Legal framework on freedom of religion and actual application
Article 32 of the Constitution of Kenya sets out rights pertaining to freedom of conscience, religion, belief, and opinion. All citizens are allowed to worship, practice, teach, or observe their beliefs, which includes having a day of worship according to their faith. Personal or professional discrimination, as well as coercion on account of religion, is prohibited. Article 8 declares that the State does not have a ‘State religion’. Article 24.4 establishes the Kadhis’ courts “to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.” Articles 27 and 32 establish the right to no discrimination on the grounds of religion and the freedom of conscience and religion.
All new religious groups, including institutions and places of worship, as well as faith-based NGOs are obliged to register with the Registrar of Societies reporting directly to the Attorney General’s Office; indigenous and traditional religious groups are exempted. The Registrar has not recorded any religious organizations since 2014, and pending completion of revised Religious Societies Rules, continues not to. This has led to an accumulation of “thousands of unapproved religious group applications” and invited repeated criticism by religious leaders decrying the inactivity as interfering with freedom of worship.
The Ministry of Education requires that public schools offer religious education classes with a choice of either Christian, Muslim, or Hindu teachings, as well as ethics. Religious classes for primary school students are obligatory. The Ministry allows local communities and schools to decide on the courses, usually dependent on the predominant local religion and/or school sponsor.
There is no legal definition of blasphemy in the penal code, though it states that it is a misdemeanour to demolish, damage, or defile any place of worship or object held sacred with the goal of offending the faith of any class of people. Regional radio and television broadcast licenses, including those owned by religious organizations, must be approved by the Ministry of Information, Communications, and Technology.
Incidents and developments
On August 28, 2022, al-Shabaab released a statement threatening to increase attacks against Kenya: “ we will continue to concentrate our attacks on Kenyan towns and cities as long as Kenyan forces continue to occupy our Muslim lands.”
Violent actions by members of the Somali-based al-Shabaab group, especially in the north and in the east of the country, continue, and are still a serious threat to the general population, especially to foreigners and non-Muslims who live and work in those regions.
Since the brazen 5 January 2020 assault by 30 to 40 al-Qaida-linked insurgents on the US military base in Manda Bay, its ability to “recruit, operate, and carry out attacks in the country appears to have been reduced.” The Centre for Human Rights and Policy Studies recorded a decline in terrorist attacks from 69 in 2020 to 51 incidents in 2021. According to the International Center for Counter Terrorism, the Kenyan security system “has improved both in its coordination and responses, acknowledging that dealing with the threat from a violent extremist organisation cannot be conducted via conventional operations, but requires a whole-of-government approach”. Notwithstanding this, attacks against “telecommunication masts, infrastructure, education, and health facilities, as well as security personnel remains relatively high along the Kenya-Somalia border”. In November 2021, the Anti-Terror Police Unit (ATPU) began investigative operations into Telegram as al-Shabaab and the Islamic State (ISIS) started recruiting young people through social media and WhatsApp groups.
Although al-Shabaab is recognised as the leading agent of terrorism in Kenya, incidents of violence are also a result of banditry and theft, mainly of pastoralist livestock. This increasing cattle theft violence resulted in several Kenyan parliamentarians seeking to “amend the country’s antiterrorism legislation to include bandits within its purview as hundreds of people are killed every year by bandits seeking out livestock, particularly in the North Rift region”.
The anti-terrorism violence also been characterised by increasing human rights violations against Muslim faithful. The reasons are manifold: the reaction to the presence of the extremist group al-Shabaab in the country; the societal fear and political frustration with the ongoing terrorist violence; the fact that the largest contingent of foreign fighters in al-Shabaab are Muslim Kenyans; that the targets are often the country’s institutions provoking a backlash by the state, and the overreaction and abuse by security forces. Security services, most notably the ATPU, have been accused of “rampant abuse and torture in the conduct of their operations and detainment policies”. The backlash strengthens the narrative of government mistreatment of the community.
Between January and November 2021, around 43 families reported cases of their children being kidnapped. According to Haki Africa, a human rights organization, those abductions were concentrated on the coastal cities of Kenya. Most of the events occurred when the victims returned from a mosque. In the wake of these events, Muslim leaders have demanded that the government take action.
In September 2021, religious scholar and regional security analyst Sheikh Abdiwahab Abdisamad was kidnapped reappearing 12 days later. In early October, 22-year-old Mohammed Abubakar Said was abducted from a mosque. His whereabouts remain unknown. On October 28, Islamic scholar, academic and lawyer Hassan Nandwa, was kidnapped after prayers at the Jamia Mosque in Nairobi. He was released in Mwingi ten days later. Yassin Mohmoud, an ambulance driver, and businessman Hassan Dahir Osman, have been declared missing since June.
On 17 November 2021, Sheikh Hassan Ole Naado, Chairman of the Supreme Council of Kenya Muslims drew attention to the fact that “40 members of the Muslim faith have been abducted by unknown assailants since January, and only 10 have returned to their families.” According to Muslim leaders, the government’s campaign against terrorism “has transformed into war against Islam and Muslims”.
Christian leaders, such as the Roman Catholic Bishop Wilybard Lagho, have also raised concerns noting the unusual targeting of Muslim scholars and businessmen, stating that they believe this should be of worry for all Kenyans.
Muslim leaders have also accused the government of interfering with the freedom of assembly and worship by implementing anti-terrorism actions that include extrajudicial killings, torture, forced disappearances, and arbitrary arrests.
Chairman of the National Muslim Leaders Forum, Sheikh Abdullahi Abdi, stated: “Muslims in this country are under siege. They are targeted. There are human rights abuses committed on a massive scale. We are going to mobilize Muslims to the last person to ensure our rights are protected.”
On 4 March 2022, the Atheists in Kenya Society wrote to Education CS Prof George Magoha requesting a ban coerced prayers in schools. The Society said that it had received complaints from students in Kenyan schools forced to attend Sunday church services. According to the letter, “Most Kenyans have gone through a public education system where organized, mandatory observance of religious practice was a must. This culture is still rampant in many primary and secondary schools. It is time to rethink the question of mandatory prayer and religious observance in our public school system”. The Education CS Prof George Magoha refused saying he is “a believer and prayers should be encouraged even before exams if possible”.
In June 2022, Education PS Julius Jwan stated that, in contradiction to the Kenyan Constitution which acknowledges Kenya’s diverse ethnic, cultural and religious backgrounds, some schools are “using religion as a factor to either deny admission or expel learners from school”. Examples, he said, included “banning students from wearing religious attire like hijab and turbans, as well as forcing students to take Islamic Religious Education, Christian Religious Education and Hindu”. Later, in December 2022, Defence CS Aden Duale, speaking at Jamia Mosque Committee, stated “the government will respect the Muslim culture by making sure female Muslims dress decently” insisting that Muslim women wear the hijab when in public. The CS Aden Duale further said that “if anyone has a problem with hijabs, then they should look for other countries to live in”. This is not the first time he has spoken on this issue. In 2019, he stated that the Ministry of Education should take disciplinary action against school heads forcing Muslim girls to remove hijabs. The controversial topic - given the inconsistency of the government’s legal decisions on the matter - is an ongoing one dating back to September 2016 when the Kenyan Court of Appeal ruled that female Muslim students were allowed to wear the veil in educational institutions (including Christian facilities). This ruling overturned a previous High Court decision of March 2015.
On 17 July 2022, Msgr. Mugambi delivered a statement issued by Mombasa’s Archbishop Martin Kivuva Musonde on behalf of the Bishops of Kenya, urging the highest levels of the State to exercise restraint in light of the impending general elections, and encouraged a smooth handover of power. The bishops also urged politicians to refrain from inciting hate on the basis of politics, tribe, or religion.
From 18 to 22 July, Nairobi welcomed the second Pan-African Catholic Congress; the goal of which was to advance and uphold good practices for the benefit of the Church and society.
On 9 August 2022, presidential and parliamentary elections were held. The Kenyan Bishops’ Conference published a statement and a prayer in which they “urged political leaders to behave civilly and avoid language that could fuel ethnic hatred and violence” and declared that political opponents should never settle scores through violence and threats.
On 22 December 2022, Al-Shabaab fighters claimed a rocket-propelled grenade attack and firefight on police in eastern Kenya, killing two officers and one civilian. According to media sources, the cross border raids from Somalia are to pressure the Kenyan government to withdraw forces from the African Union peace-keeping forces in the neighbouring country.
Prospects for freedom of religion
Tensions in the country as a result of al-Shabaab terrorism are cause for concern, not only due to the fact, but also resulting from of incidents of human rights violations against Muslim faithful.
Generally, however, religious freedom is respected by the state and lived between the various communities, and prospects for religious freedom remain positive.
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