In 2016 during the vetting for the post of Chief Justice by the Judicial Service Commission, Court of Appeals judge David Maraga (as he then was) surprised many by stating that he would not enter the courtroom on Sabbath(Saturday) even in a presidential election dispute. Responding to one commissioner’s question on the subject of his Seventh Day Adventist faith that worships on Saturday and his duties as the CJ, Justice Maraga stated, “It would be very difficult for me to sit on a Saturday to hear a case. I would rather talk with my colleagues in the court to accommodate me and exempt me from sitting if the hearing extends to a Saturday.” He then added that only a matter of life and death would make him not attend church on Saturday. He went on to be nominated as the Chief justice of Kenya succeeding Chief Justice Mutunga.
What is the Seventh Day Adventist Church?
The Seventh Day Adventist Church is a Christian denomination with about 65,000 churches and 17 million registered members globally. Kenya has about 7,000,000 registered members and many more unregistered. One of the 28 fundamental beliefs of the church is the obligation by the members to respect and observe the Sabbath on the seventh day of the week, from sunset Friday to sunset Saturday. During the Sabbath, Adventists are not allowed to work or go to school. The Adventists congregate in their respective churches every Saturday to worship and fellowship together.
Right to Worship
Earlier this month the Court of Appeal in Kenya ruled that Seventh Day Adventist students in schools are to be exempted from Saturday classes, examinations, cleaning duties and any other program. The ruling by the three justices: Milton Makhandia, William Ouko and Kathurima M’Inoti also ordered the Education Cabinet secretary to draft a memo ordering public schools to respect SDA students’ right to worship. This cemented the students’ right to worship enshrined in the Constitution. This is a relief for many students who have had to make a decision between participating in school programmes and practicing their religion. The appeal was filed by the SDA church on behalf of Adventist students in Kenya after the High Court rejected their claim that their freedom of religion and right to worship according to Article 32 of the Constitution had been violated.
High Court Petition
The SDA church had filed a petition on the 24th of September 2012 at the High Court’s Constitutional and Human rights division against the Ministry of Education, the Attorney General, Alliance High School (interested party), the National Gender and Equality Commission was Amicus Curiae. It was the church’s case that there was violation of the right to freedom of religion as guaranteed under Article 32 of the Constitution for students professing the Seventh Day Adventist faith across the country. The church among other prayers sought the court to declare that as a consequence of the Respondent’s failure to act in accordance with their constitutional and statutory obligations, the rights under Article 32 of the Constitution and Section 26 of the Education Act of students who subscribe to the Seventh Day Adventist faith have and are being violated. The church argued that the fundamental beliefs of the church are predicted upon the Bible which constitutes their only creed and hold certain beliefs to be the teaching of the Holy Scriptures. The church alleged that several public schools- which it named-including Alliance High School restricted and curtailed the opportunities available for Adventist students to worship and fellowship during the Sabbath hours. Some students had been suspended for failing to attend Saturday classes; missing examinations conducted on Saturday and are not exempted from cleaning duties on Saturday. Others were given an option of leaving to find another school or making an undertaking that upon re-admission they will abide by the Saturday programs. The High Court presided by Justice Lenaola however dismissed the petitioner’s prayer arguing that the programmes run by the Respondents were not discriminatory as they are applicable to all students from diverse religious beliefs. The Justice further added that exempting the Adventist students from the school‘s programs would mean to grant them accommodation which would in return be cumbersome and chaotic to the interested party and other public schools. It is the premise of this that the SDA church went on to make a successful appeal.
This is an interesting jurisprudence for Kenya and East Africa for the freedom of religion and it would inevitably trigger another petition on matters concerning employment and employees’ right to worship on a day the employee considers a day of work.
BY FELIX OMBURA
This article appears in our digital law magazine, The Deuteronomy Vol 3, Issue 3 of March 17th, 2017
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