On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.8 n.1 Pretoria 2008
Mtendeweka Owen Mhango
Lecturer in Law, University of the Witwatersrand, South Africa
This discussion deals with a unanimous decision by the Supreme Court of Zimbabwe, ruling that the expulsion of six year-old Farai Dzvova from the Ruvheneko Government Primary School because of his expression of his religious belief through wearing dreadlocks is a contravention of section 19 of the Constitution of Zimbabwe. This contribution argues that the judgment in Farai is progressive and should be welcomed. It further argues that the reasoning by Cheda J, demonstrating why Rastafari qualifies as a religion under section 19 of the Constitution of Zimbabwe, should be welcomed particularly as progressively realising and promoting religious rights in Zimbabwe, and that it adds to the growing progressive religious jurisprudence in Southern Africa. It is further noted that the decision will likely have the effect of reversing similar rules or regulations which prohibit Rastafari learners from attending public schools on account of their dreadlocks in Southern Africa. The contribution criticises previous decisions by the Zimbabwe Supreme Court and the South African Constitutional Court that recognised Rastafari as a religion without explaining why this was done.
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* BA (Morehead State, USA), LLM (Wayne State, USA), JD (Michigan State, USA); Mtendeweka.Mhango@wits.ac.za. I would like to thank Prof Marius Pieterse and Ms Ntombizozuko Dyani for their useful comments and recommendations on an earlier draft.
1 Judgment SC 26/07 (2007) ZNSC 26, http://www.saflii.org (accessed 31 January 2008). See also L Nkatazo 'Supreme Court lifts ban on dreadlocks' (October 2007) http://www.NewZimbabwe.com (accessed 31 January 2008). [ Links ]
2 Sec 19(1) of the Constitution of Zimbabwe provides that '[e]xcept with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of conscience, that is to say freedom to change his religion or belief, and freedom, whether alone or in community with others, and whether in public or private, to manifest and propagate his religion or belief through worship, teaching, practice and observance'.
3Antonie v Governing Body, Settlers High School & Others 2002 4 SA 738 TPD (reversing a decision of a school governing body to suspend a Rastafarian student on account of his dreadlocks); In re Chikweche 1995 4 BCLR 533 (ZS) (reversing the decision of the High Court to refuse the admission of a Rastafari attorney as a practitioner into the Zimbabwe Law Society); and see Pillay v MEC for Education, KwaZulu-Natal CCT 51/06 (2007) (unreported) (where Ms Navaneethum Pillay successfully challenged, on behalf of her daughter Sunali Pillay, the decision of Durban Girls High School to prevent Sunali from wearing a nose stud to school. She argued that the school's refusal to permit Sunali to wear the nose stud at the school was an act of unfair discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Chief Justice Langa, who wrote the majority judgment of the South African Constitutional Court, agreed and ruled that the school's actions amounted to unfair discrimination); see also Pillay v MEC for Education, KwaZulu-Natal & Others 2006 6 SA 363 (Eqc); 2006 10 BCLR 1237 (NPD) (where the High Court found in favour of Ms Pillay, the applicant in the case).
4 MO Mhango 'The constitutional protection of minority religious rights in Malawi: The case of Rastafari students' (2008) 52 Journal of African Law 2 (discussing that in Malawi Rastafari students are prevented from attending public schools on account of their dreadlocks).
5 See King James Version, Numbers Chapter 6:1-6.
6 Ruvheneko Government Primary School, January 2005 School Rules for All Pupils, cited in Farai.
7 842 F2d 960 (7th Cir 1988).
8 510 NYS 273 (1986).
9 (1993) 1 CR 517 (CA).
10 1994 1 ZLR 49.
11 2000 4 SA 757 (CC).
12 2004 EWHC 1389.
13 The Supreme Court had previously endorsed this view in In re Chikweche (n 3 above, 538), where it held that 'the Supreme Court is not concerned with the validity of attraction of the Rastafari faith or beliefs but only their sincerity'; see also United States v Ballard 322 US 78 (1944) (explaining that the sincerity of one's belief was a proper subject for judicial scrutiny); D O'Brien & V Carter 'Chant down Babylon: Freedom of religion and the Rastafarian challenge to majoritarianism' (2002) 18 Journal of Law and Religion 219 235-238 (discussing the fact that courts in the United States and, in some cases the Caribbean, have been known to screen claims by reference both to the sincerity of the claimant's religious beliefs and to the centrality of the practice for which protection is claimed); MD Evans Religious liberty and international law in Europe (1997) 307 (discussing the fact that the jurisprudence of the European Commission on Human Rights focuses upon the degree to which the practice or activity under consideration represents a necessary expression of a religion or belief); Pillay case (n 3 above) para 52 (holding that, in order to determine if a practice or belief qualifies as religious, a court should ask only whether the claimant professes a sincere belief); see, however, Prince v President, Cape Law Society & Others 2002 2 SA 794 (CC) para 43 (where the Constitutional Court previously decided against inquiring into the sincerity of a claimant's belief and urged that believers should not be put to the proof of their beliefs or faith).
14 Cap 25:04.
15 As above.
16 Regulation 1998 SI 362.
17 As above.
18 As above.
19 Similarly, the High Court in South Africa overturned a decision of a school governing body that keeping dreadlocks constituted serious misconduct. See Antonie (n 3 above).
20 See Prince (n 13 above); In re Chikweche (n 3 above).
21 See In re Chikweche (n 3 above) (accepting that Rastafari is a religion based on a review of US case law); Prince (n 14 above) (holding that Rastafari is a religion that is protected by the Constitution).
22 In re Chikweche (n 3 above) 541.
23 Prince (n 13 above) 804 para 15.
24 Pillay (n 3 above).
25 M Mhango & N Dyani 'The protection of religious freedom under the Promotion of Equality and Prevention of Unfair Discrimination Act: Pillay v MEC for Education, KwaZulu-Natal' South African Journal on Human Rights (forthcoming 2008).
26 E Chemerinsky Constitutional law (2001) 1240.
27 Chemerinsky (n 26 above) 1241.
28 Universal Military Selective Service Act of 1967, 50 USCA App § 456(j).
29 380 US 163 (1965).
30 398 US 333 (1970).
31 Chemerinsky (n 26 above) 1242.
32 Welsh (n 30 above) 340.
33 Chemerinsky (n 26 above) 1243.
34 However, see Mhango (n 4 above) (where the author, having analysed the decision in In re Chikweche and the minority opinion in Prince, argues that Zimbabwe and South Africa are progressive in their interpretation of the constitutional right to the freedom of religion).
35 See, eg, National Coalition of Gay and Lesbian Equality v Minister of Home Affairs 2000 2 SA 1 (CC) paras 33-57 (discussing that a court may address an issue not raised by the parties if it is in the interest of justice and development of common law). See also I Currie et al The Bill of Rights handbook (2005) 94-95 (discussing justiciability doctrines).
36 Currie et al (n 35 above) 80-82 (discussing the justiciability doctrines).
37 Ferreira v Levin NO 1996 1 SA 984 (CC); Pillay (n 3 above; (where the court took a broad approach on the issue of mootness and ruled that, even if the matter was moot in the sense that the student on whose behalf the case had been brought was no longer a student at the respondent school, it was in the interest of justice to hear the matter because any order which it may make will have some practical effect whether on the parties or others). See also Currie et al (n 35 above) 80-82.
38 Ferreira v Levin NO (n 37 above) para 165, citing R v McDonough (1989) 40 CRR 151 155.
39 Chemerinsky (n 26 above) 72; United States Parole Commission v Geraghty, 445 US 388 400; See also E Lee 'Deconstitutionalising justiciability: The example of mootness' (1992) 105 Harvard Law Review 605; Moore v Ogilvie 394 US 814 (1969); Roe v Wade 410 US 113 (1973); and Defunis v Odegaard 416 US 312 (1974).
40 Chemerinsky (n 26 above) 1243.
41 See I Khumalo 'Cursed by evil muthi' Daily Sun (28 November 2007).
42 Animals Protection Act 71 of 1962.
43 Currie et al (n 35 above) 338.
44 In re Chikweche (n 3 above) 539.
45 The freedom of religion clause in the Zimbabwe Constitution is identical to the Jamaican constitutional provision found in sec 21, and the courts in both countries have defined religion and concluded that Rastafari is a religion. See United Nations, Economic and Social Council, ESC Conference, 24th session, UN Doc E/C.12/2000/ SR.75 (2000) (addressing the important relationship between racism and religion, and citing the Jamaican example of Rastafari. The question of racism arose in that context because of the religion's identification with His Majesty Emperor Haile Sellassie of Ethiopia, believed by Rastafari to be the reincarnated Christ. It noted that Jamaican courts have had to decide whether Rastafari was truly a religion and whether the prohibition of some of its sacraments, such as the smoking of cannabis, flouted the right to exercise one's religion. Like in Zimbabwe, the courts in Jamaica have ruled that Rastafari was indeed a religion, but that it did not necessarily follow that practices which disrupted public order were, of themselves, in conformity with rules relating to religious rights).
46 One other explanation of the Constitutional Court's reluctance to decide these matters is its commitment to the doctrine of avoidance which forms part of South African constitutional law. This doctrine holds that 'where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed'. See State v Mhlungu 1995 3 SA 867 (CC) para 59. This doctrine was affirmed in Zantsi v Council of State, Ciskei & Others 1995 4 SA 615 (CC) paras 2-8 (where Chaskalson J referred to the salutary rule which is followed in the United States never to anticipate a question of constitutional law in advance of the necessity of deciding it and never to formulate a rule of constitutional law broader than is required by the facts to which it is to be applied). See also Currie et al (n 35 above) 75-78 (discussing the reasons for observing the doctrine of avoidance arguing that courts should avoid making pronouncements on the meaning of the Constitution where it is not necessary to do so, so as to leave space for the legislature to reform the law in accordance to its own interpretation of the Constitution); I Currie 'Judicious avoidance' (1999) 15 South African Journal on Human Rights 138 (discussing political philosophical reasons for the doctrine of avoidance). In the United States, courts have applied a similar principle of avoidance in the adjudication of constitutional matters. See Abbott Laboratories v Gardner, 387 US 136, 148-149 (1967) (explaining that the basic rationale of the doctrine of ripeness is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalised and its effects felt in a concrete way by the challenging parties).
47 Pillay (n 3 above) paras 52-58 (concluding that since Sunali Pillay held a sincere belief that wearing a nose stud was part of her religion and culture, the practice was considered religious).
48 Pillay (n 3 above), citing Prince (n 13 above) para 42; Syndicat Northcrest v Amselem  2 SCR 551 (SCC) para 43; Ross v New Brunswick School District No 15  1 SCR 825 paras 70-71; Thomas v Review Board of the Indiana Employment Security Division 450 US 707 715-716 (1981); United States v Ballard 322 US 78, 86-87 (1944); and In re Chikweche (n 3 above).
49 P Lenta 'Religious liberty and cultural accommodation' (2005) 122 South African Law Journal 376.
50 In Malawi, the relevance of this question is probably not as a result of its constitutional religious clause, which is similar to South Africa's. Instead, it may arise from the absence of any judicial interpretations of sec 33 of the country's constitution.
51 The reference to Swaziland is because in 2000 it was reported that the King of Swaziland disowned several of his nephews for wearing dreadlocks and for subscribing to Rastafari beliefs and practices. See B Matsebula 'Rasta row shakes Swazi royals' 28 May 2002 BBC World Service http://news.bbc.co.uk/1/hi/world/africa/2012793.stm (accessed 25 December 2007); and see Mhango (n 4 above) (briefly discussing Rastafari beliefs, practices and doctrines).
52 n 13 above, 794.
53 Prince (n 13 above) 815 para 48.
54 Prince (n 13 above) 848 paras 147-149. See also Prince v South Africa Communication No 1474/2006, UN Human Rights Committee, views adopted on 31 October 2007, paras 5.5 & 7.5. Prince argues that, if exceptions to the prohibition of the use of cannabis could be made for medical and research purposes and effectively enforced by the state party, similar exceptions could also be made and effectively enforced on religious grounds with no additional burden on the state party; that the failure and unwillingness to exempt the religious use of cannabis from the prohibition of the law negates his freedom to manifest his religion guaranteed under art 18 of the International Covenant on Civil and Political Rights, and cannot be justified under art 18(3) of the same. Prince also argued that he is the victim of de facto discrimination because, unlike others, he has to choose between adherence to his religion and respect for the laws of the land.
55 See art 29 of the Universal Declaration of Human Rights, GA Res 217 A(III), UN Doc A/810 71 (1948).
56 Eg, sec 23(3) of the Constitution of Malawi, 1995, provides that '[c]hildren have the right to know, and to be raised by, their parents'; article 15(1) of the Constitution of Namibia, 1992, provides that '[c]hildren shall have the right to know and be cared for by their parents'; art 7(c) of the Constitution of Swaziland, 2005, provides that '[p]arliament shall enact laws necessary to ensure that parents undertake their natural right and obligation of care, maintenance and proper upbringing of their children'; art 27 of the Constitution of Rwanda, 2003, provides that '[b]oth parents have the right and duty to bring up their children'; art 30(1) of the Constitution of Uganda, 1995, provides that '[m]en and women of the age of eighteen years and above have the right to marry and to found a family'; art 16(1) of the Constitution of Tanzania, 1997, provides that '[e]very person is entitled to the privacy of his family and of his matrimonial life'; arts 43 and 46 of the Transitional Constitution of the Democratic Republic of Congo, 2003, provide that '[f]or parents the care and education to be given to children shall constitute a natural right; and the parents shall, by priority, have the right to choose the type of education to be given to their children'; and sec 28(b) of the South African Constitution provides that 'every child has the right ... to parental care'.
57 See arts 11, 19 and 20 of the African Charter on the Rights and Welfare of the Child, OAU Doc CAB LEG/24 9/49 (1990), entered into force 29 November 1999; and arts 5, 14 & 15 of the Convention on the Rights of the Child, GA Res 44/25, annex 44 UN GAOR Supp (No 49) 167, UN Doc A/44/49 (1989) entered into force 2 September 1990.
58 The US Supreme Court set a precedent for the use of social science research in defining and examining inequity in education. See Brown v Board of Education 347 US 497 (1954). See also Pillay (n 3 above) para 102 (rejecting the argument that allowing an exemption to wear a nose stud has a demonstrable effect on school discipline or the standard of education); and Farai (n 1 above) (holding that the issue of discipline in schools is not related to Farai's right to wear dreadlocks in school).
59 Lenta has correctly noted that liberal democracies recognise that the demand for uniformity of treatment must often give way to the demands of those who do not share mainstream attitudes and beliefs to be permitted to act in violation of civic norms; Lenta (n 49 above) 354.
60 See Mhango (n 4 above).
61 Secs 11(2)(a) & (b) Constitution of Malawi.
62 See Francis Kafantayeni v Attorney-General, Constitutional Case 12 of 2005 (unreported) (where the High Court, in relying on the case of Reyes v The Queen (2002) 2 AC 235, ruled that the mandatory death sentencing provision under the Malawi Penal Code was unconstitutional); and In the Matter of the Question of the Crossing the Floor by Members of the National Assembly (Presidential Reference Appeal 44 of 2006)  MWSC 1 (15 June 2007), http://www.saflii.org (accessed 12 December 2007) (where the Supreme Court of Appeal justified its reliance on foreign case law in upholding the country's anti-defection clause by explaining that many countries in the region with similar historical backgrounds and legal systems to Malawi have anti-defection clauses).
63 See J Makawa 'The rise and fall of the Federation of Rhodesia and Nyasaland' unpublished LLM thesis, Michigan State University, 1965; and JRT Wood The Welensky papers: The history of the Federation of Rhodesia and Nyasaland (1983).