Sunday, August 12, 2012

Religion Provisions of the Kenyan Constitution (2010)

One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual rights), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations."
The Constitution of Kenya contains an establishment clause, a guarantee of equal protection of religion, and a guarantee of freedom of religion, but it also contains an interesting provision that allows for Muslims' legal rights in several areas to be determined by special courts.


We, the people of Kenya—
ACKNOWLEDGING the supremacy of the Almighty God of
all creation


Establishment Clause

8. There shall be no State religion


24(4).  The provisions of this Chapter on equality shall be qualified to
the extent strictly necessary for the application of Muslim law before the
Kadhis’ courts, to persons who profess the Muslim religion, in matters
relating to personal status, marriage, divorce and inheritance.

170. (1) There shall be a Chief Kadhi and such number, being
not fewer than three, of other Kadhis as may be prescribed under an
Act of Parliament.
(2) A person shall not be qualified to be appointed to hold or act
in the office of Kadhi unless the person—
(a) professes the Muslim religion; and
(b) possesses such knowledge of the Muslim law applicable to
any sects of Muslims as qualifies the person, in the opinion of
the Judicial Service Commission, to hold a Kadhi’s court.
(3) Parliament shall establish Kadhis’ courts, each of which shall
have the jurisdiction and powers conferred on it by legislation, subject
to clause (5).
(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and
such of the other Kadhis (not being fewer than three in number) as may
be prescribed under an Act of Parliament, shall each be empowered to
hold a Kadhi’s court having jurisdiction within Kenya.
(5) The jurisdiction of a Kadhis’ court shall be limited 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 and submit to the jurisdiction of the Kadhi’s

91(2) A political party shall not—
(a) be founded on a religious, linguistic, racial, ethnic, gender
or regional basis or seek to engage in advocacy of hatred on
any such basis;

Equal Protection of Religion

27(4)  The State shall not discriminate directly or indirectly against
any person on any ground, including race, sex, pregnancy, marital status,
health status, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress, language or birth.

Religious Freedom

32. (1) Every person has the right to freedom of conscience,
religion, thought, belief and opinion.
(2) Every person has the right, 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.
(3) A person may not be denied access to any institution,
employment or facility, or the enjoyment of any right, because of the
person’s belief or religion.
(4) A person shall not be compelled to act, or engage in any act,
that is contrary to the person’s belief or religion.

Ceremonial Deism

Second Schedule:  (b) The National Anthem
 O God of all creation
Bless this our land and nation.

I, ………...............................................……. , in full realisation
of the high calling I assume as President/Acting President/ Deputy
President of the Republic of Kenya, do swear/solemnly affirm that I
will be faithful and bear true allegiance to the Republic of Kenya; that
I will obey, preserve, protect and defend this Constitution of Kenya, as
by law established, and all other laws of the Republic; and that I will
protect and uphold the sovereignty, integrity and dignity of the people
of Kenya. (In the case of an oath–– So help me God.)

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