On January 24, 2019, the Supreme Court in a 4-1 majority decision, quashed a Court of Appeal decision that had found it discriminatory for church-sponsored schools to bar Muslim students from wearing the hijab and white trousers. This means, as it stands right now, schools have the prerogative to determine what students can or cannot wear as uniform, regardless of religious affiliation.
Four days later, a student of Chabissas Girls’ High School, Nandi county, was sent home for refusing to remove her hijab. The Court of Appeal had found that preventing Muslim girls from wearing the hijab and white trousers in church-sponsored schools violated the Constitution.
Muslim leaders have been quick to label the Supreme Court retrogressive and even Islamophobic. However, before we condemn the court, it is vital to interrogate the context of the judgment. What questions were before the court in the first place?
When the five judges sat to make the determination, the first matter they had to deal with was whether the Court of Appeal was properly seized of the matter from the High Court. As a matter of fact, the Supreme Court quashed the decision on account of a technicality and not on the constitutional and human rights issues of equality before the law; non-discrimination; or freedom of religious belief and conscience.
The initial case had been filed by the Methodist Church of Kenya after an Isiolo county school it sponsors was compelled to allow Muslim students to wear the hijab and white trousers. It was the Church’s contention that allowing Muslim students to wear the hijab was discriminatory to other students as it amounted to special treatment. The High Court sitting in Meru agreed with them and declared that it was indeed unconstitutional to have students who identify with a certain religion wear different uniform.
Mohamed Fugicha, a parent of one of the aggrieved girls, applied and was admitted as an interested party in the initial case. He also counter-petitioned the church’s position by raising another separate fundamental question. He argued that not allowing Muslim students to wear the hijab was in fact an affront to their freedom of religion. Fugicha’s argument prevailed in the Court of Appeal.
However, when the Methodist church appealed to the Supreme Court, it primarily argued that the Court of Appeal had technically misdirected itself in entertaining Fugicha’s counter petition, contrary to the ‘Mutunga Rules’ of procedure. As a matter of procedure, counter petitions are only allowed if done by petitioners. It is upon this technical basis that the Supreme Court quashed the Court of Appeal decision.
While the standardisation of school uniform is important, such rules should be cognisant of certain exemptions and diversity in our country or any society for that matter. The Constitution and international human rights norms require us to accommodate the diversity of faith among Kenyans as we recognise that our identities can be complex and multiple.
Students do not abandon their constitutional rights when they enter school, therefore their choices about their appearance, especially regarding their religious convictions, must be protected. It is worth noting that, because the constitutional and human rights issues had not been canvassed when they made their decision, the Supreme Court emphasised that Fugicha or any other person can lodge a fresh petition at the High Court.
The Supreme Court also ordered the Education CS, in consultation with stakeholders, to put in place rules and regulations to protect all learners’ freedom of religion, belief, equality and freedom from discrimination.
Going forward, the Education ministry should swiftly put in place guidelines on school uniforms as ordered by the court. Concerned citizens, Muslims and human rights activists are also free to file a petition based on freedom of religion at the High Court.
Human rights lawyer