The Court of Appeal in a landmark ruling has upheld the sanctity of the right to worship amongst officers serving in the Kenya Defence Forces (KDF)
Justices Daniel Musinga, Milton Asike Makhandia and Pauline Nyamweya dismissed an appeal by the Attorney General against a judgement that awarded damages to a KDF officer after he was dismissed for failing to report to work on his day of worship.
Two of the judges, Nyamweya and Musinga, concured that the soldiers’ rights were infringed while Justice Asike dissented.
“Since the right to worship is expressly recognized by the Constitution, it is my finding that the order by the respondent’s supervisor and commanding officer refusing the respondent permission to worship on Saturday was patently unconstitutional.” The majority judgement reads in part.
The Appeal stems from a case filed at the Employment and Laboour Relations Court by Polycarp Miyogo who contended that for the first ten years of his employment he would ask for permission in advance to worship whenever he had been assigned duty on his day of worship with a rider that if a distress call was made he would always respond as part of his teaching as a Christian.
However on May 31st 2012 his Supervisor denied him permission to go to church; he pleaded to be given half day but the officer in charge declined, and consequently he pleaded to be accorded only two hours for worship from 9 a.m. to 11 a.m., however the same was again declined.
He decided not to report to duty on 2nd and 14th June, disciplinary Disciplinary action was taken against him and he was consequently fired.
The ELRC held that his rights were infringed and awarded him damages, a ruling that was appealed by the A.G. and the Chief of Defence forces.
The Attorney General and the KDF argued that Polycarp- the aggrieved sodier- was denied right to worship as a ‘necessary to maintain good order and discipline in the Defence Forces.’
The Court of Appeal, however, dismissed the argument, saying it can only hold water in times of war or emergency, which was not the case when Polycarp was dismissed.
“No evidence was adduced by the appellants in the present appeal of any war, insurrection, hostilities or public emergency that was obtaining at the time to justify the denial of the respondent’s right to worship on grounds of operational exigencies” The Court said.
“The appellants urged that allowing the observance by the respondent to worship would also entail allowing this right to other members of the KDF and that this would lead to breakdown of law and order, without providing any evidence of this eventuality.” The judges added.
The judges criticised the leadership of KDF for its blanket refusal and non-recognition of the right of members of the defence forces to manifest their religious beliefs and to worship.
The judges warned that this could lead to harassment and victimization for officers who choose to exercise their right.
The soldier has been awarded Ksh. 8,000,000 in damages.
