When law and religion meet

16 Jun, 2019 - 00:06 0 Views

The Sunday Mail

Rumbidzai Venge

What informs the right to have a religious belief and freedom of expression as ascribed in the constitution in terms of Section 60?

It goes to great pains to empower the parents of the child enrolling within certain institutions to be able to express their decisions or to ensure that their child is able to express their religion freely in whatever institutions they are in.

So the basis of that is when a religious belief is threatened, it becomes a violation of a constitutional right.

The courts should uphold that constitutional right and if a school’s actions become discriminatory to that student in the practice of their religion, it has to be brought to book and the child is allowed to continue to express themselves as they are constitutionally guaranteed to do so.

There have been a few cases that have seen different outcomes across the board. There is the case of the Dzvova boy who is a Rastafarian.

The Supreme Court unanimously decided that the school’s decision to expel him was a contravention of his constitutional right in terms of Section 60 — to have freedom of religion and expression.

Then there was the St John’s College and Arundel School cases.

Their parents and guardians took these cases to the courts. lnterestingly, the judges ruled that the cases were not a contravention of the respective pupils’ constitutional rights, thereby going against the previous decision in the Dzvova case.

Generally speaking, it seems there is a bit of or more lee-way given to members who want to practice their religious beliefs through the growing of hair, Rastafarians to be specific.

So far, it seems the cases involving Rastafarians keeping their hair have gone in favour of the litigant, applicant or parents of the child involved.

It’s a bit worrisome that there is no uniformity in the application of the law.

It would follow that if the recourse was granted in that case then it should have been granted in the most recent St John’s case of the Muslim pupil who wanted to keep his beard in accordance with his beliefs.

It is often said that each case is heard on its merits and there are different circumstances justifying a court’s ruling in any case.

Just because some of the subject matter is the same, certain circumstances may be different. This may attribute to some of the differences in the outcomes where the core of the matter seems to be religious beliefs and infringement or expulsion of a student or restriction to access to certain services as they follow a certain religion.

The rational of the most recent Supreme Court decision was that it is the boy who came to the school and not the school who came to the boy. As such, they boy has to adhere to the school’s ethos, rules and regulations because when the parents enrolled their child at the school, they technically agreed to those conditions.

It was also implied that the parents, by enrolling their child at that school, were also binding themselves to those rules and then they became operable.

Stepping away from that, we need to have a uniform application of the law. We need to see that every person practicing a different religion is given an opportunity to express themselves in whatever sphere.

If the running decision is going to be that where someone is to enrol in an institution, let’s take the military for example.

lf a Rastafarian was to sign up to the military with the argument that they are to keep their hair, or a Muslim is to keep their beard in accordance with their religious beliefs, would that stand?

But whatever decision that is then taken, if it comes from the constitutional basis, then there has to be uniformity because that in itself is also contravention of the constitutional right where we see discrimination or the application of the law non-uniformly or in favour of others while another group of society is disadvantaged.

There has to be uniform application of the law.  Going forward, there can not be contradictions as we have seen from the court.

From my gleaning of the Constitution’s Section 60 and how it should be applied, I believe that it is a constitutional right and all persons should be allowed to express themselves in the manner that is in accordance with their religion.

But again in organisations where identification of persons is crucial, you need to be able to identify people. Beards may hinder this. lf it goes against certain policies and an individual signs up to something knowing fully well that the rules and regulations go against their religion, then surely those rules should apply and remain binding.

What worries me are the contradictory decisions, they go on to dampen people’s confidence in the law system.

Looking at these situations, particularly when some of these religions are involved, you find that most schools, even though they might be secular in nature, attach themselves greatly to the Christian value system and all things that feed into the Christian way of life.

So maybe that in itself should also be looked at.

Should the manner in which schools put their mission statement be looked at? Must it be expanded to also include the minority religions such as Rastafarianism, Judaism, Islam and so forth.

Going forward, maybe we can prevent problems of this nature and promote an understanding between the schools and parents before pupils are enrolled at the respective schools.

Parents should be given a clear explanation of the rules that will be binding their children so that they can make an informed decision before signing on the dotted line.

Rumbidzai Venge is a lawyer with Mambosasa Legal Practitioners


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