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Separating the Church from State: The Kenyan High Court's Decision in Jesse Kamau and 25 Others v Attorney General (Judgment of 24 May 2010)

Published online by Cambridge University Press:  14 September 2011

Jamil Ddamulira Mujuzi
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Abstract

Section 66 of the 1963 Kenyan Constitution established the Kadhi's courts with the jurisdiction to determine “questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion”. 26 Christians petitioned the High Court and argued that section 66 was unconstitutional because it, inter alia, violated the principle of separation of Church and state. The court found in their favour and held that Kenya is a secular state, that section 66 violated the doctrine of separation of state and Church, and that it was discriminatory and contrary to section 82 of the constitution which prohibits discrimination. This note gives the facts of the case, the issues before the court and the court's decision. It also analyses the court's decision.

Information

Type
Recent Developments
Information
Journal of African Law , Volume 55 , Issue 2 , October 2011, pp. 314 - 319
Copyright
Copyright © School of Oriental and African Studies 2011

INTRODUCTION

Section 66Footnote 1 of the Kenyan Constitution of 1963 (the Constitution) established the Kadhi's court. Section 66(5) of the Constitution stipulates that “[t]he jurisdiction of a Kadhi's court shall extend to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion”. Section 66(1) and (3) empowers Parliament to enact legislation that will govern the appointment of Kadhis and other issues relating to the functioning of Kadhi's courts, including the manner in which they exercise their jurisdiction and powers. It is against this background that Parliament enacted that Kadhi's Courts ActFootnote 2 which, among other things, establishes the number of Kadhi's courts in different parts of KenyaFootnote 3 and stipulates, with exceptions,Footnote 4 that “the law and rules of evidence to be applied in a Kadhi's court shall be those applicable under Muslim law”.Footnote 5 In Jesse Kamau und 25 Others v Attorney General Footnote 6 the applicants, 26 Christian clergy, including 20 bishops, petitioned the High Court and argued, inter alia, that:

“Section 66 of the Constitution … [which] seeks to introduce and / or entrench, promote, elevate, give special preference to, support by public funds or otherwise any religion or sectarian religious interests or such interests of a religious nature or otherwise that draw their base from a given or known set of religious teachings / doctrines, practices, and / or beliefs in the Constitution is … discriminatory, oppressive to the applicants and others, offensive to the doctrine of separation of state and religion, retrogressive, unconstitutional, null and void.”Footnote 7

In his supporting affidavit, the lead applicant, the Very Right Reverend Dr Jesse Kamau, submitted that “[t]he separation of the state and religion must be respected and promoted but section 66 of the Constitution contradicts this cardinal principle”.Footnote 8 The respondent, argued, inter alia, that the applicants' petition was unfounded because, unlike the doctrine of separation of powers, “the doctrine of a secular state is not clearly defined in the Constitution”Footnote 9 and that “[t]he Application is misconceived in terms of the doctrine of the separation of Church and State and is based on the wrong conception and misunderstanding of the jurisprudence or potential theory regarding the separation of the Church and State”.Footnote 10 The respondent added that the court did not have the jurisdiction to strike out section 66 of the Constitution even if it found it to be discriminatory.Footnote 11 This note will now examine the court's ruling on the question of the separation of Church and state.

THE COURT'S RULING

The court observed at the outset that “[t]he doctrine of separation of Church and State provides that as between the State and religion each had its own sphere, the former law making for the public good, and the latter moral welfare of individuals and their God or creator”.Footnote 12 The court held that it did not have the jurisdiction to alter the Constitution and that its “power is limited to interpretation and constitutional review but not alteration of the Constitution”.Footnote 13 With regard to the applicants' contention that section 66 of the Constitution contravened section 82 of the Constitution, which prohibits discrimination on many grounds excluding religion, the court held that “the supremacy of the Constitution … is over any other law, and not any provision of the Constitution itself. Consequently, the court's power to declare void any other law inconsistent with the Constitution is limited by its express terms [in terms of section 3]Footnote 14 to such other law. The Applicants [sic] prayer to declare Section 66 of the Constitution void is therefore not tenable and is declined”.Footnote 15 The court held further that it is discriminatory and imposes an “an unnecessary burden for the state to fund one religion through the public service (like the Judiciary), or otherwise”.Footnote 16 The court referred to sections 1 and 1A of the Constitution which provide respectively that “Kenya is a sovereign state” and “[t]he Republic of Kenya shall be a multi-party democratic state” to reach the conclusion that the above “provisions signify that Kenya is a secular state”.Footnote 17 After examining jurisprudence from the United States and Mauritian courts and several academic works, the court gave the following as the attributes of a secular state:

  1. “(1) A secular state is neither supposed to compel its citizens to adopt a particular religion nor can it give preferential treatment to the followers of a particular religion;

  2. (2) A secular state means one that protects all religions equally and does not uphold any religion as a state religion;

  3. (3) In a secular state it is assumed that the state will minimally have to contend with and respond to each of the demands of equality, liberty and neutrality.”Footnote 18

The court concluded that section 66 favours one religion, Islam, “in preference to other faiths, Christianity, Hindu, Buddhist, Bohras, and Indigenous religions and culture”.Footnote 19 Most importantly for the purposes of this note, the court concluded that “[s]ection 66 of the Constitution on Kadhi's courts is inconsistent with the secular nature of the state … Having regard to the values and principles of the Constitution we declare that section 66 does not advance the values which characterise a secular state”.Footnote 20 The court also declared that section 66 “is in conflict with section 82” of the Constitution because “it has the effect of furthering one faith as against the others”.Footnote 21 However, the court was quick to add that its role is “declaratory only” and left it to Parliament or the people of Kenya in a referendum to alter or amend section 66 of the Constitution.

ANALYSING THE JUDGMENT

One has to concede that the court was dealing with an unusual task: it was called upon to weigh the constitutionality of one constitutional provision against another. It would have been an easier task had the court been asked to hold that a certain piece of legislation or a provision in a piece of legislation was contrary to the Constitution. This is because, in terms of section 3 of the Constitution, the Constitution is the supreme law and any law that is inconsistent with the Constitution has to be declared null and void to the extent of that inconsistency. The Kenyan Constitution does not expressly provide that Kenya is a secular state. Conversely, although it does not provide for a state religion, neither does it expressly provide that Kenya shall not adopt a state religion.Footnote 22 Further, the Constitution does not expressly provide that the Church will be separate from the state. However, from the fact that the Constitution does not provide for the role of religious bodies in the direct political administration of the country, one can infer that it impliedly does not envisage the Church being involved in active politics. There are at least two contentious issues about the court's decision.

The first issue relates to the competence of the court to declare that one constitutional provision conflicts with another. A careful reading of the Constitution leads to the conclusion that the court has the power either to interpret a piece of legislation against the Constitution (to rule on its constitutionality or otherwise) or to interpret the meaning of a constitutional provision, that is, give meaning to a constitutional provision where its meaning is not clear. The Constitution does not contemplate a situation where constitutional provisions have to be interpreted against one another. What is most disturbing is the court's interpretation of section 66 against the abstract doctrine of Kenya being a secular state, where that doctrine is not expressly provided for in the Constitution. The court's conclusion that, because the Constitution provides that “Kenya is a sovereign state” and that “[t]he Republic of Kenya shall be a multi-party democratic state”, Kenya is a secular state, is problematic. This is because all countries including those with state religions are sovereignFootnote 23 and the fact that a state is a multi-party democracy does not in itself mean that the country is a secular state.Footnote 24

The second contentious issue relates back to the first: the three criteria which the court used as a yardstick for a secular state. Two questions remain unclear. First, is the list exhaustive and absolute; in other words, can one think of another criterion or other criteria that could be used to determine the secular nature of the state? Secondly, must all three criteria be established before a state can be declared a secular state, or is the existence of one or two of the criteria sufficient to reach the threshold of secularism? These two questions are not answered in the judgment.

Another important issue relates to the effectiveness of the remedy the court gave: declaring that section 66 was contrary to section 82 of the Constitution and calling upon Parliament to amend the Constitution and remove Kadhi's courts from the Constitution. This means that, until such an amendment is made, Kadhi's courts will still operate in Kenya. However, there is nothing preventing Parliament from retaining Kadhi's courts in the Constitution but also including a provision allowing other religious groups that wish to have their personal affairs governed by specialized courts to set up such courts. These courts should also be financed using tax payers' money. This would ensure that all religions are treated equally and the issue of discrimination would not arise. It appears that the court's finding that Kadhi's courts were contrary to the doctrine of separation of Church and state was primarily founded on the fact that Kadhi's courts were being financed by tax payers' money. One wonders if the decision would have been different had the Kadhi's courts been self-financing.

CONCLUSION

The High Court was undoubtedly dealing with a complex issue of interpreting one constitutional provision against another. What is beyond dispute is that it is not tenable for the government to treat different religions differently. Although the court should be applauded for its stand on the doctrine of separation of the Church and state, the reasoning it adopted to reach the conclusion that Kenya is a secular state leaves some questions unanswered.

Footnotes

Ibid

References

1 Sec 170 of the new 2010 constitution substantially reproduces sec 66 of the 1963 constitution.

2 Kadhi's Courts Act, chap 11 of the Laws of Kenya.

3 Id, sec 4.

4 The exceptions are: (i) all witnesses called shall be heard without discrimination on grounds of religion, sex or otherwise; (ii) each issue of fact shall be decided upon an assessment of the credibility of all the evidence before the court and not upon the number of witnesses who have given evidence; and (iii) no finding, decree or order of the court shall be reversed or altered on appeal or revision on account of the application of the law or rules of evidence applicable in the High Court, unless such application has in fact occasioned a failure of justice.

5 Kadhi's Courts Act, sec 6.

6 Jesse Kamau and 25 Others v Attorney General [2010] KLR 1 (judgment of 24 May 2010) (Jesse Kamau).

7 Id at 4–5.

8 Id at 7. The applicants' counsel, Mrs Madahana, argued that “the inclusion of Kadhi's courts in the Constitution violates the doctrine of separation of Church and State, discriminates other religious faiths and is a threat to the secular nature of the State”: see id at 28.

9 Id at 17.

10 Id at 22, para (y).

11 Id at 42.

12 Id at 41.

13 Id at 43.

14 Sec 3 provides that the Constitution is the supreme law of Kenya and prevails over any other law which is inconsistent with it.

15 Jesse Kamau, above at note 6 at 43.

16 Id at 44.

17 Ibid.

18 Id at 46.

19 Id at 80.

20 Id at 85.

21 Id at 87.

22 Sec 7 of the Kenyan Constitution of 2010 expressly provides that Kenya shall not adopt a state religion.

23 The Constitution of Yemen (1994), for example, provides that “The Republic of Yemen is … an independent sovereign state” (art 1) but also provides in art 2 that “Islam is the religion of the state”. Art 1 of the Constitution of Qatar provides that “Qatar is an independent Arab state. Its religion is Islam and Shari'a law shall be a main source of its legislations. Its political system is democratic.” See also the Constitution of Kuwait (art 1 on sovereignty and art 2 on Islam as the state religion).

24 The Constitution of Yemen provides for a multiparty democracy (art 5) but also declares Islam to be the religion of the state (art 2); see also the Constitution of the Islamic Republic of Iran which declares Islam to be a state religion but also provides for multiparty elections (art 26).