KATIBA: Paradoxes in freedom of religion

Mombasa Archbishop Martin Kivuva at Sisters of the Most Precious Blood Convent in Shaka Dulo on January 8 /Elias Yaa
Mombasa Archbishop Martin Kivuva at Sisters of the Most Precious Blood Convent in Shaka Dulo on January 8 /Elias Yaa

The right to freedom of religion is enshrined in Article 32 of the Constitution: Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

Similarly, this right is also protected in numerous international and regional instruments such as the African Charter of Human and Peoples Rights and the Universal Declaration of Human Rights.

The Constitution further states that there must be no state religion in Kenya (Article 8). This means there must no official state religion: Kenya is not and cannot be like the UK, which has an “established church”, or those countries that say their official religion is Buddhism (Cambodia) or Islam (Pakistan).

WHAT DOES IT MEAN?

I would argue that it necessarily also implies state religious neutrality. Such neutrality can take various forms. Some focus on tolerance or accommodation of religious views, even in the public sphere, through the ‘concept of good disagreement’ to use an expression favoured by the Archbishop of Canterbury, Justin Welby.

Other states profess to be neutral in the form of equidistance – the stress being on the distance:

There is a ‘wall’ between the State and religion keeping everyone’s religious practices confined to the private sphere. In the US, many cases hold that this is what their Constitution means by prohibiting “establishment of religion”. However, that wall is not always impermeable. In 1984, the Supreme Court held that putting a Christ’s nativity scene in a seasonal display in a public park was not unconstitutional. It was not a step towards an official religion. The five to four split in the court shows the difficulty and sensitivity of the issue.

Here, the Constitution does not ignore religion: Look at the Kadhi’s Courts provision, the Preamble (“God Bless Kenya!”) and Article 32 itself. We cannot say there is a wall between the State and anything religious.

Kenya could be described as demonstrating a level of religious pluralism.

In the Mohamed Fugicha Case, the Court of Appeal allowed students to wear hijab as an addition to their school uniform. To deny them this did amount to discrimination. The court did not accept the rigid school uniform based arguments accepted in an earlier case involving Kenya High School. It ruled that a reasonable adjustment to school uniform rules should be agreed, allowing expression of religion, and fitting in with the school uniform colour scheme.

Nonetheless, there is a level of irony in that the people of Kenya (or their officials) are not fully embracing of all beliefs, as compared, perhaps, to the courts. In 2016, the Registrar of Societies tried to suspend the registration of the Atheists Society of Kenya. The reasons given were that it would affect the peace and good order in the country, ignoring freedom from religion. The High Court, however, held that the suspension was invalid. It did this on the basis that the Registrar had not given proper notice and a chance for the Atheists to put their own case). So there had been a breach of Article 47 on fair administrative action. The court did not have to decide if Article 32 was violated.

To limit any rights, including under Article 32, Article 24 must be applied and the question would be whether limiting the right has any legitimate aim and, if so, whether achieving the aim needed refusal of their registration.

Realistically, public spaces in Kenya are time and time again infected with religious affiliations and expressions such as preaching in public spaces, beginning national ceremonies with prayer and the National Anthem begins with a declaration of God as the Creator of all. Prayers are sometimes not limited to one religion; they may include Muslim and even Hindu prayers, but this is not universally the case. Neutrality may be aimed at, but is often not achieved.

Section 78 of the 1969 Constitution protected each individual’s “freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest or propagate his religion or belief in worship, teaching, practice and observance.”

The Section also included clauses on oath swearing, religious education and specifically provided for limitation in the interest of defence, public safety, public order, public morality or public health (the style of the old constitution, which seemed to place more emphasis on limitations on rights than on the rights themselves).

The 2010 Constitution increased diversity in the public sphere, as in giving the Kadhis’ Courts jurisdiction throughout Kenya rather than only within the former Protectorate (coastal strip) as in the previous Constitution. This also recognised the reality that Muslims are found in any county, and treats them all equally. It overruled a rather peculiar case holding, in May 2010, that Kadhi’s courts were an unconstitutional part of the old constitution.

DILEMMA FOR COURTS

Nonetheless, even in legal pluralism, states’ complete freedom of religious expression cannot be truly realised. One Garreth Prince, a Rastafarian, admittedly partook of cannabis as a form of religious expression. He failed to convince the South African Constitutional Court, the African Commission of Human and Peoples Rights, or the UN Human Rights Committee that prohibiting its use, an admitted violation of his religious freedom, was unjustified.

The Commission held that the right to practice one’s culture does not grant “unfettered power to violate the norms that keep the whole nation together”. The dilemma is shown by Justice Sach’s dissent in the court. He said allowing use of cannabis as “a core sacramental aspect of Rastafari belief and practice” could be done without unduly harming the broader campaign against harmful drugs.

States that are equidistant from any and all religions have included France and Turkey. Key examples are cases where applicants claimed that their right to freedom of expression of religion was limited by not being allowed to wear a hijab in a public school or university. The European Court of Human Rights has several times ruled that the right may be limited to protect the rights and interests of others, or safety of the individual.

The European Court may seem to be more towards the rigid separation end of the continuum- claiming that religious manifestation ought to be left to the private sphere. However, in the European (and African) international institutions, serving many nations, the idea of a “margin of appreciation”

— allowing some space for countries to decide limitations on rights in the light of their own history, culture and traditions.

Secularism is part of the history of France and Turkey, the former being more secular as seen from the recent ban on burkinis, or any swimwear that does not uphold the values of secularism in certain municipalities.

When an individual country, such as Kenya, chooses to adopt a formulation of rights, its courts decide how it will be interpreted.

No “margin of appreciation” is appropriate, though respect for the views of parliament and government is important.

WHEN IS NEUTRALITY POSSIBLE?

Paradoxically, states with an established religion may also claim to be neutral. In England, with its established religion, religious defamation laws were interpreted to protect only Christianity, even in the 20th Century. But this was largely to avoid extending what the courts considered an anomaly and those laws were abolished in 2008.

In reality, England is a very secular country.

On the other hand, violations of Article 18 of the Universal Declaration of Human Rights in states such as Saudi Arabia and Pakistan prove clearly that neutrality seems impossible in countries that are not secular.

In the words of the Archbishop of Canterbury, it is impossible to accommodate everyone’s religious beliefs and practices. Neutrality

will, therefore, forever remain a theoretical concept. After the promulgation of the 2010 Constitution, we are a step closer to true neutrality but have not yet reached absolute neutrality or absolute religious pluralism. The courts, however, have taken us closer towards this realisation.