13 - The Right to Freedom of Thought in Kenya

Summary

The right to freedom of thought is enshrined in Article 32(1) of Kenya’s 2010 Constitution. This right aims to facilitate democratic discourse, critical thinking, and societal progress. However, despite its constitutional protection, the right remains underdeveloped statutorily, in judicial decisions, and in academic literature. Ambiguity persists in defining and qualifying violations of this right, as no court has thus far engaged in a comprehensive analysis to establish its content and scope. Instead, it has been intertwined with discussions on the scope, application, and limitations of freedoms of expression, religion, belief, and opinion, being regarded as the essential inner element necessary for the exercise of these freedoms. This chapter examines the scope of the right to freedom of thought in Kenya and the importance of recognising it as an independent right, despite its interconnectedness with the aforementioned freedoms. Ensuring this recognition allows citizens to develop their own set of ideals and belief systems without facing coercion to disclose their thoughts, punishment for holding certain thoughts, impermissible alteration of their thoughts, or a lack of an enabling environment to hold and express their thoughts. To establish this, the chapter explores the historical and legal framework of the right to freedom of thought in Kenya and examines its interplay with related constitutional rights such as freedom of expression, belief, religion, and opinion. It addresses contemporary issues, including the impact of technology, surveillance, and cancel culture on freedom of thought. Recommendations are then made on its applicability and how courts and academics can navigate the complexities surrounding its scope, content, and limitations.