The Ministry of Education's failure to formulate regulations to guide schools on the place of religion has left schools exposed to litigation by parents seeking to enforce their children’s “right to worship. And although it is now agreed that the right to worship is enshrined in the Kenya Constitution 2010, and should be observed by all concerned, the absence of laws has seen religion-related disputes still ending up in court.
Last week, a parent claimed that his 15-year-old daughter was denied Form One admission unless she cut her dreadlocks as required by the school. Mr Julius Wambua Mwendwa wants the school compelled to admit his daughter unconditionally, saying his family is Rastafarian, and that his daughter “has been subjected to discrimination on grounds of her religious belief.”
The issue of wearing dreadlocks in school had already been determined, and the court, in such instances, rule in favour of the school rules.
In the latest test, the burden will be on the parents to persuade the court that denying a Rastafarian child admission for expressing of her religious beliefs through her hairstyle contravenes Article 32 of the Kenya Constitution.
In a similar case on October 7, 2014, High Court Judge Mumbi Ngugi rejected the claim by the mother of a six-year-old kindergarten pupil that a school’s refusal to allow him to sport dreadlocks, contrary to its dress code, was discriminatory.
“The petitioner has not asserted that the minor practices the Rastafarian religion, and that, therefore, there is a violation of his freedom of religion and belief guaranteed under Article 32 of the Constitution,” said Justice Ngugi.
"Had she so argued and presented evidence in support, then there would have been a basis to find that there was violation of the minors’ rights under Article 32,” she added.
Justice Ngugi observed that the student had chosen a hairstyle for fashion, rather than for religious or cultural reasons.
“She has the right to make this choice. However, while wearing dreadlocks for cultural or religious reasons is, in any view, entitled to protection under the Constitution and should be accorded reasonable accommodation, the sporting of dreadlocks for fashion or cosmetic purposes is not, and a school is entitled to prohibit it in its grooming code,” noted Justice Mumbi.
The ministry has, more than once, been directed to put regulations in place to forestall further controversies.
In March, 2017, Court of Appeal judges William Ouko, Asike Makhandia, and Kathurima M'Inoti, directed the Education Cabinet secretary to promulgate appropriate regulations on the issue of religious practices in schools, adding that the orders should be effected within a year.
The judges said there is a need to expand the scope of freedom of religion in state schools, and that to redress this perennial controversy, we need, “like the other jurisdictions where religious rights have been embraced in schools, to seriously consider how these rights and fundamental freedoms can be actualised by providing in the law or regulations, or by executive directive in the form of a policy directive, for accommodation of various religious beliefs and practices.”
At the same time, the judges said Seventh-Day Adventist students should be allowed to observe the Saturday Sabbath, and that any restrictions amounted to an infringement of their freedoms.
On several occasions, the courts have found that freedom of religion is compromised by acts or measures that compel the believers to do, or not do, something that goes against their religious beliefs.
Among those these are prohibiting of Muslims from wearing the hijab (headscarf) or hijab and trousers or full-length Islamic dress (jilbab) in schools, colleges or the workplace; forcing Muslims and SDA students to attend Sunday church services, banning Sikh students from carrying a kirpan (a small sword) or wearing a turban, which Akorinos also wear.
The absence of the regulations on the issue had led to a situation where different high courts arrive at different conclusions, prompting the aggrieved to appeal.
The courts that ruled in favour of the school reasoned that a school is neither a worship centre nor a church, and exists only to impart knowledge to students. So contrary to the demands by parents on behalf of their children, the right to education does not entail education on the students’ terms.
Appellate judges Philip Waki, Roselyn Nambuye and Patrick Kiage have also held that schools should be reasonable to enable Muslim girls to wear the hijab.
According to the judges, there is sufficient evidence to demonstrate that wearing the hijab is genuinely and deeply considered a matter of great religious significance to Muslim girls.
The judges said that forcing students to abandon or refrain from a practice or observance dear to them and genuinely held as a manifestation of their faith violates their conscience, is the antithesis of freedom, unconstitutional and, therefore, null and void.
Appeal judges Waki, Nambuye and Kiage, delivered their verdict in September, 2016, when they also directed that the judgment be immediately served upon the Education CS for his perusal and consideration.
This they said, is with a view to formulating and putting in place rules, regulations and directions after due consultations to better protect the fundamental right to freedom of religion and belief under Article 32 of the Constitution, and also freedom from discrimination under Article 27 of the Constitution.
In March, 2017, appellate judges Ouko, Makhandia, and M'Inoti, noted that, because no steps had been taken by the State to comply with a 2013 High Court order by Justice Isaac Lenaola to formulate the guidelines, and even that by the appellate judges in 2016, the Education CS should come up with the guidelines within the strict a year.
The reluctance by the relevant government agencies to intervene on behalf of students and to comply with the Constitution is demonstrated by the fact that, even after the promising answer given by former Education minister Sam Ongeri when this question was raised in Parliament in 2011, nothing has been done.
He is recorded in the Hansard of August 11, 2011 as saying; Mr Deputy Speaker, Sir, the worship is from sunrise to sunset..… The Seventh-Day Adventist Church members need not worry, just like the Muslims and Christians need not worry..... Any other persons observing any legal religious worship, they are not barred from observing their day of worship..... I have appointed a task force and they are due to bring in their reports on aligning the Ministry of Education with the new Constitution..…”