Aden Duale is right, we must protect everyone's right of religious expression

Defence Cabinet Secretary Adan Duale recently sparked a debate over the right of Muslim girls and women to wear the hijab. In a Quran Competition, Duale suggested that Muslim women must wear hijabs whenever in public, and those who oppose it should move elsewhere. Many, including senior government officials such as Economist David Ndii, condemned his remarks as threatening Muslim women and our democratic space.

The hijab debate has been raging for years in Kenya, so we must view his utterances within that context. Earlier in 2019, the Supreme Court reversed a 2016 Court of Appeal decision that allowed Muslim children to wear a hijab to school.

During the Supreme Court's determination, the judges first had to decide whether the Court of Appeal had been properly seized of the matter. Unfortunately, despite the constitutional and human rights arguments of equality before the law, non-discrimination, freedom of religious belief and conscience, and freedom of expression, the Supreme Court quashed the decision on a technicality.

The Methodist Church of Kenya filed the initial case after a school that the church owns in Isiolo was compelled to allow Muslim students to wear the hijab and white trousers. The church argued that allowing students to wear hijabs was discriminatory against other students since it amounted to special treatment. The High Court in Meru agreed with them and declared that it was unconstitutional to have students who identify with a particular religion put on a different uniform.

Mohamed Fugicha, an interested party who was the parent of one of the aggrieved girls filed a counter-petition that raised separate issues. According to him, denying Muslim students the right to wear the hijab is an affront to their freedom of religion. In the Court of Appeal, Fugicha's argument prevailed.

However, the Methodist church appealed to the Supreme Court, arguing that the Court of Appeal had technically misdirected itself by entertaining Fugicha's counter-petition, contrary to the court's rules and procedures ('Mutunga Rules'). The procedure dictates that only the respondents (not interested parties) can file counter-petitions.

What most commentators missed about the hijab decision is that the Supreme Court's decision reversing the Court of Appeal decision was based on a technicality and not the case's merits. As a result, the Supreme Court did not deliberate on the issue based on constitutional and human rights arguments. Instead, they determined that the parent who filed a counter-petition could not legally do so because he was an interested party at the lower court. This meant that all the issues and arguments he had brought before the court were not properly before them. Therefore, they could not make any findings based on them.

The 2019 decision ironically came at around the same time Kenyan courts ruled that Rastafari students could wear dreadlocks to school as part of their freedom of religion. Therefore, without knowing the technical issue in the hijab decision, one can understand why many felt that the court discriminated against Muslims.

A second concern is that Duale's words may have been misconstrued as threatening to Muslims who opt out of wearing the hijab. On the contrary, it reminds many of nations where everyone must believe in the same thing, including how they dress and worship.

Our Constitution allows us to practice our respective religions as we choose. It also declares that there shall be no State religion. Therefore, the Ministry of Education must implement policies that allow students, including Muslims, to express their culture and religion without fear of retribution.