A Landmark Victory for Freedom of Religion in Kenya: The Court of Appeal’s Judgment in Phillip Okoth and LSK v BOM, St Anne’s Primary Ahero

by | Jun 7, 2023

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About Miracle Okoth Mudeyi

Miracle Okoth Mudeyi is a finalist student at the University of Nairobi. Mudeyi is part of the group that is currently working on developing a compendium on the right to health for the International Commission of Jurists – Kenyan Section. He currently works as a Legal researcher at Chimera and Kamotho Co. Advocates and as a Litigation Volunteer at Justice Defenders Organization. For his work on election law in Kenya, Miracle won the CB Madan Student Writer’s Prize 2022.

His research interests include but are not limited to transformative constitutionalism, mental health law, Public International Law, third-world approaches to international law, International Economic Law, human rights, alternative dispute resolution, administrative law, and sexual and reproductive health rights. He can be contacted via mudeyi_miracle@uonbi.ac.ke

In a ground-breaking decision, the Court of Appeal at Kisumu delivered a judgment that carries far-reaching implications for the protection of freedom of religion in Kenya. The case of  Phillip Okoth and LSK v BOM, St Anne’s Primary Ahero [2023]  centres around the fundamental right of students belonging to the Jehovah’s Witness denomination to refrain from attending mandatory Catholic Mass and non-classroom interfaith activities in school. This landmark ruling firmly holds that schools cannot coerce students to abandon or compromise their religious beliefs.

The Court of Appeal unequivocally held that compelling students to participate in interfaith activities that contradict their faith is a direct violation of their freedom of religion under Article 32 of the Kenyan Constitution. The judgment sends a resounding message that the rights and beliefs of all individuals, including children and young people, must be respected and protected. The protection of the right to education as well as the right to freedom of religion is qualified by international and regional human rights instruments.

The court emphasized the duty of judges to conduct a comprehensive analysis under Article 24 of the Constitution when considering limitations on fundamental rights. This approach ensures that judges do not selectively apply standards from the limitation clause, but rather examine the entirety of the provision to assess the reasonableness and justifiability of the restriction. This view was affirmed in Seventh Day Adventist Church v Minister for Education. In reiterating this principle, the Court of Appeal at Kisumu has underscored the importance of a balanced and thorough evaluation of the limitation of rights.

Moreover, the judgment reiterates the concept of reasonable accommodation, a principle that has been recognised and upheld in previous decisions. Reasonable accommodation requires institutions, including schools, to make adjustments that enable individuals to practice their religion without undue hardship or discrimination. In the case at hand, the Court firmly declared that St Anne’s Primary Ahero had failed in its obligation to reasonably accommodate the religious beliefs of Jehovah’s Witness students by compelling their participation in Catholic Mass, which in turn was also a violation of the learners’ right to access education as stipulated in the Basic Education Act of 2013.

The Court’s ruling in Phillip Okoth and LSK v BOM, St Anne’s Primary Ahero is not only a victory for the Jehovah’s Witness community but also a significant milestone in safeguarding freedom of religion in Kenya. It emphasises the importance of respecting and upholding the individual’s right to practice their faith without coercion or imposition. This position has similarly been reiterated by the Government of Kenya itself.

This decision resonates with similar judgments across various jurisdictions that have recognized the constitutional right to freedom of religion. In cases such as the United States Prince v Massachusetts and Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart in South Africa, courts have affirmed the need to protect religious freedom and to ensure that individuals are not compelled to act in contravention of their beliefs.

The Court of Appeal’s judgment sets a powerful precedent, reminding educational institutions and society at large of the fundamental values enshrined in the Constitution—values that prioritise diversity, inclusivity, and the protection of individual rights. It serves as a reminder that no one should be forced to abandon or compromise their religious convictions in any setting, particularly within the educational sphere. It also illuminates the significant role that the Kenyan judiciary has played in generating political momentum by shedding light on constitutional matters related to religious freedom, as evidenced in this case.

The decision also carries broader implications for the promotion of a harmonious and tolerant society. In upholding the rights of Jehovah’s Witness students, the court reinforces the notion that diversity and pluralism are essential components of a democratic society. It affirms that fostering an environment of respect and understanding for different religious beliefs is vital for social cohesion and the cultivation of a truly inclusive nation.

The Court of Appeal’s judgment in Phillip Okoth and LSK v BOM, St Anne’s Primary Ahero thus marks a significant milestone in the protection of freedom of religion in Kenya. It highlights the imperative of respecting and accommodating the religious beliefs of individuals, particularly within educational institutions. This landmark decision also has an important representational function in the liberal democracy context, avowing the importance of upholding the principles of religious freedom, equality, and tolerance.

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