Freedom of Religion in the Secular and Religiously Homogenous State
By Jules Swinkels
February 3, 2019
On Thursday, January 25, 2019, the Supreme Court of Kenya overturned a ruling by the Court of Appeal which allowed three Muslim students to wear a hijab to school. The hijab is a piece of cloth worn by Muslim women in the presence of men who are not from her immediate family. However, the hijab is not simply a physical object, it embodies a deeper meaning with greater implications on one’s identity as a Muslim. Hijab literally means a barrier or partition between someone and potential harm. It is traditionally worn by women to maintain modesty and privacy, and is regarded by many Muslims as a core element of their religion.
The latest Supreme Court ruling in Kenya does not ban the wearing of hijab in general. Their verdict, however, reads that schools in Kenya have the final say in whether they will allow hijabs to be part of the school uniform. The case was brought against three Muslim students in Isiolo who had been suspended by St Paul’s Kiwanjani Secondary School in 2014. The school is sponsored by the Methodist Church of Kenya, a Protestant Christian denomination.
A problem arises though when schools in a religiously homogenous or secular country are legally allowed to enforce a ban on the wearing of religious symbols under the veil of uniform policy. The hijab is different from other religious symbols such as jewellery in the sense that it cannot be easily concealed when people feel uncomfortable by it. For many Muslim women, wearing a hijab is a core part of life. They use it to practise their faith. Banning the hijab from schools or workplaces does not mean women will automatically unveil themselves. It would mean that women who have a religious conviction would simply stop coming to that school or workplace.
This problem is based on an underlying fundamental issue with the concept of a secular state vis-à-vis religious symbols. A truly secular state is neutral in matters of religion and treats all its citizens equally regardless of religion. In such a state, there is separation of religion and government. Religion, in other words, does not influence decision making, and is not part of daily life, which can express itself in the banning of religious symbols in public spaces. For example, France, a traditionally secular state, banned the use of religious symbols, such as the hijab, the Jewish skullcap, or large Christian crosses, from public places in 2004. France argued that it was clearly not discriminatory because the rule applied to religious symbols from all religions.
Many people living in secular or religiously homogenous countries where they are barred from wearing certain religious garbs in public feel disenfranchised or intolerable. It is often argued that bans do not prevent one from professing their beliefs and are thus in line with the laws of freedom of religion and beliefs. You can still be Muslim, but you cannot show it. That poses an impossible problem. Iman Amrani, a journalist for The Guardian, argues that “identity isn’t something you suppress for public spaces. I don’t stop being a Muslim when I come into work and turn into a journalist.” For many women, wearing a hijab is integral to their religion, so banning it does in fact prevent one from being a Muslim. This, in turn, creates deeper divisions in the society rather than foster integration and coexistence, the primary aims of such a ban. The freedom of religion should thus be protected within the secular state that Kenya is.
Jules Swinkels is a Visiting Research Fellow at the HORN Institute.