The freedom of the right to religion of minorities : a comparative case study between Kenya and Egypt

Abstract

"Every country has religious minorities. Any study of religious minorities and the protections afforded to them must also examine the significance of minorities per se. Minorities have no internationally accepted definition. Definitions are either broad and with little specificity or narrow and exclusive. Generally, two trends with regard to minority rights can be observed. On the one hand, in many countries, a comprehensive system of the legal protection of minorities has been introduced. Here the biggest problems stem from the difference between formal and informal rights. On the other hand, a number of countries have not legally committed themselves to the protection of minorities; ranging from inadequate safeguards to non-recognition of the minority. National minorities have received broad, although not well-differentiated, reporting in the international media and attention in international organisations and its impact on the discourse on religious rights have been minimal. However, minority religious rights have featured less significantly on the public agenda. The implications of the status of national minorities and religious groups are that many minorities believe that the majority group generally receive privileged status in state structures, while the minorities are viewed with suspicion. The issue of religious representation and safeguards arose within the Constitution of the Republic of Kenya ("Kenyan Constitution") where there is a recently concluded Constitutional Review Commission that had the Christian majority object to the "excessive protection" being granted to the Muslim minority. There was a huge debate as to the extent of inclusion of Sharia in the resultant draft constitution as well as the protection of fundamental principles of human rights and Islam. The question thus arises, should one apply Sharia or enshrine it in the constitution of a country, or will this involve overprotection that may lead to long-term exploitation of the law by the minority. The Arab Republic of Egypt ("Egypt") and the Republic of Kenya ("Kenya") have been chosen as case studies as they are interesting reflections of the development of states in Africa: Kenya with a Muslim minority maintaining a hold on the application of Islamic law where there is a Christian majority, while in Egypt the Copt and Shia Muslim populations are trying to assimilate into the state. Sharia is of imporance both to Kenya and Egypt. In Egypt the entire legal system is premised on the constitutional provision that Sharia is the principle source of law, thus some religious minorities in Egypt look for ways to maintain their identity and circumvent the application of Sharia provisions. Kenya, with a Muslim religious minority, is grappling with the concept of Sharia and how far it should apply to Muslims in a country. Thus these two countries have an inverse mirror image problem of each other as between the two major world religouns, Christianity and Islam. ... Chapter one sets out the content of the research, identifies the problem and applies the methodology. Chapter two discusses the international and regional law on religious minorities with a regional emphasis on African and the Arab region. Chapter three discusses the Islamic law on religious minorities, both Muslim minorities in non-Muslim states and non-Muslim minorities in Muslim states. Chapter four will focus on case studies comparing the protection accorded to the Muslims in Kenya with the Copts in Egypt, and analysing the extent to which Kenya and Egpyt have complied with international and regional law. Chapter five will set out recommendations and conclusions." -- Introduction.