By Faith Sila Silantoi
LLB (Hons)
INTRODUCTION
The Kenyan Constitution in Article 32 allows for the freedom of religion and states that no person shall be denied access to any institution based on their religious beliefs and no one shall be compelled to do that which is contrary to the Constitution of Kenya.
However, this does not seem to be the case in our Kenyan schools. Students of unique religions for instance; Dini ya Msambwa, Akorino, Rastafarians and the Muslim, who have established a specific way of dress are not well considered. This paper being Islamic Law engineered will focus on the Muslim community in public school institutions who have been denied the opportunity to dress as their religion stipulates and have instead been forced to act contrary with their belief.
Cases in point, in public high schools, female students are forced to wear their uniform without the conventional hijab or trousers under their uniforms. During the physical education period (P.E) these students have no choice but to wear wrap skits that are quite short and that expose their legs fully without regards to their faith and beliefs.
HISTORY
Sharia law rather known as Islamic Law is referred to be so closely related with religion by Justice Mahmood in the landmark case of Gobind Dayal v Inayatullah (1885) 7 All 775, 781 [1] The respected Judge in this case goes ahead to quote the Koran as the grund norm in Sharia law.[2] Bhartiya in his books brings out the concept of the Koran being a direct commandment from Allah.[3] This is because the laws written down in the Koran were given to the Prophet Muhammad through Angel Gabriel and hence divine.[4]
As mentioned in the previous paragraph the Koran is considered to be one of the key sources of law under Islamic Law. Among the Islam community there are several practices that are backed by the Koran and are considered vital. One of these is the concept of women covering themselves in a veil. There are a variety of veils some of them being: the hijab, the niqab, the chador and the burqa. These veils are differentiated by identifying what body parts it covers and to what extent it covers. The hijab as it has been explained by ‘Facing History and Ourselves’ is a veil that consists of one or two scarves that cover the head and neck.[5] The niqab on the other hand covers the entire body, head and face but leaves an opening for the eyes.[6] The chador is a full-body-length shawl held closed at the neck by hand or pin that covers the head and the body but also leaves the face completely visible.[7] Lastly is the burqa which is a full body veil that leaves the whole body covered and the woman sees though a mesh.[8]
The Koran in its teachings has emphasized on the need for women who follow the Islam religion to wear a hijab for religious reasons such as: to prevent the act of adultery among both the men and the women, for women to guard their womanhood and to preserve their decency and dignity.[9] With this it is therefore evident that the matter of dress is an important topic to the Islam community and it plays a very significant role in the upholding of their faith and beliefs.
The issue of religious dress is a very current issue not only in Kenya but also in the worldwide. In a Canadian Courtroom Judge Eliana dismissed Rania El Alloul from her courtroom for wearing a hijab and stated that her court was a ‘secular space’ and hence the advocate could not wear a hijab in her courtroom.[10]
Different religions have established different ways of dress that are largely accepted by the larger population within them. According to a report entitled ‘A Brief History of the Veil in Islam’ reprinted by Facing History and Ourselves from Gender and Society, scarves and veils of different colors and shapes were customary in several other cultures long before Islam came into being in the seventh century in the Arabian Peninsula (which includes present-day Saudi Arabia).[11] Head coverings are still significant in many religions some of them being; Orthodox Judaism and Catholicism.[12]
HEIRARCHY OF THE LAWS
The Judicature Act of Kenya in Section 3 lists the sources of law in Kenya in accordance with hierarchy as listed below:[13]
1. The Constitution of Kenya
2. Acts of Kenyan Parliament
3. Specific Acts of the parliament of the United Kingdom cited in Part I of the schedule to the Judicature Act.
4. Subsidiary /Delegated /subordinate legislation.
5. English statutes of General application, in force in England on the 12Th August 1897.
6. The substance of Common law in force on the 12th August 1897
7. Judicial precedents.
8. The doctrine of Equity in force in England on the 12th August 1897.
9. Procedures and Practice observed by courts of Justice in England on 12th August 1897.
10. African customary law.
11. Other recognized sources of law:
i. Hindu Law.
ii. Islamic Law.
The Constitution of Kenya 2010 in Article 2 states the supremacy of the Constitution stating that it is the supreme law of the land and that any other law that is inconsistent with it shall be considered void to the extent of its inconsistency.[14] This therefore means that whatever the Constitution states is law is not subject to challenge and should be adhered to to the letter. Further the Constitution in Article 169(1) (b) establishes the Kadhis’ Courts as a subordinate court in Kenya.[15] Article 170 even goes ahead to state the powers of these courts.[16] With the above depicted evidence then Sharia Law can be concluded to be a source if law in Kenya in so far as personal matters are concerned. In Kenya this law is not absolutely applicable since criminal law matters are left for the mainstream courts in Kenya. However in so far as the Sharia Law being referred to is not in contradiction with the Constitution or Acts of Parliament in Kenya, then it is applicable.
THE LAW IN KENYA AS REGARDS RELIGION
The Constitution of Kenya in Article 32 provides that all persons in Kenya are entitled to the freedom of worship be it in private or in public institutions and it also states that no one shall be compelled to do that which his or her religious practices do not agree with further confirming that no individual shall be denied the opportunity to have access into any institution mainly because of their religious beliefs.[17] However this is not the case in Kenya as concerns practice. The Kenyan system has undermined the impact of the provision by Article 32 of the Constitution. This is seen in several decisions made by our courts:
1. Republic v The Head Teacher, Kenya High School & Another Ex-parte Smy (a Minor Suing Through Her Mother And Next Friend A B) [2012]eKLR
2. Ndanu Mutambuki & 119 others v Minister for Education & 12 others [2007] eKLR
In these above cases decisions were made in Kenya that set certain precedence as regards how students may dress in Kenyan schools. In the case of Republic v The Head Teacher, Kenya High School & Another Ex-parte Smy (a Minor Suing Through Her Mother And Next Friend A B) [2012]eKLR which is commonly referred to as the ‘Hijab Case’ Githua J. dismissed the motion seeking judicial review orders arguing that;
“respondent's limitation of the applicant's right to outwardly manifest her religion by wearing a hijab in school was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”[18]
In the case of Ndanu Mutambuki & 119 others v Minister for Education & 12 others [2007] eKLR Nyamu J stated as follows;
“School uniforms and discipline do constitute and have been generally required as part and parcel of the management of schools and further constitute basic norms and standards in any democratic society.
No doubt the hallmark of a democratic society is respect for human rights, tolerance and broadmindedness. In the case of schools, nothing represents the concept of equality more than school uniforms. Unless it is an essential part of faith it cannot be right for a pupil to get up one morning and decide to put on headscarf as well, this derogates from the hallmarks of a democratic society and violates the principle of equality. In weighing the individuals fundamental right under Section 78 against those of the others, I find myself unable to disregard the weight of these basic standards and norms and in my view they do tilt the scales in favour of a finding of no infringement in the circumstances of this case ...”[19]
Rather interestingly, recently, the Court of Appeal has made a decision that has marked a turnaround in the application of Article 32. The Court of Appeal has made it possible for the Muslim community to have their hijabs on in schools as part of their uniforms. This was done in the case of Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others [2016] eKLR where the Court of Appeal stated that
“We do not conceive of a system of exemptions consistent with the principle of accommodation as a nullification of rules or an invitation to a-free-for-all when it comes to school uniform or the observance of discipline and the other dictates of the school routines. It is not every fanciful, capricious or whimsical request for exemption that will be countenanced or granted. Rules clearly do have their place but they cannot be allowed to infringe or intrude upon the space occupied by religion and belief or make of no effect the express protection granted by the Constitution to the manifestation of the same through “worship, practice, teaching or observance, including observance of a day of worship” as expressly stated in Article 32(2). In the hierarchy of norms and the relative weight to be attached thereto, school rules rank way below the Constitution and it is incumbent upon those who formulate and enforce them to ensure that they align and accord with the letter and spirit of it, failing which they would be null, void and of no effect whatsoever. It must be remembered that such rules are not in consonance with the very clear principles for permissible limitations to the fundamental rights and freedoms as stipulated in Article 24 of the Constitution. Where they conflict with the Constitution it is an altruism that it rules, and they are voided to the extent of the conflict or inconsistency.”[20]
Looking at the above decision it is clear that there exists a hierarchy of norms in Kenya that so demand that all other laws and by-laws formed should not be inconsistent with the Constitution lest they find themselves at the risk of being rendered null and void to the extent of their inconsistencies. This decision has come off as a source of light at the end of the tunnel as regards the issue of dress. With this decision therefore students can now wear their hijabs to school and as a result study in a more comfortable environment; an environment that respects their beliefs.
THE CONCEPT OF THE SEPERATION OF THE CHURCH AND THE STATE
Generally the church and the state are considered to be two different entities and one does not interfere in the running of the other. John Locke in his wisdom stated that:
“There is a twofold society, of which almost all men in the world are members, and from that twofold concernment they have to attain a twofold happiness; viz. that of this world and that of the other: and hence there arises these two following societies, viz. religious and civil.”[21]
However this does not seem to be the case in Kenya. Njogu in her book Commercial Bank of God describes the separation of the church and the state in Kenya to be ‘an untidy doctrine of religious tolerance.’[22] She further states that the wall of separation between the church and the state does not exist and therefore there is a mixing of the church and the state in Kenya.[23] The Constitution of Kenya in Article states that there shall be no state religion. By virtue of this it is therefore safe to conclude that Kenya is a multi-religious state. This then translates to mean that having not proclaimed any religion for the state and having no defined separate wall between the church and the state, Kenya therefore has an obligation as a state to protect persons from all religions who are and are not citizens of Kenya.
CONCLUSION
This paper largely agrees with the decision made by the Court of Appeal in the case of Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others [2016] eKLR by concluding that the Muslim community, having largely been accommodated by the laws of Kenya among them being the Constitution, should be allowed to dress in accordance with the requirements of their religion provided they maintain the school uniform and comply by the school uniform. The Constitution being the most supreme law of the land should be adhered to and should not be compromised at any one given time. It is however good to note that there has been progress as regards the accommodation of the Muslim community in educational institutions.
BIBLIOGRAPHY
BOOKS
1. Asaf A. A. Fyzee, Outlines of Muhammadan Law, (Third Edition, Oxford University Press 1964)
2. Bhartiya , Muslim Law, (4th Edition 2004, Reprinted 2010)
3. Njogu, Commercial Bank of God? Islamic Banking and Law & Religion in Kenya, (LAP LAMBERT Academic Publishing)
4. The Life and Letters of John Locke, ed. P. King, II
ARTICLES
5. Facing History and Ourselves; ‘A Brief History of the Veil in Islam’; “The Other Side of the Veil: North African Women in France Respond to the Headscarf Affair.” Gender and Society; 2003
6. Shariasourceblog, ‘Can a Judge Determine Acceptable Religious Attire in a Quebec, Canada Courtroom?’, shariasource at Harvard Law, 30th September 2016
STATUTES
7. Judicature Act Kenya Cap 8
8. Constitution of Kenya 2010
9. Republic v The Head Teacher, Kenya High School & Another Ex-parte Smy (a Minor Suing Through Her Mother And Next Friend A B) [2012]eKLR
10. Ndanu Mutambuki & 119 others v Minister for Education & 12 others [2007] eKLR
11. Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others [2016] eKLR
WEBSITES
12. Al-Islam.org
[1] Asaf A. A. Fyzee, Outlines of Muhammadan Law, (Third Edition, Oxford University Press 1964)14
[2] Ibid
[3] Bhartiya , Muslim Law, (4th Edition 2004, Reprinted 2010) 6
[4] Ibid
[5] Facing History and Ourselves; ‘A Brief History of the Veil in Islam’; “The Other Side of the Veil: North African Women in France Respond to the Headscarf Affair.” Gender and Society; 2003 https://www.facinghistory.org/civic-dilemmas/brief-history-veil-islam <accessed on 25th October 2016>
[6] Ibid
[7] Ibid
[8] Ibid
[9] Al-Islam.org https://www.al-islam.org/hijab-muslim-womens-dress-islamic-or-cultural-sayyid-muhammad-rizvi/quran-and-hijab <accessed on 25th October 2016>
[10] Shariasourceblog, ‘Can a Judge Determine Acceptable Religious Attire in a Quebec, Canada Courtroom?’, shariasource at Harvard Law, 30th September 2016 https://shariasourceblog.wordpress.com/2016/09/30/islamic-law-and-policy-can-a-judge-determine-acceptable-religious-attire-in -a-quebec-canada-courtroom/ <accessed 5th October 2016>
[11] Facing History and Ourselves; ‘A Brief History of the Veil in Islam’; “The Other Side of the Veil: North African Women in France Respond to the Headscarf Affair.” Gender and Society; 2003 https://www.facinghistory.org/civic-dilemmas/brief-history-veil-islam <accessed on 25th October 2016>
[12] Facing History and Ourselves; ‘A Brief History of the Veil in Islam’; “The Other Side of the Veil: North African Women in France Respond to the Headscarf Affair.” Gender and Society; 2003 https://www.facinghistory.org/civic-dilemmas/brief-history-veil-islam <accessed on 25th October 2016>
[13] Judicature Act Kenya Cap 8, Section 3:
(1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with -
(a) the Constitution;
(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;
(c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August,1897, and the procedure and practice observed in courts of justice in England at that date;
http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%208 <accessed on 26th October 2016>
[14] Constitution of Kenya 2010 Article 2:
(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
(2) No person may claim or exercise State authority except as authorised under this Constitution.
(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.
(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. https://www.kenyaembassy.com/pdfs/the%20constitution%20of%20kenya.pdf < accessed on 25th October 2016>
[15] Constitution of Kenya 2010 Article 169:
(1) The subordinate courts are—
(a) the Magistrates courts;
(b) the Kadhis’ courts;
(c) the Courts Martial; and
(d) any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162 (2). https://www.kenyaembassy.com/pdfs/the%20constitution%20of%20kenya.pdf < accessed on 25th October 2016>
[16] Constitution of Kenya 2010 Article 170:
(1) There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament.
(2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless the person—
(a) professes the Muslim religion; and
(b) possesses such knowledge of the Muslim law applicable to any sects of Muslims as qualifies the person, in the opinion of the Judicial Service Commission, to hold a Kadhi’s court.
(3) Parliament shall establish Kadhis’ courts, each of which shall have the jurisdiction and powers conferred on it by legislation, subject to clause (5).
(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being fewer than three in number) as may be prescribed under an Act of Parliament, shall each be empowered to hold a Kadhi’s court having jurisdiction within Kenya.
(5) The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts. https://www.kenyaembassy.com/pdfs/the%20constitution%20of%20kenya.pdf < accessed on 25th October 2016>
[17] Constitution of Kenya 2010 Article 32:
(1) every person has the right to freedom of conscience, religion, thought, belief and opinion.
(2) 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, practice, teaching or observance, including observance of a day of worship.
(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.
(4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. https://www.kenyaembassy.com/pdfs/the%20constitution%20of%20kenya.pdf < accessed on 25th October 2016>
[18] Republic v The Head Teacher, Kenya High School & Another Ex-parte Smy (a Minor Suing Through Her Mother And Next Friend A B) [2012]eKLR http://www.kenyalaw.org/Downloads_FreeCases/88818.pdf <accessed on 25th October 2016>
[19] Ndanu Mutambuki & 119 others v Minister for Education & 12 others [2007] eKLR http://kenyalaw.org/caselaw/cases/view/50175/ <accessed on 26th 0ctober 2016>
[20] Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others [2016] eKLR
[21] The Life and Letters of John Locke, ed. P. King, II 108-119
[22] Njogu, Commercial Bank of God? Islamic Banking and Law & Religion in Kenya, (LAP LAMBERT Academic Publishing) 34-48
[23] Ibid
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