Let’s not play God in the name of Regulating Churches

Introduction

In the wake of the infamous Shakahola massacre in which over 200 people are reported to have starved to death, under the guise of fasting, the Government formed a task force led to review the legal and regulatory framework governing religious organizations. The task force has been mandated to identify gaps and propose legal and governance changes to prevent religious extremism. The Interior Cabinet Secretary Kithure Kindiki has severally pronounced himself on the need to regulate churches to avoid a repeat. The issue this article seeks to ?address is whether the government should and can regulate the church without infringing on freedom of worship enshrined constitutional rights and by not letting God be the judge.

The constitution of Kenya has immortalized the right to believe or not to believe, commonly known as freedom of worship. For instance, Article 8?the anti-establishment Clause, declares Kenya a secular State by “there is no state religion”. Then Article 32?the free choice Clause, that grants the right to freedom of conscience, religion, thought, belief and opinion by letting every person, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.

However, by dint of Article 24(1)?a right or fundamental freedom can be limited by law but only?if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

The Kenyan Courts have emphasized that while the right to hold any religious belief is absolute the right to manifest those beliefs is limited. For instance, in Nyakamba Gekara v Attorney General & 2 others [1] Isaac Lenaola J (as he was then) cited with approval the Human Rights Review Commission Commentary on Article 9 of the European Convention on Human Rights (ECHR) whose Article 9(1)?is similar to Article 32(2)?of the?Constitution. Article 9(2)?of ECHR is similar Article 24(1)?of the?Constitution. The Court observed that while neither?Articles 8, 32?nor?260?of the?Constitution?define religion and its enjoyment, the right to?hold, as distinct from the right to?manifest religious and other beliefs is absolute. However, the right to manifest a belief is a qualified right and its limitation is permissible if it is prescribed by law and can be justified as necessary in a democratic society in the interests of public safety, the protection of public order, health or morals or the protection of the rights and freedoms of others. The belief absolutism would explain why some people do not believe in the existence of a superior being such as the Atheists in Kenya Association and others believe in Satan, biblically God’s archenemy. Ironically, the Constitution in the Preamble and the Third Schedule acknowledge the supremacy of Almighty God.[2]

The Relationship between the State and Religion

As pointed out, Articles 8 and 32 of the Constitution aptly state that Kenya has no state religion. ?Should the State regulate religion? With the Courts having established that the freedom to manifest religious believes is not absolute,[3] the issue is the extent to which the State should limit this freedom. This conundrum has stuck with humanity since time immemorial.

Some propose that the State should completely keep off from religious institutions.?John Locke an English philosopher, in his Letter concerning Toleration in the seventeenth century, discussed the notion of separation of the Church and State.[4] For Locke, religion and the government have separate ends because they use different means that of the State being force and that of religion being persuasion. He thus argues that the two should be separate and the State has no legitimate authority to regulate religion.

Further, Locke warns that if the State were to impose its religious doctrines on the people and they follow those doctrines blindly, they are likely to be “locked out of heaven”. If the State were to impose a particular religion contrary to a set of beliefs of its people and that which conflict their physical existence against their spiritual fate, the passion for religion is so strong especially in third-world countries like Kenya, that a great number of people would prioritise their religious obligations over the laws of the State and this may likely lead to political destabilization of that State.[5]

Thomas Hobbes, on his part, in The Leviathan , argues in favour of the State regulating religion.[6] For Hobbes, the State which wields rights donated to it by the people has the monopoly on deciding what doctrines should be taught to the people. This ensures uniformity in the religious doctrines taught to the people and in the long run ensures that doctrines that are harmful to the peace and stability of the State are not taught to the people.[7]

The Question of the relationship between the State and religion, specifically whether the State should be separate from the Church and whether the former should be regulated by the latter, has been strictly speaking pegged on the stability of the State. Therefore, the dilemma is whether the State in regulating religion risks bringing destabilization (Locke) or if, on the flipside, failure to regulate religion might bring about harmful doctrines that may cause destabilization to the State (Hobbes). The Constitution tries to overcome this dilemma by, somehow, striking a balance between the two sides of the divide by separating the State and religion through Article 8 and by allowing a degree of State regulation through Article 24? the limitations clause that lays out how the State can limit or regulate the freedom of religion.

The Straw that Broke the Camel’s Back?

The Kenyan State has for the longest time been very reluctant to enforce any strict regulations against religious institutions until the Shakahola “Massacare” happened necessitating a renewed conversation on the way forward. As of 21st May 2023, The Standard reports that two skeletons pushed the death toll to 237 dead bodies .[8] To be sure, the only existing law that regulates religious institutions is the Societies Act No. 4 of 1968 . This is because churches in Kenya are classified as societies. The Registrar of Societies derives the authority to register churches from Section 8 of the Societies Act.[9] To operate a church in Kenya for instance, one must undertake the registration process that roughly takes 120 days.

The Existing Gap

The biggest gap with the existing law?the Societies Act, however, is that the Act does not expressly provide for who may or not register a church. There is no requirement such as theological expertise or background for prospective applicants. Everyone who believes has been “called” is free to approach the Registrar to have their Application processed and if for no good reason their Application is rejected, they can seek judicial review for such rejection.

Arguably, this gap is the reason why, over time, extremism, and radicalisation, whatever that means, have become rampant. It has been suggested that the churches registered by people lacking a theological background, unlike many mainstream churches such as the Roman Catholic Church, the Anglican Church and other well-established Pentecostal and Evangelical churches, are more likely to be associated with radical teachings and religious extremism leading to a threat to National security such as the Shakahola incidence. The Judicial Service Commission for instance revealed that Pastor Paul Mackenzie has been charged before since 2017 for radicalisation, promoting extreme beliefs, offering education in unregistered institutions and failing to take his children through compulsory primary and secondary education.[10]

A Failed Attempt to Seal the Gap of Regulating Religious Institutions

In January 2016, the Former Attorney General, Prof.Githu Muigai, sought to introduce the Religious Societies Rules, 2015. The rules sought to introduce a raft of regulations intended to seal the gaps in the Societies Act. The most profound of them included the requirement that religious institutions: (a)submit a copy of its Constitution containing its statement, doctrine of faith, programmes, ministries, charitable and educational activities as well as the list of the people coordinating these activities(Rule 5(1)(b); (b)a religious leader to have a theological certificate from a registered and accredited theological institution(Rule 6 (1); (c) a religious leader to submit a declaration of familiar relations of the religious leaders and officers (Rule 6); (d) a religious society be open to the Registrar of Societies’ inspection at any time(Rule 8); and (e)a religious society be a member of an Umbrella religious society and the umbrella society must be registered with a membership of not less than two thousand five hundred religious societies(Rule 9).

The government eventually put a halt to the gazettement of the above rules for obvious reasons.[11] First, it is not popular to regulate churches, especially in light of the above far-reaching provisions. Second, the Church threatened mass action if the above rules were to see the light of day and it was not clear whether it was the wrath of God the government of the day feared or the fear of losing the confidence, favour and votes from religious institutions if religious leaders were to pit their congregations against the government. What was clear however, was that for whatever reason, the then government did not want to try its chance.

Where Do We Go From Shakahola?

On 5th May 2023, President William Ruto announced the creation of two commissions. The first is a Commission of Inquiry led by Court of Appeal Judge Jesse Lesiit tasked with shedding light on the Shakohola tragedy. The Commission will investigate the deaths, torture, inhuman and degrading treatment of members and individuals associated with the Good News International Church in Malindi, Kilifi County, led by Paul Mackenzie.[12]

The second is a Presidential Taskforce headed by former Gachoka MP and former National Council of Churches of Kenya (“NCCK”) Secretary-General Mutava Musyimi mandated to identify gaps in the legal, institutional and governance systems that have allowed cults and extremist groups to operate, and make proposals on how the public can report such cases.[13] The Taskforce is also expected to come up with proposals on standards and minimum certification requirements for all religious organisations and their leaders to be registered and allowed to operate. The members of the two Commissions were sworn in on 10th May 2023, amid opposition from the Azimio Coalition Political Party that subsequently filed a case in the High Court.[14]

Similarly, on 28th April 2023, the Senate mandated an 11 Member Committee led by Senator Danson Mungatana to investigate circumstances leading to the death of followers of the Good News International Church, to establish through the Office of the Registrar of Societies, the number and activities of religious groups in the country and to audit the legal and registration framework for religious organizations.[15] The Committee is also expected to develop legislative proposals aimed at regulating religious activities in the country and to make any other recommendations that should prevent religious organizations from extreme indoctrination of their followers, including radicalization, and spiritual and financial exploitation.

Some Insights into the Future

Given the mandate of the Presidential Taskforce and the Senate Committee, one can only imagine how different if at all their recommendations will differ from the Religious Societies Regulations 2015. It is also a the fact that the Church and Clergy Association of Kenya (CCAK) have argued that the call for regulation of churches is misplaced since they are already regulated under the Societies Act.[16] ?

While at it, there are jurisdictions that have trodden the path of stricter regulation of religion before us. Rwanda for instance, faced similar challenges that we face today, in 2018, passed legislation aimed at regulating faith-based organizations.[17] Among the raft regulations relevant to Kenya, the Act requires pastors to have theology degrees before they can start their churches, the faith-based organisations are required to declare grants to the regulator, Rwanda Governance Board, and any financial support to a faith-based organization must be channeled through the organization's account in a bank or a financial institution in Rwanda and those already in service were required to acquire qualifications or be kicked out.

Similarly, some countries like Estonia, unlike Kenya, have beyond the Constitution, several other legislative instruments that govern and or regulate religious institutions. These include The Churches and Congregations Act, 2002 , as amended 2004 (“The CCA”) and the Non-profit Associations Act 1996 which largely regulate the religious institutions in that country.[18]

In Rwanda and Estonia and in the United Kingdom to some extent[19] , the State is involved at least to a certain extent in the regulation of the running and operation of religious institutions and their financial accountability even though in those jurisdictions just like in Kenya registered religious institutions are exempted from paying taxes. They must or are, however, otherwise required to file their annual returns.

It is our proposal that the regulations should confine themselves to requirements on registration, operations and financial accountability. In other words, they requirement that for one to register a church the applicant must be possessed of a certificate from a theological college would, in a way curtail freedom of worship unless there is evidence that the cults are led by people who her not learned, which is doubtful. No religious leader should sit on the judgement seat and say what another one proposes to preach is not ‘doctrinally” correct. For instance, while an SDA adherent is convinced that all those who go church Sunday worship the sun god, those who worship on Sunday actually believe that SDA adherents their obsession with the day of worship is wrong. Yet both will cite the holy scriptures for their arguments. What of Yehova’s Witnesses who believe that only 144,000 persons will ever go to heaven? The point is, it is not be possible for church leaders from across denominations, let alone the government, to agree on whether a certain teaching is acceptable doctrinally or not.

We take the view that the government should let people express themselves the way they perceive God as long as, in so doing, they do not involve themselves in crime. For instance, fasting for most Christians is biblical. However, in the case of Shakahola, Mckenzi way of doing it seems to have crossed the criminal side where he is alleged to have assisted people to commit suicide and even hastened the death of those who failed to die soon enough.?We also think, if the existing laws do not cater for Mckenzi’s conduct of persuading people to commit suicide, then the Penal Code can be amended. This would not require the churches to be regulated to the extent of what is preached or practiced.

Conclusion

Matthew 13:24-30 (NIV)[20] records the famous parable of the weeds according to which God is the ultimate judge. We should therefore resist the temptation to weed the church because, in doing so, we risk doing damage to the crop. The government should concern itself with ensuring that, in the process exercising freedom of worship, no criminal offences are committed.

As stated in United States v Ballard,[21] there is an inherent risk of government interference degenerating into religious persecution especially when the validity of religious claims and beliefs is put in question. If to go by anything, the recent arrest of Jesus of Tongaren and his subsequent release for lack of evidence is a clear manifestation of how State interference can unduly strain and suppress the freedom of religion. The need to bring sanity to religious practices cannot and should not be a carte blanche for the government to encroach on the freedom of religion or get unduly involved in the way the freedom of religion is exercised. If we do so, we would be playing God.

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Authors: Daniel Musyoka and Sylvia E.

[1] Petition No. 82 of 2012, [2013] eKLR.

[2] See the Preamble reference to “We the People of Kenya acknowledging the Supremacy of the Almighty God of all creation” and the Third Schedule reference to “In the case of an Oath so help me God.”

[3] Ibid.

[4] ‘A Letter Concerning Toleration | Work by Locke | Britannica’ (9 May 2023) <https://www.britannica.com/topic/A-Letter-Concerning-Toleration > accessed 22 May 2023

[5] For a detailed exposition of Locke’s Letter please see Odiemo BA, ‘The Debate for and Against State Regulation of Churches in Kenya’ (Thesis, University of Nairobi 2016) <https://erepository.uonbi.ac.ke/handle/11295/97270 > accessed 22 May 2023

[6] ‘Leviathan | Thomas Hobbes, Summary, Social Contract, Sovereign Authority, & Facts | Britannica’ <https://www.britannica.com/topic/Leviathan-by-Hobbes > accessed 22 May 2023.

[7] Ibid, 5.

[8] ‘Shakahola Massacre: Two Skeletons Push Death Toll to 237 - The Standard’ <https://www.standardmedia.co.ke/article/2001473331/shakahola-massacre-two-skeletons-push-death-toll-to-237 > accessed 22 May 2023.

[9] Societies Act, No. 4 of 1968, CAP. 108’ <https://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20108 > accessed 22 May 2023.

[10] ‘Previous Criminal Cases against Pastor Paul Mackenzie and Good News International - The Standard’ <https://www.standardmedia.co.ke/national/article/2001471821/previous-criminal-cases-against-pastor-paul-mackenzie-and-good-news-international > accessed 22 May 2023.

[11] ‘Kenya Sets New Regulations for Religious Leaders, Churches (2016) - The Standard’ <https://www.standardmedia.co.ke/kenya/article/2000187709/kenya-sets-new-regulations-for-religious-leaders-churches > accessed 22 May 2023.

[12] ‘Ruto Appoints Inquiry Commission to Probe Shakahola Cult Deaths’ (Nation, 5 May 2023) <https://nation.africa/kenya/news/ruto-appoints-inquiry-commission-to-probe-shakahola-cult-deaths-4224044 > accessed 22 May 2023.

[13] ‘President Ruto Goes for Rogue Churches, Religious Groups’ (Nation, 6 May 2023) <https://nation.africa/kenya/news/president-ruto-goes-for-rogue-churches-religious-groups-4224804 > accessed 22 May 2023.

[14] ‘Raila Sues Ruto over Shakahola Commission of Inquiry’ <https://www.the-star.co.ke/news/realtime/2023-05-09-raila-sues-ruto-over-shakahola-commission-of-inquiry/ > accessed 22 May 2023.

[15] ‘Senator Mungatana to lead probe on Shakahola Deaths| The Kenyan Parliament Website’ <Http://Www.Parliament.Go.Ke/Node/19563 > Accessed 22 May 2023.

[16] ‘Pentecostals Want Ruto to Dissolve Churches Taskforce’ <https://www.the-star.co.ke/news/2023-05-09-pentecostals-want-ruto-to-dissolve-churches-taskforce/ > accessed 22 May 2023.

[17] ‘Rwandan Parliament Passes Law to Regulate Churches - Xinhua | English.News.Cn’ <https://www.xinhuanet.com/english/2018-07/27/c_137352752.htm > accessed 22 May 2023.

[18] See, ‘Churches and Congregations Act of Estonia (2002, as Amended 2004) (English) | Legislationline’ <https://legislationline.org/taxonomy/term/13868 > accessed 23 May 2023 and ‘Non-Profit Associations Act–Riigi Teataja’ <https://www.riigiteataja.ee/en/eli/510042014003/consolide > accessed 23 May 2023.

[19] See, for instance, ‘Charities Act 2022: Information about the Changes Being Introduced’ (GOV.UK, 3 April 2023) <https://www.gov.uk/guidance/charities-act-2022-guidance-for-charities > accessed 23 May 2023.

[20] According to Christians, the Bible is superior to the laws of the land, including the Constitution

[21] 322 U.S.78(1944).