A High Court judge on Tuesday struck out a high-profile lawsuit aimed at forcing several schools to allow Muslim students to wear veils, ending a landmark religious rights case not on the merits of constitutional freedom, but on the rocky shoals of legal technicality.
The ruling, delivered by Justice Jaiteh, struck out the consolidated civil suit filed by 12 applicants against five educational institutions, including St. Therese Upper Basic and St. Peter’s Senior Secondary. In a stern rebuke from the bench, Justice Jaiteh characterized the litigation as “fundamentally defective” and an “abuse of the judicial process.”
While the case had been watched closely as a test of religious expression under the 1997 Constitution, the court’s decision centered on the “incompetence” of the filing. The applicants had sought not only a declaration of their right to wear the hijab but also 20 million dalasis (approximately $280,000) in compensation for emotional distress.
The most significant hurdle for the applicants was the legal status of the schools themselves. Counsel for the Catholic mission schools, R.Y. Mendy, argued that the institutions were non-juristic persons—entities that, because they are not incorporated under the Companies Act or created by statute, cannot legally sue or be sued.
The applicants’ counsel, B.S. Touray, countered that the schools held themselves out as legal entities through public signboards and administrative recognition by the Ministry of Basic and Secondary Education.
Justice Jaiteh was unmoved, invoking the legacy of the British jurist Lord Denning to emphasize that legal personality is a matter of law, not branding.
“You cannot make something into a legal person by calling it one,” the judge noted, ruling that neither a signboard nor a ministry press release confers the right to be sued. Because the schools lacked incorporation certificates, the proceedings against them were declared a “nullity ab initio”—void from the beginning.
The court also found a “factual gap” in the claims against Charles Jow Memorial Academy. Although the suit alleged that a student there had been prohibited from wearing a veil, Justice Jaiteh noted that the student in question was not a party to the suit, nor were the 12 applicants authorized to sue on her behalf.
The judge struck out the action against the academy as “oppressive” and “speculative,” ruling that the court does not adjudicate “abstract grievances.”
“The law does not permit parties to litigate vicariously or hypothetically on behalf of unnamed third parties who are not before the court,” he said.
Beyond the identity of the defendants, Justice Jaiteh took aim at the “mode of commencement.” The case was filed via an “Originating Summons,” a fast-track procedure reserved for cases where the facts are undisputed and only a point of law requires interpretation.
However, because this case involved “hotly contested facts”—including the existence of actual bans and claims for massive damages—the judge ruled it should have been filed as a “Writ of Summons,” which allows for the cross-examination of witnesses. Trying to resolve such a contentious matter through written affidavits alone, the judge said, was fundamentally wrong.
In the case of Reverend J.C. Faye Memorial School, the court found the claims particularly thin. While one applicant was a student there, the court found no evidence she had been stopped from praying, expelled, or coerced. Justice Jaiteh noted that a school’s religious ethos—in this case, Anglican—does not inherently constitute a constitutional violation.
In his closing remarks, Justice Jaiteh issued a sharp warning to the legal practitioners involved, cautioning against “procedural experimentation” and the wasting of judicial resources.
“Litigation is not a playground,” the judge said. “It is a serious judicial enterprise that demands the highest level of professional care.”
The court ordered the applicants to pay 50,000 dalasis in costs to each of the five schools. While the underlying question of the hijab in schools remains a flashpoint of public debate, for now, the gates of the court have been closed by the very rules meant to open them.