Sunday, Nov 23rd 2014

Why the law protects religious beliefs, dress code and hairstyle

Thursday, February 3, 2011 - 00:00 -- BY JOHN CHIGITI

Section 27(4) of the Kenyan constitution provides that
the State shall not discriminate directly or indirectly against any person on
any ground including race, sex, pregnancy, marital status, health status,
ethnic or social origin, colour, age, disability, religion, conscience, belief,
culture, dress, language or birth.

Sub-section (5) then stipulates that a person shall
not discriminate directly or indirectly against another person on any of the
grounds specified or contemplated in clause (4).

In Dzvova vs Minister of Education, Sports and Culture
and Others (2007) AHRLR 189 (ZwSC 2007) in Zimbabwe,  Dzvova’s (a Rastafarian school child) problems
and tribulations began when the headteacher wrote a letter to his parents to
the effect that, “You are cordially advised that one of our
regulations as a school is that hair has to be kept very short and well-combed
by all pupils attending Ruvheneko Government Primary School, regardless of sex,
age, race or religion. You are therefore being asked to abide by this
regulation, failure to which, you will be asked to withdraw or transfer your
child Farai Benjamin Dzvova to any other school.  This is to be done with immediate effect”.

The child’s father responded, maintaining that while
in pre-school the child’s hair was never cut and was kept - what
is commonly known as dreadlocks - until the child graduated from pre-school.

The child’s father was called to the school a few
weeks into January 2006 to discuss the issue of the child’s hair with the teacher-in-charge and
asked to write a letter to explain. By then the child was being detained and
was no longer going to the classroom with other children.

The father complained that the school rules ‘are unlawful and in contravention of my
son’s rights under section 19 of the
Constitution which gives the right to protection from discrimination.

The father moved to the High Court and sought among others,
the prayers that the respondents be restrained from discriminating against his
son on the basis of his hairstyle or his religious beliefs. In his affidavit,
he argued that he and his wife - the mother of the child - were customarily
married in 1991.

Section 19(1) of the Constitution of Zimbabwe provides
as follows: Except with his own consent or by way of parental discipline, no
person shall be hindered in the enjoyment of his freedom of conscience, that is
to say freedom to change his religion or belief, and freedom, whether alone or
in community with others, and whether in public or private, to manifest and
propagate his religion or belief through worship, teaching, practice and
observance.

The New English Dictionary on Historical Principles,
VIII, defines religion as: A state of life bound monastic vows …. A particular monastic or religious order
or rule….    Action or conduct indicating a belief in,
reverence for, and desire to please a divine ruling power, the exercise or
practice of rites or observances implying this; A particular system of faith
and worship; Recognition on the part of man of some higher or unseen power as
having control of his destiny, and as being entitled to obedience, reverence
and worship.  The general mental and moral, attitude
resulting from this belief, with reference to its effect upon the individual or
the community; personal or general acceptance of the feeling as a standard of
spiritual and practical life. And devotion to some principle, strict fidelity
or faithfulness, conscientiousness; pious affection or attachment.

The court made the following orders that the
respondents be compelled to allow the minor Dzvova to enter upon the second
respondent school for purposes of education.

The respondents were interdicted from in any way
negatively interfering with the minor Dzvova’s education, more particularly that the
respondents be barred from separating Dzvova from his classmates or otherwise
detaining him in solitary or in the sole company of adults or in any other way
discriminating against him on the basis of his hairstyle or his religious
beliefs.

The court then declared that expulsion of a
Rastafarian from school on the basis of his expression of his religious belief
through his hairstyle was a contravention of Section19
and 23 of the Constitution of Zimbabwe.

In Christian Education South Africa v Minister of
Education 2000 (4) SA 757 (CC) it was held that: ‘… Religion provides support and nurture and
a framework for individual and social stability and growth.  Religious belief has the capacity to
awake concepts of self-worth and human dignity which form the cornerstone of
human rights.’