Religious liberty: Treatise on the need for regulation
Care needs to be taken to ensure that the proposed regulations, while providing for necessary checks and balances, do not derogate from the fundamental principles of religious liberty
In the recent past, Attorneygeneral 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
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