Constitutional Law and Islamic Hijabs in Kenyan Schools: The Supreme Court’s Specious Constraint in Methodist Church in Kenya

Abstract

This article analyses the content and implications of the Supreme Court of Kenya’s judgment in Methodist Church in Kenya v Mohamed Fugicha and 3 Others. There, by majority decision, the Supreme Court overturned the Court of Appeal’s ruling that reasonable accommodation be made for the wearing of Islamic hijabs by female Muslim students in Kenyan schools. While Methodist Church in Kenya was expected to clarify the scope of the right to manifest religious belief in Kenya, the Supreme Court used specious logic based on legalism to avoid that issue. This article shows how the majority decision contradicts principles of enforcement of constitutional rights by focusing unduly on procedural technicalities, avoiding the core issue of permissible restrictions on religious expression and leaving key legal questions unresolved. It also highlights the well-reasoned dissenting opinion that addressed the core issue and which has crucial import for future development of religious freedom jurisprudence in Kenya