Freedom of thought, conscience and religion is a fundamental right enshrined in every convention or treaty on human rights. I doubt there is a constitution anywhere in the world which does not provide for this freedom. The freedom of thought, conscience and religion is so broad. It covers personal, political, philosophical, moral and religious inclinations. As such, we shall discuss it in parts. This is the first part.
For purposes of this article, we shall dwell on the freedom of religion in public schools. No statute defines what religion is. But from the decisions made by court on the subject, Religion is broadly defined as:
“Religion is a matter of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in a system of beliefs as conclusive to their spiritual wellbeing but will not be correct to say that religion is nothing else but a doctrine of belief. A religion may only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observations, ceremonies and modes of worship which are regarded as integral parts of religion, and those forms and observances might extend even to matters of food and dress. Religion is thus essentially a matter of personal faith and belief. Every person has the right not only to entertain such religious belief and ideas as may be approved by his judgment or conscience but also to exhibit his belief and ideas by such overt acts by his religion.”
Article 18 of the convention on civil and political rights provides for freedom of thought, conscience and religion, thus:
- Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
- No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
- The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
A similar provision is enshrined in the constitution of Kenya, under article 32, thus:
“(1) Every person has the right to freedom of conscience, freedom of conscience, religion, thought, belief and opinion.
(2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.
(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.
(4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.”
However, article 8 of the Constitution of Kenya is very clear. It states that ‘there shall be no state religion’
Religion is such a divisive factor. Most countries have cases of discrimination against the non-religious, the humanists and atheists. The most notable local case is when the Attorney General of Kenya, Githu Muigai suspended the registration of an atheist body, Atheists In Kenya (AIK) on ground among others that “the registrar has reason to believe that the interests of peace, welfare or good order would be likely to suffer prejudice if atheists in Kenya is registered as a society”
In Seventh Day Adventist Church East Africa Limited Versus The Minister of Education and others Petition 431 of 2012, where the petitioner sought the indulgence of court in the respondent’s curtailment of Sabbath hours for many students in the public schools in the country, court ruled that:
“I am convinced by the explanation given by the Interested Party that there has been no violation of the Adventists’ students rights and that the limitations to that right are reasonable. As it can be seen from the Affidavit of Mr. Kiniaru, the Interested Party has made arrangements to accommodate the religious needs of the SDA students, by allowing them some time to manifest their religion by way of worship. At Alliance, and I have no evidence that the other schools have different programmes, SDA students have only the hours of sunrise on Saturday to 11.00 a.m. The same day to engage in limited school activities. Thereafter, they have the whole day until sunset to do all that their religion requires. I have seen that most worship services at say the Maxwell SDA Church in Nairobi start at mid-morning on Saturday, and adherents drive to the Church, fuel those cars and engage in other necessary chores attendant to being a metropolitan. What is the difference with the very limited activities undertaken by students at Alliance?…. I say so also because, Alliance High School is neither a worship center nor a church, it is a school, whose main purpose is to impart knowledge on its students. The right to education under Article 34(1)(f) and 53(1)(b) does not in any way mean the right to attend certain Public Schools or the Interested Party’s school at the students’ own terms. That would in my view be tantamount to affecting the autonomy and academic freedom of the schools, which this Court is unwilling to do”
In Sharon and 2 others versus Makerere University, on whether it amounted to a violation of freedom of thought, conscience and religion, court held that:
“Article 20(2) imposes an affirmative constitutional duty on the respondent to respect ,uphold and promote the religious beliefs of the petitioners and other members of their faith. I do not agree that on the evidence on record the respondent forced the petitioners to participate in the respondent’s educational programmes on Sabbath Day. The petitioners should not have accepted the offer of admission since the terms and conditions were clear in the Freshers Joining Instructions for every academic year a copy of which was annexed as annexture A to the answer on the petition.
Clearly, the petitioners had a choice not to join the respondent. I agree, like all persons, under Article 30 they are guaranteed right to education but it is not confined to the respondent. There are many Universities and other tertiary institutions in Uganda, including Bugema University established by the Seventh Day Adventist Church and in other countries including Kenya. The petitioners did not have to choose the respondent as it was not compulsory. Besides, University education is not compulsory.”
Bottom-line, the freedom of thought, religion and conscience is not absolute. It should however be largely acceptable now that freedom of religion includes both the right to have a belief and the right to express such belief in practice, as has been ruled in several court cases
For a comprehensive report on freedom of thought, read the freedom of thought report. It reports on every country and draws examples for comparative analysis.
BY SAMALI BITALA
This article appears in our weekly digital law magazine, The Deuteronomy, Vol 9, Issue 3 of December 16th, 2016
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