Why mar­riage be­tween Church and State must never hap­pen

Nairobi Law Monthly - - Review - NEW­TON ARORI

“Be­cause religious be­lief, or non-be­lief, is such an im­por­tant part of ev­ery per­son’s life, free­dom of re­li­gion af­fects ev­ery in­di­vid­ual. State Churches use Govern­ment power to sup­port them­selves and force their views on per­sons of other faiths and un­der­mine all our civil rights. More­over, State sup­port of the Church tends to make the clergy un­re­spon­sive to the peo­ple and leads to cor­rup­tion within re­li­gion. Erect­ing ‘the wall of sep­a­ra­tion’ be­tween the Church and State is ab­so­lutely es­sen­tial in a free so­ci­ety” – Thomas Jef­fer­son

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.^

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