Individuals who operate unregistered churches and other religious organisations risk a fine of up to Sh5 million or three years in jail or both if a proposed Bill becomes law in its present form as the government moves to regulate the sector.
Further fines of Sh10 million or a prison sentence of five years could await those who use misrepresentation, coercion or undue influence in religious conversion or recruitment.
The Religious Organisations Bill, 2024, a product of the Senate's inquiry into the Shakahola massacre, seeks to not only control the proliferation of extremist and predatory religious organisations blamed for promoting cultic tendencies, but also have them pay taxes from earnings.
To address proliferation of wrongdoing linked to religion, the Bill proposes to establish the Office of the Registrar of Religious Organisations (Orro).
The Orro shall have the mandate to register and regulate the formation and administration of religious organisations as well as ensure compliance with "the regulatory provisions of the law".
“A person shall not establish, manage, operate or assist in the establishment, management or operation of a religious organisation or an umbrella religious organisation unless the organisation is registered in accordance with this Act,” the Bills reads.
Early last year, mass graves believed to contain bodies of followers of Pastor Paul Mackenzie, the self-proclaimed preacher, of Good News International Church were discovered in Shakahola forest, Kilifi County.
So far, over 400 bodies have been exhumed from the shallow graves with more than 600 others reported missing.
Mackenzie and his alleged accomplices, who are believed to have brainwashed hundreds of followers and starved them to death, are facing various charges in court.
Following the discovery of the mass graves in Shakahola, the Senate on April 27, 2023, adopted a motion establishing an Ad-hoc committee to investigate the “disturbing” Shakahola killings and the proliferation of religious organisations in Kenya.
In the report adopted by the Senate on December 4, 2023, the committee proposed the enactment of the Religious Organisation Bill to regulate religious groups.
“The tragedy that is Shakahola has given us the reason, opportunity, courage and excuse for us to face the religious leaders and tell them that they will be regulated. Religious organisations must be regulated,” said Kakamega Senator Boni Khalwale, the initiator of the motion that led to the formation of the Ad-hoc committee.
Separately, in May 2023, President William Ruto set up a taskforce chaired by former Mbeere MP, Rev Mutava Musyimi, on the review of the legal and regulatory framework governing religious organisations in Kenya.
Specifically, the taskforce was tasked to recommend an appropriate policy framework to deal with religious extremism, religious sects, and cults among others
On July 30, 2024, the Musyimi-led team recommended the formulation of an appropriate policy framework and guidelines on self-regulation and government oversight to ensure transparency and responsible practices by religious organisations.
The report noted that Kenya has a history of religious extremism which has resulted in the loss of lives and that the existing legal framework has gaps and does not adequately address religious extremism in the country
The Bill, which makes it mandatory for the organisations to subject their books of account for audit, defines a religious organisation to mean an organisation whose identity and mission is religious or spiritual in nature and which does not operate for profit.
An umbrella religious organisation means a duly registered religious body consisting of at least 25 religious organisations with a board of trustees that includes a chairperson, vice chairperson, treasurer, secretary, religious leader with a degree, diploma or certificate in theology.
The religious organisations, the Bill says, shall promote public good and encourage social cohesion within society.
The organisations are also required to promote gender equality and social inclusion as well as religious, ethnic, political and cultural tolerance and ensure transparency and accountability in the conduct of its activities.
Article 32 of the Constitution provides for the right to freedom of conscience, religion, thought, belief and opinion.
This includes the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance of a day of worship, right not to be denied access to any institution, employment or facility.
It also includes the enjoyment of any right because of the person’s belief or religion the right to not be compelled to act or engage in any act that is contrary to the person’s belief or religion.
To enforce compliance, the Bill empowers the registrar to issue, suspend, revoke or cancel certificates of registration, maintain a register of all umbrella religious organizations registered, maintain a register of all religious organisations.
“The register shall be open for inspection by members of the public during official working hours at offices designated by the Registrar on the payment of the prescribed fee.”
The draft also says that a Sh10 million fine or jail term of five years awaits those who convert or attempt to recruit into their religion or convert any person from one religion to another by misrepresentation, force, undue influence or coercion.
The sentence shall also be imposed on those who recruit, convert or attempt to convert a child from one religion to another without the consent of their parent or guardian and use of religion to violate the rights of children.
“A person shall not offer religious teachings to a child without the consent of their parent or guardian, practice or preach a religious doctrine which seeks to hurt, harm or destroy any person.”
Indoctrination of any person with a religious doctrine, using religion to exploit another person financially, promoting religious intolerance or promoting anarchy or lawlessness in religious teachings also attracts a Sh10 million fine, five years in jail or both.
“Without prejudice, a religious organization shall promote the sanctity of human life and other human rights enshrined in the constitution, denounce religious teachings that violate or subvert human rights and respect the dignity of all people,” the Bill proposes.
The Bill defines the income of a religious organization or an umbrella religious organization to include offerings and tithes, donations of money, securities and property, bequests, gifts, grants, real property and income, gains or profits generated from any lawful economic activities undertaken by the organisations.
The income, in the case of money, shall be deposited in a bank account held under the name of the relevant registered religious organisation or umbrella religious group.
In the case of real property, be registered in the name of the relevant registered religious organisation or umbrella religious organization. In the case of shares, bonds and other securities, be held in the name of the relevant registered religious organization or umbrella religious organization.
Those organisations found culpable, shall on conviction be liable to a fine not exceeding Sh1 million and every official of the religious organization or umbrella religious organisation shall upon conviction be imprisoned for a term not exceeding two years or to both.
The Bill says that organisations shall at the annual general meeting appoint auditors qualified under the Accountants Act and shall furnish annually, to the authority, returns which shall include audited accounts for the financial year.
If the Bill is passed, the religious organisations and umbrella bodies will also be required to maintain proper records including payroll, payroll deductions, employee expenses, accounts payable and accounts receivables records, bank statements for all accounts maintained by the religious group and records of checks and reconciliation.
Also to be maintained include records of acquisition and disposition of property, contribution records, minutes of meetings, general ledgers, tax payment or exemption records and “any other necessary document.”
For purposes of taxation, the religious organisations or umbrella religious organisations shall establish and maintain separate bank accounts for offerings, tithes and other monies donated or gifted to them, income, gains or profits generated from any lawful economic activities.
“Offerings, tithes, donations, bequests, gifts granted to religious organizations and umbrella religious organisations shall only be exempt from taxation where the religious organization or umbrella religious organization demonstrates that such income is for purposes beneficial to the society,” the Bill says.
The Bill adds that income, gains or profits generated from any lawful economic activities undertaken by the religious organizations and umbrella religious organisations shall not be exempt from taxation unless the entirety of those proceeds are applied towards charitable causes.
Registering religious groups
The religious group at a branch level or umbrella body, once registered “shall display, in a conspicuous place at the location of its operations, the certificate of registration issued under this Act” or risk a fine not exceeding one million shillings.
The Bill states that where an organisation fails to display its certificate of registration, commits an offence and each of its officers is guilty of the offence shall be fined Sh500,000 or six months in jail or to both.
The Bill says that an entity is eligible to be registered as a religious organisation if the registration is supported by “at least 25 natural persons” who profess the same faith, if the registration is endorsed by an umbrella religious organisation and if an entity has a constitution detailing its doctrine.
An entity shall also be registered as a religious organisation if it has a management structure consisting of a board of trustees and at least two thirds of whom are Kenyan citizens.
The entity must also have at least one religious leader with a degree, diploma or certificate in theology who may form part of the board of trustees and other religious leaders who shall not form part of the board of trustees and must meet the requirements of “this Act.”
To be registered as an umbrella religious organization, an entity must ensure that its application for registration is supported by at least 25 proposed or registered religious organizations professing a common faith and at least five “natural” persons who have not been convicted of a criminal offence.
The umbrella body must also have a constitution detailing its doctrine, has a management structure consisting of a board of trustees of which at least two thirds of which are Kenyan citizens and a staff complement comprising at least one financial professional and one legal professional.
A person who intends to establish a religious organization or an umbrella religious organization shall be required to comply with certain conditionalities.
They include the constitution of the proposed organisation, the postal and physical address, a list of persons endorsing the registration together with information on their respective physical address, certified copies of their national identification cards, certified copies of their tax clearance certificates and certified copies of their police clearance forms.
In the case of the registration, the applicant must produce a list of the religious leaders containing their formal education, a recommendation from a registered umbrella religious organization, a statement of doctrine and the purposes for which the group is created.
The others include the principal activities the religious organisation may be engaged in, details of affiliations or partnerships of the organization within and outside Kenya, if any.
There is also the need for physical address of the principal place of operation of the proposed organization and physical address of the branches of the proposed organization, if any.
The organisations are also compelled to keep and maintain a register, to be updated annually, of members that shall include their names and contacts and their respective date of admission into the organization or risk Sh1 million fine with officials liable for Sh500,000 or a year in jail.
The Bill proposes that the constitution of a religious or an umbrella organisation shall contain the name and principal objective, the board of trustees and detail its membership, organizational and governing structure and a governing body of not less than 25 persons.
The constitution shall also contain authorised agents, in the case of an international religious organization, rules for convening meetings, quorum and minutes to be kept by the board of trustees and any other governing body.
Further, the manner in which decisions are made, procedure of admission of members, circumstances for suspension or termination of membership, operation of bank accounts specifying the signatories to the bank accounts, purposes for which the funds of the organization may be used and the procedure by which the organization may be wound up.
