Yet the religious feature of life is not confined to houses of worship. Almost every public event begins and ends with a prayer. It is hardly surprising then that religion would have found a significant space in the 2010 Constitution especially so since religion is not perceived as a private affair like in most of the Western World. Religion is very much a public affair in Kenya and it permeates all aspects of human life.
The first sentence of the Preamble to the Constitution confirms the importance of religious belief when it states, ‘ACKNOWLEDGING the Supremacy of the Almighty God of all Creation’. In the same preamble we are reminded, ‘PROUD of our ethnic, cultural and religious diversity and determined to live in peace and unity as one indivisible nation’. This sentence states emphatically that religious diversity is worthy of celebration and a reason to be proud.
That may well be true but the making of the new constitution exposed very real theological and moral tensions between the faiths that at one time almost wrecked the whole process. Article 8 states briefly and simply, ‘There shall be no State religion’. That is saying clearly that no religion will have special privileges over another and the state will treat all with equal respect under the law. Yet, the dominant religious culture is Christian so how do religions that are minorities feel at home and protected in such an environment? Do other faiths feel threatened or undermined or misunderstood? How can their needs be recognised and addressed?
The major contentious issue during the reform process concerned whether Kadhi Courts should be included in the Constitution. Christians and Muslims had worked in harmony on constitution making ever since they shared a platform at Ufungamano House when they attempted to salvage the process that in its infancy was hijacked by the political and ruling classes. However, the issue of Kadhi Courts tested that relationship, as a large percentage of Christian leadership representatives believed that entrenching the courts in the constitution would be giving special privileges and status to the Muslim faith. As a result they felt that they were being discriminated against and being asked to pay for the Kadhi Courts.
Kadhi Courts apply Islamic Law to issues of family, marriage, divorce and inheritance. They had already been in existence and operational before the constitutional review, but now Muslims wanted to guarantee their security and permanence in the constitution so that they would be recognised and funded like all the other state courts. They argued that it would be discriminatory if they were not entrenched under the expected Article 27(4) which states that the State must not discriminate directly or indirectly against any person on any ground, including race, sex, religion etc.
The division was real and worrying at a critical stage in the process. Ultimately reason and compromise won the day. The argument went that why should the courts be removed since they are not only no threat to non-Muslims but an important feature of Muslim Law. The fears that they would lead to a spread in Islamisation were unfounded and exaggerated also. But the issue did reveal the suspicions that prevail among the religions. In the end Kadhi Courts were granted the status of a subordinate court like Magistrates Courts. Article 170 describes in detail the role of the Kadhis and their powers.
However, the final clause in that article did not get the full approval of all Kadhis. It said, ‘The jurisdiction of a Kadhi court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi courts’. This confirmed two things. Firstly, the law only applied to Muslims. Secondly, there was an opt-out clause if one of the parties chose not to submit to the Kadhi Court but decided instead to have the matter dealt with in a regular court. That is where the compromise came in.
When the matter reached resolution the tension reduced and the courts today provide an important service and access to justice for Muslims. Not only that, they have seen a considerable expansion from 15 in 2010 to over 50 today. The outcome and agreement illustrated the challenges and the benefits of living in a truly pluralistic society. The state recognised the uniqueness of Islamic Law and tradition and acknowledged Islam as a religion alongside others in Kenya.
It must, as a result, have gone a long way in assisting Muslims to feel at home in a country where they only represent 11% of the population according to the 2009 census. One should not underestimate how any minority, and especially a religious one, requires special consideration and attention to ensure that their rights are respected. Article 56 on minorities recognised that right and the need for affirmative action to protect their interests and rights and the inclusion of Kadhi Courts could indeed be viewed as an affirmative action outcome.
There are many positive lessons that can be learned from this experience that will benefit Kenya; and other societies that have similar differences in religion and their relationship with the law. For this debate and resolution has certainly fostered religious pluralism and diversity in Kenya. That is not to suggest that similar tensions cannot emerge around other issues of difference between the faiths. However, a wise and inclusive agreement set a profound precedent for future engagements and challenges.
Since religion also affects almost every aspect of life it is inevitable then that there may emerge many differences and conflicts over issues of sexuality, marriage, reproductive rights, health welfare and education matters in the near future. The recent declaration by President Kenyatta that all schools under church sponsorship should be returned to the respective churches is bound to cause controversy and confusion. He also suggested that where schools are built on church land then the title should be restored to the churches.
Recently religious tensions and differences have resurfaced over the right of Islamic Girls to wear hijab as part of school uniform. The matter has been referred back to the High Court by the Supreme Court. However, should such matters ever appear in court at all? Adversarial justice should rarely apply in matters of such a sensitive and delicate nature.
Common sense, dialogue and respect for religious diversity should take precedence over judicial decisions that could divide Kenyans along religious lines. Schools that welcome students of different faiths should respect the religious culture of all of their students. If the school cannot integrate a diversity of religious practises then how can it claim to be an institution of education and nation building?
The hijab, Sikh turban, Jewish skullcap and the Christian cross are all explicit symbols, but they do not represent a threat or insult to others. Courts are a last resort and frequently give unsatisfactory judgments on religious and cultural matters. Surely this is the best argument for Alternative Dispute Resolutions (ADR) for addressing such matters – something the Constitution encourages.
Article 32 guarantees freedom of religion. However, religions must accept that they are not above the law and that practices must meet certain standards and be accountable. However, the larger question that remains is that of the positive role that religion can play in a democratic society.
It is easy to identify the struggles and the differences that might emerge in the coming years. We might be tempted to view religious conflicts as inevitable and religion as a divisive force in a pluralistic society. Yet, we are consistently reminded that President Jomo Kenyatta said that religions must be the conscience of society. Being the conscience of society should mean that they promote the rights of all citizens but with a fundamental and clear option to defend the rights of the poorest, most vulnerable and most neglected groups of society. In other words, the focus of all religion must be not its own preservation or promotion but the commitment and service to the common good.
But when boundaries are clear and religion does not compete for power or honour but as a witness to values and service; then it has the power to transform the whole of society. That is surely what the drafters of the Constitution intended when they said that there shall be no state religion. For that is when religion has the possibility and space to operate and become an agent of change that is implementing the constitution.