By Newton Arori
Perturbed that the government had declared a public holiday tied to Pope Francis’s visit, the chair of atheists in Kenya Harrison Mumia, in November 2015, moved to court seeking to have the holiday annulled. He contended that the holiday was unconstitutional, citing provisions in the supreme law to the effect that Kenya is a secular state, and as such, religious events should be kept out of the public sphere. The matter was never decided by the court due to some technicalities. It nonetheless evokes the old and controversial question of separation of religion and the state. This article starts by examining the extent to which religion is separated from the state in Kenya and will seek to show why even further such separation is desirable.
Article 8 of the Constitution is explicit that “there shall be no state religion”. The upshot of that provision would be that Kenya is a secular state as opposed to a theocracy. This position is supported by Article 32 which provides thus:
“(1) Every person has the right to freedom of conscience, religion, thought, belief and opinion; (2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship; (3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion; (4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.”
On the other hand, the people of Kenya are themselves predominantly religious. 98 per cent of Kenyans profess a belief in God, and religion remains a pervasive influence on Kenyans politics and public policy. It is perhaps because of this that it is not possible to entirely divorce religion from the state. Indeed, a look at various factors speaks volumes to the religious nature of the Kenyan people.
The following illustrations attest to this. The preamble of the Constitution itself begins by declaring: “We, the people of Kenya— acknowledging the supremacy of the Almighty God of all creation…” Similarly, the National Anthem, which is a symbol of national unity, has as its first line, “O, God of all creation…” It does not stop there; State officers taking oath of office end by saying, “…so help me God.”
The Kenya government also promotes and advances religion in multiple ways, for example by employing clergy in the military and other public institutions, exempting churches from income taxation and so on. This is in contrast with other states such as the United States, where even prayer in public institutions is banned.
In the landmark case of “Engel v Vitale”, the respondent, the Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District’s principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our Country.” Shortly after the practice of reciting the Regents’ prayer was adopted by the School District, the parents of ten pupils brought an action in a New York State Court insisting that use of the official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. The court held that the school sponsored prayer was unconstitutional. The court, through Justice Black held: “…petitioners argue, the State’s use of the Regents’ prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention, since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”
While complete separation of religion and the state is not possible, or even desirable, there is need for further separation of the two entities in Kenya for the reasons given hereunder.
Protection of religion
A number of scholars have pointed out that the more the government gets involved in religion, the more the government will regulate religion, and consequently, the greater the danger is to religion. Dr Judd Patton, in “The Wall of Separation between Church and State”, notes that it is important to separate church from state to protect the autonomy and independence of the church. It is also noted that historically, governments are more likely to use churches for their own purposes. In other words, he who pays the piper calls the tune.
Another argument made for the separation of religion and State is that it is immoral to tax people to support the religion of others. Professor Erwin Chemerinsky in his essay “Why Church and State Should be Separate” (2007) William and Mary Law Review, volume 49, Issue 6 argues:
“Each of us has our own religion, or maybe we decided that we do not have any religion, but should our tax dollars go to advance a religion in which we do not believe? What if it is a religion that teaches things that we find abhorrent? Should we have our tax dollars go to that? Certainly we have the right to give our money to support any religion or any cause we want, but it is wrong to be coerced to give our tax dollars to religions we do not believe in. That is why strict separation is best: it allows people to choose how to spend their money, rather than permitting the government to use it against their own wishes.”
The third and perhaps most compelling argument in favour of separating religion from the state is that when the government becomes aligned to a particular religion or religions, those of other faiths are made to feel like outsiders. An example of this in the Kenyan scenario would be during public holidays, when prayers are said before the start of the ceremony. Those Kenyans whose faiths are not considered during such ceremonies may feel excluded by the government.
The separation of religion from the state/ state entities is not without its fair share of challenges. One of the challenges is that a number of public schools in the country are church sponsored and operated. Erasing traces of religion from such institutions is therefore not going to be a walk in the park.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
