The Rutherford Institute's
Around the World
A Brief Historical and Legal Description of Religious Liberty
The Republic of Kenya declared independence from Great Britain in 1963 and joined the United Nations in the same year. In 1991, the Kenya African National Union (KANU) allowed multiparty democratic elections. While KANU maintains power, it no longer holds the two-thirds majority necessary to pass constitutional amendments. President Daniel Arap Moi and his ruling party encourage members of Parliament to defect to the KANU. The President often controls Parliament, and he exercises great power over the judiciary. He appoints the Attorney General and High Court judges with the advice of the Judicial Service Commission.1
Fifty-six percent of Kenya's citizens profess Christianity, divided equally between Roman Catholics and Protestants, 38% practice Animism, and 6% practice Islam.2 Religion has been a fundamental force in creating division within the country. Author Constantine Mwikamba argues that "[w]hat was distinctive about most of these [independence movements reacting against Christian colonial rule] was their religious impulse. Many were led by religious figures and most were sustained by powerful religious symbolism."3 Mwikamba asserts that the African Independent Church grew as a response to European colonialism. While traditional religious groups such as Anglicans and Catholics did not support indigenous African movements, other forms of religious protest evolved. One example is the cult of Mumbo which began in the early 1900's and grew in response to discontent with colonial leaders and their religious beliefs. The Mumboist leader stated, "The Christian religion is rotten... [A]ll Europeans are your enemies."4 Mwikamba explains that "Mumboism ... can be considered as one of the forerunners of nationalism within Kenya."5 The religious element is central to nationalist movements in Kenya.
The Constitution of 1963 grants jurisdiction to Islamic courts, but limits their jurisdiction to matters of personal status in areas where the local population is predominantly Islamic. The government does not allow polygamy for those married under the Christian Marriage Act, but permits the practice for those married under African customary law.6
In 1989, the High Court ruled in Maina Mbacha v. Attorney General that the Kenyan courts do not have authority to enforce the "Bill of Rights" in the Kenyan Constitution, altering Kenya's tradition of judicial independence and limiting the ability of citizens to seek judicial recourse for governmental human rights violations, including the suppression of religious liberty.7 In Maina, the Court ruled that Section 84 of the Constitution which grants the High Court original jurisdiction to enforce the Chapter on Fundamental Rights was "inoperative."8 Though this decision has been challenged, it has not been overruled. Maina overturned a long list of cases, such as Felix Njagi Marete v. Attorney General (1986), in which the Court held, "[T]he Constitution of the Republic is not a toothless bulldog nor is it a collection of pious platitudes. It has teeth and in particular these are found in Section 84."9 The human rights situation in Kenya now embodies one scholar's sentiment that "[T]here is something particularly exasperating about broad affirmations of fundamental human rights unaccompanied by any machinery for giving them legal protection."10
In their map of "Suppression of Religious Liberty around the World," Christian Solidarity International states that Kenya commits "few violations, none serious, of basic religious liberties."
Constitutional Provisions and Legislation Relating to Religion
Provisions in the 1960 Constitution of Kenya relating to religious liberty are as follows:Section 78 (1): Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section that freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.11
(2): Every religious community shall be entitled, at its own expense, to establish and maintain places of education and to manage a place of education which it wholly maintains, and no such community shall be prevented from providing religious instruction for persons of that community in the course of any education provided at a place of education which it wholly maintains or in the course of any education which it otherwise provides.12
(3): Except with his own consent (or, if he is a minor, the consent of his guardian), no person attending a place of education shall be required to receive religious instruction or to take part in or attend a religious ceremony or observance if that instruction, ceremony or observance relates to a religion other than his own.13
(4): No person shall be compelled to take an oath which is contrary to his religion or belief or to take an oath in a manner which is contrary to his religion or belief.14
(5): Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required-(a) in the interests of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practice a religion without the unsolicited intervention of members of another religion, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.15
(6): References in this section to a religion shall be construed as including references to a religious denomination, and cognate expressions shall be construed accordingly.16
Section 84 provided for the enforcement of these provisions, until the High court ruled it "inoperative" in 1989. "If a person alleges that any of the provisions of sections 70 to 83 (inclusive) has been, is being or is likely to be contravened in relation to him . . . then, without prejudice to any other action with respect to the same matter which is lawfully available, that person . . . may apply to the High Court for redress."17
The Kenyan Constitution formerly provided that arrested or detained persons not held under the Preservation of Public Security Act (PPSA) be brought before a court "as soon as is reasonably practicable," usually within 24 hours of arrest or start of detention.18 In 1988, the Constitution was amended to allow a 14-day detention period.19 A 1993 amendment excludes weekends and holidays from the 14-day detention period.20 The PPSA allows the State to hold an arrested individual indefinitely if such measures are essential for the "preservation of public security," a phrase which includes "prevention and suppression of rebellion, mutiny, violence, intimidation, disorder and crime, unlawful attempts and conspiracies to overthrow the Government or the Constitution."21 According to the U.S. State Department, the Kenyan government did not detain anyone under the PPSA in 1994.22 While the above measures do not apply directly to religious freedom, they circumscribe the general freedoms of citizens and increase the likelihood that the Government will limit freedom of religion.
In November 1991, the government repealed Section 2(a) of the Constitution, which restricted Kenyans from registering freely with any political party. However, the government refuses to register three political parties, one of which is the Islamic Party of Kenya (IPK). Kenyan Muslims assert that the government's refusal to register the IPK, the result of a Presidential directive that religious groups may not form political associations, demonstrates an anti-Muslim bias, but the government officially denies such charges.23
The Public Order Act grants authorities the power to control public gatherings and thus limits the constitutionally protected freedom of assembly. According to the U.S. State Department, the Act "makes it illegal to hold an unlicensed meeting of 10 or more persons without approval from the district commissioner, but it does not in theory apply to persons meeting for 'social, cultural, charitable, recreational, religious . . . purposes.'"24 The Department of State asserts "[i]n practice, meetings under all those categories fall under the jurisdiction of the Public Order Act.25
The Societies Act mandates that every association in Kenya must either register or be exempted from registration by the Registrar of Societies.26 Although Kenya does not have a state religion and nominally allows freedom of worship, the government requires all new churches to seek registration through acquiring government approval.27
Recent Reported Cases of Religious Intolerance
The political climate in Kenya has grown increasingly unstable over the past years. In November 1993, News Network International reported that over 1,000 Kenyans died as a result of tribal violence since 1991.28 As tribal tensions increase, so do anti-religious actions. In October 1993, bandits mugged and then kidnapped Catholic aid workers in the southeast. The four were beaten and later abandoned.29 Also in October, about 500 men from the Maasai tribe raided Catholic and evangelical churches in the southwest, causing the government to request that two Catholic priests leave the area, as the government could no longer provide for their safety.30 In September 1993, a Kenyan official in the northeast accused World Vision, a Christian organization, of "rousing religious frictions" after 200 copies of the Koran were discovered in a pit latrine. World Vision denied the allegations.31 In November 1992, gunmen fired on persons attending a Christian funeral in the northwest, killing a minister and six mourners and injuring three others.32 Government- sanctioned incidents of religious intolerance fall into the categories of denial of free press, restrictions on entry into the country, and restrictions on freedom of worship.
FREEDOM OF THE PRESS. Although the Constitution allows freedom of the press, the government restricts this freedom both in theory and in practice. In May 1993, police confiscated 6,000 copies of the Presbyterian Church of East Africa's magazine, Jitegemea, which accused the government of genocide for their handling of ethnic conflicts in the Rift Valley. As of January 1994, the editor of the magazine had been arrested three times for sedition since the July 1992 start of the magazine.33
In February 1993, police, without a warrant, confiscated printing plates and other materials from Lengo Press, a Christian printing house. Lengo's crime was the distribution of a copy of "The Watchman," a religious magazine which criticized the government.34
FREEDOM OF ENTRY. In July 1993, the government expelled 1,300 refugees who were being assisted by an Islamic aid organization. The government accused the individuals of "fundamentalist activity."35
FREEDOM OF WORSHIP. The general secretary of the National Council of Churches of Kenya asserts, "the church-state relationship is very strained in this country, especially for the churches that have been openly critical of the government."36 On July 17, 1993 President Moi conducted a political rally in Kapsabet, and local authorities directed school children to attend. When the headmistress of a girl's high school interrupted the religious service of a group of Seventh Day Adventist students and ordered them to attend the rally, many refused. School authorities summarily expelled the dissenters from the school. Popular outrage lead the local commissioner, in the words of the U.S. Department of State, "to readmit the students and stop interfering with their religious freedom." Although school authorities readmitted the students by the end of July, they sentenced the children to manual labor.37
1 U.S. Department of State, Country Reports on Human Rights Practices for 1994 (Washington, D.C.: United States Government Printing Office, 1995): 118.
2 Edward H. Lawson, ed., Encyclopedia of Human Rights (New York: Taylor & Francis, Inc., 1991): 1011.
3 Constantine Mwikamba, "Ethnic Religion: Conflict and Social Changes in Kenya," Dialogue and Alliance: Journal of the International Religious Foundation, Inc. Vol. 7 (Spring-Summer 1993): 57.
4 ibid, 58.
5 ibid, 60.
6 U.S. Department of State, Country Reports on Human Rights Practices for 1993 (Washington, D.C.: United States Government Printing Office, 1994): 139.
7 Gibson Kamau Kuria and Algeisa M. Vazquez, "Judges and Human Rights: The Kenyan Experience," Journal of African Law Vol. 35, Nos. 1 and 2 (Spring-Autumn 1991): 142.
9 ibid, 151, discussing Felix Njagi Marete v. Attorney General.
10 S.A. de Smith, Constitutional and Administrative Law (London 1971) in Kuria and Vazquez, 144.
11 Albert P. Blaustein and Julio Menezes, "Kenya," in Albert P. Blaustein and Gisbert H. Flanz, eds., Constitutions of the Countries of the World (Dobbs Ferry, NY: Oceana Publications, Inc., 1988): 50-51.
13 ibid, 51.
16 Blaustein and Menezes, 50-51.
17 ibid, 58.
18 U.S. Department of State (1994): 117.
19 ibid, 117.
20 ibid, 117.
21 ibid, 117.
22 ibid, 117.
23 ibid, 122.
24 ibid, 121.
25 ibid, 121.
26 ibid, 122.
27 ibid, 122.
28 "Kenya," News Network International: Special Edition (November 24, 1993): 4.
29 "Kenya," News Network International: Special Edition (October 26, 1993): 2.
30 ibid, 5.
31 "Kenya," News Network International: Special Edition (October 4, 1993): 5.
32 "Kenya," News Network International: Special Edition (November 25, 1992): 1.
33 U.S. Department of State (1993): 134.
34 ibid, 135.
35 ibid, 137.
36 Carol Fouke, "Challenges in Kenya: Church and Democracy." One World (August-September 1992): 13.
37 U.S. Department of State (1993): 136.
Source: Handbook on Religious Liberty Around the World, Pedro C. Moreno, Editor. Charlottesville, VA: The Rutherford Institute. This report is reprinted here by special arrangement with the Rutherford Institute and may not be reproduced or mirrored on another webside without written permission of the Rutherford Institute.
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