Introduction

Article 32(1) of Kenya’s 2010 Constitution guarantees every person ‘the right to freedom of conscience, religion, thought, belief, and opinion’.Footnote ¹ While these freedoms each possess distinctive attributes, they are closely linked. They are also connected to the right to freedom of expression in Article 33(1) of the Constitution which encompasses the ‘freedom to seek, receive or impart information or ideas’, artistic creativity, as well as academic and scientific research freedom. While the rights to freedom of expression, religion, belief, and opinion have received significant attention and interpretation in judicial cases, the right to freedom of thought, considered on its own, has seldom been addressed in both court decisions and academic literature. Even when parties explicitly include it in their pleadings, it is often overlooked by courts.Footnote ² No court has thus far engaged in a comprehensive analysis to establish the content, scope, and limitations of this right. Instead, it has been intertwined with discussions on the scope, application, and limitations of freedom of expression, religion, belief, and opinion, being regarded as the essential inner freedom element necessary for the exercise of these freedoms. Thus, discussions about freedom of thought tend to occur indirectly or are implied in judicial reasoning.

Is there value in specifically addressing and providing judicial interpretation to the right to freedom of thought, establishing its content, scope, and limitations? Despite the apparent success of Kenyan courts in managing without explicitly doing so, this chapter argues that there is indeed significant value in clarifying the content, scope, and limitations of this right. Doing so ensures that subjective ideas and thoughts about various forms of expression, belief, religion, or opinion, particularly when they differ between the majority and minority, are not imposed as dogma upon the entire society.Footnote ³ It safeguards individuals’ subjective beliefs without subjecting them to judgement based on an ‘independent objective’ criterion, as long as these beliefs do not contravene the limitations in Articles 24 and 33(2) of the Constitution.Footnote ⁴ This recognition is particularly important in our pluralistic society, where the thoughts guiding people’s expressions, beliefs, religion or opinions ‘need not make sense to us in order for us to accord them the necessary respect and space for them to flourish’.Footnote ⁵

The absence of a comprehensive analysis of the right to freedom of thought in some cases leads to ambiguity, particularly regarding the question of whether one set of ideals or belief system is superior to others.Footnote ⁶ To address this, it is crucial to recognise freedom of thought as an independent right, despite its interconnectedness and correlation with the aforementioned freedoms. This ensures that citizens have the right to develop and hold their own set of ideals and belief systems without facing coercion, intimidation, or undue government interference. Being a negative right, the state and state organs are mandated to respect and protect it. It serves as a fundamental element of personal autonomy, enabling individuals to freely hold, express, and exercise their thoughts and beliefs in their private lives, as well as to actively contribute to public discourse and democratic decision-making processes.Footnote ⁷

Vulnerable and marginalised groups often find their freedom to hold their own beliefs, express their opinions, and practise their religion unfairly suppressed due to the dominance of majority beliefs or opinions. In the context of Kenya, this primarily relates to religious, ethnic, political and sexual minorities. Notably, approximately 85.53 per cent of Kenyans are Christian, while 10.9 per cent are Muslim, 0.13 per cent Hindu, 0.68 per cent adhere to traditional beliefs, 0.99 per cent follow other religions, 1.6 per cent identify as atheist, and around 0.17 per cent have undisclosed beliefs.Footnote ⁸ This often leads to attempts to suppress the beliefs, practices and expression of minority religions.Footnote ⁹ In addition, the six largest ethnic communities in Kenya, namely the Kikuyu, Kalenjin, Luhya, Luo, Kamba and Kisii, hold dominant positions across various sectors and hence have more power to lead discussions in public fora. For instance, they collectively account for 79.9 per cent of government parastatal employment, leaving only 20.1 per cent of opportunities available to more than thirty-six other ethnic communities.Footnote ¹⁰ Political and sexual minorities, including lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons in Kenya, face discrimination, stigmatisation, violence and other human rights violations.Footnote ¹¹ The need to protect minority groups underscores the importance of explicitly defining the content, scope, and limitations of freedom of thought. By doing so, we can ensure that no individual or group is left vulnerable to the whims and trends dictated by the majority.Footnote ¹²

This chapter is structured as follows: it first delves into the interpretation and application of the right to freedom of thought. Then, the chapter explores the historical and legal framework of the right to freedom of thought in Kenya before moving on to a discussion on its relationship to the closely associated rights of expression, belief, religion and opinion. Section IV examines the intricate relationship between freedom of thought and expression, belief, religion, and opinion, addressing contemporary issues such as the impact of technology, surveillance, and cancel culture on freedom of thought. Finally, Section V concludes by emphasising the significance of carefully considering the scope, content, and limitations of freedom of thought. The guidance and recommendations provided herein serve as valuable resources for both courts and academics navigating the complexities surrounding the scope, content, and limitations of the right to freedom of thought.

What Is Freedom of Thought?

Freedom of thought has been variously defined. However, a key underlying feature of it, recognised by most scholars, is that it is tied to the personal autonomy of the mind and the ability to make clear, unbiased and progressive decisions without influence or duress.Footnote ¹³ A fitting definition of it is the ability of a person to hold and express their beliefs, opinions and ideas devoid of interference, coercion, or censorship by external forces.Footnote ¹⁴ This is tied to its four core elements, ‘freedom not to disclose one’s thoughts’, ‘freedom from punishment for one’s thoughts’, ‘freedom from impermissible alteration of one’s thoughts’, and ‘an enabling environment for freedom of thought’.Footnote ¹⁵ It entails the liberty to explore, contemplate, and question diverse perspectives, philosophies, and ideologies, allowing a person to engage in critical thinking, foster intellectual curiosity, and a quest for truth.Footnote ¹⁶ It is undeniable that freedom of thought is an important aspect of democratic societies which facilitates the development of varied perspectives, thus encouraging creativity, and enhancing the open exchange of ideas. It includes the right to hold beliefs that question established norms, stimulate important conversations and debates, and contribute to societal progress.

It is indisputable that ‘[t]o lose sovereignty over our minds is to lose our dignity, our democracy, and even our very selves’.Footnote ¹⁷ This sovereignty includes mental autonomy which can be understood as ‘the specific ability to control one’s own mental functions, like attention, episodic memory, planning, concept formation, rational deliberation, or decision making’.Footnote ¹⁸ This is basically the idea of self-governance and rational self-control. It could be described as the ability to control one’s own behaviour in accordance with reasons and rational arguments. Moreover, ‘autonomy is independence in the formation of one’s own will, in the sense of at least potentially having a sufficient degree of independence from one’s inner environment (e.g., biases, needs, demands, or past conditioning)’.Footnote ¹⁹

Conceptualising freedom of thought comprehensively involves recognising two vital aspects: personal autonomy to hold and express one’s thoughts, particularly in contributing to democratic political discourse; and mental autonomy, which empowers individuals to independently shape their will. These elements are fundamental in upholding and safeguarding human dignity, enabling a person to be part author of their own life by recognising both the objective and subjective value of their life and autonomy in shaping their own path without external influence.Footnote ²⁰

Historical and Legal Framework of the Right to Freedom of Thought in Kenya

In the context of respect for and protection of freedom of thought, since independence in 1963, there has been a pressing need to address ethnic-based hate speech. Ethnic politics in Kenya persisted through the period of colonisation and into the country’s independence. The British colonisation of Kenya employed a ‘divide and rule’ policy, which involved manipulating ethnic groups against each other to prevent a unified nationalist opposition. This strategy was later adopted by post-colonial political elites who viewed their ethnic group as a crucial asset in negotiating for influence and power.Footnote ²¹ Regrettably, this approach has led to the entrenchment and instrumentalisation of ethnic identities, resulting in divisive ethnic politics, inter-ethnic rivalry, and even violence, such as the devastating 2007/2008 post-election violence in Kenya that left more than 1,333 people dead and thousands more displaced.Footnote ²²

This history grounds the justification usually given for limiting ethnic-based hate speech and thoughts around it inciting violence.Footnote ²³ Consequently, Section 13 of the National Cohesion and Integration Act No. 12 of 2008, an Act which aims to promote a more inclusive and cohesive society, is enacted to criminalise hate speech intended to incite ethnic hatred. In cases involving alleged hate speech, one must demonstrate that the accused made a public statement, that this statement contained abusive language directed at the complainant, that the accused person’s intention was to incite a breach of the peace, and provide evidence that such language is likely to lead people to resort to violence.Footnote ²⁴

Before the 2010 Constitution came into effect, freedom of thought was outlined in the repealed 1963 Independence Constitution. This Constitution, a result of negotiations between Kenya’s prominent political parties and the British government during discussions at Lancaster House, featured a series of compromises aimed at achieving independence.Footnote ²⁵ Section 22 of this Constitution stated that, ‘Except with his own consent, no person shall be hindered in the enjoyment of this freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion.’Footnote ²⁶ Like Article 32(1) of the 2010 Constitution, this provision also shows the relationship between freedom of thought and conscience, and religion.

However, the lack of defined parameters in the 1963 Constitution made it difficult to determine the justiciability of the right. This also made it easier to be bypassed and abused at will. For instance, renowned Kenyan politician, Koigi wa Wamwere, records in one of his literary works how President Moi’s regime had total disregard for the freedom of thought, especially in Parliament. He avers:

He further argues that all thoughts of fairness were replaced with a single thought of keeping the then President Moi happy regardless of the outcome.Footnote ²⁸

Colonial-relic laws limiting the people’s freedom of thought, speech, and expression such as Section 132 of the Penal Code were aimed at suppressing dissent. It provides that:

The marginal notes of Section 132, introduced in 1958, reveal that it was added during a state of emergency during British colonial rule as Kenyans fought for their freedom and independence. Its purpose was to quell dissent to sustain the colonial government in power at the time, instilling fear, and submission.Footnote ²⁹ In post-independent Kenya, successive governments, often characterised by authoritarianism, have consistently exploited this law to stifle dissent and suppress criticism of their oppressive rule. Activists and journalists who voiced their discontent with these regimes frequently became targets of government crackdowns.Footnote ³⁰ In the 1980s and 1990s, harassment and intimidation tactics were frequently employed by President Moi’s regime to suppress dissenting opinions and criticism of government policies.Footnote ³¹ Politicians and activists faced ruthless censorship by the government, infringing upon their freedom of thought. They then became political prisoners and were subjected to psychological torture, instilling fear, and causing a ‘chilling effect’ on people expressing their criticisms of the government, engaging in critical thinking and challenging established norms.Footnote ³²

In the 1990s, the Kenyan government was involved in another significant violation and crackdown on freedom of thought, specifically targeting the mothers of Moi-era political prisoners.Footnote ³³ On 28 February 1992, these mothers, along with their supporters, gathered at Freedom Corner in Nairobi city centre to protest the incarceration and demand the release of their children. They embarked on a hunger strike as a form of peaceful demonstration. However, on 3 March 1992, the police forcefully and violently dispersed the demonstrators, leading to widespread media coverage and condemnation both nationally and internationally.Footnote ³⁴ These violations were subsequently examined by the Kenyan Supreme Court in the case of Monica Wangu Wamwere and 5 Others v. Attorney General.Footnote ³⁵

Based on this history, the 2010 Constitution’s aforesaid Articles 32(1) and 33 aimed to provide heightened protection for the freedom of thought and its related freedoms such as belief and expression. In recent years, there have been concerns about the infringement of the right to freedom of thought and expression by the government and non-state actors. For example, in 2017, a journalist, Robert Alai, was arrested and charged with the offence of undermining the authority of a Public Officer contrary to Section 132 of Kenya’s Penal Code. The charge read as follows: ‘while using the open source website Twitter, the petitioner posted the words “Insulting Raila is what Uhuru can do. He hasn’t realized the value of the Presidency. Adolescent President. This seat needs maturity” which publication was calculated to bring into contempt the lawful authority of the President of the Republic of Kenya.’Footnote ³⁶

Robert Alai filed a petition against his arrest and the charge in Robert Alai v Attorney General & Another arguing that Section 132 of the Penal Code was unconstitutional, the offence of ‘Undermining Authority of a Public Officer’ having been enacted in the colonial era at the height of the fight for independence for the colonial government to suppress dissent by spreading fear to elicit submission.Footnote ³⁷ He also argued that the provision violated the ‘sovereign power of the people, for shielding government officials from public scrutiny’ and by violating citizens’ right to utter, print and publicise certain words protected under Article 33 of the Constitution and which are not subject to limitation.Footnote ³⁸ He also argued that Section 132, by shifting the burden of proof to the accused, violated Article 50(2)(a) of the Constitution which adjudges an accused person innocent until proven guilty, with the burden of proof being on the prosecution in criminal cases.

The Court ruled in favour of Robert Alai, affirming that individuals possess a democratic right to engage in discussions concerning the affairs of their government and leadership. This right stems from their freedom of expression, as guaranteed by Article 33 of the Constitution. It was recognised that individuals cannot genuinely exercise their freedom of expression if they are unable to criticise or comment on their leaders and public officials.Footnote ³⁹ Of course, the holding of ideals to be expressed and shared, impliedly refers to freedom of thought.

Most of the cases on freedom of expression, religion, belief, and opinion, implicating or expressly highlighting the right to freedom of thought have either been about the respect and protection of the rights, or a balancing of these rights and those of others. These aspects are consistently subjected to a proportionality test, in accordance with the provisions outlined in Article 24 of the Constitution, the general limitation clause of the Bill of Rights. This test examines whether there exist reasonable and justifiable grounds to restrict an individual’s fundamental rights within the framework of an open and democratic society that upholds principles of human dignity, equality, and freedom. The test also considers all pertinent factors to ensure the assessment is comprehensive and balanced.Footnote ⁴⁰ Thus, limitations imposed on this essential right must undergo rigorous scrutiny and can only be justified in the most compelling circumstances, such as preventing harm to others or safeguarding essential societal interests.Footnote ⁴¹

Having laid out the historical and legal framework on the right to freedom of thought in Kenya, the next section interrogates its interrelationship with the right to freedom of expression, religion, belief, and opinion.

Freedom of Thought and Its Relationship with Freedom Expression, Belief, Religion, and Opinion

The freedom of thought, expression, belief, religion, and opinion have a strong interconnection and mutual dependence. For example, the limitation of freedom of thought primarily occurs when these thoughts find expression through various forms of behaviour, including the practice of one’s religion or belief.Footnote ⁴² It is plausible to assert that freedom of thought serves as the foundation upon which these other freedoms are constructed. As freedom of thought encompasses the right to conceive, embrace, and nurture personal beliefs, opinions, and ideas, it empowers individuals to explore and navigate the diverse realms of religion, philosophy, and ideology, enabling them to critically engage, advance, or challenge prevailing agendas. As observed in Seventh Day Adventist Church (East Africa) Limited v. Minister for Education & 3 Others, the right to freedom of conscience, religion, thought, beliefs, and opinion, is far-reaching and profound in its various facets.Footnote ⁴³ ‘[I]t encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others, privately or in public.’Footnote ⁴⁴ In this section, we delve deeper into the examination of the relationship between freedom of thought and expression, belief, religion, and opinion. By carefully analysing selected post-2010 cases, we aim to shed light on the complex issues that animate their interplay, building upon the discussions presented in Sections I, II, and III.

Conclusion

This chapter has meticulously dissected the multifaceted layers of the right to freedom of thought, unravelling its complexities through an examination of content, scope, and limitations in Kenya. In delving into its interpretation within historical contexts and its interconnectedness with related freedoms, a detailed comprehension of this fundamental right has been achieved. The exhaustive discussion on the significance of delineating the boundaries and dimensions of freedom of thought underscores its pivotal role in shaping individual liberty and fostering a democratic society within the Kenyan context. The presented guidance and recommendations stand as a beacon for both judicial practitioners and academics navigating the intricate terrain of this right. This exploration, akin to venturing down the road less taken, not only sheds light on the overtones surrounding freedom of thought but also adds layers of depth to the understanding of its role in the broader fabric of human rights. In essence, this analysis serves as a valuable resource, fostering a more profound insight into the intricate dynamics of freedom of thought and its indispensable place in the fabric of a free and democratic society in Kenya.

Introduction

The Republic of Zambia (formerly the British ‘protectorate’ of Northern Rhodesia) became an independent state on 24 October 1964. Legally, Zambia’s independence was consummated by the Zambia Independence Act 1964,Footnote ¹ an Act adopted by the Parliament of the United Kingdom on 31 July 1964, and the Zambia Independence Order 1964,Footnote ² a statutory instrument issued in the name of the British monarchy by and with the advice of the Privy Council on 15 October 1964 pursuant to the provisions of the Zambia Independence Act and the Foreign Jurisdiction Act 1890.Footnote ³ The Zambia Independence Order, in particular, provided that ‘the Constitution set out in Schedule 2’ thereto ‘shall come into effect in Zambia’ on 24 October 1964.Footnote ⁴ Thus, whilst it is true that a handful of Zambian politicians participated in the drafting negotiations that took place in London in May 1964,Footnote ⁵ Zambia’s first Constitution was written by British officials and formally adopted at Buckingham Palace and appeared as Schedule 2 to the Zambia Independence Order.

Since independence, Zambia has had three different constitutions. The first, as already noted, was the 1964 Constitution, otherwise known as the Independence Constitution as it served to effectuate Zambia’s independence from the British administration.Footnote ⁶ Not surprisingly, given its colonial origin, the 1964 Constitution was discarded shortly after independence. It was repealed and replaced by the 1973 Constitution,Footnote ⁷ otherwise known as the One-Party State Constitution as it served to establish the United National Independence Party as the ‘one and only one political party or political organisation in Zambia’, prohibiting the formation of any other political party or organisation.Footnote ⁸ The 1973 Constitution was also the first ‘truly’ Zambian Constitution,Footnote ⁹ since its predecessor was adopted in London by British officials. Even so, the 1974 Constitution was later repealed and replaced by the current Constitution (hereinafter also referred to as ‘the Constitution’) which was enacted in 1991 and last amended in 2016.Footnote ¹⁰ In keeping with the judicial interpretation of its predecessor,Footnote ¹¹ the current Constitution ‘is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency’.Footnote ¹²

Despite all major constitutional reforms that have taken place over the years, the Bill of Rights has remained largely the same since independence. Although some have laudably described it as ‘an extensive Bill of Rights’,Footnote ¹³ the first Bill of Rights, which appeared in Chapter III of the 1964 Constitution, contained only so-called ‘first generation’ or ‘civil and political’ rights. Save for a few adaptations, that Bill of Rights was replicated in Part III of the 1973 Constitution and subsequently in Part III of the current Constitution. It should, however, be noted that the current Constitution is not the only codified source of human rights law applicable to Zambia. Zambia is also a party to a number of human rights treaties such as the African Charter on Human and Peoples’ Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR).Footnote ¹⁴ By the same token, the Government of Zambia has an obligation under international law to respect the human rights set forth in all applicable treaties, including rights that are not explicitly recognised by the current Bill of Rights.

Even so, Zambia is a dualist state. International law, whatever its source, does not as such confer rights that are recognisable in the national courts.Footnote ¹⁵ It is only insofar as the rules of international law have been domesticated (that is to say, included in the rules of national law by the legislature) that they are recognised by the national courts as giving rise to rights and obligations.Footnote ¹⁶ However, notwithstanding this dualist approach to international law, where the executive signifies its consent to be bound by a treaty, whether by means of ratification or accession, the provisions thereof have some persuasive value. The national courts may, when interpreting national law, draw some inspiration from the relevant provisions of such treaties, as interpreted by relevant international bodies from time to time.Footnote ¹⁷

Within the foregoing framework, this chapter critically examines the law on the right to freedom of thought in Zambia. The chapter considers, in particular, the extent to which the letter of the law comports with the spirit of the law.Footnote ¹⁸ To this end, the chapter begins by providing an overview of the applicable ‘black-letter law’ or the ‘law on the books’.Footnote ¹⁹ The chapter then proceeds to consider the spirit of the law or ‘the perceived intention of the law’,Footnote ²⁰ in particular, what ordinary people might think the law ought to be or what Finkel calls ‘common-sense justice’.Footnote ²¹ In this connection, the chapter draws some inspiration from applicable international standards and related literature. Overall, the analysis suggests that the letter of the law hardly comports with the spirit of the law. The chapter thus culminates in a call for reform.

The Letter of the Law

Article 19 of the Constitution protects freedom of thought as one of the components of freedom of conscience, and so did Section 21 of the 1964 Constitution and Article 21 of the 1973 Constitution, with the wording remaining the same. The relevant clauses of Article 19 state as follows:

According to the letter of the law, therefore, freedom of thought is one of the two main components of freedom of conscience. The other component is freedom of religion or belief. Notably, whereas freedom of religion or belief includes freedom to change, manifest and propagate one’s religion or belief, Article 19(1) does not refer to freedom to communicate or otherwise manifest one’s thoughts. It would appear that freedom to communicate one’s thoughts, in particular, is protected separately by Article 20 of the Constitution as part of freedom of expression.Footnote ²² It is also interesting to note that the wording of Article 19(1) suggests that a violation of freedom of conscience may occur only where an individual is ‘hindered in the enjoyment’ of his freedom of thought or freedom of religion or belief without ‘his own consent’. What this literally means is that an individual may relinquish or waive his own entitlement to freedom of thought and freedom of religion or belief alike.

In addition to the possibility of such waiver, Article 19(5) empowers public authorities to restrict the freedom of conscience envisaged in Article 19(1). To pass constitutional muster, however, any such restriction must satisfy three cumulative conditions. First, the restriction must be based on law. Second, the restriction must be reasonably required either in the interest of defence, public safety, public order, public morality or public health, or for the protection of the rights of other persons, including the right to observe and practice a religion without the unsolicited intervention of members of another religion. Third, the restriction must be reasonably justified in a democratic society. The text of Article 19 does not draw any distinction between freedom of thought and freedom of religion or belief as concerns the applicability of this limitation clause. Understood literally, therefore, this means that freedom of thought and freedom of religion or belief alike may be restricted by law albeit only if it can be shown that the restriction in question is based on law, reasonably required to achieve at least one of the aims enumerated in Article 19(5), and reasonably justified in a democratic society. The Constitution thus portrays freedom of thought as a ‘qualified’ rather than as an ‘absolute’ right.

The freedom of conscience enshrined in Article 19 is also subject to derogation in time of war or other public emergency.Footnote ²³ As with all permissible derogations under the Bill of Rights, however, Article 25 of the Constitution provides that any derogation from Article 19 must satisfy three cumulative conditions, that is to say, that any derogation must be prescribed by law, be strictly for the purpose of dealing with the situation existing or arising during the period of war or other public emergency, and be reasonably required for the purpose of dealing with the situation in question. The derogations envisaged in Article 25 are distinct from the restrictions envisaged in Article 19(5) in that the former may entail suspending certain rights in response to a public emergency rather than merely imposing ‘normal’ restrictions or limitations on rights.Footnote ²⁴ The actual wording of the derogation clause does not draw any distinction between the two components of freedom of conscience. It therefore suggests that freedom of thought and freedom of religion or belief alike may be derogated from in time of war or other public emergency. Article 25 thus provides further evidence that the freedom of thought that the Constitution protects is to be regarded as a qualified right.

Importantly, as with other provisions under the Bill of Rights, the provisions of both Articles 19 and 25 are enforceable. Article 28 of the Constitution provides that any person who alleges that any of the protective provisions set forth in Articles 11–26 (inclusive) has been, is being or is likely to be contravened in relation to him may, without prejudice to any other action with respect to the same matter which is lawfully available, petition the High Court for Zambia for redress.Footnote ²⁵ A petitioner who is dissatisfied with a decision of the High Court in any such petition may appeal that decision to the Supreme Court of Zambia.Footnote ²⁶

In its current form, Article 28 of the Constitution mirrors both Section 28 of the 1964 Constitution and Article 29 of the 1973 Constitution. What this means, in other words, is that the right to freedom of thought has been enforceable in Zambia since independence. A survey of existing case law, however, suggests that the courts have yet to pronounce upon the meaning and scope of this right as a specific component of freedom of conscience. This notwithstanding, there are at least two relevant cases in which the courts have been called upon to interpret and apply the constitutional text on the right to freedom of conscience. Both cases related to freedom of religion, and not to freedom of thought as such. In both cases, the courts adopted a literal interpretation of the letter of the law.

The first case, Kachasu v. Attorney-General,Footnote ²⁷ was decided by the High Court in 1967 shortly after independence. In that case, Kachasu, a girl aged between eleven and twelve years, had been suspended from school and refused readmission on account of her own refusal to comply with the school regulations that required pupils to sing the national anthem and salute the national flag on certain occasions. Suing through her father, Kachasu contended that she could not participate in singing the national anthem or in saluting the national flag because both acts were contrary to her religious views and beliefs as a Jehovah’s Witness.

In its judgment, the High Court took the view that to be entitled to bring an action under Section 28 of the 1964 Constitution (now Article 28 of the Constitution) alleging a contravention of Section 21 of the 1964 Constitution (now Article 19 of the Constitution), Kachasu had to ‘satisfy the court that, without her own consent she either [had] been, or [was] being, or [was] likely to be hindered in the enjoyment of her freedom of conscience’.Footnote ²⁸ It further underlined that the operative word in Section 21 (now Article 19) was ‘hindered’, not ‘prevented’ and, therefore, even a slight degree of hindrance would be relevant and might constitute a violation of freedom of conscience.Footnote ²⁹ The High Court found that Kachasu had been hindered in the enjoyment of her freedom of conscience under Section 21(1) of the 1964 Constitution (now Article 19(1) of the Constitution). It, however, held that the hindrance in question was justified under Section 21(5) (now Article 19(5)) as that hindrance was authorised by law and was reasonably required in the interest of defence and for the protection of the rights of other persons and thus did not constitute a violation of Kachasu’s right to freedom of conscience.Footnote ³⁰

The other notable case, Hang’andu v. Law Association of Zambia (LAZ),Footnote ³¹ was settled by the Supreme Court. In that case, Hang’andu, an advocate of the High Court for Zambia and a member of LAZ, had petitioned the High Court under Article 28 of the current Constitution, challenging the longstanding practice by LAZ of holding its meetings (including the annual general meeting) on Saturdays. Hang’andu contended that, following his conversion from Catholicism to Adventism, he could no longer attend meetings on Saturdays on account of his own religious beliefs as an Adventist, in particular, the doctrine to keep the Sabbath sacred through public worship and complete abstention from any form of manual work and regular activity. He thus argued that the practice by LAZ of holding its meetings on Saturdays had constituted a violation of his fundamental rights to freedom of conscience and not to be discriminated against, contrary to Articles 11(a), 19(1) and 23(2) of the Constitution. The High Court found that there had been no violation of any of these provisions.

On appeal, the Supreme Court cited with approval Kachasu v. Attorney-General and the sentiments of the trial judge derived therefrom, holding that the trial judge had properly directed himself in ascribing an ordinary and natural meaning to the word ‘hindered’ used in Article 19(1) of the Constitution. Thus, according to the Supreme Court, ‘a positive act or overt act or threatened action on the part of the Respondent is key to actionable infringement’.Footnote ³² The Supreme Court found, on the facts of the case, that LAZ had neither directly nor indirectly hindered Hang’andu in the enjoyment of his freedom of conscience.Footnote ³³

The foregoing cases would likely serve as a starting point if the courts were called upon to interpret and apply the right to freedom of thought enshrined in Article 19 of the Constitution. As already noted, however, both cases concerned freedom of religion rather than freedom of thought as such. It is therefore still open to question whether or not the courts would interpret the constitutional text literally even with respect to freedom of thought.

In any event, the letter of the law on freedom of thought in Zambia for the time being can be summarised as follows. First, according to Article 19(1) of the Constitution, freedom of thought is a component of freedom of conscience and entails the right not to be hindered in the enjoyment of one’s freedom of thought without one’s own consent. Second, according to Article 19(5) of the Constitution, the state may, by law, impose restrictions on freedom of thought even in the absence of one’s own consent. Third, according to Article 25 of the Constitution, the state may derogate from freedom of thought in time of war or other public emergency. It follows from the foregoing that freedom of thought as enshrined in the Constitution can be aptly characterised as a qualified or non-absolute right, since its enjoyment may be subject not only to limitations but also derogations.

The Spirit of the Law

The letter of the law does not always reflect the spirit of the law.Footnote ³⁴ What this means is that a violation of the letter of the law may be consistent with the spirit of the law. Equally, a violation of the spirit of the law may be consistent with the letter of the law. In thinking about the meaning and scope of the right to freedom of thought in Zambia, therefore, we must consider not only the letter of the Constitution but also the interpretation that most closely comports with the spirit of freedom of thought. A comparative analysis of the provisions of the ACHPR and the ICCPR that correspond to the constitutional provisions on the right to freedom of thought in Zambia could be particularly helpful in decoupling the letter of the law from the spirit of the law within the context of the present discussion, since Zambia is a party to both the ACHPR and the ICCPR and the national courts would likely draw some inspiration from both instruments if called upon to interpret the constitutional provisions.

Consider, first, Article 8 ACHPR which, like Article 19 of the Constitution, protects freedom of conscience. Article 8 ACHPR does not, however, refer to freedom of thought. Rather, it provides simply that ‘[freedom] of conscience, the profession and free practice of religion shall be guaranteed’ and that ‘[no] one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms’. The African Commission on Human and Peoples’ Rights (ACmHPR) tends to use the terms ‘freedom of conscience’, ‘freedom of religion’ and ‘freedom to practice religion’ interchangeably when applying Article 8.Footnote ³⁵ Whether the freedom of conscience envisaged here also includes freedom of thought is, however, still debatable.Footnote ³⁶

In any event, like Article 19 of the Constitution, Article 8 ACHPR suggests that the freedom of conscience that it protects is admissive of restrictions and is therefore a qualified right. These restrictions would, however, be allowed only insofar as it can be shown that the exercise of freedom of conscience threatens ‘law and order’ (whatever that means), paying ‘due regard to the rights of others, collective security, morality and common interest’.Footnote ³⁷ Moreover, the ACHPR does not contain a derogation clause that corresponds to Article 25 of the Constitution or at all. Interestingly, although the ICCPR and other major regional human rights instruments also allow for derogations from certain rights in time of war or other public emergency,Footnote ³⁸ the ACmHPR has interpreted this omission as implying prohibition. It has thus repeatedly held that the ACHPR ‘does not allow for States Parties to derogate from their treaty obligations during emergency situations’.Footnote ³⁹ If the ACmHPR is right, this means that even the freedom of conscience enshrined in Article 8 ACHPR does not admit of any derogation. However, whilst a prohibition of derogation from the ‘inner’ freedom of conscience may comport with common sense justice, the ACmHPR’s attempt at imposing a blanket ban on derogations appears to be untenable in practice.Footnote ⁴⁰

On the other hand, like Article 19 of the Constitution, Article 18 ICCPR explicitly protects freedom of thought. Article 18(1), in particular, provides that ‘[everyone] shall have the right to freedom of thought, conscience and religion’. The UN Human Rights Committee (UNHRC) considers that Article 18 affords equal protection to freedom of thought, freedom of conscience and freedom of religion or belief.Footnote ⁴¹ In other words, whilst maintaining that all the freedoms enshrined in Article 18 ICCPR are worthy of equal protection, the UNHRC sees freedom of thought as a distinct freedom from both freedom of conscience and freedom of religion or belief. Article 18 ICCPR can thus be contrasted with Article 19 of the Constitution insofar as the latter protects freedom of thought as a component of freedom of conscience rather than as a distinct freedom.

Importantly, Article 18 ICCPR draws a distinction between freedom of thought, conscience and religion or belief, on the one hand, and freedom to manifest one’s religion or belief, on the other hand. Like Article 19 of the Constitution, Article 18 ICCPR provides that freedom of religion or belief includes ‘freedom to have or to adopt a religion or belief of [one’s] choice, and freedom, either individually or in community with others and in public or private, to manifest [one’s] religion or belief in worship, observance, practice and teaching’. The limitation clause under Article 18 ICCPR, however, refers only to freedom to manifest one’s religion or beliefs. Specifically, Article 18(3) ICCPR provides that ‘[freedom] to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’. This suggests that, unlike Article 19 of the Constitution which protects freedom of thought as a qualified right, Article 18 ICCPR protects freedom of thought as an absolute right.

Indeed, even the UNHRC considers that the fact that the limitation clause under Article 18 does not refer to freedom of thought, freedom of conscience or freedom to have or adopt a religion or belief of one’s choice means that ‘[these] freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference’ in Article 19(1) ICCPR.Footnote ⁴² The UNHRC thus underlines that Article 18 ICCPR ‘does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice’.Footnote ⁴³ Moreover, in contrast to the letter of Article 25 of the Constitution which permits derogation from the freedom of conscience enshrined in Article 19 thereof, Article 4(2) ICCPR explicitly prohibits the states parties from derogating from their obligations under Article 18 ICCPR, even in time of war or other public emergency.Footnote ⁴⁴

What, then, can we learn from the foregoing discrepancies between the constitutional text on the right to freedom of thought and applicable international standards? Article 18 ICCPR, in particular, suggests that freedom of thought is a peculiar right. It would, however, appear that Article 19 of the Constitution wrongly conflates freedom of thought with freedom of conscience and freedom of religion or belief. Indeed, whilst it is true that ‘the general understanding of conscience has expanded to include secular and ethical as well as religious and moral’ convictions,Footnote ⁴⁵ freedom of thought appears to be much broader than both freedom of conscience and freedom of religion or belief. Given that conscience as thus broadly understood is ‘like an empty box that can be filled with any type of moral content’,Footnote ⁴⁶ freedom of conscience also appears to be broader than freedom of religion or belief.

Importantly, human liberty generally depends on freedom of thought.Footnote ⁴⁷ One can hardly conceive of any freedom whose meaningful exercise and enjoyment does not involve thoughts of some kind. This holds true whether one uses the word ‘thought’ to refer to the process or the product of thinking. Broadly understood, the word ‘thought’ or ‘thinking’ captures a wide range of mental phenomena such as intrapersonal ‘deliberation, imagination, belief, reflection, reasoning, cogitation, remembering, wishing, sensing, questioning, and desiring’.Footnote ⁴⁸ In short, as Justice Cardozo points out, freedom of thought ‘is the matrix, the indispensable condition, of nearly every other form of freedom’.Footnote ⁴⁹ Freedom of conscience and freedom of religion or belief, in particular, invariably involve and depend on freedom of thought. Article 19 of the Constitution is therefore counterintuitive insofar as it portrays freedom of thought as a component of freedom of conscience and not vice versa.

Common sense justice also generally dictates that there should be no limitations on freedom of thought or indeed on freedom of conscience (which is but a component of freedom of thought), as long as personal thoughts (including conscientious beliefs) remain in the forum internum and are not exported to the public sphere.Footnote ⁵⁰ Indeed, with the exception of the ACHPR which seemingly protects freedom of conscience as a qualified right, it is trite law that the forum internum (that is, the inner self or the mind of the individual) ‘is subject to unqualified protection in all the key international instruments’.Footnote ⁵¹ The freedom to communicate or to otherwise act upon one’s thoughts – including opinions and conscientious beliefs (be they religious or otherwise) – in the public sphere, as already noted, falls ‘under a different principle, since it belongs to that part of the conduct of an individual which concerns other people’.Footnote ⁵² The rationale for the absolute protection of the ‘inner’ freedom of thought is quite obvious. Unless they are communicated or otherwise acted upon, one’s thoughts cannot harm others.

It would therefore appear that there is no compelling reason for any society to seek to empower the state or indeed private actors to dictate what thoughts people should or should not entertain in their minds. At a minimum, every person of sound mind should have an unqualified right to entertain and maintain in one’s own mind thoughts of any kind whatsoever.Footnote ⁵³ This should be the barest minimum. In principle, as Shaheed recommends in his 2021 UN Special Rapporteur’s report on freedom of religion or belief, freedom of thought should be understood to include not only three different types of negative freedom, namely freedom not to disclose one’s thoughts, freedom from punishment for one’s thoughts and freedom from impermissible alteration of one’s thoughts, but also a positive right requiring the state to create an enabling environment for freedom of thought.Footnote ⁵⁴

In any event, in keeping with the provisions of Article 18 ICCPR as interpreted by the UNHRC, the limitation clause under Article 19 of the Constitution should be understood to apply only to freedom to manifest one’s religion or beliefs. Freedom of thought, freedom of conscience and indeed freedom to have or adopt a religion or belief of one’s choice should not be subject to any of the restrictions envisaged in Article 19(5) of the Constitution. It would also appear that the wording of Article 19(1) of the Constitution does not comport with common sense justice insofar as it suggests that it protects a person from being hindered in the enjoyment of his freedom of thought or freedom of conscience only where the hindrance occurs without one’s own consent. Why would anyone consent to be hindered in the enjoyment of his freedom of thought? It seems obvious that no person of sound mind would trade or otherwise relinquish his natural ability to think freely. The derogation from freedom of thought and freedom of conscience which the letter of Article 25 of the Constitution permits is perhaps even more clearly untenable. Indeed, the fundamental character of freedom of thought is reflected in the fact that Article 18 ICCPR ‘cannot be derogated from, even in time of public emergency’.Footnote ⁵⁵

Conclusion

Freedom of thought is a prerequisite for the enjoyment of other types of freedom. In Zambia, however, the constitutional text on this basic freedom appears to be in a sorry state. First, Article 19 of the Constitution conflates three distinct types of freedom. According to the actual wording of Article 19, freedom of conscience is ‘an umbrella freedom’, whereas freedom of thought and freedom of religion or belief are specific components of that freedom. This appears to be a fundamental mistake. Common sense and applicable international standards alike suggest that freedom of thought is broader than both freedom of conscience and freedom of religion or belief. Second, the wording of Article 19 of the Constitution does not appear to comport with common sense justice insofar as it suggests that it protects a person from being hindered in the enjoyment of his freedom of thought or freedom of conscience only where the hindrance occurs without one’s own consent. It is unthinkable that any person of sound mind would willingly trade or otherwise relinquish his natural ability to think freely. Third, there appears to be no justification whatsoever for allowing the state to impose restrictions on freedom of thought in general or freedom of conscience in particular or, worse still, to derogate from these freedoms, as does the tenor of Articles 19(5) and 25 of the Constitution. Common sense justice and international standards applicable to Zambia suggest that neither freedom of thought nor freedom of conscience should be subject to limitations, let alone derogations, at least not with respect to any person of sound mind.Footnote ⁵⁶

What, then, is the way forward? Indeed, one may be justified in blaming the coloniser for these apparent drafting blunders, since they derive from the 1964 (Independence) Constitution as part of the colonial heritage. But blaming others can never be a solution. Perhaps the best solution would be to amend the constitutional text to bring it in line with common sense justice and applicable international standards. A major challenge is that constitutional reforms are hard to come by. Any amendment to the current Bill of Rights, in particular, would require a national referendum. The last referendum on proposed amendments to the Bill of Rights that was held in 2016 fell through, as that proposal failed to garner enough support from eligible voters to meet the 50 per cent threshold that is required by Article 79 of the Constitution.Footnote ⁵⁷ One can only hope that the government will include Articles 19 and 25 of the Constitution among the provisions that will be proposed for amendment in the next referendum, whenever that will be. Meanwhile, it is incumbent upon the courts of competent jurisdiction to give effect to the spirit rather than the letter of the law as suggested in this chapter should they be called upon to apply to freedom of thought Articles 19 and 25 of the Constitution.

Introduction

Section 11(1) of Chapter II of the Constitution of Mauritius 1968 on Protection of Fundamental Rights and Freedoms of the Individual – commonly referred to as the ‘Bill of Rights’ – provides that:

This section explicitly incorporates the right to freedom of thought, together with other internal and external aspects of the right to freedom of conscience. As this section is couched in terms similar to that of a qualified right, it would appear at first glance that the right to freedom of thought can be limited under certain circumstances as long as the restrictions are lawful, proportionate and reasonably justified in a democratic society. However, international scholarship has recognised that the right to freedom of thought is generally regarded as an absolute right.Footnote ¹

This chapter will provide an overview of the Mauritian legal system followed by an outline of the constitutional protection of civil and political rights in Mauritius. The discussion will then turn to a normative analysis of the right to freedom of thought in Mauritius, with consideration of its absolute nature. The chapter will then review the limitation test for qualified rights under the Constitution. Finally, there will be an examination of the few cases relating specifically to freedom of thought. It is worth noting that while the judiciary has made large and innovative strides in delivering better access to justice for Mauritian citizens, there has nonetheless been a contumelious disregard for providing effective remedies by the courts for infringement of constitutional rights. It is hard to resist the conclusion that this may be so because of a lack of a human rights culture and stringent locus standi requirements as a result of judicial conservatism in recent decades. What will emerge from the whole discussion is that, in Mauritius, there is a poor and declining understanding of the fundamental processes that afford protection for constitutional rights generally and protection for the right to freedom of thought specifically.

An Overview of the Legal System of Mauritius

Mauritius is a sovereign democratic state where the rule of law is entrenched in its written Constitution of 1968. Based on the doctrine of separation of powers, the Constitution clearly distinguishes the role of the three branches of government (the legislature, the executive, and the judiciary) from each other. The Constitution is the supreme law of Mauritius and the Supreme Court has the power as a constitutional court to adjudicate on the constitutionality of any law in conformity with the provisions contained therein.Footnote ² Moreover, adopting a similar characteristic of many commonwealth constitutions, the Judicial Committee of the Privy Council has been retained as the final appellate jurisdiction in Mauritius, even for constitutional issues.Footnote ³

Given its historical context, Mauritius has what can be properly described as a hybrid legal system. This mixed jurisdiction is a result of the influence of civil law and common law under colonial occupation by the French and the British respectively. The French Napoleonic Codes were initially transplanted into the Mauritian legal system after 1805. When the British then took over the island in 1810, they allowed the substantive provisions in those codes to endure. It follows that in the field of public law, the persuasive default system is generally the English common law while in the field of private law (including commercial law), the default system is the Mauritian Civil Code.Footnote ⁴

The fusion of French and English law into the legal system of Mauritius between 1710 and 1968 has been strongly influenced by the way the Civil Code was interpreted and applied by English judges in relation to procedural law derived from the common law.Footnote ⁵ In line with this, the report of the Commission on the Review of Legal Studies, chaired by former Mauritian Chief Justice Rajsoomer Lallah, emphasised the evolutionary nature of the Mauritian legal system which over the years had acquired a distinct legal personality.Footnote ⁶ The culmination of what can now be considered a body of law reflecting purely Mauritian law is perhaps the result of judicial activism in post-independence Mauritius. Various technical means were devised by the Mauritian courts in applying English procedural law and interpreting substantive French law in the local context. However, recently this judicial activism seems to be in retreat, as will be explored later in the chapter.

Another significant aspect of the Mauritian legal system pertains to its constitutional structure being a close replica of the ‘Westminsterian’ or parliamentary system of government. The country became a Republic in 1992, constitutionally severing the umbilical cord with the British Monarch.Footnote ⁷ As such, the Monarch through its Governor General in Mauritius was no longer the Head of State – this role having been supplanted by the President of the Republic of Mauritius. Furthermore, there are a plethora of special features that distinguishes the Mauritian Constitution from the traditional Westminster model.

Often described as a multicultural or ethnic melting potFootnote ⁸ and one of the most socially diverse nations in the world,Footnote ⁹ Mauritius is composed of different religious and ethnic groups, including descendants of: (i) indentured labourers from India; (ii) slaves from Africa and the Indian Ocean region (commonly known as ‘Creoles’); (iii) colonial settlers from Europe; and (iv) Chinese traders.Footnote ¹⁰ Prior to its independence, the ethnic composition of Mauritius comprised of Indo-Mauritians as the largest group, followed by Afro-Mauritians, Sino-Mauritians, and Franco-Mauritians. This mix of cultures, traditions and religions was not without tensions, in particular with respect to adequate representation of the different communities in government.Footnote ¹¹ The lead up to the independence of Mauritius was on that account directly attributable to communal and political divisions.Footnote ¹² Interestingly enough, the term ‘communalism’ is used to capture the essence of ethno-religious frictions and conflicts in Mauritius.Footnote ¹³ These underlying communal and political tensions can perhaps explain why there are certain unique constitutional provisions such as Section 3 listing ‘freedom to establish schools’ among fundamental freedoms, and Section 14 guaranteeing the right to send children to non-government schools and the right of religious, social, ethnic and cultural organisations to establish and maintain schools at their own expense.Footnote ¹⁴

These provisions are also widely viewed as being the driving force behind the introduction of the ‘best loser system’.Footnote ¹⁵ The ‘best loser system’ was put in place to ensure that there is a fair legislative representation of all ethnic communities under the first-past-the-post electoral system.Footnote ¹⁶ The mechanism through which this is achieved is the allocation of additional seats to candidates from losing parties after the general elections. Another unusual feature of the Constitution of Mauritius is that it places an obligation upon each candidate at an election to make a declaration as to his/her belonging to a specific community, defined under paragraph 3(4) of Schedule 1 as Hindu, Muslim, Sino-Mauritian, or General Population.Footnote ¹⁷

Constitutional Protection of Civil and Political Rights

Chapter II of the Constitution provides for the protection of a range of civil and political rights which are explicitly recognised as fundamental in nature. The Privy Council has even certified that the Bill of Rights under Chapter II of the Mauritian Constitution is ‘substantially modelled on the European Convention of Human Rights’.Footnote ¹⁸ It comes as no surprise then that socio-economic rights such as the ones related to fair and just conditions of work or an adequate standard of living are nowhere to be found in the supreme law of Mauritius. The fundamental civil and political rights contained in the Constitution by and large follow a general pattern similar to that found under the European Convention on Human Rights: (i) the right is outlined as a general rule; (ii) there are specific exceptions or circumstances under which this right may be limited; and (iii) these exceptions are either set out under the Constitution itself or must be provided under a law which is reasonably justifiable in a democratic society.Footnote ¹⁹ A further point to add is that these individual rights are mainly negative rights which the state should not interfere with as opposed to positive ones which require specific action from the state to afford protection.Footnote ²⁰ Section 17 (Enforcement of protective provisions) creates a vertical relationship between an individual and the state, whereby the individual can seek redress directly from the Supreme Court in case of an alleged violation of his/her fundamental rights under the Constitution.Footnote ²¹

Budoo and Mahadew highlight how the Bill of Rights under the Mauritian Constitution has ‘played a critical role in the protection and promotion of civil and political rights in Mauritius’.Footnote ²² This is the only legal instrument that is enforceable before the Supreme Court of Mauritius insofar as other international human rights instruments are not part of domestic law. This is because Mauritius is a dualist state – similar to the United Kingdom and most other common law or mixed legal systems. Being a dualist state requires the need for express legislative intervention to incorporate international treaties into the legal system of the country.Footnote ²³ By contrast, international treaties become automatically part of the legal system of monist states, such as France. International human rights treaties are therefore not enforceable before the Mauritian courts unless they have been incorporated under domestic legislation. While Mauritius has signed and ratified many international and regional human rights conventions – for instance, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights – an individual cannot seek a direct remedy before the national courts for breach of their rights under these international instruments unless and until these treaties have been incorporated into the domestic legal order by enactment of a law.

Among the recent cases on constitutional rights, the Madhewoo saga is perhaps the most important one, whereby both the Supreme Court and the Privy Council had the opportunity to interpret the sections relating to privacy in the Constitution of Mauritius.Footnote ²⁴ The Supreme Court had to determine whether the collection of biometric data followed by its retention and storage on national identity cards and in a centralised databased disclosed an interference with the right to privacy in violation of Sections 3 and 9 of the Constitution. It held that while the collection of the biometric data amounted to an interference, it was not disproportionate or unjustifiable in a democratic society. The Supreme Court, nonetheless, found that the indefinite retention and storage of the biometric data was not justifiable. The Privy Council upheld the decision of the Supreme Court. As will be reviewed in the next section, the Madhewoo cases set out the general test that should be applied to limitations of qualified rights imposed by the State. Additionally, the Supreme Court interpreted Section 9(1) of the Constitution as affording ‘constitutional protection to the private physical integrity of a person against any form of search’.Footnote ²⁵ Even though the Supreme Court adopted a purposive approach in its interpretation of Section 9(1), it did not inflate the meaning of this section to encompass a general constitutional right to privacy. It is submitted that this was an exercise in judicial restraint to the extent that the Supreme Court could have gone even further by purposively and generously interpreting Section 9(1) as affording a general right to privacy.

In a more recent case, the Supreme Court found that Section 250(1) of the Criminal Code of Mauritius, which criminalises sodomy, is unconstitutional insofar as it discriminated against homosexual men on the basis of their sexual orientation.Footnote ²⁶ One of the arguments advanced by counsel for the plaintiff was that heterosexual persons can have intercourse, thereby satisfying the most private and intimate aspect of their relationship, while homosexual couples cannot do so.Footnote ²⁷ The Supreme Court preferred to place its focus on generously interpreting ‘sex’ under Section 16 of the Constitution (Protection from discrimination) as encompassing ‘sexual orientation’ for a finding that the prohibition under Section 250(1) of the Criminal Code disclosed a differential treatment on gay couples as opposed to heterosexual ones on the basis of sexual orientation. However, the Supreme Court did not choose to embark on a constitutional analysis of the violation of substantive fundamental rights, such as the rights to liberty, privacy, protection against inhuman and degrading treatment, inter alia. It is submitted that inasmuch as this is the latest case on constitutional rights interpretation in Mauritius, this was a missed opportunity to critically analyse the application of fundamental rights under the Constitution. Even obiter comments would have provided more clarity on the scope and extent of these fundamental rights.

Despite the clear and unequivocal powers of the Supreme Court to provide relief in constitutional rights complaints, a cursory glance at the 2022 Annual Report of the Judiciary of Mauritius does not reveal the number of constitutional cases which have been decided by the Supreme Court.Footnote ²⁸ Notwithstanding the lack of data on the number of constitutional rights cases heard and/or decided before the Supreme Court, it should be noted that the cogs of justice in general grinds slowly. In addition, it seems that stringent locus standi requirements and the lack of a human rights culture can partly explain the constitutional rights adjudication deficit. Before proceeding to analyse these reasons in the context of the right to freedom of thought in more detail, it is necessary to sketch the outlines of this right and its contours.

The Normative Contents of Section 11 (Protection of Freedom of Conscience)

The right to freedom of thought is protected under Section 11 (Protection of Freedom of Conscience) which is similarly worded to provisions on freedom of conscience in other constitutions and international human rights instruments.Footnote ²⁹ It contains both the internal and external aspects of this right. Textually, Section 11(1) divides freedom of conscience into three categories. First, freedom of thought and religion are clustered together, suggesting that thought and religion are closely intertwined. In any case, the first category can be considered as part of one’s forum internum, which refers to ‘a person’s inner sanctum (mind) where mental faculties are developed, exercised and defined’.Footnote ³⁰ The second category on the freedom to change one’s religion or belief is also part of one’s forum internum, protecting the right to hold a religion or belief as well as not to have a religion or belief. The third category relates to manifesting and propagating one’s religion or belief through manifestations, which can be attributed to the forum externum or external elements of the right to freedom of conscience.

Another important consideration relates to the specific wording of Section 11 ‘except with his own consent …’, which suggests that an individual can consent to an interference with their freedom of thought (and the associated rights to freedom of conscience and to manifest one’s religious belief, inter alia). Phiri, analysing in this handbook a similar right to freedom of thought section contained in the Constitution of Zambia, argues that this ‘literally means’ that ‘an individual may relinquish or waive his own entitlement to freedom of thought and freedom of religion or belief alike’.Footnote ³¹ This is interesting to the extent that an individual can use his or her autonomy to waive the right to exercise these fundamental freedoms. However, relinquishing a right of an absolute nature would seem to be at odds with constitutional rights interpretation. The meaning attributed to this phrase will always be coloured by its context and must thus be addressed by academic and judicial interpretation in order to avoid any doubt. In addition, there could be a simple explanation for why this particular phrase can be found in various commonwealth jurisdictions: ‘Whitehall lawyers must have drafted at least 33 complete and final independence constitutions during the [post Second World War] period, to say nothing of a deluge of intermediate instruments.’Footnote ³² One does not have to engage in serious mental acrobatics to draw the inference that the drafters must have replicated the same features in several constitutions, including the phrase ‘except with his own consent’.

Moreover, the other subsections of Section 11 go further in capturing particular aspects of the rights contained under this section. Section 11(2) provides that no person attending an educational institution will be obligated to receive religious instruction or participate in any religious ceremony or practice if those instructions, ceremonies, or practices are associated with a religion they do not adhere to. Further, Section 11(3) states that no religious association shall be prevented from making provision of religious teachings to members adhering to their community. What can be gathered from Subsections (2) and (3) is the importance ascribed to religion. As a pluri-ethnic nation whereby different religious communities coexist, there was a delicate yet essential balance that had to be struck when drafting the Constitution. As noted previously, the main architects behind the drafting of the Constitution of Mauritius were anxious not to exacerbate religious and political tensions in the lead up to the independence of Mauritius.Footnote ³³

Section 11(4) is an important subsection which is connected with the internal aspect of the right to freedom of conscience: ‘[n]o person shall be compelled to take any oath that is contrary to his religion or belief or to take any oath in a manner that is contrary to his religion or belief’. It would appear that Subsection (4) protects the right to freedom of thought in the context of religion and other beliefs.Footnote ³⁴ It can further be noted that this oath-taking element is an unusual feature. At the European level, there have been a series of oath-taking cases from the European Court of Human Rights, which have not been consistent in delineating the conceptual differences between the internal and external aspects of the right to freedom of conscience in the treatment of oath-taking cases under freedom of religion or belief.Footnote ³⁵ Mawhinney has suggested that taking oaths as part of judicial proceedings or as a requirement prior to taking public office which are contrary to one’s religious or other belief are violations of the forum internum, and not the forum externum.Footnote ³⁶ The wording of Subsection (4) can be construed in the light of protection of one’s forum internum against forced coercion. For example, forcing individuals to take religious oaths and to reveal their religion or belief as a prerequisite to take public office or to participate in judicial proceedings would amount to a violation of Subsection (4). The Third Schedule of the Constitution reproduces the oaths of allegiance that public officers have to take. Interestingly, the phrase ‘So help me God’ is found in brackets at the end of the general oath of allegiance, oath of the Prime Minister and other ministers, as well as of the judicial oath. In practice, however, there is no obligation to utter this phrase at the end of swearing-in ceremonies.

Having described the main subsections relating to the contours of the right to freedom of thought as guaranteed by the freedom of conscience provision, it is now necessary to consider Subsection (5), which establishes the normative test under which the right can be limited:

Section 11(5)(a) shares a number of similarities with the limitation clauses of other constitutional rights. The Bill of Rights contains both absolute and qualified rights. Absolute rights do not permit the state to derogate from them under any circumstances. Examples include the right to be free from torture and the right to be free from slavery. On the other hand, there are a number of basic freedoms, including privacy, expression, assembly, association, movement as well as conscience, where the state can limit the rights to the extent that the restrictions are not disproportionate, unreasonable and unjustifiable in a democratic society. Limitation in the context of Section 11(5)(a) is to be construed as lawful interference or limitation of the bundle of rights contained in Section 11(1) ‘in the interests of defence, public safety, public order, public morality or public health’. Section 11(5)(b) seems to be specifically geared towards limitations of the rights under Subsections (2)-(4).

It would appear then that the right to freedom of conscience in the Constitution – including freedom of thought – is not absolute but is subject to certain limitations under Sections 11(5). The Supreme Court echoed this point on limitations in relation to the right to privacy under Section 9 in Ramgoolam v Mauritius, recalling that the constitutional protection afforded to an individual ‘provides for permissible derogations by virtue of “law” in the “public interest” and in the interest of “public order”’.Footnote ³⁷ What transpires from this is that qualified rights – such as the right to freedom of conscience – can be curtailed if there is a law which has been enacted in pursuance of public order or in the public interest.

This permissible limitation of the right in the ‘public interest’ has similarly been discussed in Mauritius v. Sir Bhinod Bacha.Footnote ³⁸ The public interest limitation clause is not only found in Section 9(2) but is a general clause found in other sections of the Constitution which deal with the fundamental rights and freedoms of the individual. While the individual should enjoy the full measure of his fundamental rights and freedoms under the Constitution, it is patently clear that his/her rights stops where the rights of another individual starts. If his constitutional right is in conflict with that of another individual, he cannot claim the full extent of this right.

In Madhewoo v. Mauritius, another important constitutional case referred to in the previous section, the Supreme Court delineated the test applicable to legal restrictions that are reasonably justifiable on the basic rights and freedoms found in the Constitution.Footnote ³⁹ First, there must be a legal basis for the restriction. Second, the restrictions must be shown to be reasonably justifiable in a democratic society. The Supreme Court cited S & Marper v. the United Kingdom with approval regarding what amounts to an interference which is reasonably justifiable in a democratic society: An interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued and if the reason adduced by the national authorities to justify it are ‘relevant and sufficient’.Footnote ⁴⁰ The Privy Council later approved the legal test adopted by the Supreme Court as to how a restriction of a qualified right will be considered permissible if it pursues a legitimate and proportionate aim addressing a pressing social need.Footnote ⁴¹ Having discussed the contents of Section 11 and the test for qualified rights, it is now important to consider whether there are any cases in relation to the right to freedom of thought specifically.

Judicial Appraisal of Freedom of Thought in Mauritius

The right to freedom of thought has been examined by the Supreme Court in the context of judicial immunity. In Hurnam v. State, the Supreme Court highlighted that the immunity enjoyed by judicial officers is ‘essential in ensuring freedom of thought without which there can be no freedom of judgment’.Footnote ⁴² In another judgment, in the context of whether the spouse of a politician can also be considered as a politician by virtue of the spouses’ marital bond, the Supreme Court stated that freedom of thought and opinion is not only a fundamental right on paper insofar as it is a kind of freedom that starts at home.Footnote ⁴³ These few cases have briefly and tangentially dealt with the right to freedom of thought. As such, these cases show how the courts traced the edges of the right to freedom of thought, without necessarily engaging in an interpretive exercise of the normative content of this constitutional right. However, there are certain cases in the context of religion where the courts had the opportunity to capture some essential attributes of the right to freedom of thought and conscience.

For instance, in Veeramootoo v. Veeramootoo, a couple had a civil marriage in 1986 and, previously in 1981, had a Hindu ceremonial marriage.Footnote ⁴⁴ The wife, later converting to another religion, faced divorce allegations for neglecting household duties and disrespecting her husband’s Hindu religion. The trial court granted a divorce to the husband citing the wife’s breach of religious respect. However, the Supreme Court decided that both spouses were at fault. It held that one spouse changing his/her religious belief does not automatically entitle the other spouse to seek a divorce. However, if this change in religion is coupled with a change in behaviour that affects the marriage, it could serve as a basis for divorce. Moreover, if one partner obstructs the other from practicing their chosen religion, it would be considered improper conduct and could potentially lead to the other spouse obtaining a divorce.

In Roman Catholic Diocese of Port-Louis v. Minister of Education, the plaintiff contested the introduction of the Education (Amendment) Regulations 1989 on the basis that it was in violation of his constitutional rights under Sections 11 and 14 of the Constitution.Footnote ⁴⁵ The plaintiff argued that the new regulations purporting to amend the Education Regulations 1957 had the effect of denying it state grants insofar as it did not meet, inter alia, the condition under Regulation 49 that ‘it shall not, in recruiting staff, or otherwise, make any discrimination on the grounds of race or religion.’ The plaintiff accepted that they had ensured that their staff’s employment was compatible with the Roman Catholic faith and religion, but that this did not amount to employment discrimination on racial grounds. While the case did not really turn on the analysis of Section 11, the obiter comments of the Supreme Court are noteworthy.

The Supreme Court was of the view that the plaintiff’s true intent was not to have the ability to reject a teacher solely based on their non-Catholic faith (which was not lawfully permissible in any event). Instead, the plaintiff sought the freedom, in staff recruitment, to maintain the distinctive character of its schools and promote the teachings of the Holy Gospel through education. This involved the ability to refuse employment or terminate individuals openly advocating unacceptable practices. Additionally, the plaintiff wished to use criteria beyond academic qualifications in certain cases to have a suitable staff capable of achieving these purposes. The Supreme Court affirmed the plaintiff’s entitlement to exercise these rights, emphasising that legislative measures should not eliminate such rights. It should be highlighted that the court could have been more explicit in its analysis by clarifying how the case falls within the ambit of the right to hold religious beliefs under Section 11. This is reflected in the court’s approval of the holding and expression of religious beliefs through these educational institutions.

Even if the foregoing discussion has suggested that the right to freedom of thought is inextricably linked with the right to freedom of religion in Mauritius, it should nonetheless be noted that it is difficult to reconcile the qualified nature of the right to freedom of thought in Mauritius with international scholarship which regards this right as absolute in nature. While there are few court cases specifically on the right to freedom of thought in Mauritius, there is more case law on the interpretation of not only constitutional rights ranging from Section 4 (protection of the right to life), Section 5 (protection of the right to personal liberty), Section 7 (protection from inhuman treatment), and Section 9 (protection for privacy of home and other property), but also broader constitutional law issues.Footnote ⁴⁶ For instance, in The State v. Khoyratty, the Privy Council deliberated on how democracy involves various concepts, notably that fundamental rights should be safeguarded by an independent and impartial judiciary, and that a separation of powers among the executive, legislative, and judiciary is one of the key democratic pillars enshrined in the Constitution of Mauritius.Footnote ⁴⁷ In Matadeen v. Pointu, the Privy Council emphasised that the Constitution of Mauritius does not allow for categories of discrimination to be adjudicated by courts other than those expressly mentioned in the Constitution or in specific legislation.Footnote ⁴⁸

The Supreme Court has highlighted how domestic courts should display latitude when dealing with constitutional rights issues and that ‘the exercise of Constitutional rights or cause of action should not be impaired as a result of mere technical objection or procedural laches’.Footnote ⁴⁹ However, one is left with the impression that locus standi requirements are too restrictive in scope, thereby making the violation of constitutional rights increasingly resistant to judicial oversight. It is suggested that the judiciary must more generously apply the standing test to allow individuals constitutional redress for alleged violations of their fundamental rights. Moreover, there is a lack of human rights culture which can be seen in the way that constitutional rights claims are not used as an instrument of social regulation. This has far-reaching consequences for the protection of constitutional rights, and in particular the right to freedom of thought. If the judiciary engage in more extensive interpretive exercises of the content and scope of the fundamental rights enshrined in the Constitution of Mauritius, this could have knock-on effects for the protection and realisation of these fundamental rights. The judiciary could also have the opportunity to interpret the right to freedom of thought as absolute and not subject to any limitations under Section 11(5). But if the gates to access constitutional redress are themselves heavily guarded and not easily accessible, it is then fairly inevitable that the wheels of justice will grind to an ever-slower pace.

Concluding Thoughts

The right to freedom of thought is protected under Section 11 (freedom of conscience) of the Constitution of Mauritius, which incorporates the right to freedom of thought as being closely connected with the right to freedom of religion. While it should come as no surprise that Section 11 in general amounts to a qualified right subject to lawful and proportionate limitations which are reasonably justifiable in a democratic society, it is difficult to square this with the absolute nature of the right to freedom of thought. This chapter has provided a broad account of the Mauritian legal system before turning to the nature of constitutional rights protection in Mauritius. It has then analysed the normative contents of Section 11 by delineating between the internal and external aspects of the right to freedom of conscience as well as providing an outline of the limitation test for qualified rights. An implication of this analysis is how the freedoms of thought and to change one’s religion or belief are part and parcel of one’s forum internum, and should as a result be construed as absolute in nature.

The final section has examined the few cases related to freedom of thought in Mauritius. It has been suggested that the judiciary has made significant contributions to the development of constitutional rights. However, these contributions have been slow and haphazard. The judiciary had ample opportunity in recent decades to add flesh to the bare bones of constitutional rights interpretation and protection in Mauritius. Yet, there has been a contumelious disregard to place the individual at the centre of constitutional rights protection insofar as there are stringent locus standi requirements which place an onerous procedural burden on individuals seeking constitutional relief for interference with their fundamental rights. As a result, it can safely be assumed that this is, at least partly, due to the lack of human rights culture that prevails in Mauritius. The judiciary should thus take a more proactive stance by developing an appropriate set of interpretive tools designed to expand the promotion, protection and realisation of constitutional rights. This could perhaps pave the way for the courts to interpret the right to freedom of thought as an absolute right – subject to no limitations under any circumstances –, in line with a proper understanding of the rule of law in a democracy.

Introduction

11 February 1990: Nelson Mandela walks into the African sunshine a free man after having spent twenty-seven years locked up as a political prisoner. He is now destined to become the first democratically elected president of post-Apartheid South Africa, loved and respected by virtually the whole of the self-styled ‘Rainbow Nation’. The mood, one of hope, jubilation, and frankly disbelieving relief that the nation did not descend into bloody civil war, is hard to explain to those born after this time. Nonetheless, the peaceful transition to democracy did happen, and it happened in the face of one of the most repressive regimes of the twentieth century. It also brought with it the aim of total transformation, premised on constitutional guarantees of freedom, including the right to freedom of thought and opinion.

Almost three decades since it obtained its freedom, South Africa remains a deeply unequal society, with race remaining a significant source of social tension. But it is also now an established liberal democracy with a highly respected judiciary. One of the first tasks of the young democracy was to enact a progressive constitutionFootnote ¹ (‘the Constitution’) containing a robust Bill of RightsFootnote ²; establishing a secular state separating political and religious authorities; and mandating non-discrimination against any religion or belief. The Bill of Rights specifically includes the right to freedom of thought (‘FOT’) albeit as part of the ‘right to freedom of religion, belief and opinion’ in Section 15.Footnote ³

From subsequent case law, including the examples examined below, it is clear that FOT is not (yet) seen as a fundamental right on its own. Cases engaging Section 15 invariably indicate that the right is understood to mainly relate to religion, with conscience, thought and opinion making up further aspects of this right. Apartheid, the system of racial segregation by the minority white regime in South Africa, is well understood in its political, legal, and historical senses. But there was also a fundamentally religious dimension to both the very raison d’être of Apartheid and its eventual peaceful defeat. In order to understand the primarily religious characterisation of FOT in South Africa, one has to fully understand the extent to which religion played a role in the conception of and justification for Apartheid. A brief historical detour is therefore necessary to contextualise the discussion.

Freedom of Thought in the South African Constitution

The South African Constitution is far reaching, and its aim from the start was to influence not just the state but all of society.

The Constitution is the supreme law of the Republic: any law or conduct inconsistent with it is declared inherently invalid, and the obligations imposed by it must be fulfilled.Footnote ¹⁴ This means that the Constitutional Court can and does strike down inconsistent legislation or common law precedent, if an interpretation consistent with the Constitution is impossible. The fundamental rights contained in the Bill of Rights bind the legislature, the executive, the judiciary and all organs of state.Footnote ¹⁵ Horizontal application is recognised explicitly in Section 8(2)Footnote ¹⁶ of the Constitution.Footnote ¹⁷ When courts apply a provision of the Bill of Rights to a natural or juristic person in order to give effect to the right, the court is under a duty to apply the common law or, if necessary, to develop the common law to the extent that the law does not give effect to the right.Footnote ¹⁸ Conversely, the court may also find itself under a duty to develop rules of the common law to limit the right in accordance with the provisions of the Constitution.Footnote ¹⁹

Section 37 of the Constitution provides a list of absolute and limited non-derogable rights. Only the rights to lifeFootnote ²⁰ and human dignityFootnote ²¹ are absolute and non-derogable. The right to equality, which often clashes with other rights, is stated to be non-derogable only with respect to unfair discrimination, and then solely on the grounds of race, colour, ethnic or social origin, sex, religion or language. Freedom of religion, belief and opinion (and therefore also of thought), is not on the list of non-derogable rights and as such is subject to the Constitution’s internal limitation clause. Section 36, which can also be seen as the ‘balancing section’ of the Constitution, states that the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. These include allowing infringement of the relevant right on grounds such as respect for national security, morality, public order, safety and health.Footnote ²² To decide what is reasonable and justifiable, all relevant factors must be considered, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and less restrictive ways to achieve the purpose. This clearly mirrors the proportionality test applied broadly in European human rights jurisprudence. Thus, the right to religious freedom, like most of the other rights in the Bill of Rights, is not absolute. Its scope may be limited by other rights or by a law in pursuit of a legitimate government purpose. South Africa, although a majority Christian country, is a secular state which is careful to observe strict neutrality among its religions. This duty indeed extends to the right not to believe or hold or observe any religion – in other words, freedom of religion but also freedom from religion.

It is encouraging that the right to freedom of thought is named and moreover constitutionally guaranteed, but it is not currently seen as a distinct, stand-alone right: First, it is included in the overarching religious freedom right, which is what Section 15 of the Constitution boils down to. Furthermore, following the noscitur a sociis rule, that is, construing the meaning of the word in the light of the surrounding words, would indicate that the right to FOT is intended primarily to relate to religion and religious beliefs or opinions. This interpretation is borne out by the fact that FOT is not replicated or mentioned in any of the other fundamental rights contained in the Bill of Rights, such as the rights to freedom of expression;Footnote ²³ assembly, demonstration, picket and petition;Footnote ²⁴ freedom of association;Footnote ²⁵ nor is it mentioned in the section specifically guaranteeing political rights.Footnote ²⁶

Freedom of Thought in South African Case Law

Including FOT in the Constitution in the way set out above does not preclude it eventually developing into a standalone right – as is practice in common law systems, the courts may develop the law by interpreting the right more widely. An expanded understanding of the right internationally may influence such a direction. However, to date the only substantive discussion of the right to FOT in the courts focused squarely on its conceptualisation as a part of the religious right, or more specifically, the right to freedom from religion.Footnote ²⁷ But the right to freedom of religion, thought, opinion and conscience itself is interwoven with a number of other rights, which in turn may themselves manifest aspects of the right to freedom of thought as it is understood in the wider sense. These include, most obviously, free speech rights. Freedom of speech and religion furthermore cross at an interesting junction vis-à-vis FOT in South Africa, namely in blasphemy laws. A few select cases illustrate a legal landscape which presently does not provide us with a coherent picture, but can be considered as a mosaic being created, piece by piece.

Relationship to Other Fundamental Rights

At this stage, having examined FOT in its religious guise, it is useful to ask how else it is understood. A good starting point is the report on Article 18(1) of the International Covenant on Civil and Political Rights: Freedom of Thought. It is interesting to note that the report was written by the special rapporteur on freedom of religion and belief, and as such the report may have begun from a religious/humanist angle. But the rapporteur clearly ended up conceiving the right to FOT to reach much wider, comprising the following four attributes: (a) freedom not to disclose one’s thoughts; (b) freedom from punishment for one’s thoughts; (c) freedom from impermissible alteration of one’s thoughts; and (d) an enabling environment for freedom of thought.Footnote ⁴⁴ This wider understanding of the right to FOT maps onto other fundamental rights in the South African Constitution, apart from and in addition to Section 15. For instance, Section 9, the equality clause, prohibits unfair discrimination on various grounds including religion, and the Strydom case discussed above illustrates the way courts balance the possible conflict between religious freedom and equality concerns. Section 31 protects the right of persons belonging to a religious community to practise their religion together with other members of that community, and to form, join and maintain voluntary religious associations. Various other provisions of the Constitution relate to religion and religious freedom. Sections 185 and 186 provide for a commission for the promotion and protection of the rights of cultural, religious and linguistic communities.

But it goes further than religion. Section 1 of the Constitution states that the Republic is founded on ‘Human dignity, the achievement of equality and the advancement of human rights and freedoms’.Footnote ⁴⁵ By placing human dignity in this prominent position, the South African Constitution closely mirrors the same emphasis in the German Constitution, clearly another regime that had to grapple with the abuses of its predecessor.Footnote ⁴⁶ The balancing exercise so well developed in German Courts as well as in the jurisprudence of the European Court of Human Rights in cases of conflicting fundamental rights is furthermore copied in South African courts at all levels up to the Constitutional Court. It could be argued that this is a distinct move towards a nuanced and comprehensive personality right, developing in various jurisdictions. As such, the right to freedom of thought overlaps with, at times combines and merges with, other related fundamental rights. In this context it is useful to examine how South African constitutional rights such as the right to human dignity, the right to freedom of expression and the right to freedom of association currently relate to, and possibly might be developed with regards to, freedom of thought. To this must be added the right to privacy, which may be seen as the foundational right underpinning freedom of thought and speech alike.

Analysis and Concluding Remarks

The right to FOT in South Africa has been exercised in the courts and has been the subject of scholarly and policy debates mostly as far as its religious aspect is concerned. The right to FOT, as a distinct right, is rarely mentioned. In fact, Section 15 which contains the right to FOT as a component of the overarching right to freedom of religion, belief and opinion, seems to be understood as mainly referring to the right to freedom of religion, or as some prefer, freedom from religion. At first glance it may seem that coercive proselytising, archaic witchcraft and blasphemy legislation comprise the main issues for FOT in South Africa. It is submitted that this misses the point: that the right to FOT, although specifically contained under the umbrella of religious freedom in the Constitution, also forms part and parcel of other fundamental rights such as equality, speech, and privacy.

In the end, it is useful to again consider the four attributes of the right to FOT as formulated by the Special Rapporteur on freedom of religion or belief and to consider to what extent, in aggregate, South Africa lives up to the ideal. As far as freedom from punishment for one’s thoughts is concerned, the strong Constitutional protection of free speech augurs well, although the proposed criminalisation of hate speech may militate against this. Mandating religious plurality in schools, especially, and guaranteeing equality as seen in the cases discussed above indicate a commitment to freedom from impermissible alteration of one’s thoughts. Finally, one can conclude that an enabling environment for freedom of thought not only exists, but has the potential to be further developed in South Africa. Given the nature of the South African constitution as well as the strong and fearless role of the Constitutional Court evident thus far, there is tremendous potential for constitutional jurisprudence to drive the development of a well-rounded personality right, including aspects of privacy, freedom of speech as well as freedom of thought.

Introduction

The right to freedom of thought in Africa is a proverbial mare’s nest.Footnote ¹ The African Charter on Human and Peoples’ Rights (‘African Charter’)Footnote ² does not explicitly recognise freedom of thought (although it recognises freedom of conscience and religion). However, as demonstrated below, there is sufficient scope to argue that this freedom is implicitly recognised. The African Charter on the Rights and Welfare of the Child (‘ACRWC’),Footnote ³ on the other hand, explicitly entrenches freedom of thought under Article 9. However, the right’s scope and content remain unclear as no case law has squarely focused on this right. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’)Footnote ⁴ lacks the right to freedom of thought, but this is unsurprising as the Maputo Protocol is an appendage to the African Charter. Nevertheless, the right to freedom of thought may be inferred from the existence of other rights contained in the Maputo Protocol. More on all this later.

Despite the morass status of the right to freedom of thought in Africa, freedom of thought must flow freely and uninhibited, permeating the cracks and crevices of our societies and touching every mind it encounters. Freedom of thought recognises that thinking is deeply rooted in human experience.Footnote ⁵ According to von Humboldt, freedom of thought should not be restricted because it is vital to ‘our whole manner of thinking, and even acting’.Footnote ⁶ For Rawls, freedom of thought is imperative to the foundation of a just society.Footnote ⁷

To underscore the importance of freedom of thought, McCarthy-Jones asserts that the right to freedom of thought has absolute protection under international law because without the right to freedom of thought, human dignity and democracy are lost.Footnote ⁸ Freedom of thought is so vital that it has been described as the origin of all other human rights.Footnote ⁹ It has also been considered the foundation for human dignity and agency.Footnote ¹⁰ Bublitz reasons that it is an absolute right, and its absoluteness has resulted in very little case law and academic scholarship as it is taken for granted.Footnote ¹¹ Simply put, freedom of thought is neglected because it is seen as unquestionable. This led Newman to dub freedom of thought as the ‘forgotten freedom’.Footnote ¹²

From the outset, it is prudent to juxtapose the scope of the right to freedom of thought, at an abstract and general level, prior to focusing on the existence and content of the right in Africa. There are at least three uncontroversial facets of the right to freedom of thought. The first is that people should not be punished or sanctioned for their thoughts.Footnote ¹³ The second is that thoughts should not be impermissibly interfered with or altered.Footnote ¹⁴ The third is that people should not be compelled to expose or reveal their thoughts.Footnote ¹⁵ These are negatively framed facets – it demands that the State should not interfere with these freedoms. These freedoms are also considered absolute and cannot be interfered with.Footnote ¹⁶ There is also a positive facet to the right, which places an obligation upon the State to create an enabling environment for freedom of thought.Footnote ¹⁷

The right to freedom of thought is essential to an individual’s inner sanctuary, the forum internum.Footnote ¹⁸ It is within this realm that one’s mental faculties, including opinions, ideas, and beliefs, are nurtured, expanded, and shaped.Footnote ¹⁹ To this end, the right to freedom of thought encompasses both the process (and autonomy) of developing and cultivating one’s own thoughts and the end product of such a process.Footnote ²⁰ Some scholars, such as Evans, argue that the right to freedom of thought is interchangeable and synonymous with conscience.Footnote ²¹ Unlike Evans, Partsch asserts that ‘thought’ refers to only political and social beliefs; whereas ‘conscience’ refers to moral beliefs and attitudes.Footnote ²² De Jong argues that the right to freedom of thought only refers to personal views, such as politics, science, and philosophy, which significantly impact one’s way of living.Footnote ²³ Providing a broader conception of the ‘thought’, the United Nations Human Rights Committee notes that freedom of thought is ‘simultaneously “profound and far-reaching” [and] it protects thoughts on “all matters”, whether about conscience, religion, or belief or other topics’.Footnote ²⁴

This chapter concerns Africa’s embrace of the right to freedom of thought. The questions at the centre of this chapter are: (i) how is the right protected regionally; (ii) what is the scope and content of the right regionally; (iii) are there any limitations to this right; and (iv) is there a coherent jurisprudence that deals with the right regionally and, if so, what does it tell us about the right? These questions underpin the structural narrative of this chapter, which proceeds as follows. The second section considers the inclusion of the right to freedom of thought (or lack thereof) in the African Charter, the relevant case law, and makes the case that this right is implied under Article 8 of the Charter. The third section will delve into the ACRWC and how the freedom of thought is protected under that normative framework. The last section explores the Maputo Protocol and how, if at all, it contributes to our understanding of the right to freedom of thought.

The Right to Freedom of Thought under the African Charter

Adopted in 1981, the African Charter enumerates a list of individual and group rights, freedoms, and duties to which every individual in Africa is entitled. Fifty-four out of fifty-five members of the African Union,Footnote ²⁵ have signed and ratified the African Charter, except for Morocco.Footnote ²⁶ The African Charter provides a normative framework for the human rights system in Africa. It is an expansive, legally binding treaty that enshrines first generation rights (civil and political rights), second-generation rights (socio-economic rights), and third-generation rights (cultural and group rights).Footnote ²⁷

Article 8 of the African Charter is laconic.Footnote ²⁸ Of the trinity of sister rights,Footnote ²⁹ it explicitly guarantees two to them: freedom of conscience and the right to profess as well as the practice of religion. In relation to religion, the guarantees are twofold: (i) the freedom to profess a religion and (ii) the freedom to practise religion.Footnote ³⁰ Article 8 may seemingly be limited on the grounds of law and order. Freedom of thought is textually absent from Article 8 and the entire African Charter. The travaux préparatoires of the African Charter, as economical and vague as they are, reveal that freedom of thought was historically omitted. One of the well-known drafts of the African Charter, commonly referred to as the M’Baye Draft,Footnote ³¹ contains a more detailed version of Article 8.Footnote ³² Notwithstanding the expansive nature of the M’Baye Draft provision, the right to freedom of thought is noticeably absent. This omission is puzzling if one considers that the M’Baye Draft (drafted in 1979) is modelled on and draws inspiration from the International Covenant on Civil and Political Rights (adopted in 1966), which contains the right to freedom of thought under Article 18. No justification emerges in the travaux préparatoires for this omission, and no scholarship investigates this omission. But this could be due to the sparse nature of the travaux préparatoires of the African Charter. As Plagis and Riemer note, the travaux préparatoires are limited, and any archival research faces a significant constraint due to the absence of transcripts documenting the debates held during the drafting sessions. It cannot be gainsaid that such transcripts would have provided valuable insights into the discussions that influenced the multiple revisions made to the wording of the African Charter.Footnote ³³ The lack of inclusion of freedom of thought with no apparent justification may give credence to Mugwanya’s assertion that the African Charter was drafted with less ‘juridical precision’ than other human rights instruments.Footnote ³⁴

Judicially, Article 8 is rarely invoked compared to other rights in the African Charter.Footnote ³⁵ Also, it has been seldomly referred to in complaints that come before the African Commission on Human and Peoples’ Rights (the African Commission) and the African Court on Human and Peoples’ Rights (the African Court).Footnote ³⁶ Much of this jurisprudence is convoluted. One reason is that the African Commission uses ‘freedom of conscience’, ‘freedom of religion’ and the ‘freedom to practise religion’ interchangeably. This is regrettable as it fails to delineate the scope of each right and freedom clearly. By treating the right to freedom of conscience and the right to religion as interchangeable rights denudes them of their individual significance and makes the recognition of both rights nugatory since they appear to mean the same thing according to the African Commission.

Conflating the right to religion and the right to conscience has further consequences. The African Commission in Ezzat recognised that Article 8 protects both the forum internum and the forum externum.Footnote ³⁷ The African Commission recognised that core aspects of the freedom to profess a religion (such as adopting, having, holding, maintaining, or even denouncing a religion)Footnote ³⁸ are exercised in the innermost faculties – the forum internum.Footnote ³⁹ The forum internum includes the freedom of conscience.Footnote ⁴⁰ These freedoms or rights are absolute and cannot be limited. Thus, any attempt to limit or curb these freedoms is ‘unequivocally prohibited’.Footnote ⁴¹ The Commission went on to note that there is a primary duty on States to respect these core freedoms by not adopting any measures that would violate a person’s forum internum.Footnote ⁴²

In contrast, the African Commission remarked that the freedom to practise one’s religion entails outward manifestations or observances of religious faith or belief.Footnote ⁴³ These could take place privately or publicly. Unlike the forum internum, the forum externum can be limited to maintain law and order.Footnote ⁴⁴

This distinction and these implications are lost when the African Commission and the African Court interchangeably refer to religion and conscience without drawing a distinction. These innermost thoughts and beliefs are inviolable and beyond the reach of the State; however, if they are conflated with the outward manifestations of beliefs (such as practising a religious belief), it makes them susceptible to limitation. This would subvert the very logic that was set out in Ezzat and make nonsense of this distinction.

In the Endorois case, the African Commission held that the government of Kenya had violated the rights of the Endorois community by evicting them from their ancestral lands for the creation of a game reserve.Footnote ⁴⁵ One of the rights found to be violated was Article 8 of the African Charter on the basis that the Endorois’ right to practise their religion has been violated by their eviction from their land as it restricted their access to religious sites.Footnote ⁴⁶ The African Commission held that ‘freedom of conscience and religion should, among other things, mean the right to worship, engage in rituals, observe days of rest, and wear religious garb’.Footnote ⁴⁷ Here, the African Commission considers the right to freedom of conscience and religion as referring to the same substantive demands, which is the right to worship, wear religious clothes, observe days of significance and engage in spiritual rituals.

Interestingly, Article 8 also does not refer to ‘belief’. However, the African Commission has recognised that ‘belief’ is protected under Article 8 of the African CharterFootnote ⁴⁸ and Article 8 has to be interpreted and construed broadly.Footnote ⁴⁹ Unsurprisingly, just as much as religionFootnote ⁵⁰ can be a belief under Article 8 of the African Charter, so too can political beliefs.Footnote ⁵¹

The right to freedom of conscience is seldom cited on its own, without reference to religion or religious practice. In Jehovah’s Witnesses, a case concerning allegations of grave human rights violations against Jehovah Witnesses in Zaire (now the Democratic Republic of Congo) including torture, arbitrary arrests, detentions, extrajudicial executions, unfair trials, and the suppression of freedom of association and assembly and the freedom of the press. The African Commission noted that Article 8 ‘protects freedom of conscience. The harassment of the Jehovah’s Witnesses … constitutes a violation of this [A]rticle, since the government has presented no evidence that the practice of their religion in any way threatens law and order.’Footnote ⁵² Further, the right to freedom of conscience permits persons or groups to assemble and worship for religion or belief, create and maintain religious sites, and celebrate ceremonies in a way that would align with their religion or belief.Footnote ⁵³

Despite these repeated utterances of the right to freedom of conscience being married to religion, it does not seem shackled to it. In the Zambia case, the African Commission referred to freedom of conscience in the context of protecting political beliefs.Footnote ⁵⁴ The African Commission has highlighted the relationship between Article 8 and other rights enshrined in the African Charter, such as the right to information and freedom of expression (Article 9)Footnote ⁵⁵; the right to property (Article 14)Footnote ⁵⁶; the right to education (Article 17)Footnote ⁵⁷; and the right to a fair trial (Article 7).Footnote ⁵⁸ Moreover, even though its reasoning is not a particular model of clarity, the African Court has repeatedly linked Article 8 to Article 2 of the African Charter, which requires non-discrimination in the enjoyment of the rights and freedoms contained in the Charter.Footnote ⁵⁹

The case law from both the African Commission and African Court do not expressly refer to freedom of thought at all. Even so, Article 8 has been interpreted broadly to include beliefs (political, traditional, and religious) despite the preoccupation with religious practices, worship, and access to religious sites. The conflation of freedom of conscience with freedom of religion means freedom of conscience is not understood as a standalone right, which encompasses freedom of thought. It is, however, possible for the African Commission and African Court to interpret freedom of conscience broadly enough to include freedom of thought as it has not held that freedom of conscience is intricately and inherently linked to religion and religious practices.

However, despite the mandate to interpret and apply the provisions of the African Charter, the African Commission and African Court have missed significant opportunities to establish a clear and comprehensive understanding of the scope of Article 8. The African Commission has not demonstrated a consistent, thoughtful, and reasoned approach to addressing these matters. This long-standing problem highlights a recurring flaw in the Commission and Court’s overall approach to interpreting and applying the provisions of the African Charter. The African Commission and the African Court must articulate the precise level of protection afforded by Article 8 and illuminate the interpretation of the phrase ‘subject to law and order’ within the context of the Article’s guarantees. Failing to address this matter comprehensively may perpetuate the unresolved confusion surrounding the exact nature of these limitations.

Unsurprisingly, given the lack of jurisprudence, there is not a robust body of scholarship on the freedom of thought and Article 8 of the African Charter generally. Murray simply notes that freedom of thought is not mentioned or referred to under Article 8 of the African Charter.Footnote ⁶⁰ Olaniyan contends that a guarantee of freedom of conscience and religion implies that a State should refrain from interfering with a person’s profession of religious or non-religious beliefs or thought.Footnote ⁶¹ However, Olaniyan does not provide a justification for this conclusion or a reference to support this proposition. The general dearth of legal scholarship dealing with the right to freedom of thought within the African human rights system and where it can be housed is unfortunate. Even though it is not explicitly listed, the right to freedom of thought is the basis for other civil liberties, such as freedom of expression, association, and religion.Footnote ⁶² And it is a right that is worthy of recognition.

Despite the exclusion of the right from the African Charter, as alluded to above, the right to freedom of thought can be implied from Article 8. In SERAC v. Nigeria, the African Commission recognised that rights may be implied from the Charter if not expressly enumerated.Footnote ⁶³ Accordingly, the absence of a right in the text of the Charter does not mean that such a right is not protected. Thus, there is a scope for implied rights; one such right is freedom of thought. Furthermore, the existence of the right to freedom of thought is bolstered by the explicit inclusion of freedom of expression (Article 9(2)); right to receive information (Article 9(1)); and right to education (Article 17(1)). Freedom of expression presupposes the freedom to form thoughts and opinions in the first place. The right to express oneself is meaningless without the right to have independent thoughts.

The Right to Freedom of Thought under the African Charter on the Rights and Welfare of the Child

The ACRWC is the inaugural inclusive regional treaty focused on safeguarding and advancing children’s rights in Africa.Footnote ⁷⁶ It recognises that children have their own inherent dignity, not umbilically tied to their parents or caregivers.Footnote ⁷⁷ Children are rights-bearers and entitled to assert these rights domestically and regionally.Footnote ⁷⁸ It acknowledges African children’s unique difficulties and obstacles and endeavours to tackle them effectively.Footnote ⁷⁹ Some of these challenges include the conditions of children who were living under apartheid in South Africa, harmful cultural attitudes and beliefs, and harmful cultural practices such as female genital mutilation. The ARCWC complements the Convention on the Rights of the ChildFootnote ⁸⁰ but particularises the rights to the prevailing circumstances in Africa and attempts to reflect an African conception of the rights and welfare of children.Footnote ⁸¹ Notwithstanding the ambition of the ARCWC to reflect an African conception of rights, it embraces and guarantees civil, political, economic, social and cultural rights, which are comparable to the Convention on the Rights of the Child.Footnote ⁸² While it also enumerates the duties and responsibilities of parents, legal guardians and the State, it also imposes a range of duties on children,Footnote ⁸³ such as the duty to service their national community by placing their intellectual and physical abilities at its service.Footnote ⁸⁴ With this general overview, what does the ACRWC say about the right to freedom of thought?

Despite the absence of freedom of thought in the African Charter, the ACRWC, under Article 9(1), recognises the trinity of sister rights and provides that every child has the right to freedom of thought, conscience, and religion. Thus, freedom of thought is expressly mentioned as a distinct right under the ACRWC. Article 9(2) of the ACRWC places a duty on parents and legal guardians ‘to provide guidance and direction in the exercise of these rights having regard to the evolving capacities, and best interests of the child’, which the state will respect subject to the national laws and policies.Footnote ⁸⁵

The explicit recognition of the right to freedom of thought in the ACRWC and its notable absence in the African Charter creates an oddity. If one accepts that the right to freedom of thought is not implicitly guaranteed under Article 8, it means that the right to freedom of thought enjoyed under the ACRWC ends abruptly. Children are guaranteed the right to freedom of thought, and then suddenly, at midnight, when they turn eighteen, they lose this right and no longer enjoy it. There is nothing inherent in the right to freedom of thought that would justify restricting its recognition merely to children. A congruent and harmonious reading would ensure that the right to freedom of thought is not lost when one turns eighteen. This right is implied under Article 8, which the African Commission has recognised includes political, traditional, and social beliefs (as discussed above).

The African Committee of Experts on the Rights and Welfare of the Child (the African Child Committee), established in terms of Article 32 of the ACRWC,Footnote ⁸⁶ must ‘promote and protect’ the rights of the child enumerated in the ACRWC and their welfare.Footnote ⁸⁷ Part of this broad mandate are the following core facets: (i) formulation of rules and principles about the rights and welfare of children; (ii) the interpretation of the ACRWC at the request of a State Party, institution of the African Union (AU) or any other person or institution recognised by the AUFootnote ⁸⁸; and (iii) monitoring the implementation of the rights.Footnote ⁸⁹

The African Child Committee (AC Committee) may receive complaints, in the form of communications, from any person, group or non-governmental organisation recognised by the AU (or its predecessor, the OAU), a State Party or the United Nations. Such complaints must relate to any matter covered by the Charter.Footnote ⁹⁰ It is the only child rights treaty in the world with the competence to receive complaints against a particular State.Footnote ⁹¹ To date, the AC Committee has received twenty-four communications, none of which concerned the right to freedom of thought. Thus, no judicial pronouncements elucidate what this right entails.

Unlike Article 8 of the African Charter, Article 9 of the ACRWC is not subject to any internal limitation or ‘claw-back’ provisions.Footnote ⁹² Therefore, it is an absolute right. From the limited communications that have been finalised and delivered, the AC Committee has not pronounced on how rights ought to be limited in the absence of the clawback clauses and whether there is a general limitation approach the Committee will take. What appears to have occurred is that the AC Committee has endeavoured to define the content and scope of the rights and the breadth of the responsibilities placed on children, parents, legal guardians, and the State.Footnote ⁹³

Similar to Article 8 of the African Charter, there is also a dearth of literature that considers the right of freedom of thought under the ACRWC despite its express mention. Literature about the ACRWC is generally scarce, so perhaps the lack of scholarship considering this specific right is unsurprising. In light of this, there is scope for further engagement on the right to freedom of thought under Article 9 of the ACRWC.

Freedom of Thought under the Maputo Protocol

Article 18(3) and Article 2 of the African Charter were considered to offer minimal and insufficient protection to women.Footnote ⁹⁴ More strongly put, women’s rights in the African Charter appear to be an afterthought, and as such, their protection did not feature emphatically in the African Charter. This necessitated the drafting and adoption of the Maputo Protocol, a legally binding multilateral supplement to the African Charter.Footnote ⁹⁵ Banda, however, would object to this characterisation and assert that the Maputo Protocol emerged as a response to the lack of implementation of Article 18(3) and Article 2 of the African Charter.Footnote ⁹⁶ Be that as it may, the Maputo Protocol’s provenance is immaterial for this chapter, for it still serves as an ‘endless source of inspiration’ for women in Africa.Footnote ⁹⁷

Through its preamble, the Maputo Protocol provides, inter alia, that any practice that ‘hinders or endangers the normal growth and affects the physical and psychological development of women and girls should be condemned and eliminated’. It then enshrines several rights, including civil, political, social, economic, and cultural rights, framed in a way that would reflect the pluralistic realities and cultures found in Africa. These rights include: the free development of personality (Article 3(2)); the integrity and security of person (Article 4); the right to equal protection before the law (Article 9); equal access to housing (Article 16); enjoyment of equal rights to be regarded as equal partners in marriage (Article 6); participation in the political and decision-making process (Article 9); health (Article 14); and, nutritious and adequate food (Article 15). The State is the primary duty-bearer for achieving these rights, although, as Koom notes, eight of the thirty-two articles do not place an obligation on the State.Footnote ⁹⁸

Despite an impressive set of enshrined rights, the Maputo Protocol is silent on the right to freedom of thought. The other sister rights are also missing from the Maputo Protocol. This could be explained by the fact that the Maputo Protocol is a supplement to the African Charter. Therefore, it contains rights (specifically afforded to women) that are in addition to the African Charter and does not purport to be an independent legal treaty.

That said, the right to freedom of thought can be implicitly derived from the right to free development of personality, under Article 3(2), and the right to participate in the political and decision-making process, guaranteed under Article 9. The right to free development of personality encompasses an individual’s autonomy and the ability to make choices that reflect their beliefs, values, and convictions. Inherent within this right is the freedom to engage in critical thinking, form opinions, and engage in intellectual exploration. By granting individuals the freedom to develop their personalities without undue interference, the Maputo Protocol recognises that such development inherently involves the exercise of one’s cognitive faculties and the formation of thoughts. Consequently, the Protocol indirectly safeguards the freedom of thought by protecting the space in which individuals can cultivate their unique worldviews, perspectives, and cognitive processes.

Furthermore, the right to participate in the political and decision-making process, as enshrined in (Article 9), the Maputo Protocol, reinforces the notion of freedom of thought. Effective participation in political affairs and decision-making requires individuals to think critically, analyse complex issues, and formulate informed opinions. By guaranteeing this right, the Protocol acknowledges that meaningful political participation necessitates the freedom to engage in cognitive processes, including the formation and expression of thoughts. It is through the ability to think independently and critically that individuals can actively contribute to public discourse, advocate for their interests, and make informed decisions in the political arena. Therefore, the Maputo Protocol not only protects the right to participate but also indirectly upholds the freedom of thought as a fundamental element of effective political engagement and democratic governance.

Conclusion

The right to freedom of thought is textually absent from the African Charter. There is no mention of the right despite the inclusion of the right to freedom of conscience, the profession and free practice of religion under Article 8. A look at the travaux préparatoires of the African Charter show that the right to freedom of thought was generally left out historically but no justification is proffered for this omission. Article 8 has been held to comprise elements of forum internum (freedom of conscience and profession of religion) and forum externum (free practice of religion). The former is said to be absolute, whereas the latter may be subject to limitations. However, the African Commission and the African Court are guilty of conflating these rights and not properly delineating the content and reach of each right. This is an unfortunate development as Article 8 is rarely invoked, and thus, the case law is rather limited. However, there is case law that requires Article 8 to be broadly interpreted to include belief (political, traditional and social). This means that there is sufficient scope for freedom of thought to be implied from Article 8, which would be bolstered by the express inclusion of other rights, such as the right to freedom of expression and the right to impart and receive information.

Unlike the African Charter, the ACRWC explicitly recognises freedom of thought as an absolute right that is not subject to any internal limitation (such as a claw back provision). However, it is unclear whether the right to freedom of thought would be subject to any general limitations as there is little jurisprudence from the African Child Committee dealing with general limitations and there is no case law on the right. Be that as it may, the existence of the right to freedom of thought in the ACRWC supports the argument that this right is implied under Article 8 of the African Charter. To argue otherwise would mean that individuals lose their right to freedom of thought as soon as they turn eighteen. In other words, a child would enjoy the right to freedom of thought and suddenly lose it as soon as they are adults. There would be no sound justification for such a plain absurdity.

The Maputo Protocol also does not contain an express provision on the right to freedom of thought. However, it is argued that freedom of thought can be implied from the right to free development of personality as well as the right to participate in political and decision-making processes. These two rights can be a strut to the recognition of the right to freedom of thought.

Unfortunately, there is little literature that focuses on the right to freedom of thought in relation to the African Charter, the ACRWC and the Maputo Protocol, either individually or collectively. This is especially concerning considering that the right to freedom of thought is a fundamental human right that is the cornerstone of other civil and political rights. It is arguable that it is vital for any well-functioning democracy and development. Freedom of thought is the water that nourishes the tree of other human rights, democracy, and development.