Our democratic order manifests in a more pluralistic society, where freedoms in all areas of life have become even more valuable. Yet, while no right is absolute, the most basic freedom in a democratic society is religious freedom. The Constitution of Kenya 2010 guarantees freedom of religion, which can be enjoyed by individuals and religious associations or people belonging to a religious community in practising their religion. The Presidential Taskforce on the Review of Legal and Regulatory Framework Governing Religious Organisations in Kenya, which Rev Hon. Mutava Musyimi chaired, promptly delivered the regulating framework for rogue religious organisations that President William Ruto wished for. From its recommendations, the government has crafted the Religious Organisations Bill 2024 to regulate religious practice in Kenya.
What the Bill proposes
The Presidential Taskforce Report observed religious organisations’ lack of transparency and accountability and consequently assumed a gap in Kenya’s regulatory framework for religious operatives. It considered the Societies Act incapable of addressing the unique character of the religious sector and therefore recommended a raft of changes to the law. Of the several recommendations made, and now carried in the 2024 Bill, two might undermine the religious liberties enjoyed by Kenyans. They concern the Religious Affairs Commission and Religious Umbrella Organisations.
First, the taskforce urged the government to establish a Religious Affairs Commission to oversee religious institutions. To this end, the government has proposed in the draft Bill the establishment of the office of the registrar of religious organisations who shall “issue, suspend or revoke certificates of registration in accordance with this Act”. The officer shall have the power to register religious organisations, banish extremist religions and cults and sanction religious practices. In addition, the officer will “enforce good governance in the management of religious organisations”.
Henceforth, the registrar shall determine the qualification of religious leaders and, according to the taskforce recommendation, “institute compulsory training for all leaders of religious organisations”. The 2024 Bill foresees that the registrar shall not approve the registration of an organisation unless both the umbrella religious bodies and the registrar “review and set qualifications of leaders of religious organisations registered under the organisation” and unless “at least one religious leader with a degree, diploma or certificate in theology who may form part of the board of trustees”.
The registrar or religious organisations will conscript county officials to “carry out inspections of religious organisations operating only in their specific counties to ensure compliance with this Act” and “supervise elections of members of the management structure of religious organisations operating only in their specific counties”.
Second, the taskforce recommended the creation of Umbrella Religious Organisations under which all religious groups should operate. It envisaged a hybrid of self-regulation organisations with government involvement and modelled the umbrella organisations after the Public Service Vehicles (PSV) Matatu Sacco where “all Matatu owners […] belong to a Sacco” and where the government controls the Saccos’ operations through legislated laws and policies. Adopting the Bill will give the umbrella organisations powers to:
“(a) oversee and regulate religious organisations registered under the organisation; call for information, or accounts; and (b) provide a forum for consultation among the religious organisations registered under the organisation; (c) develop theological training curricula and a code of conduct for religious leaders; (d) review and set qualifications of leaders of religious organisations registered under the organisation; (e) review doctrines and religious teachings of religious organisations registered under the organisation; (f) develop and implement guidelines on the activities of the religious organisations registered under the organisation; (g) establish an internal dispute resolution mechanism for its members.”
Apart from peer-regulating religious groups, the umbrella bodies will tame deviant organisations and report their leaders to the government for abandoning the agreed orthodoxy. So, the Bill places religious groups – as is the case with Matatus under Saccos – under government-regulated umbrella organisations for registration and supervision during operation.
The rationale for the Bill
The presidential taskforce premised its proposals for a change in the law on the claim of rising “extremism behaviour and sprouting of otherwise non-anchored religious sects with uncensored teachings to thrive” because of the absence of a religious self-regulatory mechanism. It contended that the absence of a regulatory framework enabled incidents like Shakahola to occur.
In justifying these regulations, the taskforce argued that “public interest requires that there must be a healthy balance between the freedom of religion and the respect of the rule of law, respect for the rights and freedoms of others and general public safety and interest”. However, exposing the commissions’ intent, was President William Ruto’s call for “the regulation of religious organisations, with the aim of stamping (sic) out rogue religious organisations and leaders” following the Shakahola ignominy.
The taskforce raised serious cases of human rights abuses, although not confined to the religious realm. Further, it claimed that religious institutions were non-compliant with the statutory requirements of the Societies Act, and thus recommended special legislation focused on religious organisations and crimes committed within religious contexts. However, these and non-compliance with statutory regulations could and must be addressed within our existing legal framework. Had the government enforced the provisions of the Societies Act, incidents like Shakahola would have been avoided. It is inexplicable that the taskforce failed to adopt the US experience which country it also visited. In the US experiment, the government does not promote religious affiliations. Rather, it affirms religious freedom while maintaining law and order.
While freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. Such an attempt by the state to regulate this freedom would cause disquietude.
How are we to understand religion itself?
The Religious Organisation Bill 2024 compels us to rethink our characterisation of religion. The imperative to distinguish what religion means is pronounced in both classical Western and non-Western terms. So, our understanding of religion has to be better thought through as we seek harmony in a plural religious context.
First, the taskforce, then the 2024 Bill, took a rather narrow view of religion, thereby caging their categorisation of religious institutions. For in defining “Religious Organisation” as “an association, conference, congregation, convention, committee, or other entity organised and operated for a religious purpose”, the taskforce zeroed in on the social at the expense of the spiritual aspect of a religious organisation. Implicit in the term “religious” is the spiritual, while in “organisation” is the social. The religious is innate, and a given, which the government must only affirm, and it does that through the constitutional provision of religious liberties. Whereas the organisation is instituted, a social construct, and similar to other social groupings, the Societies Act establishes it.
Although the Religious Organisation Bill 2024 defines “religious organisation” as “an organisation whose identity and mission is religious or spiritual in nature and which does not operate for profit”, it lacks the requisite spiritual accent. The Bill categorises religion in terms of organisations with a constitution, a doctrinal statement, and sets of teachings. It rates religious leaders as having formal degrees, diplomas, or certificates in theology. The Bill classifies religious organisations like corporate boards, with trustees, committees, and their output in the number of adherents, account statements, assets, and a list of charitable activities within the society. This portrayal cannot project religious organisations in their valuable cultural and spiritual aspect for which we raise the question, well put by Richard J Schreiter: “Is ‘religion’ ultimately a Western or a Christian category?”
Would the baseline model of popular religion help reorganize our thoughts on this? To conflate corporate organisational standards and formal theology is to reduce religion solely to a view of life, forgetting that it is also a way of life.
We need a reminder that what “religion” means varies from culture to culture. Many African languages did not have a vocabulary for what we call “religion”, because religion is a way of being and living, which Robert Schreiter further notes is “so tied up with being part of a particular culture that it is impossible to imagine living that way outside the culture”. And when they adopted Christianity, aspects of the older understanding persisted, since they did not see the new religion as replacing that way of living in the culture, but as enhancing it. The new faith expanded the boundaries of the old religions to the larger world and, in the words of Schreiter, “[Enhanced] access to the sources of divine power, […] providing better insight into what one has been doing already”. For this reason, it is not uncommon for some who adopted Christianity to view it as a “religion” that adds something extra to their own, rather than something different.
So, what may appear to be a sect, or a cult, may have something to do with how one construes the limits of incorporating cultural elements into the new religion. Thus, before we render groups to be cults or sects, we need to appreciate their pace and capacity to absorb foreign religious concepts, be they Christian or Islamic. In addition, it may, according to Schreiter, have something to do with thinking about such choices disjunctively (as either-or) instead of conjunctively (as both-and). The question to be raised again here is: For whom are sects or cults and extremists a problem?
Should this Bill be enacted, we shall have forged all religious groups in Kenya in the image of Western Christian religion. Kenyans worshipping in the Kaya of Kwale, in the Mt Kenya forest, or on the shores of Lake Victoria will now need to register members, have a constitution, publish accounts, and document their doctrines as the Bill requires. Their leaders will need to hold formal degrees or diplomas in theology. In African religions, it will be hard to distinguish clerics from community elders, since they also play the role of worship leadership.
If Islam must comply with this Bill, Muslims may have to tinker with their religious practice to fit. Yet Islam is not confined to private life and is hence remarkably different. Muslims understand Islam as a complete way of life. Religion guides all aspects of their lives – the individual and social, material and moral, economic and political, legal and cultural, and national and international. Applying Christian characterisations – “cleric” – to describe a Muslim scholar is a misnomer. Islam has no formal clergy, no ordaining body, and no hierarchy. According to Islam, all people should strive to learn; it does not specify who becomes a scholar. It is to these scholars that Muslim society turns to whenever they pray together. They select one individual to stand in front of a congregation to lead in prayers. The person, Imam, which means “the one who is leading”, is often the most knowledgeable of the Qur’an and Islam.
The faith-religion distinction is most certainly a cultural distinction of the West, perhaps only of one form of Protestant Christianity. Religion cannot be reduced simply to a set of ideas the way the Bill does.
Instituting umbrella bodies as self-regulating religious groups will not only pressure them to conform to orthodoxy involuntarily but will also place religious groups under state control. This is the Bill’s most insidious demand. For it ensures the government keeps religious groups on a short leash. Classifying religious groups into umbrella groups will be a hard task. The difficulty will be more pronounced in Islam or in African traditional religions whose religious texture and association differ from Christianity. I wonder how the Catholic Church in Kenya will fit in this arrangement. Given its expanse, reach, history of going it alone and tradition, which umbrella group will it join? If exempted, will it not be obvious that this law targeted certain Christian religious groups? I hope the centring umbrella religious groups, like the NCCK, EFK, and AIC, were not a ploy to revive their waning fortunes.
The effect of the Religious Organisations Bill on religious liberties
The Religious Organisations Bill 2024 draws its force from a recommendation of the taskforce that was casual and scant in guaranteeing religious liberties. It confers on the registrar of religious organisations the authority to regulate their functions and the power to “issue, suspend or revoke” their registrations. In addition, the registrar determines the qualifications and suitability of spiritual leaders, licences the practice of religious groups and mediates in their conflicts. The state and its agents are thus pivotal in adjudicating belief and religious rights. Vesting the powers to register and deregister a religious organisation on the registrar upon advice given by the umbrella religious organisation gives the state unfettered authority over the process that might jeopardise freedom of association and religion.
Aware of the state’s inclination to usurp liberties in the name of national security, the drafters of the Kenya Anti-Terrorism Act 2022 put caveats on the state’s authority. As a result, the Cabinet Secretary’s power to turn down applications for, and revoke the registration of associations of groups linked to terrorism requires the approval of the High Court. Thus, the government can only revoke and refuse registration once the court has determined and confirmed that the Cabinet Secretary’s order is reasonable and that the government does not unreasonably, or for political victimisation or ulterior reasons, seek to limit association. This kind of law proviso, where the judiciary determines the contours of religious liberties, best guarantees the protection of freedom of association.
The Religious Organisations Bill 2024 focuses on censoring angular beliefs and religious organisations. However, allowing the state such a level of control would erode freedoms of belief. The essence of what is believed or worshipped may not be definite to any stringent logic or rationale, and applying the same standards to religious institutions may not carry. We may apply the point of Justice J Sachs of the South African Constitutional Court that,
Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike non-believers as bizarre, illogical or irrational. The believers should not be put to the proof of their beliefs or faith. For this reason, it is undesirable for courts to enter the debate of whether a particular practice is central to a religion.
This Bill gives the registrar and the umbrella organisation unfettered authority to sanction the beliefs of religious organisations that they consider to be extremists, sects, or cults. By determining what religions are cults or sects and outlawing pitted beliefs, the registrar would infringe on their beliefs, which are subjective and founded on faith. Being so might force one’s belief to align with what the reasonable person (a non-believer) considers sensible. We should not base freedom of religion on the rules set by the state and its agents but on the inherent dignity and the inviolable rights of the human person. Justice CJ Dickson of the Canadian Supreme Court clarified this thought thus:
“The essence of the concept of Freedom of Religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.”
But the concept of freedom means more than that.
We can characterise this freedom through the absence of coercion or constraint. As the Canadian Supreme Court ruled, “If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition, and he cannot be said to be truly free”. Further, this Court listed forms of coercion as either direct, to include compulsion “to act or refrain from acting on pain of sanction and indirect seen in controls determining or limiting alternative courses of conduct available”. So, instituting regulatory umbrella bodies to coerce individual religious groups into conforming their doctrines to allow beliefs to be registered undermines their right to manifest beliefs and practices. Because freedom embraces the absence of such coercion or constraint.
Beliefs, contends John Rawls in Political Liberalism, are matters of conscience, thus personal and subjective. Our government must refuse to impose any religious ideology on its citizens and, therefore, not unduly check freedom to practise belief. Whenever governments purport to grant freedom of religion, they often qualify the extent it is exercised by imposing state-recognised religion or elevating the state’s national interests over individual rights.
Given Kenyan religious and ethnic divides, the reliance of the registrar of religious organisations on county officials to conduct inspections and ensure the compliance of religious organisations operating only in their specific counties may lead to the persecution of religious minorities in certain counties. How do we safeguard religious minorities from the threat of “the tyranny of the majority”? What may appear good and true to a majority religious group or the state acting at their behest may not, for religious reasons, be imposed upon citizens who take a contrary view.
If the fundamental religious liberties, including those of minorities, should be respected and not limited, a different adjudicator – other than state operatives – is needed. One that will deal with disputes in a nuanced and context-sensitive form – our judiciary. It is a judiciary conduct to draw boundaries and determine the limit of religious rights. The courts, not the state or these quasi-state bodies, must be the arbiters.
What is the point of making it so difficult for religious groups to operate in Kenya? Why deliberately crush constitutional liberties to cure a misdiagnosed social disease?
With its implicit freedom, religion is a “moral force” within a society that we must embrace, not unduly fetter.
