Kenya: Constitution Must Treat All Religions Equally

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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