Order by The Kenyan Education PS on hijab declared unlawful
Between May 18 and 26, 2009 there were complaints that several schools were not allowing students to wear religious dresses, especially the hijab for Muslims. On July 14, 2009 Education Permanent Secretary Prof Karega Mutahi wrote to all provincial directors of education, district officers, municipal education officers and heads of schools directing them that principals who may have expelled students on the basis of wearing the hijab admit them immediately.
On November 1, 2010, a Muslim student of the Kenya High School (who can’t be named as she is a minor) sued the institution seeking orders on her own behalf and on behalf of fellow Muslim students to compel the school to comply with the PS’s directive. She asked for an order quashing the decision of the school denying her the right to wear the hijab in school and to prohibit the school from interfering with her right to wear the hijab, which she said was her form of expression and manifestation of her religious right as provided for under Section 32 of the Constitution.
The mother filed her own affidavits and others sworn by Muslim scholar Sheikh Khalfan Kamisi and one Fatuma Hirsi Mohamed. The girl named the school headmistress as first respondent and the Board of Governors (BoG) as second respondent. Before Lady Justice Cecilia Githua, the girl claimed the Kenya High School had refused to comply with the order by the PS. She said she had a legitimate expectation that she would be allowed to wear the hijab while in school. The school had failed to meet this expectation. She claimed the refusal was discrimination on the basis of religion and violation of her rights under Article 27 and Article 32 of the Constitution of Kenya. Sheikh Ahmed M Athman, the Imam of Jamia Landhies Mosque, said wearing of hijab for women is an edict of the Quran and mandatory.
The Kenya High School filed affidavits sworn by the Chief Principal and secretary to the BoG Rosemary Saina, the Parent Teachers Association chairman Samuel Gitonga Mutungi, educationist and scholar Dr Eddah Gachukia and Islamic scholar Prof Imam Al-Hajj Ibrahi B Syed. education act Through lawyer Fred Ngatia, the school argued that under the Education Act Cap 211 Laws of Kenya, it was mandated to make rules and regulations for the proper administration, discipline and functioning of the school community. The rules apply to all students. The school argued that uniform serves a critical role in the education set up, as it creates harmony, cohesion and unity among students, which in turn contributes to high academic performance. The principal denied having directly received the letter from the Education PS saying it was brought to her attention by the girl in September 2009. The matter was subsequently discussed by the BoG and the Parents and Teachers Association (PTA) on March 20, 2010 and resolved that all students should continue wearing the school uniform in order to promote discipline, identity, harmony, equality and uniformity in the school. Mr Ngatia said Kenya High School had never denied any student the right to education and has never expelled or prevented the Muslim students from attending school based on religious considerations. Ngatia argued that under the law only the Education Minister could give directions to schools.
The directive by the PS in his own capacity and not on behalf of the minister was illegal and not valid in law. The lawyer said if its application was allowed, it would distort the school uniform, which had served the school well for over 100 years and introduce inequality in the treatment of students. Students of other religious sects would feel discriminated against and start agitating for similar treatment. This would translate into disharmony and disorder not only at the Kenya High School, but also in other national schools in the country. Justice Githua concurred that the letter by the PS in his official capacity was not a directive contemplated under Section 27 of the Education Act, as it was not made by the minister. The court took judicial notice that Prof Mutahi had never been appointed as a Minister for Education.
The letter was issued in excess of authority hence the directions were unlawful, null and void. The school administrators therefore had no legal obligation to comply with a directive that had been issued illegally. “There is no room for doubt that the said directive was a nullity in law and it was consequently not capable of giving rise to a legitimate expectation of any kind to the applicant or to anyone else for that matter,” the judge said, adding: “Directives issued contrary to the law cannot give rise to a public duty. In the premises, I am satisfied that the applicant is not entitled to an order of mandamus (compulsion) and the same is hereby declined.” The judge observed that there was no evidence in court to show that the applicant had at any time been subjected to any form of discrimination by the school administrator on basis of religion.
The judge observed that in learning institutions, some rights could be limited by rules and regulations made by various organs of management to ensure order and smooth running of the institutions. She said: “If the court were to allow the applicant’s quest to wear hijab in school, the 48 Muslim girls in the school would look different from the others and this might give the impression that the applicants were being accorded special or preferential treatment.
This may in all probability lead to agitation by students who profess different faiths to demand the right to adorn their different and perhaps multi-coloured religious attires of all shapes and sizes, which the school administrators will not be in a position to resist if the Muslim students are allowed to wear a hijab.” “The students will be turning up in school dressed in a mosaic of colours and consequently, the concept of equality and harmonisation brought about by the school uniform would come to an abrupt end.” On September 18, 2012 the judge rejected the application and dismissed the case ordering each party to bear their own costs. The girl has the right to appear and even to take the matter to the Supreme Court for constitutional interpretation.
The writer is a court reporter with the Standard.