The Court of Appeal has ruled that it is against the law for schools to compel students from different religions to follow the institution’s faith.
This follows a case in which the Law Society of Kenya and nine learners challenged the decision by St Anne’s Primary School in Ahero, Kisumu County, to force students to attend Mass every Friday morning.
Schools will now abide by a March 2022 circular by the Ministry of Education Principal Secretary advising on the need to respect the religious rights of learners.
The circular stated that with the government allocating resources to ensure all children are in school, school administrators and managers are to take into consideration chapter four of the Constitution on the Bill of Rights along with and the Basic Education Act, 2013 in protecting the rights of the learners.
The judgement reads in part: “Although the circular was not in existence when the facts in issue arose, I think that going forward it is a useful guideline in respecting and enforcing the religious rights of learners, and school administrators would do well to heed to it.”
Justice Patrick Kiage, Francis Tuiyot, and Joel Ngugi said this in a judgment in which they overturned a High Court decision that had made it mandatory for St Anne’s students, to attend Mass every Friday morning.
“The school ought to have allowed the students to practice their respective religions while still complying with regulations, considering that it was a public institution. School rules and regulations that provide for a mandatory 30-minute Mass every Friday morning for all children are indirectly discriminatory, unconstitutional, and invalid,” Justice Kiage ruled.
The court found that a meeting of the school’s board of management dismissed the concerns of the appellants demanding that they be exempted from the mandatory 30 minute Catholic Mass every Friday morning.
Refusal to attend mass
The court stated that the action of the school amounted to indirect discrimination, and constituted a violation of her right to education and right to dignity.
“In the end, I would allow this appeal. A declaration be and is hereby issued that the 1st appellant’s expulsion from school on the basis of her religious views amounted to indirect discrimination; constituted a violation of her right to education and right to dignity and is therefore null and void.”
It further found that the first appellant (a learner) was expelled by the school for refusal to attend the compulsory Friday Mass, and was later re-admitted on condition that she would attend the Mass, and was made to sign a declaration to that effect.
The appellants had complained before the court that the rule that required every student to attend a compulsory Catholic Mass every Friday morning, grossly violated Articles 32(1) and (2) of the Constitution.
Articles 32(1) and (2) provides for freedom of conscience, religion, thought, belief, and opinion, as well as the right to manifest any religion or belief through worship, practice, teaching, or observance of any day of worship. The school opposed the petition, arguing that before admission, the 1st to 9th appellants were made aware of the rules and regulations including the Friday Mass at 7 am.
The school had received a letter signed by the parents of the 1st to 9th appellants requesting that their children be exempt from all interfaith activities.
But the institution argued that it would have granted the nine learners reasonable religious accommodation by exempting them from the Friday Mass if they could prove that their faith was a genuinely held belief.
