The High Court found against the Appellants/Petitioners, on the bases that they had indicated their willingness to comply with the school rules (which included mandatory mass), and that they had not established that mandatory mass amounted to an impingement of their own freedom of belief.
The Court of Appeal – consisting of Kiage, Tuiyott, and Ngugi JJA – disagreed, for the following reasons. First, constitutionally guaranteed rights (such as the freedom of religion, guaranteed under Article 32 of the Kenyan Constitution) could not be deemed to be implicitly waived by prior conduct. Thus, the fact that the appellants/petitioners had initially participated in the school’s inter-faith activities could not stand in the way of a constitutional claim, whenever it might be raised (pg 21). The Court of Appeal linked this to the Respondent’s argument that if the Petitioners/Appellants had a problem with the school rules, they could simply have left and taken admitted in another school. This argument, of course, is familiar to us. But, relying upon the previous judgment of SDA – where the Court had labeled this a “lame and gloomy” argument – the Court of Appeal cited with approval the observation that:
This view is not only impractical, but also ignores many factors that a student or parent considers in choosing a school, such as the availability of public schools where the students’ particular religious beliefs would be accommodated, the student’s personal career choice and academic standards of the school. It violates, not only sub-article (3) of Article 32 of the Constitution but also section 34 of the Basic Education Act.
This observation is important, as it reiterates the simple point that in cases involving constitutional rights, the burden of finding alternatives for the exercise of the right in case it is blocked off in certain spaces should not be upon the rights-bearer (i.e., in this case, the students). In particular – although the judgment does not go further into this point – what is implicit is that the existence of constitutional guarantees carries with it the right to be able to exercise those guarantees without undue burden. This is particularly important in the case of schools, where it is well-documented that wrenching a child out of a school environment in which they are well-settled triggers a number of mental and psychological harms. This is, of course, independent of the facts – as noted in the judgment – pertaining to the availability and accessibility of alternatives. In other words, therefore, the Court affirmed the students’ right to access a school where the exercise of their constitutional rights would be reasonably accommodated. (see pg 22)
The Court of Appeal then went on to hold that as “religion is a fundamentally subjective matter of faith”, and that it was evident from the record that “the appellants’ belief was genuinely held”, nothing more was needed to trigger the exercise of the right (pg 26). That being the case, the Court went on to find that an exemption from attending mass fell well within the contours of reasonable accommodation (pg 27): this was because – as Counsel Ochiel Dudley had argued – the rule itself was facially neutral, but had a discriminatory impact; and secondly, the application of this rule was particularly apposite in a “specific, localised context”, such as a workplace or a school, where the balance between rights could be struck.
Interestingly, as a final point, the Court referred to a Ministry of Education Circular from 4 March 2022, which itself had noted that “the violation of religious rights in schools has negative effects on maintenance of peace and tranquility and some students end up dropping out altogether.” This, the Court held, accorded with the thrust of its own judgment – a case where the judiciary and the executive were ad idem on the constitutional principles involved!
The final declaration of the Court is important. It held that “the 1st appellant’s expulsion from school on the basis of her religious views amounted to indirect discrimination; constituted a violation of her right to education and right to dignity and is therefore null and void.” It is worthwhile to focus on this because – as the analysis above showed – cases of this kind involve a number of intersecting rights. It is not simply a case of an assertion of religiosity by a minority group; but it is – crucially – about indirect discrimination (i.e., facially neutral rules that nonetheless enforce majoritarian cultural norms, whether it be mass or regulations about the uniform), about the right to education (i.e., forcing students to pick between an exercise of constitutional rights and dropping out of education altogether), and the right to dignity (through singling out and exclusion). It is therefore a mistake to think of these cases as only involving religious expression versus uniformly applicable school regulations: a sensitive exploration of the issues – as was undertaken by the Court of Appeal – reveals much more at play.
As a post-script, it will be interesting to see what the impact of this case might be on potential future litigation on issues such as – for example – the wearing of the hijab in schools. Recall that this same Court of Appeal had – in Fugicha’s Case – affirmed the right to wear the hijab, in a closely-reasoned judgment (see the analysis on this blog, here) (indeed, Kiage JA – the author of today’s judgment – was also a party to Fugicha). That judgment had eventually been overturned by the Supreme Court, but only on procedural grounds. Interestingly, today’s judgment quotes extensively from Fugicha (as also from SDA); and it does appear that its observations apply squarely to more complex cases such as the hijab case. Indeed, the Court’s clear invocation of the right to education in this case, and its dismissal of the argument that students unhappy with the rules could simply leave and go elsewhere, create a strong foundation for rights-protective rulings in those cases, where the argument on behalf of school authorities rests on instinctively stronger foundations (such as the need for a ‘uniform’ uniform). It remains to be seen how the Kenyan courts carry forward this progressive jurisprudence.
This article was first published in the Indian Constitutional Law and Philosophy blog: https://indconlawphil.wordpress.com/2023/05/13/reasonable-accommodation-for-religious-beliefs-in-schools-the-judgment-of-the-kenyan-court-of-appeal/
