Address glaring inconsistencies on the right to express religion

By Denis Ndiritu

The right to religion falls right at the heart of our constitution and society. Article 32 of the Constitution espouses the right to freedom of conscience, religion, thought, belief and opinion and in doing so vests the Kenyan citizen with the power to manifest this religion whether in person or as a group through practice teaching or observance. 

Recently, a father sued the Education ministry and Olympic High School in Kibra seeking to compel them to admit his daughter to Form One without having to shave her dreadlocks. In JWM (AliasP) v Board of Management(Particulars Withheld) High School & 2 Others [2019] eKLR, the father contended that his daughter wore dreadlocks as part of her Rastafarian religion and not as a fashion statement and should therefore not be compelled to shave them off. Nonetheless, the minor was sent away on January 10 despite having paid school fees, for having dreadlocks and was directed to come back only after shaving. The father, in the suit, protested that the action of the school amounted to discrimination on the basis of her Rastafarian beliefs, prompting the High Court in January to compel the school to admit the student pending the verdict on her case.

While Article 32(2) provides all citizens with the right to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship, the school denied the admission of the minor to school entirely on the basis of her dreadlocks. It is on the premise of these grounds that the court ruled that the decision by Olympic High School to exclude her from school because of her dreadlocks was unconstitutional, as this was a manifestation of her religion. 

In his dictum, Justice Chacha Mwita reiterated the fact that the minor had a constitutional right to basic education which could not be slaughtered at the altar of compromise as keeping Rasta was her way of professing her faith, and thus it was wrong to compel her to shave which was against her religion; the school administration’s action amounted to a violation of the girl’s right to religion and education; that the minor indicated in her admission form that her religion was Rastafarian, further illustrates that there was a legitimate expectation that she had of her religious freedom being upheld. It does not help the case that the Constitution does not define what religion is – only the dictionary does.

This case comes in the backdrop of the controversial case of ‘JK (suing on behalf of CK) v Board of Directors of R School & another [2014] eKLR’ where in 2014, High Court judge Mumbi Ngugi decided that schools had a right to set rules for the conduct of their students, in a petition filed against Rusinga School by a parent. In this case, the minor was told to cut off his dreadlocks, causing the parents to challenge the order. The petitioner’s claim in regard to culture was premised on the contention that the minor’s father was of Jamaican descent, that the minor visits Jamaica regularly, and that it was the culture of Jamaica to spot dreadlocks.

In dismissing the case, Justice Ngugi noted that the boy had failed to convince court that his culture and religious rights had been denied. It was her conclusion that it was obvious the boy’s mother wanted him to wear dreadlocks for fashion and not religious reasons, well aware from 2010, upon enrolling the minor to Kindergarten, that dreadlocks were forbidden for boys in the school’s Code of Conduct. The mother thus failed to prove that the child practices Rastafari religion. The crux of this matter was the failure of the mother to prove the consistent practice of the Rastafari religion. While the mother was well aware of the schools code of conduct and autonomy of admission, she abided by the rules for four years then sought to challenge the same rules that she had bound herself too. The court however took cognizance of the fact that dreadlocks may be part of certain cultures, and as such, one cannot be compelled to remove them as this would be in violation of their right to enjoy an aspect of their culture. 

This was the position taken by the South African Supreme Court of Appeals in ‘Department of Correctional Services and Another v Police and Prison Civil Rights Union (POPCRU) and Others (CA 6/2010) [2011] ZALAC 21; (2011) 32 ILJ 2629 (LAC)’ in which the court ruled that to dismiss some of the respondents, who wore dreadlocks as an expression of their cultural practices and beliefs pertaining to the calling and traditions of Xhosa spiritual healing, was unfair and violated their constitutional rights. Importantly, the court clarified that in order to establish religious or cultural discrimination, it was incumbent on the complainants to show that the accused, through their enforcement of the prohibition on the wearing of dreadlocks, interfered with their participation in or practice or expression of their religion or culture as illustrated in ‘Dzvova vs. Minister of Education, Sports and Culture and Others (2007) AHRLR 189 (ZwSC 2007)’.

In the Olympic High School case, the school initially admitted the dreadlocked minor well aware of her locks, as the parents had indicated in her admission documents that she belongs to the Rastafarian Society of Kenya (RSK). The school further showed an implied acceptance of the child’s religion through her undisturbed donning of the turban all through her studies until the turban unfortunately fell off. The school therefore presented the student with a double bind when they asked her to choose between shaving her hair or leaving the school.

While considering the balance of the right to religion vis a vis the right to education, it is important to acknowledge the right of educational institutions to set rules of conduct for their students and their administrative autonomy. Courts will not ordinarily interfere with those rules and regulations except in very exceptional circumstances. The courts have numerously recognised that they are charged with the responsibility of educating children and nurturing them into adults who respect the rule of law and the rights of others who are best placed to make regulations for students, and enforce them. Only if it is demonstrated that such rules or the enforcement thereof violate the rights of those subject to them, or the Constitution, will the court intervene. 

This was well laid out in ‘Fredrick Majimbo & Another vs The Principal, Kianda School, Secondary Section High Court Petition No. 281 of 2012’ where the court noted, “the school must be allowed to govern its student body on the basis of the provisions of the Education Act and its Code of Conduct, and the court will be very reluctant to interfere unless very strong and cogent reasons for interfering with its decisions are placed before it,…”  This had earlier on been underscored in ‘Republic v Egerton University ex parte Robert Kipkemoi Koskey Nakuru Misc. Civil Application No 712 of 2005’, which noted, “…courts are very loath to interfere with decisions of domestic bodies and tribunals including college bodies. Courts in Kenya have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decision of any bodies when the courts are moved to do so where it is manifest those decisions have been made without fairly and justly hearing the person concerned or the other side.”

The right to religion and freedom of expression of religion has further been a matter of walking on eggshells in our judicial system when matters on hijab have been deliberated.

Such was the case in ‘Methodist Church in Kenya v Mohamed Fugicha & 3 others Petition No. 16 of 2016’. The ruling by Justice Aaron Makau ignited furore as the decision to allow Muslim students in the school to wear hijab and trousers was deemed discriminatory against non-Muslim students contrary to school rules and regulations, with the judge issuing an injunction against wearing of hijabs in the school. The judge was seen to continue with his erroneous train of thought in ‘Republic v Head Teachers Kenya High School & Another Ex parte SMY(2012) eKLR’ and ‘Seventh Day Adventists Church (East Africa) Limited v Minister for Education & 3 Others(2014)eKLR’. Similarly the European Court of Human Rights in SAS v. France’,delivered in2010, upheld French legislation banning hijab-like face cover on the grounds of the same detrimental effect on social interaction and was within the state’s power and duties to ensure “living together” or rather cohesion. The European Court of Human Rights reasoning just like the Kenya High School and Alliance High School cases advance pluralism and intolerance.

The Appellate matter of ‘Mohamed Fugicha v Methodist Church in Kenya & 3 Others Civil Appeal No. 22 of 2015 eKLR’initially arose at the High Court, when Kenya Methodist Church of Kenya, a sponsor of public school in Isiolo County known as St. Paul’s Kiwanjani, sued the Teachers Service Commission and education officials in Isiolo County for directing female students in the school to wear hijab and white trousers in addition to the prescribed school uniforms against the sponsor church’s and the school’s wish. Fugicha was a parent in the school and sought to be joined in the proceedings as interested party on behalf of his three daughters in the school who professed the Islamic faith. Being aggrieved by the decision, Fugicha lodged an appeal arguing that the injunction on hijab denies his daughters and other Muslim girls their rights to exercise their Muslim faith and is therefore discriminatory.

In setting the record straight, the Court of Appeal navigated through the turbulent waters of religious diversity and accommodation in Kenya, applying the Constitution to overturn the High Court decision, thereby affirming the rights of Muslim female students to wear hijab.

In setting aside the decision of the High Court, the Court of Appeal balanced the argument of whether hijab elevates Islam to a special status religion in a secular country and whether the same discriminates against non-Muslim students. The court found that banning hijab would put the Muslim girls in the school at a disadvantage and that wearing hijab was genuinely and deeply considered to be a matter of great, indeed exceptional religious significance to Fugicha’s daughters and other Muslim girls. Their desire to wear the same to school was not borne of a skin deep artificial or passing fashion fad but rather a serious and conscientious attempt to obey a religious requirement and therefore deserving of both respect.

 It further opined that whereas the permitting Muslim girls to wear hijab entails differential treatment from the rest of the school population, it does not mean that other students were discriminated against. 

Importantly, the Court of Appeal pronounced itself on the principle of reasonable accommodation. Under this principle, the constitution pre-supposes that an open, democratic and diverse society must accommodate some measures of additional expenses on inconveniences to enable others equally enjoy their fundamental rights. In this case therefore, the school ought to have worked out reasonable accommodation to enable Muslim girls wear hijabs, as religious attires cannot be equated with fashion or elegance.

This can be espoused as progressive jurisprudence moving away from previous decisions by the High Court in ‘Republic v Head Teachers Kenya High School & Another Ex parte SMY(2012) eKLR’ and ‘Seventh Day Adventists Church (East Africa) Limited v Minister for Education & 3 Others (2014) eKLR’and the‘European Court of Human Rights in SAS v France’delivered in 2010. 

This gain seems to have been retracted by the Supreme Court’s recent decision, ‘Methodist Church in ‘Kenya v Mohamed Fugicha & 3 others [2019] eKLR’,which allowed the school to bar Muslim girl students from wearing hijab on grounds that it was against their uniform policy. The Supreme Court, in a 5-1 majority decision set aside the landmark Court of Appeal decision that had made it illegal for church-sponsored schools to discriminate against students who profess other faiths through a “technicality,” stating that this historic case had not been properly placed before the court. The majority judges found that it would be only through a proper filing of the case that the issue of the right to profess one’s faith versus school regulations could be determined by the court. It is saddening that the case was settled through a technical basis, assessing the procedure through which it was heard and determined, and not through considering the weight of various arguments on the right to education and religion.

While the court may have been seen to have overturned the gains at the Court of Appeal, it should not be lost that the Court directed, in its final orders, that the school’s management immediately consult stakeholders to initiate a process for amendment of the school rules to accommodate students whose religious affiliations require them to wear particular clothing in addition to the school clothing. In ordering this review, the court appreciated the concerns of the students and parents. Further, the Supreme Court also ordered that the judgment be served upon the Cabinet Secretary for Education to formulate rules and regulations for the better protection of fundamental rights and freedoms from discrimination for all pupils in Kenya’s education system.

Sekou Owino, an advocate, contends that the overall effect of this decision, contrary to the reversal of the Court of Appeal judgment, is that the Supreme Court has sent the authorities of the school and the cabinet secretary to engage in consultations to find ways of redressing this issue. However, we must be concerned and worried with the decision by the Supreme Court to cite procedural technicalities over substantive issues, which goes against the constitutional dictates and thus choses an escapist route of deciding the matter instead of pronouncing itself with finality on this hot issue.

Interestingly, Justice Prof Jackton Ojwang disagreed with the majority, finding that the Court of Appeal was right to order that school rules should be changed to allow students to freely express their faith through dressing. He held the view that a right balance amidst people holding different faiths, in the multi-cultural environment prevailing at the pertinent school, will by no means be jeopardised on account of the variation to the school dress-code. 

It has been argued that in all these scenarios above, to safeguard the sanctity of tolerance, Rastafarian parents and the Muslim parents have been tolerant of the intolerant positions taken by the learning institutions. But, as Susan Mugwe argues, tolerance does not mandate association. And to mandate association is to invite a forceful backing of intolerance through dissension, disputes, conflict and war, where it would have been easier to have a peaceful refusal to associate. But a society that cannot tolerate differing views and respect the live-and-let-live principle that gives them the freedom to associate as they wish, and equally decline to do so, will not be free for too long.

Evidently, the subject of freedom of religion is hot one. It does not help that our judicial system has played ping-pong and been mired with inconsistency over such decisions. To build a tolerant society presupposed in the constitution, it is critical for the courts to pronounce themselves with finality on this matter and push for the enactment of the rules prescribed by the Supreme Court to balance between fundamental rights and school rules. (