Clause (2) of Article 32 of the Constitution states that, "Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance a day of worship." One of the ways one manifests their religion is to wear or display symbols of their faith, for example, like wearing a rosary.
"Every person" includes candidates for political office, such the office of president, the very office Okiya Omtatah is seeking. Not everyone is amused by how Mr. Omtatah's communications team has presented him so far in his exploration of whether or not he should offer himself for election as president. In one of the publicity photographs that accompanied his announcement, he is seen to be wearing a rosary. As usual, people are saying things about it and I am saying things about the things they are saying. QED.
One of the argument goes like this: Article 8 says that there shall be no state religion in Kenya. Therefore, Article 8 limits the right protected under clause (2) of Article 32 because Mr. Omtatah cannot seek the presidency with his religion as key cornerstone of his campaign. This is the wrong way to read Article 32 with Article 8.
First, if Mr. Omtatah proposes to seek the presidency on the basis that he is a good Catholic, he has every right to not only do so, but to campaign on the basis that his presidency will be influenced by his Catholic faith.
Second, what Mr. Omtatah cannot do is to impose Catholicism on Kenyans as a state religion or purport to appoint the Attorney-General, Cabinet Secretaries, Principal Secretaries, the Secretary to the Cabinet, the heads of the national security organs, the Director of Public Prosecutions, the chairpersons of state corporations, ambassadors and high commissioners, merely because they, too, profess the Catholic faith, and that the legislative proposals, statutory instruments, public policies, government programs and projects they initiate will be based entirely on the principles and values of the Catholic Church.
Third, the manner of limiting a right or fundamental freedom protected under Chapter Fourteen of the Constitution, including Article 32, is provided in Article 24. It is not Article 8 that limits the right protected under clause (2) of Article 32. A plain reading of Article 24 will demonstrate this. Three of the grounds for the limitation of a right or fundamental freedom are that the limitation shall be based on human dignity, equality and freedom. The demand that Mr. Omtatah must not profess his faith when campaigning, must not display the symbols of his faith whole campaigning, and must eschew the values and principles of his faith when campaigning, offends his dignity, denies that his reasons for seeking the presidency (if they include reasons tied to to his faith) are not the equal of more secular reasons, and denies himself the freedom protected by Article 32. The demand is unreasonable and unjustifiable in an open and democratic society.
In my opinion, Mr. Omtatah is not barred from seeking the presidency on the grounds that he professes the Catholic faith. That is not a valid ground from barring him from elected office. Anyone who objects to such a public display of religious values and principles that he or she disagrees with should campaign against Mr. Omtatah, by pointing out the risks he or she thinks Mr. Omtatah poses if elected. That person may point out to the harm done by men and women who profess the Catholic faith and why he or she thinks that so long as Mr. Omtatah publicly relies on his Catholic faith to make decisions affecting the lives of other Kenyans he should not be elected as Kenya's president. But there is absolutely no constitutional or legal ground for barring him from seeking the chance to stand in the presidential election.
This, I think, is the trap we fall into whenever we debate these things. We conflate our personal views about a person with sometimes erroneous interpretations of the law and then use this fallacious argument to support a patently wrongful conclusion. There are many Kenyans who are offended by the positions Mr. Omtatah has adopted because of his Catholic faith and his associations with organisations that promote many retrogressive ideas that are based on Catholicism. They fear that Mr. Omtatath's and those organisations' positions and ideas are a threat to Kenyans' rights and fundamental freedoms. If they feel strongly about it, the solution is not to find arbitrary justifications to violate Mr. Omtatah's rights and fundamental freedoms; the solution is to campaign against Mr. Omtatah or to campaign for a better candidate than Mr. Omtatah. That is what clause (2)(b) of Article 10 demands: human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.
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