The Court and the canon: The religious question doctrine and the Shakahola judgment

In October 2026 the High Court of Kenya at Malindi convicted 29 people of murdering 190 children and one adult at Shakahola forest. In the same judgment it found that the Books of Maccabees ‘are not regarded as divinely inspired Scripture’ and that the account in 2 Maccabees 7 ‘cannot be relied upon as an authoritative basis for directing Christian conduct’. This paper examines those findings through the lens of the religious question doctrine developed in American constitutional law and the constitutional framework established by the Constitution of Kenya, 2010. It argues that the judgment employs two distinct methods of judicial reasoning. The first evaluates conduct and establishes criminal responsibility; it is constitutionally sound and sufficient to sustain every conviction. The second evaluates religious doctrine, culminating in a determination of the status and authority of a biblical text. That determination was unnecessary to the disposition of the criminal case, procedurally irregular, inaccurate as a general account of Christian belief, and constitutionally incompatible with Articles 8, 27 and 32. The paper advances a Kenyan adaptation of the religious question doctrine grounded in epistemic restraint: that courts may establish facts about religion where necessary to adjudicate legal disputes, but must not assume authority to determine the truth, validity or authoritative status of religious doctrines. Properly applied, this approach preserves the convictions on their secular legal foundations while recognising a constitutional boundary that the Court had no authority to cross: the canon was not for the Court to decide.

I. Introduction

"It is not within the judicial function and judicial competence of the courts to determine whether appellee or the Government has the correct interpretation of the Amish faith; courts are not arbiters of scriptural interpretation." The Second Book of Maccabees tells of a mother who watched seven sons die under torture rather than eat what their law forbade. When only the youngest remained, she bent towards him and, in her own language, urged him to ‘take thy death’, that she might ‘receive thee again in mercy with thy brethren’. 1 Since the Reformation, Christians have disagreed about whether the book that tells this story is Scripture. The Council of Trent declared it canonical. The Westminster Confession held that the Apocrypha, ‘not being of divine inspiration’, were no part of the canon. The Church of England chose to read such books ‘for example of life and instruction of manners’ but not ‘to establish any doctrine’.  On 19 October 2026 the High Court of Kenya at Malindi entered that dispute. In the prosecution arising from the deaths at Shakahola forest, Kavedza-Mochache J convicted 29 people of murdering 190 children and one adult. They had died under a regime of ‘fasting to death’ directed by the preacher Paul Nthenge Mackenzie. The accused persons had invoked the Maccabean martyrs. Having ‘gone through theological literature and scholarly writings’, the court found that the Books of Maccabees ‘are not regarded as divinely inspired Scripture’. The account in 2 Maccabees 7, it held, ‘cannot be relied upon as an authoritative basis for directing Christian conduct’.