Hijab wearing in school battle lands in court

A new row has erupted over wearing religious attire after the Inter-religious Council of Kenya (ICK) signed an agreement on wearing hijabs in religious-sponsored schools in Marsabit.

The document, which allegedly gives a green light to school heads to determine whether a girl ought to wear a hijab to school or not, is now at the heart of a case filed by a parent, Boru Guyo.

Guyo, through his lawyers Abdulrasul Mohamed, Rajan Shaaban and Omar Salim, has sued ICK, Marsabit Inter-faith Council, Teachers Service Commission (TSC), the County Director of Education, Attorney General and the Marsabit County Government.

He argued that a Hijab is not just a cloth or a headscarf, but a manifestation of their faith, personal dignity, identity, and obedience to their creator.

In his case before High Court judge Francis Olel, he further argued that it is illegal and unfair for a Muslim girl to be denied education or services based on her decision to show her faith.

“Denying a woman access to essential public services, including education it is an affront to her dignity, equality, and constitutionally protected freedom of religion," argued Mohamed

Such exclusion compels her to choose between her faith and her fundamental rights, thereby striking at the very core of her identity, conscience, and human dignity,”

He said that the agreement was signed by Christian Faith Communities and Muslim Faith communities, witnessed by the County Commissioner, County Director of Education, County Education Board and County TSC and facilitated by the ICK.

The lawyer further stated that the agreement also gave the schools board of management the unfettered powers to regulate the specific size, style and coverage of the hijab.

Nevertheless, Mohamed argued that they never consulted the parents of the minors who would be affected or carried out public participation.

“The Kenyan Constitution cannot be reduced to a subservient to an MoU as depicted herein by the respondents. The MoU entered into by the Respondents suggests that the only way muslim students studying in public schools in Marsabit County can wear the Hijab is courtesy of the MoU and not by dint of the Constitution,” argued Mohamed.

It is not the first time that the battle over hijab is before the corridors of justice. A separate war between the Methodist Church and the Attorney General escalated all the way to the Supreme Court but was not conclusively resolved after a parent entered the case midstream.

The church had sued the Education Ministry and the Attorney General after girls in its school caused havoc after they were denied permission to wear Hijabs.

Controversy over the issue of school uniform arose on June 22, 2014, when then 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 who reported with the extra attire were asked to revert to the prescribed uniform. They went on a 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, standardization of school uniforms was important, as children ought to grow up knowing that there should be no preferential treatment against another.

A parent named Mohamed Fugicha 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 by what a student puts on.

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

However, on appeal, the court 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.

Justices Phillip Waki (retired), Roselyn Nambuye (retired) and Patrick Kiage, with their ruling, have opened a new phase where students who do not subscribe 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 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," the bench headed by Waki ruled

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 attire cannot be equated with fashion or elegance, like having dreadlocks.

In the case, the Teachers Service Commission (TSC) and AG supported the push to have Muslim students allowed to wear hijab.

The teachers' employer argued that although some schools are sponsored by churches, those who do not profess Christianity should also be accommodated.

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.