Shakahola must not drive State to undermine religious freedom

Kenyan televangelist and the head of the New Life Prayer Centre and Church Pastor Ezekiel Odero when he appeared before the Senate ADHOC Committee investigating the Shakahola deaths at Parliament on October 13, 2023. [Boniface Okendo, Standard

The public aspect of freedom of religion, the right to manifest one's belief in worship, observance, practice or teaching, is subject to Constitutional limitations. However, defining the meaning of freedom is complex.

Illustratively, could a belief in support for the notion of suicide as a ticket to heaven be supported as a manifestation of religious belief? Can denial to pay taxes be defensible on grounds of religion? Can swearing of oaths of allegiance be accused of violating the right of belief?

There has been escalating public attention on freedom of religion in Kenya in the last few months. This hullabaloo follows religious indoctrination, chauvinism and the Shakahola massacre.

This assumes relevance in the background of Pastor Ezekiel Odero's summoning by the Senate. Some of the questions posed to him included whether he was okay with the State pre-censuring religious materials and sermons before they were presented in church programmes.

Odero's response to which this opinion subscribes is that of temperance. The Constitution expressly prohibits religious discrimination. It provides for freedom of religion and belief individually or in communities. The freedom to manifest any religion through worship, practice, teaching, or observance and to debate religious questions falls within this boundary.

Freedom of conscience and religion does not exist in isolation. It is fully enjoyed in concert with other rights. Thus, the rights to freedom of speech, expression, assembly and association are fundamental to holding religious beliefs and practising one's religion.

Opinions and views would be meaningless until they have been expressed. Convictions would make sense only if they are articulated. The private freedom of thought and religion is sweeping in its nature and does not allow any restriction.

The guarantee and significance of freedom of thought and religion bars coercion that would impair the right to retain one's religion or belief, including threats of violence. It detests any conduct calculated to alter one's process of thinking.

Nobody can be constrained to express thoughts, modify opinions, or disclose a religious conviction. The freedom of thought and religion does not permit training and guidance by the State. Nor would it permit the setting of minimum academic criteria.

In the case of Phillip Okoth and LSK v. BOM, St Anne's Primary Ahero, 2023, the Court of Appeal censored the school for coercing students to dilute their religious holdings and beliefs.

The court emphasised the duty of courts to examine limitations under Article 24 in their entirety so as to appreciate the reasonableness and justifiability of the restriction. This view was affirmed in Seventh Day Adventist Church v. Minister for Education in reiterating the importance of a balanced and thorough evaluation of the limitation of rights.

Emphasising the dangers of censorship, including pre-censorship of the press, the Supreme Court of India in Maneka Gandhi v Union of India held that democracy is based essentially on free debate and open discussion, for that it is the only corrective of government action in a democratic setup. As such, it is obvious that every citizen must be entitled to participate in the democratic process in order to enable him/her to intelligently exercise their right to make choices.

The American Supreme Court in Associated Press v. US, referring to the First Amendment, observed that it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail rather than to countenance monopolisation of that market whether it's by the government itself or a private licensee. Apparently, international best practices detest any governmental restrictions on freedom of religion.

Surely, the propagation of religious teaching in places of worship is the foundation of the existence of protection. Thus, it is a protection that calls for the highest responsibility from the ministers of God. Loudspeakers and other related sound systems are not essential or integral to the observance of any religion.

Thus, they do not merit protection of the fundamental right enshrined under Article 32. I maintain my position that lawful taxation on commercial activities of the church having nothing to do with freedom of religion is valid.

On the whole, the Constitutional threshold under Article 24 must be attained. A right or fundamental freedom in the Bill of Rights shall not be limited except by law. Such limitation should be reasonable and justifiable in a democratic society.

Relevant factors like the nexus between the limitation and its purpose and whether there are less restrictive means to achieve the purpose need to be explored as a matter of necessity. Anticipated danger must be proximate, having a direct nexus with the religious practices intended to be limited, comparable to a spark in a powder keg.

The writer is an Adjunct Lecturer at the School of Law, Africa Nazarene University.

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