Tuesday, May 17, 2016

Bad ideas are not unconstitutional

Article 27 guarantees equality and prohibits discrimination. The Preamble to the Constitution states that "We, the people...adopt, enact and give to ourselves and to future generations this Constitution." In other words, the declaration of equality and the prohibition of discrimination are made by the people of Kenya. The Constitution is supreme and no one has the authority to supersede its declarations. That includes faith-based orgnisations.

Among the functions of the national Executive is the registration of associations of like-minded persons in order to regulate their conduct and to prevent them from committing offences. Registration is undertaken by different officials and agencies, including the Office of the Attorney-General. Registration is undertaken in accordance with the law.

An association known as Atheists in Kenya sought registration by the Registrar of Societies under the Societies Act. The office of the Registrar is an office in the Office of the Attorney-General. The Registrar refused to register the association. The High Court disagreed with the decision of the Registrar and ordered that the registration be effected and a registration certificate be issued to the association. Leaders of faith-based organisations disagreed and demanded the deregistration of the association. The Attorney-General, seemingly acquiescing, ordered the Registrar to "suspend" the registration of the association pending a determination of the suitability of the registration. This was a strange decision.

The Societies Act has a procedure for the deregistration of an association. The grounds for deregistration are set out in the Act too. More importantly, though, the non-discrimination clause in the Constitution prevent atheists from being treated differently by the State, including by the Registrar of Societies or the Attorney-General. Article 27(4) states,
The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
The members of the atheists' association are protected by this clause. Simply because they do not believe in deities, and faith-based organisations are founded on that belief, is not a justifiable ground to treat them other than as provided in the Societies Act, the law under which their association was registered. It matters not that the Preamble declares that "We, the people, Acknowledge the supremacy of Almighty God of all creation" or that it ends with the prayer, "God Bless Kenya." Simply by declaring that the State shall not discriminate against any person on any ground is sufficient to protect the atheists from being treated differently by those who do believe in deities.

Kenya might not be an absolutely secular nation but it is not a theocracy either. The mere acknowledgment of "God" in the Constitution does not make Kenya a theocracy. Article 8 is plain enough: There shall be no State religion. The registration of the atheists' association does not in any way infringe upon the rights of the faithful. The atheists have an equal right to "to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship" as members of faith-based organisations. This right also includes a right not to believe.

The Registrar of Societies and the Attorney-General must demonstrate that there is a state interest in preventing the registration of the atheists' association (which they attempted and failed to do so before the constitutional court) and that the registration is not in the best interests of the State or "We, the people." I can find no state interest in such a discriminatory approach. Simply attacking the idea of the existence of deities is not an infringement on the rights of the faithful. It is an exercise of the "freedom to seek, receive or impart information or ideas" protected by Article 33.

No comments: