NCCK Memorandum on Regulation of Religion

MEMORANDUM BY THE NATIONAL COUNCIL OF CHURCHES OF KENYA TO THE PRESIDENTIAL TASKFORCE ON THE REVIEW OF THE LEGAL AND REGULATORY FRAMEWORK GOVERNING RELIGIOUS ORGANISATIONS

AUGUST 8, 2023

Rev Mutava Musyimi

Chairperson,

Presidential Taskforce on the Review of the

Legal and Regulatory Framework Governing Religious Organisations

Kenyatta International Convention Center

PO. Box 62345, 00200

NAIROBI

Preamble

Honorable Chair,

The National Council of Churches of Kenya (NCCK) is a family of Christian Churches and Communions that was established in June 1913. The NCCK is therefore the oldest and largest Christian Churches umbrella body in the country, which continues to serve the people of Kenya with the mantra “For Wananchi”. Being a membership organization, the NCCK does through the member churches and organisations have a presence in all the Counties. This is through Ward Committee, County Coordinating Committee, Regional Committee (a region combines 4 – 6 counties), and at the national level. All the officials are elected by the members of NCCK at that level.

The Council endeavours to fulfill the Vision “One Church; United in Faith and Mission witnessing to Jesus Christ and Transforming lives”, being guided by the Mission: “Holistic transformation of lives for a just, resilient and sustainable society”.

The 2019 Census indicated the following:

Faith Group No of People

Protestant 15,777,500

Catholic 8,726,200

Evangelicals 9,648,007

African Instituted Churches 3,292,600

Other Christian 1,732,900

Considering that majority of Kenyan Christians (37,444,307) are in churches already covered by the main umbrella bodies, the population of believers in the emerging churches is relatively small. We strongly advice against making policies or legislation that is targeted at the majority on account of actions or misactions of the minority.

Definitions

Honorable Chair,

In preparation of this memorandum, the NCCK has considered the key terms in the mandate of the Taskforce. We especially took note of the following:

Extremist	A person whose opinions, especially about religion or politics, are extreme, and who may do things that are violent or illegal for what they believe
Sects	A small group of people who belong to a particular religion but who have some beliefs or practices which separate them from the rest of the group
Cults	A small group of people who have extreme religious beliefs and who are not part of any established religion
Occult	Connected with magic powers and things that cannot be explained by reason or science

Constitutional and Legal Framework on Religion

Honorable Chair,

In Kenya, the exercise practice of religion is premised on and regulated by the provisions within the Constitution of Kenya 2010 and different Acts of Parliament.

Constitution of Kenya provisions on Religion

The Constitution of Kenya has 5 articles that refer to religion and practice of religion. These include:

Article	Provision
8	There shall be no State religion
19	(2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. (3) The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State; (c) are subject only to the limitations contemplated in this Constitution.
20	(1) The Bill of Rights applies to all law and binds all State organs and all persons.
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.
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.

In contemplation of these provisions, Honorable Chair, we find that the following principles apply:

Every Kenyan has a right to, individually or in groups, hold a religious belief and practice it
No one therefore has a right to dictate to another the nature, object or exercise of their faith or religion

No one has a right to infringe on or limit another person’s freedom of religion or belief

Reflections on the Societies Act (Cap 108)

Where Kenyans have opted to exercise the freedom of religion in association with others, the organisations have been registered under the Societies Act or the Companies Act. The Societies Act (Cap 108) however remains the primary law for registration and regulation of religious organisations.

Enacted in 1968, the Societies Act was formulated to provide for registration and regulation of private members’ clubs, religious organisations, welfare associations, professional associations, sports organisations, political parties and charitable institutions. Subsequently, other laws were enacted for specific sectors, these being: the NGO Coordination Act in 1990, the Political Parties Act in 2011, Public Benefit Organisations Act in 2013 (repealing the NGO Act), and Sports Act in 2013. The Societies Act thus defines a society as any club, company, partnership or other association of ten or more persons, established in the country. It excludes profit making bodies, trade unions, cooperatives, corporations and such other entities.

In 2014, the Attorney General through the letter referenced AG/CONF/4/55VOLIV tasked the Kenya Law Reform Commission to constitute a Committee to review the Societies Act and other statutes relating to charities. In their report that was submitted in November 2015, the Committee identified 9 key challenges facing the sector:

Manual registry, leading to lack of a modern cataloguing system and double registration of associations
Multilateral registration where an institution would register under different regimes for the same purpose

Lack of Stringent Penalties that would act as deterrents of violation of the requirements under the Act

Lack of adequate dispute resolution mechanisms in the constitutive documents of most organizations leaving the role to be played by the Registrar
Lack of a statutory requirement for bodies to submit copy of members to the Registrar, which aggravates disputes due to uncertainty on the membership
Law not requiring applicants to provide identification documents of their officials

Failure by the law to encourage self-regulation mechanisms as a first step towards dispute resolution
Registered bodies depending on goodwill of appointed trustees to hold properties for them

Differential registration processes, where different bodies were subjected to different processes due to non-uniform exemptions

The Committee in their report recommended incorporation of the Associations (Registration and Incorporation) Bill 2015.

However, religious institutions and the general public rejected the Bill on account of failure of adequate public participation in its development, and in recognition that the challenges identified by the Committee were procedural, not legal.

In view of the foregoing, Honorable Chair, the National Council of Churches of Kenya makes the following observations and recommendations as per the mandate of this Taskforce.

Identify the legal, institutional, and governance challenges / gaps that have allowed or may allow for religious extremist organisations, sects, cults and other similar outfits in Kenya to engage in practices detrimental to individual health and safety, the public interest, or our national values;

Honorable Chair,

We have taken into keen consideration the meaning and implications of the provision in the Constitution that every Kenyan has a right, individually or with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including of observance of a day of worship.

We have also considered the definitions and meanings of the words Cults, Sects and other Similar Outfits.

It is our considered finding, Honorable Chair, that an attempt to limit or regulate sects and cults would be an infringement on the rights of the persons who hold or seek to hold such beliefs.

In line with the findings of the Kenya Law Reform Committee in 2015, the gaps in the operations of registered oganisations lie in the operations and administration accorded by the Registrar of Societies, not by the law per se.

We caution that attempts to define citizens who come together to exercise their freedom of worship as sects or cults will actually infringe on their rights.

The stated issues stated as “practices detrimental to individual health and safety, the public interest, or our national values” are by nature criminal actions that arise from the failure by responsible agencies and offices to enforce the law.

Formulate proposals on the legal, institutional, and governance changes required to prevent religious extremist organisations, sects, cults, and other similar outfits in Kenya from committing or fostering actions that are detrimental to individual health and safety, the public interest, or to national values;

Honorable Chair,

Having recognized that the primary driver of extremist practices detrimental to individual health and safety, the public interest, or our national values is failure to enforce the existing laws, we strongly recommend that relevant agencies and offices put requisite attention on acting on their mandates.

Agencies tasked with investigations to ensure comprehensive investigations are done and unmanipulated reports done in a timely manner
Agencies responsible for prosecutions to ensure suspects are prosecuted in a timely manner, and all necessary preparations are done to secure justice
Actors in the judicial processes to ensure that cases are processed justly and timely, and that sentences on those convicted are both punitive and deterrent

Formulate proposals on legal amendments to various laws so as to enable the concerned law enforcement agencies to more effectively tackle crimes committed as a result of religious extremist, or cultic and occultist beliefs and practices;

Honorable Chair,

We in the NCCK have assessed and are of the firm opinion that the Societies Act is adequate legislation to regulate and govern religious organisations. This is because the Act provides for Registration, Regulation, Accountability, and Deregistration of organisations. There is therefore no need for new legislation to govern religious organisations.

We advice caution in that attempts to impose further legislation to govern religious organisations will in essence be back-door attempts to limit the enjoyment of the freedom of religion. Any such power to curtail religious freedom will certainly be abused by political actors in attempt to muzzle their political opponents, reducing religion to a mere political tool.

Focus instead should be on enforcing the existing laws by drawing clear distinctions criminal acts and exercise of religion.

Formulate proposals on civic education in additions to educational curricula that sensitize Kenyans on identifying, avoiding or leaving religious extremist organisations, sects, cults, and other similar outfits;

Honorable Chair,

We in the NCCK find that advising Kenyans on religious beliefs they can adopt or not adopt would be akin to limiting and infringing on their right to enjoy that freedom.

We strongly recommend that the country focusses on integration of teachings on the Bill of Rights and the National Values in the school curriculum, and for the same to be part of government-funded civic education programmes.

Formulate proposals for a mechanism for the public to report religious extremist, cultic or occultist beliefs and practices in their local communities;

Honorable Chair,

We advice caution in establishment of any mechanism that would supposedly be used to report on practices of any religious groups. Such mechanisms have traditionally been used by politicians to intimidate and suppress citizens from enjoyment of religious freedoms. Genuine religious bodies, large or small, have in different countries faced legal challenges on account of unsubstantiated accusations.

Recognizing that the real problem being addressed is criminal actions by individuals and groups, we find that the mechanisms that require strengthening are the approaches by security and investigative agencies to detect, investigate and deter crime.

Formulate proposals on standards and minimum certification requirements for all religious organisations and their leaders for them to be allowed to be registered and to operate in Kenya;

Honourable Chair

The Constitution of Kenya has accorded all citizens the right to, individually or with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including of observance of a day of worship.

Each individual therefore has a right to choose, on their own accord, their religious leaders. We therefore caution against any rules that would purport to set minimum qualifications of religious leaders as that would limit the capacity of Kenyans to enjoy the provisions of Article 32 of the Constitution.

Formulate proposals on a framework for regulation, annual reporting, compliance, monitoring, and enforcement action applicable to all religious organisations; including public declarations of their governance structures, programs, ministries, charitable activities, education activities, commercial ventures and general source of finances;

Honourable Chair

All Kenyans are accorded equality in the Constitution. This equality is extended to associations and organistions. It is therefore highly discriminative for religious institutions to have imposed on them compliance requirements that are not equally demanded from other bodies.

We caution against policies that imply that being a religious organization is not a crime.

Recommend to the competent authorities what actions may be taken against individuals and groups suspected of founding, leading, or part of religious extremist organisations, sects, cults and other similar outfits; and

Honourable Chair

There should be no action taken against any Kenyan for exercising their freedom of religion.

Action needs to be taken against every person who engages in criminal activity, and such actions are already defined in the Laws of Kenya and the Penal Code.

Consider, perform, or advice on any other matter or subject ancillary to the above

Honorable Chair,

We nonetheless recognize the need to ensure doctrinal health of the nation. This can only be achieved through self regulation that facilitates peer monitoring of practitioners of the different religious persuasions. Such would be best coordinated through umbrella bodies to which the religious groups subscribe, while respecting the right of citizens who choose not to be part of any umbrella organisations.

The regulations to guide the self regulation of religious bodies should however be developed by the religious bodies themselves. This will ensure that the regulations are by nature descriptive, not prescriptive.

Conclusion

In conclusion, we recognize that this Taskforce was established on the backdrop of the saddening deaths of hundreds of Kenyans at Shakahola as a result of the actions of the Good News International church led by Paul Mackenzie. As we posited to the Senate Ad Hoc Committee investigating the massacre, the deaths are a crime that resulted from the failure by security agencies to act on reports that were made to them.

We therefore urge your Taskforce to make recommendations that promote rather than curtail the exercise of the freedom of religion on account of failure by state agencies.

On our part, we remain committed to participating in a consultative and religious-fraternity-led process to develop self-regulation framework for religious entities in the nation.

Signed on this 8^th day of August 2023 at Jumuia Place, Nairobi, on behalf of the Member Churches and Organizations (attached) of the National Council of Churches of Kenya:

Archbishop Timothy Ndambuki

CHAIRMAN

Rev Canon Chris Kinyanjui

GENERAL SECRETARY

NCCK MEMBERSHIP