By Dr. David Oginde,
“Fundamental rights and freedoms cannot be contracted away in the name and at the altar of education.” This was the firm assertion of three Court of Appeal judges in a recent ruling on the matter of Muslim students wearing religious attire in Church-sponsored schools. In what is definitely a landmark ruling on personal freedoms verses institutional requirements, the judges averred that: “Schools cannot raise an estoppel against the Constitution. No one can”.
It was therefore the court’s strong position that in a free and democratic society, schools cannot adopt “an absurd inflexibility when it comes to enforcement of school rules to govern various aspects of life.”
Interestingly, in an almost similar case two years ago, High Court Judge Mumbi Ngugi dismissed a case in which a six- year –old boy sued Rusinga School for ordering him to shave off his dreadlocks. The boy’s mother took to court alleging discrimination on gender, religious, and cultural grounds. She argued that the boy’s father was Jamaican and dreadlocks were part of his culture. However, the case failed because, according to the judge, the boy did not convince the court that his culture and religious rights has been violated.
Though the two rulings may appear to have reached dissimilar verdicts, in essence they are almost the same. In the dreadlocks case, it would appear that the case was lost simply because the boy had failed to convince the court that his culture and religious rights had been violated.
What exactly are the courts saying? Does it mean that a religious community is free to set up a socio-economic institution at their own cost, but they have no right to determine the nature or conduct of those that seek to access the services of such institutions? Part of the reason many religious groups set up social amenities such as schools or colleges, is first and foremost to provide social support to the community. Yet, equally important, is the fact that such institutions also serve as centers for the teaching and propagation of values, beliefs, and practices of the sponsoring body. The question that begs therefore is whether such a sponsoring body cannot legitimately expect to enjoy certain inalienable rights incapable of being repudiated or transferred to another. Or does the Constitution actually advocate for the fundamental rights of the proprietors of institutions to cede ground to the rights of those that patronize such facilities?
The matter of Muslim attire and the litigations thereof is not entirely a Kenyan phenomenon. In a USA case-Webb versus City of Philadelphia- the police department denied a Muslim female officer’s request to wear a Khimar over her uniform. The department considered that this would be a violation of its uniform regulation, which prohibited officers in uniform from wearing religious dress or symbols, and which prohibited officers in uniform from wearing religious dress or symbols, and which permitted no medical or secular exceptions. In defense, the Police Commissioner testified that in his professional judgement and experience ‘it is critically important to promote the image of disciplined, identifiable and impartial police force by maintain…(the department’s) uniform as a symbol of a neutral government authority, free from expressions of personal religion, bent or bias.” The court agreed with him.
It would appear that Kenya, in its quest to join the league of progressive nations, is in the embrace of unfettered freedoms. The truth is-no such freedoms exist. We all operate within common bounds that come with serious obligations. Courts therefore have the distinguished responsibility to ensure that we are not caged into legally enforced relationships that can only breed social animosity. It is instructive that in her ruling in the dreadlocks case, Justice Ngugi declared that ‘courts have no desire to interfere with the running of institutions, but must instead allow schools to govern their pupils.” I agree.
As argued here before, the selection of a school of college is an individual and family choice. It is gravely insincere for individuals or groups to willingly make such a choice, fully cognizant of the attendant obligations, and then turn around with frivolous demands for personal rights.
That can only be considered a trample over others’ rights.