By Bubacarr Drammeh, Esq.
In my previous article, I explained why wearing of Hijab in public places is a religious injunction for Muslim women qualifying the act to falls under the protection enshrined in Section 25(1)(c). Any person who seeks to wear a Hijab in public believing in compliance with the teachings of her Islamic faith, among many others, has the fundamental right and freedom to do so. Thus, when a person wears a Hijab in the public square as a manifestation of her Islamic faith, it “shall be respected” by all public-sector employees and entities, and where applicable to them, so too on private-sector employees and individuals. In this article, I will explain whether schools have the authority to deny students from wearing the Hijab.
The government has two main obligations in ensuring every citizen enjoys the fundamental right and freedom to wear the Hijab. First the government has the obligation to respect, that is, the state has a negative obligation not to interfere with this protected right—subjected only to the restrictions specified in Section 25(4) which provides that: The freedoms to practice any religion and to manifest such practice “shall be exercised subject to the law of The Gambia in so far as that law imposes: Reasonable restriction 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, or in relation to contempt of court.
The other obligation the government has is to protect the right to religious worship. The state has a positive duty to ensure that other entities (this includes both natural and legal person) do not violate the fundamental right and freedom to wear the Hijab.
With this basic understanding, let’s dwell into whether schools have the authority to deny students from wearing the Hijab.
Historically, public schools “have exercised much discretion over setting student dress codes.” However, that discretion is not unfettered because it must be exercised within the perimeter of Constitution especially Section 25(4) and Section 32 of the Constitution. Thus, any law that prohibits students from wearing Hijab must pass the constitutional limitation test of Section 25(4) and Section 32 or is “null and void”, therefore, unconstitutional.
Public Schools
Public schools, whether faith-based or secular, are public entities because they are “run on public funds” such as local, state, or federal. Consequently, public schools must “respect and upheld” every student’s fundamental right and freedom to wear the Hijab. Irrespective of our politics or religious belief, we the public have a strong interest in the enforcement of constitutional rights, particularly in the context of public schools. Students have the constitutional right to wear Hijab in public schools.
Private Schools
Private schools are “privately owned and funded without the assistance of local, state or federal governments.” Private schools, where applicable to them, must “respect and upheld” every student’s fundamental right and freedom to wear the Hijab. When will every student’s fundamental right and freedom to wear the Hijab become applicable to private school?
The government has a positive duty to ensure that private schools do not violate the fundamental right and freedom to wear the Hijab. Furthermore, there is no doubt that government has “the power to regulate private schools” because it has a “high responsibility for the education of its citizen.” However, the degree of the state’s regulatory power is not without limitation.
Regarding the fundamental right and freedom to wear the Hijab, the government must either use Section 25(4) limitation or use the balancing test provided in the constitution which is “every person shall be entitled to the fundamental human rights and freedoms enshrined in the constitution, but subject to respect for the rights and freedoms of others and for the public interest.”
Non-Faith Based Private Schools
It is in the public interest that fundamental rights and freedoms enshrined in the constitution are adhered to by everyone. If individuals or institutions can choose to blatantly disregard fundamental rights enshrined in the constitution, then we are doomed as a nation.
Students wearing hijab in non-faith based private schools pose no threat, actual or potential, to our sovereignty and integrity, national security, public order, decency or morality. Nor do they pose any threat, actual or potential, to the rights and freedoms of non-faith based private schools or the public interest. But denying students from wearing Hijab poses a threat, actual or potential, to the rights and freedoms of everyone who wish to wear their Hijab in non-faith based private schools and to our unified society. Therefore, Non-faith based Private schools must “respect and upheld” every student’s fundamental right and freedom to wear the Hijab. Thus, students have the constitutional right to wear Hijab in non-faith-based schools.
Faith-Based Private Schools
It is indisputable that faith-based schools have played a significant role in the education sector in The Gambia. According to the Global Catholic Education Report 2020, The Gambia has a total of 51 Catholic affiliated schools— 9 preschools, 25 primary schools, and 17 secondary schools. Many students who are going to these schools or have gone to these schools are not Catholic or Christians. The Congregation for Catholic Education (CCE) is aware of this that is why it calls for “an education that leads to fraternal humanism and a civilization of love, and welcomes all students, Catholic or not.” The CCE acknowledges that even though Catholic schools “contribute to the evangelization mission of the Church, but this should not lead in any way to proselytism”— i.e., to try to persuade their students to change their religious beliefs, political beliefs or way of living.
Since every person “shall have the right to freedom to practice any religion and to manifest such practice,” faith-based schools are “entitled to promote” their religion “subject to the constitution and the condition that the right protected do not impinge on the rights and freedoms of others or the national interest, especially unity.” Thus, faith-based schools have the right to run their schools in line with their religious dogma. This right is not absolute. It is subjected to the Section 25(4) limitations and national interest especially unity.
Students wearing hijab pose no threat, actual or potential, to the rights and freedoms of faith-based private schools or the public interest. It is in the national interest that children of all faiths interact in all milieus of society if we are ever to eradicate religious prejudice. But denying students from wearing Hijab poses a threat, actual or potential, to our unified society. The British Humanist Association (BHA) succinctly put it “if children grow up within a circumscribed culture, if their friends and peers are mostly from the same religion and hence also, very likely the same ethnic group, and if they rarely meet or learn to live with others from different backgrounds, this is hardly calculated to promote the acceptance and recognition of diversity.”
I hope The Gambia Christian Council will act on the historical legacy of their faith-based schools and make accommodations for students who wish to wear the Hijab. Non-Christians wearing Hijab does not violate the religious tenets of Christianity or any other faith.
About the Author: Bubacarr Drammeh, a Columnist at The Gambia Times, holds a LLM Degree from the University of Washington, in Seattle, in the State of Washington. He was a State Counsel at the Attorney General’s Chambers in The Gambia.