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Saturday, May 18, 2024

To veil or not: socio-political, human rights and secularity issues

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The furore surrounding St. Therese’s school and pupils whose veils were seized, unfortunate as it is, is an opportunity to start a national conversation, or perhaps, broaden the conversation regarding rights and restrictions of those rights to meet the objectives of a democratic society.

We have a duty to be cautious how we articulate this issue. Often, our arguments are undermined by sentiments, social and religious, and understandably so. The inherent risk of such a calculus is that the narrative is driven by a populist agenda, which potentially distorts the conversation. This is so, because, the framing is subconsciously hijacked and influenced by rhetoric rather than substance, reason and sound judgment. Such framing is thus derived from and shaped by one’s religious or socio-political and philosophical leanings.

One would expect that a school or any institution for that matter, in particular faith-based or non-faith schools, should have the power to have their own rules and internal standards with regards uniform, conduct and performance. One would also ordinarily expect such rules and regulations to be informed by an overarching national law, regulation or some other subsidiary rules. That means therefore, any such power, is intrinsically predicated on some form of legal document or national policy paper to govern a specific sector of society, i.e schools governance.

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The facts, as I can gather from social media, which may be a misrepresentation of the true facts and circumstances of this matter, is that St. Therese’s, seized veils from some pupils. One can reasonably presume that those pupils are Muslim, attending a Christian faith-based school. St. Therese’s, has rights and powers to govern its school according to its own internal disciplinary rules and procedure. That may include, amongst others, prescribing a certain uniform code. The code may allow or disallow certain conducts, choice and style of clothing. Schools should be encouraged to exercise those rights and powers as they deem fit and proper in their own contexts. Otherwise, the ability of schools and institutions to have a certain degree of autonomy in self-regulation will be defeated and this may lead to chaos and disintegration of standards and discipline in schools. 

At the same time, the actions of St. Therese’s or any institution that exercises public functions or whose functions are public in nature, have obligations to ensure the performance of those duties and functions are neither discriminatory nor in contravention of relevant constitutional or statutory provisions.

Whereas St. Therese’s, Nusrat, St. Peter’s or Tahir, may exercise their powers pursuant to some secondary or subsidiary legislation, directive or regulation, in relation of matters such as student expulsion, repeating students, passing or failing students, uniforms and days and times to attend school, there is always a superior body or authority of law that is omni-present, whether invoked or not, that has the effect to override all such primary or secondary laws, regulations or directive. And that body of law is the constitution and which is superior to all other laws. Furthermore, any law that is inconsistent with the constitution to the extent of the inconsistency is deemed void. Aside from the Constitution, The Gambia ratified and domesticated some international Treaties which also have the effect of overriding local laws that are inconsistent. For example, the Children’s Act 2005 and Women’s Act 2010.

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Are the powers of schools to govern themselves definite or absolute? To answer this question, it may be useful to critically analyze this issue.

Under Chapter 4, Protection of Fundamental Rights and Freedoms, of the 1997 constitution, section 17(1) provides that the fundamental human rights and freedoms of (Chapter 4) shall be respected and upheld by the State and where applicable to them, by all natural and legal persons in The Gambia, and shall be enforceable by the Courts in accordance with the constitution. Schools and institutions are legal persons whereas the members of the school Board or governing Council, Head Master or Principal and teachers etc natural persons. 

Section 17(2) states that every person in this country, whatever his or her race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status, shall be entitled to the fundamental human rights and freedoms of the individual contained in (Chapter 4), but subject to respect for the rights and freedoms of others and for the public interest.    

It means therefore, that there is a mandatory obligation on schools or other institutions to respect and upheld the fundamental human rights and freedoms of its students and employees/staff. Everyone is entitled to these fundamental human rights and freedoms, regardless of gender, religion or other social status. At the same time, these rights are not absolute, for example, unlike the right against torture. The same section 17 that seeks the protection of fundamental rights and freedoms of individuals, states that such rights are subject to respect for the rights and freedoms of others and for the public interest.

So, in so far as the obligation on St. Therese’s or Nusrat or other schools or institutions to protect, promote and fulfill the fundamental human rights of students or employees, the exercise of the powers or functions to ensure that there is a realization of the objectives of fulfillment, there is also a corresponding or concurrent duty and obligation to ensure upholding those rights do not interfere with the rights and freedoms of others. This is what section 17(2) is contemplating. In the St. Therese’s case, a Christian school, attended by Muslims and Christians alike, has a duty to balance the various competing rights and freedoms, to avoid clashes between religions and religious cultures. Would it upset the morale of the school if Muslim students were allowed to come in veils and other paraphernalia that are at odds or variance with Christian attributes? Will something like that sow seeds of discontent? Does the majority of the students at St. Therese’s, who I assume, are Christian and of the Catholic dominion, attend the school because of the close cultural proximity between the school and what their parents perceive as strict Christian values? Does the school therefore, have legitimate rights and expectation to preserve that culture of discipline and way of life, influenced by its Christian values? If that is so, is banning and seizing veils a proportionate measure to respond to the “threat” against its values?  

Section 25(1) states that every persons shall have the right to:- (b) freedom of thought, conscience and belief, ………. (c) freedom to practice any religion and to manifest such practice;

Section 25(4), states that the freedoms referred above must be exercised subject to the law of The Gambia in so far as that law imposes reasonable restrictions on the exercise of the rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality.

Section 25(4) is similar to the provisions of Treaties and Conventions. Article 18(3) of the ICCPR provides that manifestation of religious belief may be restricted on grounds of public safety, order, health, or morals or the fundamental rights and freedoms of others. Section 25 of our constitution goes further to say that these rights may be curtailed where necessary in a democratic society and required to preserve the interests of the sovereignty and the integrity of The Gambia. Section 1(2) of our Constitution is unambiguous that the sovereignty of our country is derived from the people. It is in the interests of people, of all gender, religion and social status, that the extolled sovereignty is sought to be safeguarded. 

Section 33(2), on protection from discrimination, states that no law shall make any provision which is discriminatory either of itself or in its effect. Section 33(3) provides that no person shall be treated in a discriminatory manner by any person acting by virtue of any law, amongst others. Discrimination under section 33 means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, gender, language, religion, political.

Banning veils in schools, universities and public buildings is not a new phenomenon around the world. In 1998, Istanbul University banned students wearing headscarves and long beards from attending lectures and writing exams. Leyla Sahin, a fifth-year medical student at the time, refused to remove her headscarf on religious grounds and was consequently denied access to lectures and exams. She instituted action against Turkey, claiming her right to education was denied through the denial of her right to religious expression. In a leading judgment by the European Court of Human Rights in Leyla Sahin v Turkey (2004) the European Court held that “the interference of her religious freedom was justified in the interests of the rights and freedoms of others, which is linked to the Turkish constitutional principles of equality and secularism.”

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