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About Joshua Malidzo Nyawa

Joshua Malidzo Nyawa is an Advocate of the High Court of Kenya. He holds a postgraduate diploma from Kenya School of Law and a Bachelor of Laws from Moi University School of Law, Kenya. He has a keen interest in Constitutional Law, Comparative Constitutional Law, human rights and Administrative Law.

Image description: Kenyan primary school students sit on chairs and on the floor in a basic dirt-floor classroom taking lessons.

On 4 March 2022 a letter from the Kenyan Ministry of Education addressed to County Directors of education appeared online.  The letter was entitled Violation of Religious Rights in Schools. Within it, the Ministry identified particular violations of religious rights of learners and noted that schools were using religion as a factor to either deny admission or to expel students. The Ministry identified the following forms of violation:

  1. Prohibition from wearing religious attire (e.g. hijabs and turbans)
  2. Forcing students to take religious subjects
  3. Denying learners an opportunity to observe religious rites and prayers
  4. Failure to allocate worship rooms or spaces
  5. Forcing learners to participate in religious rites and activities that are contrary to their beliefs

The communiqué noted correctly that the violation of religious rights is contrary to the Kenyan Constitution, as well as international conventions ratified by the state. The Ministry further noted that there is a duty on the state to promote diversity.

The Ministry is to be commended for taking this progressive step. Firstly, this communiqué comes at a time when the Indian High Court recently made an unprecedented, unfortunate, and unconstitutional finding that the prohibition on the wearing of hijabs in schools does not violate the freedom to hold religious beliefs. Secondly, the communiqué comes after a long battle within domestic courts. Kenyans brought cases against the state in the Rastafarian decision (which challenged the decision of the school to suspend a Rastafarian student), the Fugicha decision (which challenged the ban on wearing hijabs) and the Seventh Day Adventist case (which challenged the decision of Alliance school to compel students to sit exams on Saturdays, conflicting with the Sabbath observed by students belonging to the Seventh Adventist Church). These cases indicate that the Kenyan judiciary has helped to provoke political momentum by illuminating constitutional issues surrounding religious freedom.

The communiqué from the Executive branch of government has acknowledged the supremacy of the Constitution, rather than school rules or ministry circulars. It has laid rest to the argument that you can choose the school you want and should be bound by the rules of such a school; students do not abandon their constitutional rights at the school gate. The Ministry of Education has thus communicated its allegiance to the Preamble and to Article 10 of the Constitution: in the Preamble we declare that we are proud of our ethnic, cultural and religious diversity, and are determined to live in peace and unity as one indivisible sovereign nation. This goal is then reflected in Article 10 which provides the values of inclusiveness, non-discrimination, human dignity and human rights as national principles.

This is a recognition that as Kenyans, we uphold a society that promotes tolerance and pluralism; a compassionate society that respects diversity, human rights and freedoms. In particular, Kenyans have vowed to ensure that majoritarian views do not trump the ‘triangle of constitutionalism’: equality, liberty and dignity. The Kenyan Principle of Accommodation recognises that in an open and pluralistic society the minority should not be suppressed or excluded, or compelled to follow majoritarian views.

These principles are reflected in the words of Judge Dickson in R v Big M Drug Mart: ‘A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms…If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free’.

The communiqué is thus commendable on several fronts. Firstly, in a pluralistic society we should celebrate diversity and accommodate those perceived as different. Secondly, the majority should not be allowed suppress the minority because they cannot conform to certain religious norms. Thirdly, we must accept to live with those that we think are different from us. The Executive has reminded us that even if the majority considers the minority as ‘deviants’, human rights remain applicable. Moreover, Constitutions do not protect only those that we like or those that we believe to be correct, but protect everyone. This step by the Kenyan Ministry of Education affirms a commitment to the Constitutional right to religious freedom, and to human rights principles more broadly.

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