Atheists' case for changing our National Anthem falls flat

A few days ago, a new move by the Atheists in Kenya Society hit the headlines once again: they wanted God’s name removed from the National Anthem.

They wanted God removed from the public sphere.

The petition said:

Our National Anthem begins with the words "Oh God of all Creation." Not all Kenyans believe in the existence of a God. Removing 'God' from the Kenyan National anthem will make the national anthem inclusive. It will also promote secularism. Kenyans must endeavor (sic) to keep a separate wall between religion and state in line with Article 8 of the Constitution.

From a legal perspective, the atheists’ petition is misadvised and misconstrued. It actually touches on the absurd, with a worrying touch of intolerance.

Just imagine if all those who voted "No" in the 2010 constitutional referendum were to say that this is not their Constitution because it does not represent their will and their beliefs?

It would be a straight contradiction of true democratic dialogue and principles.

Even worse, we would be tempted to ask the atheists if they have ever dared to touch a dollar bill, which reads “In God we trust”.

The atheists got it all wrong here. Democracy is the rule of the majority with the concurrent respect of minorities. Like it or not, the majority carries the day, and everyone else has to abide by their choices.

Of course, what the majority cannot do is to oppress losing minorities.

VULTURES GATHER

In this case, the atheists should have sought an alternative avenue to the legal one. They should have asked for political advice from some of our seasoned politicians.

They have already achieved the incredible, smooth removal of God from one of the most prominent religious public gatherings — our funerals.

God’s removal from funerals has been achieved smoothly, progressively and cleverly. Where the corpses are, the vultures will gather. Lo and behold! This has become so true.

Funerals have become such politically attractive hotspots that members of Parliament in certain parts of the country have hired representatives whose job description is to attend any funeral taking place in their constituency and bring the message of "political condolences" closer to the people.

These politicians do not care about the deceased’s person, family or legacy. Often, they never met the deceased when she or he was alive, and they have never been to that home before.

Funerals are simply the cheapest rallies for politicians; a golden chance to win over some ready-to-listen, unsuspecting or prospective voters for free. They only care about the "speech moment", and leave immediately after.

Where the corpses are, the vultures will gather, more so in an election campaign period. It is just a matter of opportunity which should not be wasted.

FUNERAL SPEECHES

Funerals bring people together who are ready to listen, and the status of the deceased is measured by the number of politicians who attend and speak.

In fact, a time will come when an entrepreneurial funeral home will include a fee for political speeches in the bill, organised and coordinated by the funeral home and paid for by the family committee.  

Well, it seems the atheists got it all wrong. They could have asked those seasoned politicians how to remove God from public life. It would have been easier than the legal way, which is way more difficult, as I explain below.

God is mentioned some fourteen times in our Constitution. In eleven of them, contained in the Third Schedule, God could be replaced by words such as “solemnly affirm”.

The other three times God is there to stay. In the preamble God is mentioned twice. “Acknowledging the supremacy of the Almighty God of all creation” and at the end, “God bless Kenya”.

Finally, God is mentioned again in the anthem “O God of all creation”.

Mistakenly, the atheists based their petition on Article 8, which established the principle of separation of church and state. This is freedom of religion, but not freedom from religion, as worldwide jurisprudence has reiterated throughout time.

CONSTITUTIONAL PLURALISM

Article 8, which reads, “There shall be no state religion”, is the shortest article of the Constitution. This is the basis for the atheists’ petition, but it is more complex than they put it.

The discussion on religion and the state is indeed ancient, spanning many centuries and diverse thought systems, from ancient Greece to our days.

Religious liberty has been one of the most controversial and broadly recognised definitions. For example, Article 9 of the International Covenant on Civil and Political Rights says:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion of belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

Separation of state and religion has been looked at from many different perspectives and from a constitutional law angle there have been several theories.

There is constitutional pluralism or plural establishment, for example in Finland, a nondenominational state with two state churches, namely the large Lutheran Church of Finland and the small Orthodox Church of Finland.

Constitutional pluralism is where the Constitution does not establish any religion, but religious plurality is formally recognised and integrated in political processes in terms of consultations, deliberations and decision-making.

In such a regime, the roles of religious institutions in the provision of education, healthcare and welfare services are officially recognised and subsidised.

This happens for example in the Netherlands, Belgium, Australia, Germany and to a great extent, Kenya.

EXPRESSION AND ASSOCIATION

There is non-establishment and private pluralism such as in the United States of America, though this is arguable in light of the factual circumstances in that country.

Article 8 of the Constitution of Kenya establishes in few words the principle of separation of state and religion. This principle was superbly articulated by Joseph Weiler before the European Court of Human Rights, in the case of Lautsi v. Italy.

Freedom of religion encompasses many other freedoms like the freedom of expression, in propagating one’s beliefs, or the freedom of association, where religion is exercised in a community and so on.

However, the slogan "separation of church and state" may appear deceptively simple, when in fact courts have grappled with the interpretation of this principle.

The First Amendment of the Constitution of the United States of America provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

This Amendment brought into play three key concepts: separation, accommodation and neutrality.

Justice Black, in the US Supreme Court decision of Everson v Board of Education, delivered the opinion of the court stating: “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church…”

More recently, Chief Justice Burger’s opinion in Lemon v Kurtzman contextualised earlier opinions by admitting that: “We must recognise that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”

WALL OF SEPARATION

The question then arises: What is the scope of the separation of religion and state? Does it only mean that government may not coerce an individual to participate in religious exercise, or does it extend to government activities that acknowledge religious observances/traditions?

When a Christian, Muslim or Hindu religious leader delivers the opening prayer at the celebration of a public holiday, as is common in Kenya, does this interfere with the religious liberty of non-Christian people in the gathering?

What if that pastor is paid by the government out of taxpayers’ money, is that constitutional?

This question gives rise to a diversity of opinions. For example, the Everson case, which introduced the phrase “wall of separation” actually sustained a New Jersey state statute that provided public funding for transportation of children attending Catholic schools.

Tensions usually arise in the relationship between religion and state. If a state insists upon the notion of strict neutrality towards religion, this may end up hindering the freedom of religion rather than promoting it. Neutrality, in itself, is already a position.

ESSENTIAL SERVICES

As time goes by, modern jurisprudence has developed from separation to the principle of cooperation. The principle of cooperation is based on the recognition of the religious nature of society and the potential ramifications of insisting on a strict separation of state and religion.

In fact, Article 8 acknowledges the existence of religion by establishing “no state religion.”

The late Justice Scalia, in Van Orden v Perry, noted that there is nothing unconstitutional in a State’s favouring religion generally, honouring God through public prayer and acknowledgment, or, in a non-proselytising manner.

In many countries, especially countries with no efficient social welfare system, for instance developing countries, religious organisations have undertaken the task of providing essential services like healthcare and education, among others.

This reality gave birth to the principle of subsidiarity, where the state cooperates and supports social care institutions and social welfare service providers. This support may be in the form of public funding or tax deductions or credits.

In Kenya, the Bomas Draft had already articulated church-state separation and this provision remained unchanged in the 2010 Constitution. The idea behind this article was precisely to protect religious pluralism and freedom of religion, but not, as I said above, freedom from religion, as happens in atheistic states.

ORDERING DOMESTIC LIFE

In fact, the mention of God throughout the Constitution, and the recognition of Kadhis' courts, is clear evidence that religion is legally and constitutionally recognised in Kenya.

I would advise the atheists to look also into local jurisprudence, such as the Ali bin Abubakar v Republic case, or the Juma v Siri Guru Singh Sabha case, where Justice Akiwumi held that the constitutional right to manifest one’s religion by wearing the headscarf should not be infringed upon.

Alexis de Tocqueville, in his masterpiece Democracy in America, stresses the importance of religion in ordering domestic life and directing the community’s heritage. De Tocqueville observed that while the law permits Americans to do what they please, religion should prevent them from doing what is rash or unjust.

Whatever the case, I respect atheists, even though I may disagree with their position. I am ready to die to defend their right to their own disbelief.

Now, I worry thinking that they may not be ready to reciprocate.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi