Another controversy has erupted in the country following the writ of lawyer Shafic Osman to the Supreme Court with regard to the interpretation of the constitutional right to freedom of religion and non-discrimination.
Given that the matter is sub judice, this article will explore the legal rights that are likely to engage the court in its determination.
The main issue is whether a faith-based or church established educational institution may lawfully restrict Muslim students from practising their religion within the school premises.
This analysis considers the 1992 Constitution of Ghana, relevant international human rights treaties binding on Ghana, as well as relevant administrative and judicial precedents.
The court will determine whether restrictions on the practice of other religions at Wesley Girls’ is consistent with Ghana’s constitutional order as a democratic and secular state that guarantees freedom of religion, equality and the right to education.
Provision
We begin with the constitutional provisions: Article 17 (1) & (2) — equality and non-discrimination.
All persons shall be equal before the law.
All persons shall not be discriminated against on grounds of gender, religion, ethnic origin, social or economic status; Article 21(1) (c) — freedom of thought, conscience and religion.
Every person shall have the right to freedom of thought, conscience and belief, including academic freedom and freedom of religion; Article 25 (1) (a) — right to education.
All persons shall have the right to equal educational opportunities and facilities; Article 37 (1) & (2) — the state shall ensure that institutions promote integration, tolerance and national unity among different religions and ethnic groups; the Preamble to the Constitution — Preamble commits Ghana to freedom, justice, probity and accountability under the rule of law and the protection of fundamental human rights.
Principles
Under article 40 (b) of the Constitution, Ghana adheres to the principles of international law, and since Ghana has ratified the following international treaties — Universal Declaration of Human Rights — Article 18, International Covenant on Civil and Political Rights - Article 18, the African Charter on Human and Peoples’ Rights — Article 8, the Convention on the Rights of the Child — Article 14, these treaties will feature in the court’s determination.
These treaties guarantee freedom to manifest one’s religion in practice and observance, subjectonly to limitations necessary to protect public order or the fundamental rights of others.
The likely issues for determination are as follows:
• Whether Wesley Girls’ School, a faith-based school, may lawfully restrict Muslim students from practising their religion
• Whether such a prohibition violates Muslim students’ rights to freedom of religion, equality and education.
• The extent to which the religious autonomy of Wesley Girls’ may be lawfully exercised in a democratic, plural and secular state.
The crux will be the determination of whether Wesley Girls’ School’s restrictions on Muslim students offend the provisions of the constitutional and international treaties already referred to above.
If they do, are the restrictions permissible limitations which are prescribed by law and necessary in a democratic society for legitimate reasons, such as public safety, order and not merely in conformity to the school’s Christian tradition?
In addition, the court will take into consideration the High Court’s decision on the Tyrone Marhguy vs Achimota School case (wearing of dreadlocks in school).
Does the wearing of the hijab, a religious manifestation of Muslims, restrict freedom of religion and education and, above all, is the limitation necessary, proportionate and constitutional?
Is the practice harmful in a public order sense? Also, are there available alternatives that are proportionate to the perceived harm?
Questions
All these questions must be answered, taking into consideration the general principle that guaranteed constitutional rights always trump other considerations of culture, tradition and heritage.
In a way, the decision of the Supreme Court will help to resolve other contentious cases where tradition, culture and belief systems clash with constitutionally guaranteed rights — snippets of the anti-LGBTQ+ bill on my mind.
Will adherence and promotion of so-called cultural and family values trump constitutional provisions of non-discrimination on gender grounds and privacy?
These are interesting times, and it is hoped that the court will approach its task with the sole aim of reiterating the sanctity of the Constitution as the mother of all acts of Parliament, rules and regulations that govern us as a democratic state.
We cannot, on one hand, champion constitutional rights, like voting rights, the right to participate in national politics, freedom of speech, freedom of personal liberty, etc. AND, on the other hand, entertain rules which infringe and violate the all-important constitutional fiat: non-discrimination.
The writer is a lawyer.
E-mail: georgebshaw1@gmail.com
