On regulating churches

No one wants restraints on what they can or cannot do. In a perfect state of nature, one would be absolutely free to act as one saw fit and others would be absolutely free to react to one's actions, if those actions affected them. We don't live in a perfect state of nature, better known as anarchy. We are a nation of laws, foremost being the Constitution, and those laws define our rights as well as enforce liabilities upon us.

That is the simple explanation. But with the proposal to regulate faith-based societies, the Attorney-General has responded to a situation that has gotten out of hand. Kenyans profess to be a faith-based people, and the allusion to "Almighty God" in the constitution's preamble is proof enough of this. It is therefore, a little distasteful to many Kenyans who profess a faith top hear that the manner in which they practice their faith is set to be regulated, because they labour under the illusion that it has never been regulated.

If one wishes to worship, there is no law that says how that worship is to be conducted. If one wishes to believe in a deity, there is no law that says what that deity should be or how that belief is to be expressed. If one wishes to worship in community with others, there is no law that says how that should be done. However...

The Income Tax Act provides for exemptions from the payment of income tax if one is a registered charitable organisation. Most charitable organisations, if not all, are registered under two principal statutes: the Societies Act and the Public Benefits Organisations Act, 2013. Many faith-based organisations, such as churches, are registered under the Societies Act. The Societies Act provides for the conditions that such organisations must satisfy in order to be registered. It is this registration that allows, for example, churches to operate without paying income tax on their income.

What the Attorney-General has proposed is not a restriction on who, how, where and when people can worship; he has proposed that organisations that facilitate the worship of the people must be registered in a certain manner to protect the people from harm. In the recent past, Kenyans have been injured by leaders of organisations that purport to lead them in worship. Victor Kanyari's case is only the most notorious. The Attorney-General's proposal is well within his mandate and it is a timely one.

The single most important status these organisations, and their leaders, wish to protect is their tax-free status based on their registration as charitable orgabnisations or bodies under the Societies Act. If they are compelled to pay income tax, just like other Kenyans, that will not inherently affect their congregations' right to worship in any way. Therefore, if they do not wish to be bound by the provisions of the Societies Act and the Regulations made under the Societies Act, there are two options: they can apply for their registration as not-for-profit societies rescinded and wind up their operations or they can register as for-profit organisations, just like any other business.

Where the people are at risk, the State has an interest to know the full details of the organisations and the organisations' leaders or managers that pose that risk. Faith-based organisations have demonstrated that they pose a risk to the people and self-regulation among them has not mitigated that risk. It is imperative that if a person purports to lead or manage an organisation that calls on the people to comply with its own rules on the interpretation of canon law, the State must be informed of the identity of that leader or manager, his or her credentials, his or her antecedents and the nature of his or her intentions. The organisation he or she leads or heads must fully comply with the law on disclosure of information, especially the organisation's other leaders or managers, staff and financial details. If they refuse to comply, the Attorney-General and the Director of Public Prosecutions should enforce the law on unlawful associations to its fullest extent.