Religion

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Legal framework on freedom of religion and actual application

Article 32 of the constitution of Kenya sets out the rights pertaining to freedom of conscience, religion, belief and opinion. All citizens are allowed to worship, practise, teach or observe their beliefs, which includes having a day of worship according to their faith. Personal or professional discrimination as well as coercion on account of religion is prohibited.[1]

Kenya has had a very lively debate about the legal aspects of religious freedom. During the period under review, the country has seen some contentious issues come up on matters of religious freedoms and their legislative regulation. Professor Githu Muigai, Kenya’s former Attorney General (2011-2018), has  played an important role in such controversies since 2016.

At the beginning of 2016, Professor Muigai announced that new provisions were to be added to the Religious Societies Rules of 2015. The new regulations were aimed at exercising tougher control on religious groups. Academic credentials would be required of preachers or church leaders.[2] Kenyan President Uhuru Kenyatta decided to withdraw the proposed regulations a few weeks later following complaints from certain groups and a meeting with religious leaders.[3] At present, the Religious Societies Rules are on hold.

Attorney General Muigui and President Kenyatta have also disagreed over a moratorium on the registration of religious organisations, issued in November 2014 following suspicions of radicalism among religious societies. The Attorney General was in favour of the moratorium, which was reiterated in an official statement from his office in February 2017.[4] One month later, President Kenyatta lifted the ban, contradicting the Attorney General’s position on the matter.[5]

The group called Atheists in Kenya – advocates for the cause of atheists and agnostics – was first registered in February 2016 but was suspended two months later by the Office of the Attorney General, which had received complaints from the public regarding its activities and pronouncements. The group challenged this suspension by filing a case before the High Court, and in January 2018 the High Court overturned its deregistration.[6] Thereupon, the group demanded the resignation of the Attorney General, who eventually left office in February 2018 for reasons unknown.[7]

Regulation of the right to wear the veil (hijab) for Muslim women has been a controversial topic, especially given the inconsistency of the government’s legal decisions on the matter. In September 2016, the Kenyan Court of Appeal ruled that female Muslim students were allowed to wear the veil in educational institutions (including Christian facilities). This ruling overturned a previous High Court decision in March 2015. In addition, some members of independent African Churches such as the Akorinos, whose members wear turbans (men) and veil (women), claimed that the ruling allowed them to keep their mandatory dress code too. They have often complained about discrimination in public offices, schools and institutions.[8] Despite official rulings, controversies around this topic have continued in a number of educational institutions where the leaders defy regulations.[9]

Social tensions in the Coast Province, due to police harassment of leaders of Muslim groups, have subsided somewhat, partly because the main concern of security agencies in recent years has moved from jihadist terrorism to the political opposition following tensions surrounding Kenya’s last two presidential elections.

Violent actions by members of the Somali-based Al-Shabab group, especially in the north and the east of the country, continue, however, and are still a serious threat to the general population, especially to outsiders and non-Muslims who live and work in those regions. This is also because the group keeps using religion as an excuse for political and propaganda purposes and targets non-Muslims or non-Islamic institutions.

Nonetheless, the intensity and number of Al-Shabab attacks on civilians seem to have dropped considerably in the last two years. Massive counter-terrorist measures by security agencies, some of which were described by various human rights organisations as unlawful, now appear to be less frequent. In fact, the security services and the armed forces have yet to be held accountable for quite a few unresolved cases of extrajudicial killings, torture, ill-treatment of detainees and disappearance of individuals in coastal areas.[10] Some organised gangs seem to have profited from the failures of the security agencies in the Coast Province and are now engaged in criminal activities and in serious human rights violations.[11]

In comparison with previous years, the general situation of religious freedom in the country seems to have improved slightly. However, we must stress that groups and associations fighting for active citizenship, human rights and civil liberties continue to be targeted by police and the security forces. Their activities have often been disrupted by government officials on questionable grounds while their leaders complain that they are subjected to constant intimidation.[12]

Incidents

An explosive device was found on 5th June 2016 at the Kianyaga Catholic Parish Church, Kirinyaga (Central Province), shortly before the Sunday religious service. More than 500 worshippers were evacuated and the bomb was later safely detonated by special police units. According to the county commissioner, this was the fifth attack against Christians in that particular county.[13]

Two serious attacks on civilians were reported in October 2016 in Mandera County (North Eastern Province). In total, 18 persons were killed by Al-Shabab militants. Reportedly, in both cases, the targets were non-Muslims and the goal was to expel them from the region.[14] Attacks and killings by Al-Shabab units continued in regions close to the Somali border.[15] Allegedly, the strategy of this group is to target outsiders working in those areas on the assumption that most of them are Christians. School teachers particularly speak of discrimination since they do not feel protected by security forces. They do not feel supported by the authorities when they ask for a transfer because of security threats.[16]

An explosive device was thrown from a moving car at St Michael’s Catholic Parish in the town of Mandera (North Eastern Province) on 26th November 2017. Fortunately, the bomb exploded close to the church’s perimeter wall. Nobody was injured in the attack.[17]

A Catholic priest from Kisumu Archdiocese (Nyanza Province), who had previously made a public appeal to the Kenyan government to stop the killings in the region, was assassinated by unknown attackers on the eve of the presidential elections.[18]

The proto-cathedral of Marsabit in (Eastern Province) was attacked on 13th January 2018 by young demonstrators after the arrest of a Muslim leader accused of having links with Al-Shabab. Three people were killed during the unrest and the temple’s guard sustained minor injuries. Until then, the town had not experienced any tensions between Muslims and Christians.[19]

A school principal and 35 students from a renowned secondary school in Nairobi were injured in January 2018 after a fight broke out between Christian and Muslim students over alleged religious discrimination in the use of common facilities such as toilets and the school library. The school was closed until further notice and four students were charged with assault causing bodily harm.[20]

In April 2018, two churches and some houses were burnt by police in Laikipia (Rift Valley Province).[21]

Prospects for freedom of religion

At present, nothing suggests any radical change in the way freedom of religion is handled by the government or experienced by ordinary Kenyans. There have been some slight improvements in the general situation. Terrorist attacks in the North Eastern Province against Christians seem to have abated as has their virulence, which could point to a certain fatigue in the use of religion as a political weapon. However, the critical situation of insecurity will continue as long as Al-Shabab is able to hold on to its Somali bases while operating within Kenyan territory.

Endnotes / Sources

[1] Kenya’s Constitution of 2010, constituteproject.org, https://constituteproject.org/constitution/ Kenya_2010.pdf?lang=en, (accessed 22nd May 2018).

[2] Cyrus Ombati, “Kenya sets new regulations for religious leaders, churches”, Standard Digital, 11th January 2017, https://www.standardmedia.co.ke/article/2000187709/kenya-sets-new regulations-for-religious-leaders-churches, (accessed 17th May 2018).

[3] Ouma Wanzala, “Uhuru rejects proposed religious rules, calls for participation”, Daily Nation, 29th January 2017, https://www.nation.co.ke/news/Uhuru-rejects-proposed-religious rules-/1056-3053058-14ee8txz/index.html, (accessed 17th May 2018).

[4] “Press statement on proposed Churches Law”, Office of the Attorney General and Department of Justice, Date unknown February 2017. Available at http://www.statelaw.go.ke/press-statement-on-propo- sed-churches-law/, (accessed 17th May 2018); Melisa Lukulu, “Ban on registration of churches”, EACLJ– East Africa Centre for Law and Justice, 16th March 2017, http://eaclj.org/religion/229-ban-on-registration-of-churches.html, (accessed 17th May 2018).

[5] “President deems ban on registration of churches ‘illegal’”, Daily Nation, 12th March 2017, https://www.nation.co.ke/news/Uhuru-faults-AG-Muigai-over-ban-of-church registration/1056-3845970-5484mcz/index.html, (accessed 17th May 2018).

[6] Nicholas Komu, “High Court overturns suspension of atheist society”, Daily Nation, 28th January 2018, https://www.nation.co.ke/news/High-Court-overturns-suspension-of-atheist society/1056-4282444-nhwlo5/index.html, (accessed 24th May 2018).

[7] Hillary Orinde, “Attorney General Muigai resigns, Solicitor-General replaced”, Standard Digital, 13th February 2018, https://www.standardmedia.co.ke/article/2001269595/attorney general-muigai-resigns-solicitor-general-replaced, (accessed 24th May 2018)

[8] “Kenyan Muslims can wear hijab at Christian schools – court”, BBC News, 9th September 2016, http://www.bbc.com/news/world-africa-37321355 (accessed 28th May 2018); Bureau of Democracy, Human Rights and Labor, ‘Kenya’, International Religious Freedom Report for 2016, U.S. State Department, https://www.state.gov/j/drl/rls/irf/2016/, (accessed 28th May 2018).

[9] Boniface Mwaniki, “KMTC bars students from entering schools in hijabs”, Daily Nation, 27th April 2018, https://www.nation.co.ke/counties/kitui/Students-barred-from-school-over hijabs/3444936-4533586-um0s00/index.html, (accessed 28th May 2018).

[10] Ramadhan Rajab, “16 Coast residents killed by cops or missing since 2017 – Haki Africa”, The Star, 9th January 2018, https://www.the-star.co.ke/news/2018/01/09/16-coast-residents killed-by-cops-or-missing-since-2017-haki-africa_c1695273, (accessed 27th May 2018). “Between 2014 to March 2017, there have been over 487 cases of extra judicial executions by the Police in Kenya in the pretext of maintai- ning law and order, crowd control management and countering violent extremism.” Cf. “Statement by the Kenya Human Rights Commission on the death penalty and extra judicial killings or arbitrary killings in Kenya at the 60th ordinary session of the African Commission on Human and People’s Rights in Niamey, Niger”, Kenya Human Rights Commission, 15th May 2017, https://www.khrc.or.ke/2015-03-04-10-37-01/ press-releases/599-statement-by-the-kenya-human-rights-commission-on-the-death-penalty and-extra-judicial-killings-or-arbitrary-killings-in-kenya-at-the-60th-ordinary-session-of-the african-commission-on-human-and-people-s-rights-in-niamey-niger.html, (accessed 29th May 2018).

[11] Magdalene Wanja, “Haki Africa: Human Rights abuse increase in 2018”, Daily Nation, 30th April 2018, https://www.nation.co.ke/news/Haki-Africa–Human-rights-violations-on-the rise-/1056-4537288-5ige-pjz/index.html, (accessed 27th May 2018).

[12] “Statement on intimidation of Civil Society Organisations”, Kenya Human Rights Commission, 7th November 2017, https://www.khrc.or.ke/2015-03-04-10-37-01/press releases/635-statement-on-intimidation-of-civil-society-organisations.html, (accessed 29th May 2018).

[13] Munene Kamau, “Bomb found in Kianyaga church shortly before mass”, Standard Digital, 6th June 2016, https://www.standardmedia.co.ke/article/2000204140/bomb-found-in kianyaga-church-shortly-before-mass, (accessed 24th May 2018); “Police detonate home made bomb found in Kianyaga church Kirinyaga county”, NTV News – Youtube Channel, 5th June 2016, https://www.youtube.com/watch?v=JM-8DvjY2S10, (accessed 24th May 2018).

[14] “Al Shabab ‘kills Christians’ in Kenya’s Mandera town”, BBC News, 6th October 2016, http://www.bbc. com/news/world-africa-37571205, (accessed 20th May 2018); “Kenya attack: 12 killed in Mandera ‘by al-Shabab’”, Al-Jazeera News, 25th October 2016, https://www.aljazeera.com/news/2016/10/kenya-attack-12-killed-mandera-al-shabab-161025063500398.html, (accessed 20th May 2018).

[15] Despite the high number of attacks and armed incidents, their frequency has decreased compared with 2014-2015. See Cyrus Ombati, “Al Shabaab behead nine Kenyans in Lamu attack”, Standard Digital, 8th July 2017, https://www.standardmedia.co.ke/article/2001246629/al-shabaab-behead-nine- kenyans-in lamu-attack, (accessed 15th May 2018); “Al Shabaab: Islamic terrorists behead three people in  Kenya attack”, Independent, 18th August 2017, https://www.independent.co.uk/news/world/africa/al-shabaab-kenya-behead-three-people africa-islamist-terrorists-attack-lamu-county-village-a7899381.html, (accessed 15th May 2018); Mercy Asamba, ‘Three teachers killed by suspected Al-Shabaab militia in Wajir”, Standard Digital, 16th February 2018, https://www.standardmedia.co.ke/article/2001269970/ three-teachers-killed-by-suspected-al-shabaab-militia-in-wajir, (accessed 15th May 2018); Cyrus Ombati, “Five police officers killed in Al-Shabaab attack on two Mandera camps”, Standard Digital, 2nd March 2018, https://www.standardmedia.co.ke/article/2001271682/five-police officers-killed-in-al-shabaab-attack-on-two-mandera-camps, (accessed 15th May 2018).

[16] Ouma Wanzala, “Teachers demand transfer after killing of colleagues in Wajir”, Daily Nation, 20th February 2018, https://www.nation.co.ke/news/education/Teachers-demand transfer-after-Wajir-killings/2643604-4311890-b854mn/index.html, (accessed 15th May 2018). In general, Christians living in pre- dominantly Muslim areas have less freedom to practise their religion than Muslims living in Christian majority areas. Police have also failed to protect Christians when confronted with Muslim fundamentalist groups involved in violent actions.

[17] Manase Otsialo, “Explosive thrown at Mandera Catholic Church misses its target”, Daily Nation, 26th November 2017, https://www.nation.co.ke/counties/mandera/Explosive-thrown at-Mandera-Catholic-church-misses-target/1183298-4203666-ukagx7z/index.html, (accessed 26th May 2018).

[18] “Catholic priest killed; tension increases on the eve of presidential vote”, Agenzia Fides, 24th October 2017, http://www.fides.org/en/news/63121 AFRICA_KENYA_Catholic_priest_killed_tension_increases_on_the_eve_of_the_presidential_vote, (accessed 18th May 2018).

[19] “The proto-Cathedral of Marsabit attacked”, Agenzia Fides, 22nd January 2018, http://www.fides.org/en/news/63607AFRICA_KENYA_The_proto_Cathedral_of_Marsabit_attacked, (accessed 18th May 2018).

[20] Michael Chepkwony and Cyrus Ombati, “Jamhuri High School closed following unrest that left 35 students injured”, Standard Media, 24th January 2018, https://www.standardmedia.co.ke/article/2001267108/jamhuri-high-school-closed-following-unrest-that-left-35-students-injured, (accessed 15th May 2018); “4 Jamhuri High School students face assault charges”, Capital FM Radio, 30th January 2018, https://www.
capitalfm.co.ke/news/2018/01/4-jamhuri-high-school-students-face-assault-charges/, (accessed 26th May 2018).

[21] Peter Mwangi, “Tension in Laikipia as police torch houses, churches to flush out bandits”, Citizen Digital, 29th April 2018, https://citizentv.co.ke/news/tension-in-laikipia-as-police torch-houses-churches-to-flush-out-bandits-198628/, (accessed 15th May 2018).

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