Nairobi, Kenya - "Where a person has voluntarily accepted employment, or a role which does not accommodate the person's religious practice or observance, and there are other means open to the person to practice or observe his religion without undue hardship or inconvenience, then it may not be said that his right to manifest religious belief has been interfered with. Ndanu Mutambuki and 119 others versus Minister for Education and 12 others [2007] eKLR ( www.kenyalaw.org ), High Court at Nairobi (Justice J.G Nyamu), May 11, 2007. Advocates: Mr Oriaro for the petitioner, Mr Nzilli for the second respondent and Mr Mwaniki for the thirteenth respondent.
The petitioners were girls (minors) at various public schools in Mwingi district. They claimed to be members of a religious group known as Arata a Roho Mutheru Society.
They filed this suit through their spiritual leader, Musili Kiteme, against the Minister for Education, the Attorney General, Mwingi County Council and their headteachers.
They claimed that wearing headscarves by women at all times was a principal teaching and a doctrinal practice of their faith. Their complaint was that their headteachers had refused to allow them to wear headscarves in school, and thereby infringed on their freedom of conscience and religion guaranteed in section 78(1) of the Constitution.
They argued that wearing headscarves was an expression of their right to manifest their religion, and sought conservatory orders under section 84 of the Constitution to prevent their expulsion or exclusion from school.
In opposing the application, the respondents said the practices of the petitioners' religion were inconsistent with the need to maintain public order in school, and with the rules made under the Education Act regarding discipline and wearing of uniform in school.
They denied that the applicants had been expelled or excluded from their schools on account of wearing headscarves, or that their fundamental rights had been contravened.
In giving his decision, Justice J Nyamu reminded himself that this was a decision on an interlocutory issue arising in the case, and not a decision on the final case. His findings would, therefore, only be tentative. But this being a new matter and both parties having submitted at length on the law supporting their respective positions, the judge continued, he would also make some tentative findings and holdings on the subject.
Keep his mind open
He said he would keep his mind open for further persuasion should he have the privilege of hearing or being part of the panel hearing the main petition. He then made the following findings:
First, in the event of a finding that there was an interference with the fundamental right provided in section 78 of the Constitution, it was for the respondents to demonstrate to the court that the interference or limitation was made by virtue of a law pursuant to a legitimate aim, and necessary to a democratic society.
Secondly, believers cannot claim an automatic right to exemption by their beliefs from the laws of the land.
At the same time, the State should, whenever reasonably possible, avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or respectful of the law.
Acts or manifestation of faith must constitute an essential part of religion for the followers to be protected under section 78. This was not the case with the headscarves and the religious sect, in this case. The right of religion and its practices were protected under the section except where they run counter to public order, health and morality.
Moreover, where a person has voluntarily accepted employment or a role which does not accommodate the person's religious practice or observance, and there are other means open to the person to practice or observe his religion without undue hardship or inconvenience, then it may not be said that his right to manifest religious belief has been interfered with.
As the petitioners had always consented to putting on school uniform before the new requirement on headscarves was made necessary by their spiritual leader, their consent to wearing the uniform (and hence to limitation of their freedom) contemplated by section 78(1) of the Constitution, was still in existence. Moreover, there was nothing to show a link between the headscarves and any known tenet of the religious sect.
Section 70 of the Constitution subjects the fundamental rights contained in chapter 5 of the Constitution to the public interest.
The courts, in certain situations, will subordinate the individual's right to those of others and the public interest. In this case, school uniform and sporting activities constituted the public interest. School uniform and discipline are generally required as part of management of schools. They further constitute basic norms and standards in any democracy.
School uniform also represent a concept of equality. In weighing the individual's fundamental right under section 78 of the Constitution against those of the others, the court could not disregard the weight of these basic standards and norms which tilted the scales in favour of a finding of no infringement in this case.
Ultimately, Justice Nyamu found that the petitioners had not established, on a prima facie basis, any infringement or threatened infringement or violation, of their right. He dismissed the application for conservatory orders. The hearing of the main petition will continue.