Big win for Muslim students as court allows them to wear hijab

Garissa Woman Representative Shukra Gure (left) flanked by nominated National Assembly MP Zuleikha Juma Hassan during the presentation of a cheque contributed by girls from different Muslim schools to buy Hijabs for the less fortunate. [Photo: File/standard]

It will be illegal for church-sponsored schools to discriminate against students who profess other faiths.

The decision by the Court of Appeal means that such schools cannot turn away students who are not Christians or force them to comply with their uniform code.

Appellate judges ruled that school rules, set to ensure uniformity, cannot be used to stifle one’s beliefs or right of worship.

The decision was a blow to a petition filed by a church challenging a directive by the Teachers Service Commission and the Isiolo County Education Office to allow Muslim girls to wear hijabs and white trousers in its sponsored schools.

“Students do not abandon their constitutional rights when they enter the school gate, and regain them when they leave. Nor can fundamental rights and freedoms be contracted away in the name and at the altar of education. Schools cannot raise an estoppel against the Constitution. No one can,” the court of Appeal ruled.

Prescribed uniform

The judgement added: “We are firm in our assessment that students in Kenya are bearers and exercisers of the full panoply guarantees in our Bill of Rights and they are no less entitled to those rights by reason only of being within school gates.”

Controversy over the issue of school uniform arose on June 22, 2014 when Isiolo Deputy Governor Mohamed Guleid asked St Paul’s Kiwanjani Day Mixed Secondary School administration, sponsored by Methodist Church, to allow girls to wear the veils and trousers on top of their uniforms.

A week after the request, girls reported with the extra attires and were asked to revert to the prescribed uniform. They went on the rampage.

The push and pull over the same led to the county education director ordering the transfer of the school principal and directing that the girls be allowed to wear Hijabs.

The church moved to the High Court and argued that allowing Muslim girls to wear hijabs amounted to special treatment against those who did not profess the faith.

Methodist submitted that each child and the parents signed a form agreeing to submit to the school rules and thus, religion could not be used as a way of escaping from authority.

The court heard that those who were opposed to wearing  the prescribed school uniform were free to transfer to other schools where their dress code was allowed.

According to the church, standardisation of school uniforms was important, as children ought to grow up knowing that there should be no preferential treatment against another.

A parent had also joined the case after his three girls were locked out of the school for wearing Hijabs. He submitted that school excellence was not measured on what a student puts on.

Judge Harun Makau agreed with the church and blocked the girls from wearing the hijab.

However, the Court of Appeal held a contrary opinion that although school rules are important, they should not be used to the disadvantage of others who do not subscribe to the same belief.

Judges Phillip Waki, Roselyn Nambuye and Patrick Kiage with their ruling have opened a new phase where students who do not prescribe to the sponsor church religion can wear what their belief dictates without being questioned about it.

The Appellate Court found that the rules should be tailored to take into account situations that can force exemption and diversity.

The court ruled: “It is clear from what we have said that in a free and democratic society, it is woefully insufficient for school administrators to adopt an absurd inflexibility when it comes to enforcement of school rules to govern various aspects of life.”

It added: “The absurdity springs from an imposition and execution of a policy of uniformity that fails to have in contemplation, and take into account individual difference and circumstances that may present a compelling case for exemption. This is the more so, as we have stated repeatedly, when the exemptions are sought on the foundations of freedom of religion and the right to non-discrimination, be it direct or indirect.”

The judges said religious attires cannot be equated with fashion or elegance like having deadlocks.

The court also ruled that the Ministry of Education should come up with guidelines to protect freedom of worship in schools for all pupils and students.

The same wave over uniform hit France after a Muslim student was banned from attending classes over her attire.

The teenage Catholic girl who converted to Islam was banned from attending a school in the eastern Paris suburbs because her skirt was too long.

The headteacher of the school in Montereau-Fault-Yonne told the 16-year-old that the length of her skirt meant that it was an “ostentatious religious symbol” – something forbidden in State schools since 2004.