ABSTRACT:
The Shakahola Tragedy that occurred around April 2023 shocked the entire world when over four hundred human bodies were discovered in Shakahola Forest, Malindi county in Kenya. Police investigations revealed that the victims had succumbed to starvation and blunt force trauma. They attributed the deaths to one Paul McKenzie, a Kenyan pastor. McKenzie purportedly convinced his congregation that if they fasted until death, they will meet God. He was arraigned before the court and charged with inter alia manslaughter, which he pleaded not guilty. This incident has led to public uproar on the state of religious autonomy in the country. Thus, the objectives of this paper are to delve into the human rights implications of freedom of worship within the context of the Shakahola Tragedy, highlighting the need for truth, justice and reparations for the victims and their families. Further, it will explore the legal frameworks and the roles of various actors, including international organizations and civil society groups, in preventing religious extremism and protecting the exercise of freedom of worship. The paper will employ doctrinal research methodology to critically analyse the Kenyan and international legislations and regulations governing freedom of worship. Additionally, it will use the analytical research methodology to compare the Kenyan legal framework with the international legal framework on freedom of worship.
Key words: freedom of worship, religious extremism, accountability, human rights.
1.0 INTRODUCTION
Amid the growth of tragedies involving religious extremism such as the Shakahola incident in Kenya, a fundamental question arises: is violence propagated by religion, or do individuals resort to violence while hiding behind religious beliefs? This poignant question lies at the heart of broader debates surrounding religious autonomy, extremism and human rights which will be discussed in this paper.
2.0 BACKGROUND OF THE SHAKAHOLA TRAGEDY
Around April 2023, authorities found themselves witnessing one of the most gruesome and disturbing crime scenes in the Kenyan history. This came after a man lodged a complaint to the police station alleging that his wife and daughter had left Nairobi, Kenya, to join the Good News International Ministries in Kilifi County headed by one Paul Mackenzie but they never returned.[1]
Following investigations by the police, they were led to Shakahola forest in Kilifi county which harboured the aforementioned church. A discovery was later made by the police of emaciated members of the society and shallow graves. Accordingly, they started exhuming the bodies buried under the shallow graves. It is estimated that authorities exhumed over 400 bodies from the sprawling forest after months of search efforts.[2] Dr Johansen Odour (the government’s chief pathologist) noted that from the autopsies conducted, most of the exhumed bodies were found to have died of starvation while a few others had strangulation marks or injuries caused by blunt trauma.[3]
However, a few members of the religious group were found alive and rescued by the police. Most of them averred that their Pastor, Paul Mackenzie told them that the world will end soon, therefore, they need to starve themselves to death in order to meet God. Consequently, the police arrested and charged Mackenzie with inter alia: murder, manslaughter, torture and other terrorism-related crimes.[4] Additionally, they also charged him with radicalization and commission of terrorist acts, all to which he pleaded not guilty.
This bizarre incident led to public decry on the status quo of religious autonomy in the country, most citizens demanding answers from the government as to their general safety in the hands of religious extremists. Additionally, human rights organisations such as Amnesty International Kenya and Muslim Human Rights (Muhuri) have demanded accountability from the government of Kenya.[5]
Therefore, after the matter was presented in the corridors of justice, the Court has found itself with a completely unique set of facts which is unprecedented. Wherefore, this case raises issues such as: firstly, the need for comprehensive legal guidelines on limitation of religious autonomy in Kenya, secondly, the extent of judicial discretion in dispensing such unprecedented matters and lastly, the roles of non-state actors in matters involving violations of human rights.
2.1 CONTROVERSIES SURROUNDING MACKENZIE’S TEACHINGS
As has been alleged by several survivors of the Shakahola ordeal, the leader of the Good News International Ministries, Paul Mackenzie taught his disciples to fast until they can “meet God”, which led them to their deaths. To justify their need to fast, he told them that the world is going to end soon, thus, the only way their disciples could secure a place in Heaven is by fasting to death.
Further investigations into the Shakahola tragedy discovered that armed militia (both female and male) were recruited to supervise and enforce the intense fasting regime.[6]The militia would dig the shallow graves where the ones who succumbed to starvation were buried. According to the Kenya National Commission on Human Rights (KNCHR) reports, those who defied the directive of fasting or attempted to escape were either strangled or clobbered to death by the militia.[7]
The followers were then convinced to dispose of their earthly possessions and give the proceeds to the church.[8] After being dispossessed of their livelihood and life savings, they were persuaded to destroy their vital documents including birth certificates, national identity cards, passports, title deeds and academic documents.[9] They were isolated from their family members and confined in the desolate Shakahola wilderness which had no electricity, telephone service, schools or hospitals.
From the foregoing teachings, significant controversies, both legal and ethical, were born. The controversies have been profound so far, touching on the issues of religious freedom, ethical responsibilities, public safety and the appropriate boundaries of religious teachings. The Constitution of Kenya emphasizes the sanctity and protection of human life which has made the Shakahola tragedy very contentious. Giving birth to questions such as; what crime has the pastor committed? And generally, what is the role of law in protecting the freedom of worship?
3.1 THE ROLE OF LAW IN PROTECTING FREEDOM OF WORSHIP
3.1.1 THE CONSTITUTION OF KENYA, 2010
Kenya generally holds a strong record on religious freedom. The Constitution itself distances the state from the church. Article 32 accords every person the freedom of worship under the following terms: firstly, everyone has the freedom of conscience, religion, thought, belief and opinion. Secondly, every person has a right to manifest any religion or belief whether publicly or privately.[10] Thirdly, discrimination against any person based on their religion or belief has been strictly prohibited. Lastly, no one can be compelled to do or omit to do any act that is contrary to that person’s belief or religion.[11]
3.1.2 INTERNATIONAL INSTRUMENTS
It is trite law that international instruments form part of the laws of Kenya by dint of Articles 2(5) and 2(6) of the Constitution. The former Article provides that general rules of international laws shall form part of the laws of Kenya and the latter states that treaties and conventions ratified by Kenya shall form part of the Kenyan law.[12] Tom Kabau posited that the need for international instruments is to promote the interpretation of the rights established under the Constitution of Kenya,2010 in a progressive manner.[13] Therefore, the following international instruments are crucial to the discussion:
3.1.2.1 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) (1976)
ICCPR is very keen on safeguarding the freedom of religion. Article 18 reiterates Article 32 of the Constitution, it provides that everyone has the right to freedom of thought, conscience and religion.[14] This right includes the freedom to have a religion or belief of one’s choice, and freedom to manifest one’s religion or belief in worship, observance, practice and teaching.[15]
However, the same Article has a proviso, it posits that the freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.[16] This proviso is noteworthy because it clearly defines the extent to which the freedom of religion can be exercised, at which point it can be limited by the state.
4.1 CHALLENGES IN ENFORCING LAWS TO PROTECT FREEDOM OF WORSHIP
4.1.1 ARBITRARINESS IN RELIGIOUS INSTITUTIONS CONDONED BY THE CONSTITUION
By examining the views of the Founders of the Constitution we might understand why even today we feel religious freedom is so integral to the social and political fabric of our nation as well as inform us about the challenges to religious freedom that have nonetheless been a part of this nation’s history.[17]
Therefore, it can be noted that the views of the Founders under Article 32 to completely separate the State from religious affairs propounds a very undesirable outcome. It has given an immense amount of autonomy to the churches to operate and teach as they please without the state interference. Thence, it can be said that from the onset of things, the Constitution failed to limit the religious institution thus granting them the right to a self-determination. It has embraced the individual’s decision-making sphere, as well as the right of the religious community to make decisions.[18]
5.1 INTERSECTION OF MACKENZIE’S TEACHINGS WITH OTHER HUMAN RIGHTS
Article 18 of the ICCPR has an unconditional protection of the forum internum – the person’s inner realm of thinking and believing however, the same Article provides for the limitation of the forum externum – external manifestation. Therefore, the freedom of religion does not supersede other rights.
A close reflection on Mackenzie’s teachings on fasting to death will reveal that it pierces directly to the heart of the right to life itself. The sanctity of the right to life has been enshrined under Article 26 of the Constitution. It is the most cardinal right to human beings. In fact, General Comment No.36 on the Right to Life stated that life is the most precious right that inheres in every human being, it is a prerequisite for the enjoyment of all other human rights and its content forms the base for other human rights.[19]
Further, his actions can draw us to only one conclusion, that his actions amounted to nothing less than torture. Article 25 of the Constitution grants every person the right to freedom from torture, this right cannot be limited at any time.[20]This provision has also been buttressed by Article 4 and 7 of the ICCPR and Article 2 of the Convention Against Torture and other Cruel Inhuman or Degrading Treatment (acceded by Kenya on 1st May 1972). Article 1 of the Convention Against Torture entails the intentional infliction of severe physical and/or mental anguish by one person to another. Starvation is the deprivation of food for so long that the human body suffers and eventually dies.[21]Dr Omar Abdel-Mannan, a paediatrician and neurologist who volunteered in Gaza said that it is a very cruel and slow death.[22]
Additionally, his intersected with the victims’ right health as encapsulated under Article 43 of the Constitution. The victims had the right to the highest attainable standard of health, which includes the right to healthcare services.[23] As defined under the Health Act, health refers to a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.[24]Not only did Mackenzie coerced his victims to starve to death in the name of religion, but also confined them in a very remote are, far from social amenities such as hospitals. This deteriorated the physical and well-being up to the point of their deaths.
6.1 RIGHT TO JUSTICE AND REPARATIONS
Victims’ right to access to justice is a fundamental human right and a principle of the rule of law which should never be derogated from. The Kenyan Constitution and other international instruments enshrine the right to access of justice which include inter alia, the right to effective remedy and the right to a fair trial. Therefore, the state has a duty to ensure it provides adequate avenues for the Shakahola victims to access the judicial systems and have their case heard and disposed of expeditiously.
Although the Constitution provides for the freedom of worship, the ICCPR requires one to manifest the same with due regard for the rights and freedoms of others and within the confines of the general interest.[25] Therefore, the state has been given the duty to protect its citizens from harm by ensuring that the religion is not used to affect public safety, order, health, fundamental health and freedoms of others.[26]
The circumstances surrounding Shakahola tragedy are more or less akin to terrorism. Lewis and Murdock acknowledged that terrorism affects the enjoyment of fundamental human rights, particularly the rights to life, liberty and physical integrity.[27]Accordingly, due to the state’s failure to protect its citizens from this religious extremism, it ought to come up with a strategy to mitigate the impacts felt by the Shakahola victims.
Section 2 of the Victim Protection Act defines a victim as any natural person who suffers injury, loss or damage as a consequence of an offence.[28]In the interest of justice, the Act accords every victim the following rights; the right to present their trial to court and to have that trial concluded without unreasonable delay, the right to security from the state which includes psychological support, medical treatment, a safe shelter and being placed with their relatives. Most importantly, the victims have the right to restitution or compensation.[29]
The Act allows the victims to seek compensation for economic loss occasioned by the offense, loss of property, personal injury and the medical expenses.[30]The court is mandated to award compensation to the victims in form of financial compensation for the expenses incurred as a result of the loss or personal injury. The compensation awarded therein is to be charged from the Victim Protection Trust Fund.
Furthermore, the Criminal Procedure Code, CAP.75 of the Laws of Kenya, provides for the issuance of Victim Impact Statements, which serves as an opportunity to provide information for the judge to consider while sentencing the offender as well as allow the victims to explain the harm they have suffered from the commission of the crime in question and the financial consequence thereof.
From the lessons borrowed from the Israeli experience on compensation of harm caused by terrorism, not only are the direct victims entitled to compensation but also the relatives of the deceased victims. The Victims of Hostile Action (Pensions) Law, 1970 provides for reimbursement of burial expenses incurred by the family members o the victims that died due to hostile acts of terrorism. Further, the widow/widower is given additional benefits of psychological and financial assistance.[31]
7.1 INTERVENTION BY DIFFERENT ACTORS IN PREVENTING RELIGIOUS EXTREMISM
In order to appreciate and acknowledge the roles of non-state actors (NSA) in countering religious extremism and terrorism at large, we need to be guided by the provisions of Article 1 of the UN Declaration on Human Rights Defenders which states:
Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.[32]
These non-state actors are very crucial to the society especially when dealing with religious extremism and terrorism because they are self-motivated and hell bound to promote and protect the fundamental freedoms of others. Their inputs have been recognised in dealing with the rise of violent extremism and peace building among different nations.
In Kenya, NSA can be traced back to the early 1920s when welfare associations such as the Kavirondo Tax Payers Association were tasked to advocate for human rights.[33]Currently, they play they play huge role in finding the common ground between the government and the interests of the citizens.
As posited by Moraa, NSA, particularly NGOs usually try to understand the root causes of the terrorism and violent extremism. Thus, their main goal in countering violent extremism a has been targeted at empowering the community on self-reliance and resilience towards terrorism through various platforms.[34]Understanding of the emotional and psychological aspects in terrorism has enabled them to develop and implement grassroot strategies in fighting against terrorism.[35] Therefore, they offer social and economic grants to those people who have urges to engage in religious extremism.
As Joachim and Dembiski also pointed out, non-state actors, particularly Non-Governmental Organisations (NGOs) really matter in the initial stages of policy making, that is, setting out the agenda and the implementation of the policies.[36]This position was also reiterated by Voltolini who agreed that NSA act in the agenda-setting stage and become involved in the later phases of the policy cycle via litigation thus forcing policy change.[37]
Further, the NSA have been involved in various capacities trying to make unique contributions in the war against terrorism and religious extremism. For instance, in 2018, NGOs formed the Search for Common Ground (SFCG) where several NGOs collaborated to come up with a single project, INUKA, which was designed to foster trust and co-operation between all stakeholders involved in terrorism in order to bring an end to it. This initiative aimed to build capacity in the community leaders and the NGOs to, deal with the local security challenges, strengthen collaborations between various security forces and communities.[38]
The Human Rights Council has equally acknowledged the importance of NSA (including faith-based actors) and it encouraged them to promote interfaith engagement, oppose essentializing narratives about religious or belief communities and lastly, refrain from and publicly denounce hatred and incites discrimination, hostility, or violence against persons based on religion or belief.[39]
Further, religious leaders ought to provide surveillance and report any signs of radicalization among their community members. In Mombasa, imams have been asked to monitor and report on suspicious activities within their community. When leaders comply, however, they risk being perceived as agents of the government and as no longer credible in their community.21
Faith-based leaders and influencers should use their authority to promote inclusive, peaceful and just conflict resolutions and to prevent tensions arising, particularly where conducted in the name of religion or belief.
8.1 RECOMMENDATIONS FOR THE STATE TO PROTECT BOTH THE FREEDOM OF RELIGION AND OTHER RIGHTS CONCURRENTLY
The most imperative recommendation would be for the state to strengthen good governance, human rights and the rule of law. This will create an enabling environment for the civil societies/NSA and eventually reduce the cases of religious extremism. The state can do this by; reviewing its existing national legislations, policies and strategies aimed at preventing religious extremism to ascertain whether or not they are firmly grounded in respect for human rights and the rule of law. They could further provide access to justice for all the victims of religious extremism.
Additionally, I would recommend the state to develop a National Plan of Action for Preventing Violent Extremism. The action plan will set the national priorities for addressing the local causes of violent extremism and complement the national counter-terrorism strategies already in place. While developing this plan, the state should consider including non-state actors (NSA) such as civil societies, media and religious leaders to counter religious extremism.
Further, I wold recommend the government to mobilize resources to the existing funds dedicated to countering religious extremism or terrorism at large. The UN Sustainable Development Goals provide goals for states to prevent violence and promote peaceful environments.
Penultimate, the state should think beyond theology. Neutralizing extremist interpretations of religion is often times than not less effective to combat religious extremism. Therefore, the state should try as much as possible to empower civil groups and community leaders to tackle the causes of these extremist behaviours from the root cause such as corruption, socio-economic inequalities and peacebuilding. They could cement this by developing a joint and participatory strategies to prevent emergence of such instances of Shakahola. Lastly, they could provide medical and psychological and legal service support to the communities affected by religious extremism including providing shelter for the victims.
9.1 CONCLUSION
The Shakahola Tragedy serves as a stark reminder of the problems that are inherent in the exercise of religious freedoms. This paper has delved into the human rights implications of the Shakahola incident, highlighting the urgent need for accountability, justice and reparations for the victims and their families.
The paper has also looked at the national and international legal framework and we have concluded that there is need for a comprehensive measure to prevent similar atrocities from happening. The paper has also highlighted the importance of ensuring religious autonomy and other fundamental human rights are equally recognised and protected. Also, it has acknowledged that religious authority could have devastating consequences.
Moreover, the paper has also demonstrated that non state actors play very critical roles in encountering religious extremism and promoting accountability from the government. Encouraging dialogue and collaboration between the government and NSA can contribute to effective development of effective strategies to safeguard people from manipulation and harm under the guise of religion..
In conclusion, the Shakahola Tragedy serves as a call to action for all the stakeholders to uphold the rule of law. There is an urgent need to address the root causes of extremism and to promote inclusive societies so that we can strive towards a future where religious freedoms are respected and human rights are upheld.
REFERENCES
[1] Dorcas Wangira, ‘Kenya starvation cult: My wife and six children followed Pastor Mackenzie' BBC News (2 May 2023, Malindi)< https://www.bbc.com/news/world-africa-65423645 > accessed 18 April 2024
[2] Bethlehem Feleke, ‘Alleged Kenyan cult leader and suspects to face charges, prosecutor says’, CNN World (16 January 2024, Nairobi)< https://edition.cnn.com/2024/01/16/africa/alleged-kenyan-cult-leader-to-face-charges-intl> accessed 18 April 2024
[3] Beth Nyaga, ‘Shakahola: Deterioration of bodies compromises determination of cause of death’, KBC News (22
<https://www.kbc.co.ke/shakahola-deterioration-of-bodies-compromises-determination-of-cause-of
death/#:~:text=Dr%20Oduor%20says%20in%20previous,injuries%20caused%20by%20blunt%20objects.> accessed 18 April 2024
[4] Sarah Carter, ‘Self-proclaimed pastor accused of leading starvation cult in Kenya pleads not guilty to 191 child murders’ (CBN News, 6 February 2024) < https://www.google.com/amp/s/www.cbsnews.com/amp/news/kenya-cult-starvation-pastor-paul-mackenzie-pleads-not-guilty-191-child-murders/ > accessed 18 April 2024
[5] Houghton Irungu, Omar Elmawi, ‘Joint Muhuri and Amnesty Kenya Statement on the Shakahola Village Religious Cult Massacre’ (Amnesty Kenya, 25 April 2024) < https://www.amnestykenya.org/joint-statement-on-the-shakahola-village-religious-cult-massacre/ > accessed 20 April 2024
[6] Dominic Kabiru, ‘KNCHR’s monitoring findings of the Shakahola Tragedy; “Mashaka ya Shakahola”’ KNCHR Articles (22 March 2024) < https://www.knchr.org/Articles/ArtMID/2432/ArticleID/1191/KNCHR%E2%80%99s-MONITORING-FINDINGS-OF-THE-SHAKAHOLA-TRADEGY-%E2%80%9CMASHAKA-YA-SHAKAHOLA%E2%80%9D > accessed 22 April 2024
[7] Ibid
[8] Dominic Kabiru, ‘KNCHR’s monitoring findings of the Shakahola Tragedy; “Mashaka ya Shakahola”’ KNCHR Articles (22 March 2024) < https://www.knchr.org/Articles/ArtMID/2432/ArticleID/1191/KNCHR%E2%80%99s-MONITORING-FINDINGS-OF-THE-SHAKAHOLA-TRADEGY-%E2%80%9CMASHAKA-YA-SHAKAHOLA%E2%80%9D > accessed 22 April 2024
[9] Ibid
[10] The Constitution of Kenya 2010, art 32
[11] The Constitution of Kenya 2010, art.32
[12] The Constitution of Kenya 2010, art. 2(5) and art. 2(6)
[13] Tom Kabau & Chege Njoroge, ‘The application of international law in Kenya under the 2010 Constitution: critical issues in the harmonisation of the legal system’ [2011] Unisa Press Journal
[14] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art.18(1)
[15] Ibid
[16] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art. 18(3)
[17] Clifford Wallace, 'Challenges and Opportunities Facing Religious Freedom in the Public Square’ (2005) 2005 BYU Law Review
[18] Merilin Kiviorg, ‘Freedom or Religion or Believe: the Quest for Religious Autonomy '(PhD Thesis, University of Oxford 2011)
[19] UN Human Rights Committee (HRC), General comment no. 36, Article 6 (Right to Life), UN Doc CCPR/C/GC/35, 3 September 2019, <https://www.refworld.org/legal/general/hrc/2019/en/123145 > [accessed 24 April 2024]
[20] Constitution of Kenya, 2010, art. 15
[21] Simon Speakman, ‘Starvation: anatomy of a very cruel and slow death’ Al Jazeera (27 March 2024) <https://aje.io/k3gdq8> accessed 22 April 2024
[22] Ibid
[23] Constitution of Kenya, 2010, art. 43(1)(a)
[24] Health Act, No.21 of 2017, Laws of Kenya, s. 2
[25] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art. 18(3)
[26] Dominic Kabiru, ‘KNCHR’s monitoring findings of the Shakahola Tragedy; “Mashaka ya Shakahola”’ KNCHR Articles (22 March 2024) < https://www.knchr.org/Articles/ArtMID/2432/ArticleID/1191/KNCHR%E2%80%99s-MONITORING-FINDINGS-OF-THE-SHAKAHOLA-TRADEGY-%E2%80%9CMASHAKA-YA-SHAKAHOLA%E2%80%9D > accessed 22 April 2024
[27] Christopher Lewis and Kevin Murdock, ‘the role of government contracts in discretionary reinsurance markets for natural disasters’ (1996) 63(4) The Journal of Risk and Insurance
[28] Victim Protection Act, NO.17 of 2014, Laws of Kenya, s. 2
[29] Ibid, s. 24(1)
[30] Ibid, s. 24(2)
[31] Victims of Hostile Actions (Pensions) Law, 1970
[32] United Nations General Assembly, Human rights defenders in the context of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms : resolution / adopted by the General Assembly, (10 February 2016) UN Doc A/RES/70/161 , < https://www.refworld.org/legal/resolution/unga/2016/en/109322 > accessed 24 April 2024
[33] Faith Moraa, ‘Violent extremism and terrorism in Africa: role of non-governmental organisations in Kenya and Nigeria’ (LLM Thesis, University of Nairobi 2020)
[34] Ibid
[35] Ibid
[36] Joachim Jutta and Matthias Dembinski, ‘A contradiction in terms? NGOs, democracy and European foreign and security policy’ (2011) 18(8) Journal of European Public Policy
[37] Voltolini B, ‘The role of non-state actors in EU policies towards the Israeli-Palestinian conflict’ [2012] The Institute for Security Studies
[38] Ibid
[39] United Nations Commission on Human Rights (UNCHR) (Sub-Commission) Report by Special Rapporteur Ahmed Shaheed (3 June 2022) UN Doc A/HRC/49/44 < https://undocs.org/A/HRC/49/44 > accessed 22 April 2024
