Mr. Omtatah's faith and our rights

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.

PR isn't enough

Article 10 of the Constitution of Kenya rarely attracts attention save for when it is waved in State and public officers' faces with demands for "public participation" whenever Government engages in secretive public policy shenanigans. But Article 10 is much more than the "public participation" Article; it is the foundation for the safeguarding of our rights and fundamental freedoms enshrined in Chapter Four. Without Article 10, the State - especially the State - will run roughshod over us and make a mockery of Chapter Four. And where the State goes, so go the rest of the country.

One of the principles by which "all State organs, State officers and public officers" are bound, is the principle of good governance, integrity, transparency and accountability. It goes hand in hand with our right of access to information held by the State under Article 35, which contributes enormously to our sovereign right as citizens to hold State and public officers to account. In my humble opinion, the Nairobi Metropolitan Services, its Director-General and everyone connected to this demonseed, make a mockery of Article 10 and the principle of good governance, integrity, transparency and accountability.

I have had occasion to joust with the proponents of the militarisation of public services and, even accounting for their deep frustrations with the way Nairobi's governors have governed, I can find no persuasive reasons for why they would simply allow NMS to operate the way it does and fail to connect its perfidious approach to transparency and accountability as of a piece with the ineptitude and graft of Nairobi's City Fathers.

Don't get me wrong. I enjoy well-paved and well-lit city streets, efficient water and sanitation services, effective public health facilities, and predictable rule-enforcement in building and construction. But, even taking into account the shenanigans of Messrs Sonko and Kidero and their bands of misfits, we knew who was responsible for what. We could identify them. We knew how much the County Assembly had appropriated for their operations. We new the rationalisations behind their decision-making because, by law, they had to publish their plans in advance. This is the transparency part of the equation. And because we knew, our elected representatives could demand action if there were lapses. Or failing that, we could sue. This is the accountability part of the equation. And all go to satisfying another of Article 10's principles: the rule of law.

The NMS has an effective public communications strategy. It has effectively publicised its successes in paving city streets, repairing city equipment and making lofty-sounding promises such as building new hospital facilities or hiring healthcare workers. It has been so good at PR that few question any more whether or not the rationale behind NMS is founded on the quicksand of constitutional hooliganism. In my opinion, the only difference between Mike Sonko and NMS is that NMS covers itself with the veneer of martial discipline. Rub some of its soft skin off and the casual constitutional violations are plain to see, not the least being fidelity to the principles and values of governance of good governance, integrity, transparency and accountability - and the rule of law.

It could be that the NMS has fine Kenyans in it, law-abiding and honourable. But so long as they piss on Article 10 with the same reckless abandon as NMS's creators, there is absolutely no reason why we should give them a free pass simply because they are very good at laying coloured cabro in town. If there is a place to draw the constitutional implementation line in this cesspit, it is with fidelity to Article 10 for ALL State and public officers, their do-gooding notwithstanding. If you can't obey the Constitution, then you have no business in public service, army-fatigue PR notwithstanding.