Out of the Many, One: Finding Kenya’s Exact Secular Model

– Zayn

Abstract
Kenya’s constitution, by way of Article 8, envisions a state without a religion. In interpreting
Article 8, existing jurisprudence from courts, current scholarship, and both national and
international perception, have taken the provision to mean that Kenya is a secular State. The
question of Kenya’s secularity appears to have lingered for a considerable period in Kenya’s
history and continued to exist even during the 2010 Constitutional dispensation. However,
the question of Kenya’s exact secular model, has remained unanswered. Therefore, this
paper seeks to answer the following question: what is Kenya’s exact secular model and how
fitting is it in the context of Kenyan society? The concept of a secular state is rather nuanced,
given that there exist many secular models. In this paper, the author begins by illustrating a
total of six different secular models: passive, assertive, neutral, inclusive, negative, and
positive. After having done that, the paper makes an attempt at defining Kenya’s secular
model. It does so by investigating how the Kenyan State has interacted with religion and
irreligion, and whether Kenya has allowed religion and religious symbols a place in the
public sphere. After placing Kenya within a particular secular model(s), the paper then looks
into whether the model is suitable within the context of the Kenyan society.
 I. Introduction

The Constitution of Kenya is exact and unequivocal in its denouncement of a state religion –
‘there shall be no state religion’. 1 In other words, the Constitution, by virtue of this provision
notes that Kenya is, by all measures, a secular state. 2 What then is a secular state? Simply
defined, it is where the state has asserted a claim that it remains officially neutral with matters
pertaining to religion.3

Secularism is a nuanced concept. That Kenya’s constitution has pronounced no state religion,
is a marker that Kenya is practising some form of secularity. There are various forms that
secularity could take. In Ian Benson’s paper, an attempt is made to define the various forms
of a secular state.4 To begin with, neutral secular states are those that are expressly non-
religious, and neither support religion, nor irreligion. A state could also be inclusively
secular, in the sense that the state is not run on the back of any particular religion, but it acts
in a way that involves the widest faith groups, including the non-religious. A further nuance
exists between either assertive or passive secularism. 5 Assertive secularism is a model that
entails excluding religion and its symbols from the public sphere, while the latter entails a
leniency toward religion within the domain of the public sphere. In this regard, the paper will
go into much more detail about the different secular models at a later stage in the paper. The
above is only mentioned in passing, to provide the reader with at least a rudimentary
understanding, that there exist different secular models, and how they can be defined.

It is also important that the difference between ‘secularism’ and ‘secularity’ be noted from
the very beginning. Whereas ‘secularity’ is an approach to state-religion relations that avoids
a state being identified with a particular religion, ‘secularism’ is an ideology that commits to
promoting a secular order.6

Amid all this nuance, it may become confusing as to what Kenya’s secular identity actually
is. To add to this, case law sheds very little light on this very important problem. All that has
1
Article 8, Constitution of Kenya (2010).
2
The Freedom of Thought Report, Kenya, 30 November 2020, 2.
3
Medley J and Enyedi Z, Church and state in contemporary Europe: The chimera of neutrality, Psychology
Press, London, 2003, 14. In other words, the state is officially untied to any religion and promotes neither
religion nor irreligion.
4
Benson I, ‘Notes towards a (re)definition of the “secular”’ 33 Columbia Law Review, 2000, 530.
5
Kuru A, ‘Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies
toward Religion’ 59(4) World Politics, 2007, abstract.
6
Scharffs B, Secularity or secularism: Two competing visions for the relationship between religion and the State
in the new Turkish Constitution’ BYU Law Research Paper No. 15-16, 2011, 110 —
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2657722> on 11 June 2022.
been said is that Kenya is a secular state; nothing further detailed has been pronounced by the
Court’s. There is also a dearth of scholarship in the area. In the lack of scholarship, this paper
finds utility and novelty. Academics have seldom embarked on discussing Kenya’s secularity
in the context of finding the exact secular model adopted in Kenya. This is unlike authors
such as Kuru,7 Gunn,8 and others, who have taken up the challenge of interrogating the
secular models adopted by countries such as France, USA, Canada or Turkey. It endeavors to
add – significantly – to the literature, in the hopes of filling a current lacuna in Kenyan
scholarship regarding Kenya’s secular identity.

Notably, Kenya has a history of attempting to practice some form of secularity. For instance,
in the pre-2010 constitutional dispensation, the State remained impartial and denounced any
bind to a particular religion, as Jesse Kamau & 25 others v Attorney General (2010) eKLR
buttressed.9 This case serves as an exemplification of Kenya’s secularity under the
constitution of old. Herein, the courts averred that Kenya was of a ‘secular nature’. Owing to
this, it can be said that the issue of Kenya’s secularity is age old, and that the pursuit of being
some form of a secular state is intrinsic and deeply rooted into Kenyan history. Arguably,
then, a discussion of Kenya’s secularity is important. Essentially, the importance here, may
be gleaned from the fact that secularity was crucial enough to the state and its people, such
that, not only did it exist under the post-independence constitution, but it continues to exist in
the Constitution of Kenya (2010). As such, the author argues that the secular nature of the
state is of critical importance to Kenya and its people.

Therefore, the overriding question this paper seeks to answer is: what is Kenya’s exact
secular model and how fitting is it in the context of Kenyan society? In other words, if
Kenya practices some form of secularity, which exact model does it follow? Once the
question of defining Kenya’s secular identity has been put to rest, the paper will show why
such a model suits Kenya well. In essence, this paper’s primary objectives will be to define
Kenya’s secularity, and then to explain to what extent, if at all, it is ideal for Kenya. The
foregoing will be done in four subsequent chapters

The next chapter almost entirely descriptive, though critical to the paper, given that it
explains the various secular models. Chapter three will seek to find where within the secular

7
Kuru A, ‘Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies
toward Religion’ 59(4) World Politics, 2007.
8
Gunn J, ‘Religious freedom and laicite: A comparison of the United States and France’ 2004(2) BYU Law
Review, 2004.
9
Jesse Kamau & 25 others v Attorney General (2010) eKLR
spectrum Kenya lies. Once the model is found, chapter four will discuss why the model suits
Kenya. There will then be a summary of the ideas this paper has postulated, which will form
the conclusion in Chapter five.

II. The Many Secular Models

As this paper alluded in the introduction, the secular concept, and the secular ideology, takes
various forms. In this chapter, the paper endeavours to detail the many versions of
secularism. In particular, six different types of secularity are discussed. In this regard, if
finding Kenya’s secular model with preciseness from a range of models that exist is the end
goal, then it appears as though there are two prerequisites that must exist: one, that there exist
a variety of models, and two, these models must meet the criterion of being definable. If these
prerequisites are not fulfilled, then it is more than likely that the eventual objectives will not
be met. With this in mind, the paper now moves to illustrate the variety of models, and
further, to define the boundaries of these two models – in other words, what they are, and
what they entail. This section further acts as a precursor to what is discussed later on in the
paper regarding finding Kenya’s secular identity. As such, this section acts as a fundamental
stage setter, and it is crucial for the reader to understand the types of secular models that
exist.

The first model is that of a passive secular nature. In this regard, a state that attempts to
implement a passive secular model is one that, as the moniker suggests, plays a passive role
in establishing a state religion, and further, allows religion to come into the public sphere. 10 In
a bid to illustrate practically what this means, a passive secular state will usually allow its
people to don garments such as head scarfs in public places, including schools. In many ways
therefore, passive secular states will adopt and employ a sensible approach (neither extremely
secular, nor non-secular) to state-religion relations, as opposed to a hard-and-fast approach
where no religion is allowed into the public sphere. Therefore, for a passive secularist, it
appears more important that state secularity be used as a means to achieve a sense of church-
state relations that is accommodationist. In this regard, one could point to states such as The
United States of America (America or USA) – where passive secularists appear to have the
majority – to exemplify a passive secular state. 11 In America, a person is free to practice their
religion as they see fit, and public displays of religion and religious symbols are permitted.

10
Kuru A, ‘Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies
toward Religion’ 59(4) World Politics, 2007, 571.
11
Kuru A, ‘Passive and Assertive Secularism, 572.
The American is free to dress as they like, 12 garments such as hijabs continue to be
permissible; the Jewish Kippur is worn freely by those who profess the Jewish faith; a child
in an American public school will freely plead allegiance to the flag of the USA, which
contains the phrase “one nation under God”;13 they will also sing the famous national hymn
and patriotic song, ‘My country T’is of Thee’, which itself contains the line ‘Our Father God
to Thee Author of liberty’;14 they will buy goods using the US dollar which has printed on it
the words ‘In God We Trust’; and all fifty US States (bar 4) make reference to ‘God’ or some
supreme being.15 All these public displays of religion and its symbols are permissible and
exist in America, despite it being, by all means, a secular State that does not endorse religion
under the First Amendment of the Constitution.16 This therefore makes for the perfect
illustration of the workings of a passive secular state – religion is not seen as the enemy of the
State, or its secular order.

On the other end of this spectrum lies the assertive secular model. An assertive model seeks
to positively pursue the entire elimination of religious, and religious symbols from the public
sphere. A state such as France or Turkey, both of whom have been stated to employ an
assertive secular model, ban garments such as hijabs from public schools. 17 Such measures,
that restrict religious symbols in public institutions, are quintessential pointers that present
concrete evidence that a state is using an assertive secular model. The assertive secular model
has been defined by various scholars on different occasions. Throughout, however, scholars
maintain that assertive secularism is positive, imposing, and unapologetically furthering of
the ideology that secularism stands for, and by extension that a strict secular order must exist.
McClay in their paper, for instance, said that the assertive secular model is one that
essentially understands religion to have a potentially irrationality, therefore a pursuit of
secularism must be undertaken, and secularism must be at the forefront, superseding
religion.18 In Scharffs view, this more aggressive secular model is insistent that each citizen

12
Tinker v. Des Moines Independent Community School District (1969), The Supreme Court of the United
States of America. In this case, the court ruled that garments such as clothing represent an expression of the first
amendment of the constitution and are therefore protected under the first amendment.
13
See — < https://www.sos.wa.gov/flag/pledge.aspx> on 14 August 2022.
14
See —< https://bensguide.gpo.gov/j-america-my-country> on 14 August 2022.
15
Sandstorm A, ‘God or the divine is referenced in every state constitution’ Pew Research Centre, 17 August
2017 —<https://www.pewresearch.org/fact-tank/2017/08/17/god-or-the-divine-is-referenced-in-every-state-
constitution/> on 14 August 2022.
16
First Amendment, US Constitution (1788). See also —< https://worldpopulationreview.com/country-
rankings/secular-countries> on 14 August 2022.
17
See for instance, Sahin vs Turkey (2005) Eurpoean Court of Human Rights, Application no. 44774/98; and
Dogrü and Others vs France (2008) European Court of Human Rights.
18
McClay W, ‘Two concepts of secularism’ 13(1) Journal of Policy History, 2001, 63.
accept what he calls a ‘thick’ theory of eradicating religion from the State’s sphere, and he
goes further to say that this model calls those who do not support it ‘irrational’. 19 Scharffs
take on assertive secularism gets further credence from the words of Sajo, who said that a
constitution that seeks to uphold secularism is taking a ‘reason-based’ approach in the
running of a society, while the inverse is mere emotional politics. 20 As such, an assertive
model seeks to insure the existence of secularism above all else within a society. In this
regard, I point the reader to countries such as Turkey and France, whose laws point to the sort
of restriction on religious expression typical of an assertive secular country. France adopts
assertive secularism to the proverbial tee. It makes vehement attempts to eradicate any
religious symbolism from the public sphere. In France, for instance, Law 228 in 2004 bans
religious symbolism in schools.21 Such a measure was taken to sanctify laïceté, France’s
version of secular, which entails a strict separation of church and state. 22 In France, their
pursuit of secularism has led to the fashioning of a ‘public order’ policy which essentially
means that the State has the purview of limiting the exercise of rights, such as clothing, as
long as it is the interest of the public order. 23 And so, it was based on this apparent need to
maintain public order that garments such as the kippur, the hijab, and the like, were all
banned in select public places. It is further interesting to note that a country like Turkey, in its
pursuit to maintain an assertive secularism model, banned religious symbolism in all
educational institutions.24

The paper would be amiss if it did not also discuss the work of Ian Benson, who envisioned a
total of four types of a secular state. Ian Benson appears to be the only author who has, in a
paper, made a comprehensive list of the type of secular states. 25 As such, it is important to
discuss his contributions. In essence, Ian Benson in ‘Notes Towards a (Re)Definition of the
Secular’ attempts to show Canada’s secular identity by asking ‘What Kind of “Secular” State
Are [Canada]?’.26 The four types of secular states that Benson came up with are: neutral

19
Scharffs B, Secularity or secularism: Two competing visions for the relationship between religion and the
State in the new Turkish Constitution’ BYU Law Research Paper No. 15-16, 2011, 369 —
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2657722> on 11 June 2022.
20
Sajo A, ‘Constitutionalism and secularism: The need for public reason’ 30 Cardozo Law Review, 2009, 109.
21
Law 228 of 2004.
22
Gunn J, ‘Religious freedom and laicite: A comparison of the United States and France’ 2004(2) BYU Law
Review, 2004, 420.
23
Gunn J, ‘Religious freedom and laicite’ 2004(2) BYU Law Review, 2004, 466.
24
Kuru A, ‘Passive and Assertive Secularism, 576.
25
Buckingham J, ‘The relationship between religions and a secular society’ 9(3) Creed, freedom of religion and
human rights diversity magazine, 2012.
26
Benson I, ‘Notes towards a (re)definition of the “secular”’ 33 Columbia Law Review, 2000, 533.
secular, positive secular, negative secular, and inclusive secular. 27 A neutral secular state is
one that is expressly non-religious, both in practice and in theory, and at the same time, the
state does not support any religion in any way. Positive secular states are those that remain do
not expressly state any allegiance to a particular religion but are lenient and willing to
creating favorable conditions for religions and those who subscribe to the various religions.
Then there are negative secular states, which are not religious, in fact they are ‘not competent
in religious matters’, but they only inhibit religious manifestations, if they are against the
‘common good’. What the ‘common good’ is, and what qualifies as being against this
‘common good’ is left for the State to decide. Finally, an inclusive secular state is one that is
not expressly religious but acts in a way that involves the widest accommodation for both
religious and irreligious camps.

To serve as a practical example of what these models entail, take for instance this scenario:
Country A is a secular state of sorts, and has one school. The Parliament in Country A passed
a law that requires any proposed measure that seeks to affect all the children in the school go
through a compressive process. First, the measure is vetted internally by special committee X.
After the measure is found to be viable, within the law, and substantive, it moves to be
discussed in the public square, where parents are invited to give their two cents (special
committee X may also present views at this stage). Finally, a different special committee,
Special Committee Z, votes to either ratify or quash the measure. For added democratic
value, it must be made clear, that those in Special Committee Z are voted in by suffrage. A
recent proposal has been made that calls for there to be school prayers every morning in the
school, where all students are to participate. Each of the secular models would treat such a
situation differently. A neutral secular State, for instance, would quash it immediately, and a
proposal such as this one is likely to be denied at first instance. An inclusive secular State, on
the other hand, is likely to allow the proposal, invite all parents to come forth, make
arguments based on religion, or irreligion, both of which will be heard judiciously and
keenly, and then the democratic process would be left on its own to decide the outcome. A
negative secular State would begin by conceding to a lack of competency regarding religious
matters. All Committee X would do, is to determine if the proposed measure is one that
threatens the ‘common good’. Only if the conclusion it reaches to this is in the negative – that
the proposed measure is not threatening common good – would the proposal go forward to
the town square for discussion. The normal process would proceed thereafter. Finally, a

27
Benson I, ‘Notes towards a (re)definition of the “secular”, 530.
positive secular model would lead to a scenario where the commission, though accepting that
the State is secular, would allow the measure citing the reason for doing so, to create a
favorable condition for those profess religious beliefs.

The above scenario, therefore, paints the picture and aids in differentiating the four secular
models as posited by Ian Benson.

This chapter has gone into relative detail about the types of secular models. Indeed, some
models have been discussed at greater length than others. Nonetheless, it is the authors hope
that the reader now has a firm understanding of the different secular models that exist. The
author concedes to the foregoing chapter being relatively descriptive. However, it is the
authors opinion that such description is necessary: one, it must be understood that there are
many models; and two, the reader must understand the nuance between the different models.

III. What is Kenya’s Secular Model?

As stated above in the introduction, Kenya’s Constitution is categorical when it says, under
Article 8, that there shall be no State religion. 28 However, it is hardly the case that Kenya is
‘neutral secular’, for example. There are many aspects indicating that Kenya’s secularity is
something perhaps more complicated, considering the way it has interacted with religion,
religious institution, and religious expression. Nevertheless, this paper will find Kenya to be
practising its own brand, mixing passive secularity, with an inclusive secularity model. In line
with this, the author refers to Kenya’s secular model as being a passive–inclusive secularity.
The core reasons for which are highlighted in how Kenya has interacted with religion, while
the State remaining Constitutionally irreligious.

It would seem as if a good starting point in this discussion would be an investigation of how
the courts have interpreted the problem. Unfortunately, it appears that this is a question the
Kenyan courts have shied away from answering. This is particularly observed in how the
Supreme Court dealt with the case of Mohamed Fugicha v Methodist church in Kenya (suing
through its registered trustees) & 3 others.29 This case found its way into the High Court
when the school in question sued, regarding a dispute about whether or not Muslim girls
could wear the hijab to school. The court ruled in favor of the petitioners, by barring Muslim
students from wearing a hijab to that school. Their reasoning was that Muslim girls donning a

28
Article 8, Constitution of Kenya (2010).
29
(2019) eKLR.
head scarf would be discriminatory. Aggrieved, Muhammad Fugicha appealed the decision.30
He was successful, when the Court of Appeal ruled that the High Court judge erred in how
they viewed discrimination. Instead, the Muslim girls were found to be indirectly
discriminated against, given that they were disparately impacted by the uniform. 31 The Court
of Appeal made one particularly interesting remark regarding the hijab, when it highlighted
the importance of it to the Muslim girls, and how it was a manifestation of them practising
their faith. In essence, it accepted the appellant’s argument, that, although Kenya is a secular
State, it is not founded on a hostility to religion. However, when the case reached the
Supreme Court, it was overturned on the basis of procedural technicalities. 32 This decision
has met criticism, rightfully so, having been dubbed a case where the court had the
opportunity to provide clarity on the scope of religious manifestations, but used ‘specious
logic based on legalism to avoid [the] issue’. 33 It has been suggested that such a decision –
one that limits the freedom of a girl to wear her hijab – would fly North of passive
secularism.34 Curiously however, the Cabinet Secretary for Education, George Magoha,
released a directive that schools in the country must allow students to don hijabs. 35 As it
stands, however, the CS directive is the latest contribution to the hijab debate.

This rather disappointing ruling by the Supreme Court further gives impetus to find the
secular identity of Kenya. Because the courts are silent on the issue,36 it seems prudent to
delve into how Kenya has interacted with religion and religious expression, in the hopes of
finding an answer regarding what type of a secular State Kenya is.37

30
It is noteworthy that the appellant was merely an interested party in the case at the High Court. Yet, it was him
who filed the appeal.
31
Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others (2016)
eKLR.
32
Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others (2019)
eKLR. The technicality in question, was that the cross petition was filed incorrectly.
33
Sang B, ‘Constitutional Law and Islamic Hijabs in Kenyan Schools: The Supreme Court’s Specious
Constraint in Methodist Church in Kenya’ 10(2) Oxford Journal of Law and Religion, 2021, 317.
34
Wangai M, ‘Religious pluralism in practice: Defining secularism in Kenya’s headscarf cases’ 3(1) Strathmore
Law Journal, 2017, 182.
35
Muia J, ‘CS Magoha orders schools to allow students to don religious attire’, Citizen Digital, 30 July 2022 —
< https://www.citizen.digital/news/cs-magoha-orders-schools-to-allow-students-don-religious-attire-n303145>
on 23 August 2022.
36
Here, the author argues that the courts can be termed as ‘silent’ because they are yet to pronounce, with
exactitude, on the position of Kenya’s secularity. Even when the opportunity has arisen, as it did at the Supreme
Court in earlier reference case of Mohamed Fugicha v Methodist church in Kenya (suing through its registered
trustees) & 3 others (2019) eKLR, the courts have shied away from making an exact pronunciation. As at
writing this paper, the case appears to be the final jurisprudence from the courts on the matter.
37
The author adopts a methodology of examining the manner in which the State has interacted with religion and
religious expression, following inspiration from scholars such as Kuru in ‘Passive and Assertive Secularism:
Historical Conditions Ideological Struggles, and State Policies toward Religion’ and Gunn J in ‘Religious
freedom and laicite: A comparison of the United States and France’ 2004(2) BYU Law Review, 2004,
For starters, the Constitution institutionalises the Kadhi courts under Article 170. 38 These
courts are a creature of Islam, given that ‘Kadhi’ 39 is a name reserved for a Muslim judge
who sits to render judgement in a dispute, and in doing so is guided by Shari’ah law.40

During the inception of the 2010 Constitution, there already existed significant debate on the
place of Kadhi courts in a secular Kenya.41 The non-Muslim community in Kenya
vehemently opposed the entrenchment of the Kadhi courts.42 It is easy to argue that the Kadhi
courts were completely religious courts. After all, the Kadhi courts are presided over by
someone who must be a Muslim,43 and the Kadhi adjudicates over Muslim’s with disputes,44
and in doing so, used Islamic Shari’ah law.45 In fact, a 2022 decision cemented the court’s
place as a purely Muslim avenue for dispute resolution when it declared that, in a marriage
where one spouse were to change faith, this change of faith alone, may bar the Kadhi court
from having jurisdiction over the marriage dispute. 46 This is regardless of the fact that the
marriage may have begun as a Muslim marriage, and was officiated under Muslim law. Even
more strikingly, the court herein acknowledged that the change of faith by one party ‘would
not change the fact the marriage was a Muslim one’. 47 However, because the faith of one of
the parties was no longer Muslim, the jurisdiction of the court could be affected. As a result
of this, it seems to come as no surprise that the Kadhi courts have elicited a response from
critics, who aver that there is little to nothing that is more religious than a Kadhi court.48

Strongly critiquing the Kadhi courts as being inconsistent with the secularity of Kenya, was
the High Court in the case of Jesse Kamau & 25 others v Attorney General. 49 Therein, the
court made a remarkable admission that the Kadhi courts were contrary to the secular nature
of the state, and further, that any form of religious courts ought not to form part of the
Judiciary given that it ‘offended’ the strict separation of the state from religion. 50 However, a

38
Article 170, Constitution of Kenya (2010).
39
Note: the term may also be spelt as ‘Qadhi’ or ‘Kadi’ or ‘Qadi’.
40
Britannica, Online Edition.
41
Macharia J, ‘Q+A: Contentious issues in Kenya’s referendum’ Reuters, 1 August 2010 —
<https://www.reuters.com/article/us-kenya-referendum-idUSTRE67011E20100801> on 5 June 2022
42
Ahaya O, ‘The secular state premise, and the Kadhi court debate during Kenya’s Constitutional review
moment’ Published PhD in Philosophy Thesis, Moi University, Eldoret, 2015, 119.
43
Article 170 (2)(a), Constitution of Kenya (2010).
44
Article 170 (5), Constitution of Kenya (2010).
45
Article 170 (2)(b), Constitution of Kenya (2010).
46
CAO v JAA (2022) eKLR.
47
CAO v JAA (2022) eKLR. Para 20.
48
Verbatim report of plenary proceedings, held in the Plenary Hall, BOMAS of Kenya’, 11 March 2004, Page
12
49
(2010) eKLR. Note: this case was presented before the High Court pre 2010 Constitution.
50
Jesse Kamau & 25 others v Attorney General (2010) eKLR. See the conclusions.
caveat must be noted regarding this case, since it was presented before the High Court prior
to the 2010 Constitution being ratified. This notwithstanding, the author merely uses this case
to show that such courts offend, to some extent, and in some way, the secular nature of a
State. In other words, a Kadhi court affects the secularity of a State.

There are also many other domains within which reference is made to God and religion, and
there are many exemplifiers of government funding going towards religious arenas. To
exemplify, the Kenya Examination Council, which is funded by the government, 51 offers
examinations for subjects such as Christian Religious Education (CRE), since the subject is
offered in the national curriculum. 52 Another example of the religious ties the State has is in
the regularly held ‘Annual National Prayer Breakfast’ whose costs are borne by the taxpayer.
In the broadcast of this event, it is commonplace for biblical verses to be recorded by the
President’s office in the announcements prior to the event. 53 On the day itself, the religious
leaders congregate to perform prayers for the nation. Even in the recently concluded National
Elections, religious choirs, and religious leaders congregated at the BOMAS of Kenya to sing
religious hymns.54 This quintessentially typifies the way the State has allowed religion to be
visible in the public domain. Further evidence of the lack of strict separation between religion
and state can be found within the Constitution. The Constitution itself references a God that is
of all creation, and it acknowledges an Almighty God.55

Admittedly, the Constitution also makes every effort to ensure that it is all encompassing, by
providing for both religious and irreligious people. In saying so, one could examine the
Constitution to find that it also provides for those who decide not to prescribe to any religion.
Article 32, for instance, declares that there is freedom of religion in Kenya.56 By virtue of
this, every Kenyan is free to believe in a religion, and in the inverse, every Kenyan is free to
remain as atheistic or agnostic as they wish.57

51
Section 11, Kenya Examination Council Act, (2012)
52
KCSE subject selection definitive guide — < https://www.nexxushub.com/blog/KCSE-Secondary-School-
Subject-Selection> on 5 June 2022
53
Proclamation of the National day of prayer by H.E Uhuru Kenyatta, C.G.H, President of the Republic of
Kenya and commander-in-chief of the defence forces, 17 March 2020 — <
https://www.president.go.ke/2020/03/17/proclamation-of-the-national-day-of-prayer-by-h-e-uhuru-kenyatta-c-g-
h-president-of-the-republic-of-kenya-and-commander-in-chief-of-the-defence-forces-17th-march-2020/>
54
Ogetta D and Lukulu M, ‘Bomas choirs that sang through agony and tension amid long wait for IEBC results’
Nation, 21 August 2022 —< https://nation.africa/kenya/news/bomas-choirs-that-sang-through-agony-and-
tension-3921238>
55
Preamble, Constitution of Kenya (2010).
56
Article 32, Constitution of Kenya (2010).
57
Mike Rubia & another v Moses Mwangi & 2 others (2014) eKLR. See Para. 26 where the court likened
Article 32 to Article 18 of the International Covenant on Civil and Political Rights. Article 18 of the covenant
protects atheistic beliefs and grants the right not to profess any religion.
However, there have been claims that the church has been elevated in the Kenyan State, such
that those who do not subscribe to religion face some type of ‘discrimination’ – a claim that
the Atheists in Kenya have backed.58 Thus, the constitutions freedom of religion promise
appears to seem imperfect, because of what the author chooses to term ‘the Atheist problem’.
The reader may recall that for a state to qualify as inclusively secular, it must allow a wide
inclusion of both religious and irreligious groups. Therefore, to qualify as a passive-inclusive
secularity, there must be an inclusion of irreligious groups. In this regard, there is a potential
complication that arises with the Atheist problem throwing a potential spanner in the works.

In some instances, irreligious people have faced some public denunciation. For instance,
when the Atheists in Kenya (AIK) looked to register their society, they hit rough waters amid
significant backlash, especially from The Kenya National Congress of Pentecostal Churches,
who were vocal against the AIK.59 The Attorney General then took notice and suspended the
registration of the AIK.60 Specifically, the AIK received a letter dated 29 th April 2017, where
it was made clear that AIK’s registration was being revoked due to the ‘society’s advocacy
and public pronouncements which have generated great public concern which is prejudicial
and incompatible with the peace, stability and good order of the republic of Kenya’. A recent
event, in which the AIK illustrated public disappointment, 61 showed that perhaps there is still
some peculiarity with how Atheists in Kenya are regarded. Evidencing this is the recent
meeting held by the President William Ruto with religious leaders, where Atheist leader were
left out.62

To begin with, from the above, it seems that the issues pertaining to the irreligious in Kenya
seem few and far between. And even then, to both of the above, arguments can be made in
response. As for the former issue, regarding the AIK facing issues to register their society,
time would go on to tell that they were later allowed to register AIK as a lawful society in
Kenya. This was done following a decision at the High Court. The AIK appealed to the High
Court for its intervention, which culminated in a resounding success for AIK, after the Court

58
Press Statement, ‘We agree with Hon. Raila Odinga – Christianity has been elevated above other religions’,
28 July 2022 —< https://atheistsinkenya.org/2022/07/28/we-agree-with-hon-raila-odinga-christianity-has-been-
elevated-above-other-religions/> on 24 August 2022.
59
Kumar P, ‘Atheist group in Kenya tests boundaries of religious tolerance’ The Conversation, 30 May 2016
— <https://theconversation.com/atheist-group-in-kenya-tests-boundaries-of-religious-tolerance-59847> on June
11 2022.
60
Atheists In Kenya & another v Registrar of Societies & 2 others (2018) eKLR. Para 24.
61
See —<https://twitter.com/AtheistsInKenya/status/1559864720668114944?
s=20&t=AL5AQW0bdH7PpgbuRrrl1g> on 22 August 2022.
62
See —<https://twitter.com/WilliamsRuto/status/1559852856819302404> on 17 August 2022.
ordered that the suspension be revoked.63 In their dictum, the High Court concluded that the
respondent, acted unlawfully by serving the AIK with a letter that did not detail the specifics
of the issue, the notice that the letter gave the Petitioners was insufficient, and overall, the
Respondents failed to act in accordance with the Constitution and the Law. As such, AIK’s
concern that it was being discriminated against was relieved, and they became a lawfully
recognized society in Kenya. To this day, they continue to act freely, and to practice their
belief, or lack thereof without Stately intervention.64

The latter and more recent issue where President-elect Ruto, as he then was, left out Atheists
when meeting religious leaders, is far easier to argue against. In the words of the Atheists in
Kenya leader, Harrison Mumia, Atheism ‘does not believe in the existence of God and
therefore it is the opposite of religious beliefs’. 65 In other words, Atheistic beliefs are an
antithesis to religious beliefs. A religious belief is simply belief in a religion. 66 Religion is
defined, in Blacks Law Dictionary as:

‘a [human’s] relation to Divinity, to reverence, worship, obedience, and submission to

mandates and precepts of supernatural or superior beings. In its broadest sense [religion]
includes all forms of belief in the existence of superior beings exercising power over human
beings by volition, imposing rules of conduct, with future rewards and punishments’. 67

As such, an atheist is one who does not believe in the above. An Athiest leader, therefore, is
the opposite of a religious leader. One could argue, thus, that atheism is not a religion, and so
there is clear and strong justification for Atheist leaders to be left out of a meeting with
religious leaders. After all, the meeting with the President-elect, was one for ‘religious
leaders’.

Having said the above, then, in the authors view, the Atheist problem is solved. With this,
some things become clear over what Kenya’s secular identity is.

It is thus clear, then, that Kenya is a secular State which allows a wide variety of religious
inclusion. After all, in Kenya, a Kenyan can practice religion or practice irreligion, they will
fund a National Prayer Breakfast, a Kenyan Muslim will visit a Kadhi court should he have a

63
Atheists In Kenya & another v Registrar of Societies & 2 others (2018) eKLR.
64
See the Atheists in Kenya website, where details of seminars are posted, as well as other updates showing that
the society continues to act as it so wishes. —< https://atheistsinkenya.org/> on 23 Aug 2022.
65
Atheists In Kenya & another v Registrar of Societies & 2 others (2018) eKLR.
66
Religion or belief discrimination —<
https://www.citizensadvice.org.uk/law-and-courts/discrimination/protected-characteristics/religion-or-belief-
discrimination/#:~:text=Religious%20belief%20means%20the%20belief,by%20everybody%20within%20that
%20religion> on 23 August 2022.
67
Black’s Law Dictionary, 6th ed. (1990), 1292.
dispute, and a Kenyan parent will send their kids to school to study religious education,
which is tested by a Council funded by taxpayer money. In the inverse, if one is atheist,
agnostic or simply does not subscribe to any religion, he may do so, and is free to join
societies such as AIK.

The courts have been explicit in their interpretation of Article 8, by deciding that Kenya is
secular.68 Consequently, and having examined how Kenya has allowed religion into the
public domain, and that it has been inclusive in including irreligious and religious members
of the society, it seems apt to say that Kenya is a passive-inclusive secularity. By definition,
this model is one where the state plays a ‘passive’ role in avoiding the establishment of a
state religion and allows for religion to come into the fore in the public sphere. 69 Such a
model also encompasses a constitutionally irreligious country that allows a wide involvement
of different faith groups and the irreligious. Given the explanations above, Kenya seems to fit
this bill rather perfectly. It allows, generally, for public prayers, public displays of Christian
crosses, Sikh turbans, Muslim burqas, and even allows the teaching of religious education in
schools.

Now that the issue of Kenya’s secular identity has been settled, it does not necessarily mean
that this secular model is apt for Kenya. As such, the next part of the paper will aim to do
exactly that – it will analyze the extent to which this secular model is fitting for the Kenyan
society.

IV. Embracing Kenya’s Model of Secularism

This paper now argues that Kenya’s de facto model of passive-inclusive secularity, is well
suited to the context of the nation. In this regard, some things ought to be understood
regarding Kenya’s context, and to what extent this model is suitable for Kenya.

Demographically, Kenya represents an amalgam of different cultures, races, and tribes. 70

Central to all those is religion. Kenyans remain a very deeply religious people. In fact, 98.5
percent of the populace subscribes to a religion. 71 From the teachings of these religions, the
population maintains strongly conservative views, and the take on religion that the people
have, is quite conservative, too. This traditionalist stance manifests itself in various forms of

68
Republic v Head Teacher, Kenya High School & Another ex-parte SMY (2012) eKLR.
69
Kuru A, ‘Passive and Assertive Secularism: Historical Conditions, Ideological Struggles, and State Policies
toward Religion’ 59(4) World Politics, 2007, 571.
70
Cultural Atlas, ‘Kenyan Culture’, 2018 — <https://culturalatlas.sbs.com.au/kenyan-culture/kenyan-culture-
religion> on 6 June 2022.
71
United States Department of State, International Religious Freedom Report for 2020, 2020, 2.
life in Kenya. Essentially, the argument then will be that because Kenyan society is
traditionalist, and religious, a secular model that disallows them from freely practicing their
religion as they so choose, would be unsatisfactory. The paper will initially outline some
aspects of this ‘traditionalist’ views below, in order to cement the claim that Kenya and
Kenyan society appears mostly traditionalist and conservative. 72 Thereafter, the argument that
the passive-inclusive secularity model is suitable for Kenya will continue.

To show that Kenyan society is traditionalist and conservative, the view on issues such as the
LGBTQ community is telling. Simply put, the LGBTQ community in Kenya continue to face
significant obstacles to their freedom. One need only look through the penal code to see this
become clear. Section 162 of the Penal Code outlaws what it terms as ‘unnatural acts’
between men.73 A recent case further concretized this position. A petition filed at the High
Court, wherein the petitioners sought the courts aid in repealing Sections 162 and 165 of the
Penal Code was rejected.74 Their claim that the impugned sections violated their
constitutional rights was outrightly snubbed by the three-judge bench. This case typifies how
religion, and morality informed by religion, plays a part in the Kenyan society. Even a
rudimentary screening of the judgement will show that arguments around religion and
religious morality were popular in the case.

Still on the issue of the LGBTQ community, President Uhuru Kenyatta has also had his say
on occasion, and his take mirrors that of the courts. On one occasion, President Kenyatta has
been quoted saying the LGBTQ issue is ‘a non-issue’ to the people of Kenya. 75 More
pertinently, in a press conference with sitting US President, Barack Obama, as he then was,
President Kenyatta said that the LGBTQ community’s stand goes against the values of the
people, and the recognition of LBTQ values is something ‘our values, our culture’ do not
accept.76

72
It has been said that religion and conservative views are quite interrelated. Hence, the author here argues
that Kenyan society’s religiosity manifests itself in the conservative views they tend to hold. In fact, an
argument has been posited that the ‘most striking difference’ between conservatism and its counterpart,
‘concerns religion’ (see: W. Danhausser ‘Religion and conservatives’ Commentary, December 1985 —
<https://www.commentary.org/articles/werner-dannhauser-2/religion-and-the-conservatives/>
The essential argument here will be: it therefore follows, that if Kenya is indeed conservative, and religious, a
model that hinders their ability to freely practice religion could be deeply dissatisfying.
73
Sectioon 162, Penal Code, 1986.
74
EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus
Curiae), (2019) eKLR.
75
See an interview with CNN —<https://www.youtube.com/watch?v=lwTgU-RZLHQ>.
76
See the press conference —<https://youtu.be/iQS7U_rLDDk>.
Another arena where Kenya’s conservative and traditionalist views manifest themselves is in
the issue of marriage. In Kenya, polygamy, for instance is completely legal. The Marriage
Act is quite clear and exact when it defines the meaning of marriage – ‘marriage is the
voluntary union of a man and a woman whether in a monogamous or polygamous union and
registered in accordance with this Act’.77 Furthermore, and as broached in the preceding
paragraph, marriage is a right reserved only for those of the opposite sex – same sex marriage
remains illegal in Kenya. In this regard, the Kenyan people thought it so important that same
sex marriage be outlawed, that the Constitution of Kenya, which is Kenya’s supreme law, 78
only recognizes the right to marry a person of the opposite sex.79

The author also chooses to make reference to the traditional family, to back my stance that
the Kenyan society is traditionalist. When a family is broken up in Kenya, through divorce, it
is an act that is greatly frowned upon. A recent uptick in single parent homes, which threaten
the sanctity of traditional families, drove the President of Kenya to make remarks on why this
is a harmful development. He called for increased efforts to ‘save the Kenyan family’. He
said, “If unchecked, this trend shall destroy the fundamental character of Kenya” and that
Kenya ought to ensure that that “the Kenyan Family remains the strong and respected
institution that it has historically been”. 80 There are some other areas that could have been
reference further cement the authors position,81 however, those that have been mentioned
suffice, and there is little benefit to belabour the point further.

With such deep ties to the institutionalized religion, if Kenya were to follow, say, a neutral
secular model, it is foreseeable that a vast majority of the country’s population would suffer
some form of dissatisfaction. Owing to this, it appears to make sense then, that the State
ought not to disassociate completely from religious institutions, and that events like the
National Prayer Breakfast or offering subjects like CRE in schools, is an astute way the State
gives the Kenyan people that which is desirous to them.

77
Section 3, The Marriage Act, Act No. 4 of 2014.
78
Article 2, Constitution of Kenya, 2010.
79
Article 45, Constitution of Kenya, 2010.
80
Mbuthia B, ‘President Kenyatta sounds alarm over increase in single parent families’ Citizen Digital, 1 June
2022 —<https://www.citizen.digital/news/president-kenyatta-sounds-alarm-over-increase-in-single-parent-
families-n299280> on 6 June 2022.
81
For instance, another place the reader could look to is Kenya’s position on abortion, which to this day,
remains illegal for the most part, in Kenya. In this regard, see Article 26(4), The Constitution of Kenya (2010).
Furthermore, Section 158 of the Penal Code assigns a 14-year prison sentence for even attempting to procure an
abortion. However, for good measure, it must be noted that in two restricted circumstances, abortion is
permitted as per Article 26(4) of the constitution – abortion is illegal, save for when ‘in the opinion of a trained
health professional, there is need for emergency treatment, or the life or health of the mother is in danger’.
Further, Kenya finding a place for Kadhi Courts within its secular model is apt. Islam, like
most religions, is more than just a religion, it is a way of life. 82 However, unlike other
religions, Islam is quite resistant to secularism. Shadi Hamid posits that the reason for this is
twofold.83 Islam came to be following the revelation from God to Prophet Muhammad. 84
From then on, every act of Muhammad, whether the battles he fought, the land he claimed,
the way of life he chose to live, the governments he formed, and the political structures he
created, were all the workings of God.85 And so, the land, the life, the government, and the
politics were all directly of God’s choosing. Furthermore, unto Muhammed was placed the
Qur’an. This book seems more than just a scripture, but God himself making proclamations. 86
The Qur’an – a book authored by God Himself and delivered to Muhammad. And so, an
assertive or neutral secular model, for example, would seriously disaffect the Muslim
population, who have a unique history in Kenya.

Islam is deeply rooted to the history of the nation. 87 The influence of Islam is ever-present
within parts of the country, such as the Coast. Islamic history at the coast dates as far back as
the 8th century and structures of Muslim mosques since the 9th century have been found.88
Kadhi courts have existed in Kenya since 1895.89 When, in 1963, the 10 Mile Strip
Agreement was signed between Prime Minister of Zanzibar and Jomo Kenyatta, the place of
the Kadhi court was cemented even further. 90 The agreement ensured that the jurisdiction of
the Kadhi court is preserved.91

The Constitution states that the court’s jurisdiction is limited to issues of marriage, divorce,
and inheritance.92 Those who profess the Islamic faith believe that these three issues have
specific rules, given that they are critical in Islam. The importance given to marriage,
Islamically speaking, is considerable. In fact, a Muslim believes that, if they marry, for
82
Rev. T. Donlan, “Islam: A Way of Life”, One Magazine, Fall 1979. — https://cnewa.org/magazine/islam-a-
way-of-life-30173/
83
Hamid S. “Islamic Exceptionalism: How the Struggle Over Islam Is Reshaping the World”, St. Martin's
Griffin, Reprint edition 2017
84
Encyclopedia Britannica, Online Edition.
85
Islamically, Muhammad is said to have often received revelations and messages from God Himself. For
instance, the entirety of the Quran is said to have been authored by God, through revelations to Muhammad. See
The Quran, Chapter 42; Verse 51. Also see The Quran, Chapter 53; Verse 3-4 – ‘He (i.e., the Prophet) does not
speak of his own desire, it is nothing, but a revelation revealed’.
86
Hamid S. “How Islam Is Different from Other Religions”, The Times, June 2 2016 —
<https://time.com/4353838/islamic-exceptionalism/> on 6 June 2022.
87
Salvadori C, ‘Twelve mosques: the history of Islam in Kenya’ 38(1) Kenya Past and Present, 2009, 33.
88
Salvadori C, ‘Twelve mosques’, 34.
89
Constitution of Kenya Review Commission, The Kadhis Court’s – Setting the record straight, 2002.
90
10 Mile Strip Agreement, 1963.
91
10 Mile Strip Agreement, 1963, 3-4.
92
Article 170(5), Constitution of Kenya (2010).
example, they complete half their faith.93 And if they divorce, there are these very specific
rules under which a divorce is carried out; so important is the method of divorce, that God
dedicated a whole chapter in the Quran outlining the manner in which a lawful divorce is
carried out.94 And so, for Muslims, and Kenyan Muslims especially, having such avenues is
of great importance. To this extent, Kenya’s secular model is fitting to its context.

The preceding paragraphs sought to illustrate why Kenya’s passive-inclusive model is of

great utility to Kenya and Kenyans. However, there are further advantages that come from the
fact that Kenya’s model is that of secularity. These advantages arise simply out of the
advantages of using a model of secularity and not secularism.

In the formative part of the paper, the author made specific mention to the difference between
secularity and secularism. From the preceding chapters, Kenya’s model is one of secularity,
and not secularism. The author moves to argue that the choice to pursue this model is far
more beneficial, given the downsides of secularism. It is thus helpful, at this juncture, to
recall the differences between the two concepts, such that the reader may fully appreciate the
meaning, and the difference between ‘secularity’ and ‘secularism’. It is with this in mind that
the author chooses to rehash this difference here, as did the introduction. However, in this
section, the author delves into a much more detail about the difference itself, with the goal of
illustrating why one is better than the other. For the avoidance of any doubt, there is in fact a
marked difference between the two terms. What then is the difference?

The former of the above two, ‘secularity’, is merely an approach to state-religion relations
that avoids the state being tied to one particular religion. 95 In this case, then, it becomes clear
that ‘secularity’ is rather passive. It does not force there to be any particular ideology that the
state ought to follow, including secularism itself. What then is ‘secularism’? By contrast of
‘secularity’, ‘secularism’ is an ideology, that may be described as radical, given that it
vehemently endorses the pursuit of a secular order within a state. 96 The author says radical
also because secularism has been defined to be a ‘positive freedom ideal’, in that the idea
wilfully champions the utilisation of ‘coercive means of the state’ to further the ideal. 97 It is
easy to see why this has been said. One need not look further than France. France’s laïceté is

93
Al-Mu’jam al-Awsaṭ 992.
94
The Quran, ‘At-Talaq’ Chapter 65. ‘Talaq’ is defined to mean ‘divorce’.
95
Scharffs B, Secularity or secularism BYU Law Research Paper No. 15-16, 2011, 110
96
Scharffs B, Secularity or secularism BYU Law Research Paper No. 15-16, 2011, 110
97
Scharffs B, Secularity or secularism BYU Law Research Paper No. 15-16, 2011, 111
essentially a model of secularism,98 and in pursuit of this secular ideal, the French have been
known to have what has been termed a ‘militant secular model’.99

The ideology that is secularism, therefore, is much more positive than secularity – it imposes
beliefs, or lack thereof, that ought to be followed; it champions a strict separation of church
and state; and it often leads to the persecution of the church.100 On the other hand, secularity
seeks to foster a sense of harmony between church and state. This is not to say that the state
becomes a religious one. It is merely that the church and state do not oppose each other; they
merely co-exist in peaceful consonance.101 From the above, it is clear as to which, between
‘secularity’ and ‘secularism’ is more favourable for a country. Scharffs, whose work has been
instrumental in illustrating the divide between secularity and secularism, has categorically
favoured a model of secularity rather than secularism, stating:

‘in particular, that [secularity] concept is a fundamental component of liberal pluralism and a
bastion against religious extremism, and that [secularism] is a misguided, even dangerous,
ideology that may degenerate into its own dystopian fundamentalism.’ 102

In defining Kenya’s exact secular identity, one would first need to decipher whether Kenya
practices a model of secularity, or secularism. This was done earlier in the essay. Having
done that, it appears to be important to illustrate perhaps why, a model of secularism is less
than ideal. If one were to agree with authors such as Scharffs, or Gomez, then the model of
secularity would seem fitting. In this regard, if an investigation of the French model is done,
then it is easy to see why a model of secularity is far better suited. The author now moves to
illustrate why this secularism is lesser suited, because it is important for the reader to fully
appreciate secularism and its potential disadvantages, and also, investigating France gives a
practical example of secularism.

Fundamentally, secularism as an idea, greatly affects religious practices. This essentially

means that, where the idea of secularism is followed to the proverbial tee, there inevitably
would be some encroachment on how a person can practice their religion. 103 This paper

98
Scharffs B, Secularity or secularism BYU Law Research Paper No. 15-16, 2011, 114. See also Release of the
2003 Annual Report on International Religious Freedom at —<
https://2001-2009.state.gov/s/d/former/armitage/remarks/27404.htm> where the ambassador referred to France’s
President, and his concern to maintain the ‘principle of secularism’.
99
Robert "Liberté Religieuse en Europe: Discussing the French Concealment Act." Volume 18, no.3 Human
Rights Brief, 2011, 15.
100
Gomez X, ‘Church-State Relations from a Catholic Perspective: General Consideration on Nicolas Sarkozy’s
new Concept of Laïcité Positive’, 48(2) Journal of Catholic Legal Studies (2009), p. 211.
101
Gomes X, ‘Church-State Relations from a Catholic Perspective’ 211.
102
Scharffs B, Secularity or secularism BYU Law Research Paper No. 15-16, 2011, abstract.
opines that it is by affecting religion in the way secularism does, the problems begin to
appear.

In their chase to maintain ideological secularism, France passed Law 228 in 2004, which
banned Muslim girls from donning the headscarf in schools. By placing stringent bans on the
wearing of the head covering, the French girls who submit to practicing Islamic faith will
face significant limitations. From the act of limiting the manner in which a person can
practice their religion in the guise of preserving the sanctity of secularity, significant
problems arise for secularism in general. There is an argument that has previously been
advanced, that placing a ban on headscarves is in a way discriminatory. The main basis for
this argument is generally quite strong, and it is an argument that has been postulated in
judicial courts and even in the court of public opinion. In the wake of the headscarf ban in
France, many news outlets took to publishing lengthy articles on why this headscarf ban was
a blatant act discriminating indirectly against Muslim women who wanted to wear
headscarves and head coverings.104 The same trend continued in opinion pieces which
continued to feature on various websites and blog posts. The reasoning for why this was said
to be discriminatory against Muslim women is simple: by banning head scarves, a garment
popularly worn by Muslim women, the measure was disparately affecting one subset of
people in the community – Muslim women. It therefore seems as if the Muslim women were
singled out in this discriminatory act. This holds even truer in the French ban of headscarves
targeting Muslim school going girls.105 Herein, a measure that applied to all school going
girls, affected Muslim girls in a disproportionate manner. Not only could conventional
indirect discrimination apply, but one could go further and posit that this scenario sheds light
on the intersectionality of discrimination within secularism, as first posited by Tarunabh
Khaitan.106 This enforces the fact that the people were not being discriminated because they

103
See for instance, the so called ‘Anti-separatism Bill’ passed in France, which banned headscarves and other
religious symbols in a bid to ‘bolster the country’s secular system’ – See the Al Jazeera article ‘‘Law against
Islam: French vote in favour of hijab ban condemned’, 9 April 2021 —
<https://www.aljazeera.com/news/2021/4/9/a-law-against-islam> on 6 June 2022.
104
See various articles such as, ‘Where France’s new headscarf ban fits into history’ —
<https://time.com/6049226/france-hijab-ban/>, ‘Stanford scholars report French headscarf ban adversely
impacts Muslim girls’ — <https://humsci.stanford.edu/feature/stanford-scholars-report-french-headscarf-ban-
adversely-impacts-muslim-girls>, ‘Frenchwoman 'faced job discrimination over headscarf’ —
<https://www.bbc.com/news/world-europe-36782752> , ‘France: Headscarf Ban Violates Religious Freedom
By Disproportionately Affecting Muslim Girls, Proposed Law Is Discriminatory’ —
<https://www.hrw.org/news/2004/02/26/france-headscarf-ban-violates-religious-freedom>.
105
Law 2004-228 (2004).
106
Khaitan T, ‘The Point of Discrimination Law’ in Khaitan T, A theory of discrimination law, Oxford
University Press, 2015, 117-140.
are women, or because they are Muslim, but because they are Muslim women, and
intersectional discrimination is far more alarming.

The above epitomizes why secularism presents a potentiality of unideal scenarios propping
up. Having said the foregoing then, perhaps the reader is convinced that Kenya’s secular
model being that of secularity is ideal. By pursuing a model of secularity, rather than
secularism, Kenya has ceased the potential negative impacts of secularism becoming a
reality. Essentially, the argument here, was that secularism is restricting. In Kenya, a model
of secularism would struggle to be beneficial. The reasons for having said so, are the same as
the reasons provided earlier in the paper.

The author thus concludes that Kenya’s model of passive-inclusive secularity is befitting for
the context within which the Kenyan society is at the moment.

V. Conclusion

This paper has attempted to define the secular identity of Kenya. It began by demonstrating
the various different types of secular models that exist. Then, it transitioned into where Kenya
lies within the many models. It did so by taking an analytical look at how the Kenyan State
has interacted with religion. It found, after the analysis, that Kenya practices its own brand of
passive-inclusive secularity. Still, they remained some questions as to whether this was useful
if one were to contextualize the model with the Kenyan society. The conclusion, here, was
that despite some hinderance from the Atheist problem, the model is well suited to Kenya.

As such, the paper succeeded in meeting both of the objectives that were set in the
introduction – it found Kenya’s secular model, and it concluded that the passive-inclusive
secular model is apt for Kenya. This model, as this paper has demonstrated, makes sense to
the extent that it allows for a majority of Kenyans, who are religious, to enjoy life in a State
that celebrates the religious nature of its people. Kenya does not have a state religion, but it is
a State in which religion remains included, allowed, and the State accepts religious
expression in the public sphere.

The author is alive to the potentiality that there may those who disagree with the arguments
made in this paper. The author foresees three potentialities: those who disagree with the idea
that Kenya is at all secular; there may also be others who agree with the premise that Kenya
may be secular, but the model outlined in the paper is flawed; and finally, those who agree
with the model identified, but disagree with the suitability of it. In any case, any response
made to this paper is likely to further increase scholarship in the area and is therefore an
encouraging development.

Such a discussion is of great import as it helps in furthering the understanding of Article 8 of

the Constitution. It also tackles a critical question regarding the place of religion in Kenyan
society, and whether this place is suitable. Nonetheless, and despite the authors attempt to
find answers, some questions still go unanswered in the topic of secularity and Kenya. For
instance, it may be interesting to study whether the overt and continuous mention of God by
sitting Presidents affects Kenya’s secularity, or whether such mentions are merely individuals
exercising their constitutional right to practice their religion. This discussion may only be
fruitful, however, if it is first understood, what Kenya’s secularity actually is. This paper has
attempted to satisfy the question of what Kenya’s secularity is.