STATE RELIGION OR RELIGIOUS STATE? RELIGION AND LAW IN KENYA

 Image from iStock by Daniel Deitschel

INTRODUCTION

History is fraught with religious leaders from whom the fountain of law sprung and for ages, there was no clear distinction between religion and law. From Moses in Judaism to Muhammad in Islam, religion has played a pivotal role in shaping the legal landscape in various societies. As Lord Denning contends[1]:

“Although religion, law and morals can be separated, they are nevertheless still very much dependent on each other. Without religion there can be no morality: and without morality there can be no law."

In light of the laws of the land, article 8 of the Constitution of Kenya states that Kenya shall not have a state religion, effectively making Kenya a secular state. Nonetheless, the ‘people’ in the preamble affirm the supremacy of the Almighty God, thus implying that Kenya is a religious state. What then is the distinction? Is Kenya a religious state or does it in fact have a state religion? This document notes that while the current President has not explicitly declared Christianity as the state religion, his actions have sparked debates about the separation of church and state. It highlights the consequences of making Kenya a secular state for a deeply religious set of people[2].

Further, it notes the difficulty in limiting article 32(2), showing that the state has vested political interests in the prevalent religions in the country while there exists glaring dangers. One such danger manifested in the gruesome deaths witnessed in Shakahola all courtesy of religious indoctrination.[3]

Atheist vs the Preamble: Religion is the base for a religious society

In 2016, the then Attorney General, Githu Muigai, suspended the registration of the Atheist Society of Kenya due to complains from the clergy. The Kenya National Congress of Pentecostal Churches had even threatened to sue the Attorney General for allowing the registration of an organisation that does not recognise God.[4]  And their position is rightly so because the preamble of the Constitution of Kenya begins with a bold affirmation, “We, the people of Kenya— acknowledging the supremacy of the Almighty God of all creation.”

The backlash that the society received upon registration, and its subsequent deregistration courtesy of this backlash implies that the state favours one religion over the other in as much as article 8 makes Kenya a secular state. This begs the question once again, does Kenya have a state religion?[5]This tussle between the atheists’ beliefs and the preamble culminated into the Ndicho v Registrar of Societies & 3 others (Petition E447 of 2022) [2024] KEHC 15298 (KLR) case. Among the reliefs sought by the petitioner there was a prayer to the court that it declares Kenya a religious state. The petitioner asserted that the registration of the Atheist in Kenya Society contravenes the spirit of the Constitution with reference to religion.

Justice Lawrence Mugambi opined that it is a matter of conscience for any person to decide whether to believe in anything or be religious for if this was not the case, it will translate into people being compelled to believe in or practice what is against their conscience. He held that the right of atheist should thus be protected under Article 32 unless by practicing it is shown to be violating the rights of others or if it amounts to an act forbidden by law.

Due to the fact that Christianity is the most widespread religion[6], critics have argued that this is Kenya’s implied state religion due to the deep permeations of Christianity in public life and by extension, the law.[7] Religion is the base for a religious society. In Kenya’s case, Christianity forms the base of the Kenyan society. As a result, it is not by happenstance that we see religious organizations coming up to reprimand the state when it goes against the ‘state religion’ and the state acts accordingly. The case above is a perfect example. This sets in motion the various manifestations of religion playing an important role in shaping the law and this heavy reliance on it might imply that the state has a state religion.

Religion influencing the law

In Kenya, public participation in legislation has emerged as an important requirement for establishing their legal validity. In Kenya, religion has largely influenced public opinion and as such, several bills that have conflicted with religious beliefs have had little success[8]. This predicament has stood out especially in bills that have sought to expand reproductive rights. While there are glaring needs and dangers in reproductive rights, religious positions have trampled over these needs and dangers, showing that the state favours certain religions.

The influence of Religion over Reproductive Rights

All over the world, reproductive rights have sparked fierce debate in the public and they are largely influenced by religious beliefs. Just recently, the United States Supreme court overturned[9] the famous Roe v Wade[10] case which had made abortion a constitutional right. The judges ruled that the case was "egregiously wrong from the start" and that the right to abortion is not deeply rooted in the nation's history or tradition. As a result, pro-choice demonstrations took place in front of the Supreme Court in Washington, D.C., where thousands gathered. This was mirrored in numerous states, with major cities like New York, Los Angeles, Seattle, and Boston hosting large gatherings[11]. Equally, pro-life picketing was witnessed and were often marked with prayers[12].

Here in Kenya, Article 26(2) of the 2010 Constitution states that life begins at conception. The wording of this article is deliberate in observing the sanctity of life and consequently prohibiting abortion in Kenya. The Penal code through sections 158 and 159 criminalizes abortion. But article 26(4) allows abortion only if it is an emergency or if the life of the mother is in danger.

Religious organizations that are usually pro-life, have fiercely advocated for the prohibition of abortion in countries. Gearing up to the promulgation of the 2010 Constitution of Kenya, religious leaders had vowed to oppose the constitution due to the provisions of article 27(4).[13] Given the number of believers that religion attracts, the success of establishing a new constitution then was largely at risk. Quite recently, in response to the Reproductive Health bill of 2020, Nakuru Catholic Bishop stated that, “In our engagements with the Senate we shall seek to defend the right to life, the dignity of children and of family as an inseparable unit; we shall also advocate for the Ministry of Education and the Kenya Institute of Curriculum Development to provide value based human sexuality to learners,”[14]

Clearly, religious organizations have had a strong say on reproductive rights and by extension on the legislation affecting it, and they are entitled to it. Religion forms a fundamental aspect of the culture of Kenyans and thus religious organization play a crucial role in legislation and rights. As the Constitutional Court of South Africa stated in the case of Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 (1) SA 524:

“Religion is not just a question of belief or doctrine. It is part of the people's temper and culture, and for many believers a significant part of their way of life. Religious organisations constitute important sectors of national life and accordingly have a right to express themselves to government and the courts on the great issues of the day. They are active participants in public affairs fully entitled to have their say with regard to the way law is made and applied.”

However, the reality is that Kenya is grappling with a huge number of unsafe abortions due to its criminalization. In 2013, a report by the African Population and Health Research Council (APHRC) showed that almost 500000 Kenyans had carried out unsafe abortions.[15] Additionally, a report from the United Nations Population Fund indicates that nearly half of all pregnancies in Kenya are unwanted and nearly sixty percent of those end up in unsafe abortions.[16] These numbers are dangerously high.

A number of conclusions can be drawn from this. First, there is a clear conflict between the provisions of the penal code that outlaw abortion and the people that the law is intended for. Secondly, these numbers indicate a dangerous health risk among women who procure abortion through unsafe means. Therefore, this begs a number of questions, if the law does not respond to the needs of the people it intends to govern, then what utility does it have to those people? Is Sabbath made for man or is man made for sabbath?[17] Has the criminalization and absence of safe abortion centres contravened the provisions of article 43(1)(a)? The learned judge R.N Nyakundi of the High Court of Malindi attempted to answer these questions in the context of abortion rights in the case of PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR). He avers that:

“Discrimination against women in the area of health and safety and denial of their right to control their own bodies severely violated their human dignity, which, along with equality, was recognized in the Universal Declaration of Human Rights as the foundation of freedom, justice and peace in the world... Access to safe abortion services is a human right... Forcing someone to carry an unwanted pregnancy to term, or forcing them to seek out an unsafe abortion, is a violation of their human rights, including the rights to privacy and bodily autonomy.”

For these reasons, the judge implied that the decriminalization of abortion in Kenya is unconstitutional. However, while the law seeks to ground the liberty of women over their bodies thereby promoting constitutional values such as dignity, autonomy, equality, and bodily integrity, religion recognizes the sanctity of life, particularly of the unborn child. The latter has prevailed over the former because Kenya is a religious state, largely inhabited by religious people, and often, religion tramples over the law in Kenya.

Surrogacy too has not been spared the fire of religion. There have been several bills in Kenya that have attempted to legalize surrogacy in Kenya. The most recent one being the Reproductive Health (Surrogacy) Bill, which was presented in 2023 by Senator Boni Sijenyi to the Kenyan Senate. There was also the Reproductive Health Care Bill, 2019 popularly known as the Susan Kihika Bill. Lastly there was the Reproductive Health Care Bill, 2014. All these bills were responding to the scientific developments in the world which offered solutions to infertility and new ways for couples to have children through processes such as in-vitro fertilization.

It is to this effect that even the late Majanja J took judicial notice of the extent of surrogacy in Kenya as he averred that, “Surrogacy is not a hypothetical issue any more. It is real and many Kenyans were turning to surrogacy as an alternative to being parents especially those who could not for medical reasons have their own children. In such circumstances, it is the duty of the State to protect the children born out of such arrangements by providing a legal framework to govern such arrangements.”[18] However, religion has opposed surrogacy and in-vitro fertilization because it separates procreation from the marital act and its implied commodification of human life which are as well important issues that need to be addressed[19]. These bills have failed to pass the legislative test majorly because of the religious opinions surrounding the bill[20] implying that the state favours religion even when there are glaring needs and dangers in the society.

Limits of Article 32 (1) and (2)

In the run-up to the 2022 general elections, Ida Odinga, wife to former prime minister Raila Odinga, urged the National Council of Churches of Kenya to regulate the churches under it[21]. She called for the regulation of some churches which she said were founded on wrong religious prisms. Her sentiments faced severe backlash which made her to withdraw them. But her sentiments were not new to the legal sphere of Kenya. In 1994, the Presidential Commission on Devil Worship made a recommendation which stated, “...the Government sets up a special police unit charged with the responsibility of investigating ritual and related occultic crimes. The officers attached to this unit should be given specialised training to familiarise them with characteristics, manifestations and activities which would assist in the identification of occultic crimes.”[22]

The police unit was never established but was a clear indication of Kenya’s struggle to draw the lines on the limits of the freedom of religion. Now in 2024, President Ruto setup the Presidential Taskforce on the Review of Legal and Regulatory Framework Governing Religious Organisations in Kenya, to address the same issue of regulation of religious organizations. Two recommendations standout, first, the bill recommends the establishment of a Religious Affairs Commission to oversee religious institutions.[23] Additionally, the taskforce also recommends the creation of Umbrella Religious Organisations under which all religious groups should operate. These recommendations by all these commissions and bills present several issues.

The most recent bill gives the Registrar of Religious organizations the powers to issue, suspend or revoke certificates of registration. This implies that the government will take it upon themselves to validate the religious beliefs of individuals in Kenya, the very negation of the freedom itself and the intrusion of the state in the affairs of the individual and his or her religious beliefs. In the case of R (Williamson) v Secretary of Stateforeducation and Skills [2005] 2 AC 246, Lord Nicholls contended that:

“Religious and other beliefs and convictions are part of the humanity of every individual. They are an integral part of his personality and individuality.”

The limitations of article 32 (2) seem blurry due to the individuality of religious organizations and the potential intrusion of the state into the affairs of its people should it attempt to regulate it. As Canon Francis puts it, “The religious is innate, and a given, which the government must only affirm, and it does that through the constitutional provision of religious liberties. Whereas the organisation is instituted, a social construct, and similar to other social groupings, the Societies Act establishes it.”[24]

However, the courts have attempted to draw the limits of religious beliefs. In the case of FAAF v RFM & 2 others (Civil Appeal E043 of 2022) [2023] KECA 1322 (KLR), the judges ruled that it is discriminatory for a child born out of wedlock to be denied inheritance because they were born out of an illegitimate union. This follows from the appellants’ contention that children born out of wedlock are not entitled to benefit from the estate of their deceased’s father under the Islamic Law. The judges ruled that the rights of a child remain valid regardless of one’s marital status. The continued to state that to hold that those children born out of wedlock are not to benefit from the same estate would amount to unfair and unjustified discrimination. This shows courts attempt to limit the religious beliefs of Islam primarily drawn from Islamic law which would contravene the principle of non-discrimination as envisaged in article 27(4) of the Constitution.

CONCLUSION

From the above analysis, successive Kenyan governments have often fronted Christianity as the state religion. Media outlets such as the British Broadcasting Corporation have gone to the extent of calling President Ruto an evangelical president.[25] The hallmark of the current president is declaring that the African Independent Pentecostal Church of Africa (AIPCA) as the official church of the government[26]. There is tension between the Kenya’s secular legal framework and its deeply religious societal fabric. While Article 8 of the Constitution ensures Kenya remains a secular state with no official state religion, the preamble's acknowledgment of God and the actions of the current President suggest a religious state in practice and by extension, that indeed Kenya has a state religion in practice. In essence, the ongoing struggle to define and enforce the limits of religious freedom while respecting individual rights and societal norms have provided a legal conundrum for Kenya. The distinction between a religious state and state religion has not been effectively drawn and effected.

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[1] Lord Denning (Alfred Thompson Denning), The Influence of Religion on Law (Canadian Institute for Law, Theology & Public 1997)

[2] There is still debate in Kenya, Nigeria and South Africa generally and in the West regarding how “people” are defined and treated by Presidents, Governments and public bodies. See Ben Sihanya (forthcoming 2021) “Conceptualising People, Sovereignty, Constitution, State, Government, Society and Market in Kenya and Africa,” in Ben Sihanya (2021) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa  (CODRALKA 1) Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, SihanyaMentoring & Prof Ben Sihanya Advocates, Nairobi & Siaya, 51. This document understands that the term ‘people’ means the majority regardless of the parameters used. This conclusion is drawn from the theory of General will in Jean-Jacques Rousseau, The Social Contract (trans M. J. Green, 1993) Everyman. With regards to the topic of this document, Christianity is the major religion in Kenya. See Kenya National Bureau of Statistics, 2019 Kenya Population and Housing Census Volume IV: Distribution of Population by Socio-Economic Characteristics (Kenya National Bureau of Statistics 2019) As such, does ‘people’ refer to Christians?

[3] Brian Ocharo, 'Hunger, Torture, and Death: Witnesses Recount Horrors of Shakahola Forest Cult' (Nation.Africa, 30 December 2024) https://nation.africa/kenya/counties/kilifi/hunger-torture-and-death-witnesses-recount-horrors-of-shakahola-forest-cult-4870106#story accessed 4 January 2025.

[4] Lucas Ngasike, 'Attorney General Githu Muigai suspends registration of atheists' society' (The Standard, 30 April 2016) https://www.standardmedia.co.ke/counties/article/2000200192/attorney-general-githu-muigai-suspends-registration-of-atheists-society accessed 19 February 2025.

[5] Godwin R. Murunga and Shadrack W. Nasong'o, Kenya: The Struggle for Democracy (Zed Books 2007) The authors argue that while the Kenyan Constitution advocates for a secular state, the deep integration of Christian norms into public life undermines this neutrality and thus in practice Kenya does have a state religion.

[6] Kenya National Bureau of Statistics, 2019 Kenya Population and Housing Census Volume IV: Distribution of Population by Socio-Economic Characteristics (Kenya National Bureau of Statistics 2019). The data shows that majority (85.5 per cent) of the population are Christians with Protestants, Catholics and Evangelical churches accounting for 33.4,20.6, and 20.4 per cent, respectively. Muslims accounted for 11 per cent of the entire population.

[7] Paul Gifford, African Christianity: Its Public Role (C Hurst & Co 1998) Gifford's analysis implies that while legally there is no state religion, the pervasive influence of Christianity in Kenyan public life, politics, and policy might lead to Christianity functioning as a de facto state religion. This is not through legal establishment but through cultural, social, and political dominance.

[8] Samantha Luseno, Sabina Obere and Nancy Nafula, 'Culture, Religion, Legislation and FGM in Kenya' (Kenya Institute for Public Policy Research and Analysis, 8 March 2022) https://kippra.or.ke/culture-religion-legislation-and-fgm-in-kenya/ accessed 18 April 2025.

[9] Dobbs v Jackson Women's Health Organization 597 US (2022), the case that overturned the Roe v Wade decision.

[10] Roe v Wade, 410 US 113 (1973)

[11] Katie Reilly, ‘Scenes from Protests Across the Country After the Supreme Court Overturns Roe v. Wade’ (Time, 24 June 2022) https://time.com/6190852/protests-roe-v-wade-photos-supreme-court/ accessed 19 February 2025.

[12] Ashraf Khalil and Alanna Durkin Richer, ‘Thousands gather for first March for Life since fall of Roe’ (AP News, 20 January 2023) https://apnews.com/article/march-for-life-abortion-f76359375980d9e3bfaf61262c5bf46a accessed 19 February 2025.

[13] Tom Maliti, 'Kenyan Churches Oppose Constitution Over Abortion' (BET, 28 January 2021) https://www.bet.com/article/bwi7ya/kenyan-churches-oppose-constitution-over-abortion accessed 4 January 2025

[14] Laban Wanambisi, 'Catholic Bishops, Pro-Choice Lobbyists Clash Over Reproductive Health Law' (Capital FM, 10 July 2020) https://www.capitalfm.co.ke/news/2020/07/catholic-bishops-pro-choice-lobbyists-clash-over-reproductive-health-law/ accessed 4 January 2025

[15] African Population and Health Research Center (APHRC), Ministry of Health Kenya, Ipas, Guttmacher Institute, 'Incidence and Complications of Unsafe Abortion in Kenya: Key Findings of a National Study' (2013)

[16] United Nations Population Fund (UNFPA), 'State of World Population 2022: Seeing the Unseen - The case for action in the neglected crisis of unintended pregnancy' (UNFPA 2022)

[17] Mark 2:27 (King James Version).

[18] JLN & 2 others v Director of Children Services & 2 others; Kenya National Human Rights Commission & another (Interested Parties) [2014] KEHC 7491 (KLR)

[19] Sallam HN, Sallam NH. Religious aspects of assisted reproduction. Facts Views Vis Obgyn. 2016 Mar 28;8(1):33-48. PMID: 27822349; PMCID: PMC5096425.

[20] Nita Bhalla, 'Church, Anti-Abortion Groups Seen Threatening Women’s Health Bill in Kenya' (3 February 2025) https://www.reuters.com/article/us-kenya-women-health/church-anti-abortion-groups-seen-threatening-womens-health-bill-in-kenya-idUSKBN2692O8 accessed 3 February 2025.

[21] Justus Ochieng, 'Ida Odinga Withdraws Call to Regulate Churches' (Nation, 30 January 2022) https://nation.africa/kenya/news/ida-odinga-withdraws-call-to-regulate-churches-3699944 accessed 3 January 2025

[22] Report of the Presidential Commission of Inquiry into the Cult of Devil Worship in Kenya (Government of Kenya 1994).

[23] Religious Organisations Act, 2024.

[24] Francis Omondi, 'Incarcerating Kenya’s Religious Liberties' (The Elephant, 25 September 2024) https://www.theelephant.info/analysis/2024/09/25/incarcerating-kenyas-religious-liberties/ accessed 28 January 2025

[25] Wycliffe Muia, 'How Kenya's Evangelical President Has Fallen Out with Churches' (BBC News 22 November 2024) https://www.bbc.com/news/articles/cx241gygwqpo accessed 3 January 2025.

[26] Valerian Khakayi, 'Ruto Declares AIPCA the Government’s Official Church' (K24 Digital, 17 April 2025) https://k24.digital/411/ruto-declares-aipca-the-governments-official-church accessed 18 April 2025