The recent Supreme Court ruling on whether Muslim girls can wear the hijab in a Methodist Church-sponsored school has elicited sharp opinions.
But the outrage shows that many have rushed to condemn the court without having understood the decision.
This can be partly blamed on media misreporting of the judgment despite the Supreme Court issuing a two-page summary of it to help reporters capture it accurately.
The controversy started during the annual prize-giving day in June 2014, when the Isiolo County deputy governor requested St Paul’s Kiwanjani Day Mixed Secondary School to permit Muslim students to wear hijab and white trousers with their uniform.
Before the request was granted, the students started wearing hijab and, when asked to adhere to the school uniform, protested.
After several meetings, the county director of education ordered the principal to permit Muslim students to wear hijab even though the stakeholders had voted not to allow it.
The principal was also transferred. The church then sued the official in a petition in the high court asking it to declare that permitting Muslim students to wear hijab would be discriminatory, unconstitutional and contrary to the school rules.
Mr Mohamed Fugicha, a parent of one of the girls, asked to be enjoined in the case as an interested party and the court agreed.
He then filed a replying affidavit, indicating that he would cross-petition the court for orders that Muslim students should be permitted to wear a limited form of the hijab.
When one is sued, he can file a cross petition, by which he raises his own case against the petitioner rather than simply responding to the case against him.
That often raises issues that were not in the original petition, which is why courts require sufficient detail for the other side to respond.
After declaring that it was discriminatory to allow Muslim students to wear the hijab, the High Court also found that the cross petition did not comply with procedure and allowed the church’s petition. Mr Fugicha moved to the Court of Appeal.
The appellate court disagreed with High Court on the preliminary issue of whether the cross petition was properly before the court.
The judges said the Constitution and the rules no longer require such petitions to strictly follow procedure and the other parties were aware of it and had a fair opportunity to respond.
In the substantive dispute, it disagreed with the High Court.
The Supreme Court also had to deal first with the preliminary question of whether the cross petition had been raised properly at the High Court.
This is where the Supreme Court differed with the Court of Appeal.
Four of the five judges took the view that, since Mr Fugicha was only an interested party in the High Court petition, he had no right to file a cross petition and it did not meet the procedural rules.
The judges ruled that, in permitting the cross petition, the appellate court denied the other parties their right to a fair hearing.
It is solely on this point that the Supreme Court differed with the Court of Appeal.
However, the Supreme Court did not overturn the Court of Appeal decision, saying the latter was wrong in its decision over hijab — it did so owing to the appellate court’s failure to grant all parties a fair hearing. As such, reports that the Supreme Court gave schools the final say on their uniforms, which includes the power to ban hijab, are simply false.
Indeed, the Supreme Court said the hijab issue was an important question but that it would not address it until the matter had been properly raised and determined by the High Court and the Court of Appeal.
We should not be angry at the Supreme Court for allowing church-sponsored schools to ban hijab — it said no such thing.
Instead, we should criticise the apex court for elevating procedural technicalities above substantive issues — which goes against the Constitution as it demands that the Judiciary administers justice without undue regard to procedural technicalities.
It is unfortunate that the highest court in the land chose an escapist route, thereby wasting an opportunity to deal decisively with a hotly contested issue that threatens to divide Kenyans right in the middle.
Mr Ogutu teaches law at the University of Nairobi. [email protected]