Queries about one's religion during job interviews illegal

 

In the recent past, there has been mention of religion and belief before at least one constitutional commission during interviews for public office. The question put to the candidates seemed to suggest – though not explicitly – that there should be a religious test for public office.

It’s important to clear the air on this key question so that future interviews don’t broach the question of religion unless it involves the interpretation of the Constitution, or the questioner can demonstrate the legality and constitutionality of the question, or its relevance to the public office sought by the interviewee. The default position is that questions about a candidate’s religion or belief are prima facie illegal and unconstitutional. It’s a no-go area.

I preface this column by acknowledging that most Kenyans are religious and largely adhere to the messianic Abrahamic faiths – Islam and Christianity. But many – perhaps a majority of those – also hold vestiges of religion and belief in African pre-colonial, pre-Christian, pre-Islamic religions. It’s not unusual for a Kenyan who is Christian or Muslim to espouse religious beliefs inherited through his or her ethnicity.

In fact, the Christian and Muslim faiths in Africa have been counter-penetrated and radically transformed by African religions and beliefs. There are many Kenyans of Hindu, Baha’i, Jewish, and other faiths. Kenya has always had atheist and agnostic communities. The truth is that Kenya a rich kaleidoscope of religions, beliefs, and non-beliefs.

Kenya’s 2010 Constitution makes reference to religion and belief in three key provisions. In the eyes of the Constitution, no religion, belief, or non-belief is superior to another. The Constitution first mentions god, religion, or belief in its Preamble. In a majestic provision, the Preamble states that “We, the people of Kenya [Acknowledging of the Almighty God of all creation].”

It’s important to note that the reference here is not to “all” the people of Kenya, but to “the people” of Kenya. The drafters would have included “all” if they intended that invocation to refer to “every” Kenyan – whether dead, alive, or unborn. The drafters understood in their wisdom that such a construction would’ve been unconscionable, nonsensical, and dictatorial.

The Preamble closes with the simple statement “GOD BLESS KENYA.” It’s curious that those three words are in capital letters. The drafters must have been overcome by a momentary frenzy of religious zealotry. I take that as emphasis on the place of religion in the private lives of most Kenyans.

In fact, Prof John Mbiti, one of Kenya’s academic giants – the world renowned religious philosopher – famously wrote in his seminal 1969 book African Religions and Philosophy that “Africans are notoriously religious.” He may be right. But I shall not interrogate the whys and wherefores of that startling conclusion here. Suffice it to note that Kenya, like elsewhere in Africa, is mostly populated by penitents who look up to superior beings.

No State religion

A preamble to the Constitution, statute, or treaty is important but it’s not technically an enforceable part of the text. Rather, the preamble serves as a benchmark or a brief succinct introductory statement of the principles that undergird the full text, and which signal the spirit in which the text ought to be interpreted and understood.

So the pre-ambler section of the Constitution doesn’t require – nor could it – Kenyans to belong to a religion. In fact, the Constitution wastes no time in underlining this core tenet. It provides – in the text, which is the enforceable part of the Constitution – in Article 8 that “There shall be no State religion.” This is cut and dried statement leaves nothing to the imagination.

Article 8 prohibits the establishment of any state religion. Thus the state shall not – and this is a negative fiat – impose, encourage, fund, support, require, or in any way advance any religion within the Republic. The state, any of its organs, or any state official acting under the color of the law are prohibited from advancing a religion or use religion as a litmus test for a public benefit or office. That’s why a constitutional commission isn’t permitted to ask a candidate to divulge his or her religious beliefs, or lack thereof, in the course of determining qualifications for a public office. Such a question is per se discriminatory, prejudicial and unconstitutional.

Article 32 on the freedom of conscience, religion, belief, and opinion settles the matter once and for all. Every person has a right to belong to a religion – or not – and to manifest it alone, or with others. No person can be forced to act contrary to their religion or belief. It states “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.” Kenya is a secular state. This is constitutional law 101.

The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua.