High Court at Nairobi, 18 September 2012 [eKLR].
[v] Republic v Head Teacher, Kenya High School & Another Ex-Parte SMY, 12.
[vi] Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others, Petition No 431 of 2012, Judgment of the High Court at Nairobi, 18 December 2013 [eKLR], para 48.
[vii] Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others, para 48.
[viii] John Osogo Ambani, 'Africa and the decolonisation of the state-religion policies' in Brill Research Perspectives in Comparative Discrimination Law, Brill, 2020, 29.
[ix] Ambani, 'Africa and the decolonisation of the state-religion policies', 29.
[x] Githieya Kimari, 'Kenya's a secular state; we must separate religion, state affairs', The Standard <https://www.standardmedia.co.ke/article/2001458948/kenyas-a-secular-state-we-must-separate-religion-state-affairs>on 23 February 2023.
[xi] Daniel David Ntanda Nsereko, 'Religion, the state, and the Law in Africa' 28(2) Journal of Church and State (1986) 286.
[xii] Nsereko, 'Religion, the state, and the law in Africa', 286.
[xiii] Human Rights Watch, 'Algeria: Crackdown on protestant faith', Human Rights Watch, 24 October 2019 <https://www.hrw.org/news/2019/10/24/algeria-crackdown-protestant-faith> on 23 February 2023.
[xiv] Human Rights Watch, 'Algeria: Crackdown on Protestant Faith', Human Rights Watch, 24 October 2019<https://www.hrw.org/news/2019/10/24/algeria-crackdown-protestant-faith> on 23 February 2023.
[xv] Nsereko, 'Religion, the state, and the law in Africa', 286.
[xvi] Nsereko, 'Religion, the state, and the law in Africa', 280.
[xvii] Ambani, 'Africa and the decolonisation of the state-religion policies', 3.
[xviii] Ambani, 'Africa and the decolonisation of the state-religion policies', 3.
[xix] Isabel Apawo Phiri, 'President Fredrick J.T Chiluba of Zambia: The christian nation and democracy', 33(4) Journal of Religion in Africa, (2003) 402.
[xx] Phiri, 'President Fredrick J.T Chiluba of Zambia: The christian nation and democracy', 405.
[xxi] Phiri, 'President Fredrick J.T Chiluba of Zambia: The christian nation and democracy', 405.
[xxii] Phiri, 'President Fredrick J.T Chiluba of Zambia: The christian nation and democracy', 405.
