When the next generation of leaders forgets God: State, religion and the dilemma of the interpretation of article 8 of the Constitution of Kenya in the not-so-distant future.

Author: Alex Tamei
Law student, Kabarak University School of Law, Kenya

Article eight of the Constitution of Kenya states very succinctly that Kenya shall have no state religion, [i]effectively rendering Kenya a secular state.  Several disagreements have arisen because of this minimalist approach taken by the constitution in addressing the relationship between religion and the state. An example is the numerous ‘headscarves cases’ [ii] which according to Mukami Wangai, brought to the surface the confusion in deciding exactly which strain of secularism the 2010 Constitution envisioned for Kenyans. [iii]

Shortly after his ascension to the seat of president of the republic, His Excellency William Samoei Ruto caused a fresh round of debate to ensue on the relationship between state and religion by inviting several clergymen into his official residence at statehouse. Naturally this rankled some people the wrong way. [iv]   One such iteration of this debate occurred at Kabarak University during the second edition of the Meet the Author Series where Professor J. Osogo Ambani and a plenary of distinguished contributors came together to tackle the issue at hand through the lens of Professor Ambani’s book, Africa and the decolonization of state religious practice.

Ambani’s work expounded a simple salient truth[v], where the African is, there is his religion. Christian values and principles percolate our existing legal systems, and one would be ill advised to purport to analyse the working social, economic and political systems in sub-Saharan states without considering religion. The respect for religious convictions is thus a fundamental obligation of states as religious freedom is steeped in human dignity. The balance between the state and religious freedom, however, is an evidently hard one to maintain as seen in the many complexities to the school system in Kenya and the fiasco that has been the headscarves cases. [vi]

Kenya is a case of confusion and laziness that has not come by chance. The 2004 draft of the Constitution (Bomas draft) had three clauses, that religion and state be separate, that we do not establish a religion and that religions be treated equally[vii]. Article eight of the 2010 remains an anti-establishment clause, but the other provisions did not carry over from the Bomas draft. We remain with prayers during public holidays and Christian schools, yet we tell children not to come with Hijabs to school. [viii]

Prof Ambani’s work, and the contributions of the plenary opened my eyes to a different, admittedly more distant dilemma. The reason why religion is such a sore issue is the position it holds in our hearts as Africans and the inextricable links it has to our very social fabric.

Religious organisations in Kenya have had an inerasable impact on the political landscape of the state. Most notably, the National Council of Churches (NCC) was at the forefront of agitation for multiparty democracy between 1995 and 1997. The Church also played a core role in promoting reconciliation in 2008-2013 post–election violence Kenya.[ix] What happens then, when the force of religion, which has had an indelible influence in formation and function of Kenya as it is today, becomes purely ceremonial? What happens when religion has no influence to check and balance the excesses of the  government? There is a high possibility of article 8 of the constitution being used in this scenario to suppress any action by religious institutions in the state to stop a descent into corruption.

This is not a baseless worry, in a decade or so members of Gen z (my generation – those born from 2000 to 2010) will begin to take up key government and public service offices. One must consider the prevailing socio-economic and cultural contexts within which African youth are being raised. Wiegratz and Cesnulyte observed that in Kenya and Uganda, money rationale, individualism, self-interested and fraudulent practices are increasingly recognized as acceptable, necessary or legitimized because they aid people’s urgent need for prosperity, success and status in an environment fraught with uncertainty[x].

In Kenya, a predominantly market led system, values similar to those espoused by a religious foundation are second fiddle to personal interests. While market-led systems do not inevitably generate the requisite supportive norms and values, the corrosive effects of self-interested strategic mode of reasoning are counterbalanced by the rule of law and strong institutions. However, the counterbalancing effect of the rule of law in East Africa and Africa in general is limited. The Ibrahim Index of African Governance 2017 report shows that the rule of law has declined in 37 out of 54 African countries. [xi]

One would think that progress towards a more materialistic outlook of life would lead towards a reduction in the apparent religious piety of Kenyan youth. This however is not the case; over 80% of youth say faith is their most important value.[xii] There is instead a dissonance between high religious piety and tolerance and acceptance of corruption. The expectation is religious affiliation and public expression or display of religious inclination rather than an adherence based upon acceptance of the canons of the faith they subscribe to.

Through envisioning a future led by individuals unbeholden by religion, we can envision extremes where leaders use article 8 as a tool for repression instead of equality. Government could interpret this provision as meaning that all religious beliefs are banned. Further, the state could restrict the building of religious institutions or the holding of religious gatherings. Should it get more extreme, the state could use article 8 as a pretext for targeting religious leaders or organisations it considers a threat to its authority.  In essence, we must consider the possibility that article 8 can be used as a tool for repression, rather than a means of protecting religious freedom and jealously guarding against any such tendencies.

[i] Constitution of Kenya, Article 8.

[ii] Explanatory footnote citing all the cases, KJLE 6 page 191.

[iii] Mukami Wangai, Religious Pluralism in Practice: defining secularism in Kenya’s Headscarf cases ‘3 Strathmore Law journal (2017)177, 183.

[iv] Maureen Kinyanjui, Speak in tongues, Ruto tells clergy to cleanse State House, 25 September 2022 ,The Star.

[v]‘John Osogo Ambani, ‘A Triple Heritage of Sexuality in Sylvie Namwase and Adrian Jjuuko, ‘Protecting the human rights of sexual minorities in contemporary Africa’, Pretoria University law press, 2017.

[vi] Republic v Head Teacher Kenya High School & another ex-parte SMY; JK (suing on behalf of CK) v Board of Directors of Rusinga School & another; Mohamed Fugicha v Methodist Church in Kenya; Republic v Head Teacher Kenya High School & another.

[vii] Bomas Draft Constitution, Article 8.

[viii] Prof J Osogo Ambani during the Second edition of the Meet the Author Series.

[ix] David Throup, Charles Hornsby, ‘Multi-Party Politics in Kenya’ 30(3) The International Journal of African Historical Studies, 1998.

[x] Wiegratz, J and Cesnulyte, E (2016) Money talks: moral economies of earning a living in neoliberal East Africa. New Political Economy, 21 (1)

[xi] Ibrahim Index of African Governance 2017 report.

About the Author:

Alex Tamei is an undergraduate law student at Kabarak University School of Law in Nakuru, Kenya. He is an early career researcher interested in digital media, State apparatus and Human Rights and how they intersect.