Time to do away with religious oaths in courts

By APOLLO MBOYA

The swearing of an oath before divine symbols reaches back at least to the Sumerian civilisation (4th–3rd millennia BC) of the ancient Middle East and to ancient Egypt, where one often swore by his life, or ankh (“oath”), which literally means “an utterance of life.”

In the Hittite Empire of the 14th–13th centuries BC, various oath gods, such as Indra and Mithra were appealed to in agreements between states. Mithra, an Iranian god who became the main deity of a Hellenistic mystery (salvatory) religion, was viewed as the god of the contract, in other words, the guardian of oaths and truth.

In Eastern religions like Hinduism, those who profess that faith, for example, might swear an oath while holding water from the holy river Ganges, which is a positive symbol of the divine.

DIVINE RETRIBUTION

In Judaism, Christianity, and Islam, oaths have been used widely.

In Judaism, two kinds of oaths are forbidden; a vain oath in which one attempts to do something that is impossible to accomplish, denies self-evident facts, or attempts to negate the fulfillment of a religious precept, and a false oath, in which one uses the name of God to swear falsely, thus committing a sacrilege. In Islam, a valid oath is only taken in the name of the Almighty Allah.

The most frequent contemporary use of the oath occurs when a witness in an authorised legal inquiry states an intention to give all pertinent information and to tell only the truth in relating it.

In Anglo-American legal practice, testimony will not be received unless the witness is subject to some sanction for falsity, either by taking an oath or giving affirmation. The law provides that false testimony under oath constitutes the crime of perjury.

Civil-law nations generally do not permit parties to the case to testify under oath, and they make the oath voluntary with many others. In these countries, the oath is often administered after testimony.

“I swear by almighty God that what I shall state before this court shall be the truth, the whole truth and nothing but the truth.”

This has been the centuries old oath administered on the defendants and witnesses in the courts of law. Followers of faiths are given copies of their sacred texts with Christians swearing on the Bible, Muslims on the Koran and Jews on the Old Testament, for instance. In Hinduism there is no particular holy book, but there is one particular scripture, the Vedas, considered holy by all sections of Hindus.

Those who choose instead to make an affirmation are required to ‘solemnly, sincerely and truly declare and affirm’ the truth of their evidence. In Kenya, various constitutional office holders are also required to take oaths.

The oath, which thus has its origins in religious customs, has become an accepted practice in modern nonreligious areas, such as in secular legal procedures and for occupants of constitutional offices. These oaths are premised on the belief of a penalty of divine retribution for intentional falsity.

A SIMPLE PROMISE

The respect due to religion and to those who profess religion is of course sacrosanct. But do office holders or those giving evidence in criminal cases take these traditional religious oaths seriously?

One professional colleague observed that he sees more and more people shrug their shoulders or say “whatever” when asked to take an oath. We also have those of the view that to require a citizen to publicly profess a faith — any faith — as a precondition to give evidence, enter or hold public office serves neither religion nor the ideal of a public space open to all who are willing to contribute to the common good in a republic.

The Judiciary should come up with a simple promise by witnesses and defendants to tell the truth without mentioning God, and would acknowledge they could be jailed if they are caught lying.

The oath should thus be:

“I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that if I fail to do so I will be committing an offence for which I will be punished and may be sent to prison.”

NON-BELIEVERS

Such an oath would be fairer for everyone and make it easier to understand the importance of what they are saying.

Critics point out that this could be the slippery slope towards the increasing secularisation of society and that non-believers already have the option of promising to tell the truth without any reference to a sacred text, but this has not removed sacred text from the justice system.

In the Bible, Mathew 5:33-37 and James 5:12 states that you shall not swear falsely but shall perform your oaths to the Lord and that we should not swear, either by heaven or by Earth or with any other oath but let your “Yes” be “Yes” and your “No” be “No”. Those of the Muslim faith are advised not to make oaths as a means of deceiving one another.

The writer is Secretary/CEO, Law Society of Kenya.

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