On January 23, 2019, the Supreme Court of Kenya, by a majority decision, delivered its judgment on a case pitting the Methodist Church as sponsor of a school and three other persons.
No one could have foreseen the kind of recriminations that the decision has attracted from many Kenyans.
However, the Judges of the Supreme Court appear to have seen that the essence of the decision could be misunderstood and led to the level of obloquy seen and heard since that decision was handed down. They were also clear that the judgment would not be the last on the matter.
In the words of the four judges in the majority:
“We recognise 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.”
If only Kenyans were keen enough to read this judgment, then we perhaps would have avoided the premature recriminations and blame upon the court that arises from a lack of understanding of the judgment and secondly just going with the season — blame the Judiciary for everything.
The case arose from differences regarding the issue of whether female students of Islamic faith could be allowed to wear the head covering which female Muslims are required to wear in public, also known as the hijab.
The Church was the sponsor of Kiwanjani Mixed Secondary School in Isiolo County, which had a student population of diverse religious backgrounds.
The school has a uniforms policy for to which all students subscribe on admission. Sometime in June, 2014, a request was made by the Deputy Governor of Isiolo County for the school to consider permitting female students of the Islamic faith to wear the hijab and white trousers in addition to the prescribed uniform.
This request was followed by an incident in which anonymous persons supplied hijabs and trousers for the girls in the school. The school administration resisted this attempted action which led to protests by the students of Islamic faith to the local education offices seeking approval for the hijab.
Shortly thereafter, the County Director of Education directed the School’s Management and the Parents’ Teachers Association to meet and discuss the issue with a view to an amicable resolution.
A majority of 18 out of the 22 who attended the meeting voted for the retention of the school uniform policy — that is to reject the request for hijab.
In disregard of the result of this vote, the county education boss directed the school to permit the Muslim girls to wear the hijab and trousers. The director also ordered the school’s principal to be transferred to another school.
The church filed a petition in court against the Teachers Service Commission, the said director and the Isiolo sub-county education officer.
After the petition was filed against the above three respondents, Mr Mohamed Fugicha, a parent in the school, joined the suit as an interested party. In law, an interested party is a person who was not originally a party to the suit either as a claimant or defendant, but who has interest or some rights at stake in the outcome of that case.
In that petition, the church sought orders that the director’s decision to allow Muslim students to wear the Hijab was discriminatory and unconstitutional and also for an order to prohibit the said director from interfering with the church’s administration of the school in its capacity as sponsor as well as other reliefs.
The essence of the case was whether the county director’s order could apply over the church’s uniforms policy and whether it was constitutional.
It is after the case was filed that Mr Mohamed Fugicha, the father of three girls in that school, applied to be joined as an interested party.
He was allowed to join the case. He filed an affidavit to support his interest. An affidavit is a written statement signed by a person under oath for use as evidence in court. In that affidavit, the parent of the girls said “I am also cross-petitioning that Muslim students be allowed to wear a limited form of the hijab as a manifestation, practice and observance of their religion.
The words “cross-petition” in that affidavit would form the peg on which this case would turn at the Supreme Court.
At the High Court, the church succeeded and the judge ordered that the county director’s decision to allow the wearing of the hijab in the school was discriminatory, unconstitutional and contrary to the school’s regulations.
The judge also found that words in the parent’s affidavit regarding the cross-petition was defective as it did not comply with the rules as to how a cross-petition should be filed.
The parent appealed to the Court of Appeal. He said that the High Court’s decision to dismiss his cross-petition because of requirement of procedure was against the Constitution which requires that justice be applied without undue regard to procedural technicalities.
The Appeal Court decided that a proper reading of the affidavit did not warrant the striking of the cross-petition despite the procedural shortcoming.
It then set aside the orders of the High Court and substituted them with its orders which allowed the cross-petition.
It found that to the extent that the school’s uniform policy made it impossible for the Muslim girls to wear the hijab and pursue their right to education, it was reverse discrimination against the girls.
The effect of this therefore was that the school would be compelled to permit the wearing of the hijab.
Being aggrieved by this decision of the Court of Appeal, the Church appealed to the Supreme Court.
One of its grounds of appeal was that the Appeal Court had made a mistake by considering the contents of the affidavit with regard to the cross-petition despite the fact that it was not fully compliant with the regulations on how petitions should be drawn and presented in court.
The main issue that the Supreme Court directed its attention at was whether the Court of Appeal was right to hold that the matters raised in the affidavit as a cross-petition could still be considered even though the procedure had not been strictly adhered to.
The Supreme Court was divided on this issue. Four of the five judges who heard the appeal thought that the non-compliance with the regulations on how to present a cross-petition in court was fatal and the Court of Appeal had erred by sidestepping the issue of procedure.
One of the reasons for the majority decision in the Supreme Court was the technical legal issue that an interested party may not raise a new issue apart from those already raised by the petitioner.
Though there were other grounds of appeal, the Supreme Court did not find it necessary to go into them having decided that the procedural question was fatal to the case.
The Supreme Court majority judges then reversed the decision of the Court of Appeal.
The court directed in its final orders that the school’s management should immediately consult stakeholders to initiate a process for amendment of the school rues to accommodate students whose religious affiliation require them to wear particular clothing in addition to the school uniform.
This, in itself, is an indication that the court appreciated the concerns of the students and ordered that the regulations on uniforms be reviewed.
At the very least, it puts the lie to the claims that the court simply engaged in evangelistic jurisprudence and left the concerns of the students with regard to the uniform at the altar of a technical procedure.
The Supreme Court also ordered that the judgment be served upon the Cabinet Secretary for Education to formulate rules and regulations for the better protection of fundamental rights and freedoms from discrimination for all pupils in Kenya’s education system.
The overall effect of the decision is that the Supreme Court has sent the authorities of the school and the cabinet secretary to engage on consultations to find ways of redress around this issue.
What is rarely said about this case was that there was dissent: Prof Justice Ojwang’ thought that the procedure should not have been let to stand in the way of the substantive issues in that case. He agreed with the Court of Appeal in saying as follows: “It is my standpoint that the scheme of jurisprudence outlined by the Appellate Court, is appositely pragmatic and rational and well reflects the desirable judicial stand.
It would, therefore, be incorrect to state that the Supreme Court has decided that hijabs cannot be worn in a school sponsored by a church.
Mr Owino is Head of Legal Affairs at Nation Media Group.