Was the Supreme Court right in making a ruling that prohibits Muslim Girls from wearing Hijabs in Schools?
Yesterday, the Supreme Court under the leadership of Chief Justice David Maraga made a ruling that all but prohibited the wearing of Hijabs by Muslim girls in non-Muslim schools.
All the Supreme Court Judges except one, overturned a ruling by the Court of Appeal that allowed the Muslim Girls to don the Hijabs in any school they went to.
Supreme Court judge Jackton Ojwang disagreed with the majority and supported the Court of Appeal’s decision.
He concurred with Court of Appeal judges who in 2016 ruled that allowing Muslim students to wear hijab does not amount to discrimination against other students.
“The Appellate Court, by contrast, was of the view that the concepts of justice, fairness or reasonableness would not only permit, but in fact do require, differential treatment. Such, in my perception, is an eminently rational stand, and is for upholding,” Ojwang said.
The appellate court had established that there was no factual or legal basis for the holding that allowing Muslim girls to wear the hijab favoured them and discriminated against non-Muslims, as the trial judge had ruled.
“It is my standpoint that the scheme of jurisprudence outlined by the Appellate Court, on the relevant question, is appositely pragmatic and rational, and well reflects the desirable judicial stand,” Ojwang said.
He pointed out that the court ought to strike the right balance amidst people holding different faiths.
“It is my standpoint, in departure from the bench majority, that all the applicable terms of the Constitution and of the enacted law, do entail the finding – precisely in keeping with that of the Appellate Court – that a right balance amidst people holding different faiths, in the multi-cultural environment prevailing at the pertinent school, will by no means be jeopardised on account of the variation to the school dress-code. I would, therefore, have dismissed the appeal.”
This is not the first time Justice Ojwang has held a dissenting opinion in a prominent case. He did so last year when the Supreme Court nullified the election of Uhuru Kenyatta as President.
The hijab case goes back to June 22, 2014 when Isiolo deputy governor Mohamed Guleid requested that all Muslim girls be allowed to wear the hijab and white trousers to school.
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