AMOS MAKANI & OTHERS
ARUNDEL SCHOOL & OTHERS
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,
GWAUNZA JCC, GARWE JCC, GOWORA JCC,
HLATSHWAYO JCC, PATEL JCC & GUVAVA JCC
HARARE, JULY 29, 2015 & JUNE 29, 2016
T R.. Mafukidze and D.Chimbgwa, for the applicants
A. P. de Bourbon SC, for the first and second respondents
PATEL JCC: The four applicants are the fathers and guardians of their respective minor daughters, all four of whom are pupils at Arundel School, a private girls’ school situated in Harare. The first and second respondents are the Trustees and Headmistress of the School. The third respondent is the Minister of Primary and Secondary Education, cited in his official capacity, and the fourth respondent is the Attorney-General, also cited in his official capacity.
The applicants seek various declarators and consequential relief in respect of the alleged violation of their daughters’ constitutional rights. They also seek an order for costs against the first and second respondents on a legal practitioner and client scale. The first and second respondents are opposed to the application and aver that it be dismissed with costs. The third and fourth respondents have indicated that they will abide by the Court’s decision.
Before 2015 the long-established practice at the School was to commence the day with prayers in the School chapel. Pupils were free to attend if they so wished and a separate room was set aside for those of other faiths who did not attend chapel on religious grounds. This inter-denominational position was confirmed by the School’s website on the internet.
The applicants and their daughters are all practising Jehovah’s Witnesses. Their beliefs are not similar to those of other Christian denominations. Upon application to the School for the admission of their daughters, each of the applicants completed a standard application form in which they indicated that they were Jehovah’s Witnesses. Their daughters were duly accepted for admission.
At the beginning of 2015, a new Headmistress was appointed to run the School. She sought to introduce compulsory chapel attendance for all pupils at the School in order to reinforce its collegiality. The applicants wrote several letters to the Headmistress as well as the School’s lawyers to register their complaints. On 17 March 2015, after taking legal advice, the Headmistress wrote to the applicants insisting that their daughters were required to attend chapel and that, if they failed to comply, they would be deemed to have been voluntarily withdrawn and removed from the School. On 19 March 2015, after the girls refused to attend chapel and surrendered their books, they were told to go home. The applicants then filed an urgent application to the High Court in Case No. 2717/15. Following a consent order granted on 27 March 2015, the girls were allowed to continue to attend the School, without being compelled to attend chapel, pending the determination of the present application.
The applicants aver that freedom of conscience includes the right to practice and propagate one’s religion as well as the right not to be compelled to subscribe to any religion. In this respect, the actions of the Headmistress violate their daughters’ freedom of conscience and their right to protection against discrimination on the ground of religion. Moreover, although any person is entitled to establish and maintain an independent educational institution, he or she cannot discriminate in the manner in which the institution is administered. Thus, the conduct of the Headmistress also violates their daughters’ right to education. The applicants accordingly seek declarators that the respondents’ actions are in violation of their daughters’ freedom of conscience and religion, right to protection against discrimination and right to education. They also seek an order precluding the respondents from refusing the admission of their daughters to Arundel School on the basis of their religious beliefs and failure to attend chapel.
On behalf of the School, the Headmistress relies upon the standard enrolment form signed by the applicants upon the admission of their daughters into the School. She avers that this agreement, which constitutes a binding contract, expressly provides that any latitude from chapel attendance is at her sole discretion and that her decision in that regard is final and binding. The agreement also provides that any changes to the School rules must be observed and followed by the signatory parents and their daughters. One of her functions is to articulate the values of the School and morning chapel is the only time when pupils come together in an environment most conducive for the values and ethos of the School to be properly impacted upon them. It is not compulsory for any pupil to participate in any activity such as singing or praying or to abandon her beliefs during chapel. What is compulsory is that all pupils attend and evince respectful behaviour in chapel. The applicants were not forced to enrol their daughters at the School. They should respect the rights of the School’s founding members who established an educational institution that conforms with and pursues their own values and beliefs. The School authority is constitutionally entitled to establish and maintain the School and impose reasonable rules to be followed at the School. It should not be precluded from pursuing its religious beliefs and insisting on anyone who joins the School to respect its views. Such policy is reasonable and those who agree to join the School despite their religious views must be taken to have necessarily waived their own constitutional rights.