Ruling on hijabs: Courts should protect human rights in public, private spaces

School girls on white hijab in Mombasa county yesterday .Photos / JOHN CHESOLI
School girls on white hijab in Mombasa county yesterday .Photos / JOHN CHESOLI

On Thursday, the Supreme Court sitting in Nairobi overturned the Court of Appeal decision allowing Muslim students to wear hijabs.

While the ruling does not automatically outlaw hijabs, it gives schools, particularly private schools, discretion to decide whether to allow hijabs or not. Although the court still left the door open for further litigation over this matter after it sighted technicalities in how the matter was presented to courts, the net effect of its ruling was that schools should decide whether or not hijabs should be worn. This is a miscarriage of justice, shocking and disappointing especially coming from the apex court in the land.

To faithful of Islam, hijab is not an option. It is a religious requirement that must be followed. Article 32 (2) of the Constitution of Kenya states that “every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practise, teaching or observance, including observance of a day or worship”.

This article is very clear that the freedom of worship is guaranteed to all persons whether in public or private spaces. Private spaces include schools owned and managed by private individuals and religious institutions. The article provides that the freedom of belief includes practising of one’s religion, which to Muslim girls and women includes covering their heads with a hijab.

The Constitution is the Supreme law of Kenya and cannot be challenged by any other law, rules or regulations. Since all schools in Kenya are subject to the Constitution, then the courts cannot provide that they be allowed to make their own rules that go contrary to the Constitution. Although schools may be private spaces where those in charge can choose to make their own rules, it is imperative that any rule made should be in line with the Constitution. For instance we cannot allow private schools to have bikinis as their uniform and say that is their rule. As per Article 32 (2), freedom of worship is not suspended in private spaces and so the courts should not allow any institution, private or public to violate Article 32 (2) or any other constitutional provision.

It will do good for the judges to remember that most human rights violations occur in private spaces where the vulnerable are left at the mercy of the powerful. Whether it is domestic violence in the privacy of homes or sexual harassment in places of employment, most violations occur out of the public limelight. It is in these private spaces therefore where defence of human rights is much needed. When the courts tell us that privately we can make our own rules that violate the bill of rights, they are in reality abandoning the weak in society and leaving them at the disposal of possible tormentors. As a country we should not allow this to be the norm.

The effect of the court ruling does not only apply to Muslim girls. It must be remembered that there are other religions that have equal or similar requirements of head gears. The Akorinos for example cover their heads with white scarfs. The Supreme Court ruling will mean that in the same private spaces, the Akorinos’ religious rights will equally have to be violated. The same extends to the Sikhs whose men cover their heads with a head gear. The court ruling again means that the Sikhs too will suffer similar fate as the Muslim and Akorino girls. This definitely cannot be the way to protect the religious beliefs of minorities.

To HAKI Africa and many human rights defenders in Kenya and internationally, the courts are supposed to be vanguards of the Constitution and particularly the bill of rights which guarantees Kenyans their rights in public and private spaces. How the Supreme Court chose to forego this role is baffling to many. When citizens’ rights are infringed or interfered with anywhere and by any person, the people go to court to restore those rights and ensure full adherence. When the courts abdicate their duty and make reference to technicalities and site legal procedures to allow for continued violation of rights, they let down the whole nation.

Khalid is Haki Africa Executive director