The Devil’s in the Dictum: the Kenyan Court of Appeal Wishes Away the Inviolability of the Right to Hold a Religious Belief

by | Jul 5, 2017

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About Alvin Attalo

Alvin Attalo is an LL.M candidate at the University of Kent, pursuing his Masters in International Human Rights and International Criminal Law. He is an Advocate of the High Court of Kenya with a Post Graduate Diploma from the Kenya School of Law and a Bachelor of Laws degree from Moi University School of Law. Alvin has a keen interest in Transnational law with a specific focus on international human rights, refugee law and international criminal law. Alvin is also an expert on matters EAC Treaty Law and Regional Integration, having handled a number of assignments pertaining the same in the East African Community.

Citations


Alvin Attalo “The Devil’s in the dictum: the Kenyan Court of Appeal wishes away inviolability of the right to hold a religious belief” (OxHRH Blog, 5 July 2017) <https://ohrh.law.ox.ac.uk/the-devils-in-the-dictum-the-kenyan-court-of-appeal-wishes-away-inviolability-of-the-right-to-hold-a-religious-belief/> [Date of access].

High school students subscribing to the Seventh Day Adventist faith have cause for celebration. In Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 othersKenya’s Court of Appeal moved to guarantee their right to manifest their faith by observing Sabbath from sunset Friday to sunset Saturday. The case is of importance because there has been a growing trend toward schools curtailing students’ religious freedom by making Saturday classes compulsory and assigning the adherents of the Adventist faith cleaning chores on Saturdays. Though the case delivered a much anticipated victory, the route it took to that decision was not beyond question.

The Court’s decision

The court had to determine whether denying SDA students a day of worship was an infringement of their Article 32 right to religion under the Kenyan Constitution. One of the arguments tabled by the respondent was that the students had waived their right to religion by consciously enrolling into the respective schools knowing full well that the schools had a seven-day-mandatory-class attendance policy. Rejecting this argument, the Court stated that its jurisdiction to enforce the Bill of Rights couldn’t be ousted by a student’s waiver of rights.

A second argument propounded by the respondent was that it was reasonable and justifiable to limit the SDA students’ freedom of religion. This was because of the diversity of the students’ religion coupled with the need for equal treatment. Rejecting this argument, the Court stated that equality, contrary to the inference made by the respondent, does not presuppose the elimination of differences. The Court further found that ignoring the SDA students’ belief in the Sabbath and requiring them to join students belonging to other denominations that worship on Sunday amounted to discrimination.

However, in an unexpected twist, the Court stated that, under Article 32, both the right to hold a religious belief and the right to manifest such a belief are equally subject to general limitations under Article 24 which governs the limitation of rights.

Position under international law

Under international law, freedom of religion is divided in two: forum internum, which means the right to hold a religious belief and forum externum referring to the right to manifest a religious belief. This is reflected in General Comment 22 by the Human Rights Committee on Article 18 of the ICCPR which stipulates that there are no limitations on forum internum.

The International Court of Justice has previously in the Ahmadou Sadio Diallo decision pronounced on the authoritative character of the views by the Human Rights Committee and other treaty bodies. Though not binding on Kenya, such judicial decisions are a source of international law under Article 38 of the ICJ statute, with a persuasive character. These, under Article 2(5) of the Constitution are recognised as being part of Kenyan law.

 The Court’s Misrepresentation of the ICCPR

The Court of Appeal however, appears to have been reading from a different script. According to it, both the ICCPR and the UDHR do not distinguish forum internum from forum externum and used this to arrive at an erroneous conclusion that forum internum is subject to the same restriction as forum externum. Yet Hudoyberganova v Uzbekistan, a case pertaining to a violation of Article 18 of the ICCPR, emphasises the HRC’s reaffirmation of the unassailability of forum internum.

Article 32(4) of the Kenyan Constitution stipulates that one cannot be compelled to act against their personal belief or religion. The Constitution thus recognises the inviolability of forum internum. Further, Article 2(6) of the Kenyan Constitution recognises Kenya’s obligations under international law with regards to treaties. Since the VCLT prohibits invocation of a State’s internal law in justification of its failure to perform a treaty, the Court would be obliged to read a distinction into Article 32 in fulfilment of its obligations as a signatory of the ICCPR if none existed. However, the Court of Appeal, unaware of the fact that Article 18(2) of the ICCPR protects forum internum, delivered a judgment that breaches Kenya’s ICCPR obligations.

Notable also is the Court’s error in finding that the ECHR (Article 9) provisions differ substantially from the UDHR (Article 18), because the former is inspired by the latter. From the above it is evident that the end, in this instance, certainly does not justify the means. While this was a good decision, it certainly was based on a bad foundation.

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2 Comments

  1. miyawa maxwel

    Great intellect. Now pursue an LL.M at Oxford or Harvard. So proud of you.

    • Alvin Attalo

      Hahaha! I’m humbled Mr. Miyawa. I pray God allows me to.

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