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TO VEIL OR NOT: socio-political, human rights and secularity issues

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Lawyer Abdoulie Fatty.

By Abdoulie Fatty, Lawyer

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 byone’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.eschools governance.

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 anyinstitution 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. 

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 etcnatural 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 wereallowed 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.”

Many Jurists argue that The Gambia is not a secular state, so far as the constitution is concerned. It is claimed that the insertion of the secular in the 1997 constitution was unconstitutional following the decision in Jammeh v Attorney-General [1997-2001] GR 839. So, technically speaking, Gambia is not expressly a secular state. However, practically, one can cogently argue that there are elements of secularity in various provisions of our constitution despite the omission of the word secular in our constitution. The technicality of the term does not vitiate the essence and substance of secularism, in practice and conduct. Turkey and France for example, which both have secular constitutions, separating religion from the State, have constitutional basis to justify interfering with religious manifestation rights on the basis of respect for the rights and freedoms of others, in order to preserve the very sanctity of that secular principle. However, for countries such as ours, where we are not constitutionally secular, can the same argument be sustained? Perhaps. Notwithstanding secularism, we are still a democratic state and democracy entails respect for the rights of others. Further, our supreme law envisages that for social harmony and cohesion, mutual co-existence, security and stability, a reasonable interference with some of our fundamental human rights and freedoms, such as the rights to freedom of thought, conscience and belief, as well as freedom to practice and manifest any such religion. Such measures or restrictions, one may argue, are necessary in a democracy and maintaining the tenets of sovereignty.  

Some argue that the banning of veils, generally, intentionally or otherwise, only seems to affect mainly girls/women. The Human Rights Committee of the United Nations found that the “exclusion from university in Uzbekistan of a practicing Muslim university student for wearing a headscarf interfered with her rights under Article 18 of the ICCPR. The Human Rights Committee stated in its General Comment that the freedom to manifest religion encompasses the right to wear clothes or attire in public which is in conformity with one’s religion. The Committee on the Rights of the Child believes that discrimination is offensive to the human dignity of the child and girl child. Human Rights advocacy groups say that discrimination in education should be prohibited. Both the Children’s Act and Women’s Act purposely promote the welfare and rights of children and women and the prohibition of discrimination against women and girls. In a way, attempts to ban students wearing veils, indirectly interferes with their education. The likelihood of Muslim girls being banned from schools for wearing a veil is high. The unintended extension of such draconian measures is that more girls, who are already discriminated by a patriarchal  society, are disproportionately exposed to additional forms of discrimination and marginalization. In The Gambia, does it matter if a Christian student does not wear a veil or wears a crucifix to Nusrat? Or, does that offend the very foundations upon which Nusrat is built? Why should it matter that a Muslim female student who attends St. Therese’s or St. Peter’s, wears a veil to school? Should we be more tolerant and encourage students to embrace their identity, religious or social status rather than seek to curtail their desire to express themselves? Looking at the principles of illegality, irrationality and proportionality, within the spheres of constitutionality on the rights and freedoms to practice and manifest one’s religion, is it reasonable, lawful and constitutional to compel a Christian female student to wear a veil in a Muslim dominated school such as Nusrat? Likewise, it is also reasonable, lawful and constitutional to prohibit a Muslim female student from wearing a veil in a Christian dominated school? 

Many of our faith-based schools, Muslim and Christian, receive government subventions derived from the Consolidated Fund or other government Funds. Those funds are used to run the schools. That means even though some of these schools are semi-private in structure, they are public institutions due to the public nature of their roles, especially where they receive funds from the public purse. Consequentially, as a result of utilizing public funds and exercising public functions, can they claim to be totally autonomous and independent to such extent that they can operate independently from the mainstream by imposing rules and standards that are inconsistent with that of the same public that provides them funds for their running and administrative costs? I believe, instead of seeking to limit rights, schools should seek to promote rights. That would mean faith-based schools actively respecting, promoting and fulfilling the rights of minorities in a particular school. To embrace that sense of community. I know my arguments may be simplistic when juxtaposed with the real life challenges teachers face in schools daily. They have to react and respond to situations to ensure discipline prevails. However, a more expansive, holistic and forward looking approach, that encompasses all religious rights and sensitivities, Muslim, Christian and other faiths, should be explored to speak to this threat and challenge. 

The long standing religious harmony and mutual co-existence between Muslims and Christians in this country should be jealously guarded. Some of these issues, such as the current subject matter, have the potential to be controversial and divisive, if not managed properly. The law as a process and remedy, is not always the appropriate answer to every scenario. Community based or linked issues are best addressed by consensus and not through adversarial methods. Faith-based inter-dialogue, founded on respect, tolerance, empathy and shared values innate to our characteristics as Gambians, whatever tribe, religion or region, we possess and cherish. The State cannot micro manage all these challenges. Relevant groups, devoid of maligned agenda and rhetoric, ought to come together to start a national conversation on this and other contemporary issues that should be confronted now, to prevent tensions tomorrow that would consume the future peace and stability of this country.

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