The question of religion vs law has been and will continue to be a hot topic in the legal landscape all over the world. The major question being whether the law is different from religion or whether religion is the law. One thing we can be sure of however is that religion is a major component of the laws of any country, part of the essence of the law is the religion of the land from which the law is derived , from building on the framework to outright derivation from holy texts, religion is undeniably entwined with the law, however we must eventually ask ourselves: Where does the influence of religion end and the true spirit of the law take hold? Where does the standoff between law and religion begin? 

To answer this question, it is best to ask ourselves a few questions, first, where does Kenya fall under the religious spectrum, secondly what is the major religion in the country and finally what is the link between religion and law in Kenya? In the first part of this article we will discuss the first question as well as the second question, looking back to the past to find our much-needed answers.

Where does Kenya lie in the religious spectrum. Article 8 of the Constitution of Kenya, 2010 states that there shall be no state religion.  Article 32 states entrenches religious freedoms, beliefs and opinions while Article 170 of the Constitution brings into existence and function the Kadhi’s court which deals with family matters related to the Islamic religion. Case laws such as Methodist Church of Kenya v Mohammed Fugicha (2019) emphasize the secular position that has been entrenched in the constitution of Kenya 2010.  Njogu v the Attorney General (2007) clearly emphasized the position that the judiciary leaned onto when dealing with religious matters, making it clear that Kenya has always regarded itself as a secular state both pre-constitution 2010 and post constitution 2010.

80-85% of the general population in Kenya is predominantly Christian with 25% Catholic, 30% being mainline protestants, 20-25% as evangelical protestants and the remaining 7-10% being African based Christians i.e. Legio Maria. The remaining 20% of the general population is divided between Islam, Hinduism and Traditional African religion with the Islam religion leading by about 7-10%. With this data, we are able to see that despite being a secular state, socially Kenya remains predominantly a Christian state, a statistic that influences the daily life of the common Kenyan citizen and so one must agree that despite Kenya being a secular country in terms of the law, it remains a Christian state in social practice.   To truly understand the impact that Christianity has played in the foundation of the laws that now govern us, we must travel back in time to the origins of this alien religion, that has become as familiar as the back of one’s hand.

Christianity in Kenya was brought by ship,  first introduced by the Portuguese in the 1500s. This is exhibited in the chapels found in Fort Jesus as well as ancient churches. The spread of Christianity was halted in 1649 when the Omani Arabs expelled the Portuguese. This led to the setting of Islam along the coast for almost 150 years. From the year 1844 onwards, a string of missionaries landed on Kenyan shores, Johann Ludwig Krapf and Johannes Rebmann were among the first missionaries to arrive, quickly establishing a mission station at Rabbai which still stands to this day, through their efforts and presence, the bible was soon translated to kikamba and Kiswahili, easing its expansion inland. The building of the Uganda Railway in 1869 hastened the spread of Christianity inland with mission stations following the railway line becoming schools, hospitals and churches.

In the 1920’s some Africans began to feel that the mission churches were more aligned with the colonial powers and therefore decided to strike out on their own blending their indigenous African traditions and values with those of the mission churches, weaving a balance between both, a common example of these churches is the Legio Maria.

Bishop Desmond Tutu put the work of the missionaries across Africa in clear light when he said

“When the missionaries came to Africa, they had the bible and we had the land. They said “let us pray”. We closed our eyes and when we opened them they had the land and we had the bible.”

The colonialists had realized the power religion had and so exploited it as a tool in their domination of the continent. Some missionaries were all too happy to support the colonial government while others were misled into indirectly helping the colonial government. The works of Dr Krapf were instrumental later on when the colonialists landed with the reports he wrote helping the British understand Kenyan societies long before they arrived.

Other missionaries like Bishop William George and Bishop Richard Heywood strongly supported the colonial agenda, many of them strongly suggesting that Africans needed European guidance and civility. Many of them opposed African Christian churches and schools as well as helping in the denunciation of the Mau Mau. Dr William John Arthur, a European clergyman was placed in the Leg.Co (Legislative Council) to represent Africans. However, just as many of his peers, he used his influence to propagate colonial ideals onto the African population, famously colliding with Jomo Kenyatta and Harry Thuku on the idea of African autonomy.

The role of missionaries did not just end at pacifying hostile communities but extended into destroying the social hierarchy of Africans as well as making laws meant to deepen the divide. Some of the laws that were created are: The Witchcraft Ordinance Act of 1925 that criminalized indigenous spiritual practices, terming them as “witchcraft”. Spiritual practices that had held communities together were slowly being erased, given an evil face. Africans who continued to hold such practices were demonised and shamed and eventually arrested.

The Marriage Act Ordinance of 1902 and 1932 aimed at changing the base African family set up to that of the colonial family set up. African converts were coaxed, and prodded with threats of eternal hellfire if they accepted anything other than monogamous marriages while polygamous marriages were left to customary traditions. Later, polygamous marriages were heavily restricted with the coming of the 1932 reforms.

A controversial yet important piece is the ban on female circumcision that was led by the missionaries, a culture that was most famously practiced by the Maasai and the Agikuyu communities. Although this was beneficial for the women of those communities, we must remember the reasoning behind the ban was not entirely about the welfare of the women involved, but another tool of division which worked efficiently as it led to a rift between those against the practice and those who were for the practice

Similarly, Africans were prohibited from taking brewing and taking alcohol through liquor licensing ordinances

Sifting through colonialists’ laws on land and labour, we either see the shadows of religious manipulation or the religious rationale by which the clergy and missionaries of the time supported laws that crippled, stole and locked Africans out of the benefits of their own land. Converted Africans were made to believe that the colonial government worked for their benefit, a parent-child relationship, however in this case the parent did not care about the child, but only what the child could offer.

Figures like Dr John Arthur expressly supported the creation of reserves for Africans with the rationale behind it being, Africans would be protected from settler occupation and that the reserves made it easy for ministry works to be established. Africans were also coerced into forced labour by many religious missions, as a way of instilling Christian values and discipline in them.

However, it is also pointed to note that despite the fact that religion was used as a tool for colonial rule in Kenya and Africa at large, we must appreciate that not all missions aligned to the colonial agenda, for example the Quakers and some Catholics raised strong opposition against forced labour that was permeated through African communities. The pressure they placed on the colonial government led to the abolishment of the compulsory labour taxes as well as reforms in the Devonshire White Paper of 1923. They argued that this type of coercion violated the same Christian values that they preached and this led to an improvement of working conditions for Africans and a new priority on African welfare over the interest of the settlers.

Similarly, religious institutions advocated heavily on the matter of African Education, arguing that it was important for the moral uplifting and Christian civilization, this eventually forced the government to come up with the 1924 Education Ordinance.  They were also responsible in the recognition of Christian marriages among African converts as well as abolition of child marriages, wife inheritance and other practices that caused more harm to the individual.

For the first part of this article, I have tried to link directly the role religious institutions played in the laws that governed Africans during the colonial period and as evidence has provided, many of these laws had great indentations of religious footprints. In my next article we will move on to post 1964 and whether religion still holds as much power in the influencing of decisions by our courts and the drafting of bills and statutes.