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CONSTITUTION MUST TREAT ALLRELIGIONS EQUALLY
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We will be a better world when each religious
group can trust its members to obey the
dictates of their own religious faith without
assistance from the legal structure of anycountry.
Adapted From Margaret Mead
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KENYA IS A MULTI-FAITH
COUNTRY
We are a very religious country and even ourNational Anthem recognizes this fact.
Save for a few cases of religious intolerancepeople of different religions co-exist well inKenya.
It is important that this balance be kept, andevidenced in the Constitution.
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THE CONSTITUTION HAS ALWAYS
PROTECTED FREEDOM OF RELIGION
The Current Kenyan Constitution provides for
freedom of religion,
It also provides that nobody shall be discriminatedagainst by reason of their religion, among other
things.
We want the new Constitution to give equal, fairand just treatment to all Kenyans.
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UNTIL NOW ALL VERSIONS OF THE PROPOSED
NEW CONSTITUTION (SINCE 2002) HAVE
CONSISTENTLY STATED THAT:
state and religion will be separate;
all religions will be treated equally; and
there will be no state religion.
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IN THE LATEST DRAFT THESE
PROVISIONS HAVE BEEN CHANGED!
The most recent draft has dropped thestatement that all religions will be treated
equally.
It also no longer states that state and religionwill be separate.
The Draft only states that There Will Be NoState Religion.
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WHY WERE THESE IMPORTANT
CLAUSES REMOVED?
?Who instigated these changes, and what are
the implications?
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In the section onThe Judiciary, the Draft statesthat there will be Kadhi courts.
It also states categorically that a person shallnot be qualified to be appointed to hold or act inthe office of Kadhi unless the person professes
the Muslim religion.
No other religious institution is recognized in the
draft.
WHY IS ISLAM BEING RECOGNIZED AS
SUPERIOR TO OTHER RELIGIONS?
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SHOULD THE CONSTITUTION CREATE A STATE
OFFICE FOR WHICH ONLY A PERSON FROM ONE
SPECIFIC RELIGION CAN APPLY?
A constitution cannot correctly create such an
office in a multi-religious country.
A person seeking a state funded job in Kenyacannot be disqualified on religious grounds.
Every citizen regardless of his faith MUST beable to occupy any office of state
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KENYAN MUSLIMS ARE NO DIFFERENT FROM
OTHERK
ENYANS THEY DESERVE EVERYPROTECTION OF THE LAW.
Like every citizen, Kenyan Muslims are entitled topractice their religion in the best way they knowhow.
Muslims deserve and must have their systems ofdispute resolution.Their right to have it must be
protected by the Constitution.
Disputes relating to personal law such a marriage,divorce, etc, may be determined by Muslim courts;
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THE LATEST DRAFT GOES AGAINST THE
PRINCIPLE OF EQUALITY AND NON-
DISCRIMINATION
It favours one religion over others by providingfor state funding of a purely religious system ofdispute resolution
It creates state offices that are only accessible toone faith group
It perpetuates a historical wrong
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THE STATE MUST NOT FUND A RELIGIOUS
INSTITUTION AND OBSERVANCE
The draft seeks to require the state to use taxpayers money and resources to fund what is
essentially a religious practice.
Referring a dispute to a Kadhi court is essentiallyobservance of a religious practice, ritual and duty.
There is no place for Kadhi
courts in the constitution
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BUT HAVENT KADHI COURTS ALWAYS BEEN IN
THE CONSTITUTION?
Yes. The Kadhi courts have been in the constitutionsince independence.There was a historical reasonand context for this.
An agreement between Jomo Kenyatta and theSultan of Zanzibar was intended to ensure that therights of Muslims along the 10 mile coastal stripwould be protected when Kenya became a republic.
What was then a concession to a small part of thecountry and a very small part of the population is nowleading to a demand for special treatment of allMuslims throughout the whole country.
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WHY OPEN UP A PANDORAS BOX
We should anticipate that the many religious groupsin Kenya could begin to demand state funding for allmanner of religious activities such as:
free land for religious buildings, funding of evangelistic endeavors, co-financing of our giving obligations, provision of fares to our trips to Jerusalem, the
Ganges or Mecca?
Creating one religious institution in the constitutionmeans that the state must be prepared to createothers.
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WE MUST PROTECT BOTH FREEDOM OF RELIGION
AND THE SEPARATION OF STATE & RELIGION
the right of every person of religion to exercise theirfaith must be protected.
T
he bill of rights provides forfreedom ofworsh
ip.
All Kenyans must be protected from discrimination byreason of their faith or lack of it.This is achieved by theprovision offreedomfrom discrimination.
Beyond that, everyone must practice their religion intheir own manner, buildings, creating their owninstitutions and most definitelyattheir own cost.
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WHAT WILL MUSLIMS LOSE IF THE KADHI
COURTS ARE NOT IN THE CONSTITUTION? Two things ONLY:
1. Funding using tax payers money, includingtaxpayers who are non-Muslim
2. The recognition of Kadhis as state officials.
The role of the Kadhi as a religious office will remain intact-- organized and funded as our fellow citizens who are
Muslims will have chosen.
There is no need to legislate any religious courts.Theyexist by virtue of religion, and will continue, boratu,uhuru wa kuabudu uzingatiwe!
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WHAT IS THE RIGHT THING TO DO?
Reinstate the removed clause that all religions will betreated equal and state and religion will be separate.
Remove all reference to Kadhi Courts in the Constitution.
Add these two new clauses:
(a) all religions will be entitled to establish andoperate their own tribunals for the resolution of disputesin matters of personal law, where parties to such
disputes are of the same religion and agree to submit tosuch tribunals.
(b) No state resources will be used for theestablishment or the operation of such tribunals.
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When the government puts its imprimatur on aparticular religion it conveys a message of exclusion
to all those who do not adhere to the favored beliefs.
A government cannot be premised on the belief that
all persons are created equal when it asserts that Godprefers some.
U.S. Supreme Court Justice Harry A. Blackmun