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Religious and Legal Pluralism in Recent African Constitutional Reform

  • M. Christian Green
Extract

Something unexpected has been happening in Africa—and not just Northern Africa, the locus of democratic revolutions since January 2011, when a winter's discontent produced an early Arab Spring. Over the last several years, several sub-Saharan African nations have held democratic elections, produced new constitutions, and even partitioned themselves in relative peace, despite the often dire predictions of foreign governments, media, and election-monitoring organizations.

In many cases, the constitution and reconstitution of these states has been accomplished by means of the referendum vote—sometimes viewed as the anti-democratic purview of special interests in the developed West, but having greater respect and utility as a tool of democracy in the developing South. Kenya produced a new constitution in 2010 by a referendum that has been lauded by international observers for its peaceful process and outcome. The Kenyan referendum followed general elections in 2007, whose results were marred by violence in early 2008. The nearby countries of Zambia and Tanzania are currently in the process of constitutional reform, drawing lessons from Kenya's unexpectedly harmonious proceedings. In all three countries, the constitutional review processes have raised, among other issues, questions of legal pluralism, religious freedom, and relations between the Christian majority and Muslim minority.

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1. See Kenya's Constitutional Referendum: Stoking Up Violence, The Economist, June 17, 2010; Alsop, Zoe, Will Kenya's Constitutional Vote Lead to Violence?, Time, 08. 4, 2010; Rice, Xan, Kenya Votes Amid Tight Security in Referendum on New Constitution, The Guardian, 08 4, 2010.

2. See Clottey, Peter, Peaceful, Credible Vote Goals in Kenya Constitutional Referendum, Voice of America, 08 3, 2010; Kenya Holds Referendum as Part of Political Peace Deal, BBC News Africa, Aug. 4, 2010; Gettleman, Jeffrey, Kenyans Approve New Constitution, N.Y. Times, 08 5, 2010; Obama Congratulates Kenya on ‘Peaceful, Transparent’ Vote, Agence France Press, Aug. 3, 2010.

3. Suffice it to say, these African developments are not widely reported in the U.S. or elsewhere. They can only be followed in the international and local press, the policy analyses of research organizations that study the region, and the burgeoning blogosphere in Africa and in the global Muslim and Christian communities. For representative headlines that convey the growing concerns, See Kenyan Premier Warns of Muslim-Christian Conflict Over Islamic Law, BBC Africa, Nov. 2, 2009; Pflanz, Mike, Kenya's draft constitution under fire for Islamic courts, The Christian Science Monitor, 05 28, 2010; Tanzanian Fear at Islamic Courts, BBC Africa, Oct. 24, 2008; New Cabinet Urged to Push Setting Up of Kadhi Court, The Citizen (Dar es Salaam), 11 25, 2010; Faith Bigotry was One Huge Worry in 2010, The Citizen (Dar es Salaam), Dec. 30, 2010; Jomo, Frank, Islam Making Inroads in Zambia, NewsFromAfrica.org, 07 16, 2006; Zambian Muslims Urged to be Peaceful and Patriotic, Lusaka Times, Dec. 31, 2009; Muslims Ask Sata To Include Them in Constitution Technical Committee, Tumfweko, Nov. 18, 2011.

4. For details of the constitutional reform in South Sudan, See the website of the South Sudan Law Reform (Review) Commission, available at http://www.goss-online.org/magnoliaPublic/en/Independant-Commissions-and-Chambers/South-Sudan-Law-Review-Commission.html. The commission was appointed to draft a permanent constitution to replace the Transitional Constitution of South Sudan, which came into effect on July 9, 2011, following the South Sudanese secession by referendum in January 2011.

5. For information on the recent Sharia debates in Sudan, particularly over the fraught issue of family law, See the essays in Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States, Symposium Issue, 25(2) Emory Int'l L. Rev. (An-Na'im, Abdullahi A. & Green, M. Christian eds. 2011), available at http://blogs.law.emory.edu/nigeriasharia/law-symposium. The Nigerian Constitution of 1999 is currently under review by a Constitutional Review Committee of the Nigerian House of Representatives, whose legislative materials are available at http://www.hrcr.org.ng. An amended constitution is scheduled to be released in 2013. While the primary issues in Nigerian reform have had mostly to do with the structure of the federal system more than with issues of religious and legal pluralism, the religious and ethnic composition of the population in the proposed restructuring of federal states has been an important background issue in the debate.

6. For more background on African constitutionalism, including the role of religion, See Constitution-Making and Fiuman Dignity: Perspectives from Eastern and Southern Africa (African Forum for Catholic Social Teachings 2006); Abdullahi Ahmed An-Na'im, African Constitutionalism and the Role of Islam (Univ. Penn. Press 2006); Constitutionalism and Society in Africa (Akiba, Okon ed., Ashgate c2004); Nwabuezf, B.O.., Constitutional Democracy in Africa (Spectrum Books 20032004); Constitutionalism in Africa: Creating Opportunities, Facing Challenges (Oloka-Onyango, J. ed., Fountain Pub. 2001); The State and Constitutionalism in southern Africa (Sichone, Owen ed., Sapes Books 1998); Ghai, Yash, The Rule of Law in Africa: Reflections on the Limits of Constitutionalism (Chr. Michelsen Inst. 1990).

See also the recent Voice of America seven-part series of articles on the topic, including: Colombant, Nico, Constitutionalism in Africa Follows a Rocky Road, Voice of America, 03 28, 2012; Eagle, William, Push for More Democracy Drives Constitutional Change in Africa, Voice of America, 03 28, 2012; Robertson, DeliaANC to Review South Africa's “Model” Constitution, Voice of America, 03 28, 2012; Drafting Somalia's Constitution Opens Debate on Religion, Law, Voice of America, 03 28, 2012; Zimbabwe's New Constitution Two-Plus Years Behinds Schedule, Voice of America, 03 28, 2012; Look, Anne, Experts: African Coups Are a Poor Way to Establish Democracy, Voice of America, 03 28, 2012, Colombant, Nico, Africa's Constitutions Often Unfilfilled, Voice of America, 03 28, 2012.

7. For information on the proportions and locations of Muslims in Kenya and Tanzania, see the United States Department of State's country reports on Kenya and Tanzania in the International Religious Freedom Reports, available at http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?dlid=192767.

8. See, e.g., National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report, Chs. 4 and 6 (U.S. Gov't. Printing Office, 07 22, 2004).

9. Church opposition was a feature of both the 2010 and earlier 2005 referenda. See Kenya: Islamic Courts, Abortion Trigger Church Opposition to Constitution. Ecumenical News International (Geneva), 04 29, 2010; Don't Kill Our Reform Dream, Churches Urged, The Nation (Nairobi), 04 4, 2010; Kenya: Churches Campaign Against Referendum, East African Standard (Nairobi) 08 21, 2005.

10. At the time of this writing the situation regarding Zanzibar autonomy has become even more serious in the wake of riots by Islamist groups. See The Swahili Coast: Contagion of Discontent: Muslim Extremism Spreads Down East Africa's Coastline, The Economist, 11 3, 2012; Tanzania: Islamist Riots Threaten Zanzibar Stability, IRIN News, 10 24, 2012.

At the time of this writing in November 2012, there is also a Muslim activism brewing in the Kenyan coastal regions that were once part of the Sultanate of Zanzibar. See Briefing: Kenya's Coastal Separatists-Menace or Martyrs?, IRIN News, 10 24, 2012 and Analysis: Kenya's Deadly Mix of Frustration, Politics and Impunity, IRIN News, 09 14, 2012, both citing Goldsmith, Paul, The Mombasa Revolutionary Council: Conflict Assessment: Threats and Opportunity for Engagement (Kenya Civil Society Strengthening Program, 11 2011), available at http://www.kecosce.org/downloads/MRC_Conflict_Assessment_Threats_and_Opportunities_for_Engagement.pdf.

11. Jomo, supra note 3, Islam Making Inroads in Zambia.

12. For post-referendum analysis of the role of the Kenyan churches on these points, See Onyongo-Obo, Charles, Why the Glory of the Referendum Belongs to the ‘No’ Campaigners, The Nation (Nairobi) 08 7, 2010; Ochieng, Abiud, Clergy Accept Defeat But Push for Amendment, The Nation (Nairobi), 08 5, 2010.

13. For more information on the 2010 Constitution of Kenya, See http://www.kenyaconstitution.org.

14. While some observers praised the peaceful process in Kenya, others denounced the expenses associated with holding the referendum and festivities to celebrate the new constitution. See Peaceful Voting in Kenya and Rwanda Praised, The Nation (Nairobi), 08 11, 2010; Kenya; New Constitution, Same Old Waste of Public Money, The East African (Nairobi) 08 30, 2010.

The Obama Administration's financial support of the Kenyan process drew criticism from conservative political opponents at home, including “birther” conspiracy theorists, religious institutions and members of Congress opposed to abortion, and organizations concerned about the spread of Islam and Shari'a. See Gettleman, Jeffrey, Kenyan Constitution Opens New Front in Culture Wars, N.Y. Times, 05 13, 2010; Baldauf, Scott, Powerful Churches Target Kenya's Constitution Over Abortion, Christian Science Monitor, 05 14, 2010.

President Barack Obama praised the new constitution as perhaps signaling a turnaround from the continuing instability and corruption from the coalition government, which Obama and other world leaders condemned in the days after the 2008 post-election violence. See Mutiga, Murithi & Munene, Mugumo, Obama-New Law a Boon, The Nation (Nairobi), 08 21, 2010.

15. For a comparative analysis of the Kenyan constitutional process and that of other East African nations, See Onyango-Obbo, Charles, The Un-East African' Constitution and Why It Took So Long, The East African (Nairobi), 08 2010.

16. National Constitutional Conference, Draft Constitution of Kenya of 2004 (Mar. 23, 2004) [hereinafter Bomas Draft].

17. See Kenya; Divided by the Colours of a New Constitution, Un Integrated Regional Networks (Nairobi), 07 30, 2010. Parliamentary Select Committee on Constitutional Review, Proposed New Constitution of Kenya 2005 [hereinafter Wako Draft]. For further discussion of the Bomas and Wako drafts, See Chitere, Prestonet al., Kenyan Constitutional Documents: A Comparative Analysis (Bergen, Norway: Chr. Michelsen Instit. 2006), available at http://www.cmi.no/publications/file/2367-kenya-constitutional-doeuments.pdf.

18. See Baregu, Mwesiga, Constitutions and Constitutionalism, The Citizen (Dar es Salaam) 12 29, 2010.

19. See Gettleman, Jeffrey, Disputed Vote Plunges Kenya Into Bloodshed, N.Y. Times, 12 31, 2007; Kenya's Dubious Election, BBC News, Jan. 8, 2008; Nyong'o, Tavia, Kenya's Rigged Election, The Nation, (Nairobi) 01 21, 2008. See also European Union Election Observation Mission, Kenya: Final Report: General Elections 27 December 2007 (Brussels: European Commision, 04 3, 2008) available at http://www.eeas.europa.eu; International Republican Institute, Kenya: Presidential, Parliamentary, and Local Elections: Election Observation Mission Final Report (IRI, 12, 27, 2007) available at http://www.iri.org.

20. It may be worth noting that both of the candidates in this case were Christian—Kibaki a Roman Catholic and Odinga an Anglican.

21. Pew Forum on Religion and Public Life, Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa, 307 (Pew Research Center: Washington, D.C., 2010)

22. See Gettleman, Jeffrey, Mob Sets Kenya Church on Fire, Killing DozensN.Y. Times, 01 2, 2008; Kenyans Burned to Death in ChurchBBC News, 01 1, 2008; Dixon, Robyn, Kenyans recall the screams of the dying in burning church, L.A. Times, 01 3, 2008; Gettleman, Jeffrey, Protests Bring New Violence in Kenya, N.Y. Times, 01 17, 2008.

23. The National Accord and Reconcilation Bill, 2008 (Mar. 6, 2008), available at http://www.kenyalawreports.or.ke.; Kenya Rivals Agree to Share Power, BBC News, Feb. 28, 2008.

24. Constitution § 66(4) (1969) (Kenya).

25. Id. § 66(2)(a).

26. Id. §66(5).

27. Id. §78(1).

28. Id. § 78 (5) (a-b).

29. Constitution, Preamble (2010) (Kenya).

30. Id. §8.

31. Id. §21(3).

32. Id. § 24(4). The equality and freedom from discrimination provision is in Sec. 27(4).

33. Id. § 32 (3-4).

34. Id. § 45(4).

35. Id. §91 (2 (a).

36. Id. § 170.

37. Id. at 192.

38. Id.

39. Openda, Francis, Church Leaders Call for a Referendum, East African Standard (Nairobi) 03 25, 2004.

40. Religionism a Threat to East African Unity, East African Standard (Nairobi) 03 30, 2008. See also United States State Department, International Religious Freedom Report, Kenya, § 2 (United States Department of State, 2006) (IRFR). The 2006 IRFR for Kenya describes the ongoing disputes over Kadhi's Courts that emerged in the 2005 constitutional debate, as well as concerns about the Suppression of Terrorism Bill and government assistance to Islamic schools.

41. Kenyan Muslim concerns about anti-terrorism bills preceded the 2007 elections and have continued to the present day. See Thurston, Alex, Kenyan Muslims Debate Anti-Terror Law, The Revealer.org, 07 7, 2012; Ni Chonghaile, Clar, Kenyan Muslims fear the worst over proposals to boost police powers, The Guardian (U.K.), 09 27, 2012; Joselow, Gabe, Kenyan Muslims Condemn Killing in Anti-Terror Raid, Voice of America, 10 29, 2012.

42. See Shapshak, Toby, Africa Not Just a Mobile First Continent—It's Mobile Only, CNN.com, 10 4, 2012.

43. Katiba Mobi, at http://katiba.mobi (last visited Feb. 24, 2012). The Katiba Mobi Twitter site reported the website's launch on May 10, 2010, and on May 26, 2010, reported the site had drawn 100,000 views. On Aug. 4, 2010, the day of the referendum, the site drew 4,000 views. See https://twitter.com/#!/katibamobi.

44. available at http://katiba.mobi/const/topsearches.php (last visited Mar. 8, 2013). The term “RELIGION” is rendered, without explanation, in capital letters.

45. It is worth noting that “The Marriage Bill, 2012,” currently up for review in the Kenyan National Assembly, makes ample provision for Kadhi's Court marriages. See the bill and public comments to it at the website of the Commission for the Implementation of the Constitution (CIC) website at http://cickenya.org/bills/marriage-bill-2012.

46. See the Committee of Experts on Constitutional Review, Proposed Constitution of Kenya: Curriculum for Civic Education, (Nairobi: Committee of Experts on Constitutional Review 2010) at http://www.constitutionnet.org/files/coe_eivic_education_curriculum_0.pdf; Constitutional Reform and Education Consortium (CRECO), Constitutional http://www.crecokenya.org/?page_id=342; The 11 Cardinal Principles: A Scorecard to the Kenyan Constitution-Making Process). See also Institute for Social Accountability, Jukwaa la Katiba!, http://www.tisa.or.ke/jukwaa-la-katiba/ “Jukwaa!”is the successor to the“Katiba Sasa!”campaign, whose work is available at http://www.katibasasa.org/2010/06/12/kenya%E2%80%99s-constitution-making-history-1890-2010.

47. Kamau v. Attorney General [2010] eKLR (Kenya). The cited version in the electronic Kenya Law Reports is unpaginated but available at http://www.kenyalaw.org. Citations to quoted matter will be given according to the relevant sections, subsections, and paragraphs of the electronic version of the decision (emphasis added).

48. Kadida, Jillo, Red Card-Judges Say Kadhi Courts Illegal, The Nation (Nairobi), 05 24, 2010; Maina, Carol & Musau, Nzau, Kadhi Courts Declared Illegal, Nairobi Star, 05 25, 2010.

49. Kamau v. Attorney General, § 2(5) (Declarations Sought by Applicants).

50. Id. § 2(9) (Declarations Sought by Applicants).

51. Id. § 2(11) (Declarations Sought by Applicants).

52. Id. (Declarations Sought by Applicants) (emphasis added).

53. Id. § 2(13) (Declaration Sought by Applicants).

54. Id. § 3(b) (Grounds of Summons).

55. Id. § 3(g) (Grounds of Summons).

56. Id. § 3(h) (Grounds of Summons) (emphasis added). It is worth noting that the Christian petitioners were joined by the Hindu Council of Kenya, but the Supreme Council of Kenya Muslims, served with the petitioner's application to the court, declined to participate in the case.

57. Legal sources included in Kenyan, British, American, Indian, Mauritian, Tanzanian, Ghanaian, Indonesia, and South African law. The Court also cited the Qur'an, the United States Constitution, the writings of Thomas Jefferson and James Madison, and academic research in the sociology of religion, political science, and Islamic studies. Id. § 7(B) (Applicants' Counsel's Submissions).

58. Id. § 7(H). The quotations in this paragraph and the next are taken from Sec. H (Issues for Determination).

59. Id.

60. Id. § 3 (Grounds of Summons) (emphasis added).

61. Maina & Musau, supra note 48. This article is a particularly good summary of the decision.

62. For more on the referendum and its results, See Electoral Institute for the Sustainability of Democracy in Africa, Zanzibar: 2010 Constitutional Referendum Results, (Aug. 2010) at http://www.eisa.org.za.

63. James, Bernard & Kagashe, Beatus, Tanzania: After Zanzibar Referendum Comes Constitution Dilemma, The Citizen (Dar es Salaam) 08 10, 2010.

64. Zanzibar reportedly seeks to have constitution changed, BBC, Aug. 14, 2010; Tanzania; Zanzibar Renews Bid for Independence, East African Business Week (Kampala), 08 16, 2010.

65. See Kimboy, Frank, Road to New Constitution, The Citizen (Dar es Salaam), 03 30, 2011; Tanzania; People Say New Constitution Crucial, Tanzania Daily News (Dar es Salaam), 04 7, 2011.

66. Tanzania; Debate Participants Tear Review Bill Apart, The Citizen (Dar es Salaam), 04 10, 2011.

67. Tanzania; Constitution Talks Chaos, The Citizen (Dar es Salaam), 04 8, 2011.

68. In the interim, the bill had been withdrawn in the Tanzanian National Assembly on April 15, 2011, in order to allow more time to allow for public reflection and commentary on the proposed reforms. The bill was reintroduced on June 9, 2011, with the date of enactment contemplated as December 1, 2011, but further amendments were proposed on December 23, 2011. See The United Republic of Tanzania, “The Constitutional Review Act, 2011, no. 8,” Nov. 29, 2011; The United Republic of Tanzania, “The Constitutional Review Act, 2011, no. 8, Bill Supplement,” Dec. 23, 2011. See also Saiboko, Abdulwakil, Constitution Forum Calls for Amendments to Review Act, Tanzania Daily News, 01 30, 2012.

69. Liganga, Lucas, MPs reach consensus on Constitution review Bill, The Citizen (Dar es Salaam), 02 11, 2012.

70. Clerics urged to educate Muslims on constitution, The Guardian (Dar es Salaam), 02 14, 2012.

71. The Constitution of the United Republic of Tanzania 1977, Part II, Art. 9(g) (emphasis added).

72. Id. Art. 13(5).

73. Id. Art. 19(1).

74. Id. Art. 19(2) (emphasis added).

75. Id. Art. 39(2) and 67(2).

76. See Constitution of Zanzibar, 1984, (amended to 2006), esp. Arts. 12, 19.

77. Johnson, Toni & Vriens, Lauren, Backgrounder: Islam: Governing Under Sharia, Council on Foreign Relations (10 24, 2011).

78. Kanyabwoya, Damas, Collapse of Kadhi Courts Explained, The Citizen (Dar es Salaam), 02 13, 2010. For more on the history and evolution of the Kadhi's Courts in Tanzania, See Majamba, H., Possibility and Rationale of Establishing Kadhi Courts in Tanzania Mainland, paper presented at the 20th Research for Education and Democracy in Tanzania (REDET) RMC Workshop University of Dar es Salaam, 11 10, 2007, available at http:www.redet.udsm.ac.tz.

79. Eyakuze, Aidan, The Kadhi Courts Debate in Tanzania and the ‘Primacy’ of the Secular State in East Africa available at http://www.sidint.net/node/1379. See also Magobe, Telesphore R., Kadhi Courts in Tanzania, Global Politician, 08 28, 2006.

80. Jube, Faraja, Govt Can't Run Kadhi's Courts—PM, The Citizen (Dar es Salaam), 07 17, 2009.

81. Bilal's Pledge to Muslims On Kadhi Court, The Citizen (Dar es Salaam), 11 17, 2010.

82. wa Kuhenga, Makwaia, On Wikileaks and the Question of Kadhi Courts, The Citizen (Dar es Salaam), 09 12, 2011.

83. Tanzania, Sharia Debates in Africa available at http://www.sharia-in-africa.net.

84. Religionism a Threat to East African Unity. See also the transcript of President Kikwete, Speech on religion at the Fifth Anniversary of the African Presidential Archives and Research Center (APARC), at Boston University Sept. 25, 2012, available at http://jkikwete.com/speechz.php?id=822. President Kikwete has continued to speak out on the problem of religious bigotry in Tanzania. See President Kikwete Deplores Religious Bigotry, Tanzania Dailynews (Dar es Salaam), 10 15, 2012.

85. Id.

86. Tanzania: Muslim leaders pressure country to join Islamic organization, BBC News, Nov. 1, 2008.

87. Tanzanian Muslim paper says House walk-out divides party along religious lines, BBC News, Nov. 20, 2010.

88. Bakwata [Muslim Council of Tanzania] Urges Bishops to Show Religious Tolerance, The Citizen (Dar es Salaam), 01 23, 2011.

89. Mtuliya, Sadik, Bakwata Wants Probe into Religious Tensions, The Citizen (Dar es Salaam), Feb. 16, 2011.

90. Qorro, Edward, CUF Representative Under Attack in Zanzibar Over Remarks, The Citizen (Dares Salaam), 02 25, 2012.

91. Nsingo, Ephraim, Zambia: Constitutional Baby Out with the Bathwater, Inter Press Service, 04 9, 2011.

92. Kuyela, Teddy, US Pledges $1 million to constitution-making process, Zambia Daily Mail (Lusaka), 03 1, 2012.

93. Const. of Zambia of 1991 (as Amended to 1996), Preamble. See also id. Art. 19 “Protection of Freedom of Conscience.”

94. Id. Art. 19.

95. The list of categories of identity to be protected from discrimination includes, in full, “race, tribe, place of origin, marital status, political opinions, colour or creed.” See Art. 23(3).

96. Id. Art. 23(b-d) (emphases added).

97. Republic of Zambia, Mvunga Constitutional Review Commission, Mvunga Constitutional Review Commission Report, Ch. 1(3) (1991) [hereinafter Mvunga Report] available at http://www.unza.zm/zamlii/mvunga-1991.html.

98. Id. Ch. 3, § 9, 10, 10(b)(7). The Zambian perspective is worth comparing to those expressed in recent Kenyan controversies over judicial nominations.

99. Id. Ch. 2, § 2, 2(7)(a)(iii), 2(7)(b)(i). For the government reaction, See the “Government Reactions,” particularly the “Personal Liberties, Freedoms, & Rights” section of the ZAMLII website at http://www.unza.zm/zamlii/mvunga-1991-plfr.html.

100. Id. Ch. 8(1).

101. Id.

102. Id. Ch. 8(3).

103. Id. Ch. 8(4).

104. Article 16 on “Deprivation of Property” in the 1991 Constitution, prior to the 1996 amendments, is the only place in the 1991 Constitution where the Chiefs are mentioned.

105. Chiluba died on June 18, 2011, with international obituaries noting both his early advocacy of democracy and civil liberties and born-again Christian faith convictions and his later personal and political corruption. Bearak, Barry, Frederick Chiluba, Infamous Zambia Leader, Dies at 68, N.Y. Times, 06 19, 2011.

106. See Republic of Zambia, Mwanakatwe Constitutional Review Commission, Report of the Mwanakatwe Constitutional Review Commission (1996), [hereinafter Mwanakatwe Report], § 1, 4(c) (Executive Summary) (emphasis added), available at http://www.unza.zm/zamlii/mwanakatwe-1996.html. Since the full report document is not included on the ZAMLII website, citations here are to the sections listed in the right-hand column on the report's web page.

107. Id. § 7 (Fundamental Human Rights and Freedoms). The discussion is in the section on “Freedom of conscience, faith, belief, and religion.”

108. Id.

109. Id. § 1(c), “Women's Rights.”

110. Id. § 7, “The Right to Found a Family.”

111. Id. § 1(4) (n) (Executive Summary).

112. Id. § 12 (Legislature).

113. The Constitution of Zambia Bill, 2005, preamble (emphasis added).

114. Id. The proposed 2005 preamble references Zambia's status as a “Christian nation,” the right of every person to “freedom of conscience or religion,” and the “equal worth of different communities and faiths in our nation.”

115. See Republic of Zambia, Mungu'omba Constitutional Review Commision, Report of the Mungu'omba Constitutional Review Commission, 12 29, 2005 [hereinafter Mungu'omba Report], Part II (Submissions, Observations, and Recommendations) at 82 (discussing “The State and Religion” at Sec. 1.2.7), available at http://www.unza.zm/zamlii/downloads/mungomba.pdf. Note that pagination is included, though barely visible in the bottom right comer of the document. Page cites are given according to this pagination, with additional section and topic information, as helpful for clarity.

116. Id.

117. Id. 83. Some petitioners also argued for a limitation on freedom of conscience and religion “to the extent that it does not infringe on the freedoms of others and maintenance of public order,” but the Commission rejected the inclusion of a qualification in the preamble. Id. at 93 (discussing the Preamble at Ch. 1.2.15). With regard to the concern about fanaticism, the Mung'umba Report also noted the concern of a number of petitioners about the proliferation of Christian churches, so the focus was not specifically about Muslims or other non-Christian religions. Id. at 180 (discussing “Freedom of Worship and Conscience” at Sec. 3.2.2.20.

118. Id. at 84 (discussing “The State and Religion” at Ch. 1.2.7).

119. Id.

120. Id. (discussing the Preamble at Ch. 1.2.15). In assessing the Commission's commitment to religious pluralism, it is, however, worth noting that in its recommendation that representation on the Constitutional Constituent Assembly that would include eight religious organizations, only Christian churches were mentioned. Id. at 806 (discussing “Method of Adoption of the Constitution” at Ch. 26.2).

121. Id. at 839 (Group Minority Report).

122. Id.

123. Id. at 800 (discussing the “House of Chiefs” at Ch. 26.2.6).

124. Id. at 544-65 (discussing “Traditional Authority, Customs, and Practices” at Ch. 12).

125. Id. at 66 (discussing “The 1996 Amendment to the Constitution” at Ch. 2.3.7.

126. Id. at 117 (discussing “Fundamental Human Rights and Freedoms, Gender Equality” at Ch. 3.1).

127. Id. at 118 (discussing “Fundamental Human Rights and Freedoms, Gender Equality” at Ch. 3.3.1).

128. Id. at 107 (discussing “Marriage/Family” at Ch. 3.2.3.11).

129. Id. at 477 (discussing “Traditional Courts” at 10.2.15.6).

130. Republic of Zambia, National Constitutional Conference, “Initial Report of the National Constitution Conference,” (Lusaka, 06 24, 2010), 8081 (discussing “Deliberations of the Conference on the Preamble” at Ch. 4.4.3.1-4.4.3.2).

131. Id. at 81 (discussing “Deliberations of the Conference on the Preamble,” at Ch. 4.4.3.2 (a-b).

132. Id. (discussing “Deliberations of the Conference on the Preamble at 4.4.3.1(d) and 4.4.3.2.(e)).

133. Id. (discussing “Deliberations of the Conference on the Preamble” at Ch. 4.4.3.2 (i)).

134. Id. at 77 (discussing “Recommendations of the Commission” at Ch. 4.2).

135. Id. at 82-83 (discussing “Recommendations of the Commission” at Ch. 4.4.5).

136. Id. at 82 (discussing “Recommendations of the Commission” at Ch. 4.4.5.2-4.4.5.3).

137. Id. at 84 (discussing “Recommendations of the Commission” at Ch. 4.4.11).

138. Id. (discussing “Recommendations of the Commission” 4.4.11.1-4.4.11.2).

139. Zambia; “Constitution Review is Not Done Through Referendum,” The Post, Apr. 23, 2001.

140. Citizens Forum Zambia, Working Paper 8, in The Power of Civil Society Working Paper Series (Hivos People Unlimited/International Institute of Social Studies, 07 2010), available at http://www.hivos.nl/eng/Hivos-Knowledge-Programme/Themes/Civil-Society-Building/Publications/The-Power-of-Civil-Society-working-paper-series/8-Citizens-Forum-Zambia.

141. Zambia; Constitutional Review Process Criticised, UN Integrated Regional Networks, Sept. 20, 2004.

142. Zambia; “Door's Still Open for Oasis Forum,” The Times of Zambia, Apr. 18, 2003; Zambia; Civil Society Rejects Third Term for Chiluba, The Post (Lusaka), 04 28, 2004; Zambia; Constitutional Review Process Criticised, supra note 141.

143. Zambia; Constitutional Review Process Criticised, supra note 141.

144. Zambia; Declaration of Christian Nation Must Go, Submit Catholic Bishops, The Times of Zambia, Oct. 4, 2004.

145. Zambia Episcopal Conference, Submission to the Mung'umba Constitutional Review Commission, 09 30, 2004, in the pastoral statements section of the Zambia Episcopal Conference website, available at http://www.catholiczambia.org.zm.

146. Catholic Bishops Issue Pastoral Statement On Constitution, The Post, Nov. 17, 2005.

147. Islam making in-roads in Zambia, supra note 3. See also Félix Phiri, The Spread of Islam in Zambia, available at http://www.africafiles.org.; Phiri, Félix, Muslim Associations and the Resurgence of Islam in Zambia (Fenza, 2008), as well as various reports of the Evangelical Christian missionary group Frontline Fellowship, available at http://www.frontline.org.za.

148. See Islam in Zambia, Small and Notable (interview with Phiri, Félix), Zenit, 04 11, 2011.

149. United States Department of State, International Religious Freedom Report, Zambia (U.S. Dep't. of State 2007).

150. United States Department of State, International Religious Freedom Report, Zambia (U.S. Dept', of State 2003).

151. Id.

152. For more on the situations in Nigeria and Sudan, See Griswold, Eliza, The Tenth Parallel: Dispatches from the Fault Line Between Christianity and Islam (Farrar, Straus & Giroux 2010).

153. Pew Forum on Religion and Public Life, Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa (Pew Research Center: Washington, D.C., 2010) [hereinafter “TT”].

154. TT, 63, 143.

155. TT, 42-43.

156. TT, 44. See also TT, 79, 81.

157. TT, 79, 81. In all but two responses in the various degrees of agreement or disagreement with this perception, the difference between Muslims and Christians was within the margin of error for the study.

158. TT, 75. Only Senegal was lower among the total population and among Muslims, who constitute nearly the total population there. Conflict-prone Nigeria and the Democratic Republic, as well Zambia, which was contemplating its own constitutional referendum, scored just above Kenya on this question.

159. TT, 121-27.

160. TT, 283.

161. TT, 165.

162. TT, 285-86, 289.

163. TT, 64, 151.

164. TT, 42.

165. TT, 283.

166. TT, 74. The high marks here would be places like Liberia and Nigeria where, despite recent conflicts, ninety percent of Christian respondents had this level of expectation in quality of life improvement.

167. See TT, 297, 319-23.

168. TT, 83. Tanzania was followed by Cameroon (82%), Senegal (74%), and South Africa (70%) in levels of distrust, but these four nations were the only ones in which percentages ran above the sixties range, percentagewise. Most responses were in the 50s and low 60s, so the higher scores, including Tanzania's, are quite significant.

169. TT, 130.

170. TT, 192.

171. TT, 208. In fact, Kenya came in fifth for its percentage of respondents who said they shared their religious beliefs with people of other religions in the two most frequent categories of “at least once a week” or “once or twice a month.”

172. TT, 285.

173. TT, 286. Tanzania was also second lowest in respondents (27%) favoring the death penalty for those who leave the Muslim religion, but there were several other countries with responses within a few percentage points. On the Shari'a question, Tanzania was more of an outlier, with the two nearest countries separated by more statistically significant span of ten percentage points. TT, 291.

174. See the Tanzanian reaction to the Pew study, in particular its findings regarding the prevalence of belief in witchcraft and indigenous religion in Welcome to Juju Nation!, The Citizen (Dar es Salaam) 02 27, 2011.

175. TT, 153, 257.

176. TT, 79, 81.

177. TT, 74. Only Christians are included in the Pew study, since the Muslim population was too small to sample. Thus, I have made comparisons here only to Christian populations in other countries.

178. TT, 75-76.

179. TT, 90. South Africa was the next highest, with forty percent supporting the strong leader option, followed by Tanzania, with thirty-seven percent. The average favorable response for strong leadership was in the twenties, so the numbers for Tanzania and Zambia are significant. Kenya, by contrast, was representative of the general preference for democracy in the Pew study, with seventy-eight percent advocating democracy and just twenty percent advocating a strong leader.

180. TT, 103. As with several other indices, the fact that these countries were clustered with post-conflict and conflict-engulfed countries like Rwanda and the DRC, with their likely heightened perceptions of conflict and threatening difference, is itself notable, particularly for a country as generally conflict-free as Zambia.

181. TT, 119.

182. TT, 277.

183. TT, 285-86.

184. Mombasa Protest Against Shabaab, The Nairobi Star, Apr. 9, 2011; Joselow, Gabe, Kenya's Military Presses Advances Against Al-Shabab, Voice of America, 02 20, 2012; Joselow, Gabe, Kenya Refocuses Fight Against Al-Shabab, Voice of America, 02 22, 2012.

* M. Christian Green is a senior fellow at the Center for the Study of Law and Religion (CSLR). She wishes to express her appreciation to her CSLR colleagues John Witte, Johan van der Vyver, and Abdullahi A. An-Na'im, and then-student research assistants, Silas W. Allard and T. Brian Green for their wisdom, collegiality, and support in the research that led up to this article. She also thanks R. Scott Appleby and colleagues and staff at the Kroc Institute for International Peace Studies for their support of this research during a recent visiting fellowship.

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