No near end of Hijabs in school case

It took five Supreme Court judges against one to set aside a landmark judgment that had made it illegal for church-sponsored schools to discriminate against students who profess other faiths.

The top most court in the land, by a majority decision of Chief Justice David Maraga, Justices Mohamed Ibrahim, Isaac Lenaola, Njoki Ndung’u and Smokin Wanjala decided that the historic case had not been properly placed before the court.

But lone jurist- Justice Jackton Ojwang made a dissenting opinion, 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.

“It is my standpoint, in departure from the Bench majority, that all the applicable terms of the Constitution and of the enacted law, do entail the finding – precisely in keeping with that of the Appellate Court – that a right balance amidst people holding different faiths, in the multi-cultural environment prevailing at the pertinent school, will by no means be jeopardized on account of the variation to the school dress-code,” ruled Justice Ojwang.

Although the apex court overturned the decision which had paved way for Muslim students to wear hijabs to school, it left the door open for a second round of fight between the Church, Teachers Service Commission, a parent and Attorney General before the High 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 can be determined by the court.

They said that the Methodist Church would not have effectively responded to some of the issues as they were orally raised during the hearing.

According to the judges, the main issues, and by main parties in the suit – church, TSC and AG ended up in the periphery and undetermined while those which were raised by a parent who joined the case as the interested party took precedent.

The case was settled through technical basis, or looking at the procedure through which it was heard and determined, and not the weight of various arguments on the right to education and religion.

The church had sued Education Ministry and Attorney General after girls in its school caused havoc after they were denied to wear Hijabs.

 “We agree that the issues set out in the cross-petition did not afford the opportunity for the Petitioner to respond to the same effectively. As such we find that both superior Courts violated the Petitioner’s right to be heard, as provided for under Articles 25 and 50 of the Constitution,” the court ruled.

It continued, “We recognize that the issue as contained in the impugned cross petition is an important national issue, that will provide a jurisprudential moment for this Court to pronounce itself upon in the future. In view of this, it is our recommendation that should any party wish to pursue this issue, they ought to consider instituting the matter formally at the High Court.

Controversy over the issue of school uniform arose on June 22, 2014 when Isiolo Deputy Governor Mohamed Guleid asked St Paul’s Kiwanjani Day Mixed Secondary School administration, sponsored by Methodist Church, to allow girls to wear the veils and trousers on top of their uniforms.

A week after the request, girls reported with the extra attires and were asked to revert to the prescribed uniform. They went on the rampage.

The push and pull over the same led to the county education director ordering the transfer of the school principal and directing that the girls be allowed to wear Hijabs.

The church moved to the High Court and argued that allowing Muslim girls to wear hijabs amounted to special treatment against those who did not profess the faith.

Methodist submitted that each child and the parents signed a form agreeing to submit to the school rules and thus, religion could not be used as a way of escaping from authority.

The court heard that those who were opposed to wearing the prescribed school uniform were free to transfer to other schools where their dress code was allowed.

According to the church, standardization of school uniforms was important, as children ought to grow up knowing that there should be no preferential treatment against another.

A parent named Mohamed Fugucha also joined the case after his three girls were locked out of the school for wearing Hijabs. He submitted that school excellence was not measured on what a student puts on.

Judge Harun Makau agreed with the church and blocked the girls from wearing the hijab.

However, on appeal, the court held a contrary opinion that although school rules are important, they should not be used to the disadvantage of others who do not subscribe to the same belief.

Judges Phillip Waki, Roselyn Nambuye and Patrick Kiage with their ruling have opened a new phase where students who do not prescribe to the sponsor church religion can wear what their belief dictates without being questioned about it.

The Appellate Court found that the rules should be tailored to take into account situations that can force exemption and diversity.

The court ruled: “The absurdity springs from an imposition and execution of a policy of uniformity that fails to have in contemplation, and take into account individual difference and circumstances that may present a compelling case for exemption. This is the more so, as we have stated repeatedly, when the exemptions are sought on the foundations of freedom of religion and the right to non-discrimination, be it direct or indirect.”

The judges said religious attires cannot be equated with fashion or elegance like having deadlocks.

In the case, Teachers Service Commission (TSC) and AG supported the push to have Muslim students allowed to wear hijab.

The teachers' employer, argued that although some schools are sponsored by churches, those who do not profess to Christianity should also be accommodated.

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Supreme Court judgesHijabsMethodist ChurchTeachers Service CommissionReligious Beliefs