Thursday, 24 June

Court ruling on Rastafarian student is progressive to the respect and enforcement of fundamental human rights

Feature Article
The Rastafarian student and his family

Introductions 

I was extremely elated to hear that the Human Rights Court ordered Achimota Senior High School to admit the two Rastafarians they refused to admit on grounds of their physical appearance. Despite the fact that the Ghana Education Service intervened, there were other interest groups such as Old students and other individuals of high repute who spoke vehemently against the GES in favour of the Achimota School. 

Like many Human Rights watchers I was deeply worried. It was not long when St. Johns Grammar also refused to admit a similar student and then came the issue of Muslim children being refused an opportunity to observe Ramadan. Many have argued that allowing for these rights would open the floodgates to all kinds of beliefs and practices but the question is whether we have the legal basis for closing these doors to our children and students particularly when they are in the public space? 

In this article, I have argued two reasons why Achimota School got it wrong and why the decision of the court is a welcome decision. 

We have a legal duty of care to children and must be seen to always uphold their fundamental human rights. 

International legal protection of Children 

The preamble of the U.N. Declaration of the Rights of the Child (DRC) notes that children need “special safeguards and care, including appropriate legal protection…” Article 25(2) states: “…childhood is entitled to special care and assistance.”  Also the African Charter on the Rights and Welfare of the Child 1990 in its Preamble states that “the child occupies a unique and privileged position in the African society” and requires legal protection as well as “particular care with regard to health, physical, mental, moral and social development.”  Article 12 of International Covenant on Economic, Social and Cultural Rights 1966 addresses the right of all (including children) to “enjoyment of the highest attainable standard of physical and mental health”. 

Children Welfare Protection Under the laws of Ghana 

One critical issue with the decision was child welfare. The decision not to admit those children wearing rasta did not in any way promote the welfare, future and dignity of those children. Their intellectual abilities are not determined by which type of hair they keep. That is why the decision not to admit them was illegal and a violation of the rights of those children to care and welfare and highest wellbeing. 

In the 1992 Constitution of Ghana, Article 12(1) provides that the fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive,… and all other organs of government and its agencies (including persons working for the government) …. and shall be enforceable by the Courts as provided for in this Constitution. Schools and institutions must always uphold and respect these rights. 

The Ghana Education Service as an institution and all schools including Achimota Senior High owes a duty of care to all these children when any of its officers breach that duty and the said breach results in damages, they cannot absorb themselves of liability. 

The Constitution in Article 37(1) provides that “the State shall endeavour to secure and protect a social order founded on the ideals and principles of freedom, equality, justice, probity and accountability as enshrined in Chapter 5 of this Constitution; and in particular, the State shall direct its policy towards ensuring that every citizen has equality of rights, obligations and opportunities before the law. In Article 37(2) the law provides further that the “State shall enact appropriate laws to ensure the protection and promotion of all other basic human rights and freedoms, including the rights of the disabled, the aged, children and other vulnerable groups in development processes. 

The Children’s Act, 1998 (ACT 560) in Section 8, provides for the Right to Education and Well-being. In Section 8(1), it provides that “No person shall deprive a child access to education, immunization, adequate diet, clothing, shelter, medical attention or any other thing required for his development.” Section 2 of Act 560 provides for the Welfare Principle. Under that principle the law requires that “best interest of the child shall be paramount in any matter concerning a child.” In Section 2(2) the law provides that “the best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child.” How does Achimota School’s decision promote the best interest of these children? 

Religious Arguments 

Article 21 (1)(c) of the 1992 Constitution provides that “all persons shall have the right to freedom to practice any religion and to manifest such practice” In this case where the children keeping rasta was only as a result of their faith and beliefs in Rastafarianism as a religion, it will amount to a deniable of their right to religion if they are refused an opportunity for higher learning in Achimota School only on grounds of their hairstyle. 

As I argued earlier in an article on religious freedoms, Article 1(2) of the 1992 Constitution of Ghana further prohibits any directive or law that would limit rights or  discriminate, and stipulates that individuals are free to profess and practice their religion, and does not designate a state religion. Article 12(2) also provides that regardless of race, place of origin, political opinion, colour, religion, creed or gender, everyone shall be entitled to the fundamental human rights and freedoms. The African Charter on Human and Peoples’ Right (1981) in Article 8 provides for freedom of conscience, the profession and free practice of religion.

 Also, the Universal Declaration on Human Rights states that "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief." Also based on Article 18(1) of the International Covenant on Civil and Political Rights, "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice". Article 1(1) of the 1981 Declaration of the General Assembly states that "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice." 

From the above it is obvious that when a school rule intends to deny another of their right to freely express and manifest their religion that rule will be a violation of Ghana’s 1992 Constitution. 

Misapplication of Exceptions to Personal Liberty under Article 14(1)(e) of the Constitution 

Again, some based the decision of Achimota School on Article 14(1)(e) of the Constitution. For the avoidance of doubt, the Constitution provides in the said article that “every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law – for the purposes of the education or welfare of a person who has not attained the age of eighteen years. It must be noted that the context of personal liberties that is sought to be limited has to do with the confinement of a person.  

Each of the exceptions in Article 14(1)[(a),(b),(c),(d),(e)], has to do with confinement for the purpose of execution of sentence, contempt of Court, medical condition, education, and welfare of Under 18 persons, and prevention of crime generally. This provision does not limit the right to freedom of religion as those rights are personal to its holders, are matters of personal choice, belief, thought, and faith. Thus, it is erroneous to construe this provision as giving a carte blanche to introduce rules and regulations and practices that are injurious to people’s personal religion, and the right to manifest same. Even where people’s personal liberties are taken away by virtue of the above exceptions, they still have rights to their religion. That is why for instance in prison, there are different denominations of churches, mosques, and any other form of belief. It is therefore untenable to point to Article 14(1e) for the intolerance and discrimination on grounds of religion by these overzealous school administrators. 

Conclusion 

From the above and even without the benefit of the detailed reasoning for the judgment of Human Rights Court 1, it is obvious that there is no justification for Achimota School’s refusal to admit the young Rastafarian student. The decision was contrary to the welfare and rights of those children under international law and our municipal laws and also amounts to religious discrimination and needed the court’s remedy. It is very refreshing to know that our Courts are becoming bold in the enforcement of Fundamental Human Rights. The only way we can build a progressive society that is inclusive and tolerant and respects the rights of minority groups and religions is for our Courts to continue to protect those rights through judgments such as this. 

I also commend the lawyers and the judge for the swift manner in which the judgment was delivered to secure the rights and welfare of these Rastafarian students and many other Rastafarians who may be suffering from stigmatization, discrimination and lack of opportunities only because of how they look.    

The writer, Hon. Francis-Xavier Sosu is an economic policy analyst; private legal practitioner, human rights lawyer, Member of Parliament for Madina Constituency, Member of the Appointments Committee and Deputy Ranking Member of the Constitutional, Legal and Parliamentary Affairs Committee of Parliament. The writer can be contacted via: [email protected]  www.madinamp.com

Source: Francis-Xavier Sosu (Esq), human rights & public interest lawyer