The Right to Religion and Business
Author : CS. Kevin Wakwaya
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- Rachier & Amollo LLP, Mayfair Center 5th Floor
The Right to Religion and Business
CS. Kevin Wakwaya
Article Overview
This insight examines how Kenyan courts are increasingly enforcing the right to freedom of religion in contexts that directly affect institutions, employers, and contractual relationships. Using recent employment and education decisions, it highlights the courts’ preference for protecting individual belief through “reasonable accommodation”, including rescheduling work obligations that clash with a day of worship.
The article then raises the business-facing question: how far can religious rights reshape contractual obligations such as working days, institutional rules, and freely negotiated terms? It argues that without clearer legislative guidance on balancing competing rights, the scope of accommodation remains uncertain and may generate more conflict, especially where a contract term is later challenged as “harmful” to a person’s religious beliefs.
Key takeaways
- Horizontal application trend: the piece notes the growing judicial willingness to apply constitutional rights in private relationships, especially employment.
- Employment case anchor: in Scoline v Healthink Matcare Ltd t/a Nairobi Women Hospital (Cause No. 1620/2018 eKLR), the court held that an employee should not be compelled to work on a day of worship, and that key meetings could be reasonably rescheduled.
- Schools and religious accommodation: the article references decisions where students challenged forced participation in religious activities, including Phillip Okoth and LSK v BOM, St Anne’s Primary Ahero (Civil Appeal 173 of 2020), and discusses the broader accommodation debate in schools.
- Religion expression cases highlighted: it cites litigation touching on hijabs, dreadlocks, and non-belief, illustrating how courts have treated religious identity and practice as constitutionally protected (with varied outcomes depending on the facts and procedure).
- Constitutional anchor: emphasis is placed on Article 32(4), which protects individuals from being compelled to act contrary to their belief or religion.
- Business tension: the article questions how these principles affect freedom of contract and pacta sunt servanda (agreements must be kept), especially where contract terms conflict with religious practice.
- Reasonable accommodation is unclear: courts often point to “modus vivendi” or reasonable accommodation, but the article notes there is no consistent formula on limits, timing, or what constitutes undue hardship.
- Comparative reasoning on consent and harm: drawing from Kamau v Attorney General & 2 others (Petition 244 of 2019), the article suggests that consent to a contract may not cure a term that is “harmful” to a constitutional right, raising future litigation risk in employment and commercial relationships.
- Practical implication flagged: the piece poses real-world scenarios (for example, an employee’s change of faith after contracting) and highlights that balancing may require Article 24 limitation analysis and evidence of hardship.