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Why Supreme Court didn’t ban hijab

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By SEKOU OWINO
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On January 23, 2019, the Supreme Court of Kenya, by a majority decision, delivered its judgment on a case pitting the Methodist Church as sponsor of a school and three other persons.

No one could have foreseen the kind of recriminations that the decision has attracted from many Kenyans.

However, the Judges of the Supreme Court appear to have seen that the essence of the decision could be misunderstood and led to the level of obloquy seen and heard since that decision was handed down. They were also clear that the judgment would not be the last on the matter.

In the words of the four judges in the majority:

“We recognise that the issue as contained in the impugned cross petition is an important national issue, that will provide a jurisprudential moment for this Court to pronounce itself upon in the future. … In view of this, it is our recommendation that should any party wish to pursue this issue, they ought to consider instituting the matter formally at the High Court.”

If only Kenyans were keen enough to read this judgment, then we perhaps would have avoided the premature recriminations and blame upon the court that arises from a lack of understanding of the judgment and secondly just going with the season — blame the Judiciary for everything.

The case arose from differences regarding the issue of whether female students of Islamic faith could be allowed to wear the head covering which female Muslims are required to wear in public, also known as the hijab.

The Church was the sponsor of Kiwanjani Mixed Secondary School in Isiolo County, which had a student population of diverse religious backgrounds.

The school has a uniforms policy for to which all students subscribe on admission. Sometime in June, 2014, a request was made by the Deputy Governor of Isiolo County for the school to consider permitting female students of the Islamic faith to wear the hijab and white trousers in addition to the prescribed uniform.

This request was followed by an incident in which anonymous persons supplied hijabs and trousers for the girls in the school. The school administration resisted this attempted action which led to protests by the students of Islamic faith to the local education offices seeking approval for the hijab.

Shortly thereafter, the County Director of Education directed the School’s Management and the Parents’ Teachers Association to meet and discuss the issue with a view to an amicable resolution.

A majority of 18 out of the 22 who attended the meeting voted for the retention of the school uniform policy — that is to reject the request for hijab.

In disregard of the result of this vote, the county education boss directed the school to permit the Muslim girls to wear the hijab and trousers. The director also ordered the school’s principal to be transferred to another school.

The church filed a petition in court against the Teachers Service Commission, the said director and the Isiolo sub-county education officer.

After the petition was filed against the above three respondents, Mr Mohamed Fugicha, a parent in the school, joined the suit as an interested party. In law, an interested party is a person who was not originally a party to the suit either as a claimant or defendant, but who has interest or some rights at stake in the outcome of that case.

In that petition, the church sought orders that the director’s decision to allow Muslim students to wear the Hijab was discriminatory and unconstitutional and also for an order to prohibit the said director from interfering with the church’s administration of the school in its capacity as sponsor as well as other reliefs.

The essence of the case was whether the county director’s order could apply over the church’s uniforms policy and whether it was constitutional.

It is after the case was filed that Mr Mohamed Fugicha, the father of three girls in that school, applied to be joined as an interested party.

He was allowed to join the case. He filed an affidavit to support his interest. An affidavit is a written statement signed by a person under oath for use as evidence in court. In that affidavit, the parent of the girls said “I am also cross-petitioning that Muslim students be allowed to wear a limited form of the hijab as a manifestation, practice and observance of their religion.

The words “cross-petition” in that affidavit would form the peg on which this case would turn at the Supreme Court.

At the High Court, the church succeeded and the judge ordered that the county director’s decision to allow the wearing of the hijab in the school was discriminatory, unconstitutional and contrary to the school’s regulations.

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The judge also found that words in the parent’s affidavit regarding the cross-petition was defective as it did not comply with the rules as to how a cross-petition should be filed.

The parent appealed to the Court of Appeal. He said that the High Court’s decision to dismiss his cross-petition because of requirement of procedure was against the Constitution which requires that justice be applied without undue regard to procedural technicalities.

The Appeal Court decided that a proper reading of the affidavit did not warrant the striking of the cross-petition despite the procedural shortcoming.

It then set aside the orders of the High Court and substituted them with its orders which allowed the cross-petition.

It found that to the extent that the school’s uniform policy made it impossible for the Muslim girls to wear the hijab and pursue their right to education, it was reverse discrimination against the girls.

The effect of this therefore was that the school would be compelled to permit the wearing of the hijab.

Being aggrieved by this decision of the Court of Appeal, the Church appealed to the Supreme Court.

One of its grounds of appeal was that the Appeal Court had made a mistake by considering the contents of the affidavit with regard to the cross-petition despite the fact that it was not fully compliant with the regulations on how petitions should be drawn and presented in court.

The main issue that the Supreme Court directed its attention at was whether the Court of Appeal was right to hold that the matters raised in the affidavit as a cross-petition could still be considered even though the procedure had not been strictly adhered to.

The Supreme Court was divided on this issue. Four of the five judges who heard the appeal thought that the non-compliance with the regulations on how to present a cross-petition in court was fatal and the Court of Appeal had erred by sidestepping the issue of procedure.

One of the reasons for the majority decision in the Supreme Court was the technical legal issue that an interested party may not raise a new issue apart from those already raised by the petitioner.

Though there were other grounds of appeal, the Supreme Court did not find it necessary to go into them having decided that the procedural question was fatal to the case.

The Supreme Court majority judges then reversed the decision of the Court of Appeal.

The court directed in its final orders that the school’s management should immediately consult stakeholders to initiate a process for amendment of the school rues to accommodate students whose religious affiliation require them to wear particular clothing in addition to the school uniform.

This, in itself, is an indication that the court appreciated the concerns of the students and ordered that the regulations on uniforms be reviewed.

At the very least, it puts the lie to the claims that the court simply engaged in evangelistic jurisprudence and left the concerns of the students with regard to the uniform at the altar of a technical procedure.

The Supreme Court also ordered that the judgment be served upon the Cabinet Secretary for Education to formulate rules and regulations for the better protection of fundamental rights and freedoms from discrimination for all pupils in Kenya’s education system.

The overall effect of the decision is that the Supreme Court has sent the authorities of the school and the cabinet secretary to engage on consultations to find ways of redress around this issue.

What is rarely said about this case was that there was dissent: Prof Justice Ojwang’ thought that the procedure should not have been let to stand in the way of the substantive issues in that case. He agreed with the Court of Appeal in saying as follows: “It is my standpoint that the scheme of jurisprudence outlined by the Appellate Court, is appositely pragmatic and rational and well reflects the desirable judicial stand.

It would, therefore, be incorrect to state that the Supreme Court has decided that hijabs cannot be worn in a school sponsored by a church.

Mr Owino is Head of Legal Affairs at Nation Media Group.



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Sordid tale of the bank ‘that would bribe God’

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Bank of Credit and Commerce International. August 1991. [File, Standard]

“This bank would bribe God.” These words of a former employee of the disgraced Bank of Credit and Commerce International (BCCI) sum up one of the most rotten global financial institutions.
BCCI pitched itself as a top bank for the Third World, but its spectacular collapse would reveal a web of transnational corruption and a playground for dictators, drug lords and terrorists.
It was one of the largest banks cutting across 69 countries and its aftermath would cause despair to innocent depositors, including Kenyans.
BCCI, which had $20 billion (Sh2.1 trillion in today’s exchange rate) assets globally, was revealed to have lost more than its entire capital.
The bank was founded in 1972 by the crafty Pakistani banker Agha Hasan Abedi.
He was loved in his homeland for his charitable acts but would go on to break every rule known to God and man.
In 1991, the Bank of England (BoE) froze its assets, citing large-scale fraud running for several years. This would see the bank cease operations in multiple countries. The Luxembourg-based BCCI was 77 per cent owned by the Gulf Emirate of Abu Dhabi.  
BoE investigations had unearthed laundering of drugs money, terrorism financing and the bank boasted of having high-profile customers such as Panama’s former strongman Manual Noriega as customers.
The Standard, quoting “highly placed” sources reported that Abu Dhabi ruler Sheikh Zayed Sultan would act as guarantor to protect the savings of Kenyan depositors.
The bank had five branches countrywide and panic had gripped depositors on the state of their money.
Central Bank of Kenya (CBK) would then move to appoint a manager to oversee the operations of the BCCI operations in Kenya.
It sent statements assuring depositors that their money was safe.
The Standard reported that the Sheikh would be approaching the Kenyan and other regional subsidiaries of the bank to urge them to maintain operations and assure them of his personal support.
It was said that contact between CBK and Abu Dhabi was “likely.”
This came as the British Ambassador to the UAE Graham Burton implored the gulf state to help compensate Britons, and the Indian government also took similar steps.
The collapse of BCCI was, however, not expect to badly hit the Kenyan banking system. This was during the sleazy 1990s when Kenya’s banking system was badly tested. It was the era of high graft and “political banks,” where the institutions fraudulently lent to firms belonging or connected to politicians, who were sometimes also shareholders.
And even though the impact was expected to be minimal, it was projected that a significant number of depositors would transfer funds from Asian and Arab banks to other local institutions.
“Confidence in Arab banking has taken a serious knock,” the “highly placed” source told The Standard.
BCCI didn’t go down without a fight. It accused the British government of a conspiracy to bring down the Pakistani-run bank.  The Sheikh was said to be furious and would later engage in a protracted legal battle with the British.
“It looks to us like a Western plot to eliminate a successful Muslim-run Third World Bank. We know that it often acted unethically. But that is no excuse for putting it out of business, especially as the Sultan of Abu Dhabi had agreed to a restructuring plan,” said a spokesperson for British Asians.
A CBK statement signed by then-Deputy Governor Wanjohi Murithi said it was keenly monitoring affairs of the mother bank and would go to lengths to protect Kenyan depositors.
“In this respect, the CBK has sought and obtained the assurance of the branch’s management that the interests of depositors are not put at risk by the difficulties facing the parent company and that the bank will meet any withdrawal instructions by depositors in the normal course of business,” said Mr Murithi.
CBK added that it had maintained surveillance of the local branch and was satisfied with its solvency and liquidity.
This was meant to stop Kenyans from making panic withdrawals.
For instance, armed policemen would be deployed at the bank’s Nairobi branch on Koinange Street after the bank had announced it would shut its Kenyan operations.
In Britain, thousands of businesses owned by British Asians were on the verge of financial ruin following the closure of BCCI.
Their firms held almost half of the 120,000 bank accounts registered with BCCI in Britain. 
The African Development Bank was also not spared from this mess, with the bulk of its funds deposited and BCCI and stood to lose every coin.
Criminal culture
In Britain, local authorities from Scotland to the Channel Islands are said to have lost over £100 million (Sh15.2 billion in today’s exchange rate).
The biggest puzzle remained how BCCI was allowed by BoE and other monetary regulation authorities globally to reach such levels of fraudulence.
This was despite the bank being under tight watch owing to the conviction of some of its executives on narcotics laundering charges in the US.
Coast politician, the late Shariff Nassir, would claim that five primary schools in Mombasa lost nearly Sh1 million and appealed to then Education Minister George Saitoti to help recover the savings. Then BoE Governor Robin Leigh-Pemberton condemned it as so deeply immersed in fraud that rescue or recovery – at least in Britain – was out of the question.
“The culture of the bank is criminal,” he said. The bank was revealed to have targeted the Third World and had created several “institutional devices” to promote its operations in developing countries.
These included the Third World Foundation for Social and Economic Studies, a British-registered charity.
“It allowed it to cultivate high-level contacts among international statesmen,” reported The Observer, a British newspaper.
BCCI also arranged an annual Third World lecture and a Third World prize endowment fund of about $10 million (Sh1 billion in today’s exchange rate).
Winners of the annual prize had included Nelson Mandela (1985), sir Bob Geldof (1986) and Archbishop Desmond Tutu (1989).
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Monitor water pumps remotely via your phone

Tracking and monitoring motor vehicles is not new to Kenyans. Competition to install affordable tracking devices is fierce but essential for fleet managers who receive reports online and track vehicles from the comfort of their desk.

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Agricultural Development Corporation Chief Accountant Gerald Karuga on the Spot Over Fraud –

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Gerald Karuga, the acting chief accountant at the Agricultural Development Corporation (ADC), is on the spot over fraud in land dealings.

ADC was established in 1965 through an Act of Parliament Cap 346 to facilitate the land transfer programme from European settlers to locals after Kenya gained independence.

Karuga is under fire for allegedly aiding a former powerful permanent secretary in the KANU era Benjamin Kipkulei to deprive ADC beneficiaries of their land in Naivasha.

Kahawa Tungu understands that the aggrieved parties continue to protest the injustice and are now asking the Ethics and Anti-corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI) to probe Karuga.

A source who spoke to Weekly Citizen publication revealed that Managing Director Mohammed Dulle is also involved in the mess at ADC.

Read: Ministry of Agriculture Apologizes After Sending Out Tweets Portraying the President in bad light

Dulle is accused of sidelining a section of staffers in the parastatal.

The sources at ADC intimated that Karuga has been placed strategically at ADC to safeguard interests of many people who acquired the corporations’ land as “donations” from former President Daniel Arap Moi.

Despite working at ADC for many years Karuga has never been transferred, a trend that has raised eyebrows.

“Karuga has worked here for more than 30 years and unlike other senior officers in other parastatals who are transferred after promotion or moved to different ministries, for him, he has stuck here for all these years and we highly suspect that he is aiding people who were dished out with big chunks of land belonging to the corporation in different parts of the country,” said the source.

In the case of Karuga safeguarding Kipkulei’s interests, workers at the parastatals and the victims who claim to have lost their land in Naivasha revealed that during the Moi regime some senior officials used dubious means to register people as beneficiaries of land without their knowledge and later on colluded with rogue land officials at the Ministry of Lands to acquire title deeds in their names instead of those of the benefactors.

Read Also: Galana Kulalu Irrigation Scheme To Undergo Viability Test Before Being Privatised

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“We have information that Karuga has benefitted much from Kipkulei through helping him and this can be proved by the fact that since the matter of the Naivasha land began, he has been seen changing and buying high-end vehicles that many people of his rank in government can’t afford to buy or maintain,” the source added.

“He is even building a big apartment for rent in Ruiru town.”

The wealthy officer is valued at over Sh1.5 billion in prime properties and real estate.

Last month, more than 100 squatters caused scenes in Naivasha after raiding a private firm owned by Kipkulei.

The squatters, who claimed to have lived on the land for more than 40 years, were protesting take over of the land by a private developer who had allegedly bought the land from the former PS.

They pulled down a three-kilometre fence that the private developed had erected.

The squatters claimed that the former PS had not informed them that he had sold the land and that the developer was spraying harmful chemicals on the grass affecting their livestock and homes built on a section of the land.

Read Also: DP Ruto Wants NCPB And Other Agricultural Bodies Merged For Efficiency

Naivasha Deputy County Commissioner Kisilu Mutua later issued a statement warning the squatters against encroaching on Kipkuleir’s land.

“They are illegally invading private land. We shall not allow the rule of the jungle to take root,” warned Mutua.

Meanwhile, a parliamentary committee recently demanded to know identities of 10 faceless people who grabbed 30,350 acres of land belonging to the parastatal, exposing the rot at the corporation.

ADC Chairman Nick Salat, who doubles up as the KANU party Secretary-General, denied knowledge of the individuals and has asked DCI to probe the matter.

Email your news TIPS to [email protected] or WhatsApp +254708677607. You can also find us on Telegram through www.t.me/kahawatungu

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William Ruto eyes Raila Odinga Nyanza backyard

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Deputy President William Ruto will next month take his ‘hustler nation’ campaigns to his main rival, ODM leader Raila Odinga’s Nyanza backyard, in an escalation of the 2022 General Election competition.

Acrimonious fall-out

Development agenda

Won’t bear fruit

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