Re­li­gious lib­erty: Trea­tise on the need for reg­u­la­tion

Nairobi Law Monthly - - Analysis - ELVIS ABENGA

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

Pres­i­dent Keny­atta signs a Bill into law.

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