Hijab Case: Is religion clashing with Kenya’s Education Code of Conduct among students?

Photo I Reuben Meador

St. Paul’s Kiwanjani Day Mixed Secondary School is a Methodist Church sponsored public school in Isiolo North Constituency. Though seemingly ordinary, this school was at the heart of an extraordinary judgment by the Supreme Court that sparked uproar in the Islamic community on 24th January this year.

Whenever one joins high school in Kenya, the first requirement is for the student and their parents/guardians to sign the School Admission Letter.

This confirms that both the student and the parents/guardians agree with all the school rules including the wearing of prescribed school uniform by the students while on school premises. Some schools like St. Paul’s Kiwanjani Secondary School take this rule very seriously.

The Methodist Church instituted a suit as school sponsor at the High Court of Kenya at Meru, High Court Petition no. 30 of 2014, against the; Teachers Service Commission, County Director of Education Isiolo County and District Education Officer Isiolo Sub-County for this and other reasons.

In this case the church submitted that for several years their rule on dress code had been observed strictly and without opposition until 22nd June 2014 when at an Annual General meeting cum prize giving day at the school the then Deputy Governor of Isiolo County informally request that all Muslim girls in the school be allowed to wear hijab and white trousers in addition to the prescribed uniform. This sparked unrest among students, parents and the school’s board of management.

A parent at the school, Mr. Mohamed Fugicha, was enjoined as an interested party in the suit via a court order. He filed a replying affidavit, seeking redress for the violation of his children’s rights specifically the access to any institution despite their religion. In paragraph 34 of this affidavit, he mentioned that he is cross petitioning against the Methodist Church.

The court, however, decided that his replying affidavit could not amount to a cross-petition as it did not comply with Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Practice Rules 2013, i.e. the Mutunga Rules, which clearly stipulate that a cross-petition should include the specific rights violated, the nature of the injury caused or likely to be caused and the reliefs sought.

Since the court could not pronounce itself on a defective pleading, the Methodist church won and all orders sought were granted. What caused public outcry was the orders that stated the school uniform policy doesn’t indirectly discriminate against female Muslim students but allowing the wearing of the hijab is directly discriminatory to female non-Muslim students. By its orders, the court also prevented the respondents from interfering with the Methodist Church’s rightful role as the school’s sponsor.

The aggrieved parent appealed this decision to the Court of Appeal via Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others [2016] Eklr.

The overriding issue that the court had to decide was whether documents relating to proceedings of enforcement of the Bill of Rights must be formal. Their decision was that the judge in the previous suit misapplied the Mutunga Rules and failed to inquire as to whether the said Replying Affidavit passed the informality test envisioned in Article 22(3) (b) of the Constitution which basically empowers the Chief Justice to make rules allowing the courts to entertain pleadings in the form of informal documentation where necessary.

The Court of Appeal allowed this “cross petition” and ordered the Board of Management of the school to amend its rules on school uniform by providing exemptions for those students whose religious beliefs require them to wear particular items of clothing. The court also ordered that its judgment be served upon the Cabinet Secretary for Education so that this decision may be considered in making rules for the protection of the right to freedom of religion enshrined by Article 32 of the Constitution.

The Methodist church took to the Supreme Court to challenge the above decision via Methodist Church in Kenya V Mohamed Fugicha and 3 others S.C.PET. NO. 16 of 2016 and the Supreme Court overturned the court of Appeal’s decision. The judges upheld the High Court decision that the “cross petition” was improperly instituted and the Court of Appealed erred in entertaining it.

Further, the document as drafted introduced a new cause of action thus preventing the Methodist church from responding to it effectively. An exhaustive response was impossible and this violated the Petitioner’s right to be heard as provided by Articles 25 and 50 of the Constitution.

The court agreed that the issues in the impugned cross petition were of national importance but it saw it necessary that pleadings of such nature be properly instituted before the High Court to prevent them from reaching the Supreme Court in such a considerably defective manner.  

By Wendy Nyambura Kariuki, Law Lecturer Kenya Institute of Management(KIM)  formerly a Lawyer at Wamaitha Waweru & Co. Advocates. Her views are her own not representative of the employer.

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