Elvis Abenga
In the recent past, Attorney-General Prof. Githu Muigai has made proposals for regulating religious organisations and establishments. These proposed measures were made in a bid to nip in the bud a growing number of religious organisations, mostly Christian churches, that take advantage of unsuspecting and brainwashed members of the public to extort money and carry out other illegal purposes. The measures, it was also argued, were a response to the growing radicalisation of youth.
The proposed regulations received heavy backlash from churches and religious institutions, alike on grounds that they were an infringement on religious liberty rights enshrined in the Constitution of Kenya. However, the question begs as to whether the right to religious liberty and freedom is absolute.
Jeffersonian ‘wall of separation’
To contextualise freedom of religion, it is important to take a brief historical journey on the development of this freedom from the Jeffersonian Wall of Separation between Church and State, to the free exercise clause as is discussed hereunder.
In order to prevent a repeat of atrocities committed in the past in the name of religion, the concept of a wall of separation between the church and the state was developed. This was after a realisation of the fact that once a religious entity gains access and control to state resources, the religious entity would tend to use state machinery to enforce its dictates to all within its jurisdiction, and to persecute and punish all those who do not subscribe to the entity’s set of beliefs.
From its name, the concept of the “wall of separation”, is attributed to Thomas Jefferson, third President of the United States of America. The concept was later on given legal backing by the US Supreme Court Cases of “McCollum v Board of Education 333 US 203 (1948)” and “Everson vs Board of Education 330 U.S.1 (1947)” 16, 18”, where the court stated that the provisions of the First Amendment to the US Constitution had erected a wall of separation between church and state. The First Amendment provides in part that “Congress shall make no law respecting an establishment of religion or preventing the free exercise thereof”. This provision inspired the development of religious freedom, more so with regard to the separation of church and state. Consequently, the State would not be allowed to make any law either establishing a religion, or prohibiting its free exercise.
The proposed regulations by the Attorney-General were criticised on grounds that they amounted to a prohibition of the free exercise of religion. Separation of church and state under the Kenyan Constitution is achieved by dint of Article 8 of the Constitution which is to the effect that there shall be no state religion. Free exercise of religion, on its part, is set out in Article 32 (1) of the Constitution, which provides that everyone has the right to freedom of conscience, religion, thought, belief and expression.
Such religious rights, broadly framed, are prone to abuse for selfish and illegal ends. For instance, in the US case of “United States vs. Meyers 906” F. Sup 1494, which involved an indictment of an individual found in possession of Marijuana, the accused person claimed that the State was infringing on his religious liberty rights because he belonged to a religious group whose practices included the smoking of Marijuana. The Federal Supreme Court held that this was a clear case of abuse of religious liberty provisions.
For one to claim to exercise religious freedom under the Constitution, one must of necessity ascribe to a “religion” (though freedom of religion has often been said to include freedom from religion). The Constitution and the laws of Kenya are silent on a proper definition of what amounts to religion for purposes of constitutional protection. To this end, this article borrows from American jurisprudence to suggest three approaches for determining what system would amount to a religion or not.
The beliefs approach
This approach is one of the earliest in the classification of religion for purposes of religious liberty. Under this approach, there is great emphasis on the belief in a supreme being and thus any belief/religious system that does not ascribe such belief would not qualify to classify as a religion for purposes of religious liberty. This approach was set out in the case of “United States vs. Beason 133 U.S 333” where the US Supreme Court stated that the term “religion” has reference to one’s own views of his relations with his Creator, and to the obligations they impose of reverence for his being and character and of obedience to His will. The court further stated that one cannot speak of religious liberty without proper appreciation of its essential and historical significance and without assuming the existence of a belief in supreme allegiance to the will of GOD.
However, as many scholars, such as Bette Novit, observe, the approach of limiting the definition of religion only to belief in a single supreme being would encompass only the Abrahamic religions of Judaism, Islam and Christianity, while being biased to the religious systems that are polytheistic in nature. Due to this fact, the Supreme Court later acknowledged non-theistic and polytheistic religions in the case of “Torcaso vs. Watkins 37 U.S 488 (1961)” where the court stated that neither can government aid those religions based on a belief in GOD as against those religions founded on different beliefs.
Because of the inadequacy in this approach, there was need for the development of another yardstick by which religious systems would be adjudged for the purposes of constitutional protection.
The US Federal Supreme Court embraced this approach in the case of “United States vs. Meyers 906 F. Sup 1494 (1995)” where the court stated that however deep or sincerely-held a belief system may be, it does not qualify as a religion if it is not sufficiently comprehensive.
The comprehensive doctrines approach signals a shift from traditional belief system to embrace a test that looks at the comprehensiveness of the religious system rather than the content of the belief. However, this approach still suffers from some problems in the sense that it may be difficult to distinguish a comprehensive religious system from any other philosophical system. Further, as many scholars note, an attempt by judges to make a distinction between a comprehensive philosophical system and a comprehensive religious system amounts to the judges playing the role of religious censors, which is deemed to basically be inappropriate. Complete reliance on this approach has been argued to have the effect of reducing religion to a completely cognitive phenomenon that would deny protection to those who are not able to articulate profound religious philosophy. The approach has also been criticised for denying protection to persons professing personal religion and favouring those who profess communal and traditional religions. As a result, the functional approach was developed as a bid to set a different criterion for adjudging religion.
Functional approach
The functional approach basically looks at the role the belief system plays in the life of the believer. It takes inspiration from the work of Paul Tillich who defines religion as that which concerns the depth of one’s life, the source of one’s being, one’s ultimate concern, or what one takes most seriously without reservation. This approach was given judicial consideration in the case of “United States vs. Seeger 380 U.S 163 (1965)” where the court stated that the test of belief in relation to a supreme being is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in GOD. Thus this approach seems to be subjective by taking into consideration the role the religious belief plays on the life of the belief. In a nutshell, it would seem that following this approach would mean that the more sincerely held a belief system is on the life of a believer, the more likely it is to qualify for religious liberty protection.
The various approaches mentioned above are just but a few ways in which the United States legal system has attempted to address the challenge of an unbridled provision for religious liberty, which is prone to abuse. It would be beneficial for the Kenyan judiciary to come up with its own set of yardsticks and thresholds by which religious beliefs can be examined.
The scope of application of any fundamental rights and freedoms is generally subject to necessary limitations under Article 24 of the Constitution of Kenya. The provision gives several factors that should be taken into account in setting forth limitations to any particular rights i.e. the nature of the right and fundamental freedom, the importance and purpose of the limitation, the nature and extent of the limitation and the need to ensure that the enjoyment of fundamental rights and freedoms by any individual does not prejudice the rights and fundamental freedoms of others as well as the relation between the limitation and its purpose, and whether there are less restrictive means to achieve this purpose. Care would need to be taken to ensure that the regulations, while providing for necessary checks and balances, do not derogate from the fundamental principles of religious liberty.
Author is an Advocate of the High Court and a Law Lecturer
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