Dreadlocks may no longer prevent children from admission to Malawi’s schools – high court

7 June 2023 · Carmel Rickard

It has taken years to achieve, but the children of Malawi’s Rastafarian community may no longer be barred from going to state schools because of their dreadlocks. The new decision to this effect, written by high court judge Zione Ntaba, follows years of discrimination against children who have had to choose between obtaining education, or acting in a way that is contrary to their faith by cutting their hair. The judge found that a number of the children’s constitutional rights were infringed by a government policy – whether written or not – that learners would not be allowed to attend classes wearing dreadlocks.

Read judgment

The most important result of this high court decision is that Malawi’s government schools must, from now on, admit children who wear dreadlocks. In reaching this decision, the presiding judge, Zione Ntaba, stressed there were many ways in which the constitutional rights of the children previously barred by this government educational policy, had been violated.

She found the government’s policy not to allow children with dreadlocks to attend school unconstitutional, whether the policy was written or unwritten, and ordered that, by the end of June, an official circular had to be sent to all government schools instructing that Rastafarian children were no longer to be stopped from registering to attend those schools, or from enrolment, on account of their hair.

The judgment details the argument put up by the legal team acting for two Rasta children barred from school, a girl who had been unable to attend a primary school, and a boy kept out of a high school. These arguments were based on various constitutional rights of the applicants that their lawyers claimed were violated.

Nothing

But what did the respondents – the attorney general (AG), the minister of education and other education officials, as well as the heads of the two schools involved in barring the two children at the centre of this case – have to say to explain their position that the children had to be refused enrolment?

In a word: nothing. The judge noted that they submitted no response to the main judicial review, except to make many requests for adjournments to settle the matter or, on one occasion, to raise a preliminary objection with a request that the matter ‘should not proceed’.

Thus, the court had no substantial arguments before it from the respondents, except for an argument that the minister of education had never taken a decision on the matters involved in this case, and for a claim by the AG that there was no government policy that would deny any student ‘their right to education on the basis of their religion’.

Since there was no government policy on this matter, according to the AG, there was no decision or policy ‘that can be the subject of judicial review proceedings’, and the respondents thus urged that the proceedings be dismissed.

Imperialism

Strangely, one of the friends of the court, the human rights commission, wasn’t present in court, nor did it file any submissions in connection with the case. There appears to have been no explanation for this absence of involvement, or at least the judge didn’t mention it if there had been.

The second friend of the court, the Lost History Foundation (LHF), had a lot to say, however. It argued that the issues raised in the case involved human rights and that the ban on wearing dreadlocks was an affront to the rights of the children concerned.

According to the LHF, at the heart of the matter were ‘anti-African policies’ that should not be allowed to continue in Malawi. The ban on dreadlocks was the result of ‘cultural/religious imperialism’ under which the symbols of only certain religions, particularly Christianity, were accepted, ‘while symbols of Rastafari faith that is deeply rooted in African culture, are regarded as unacceptable’.

Further, since the start of Malawi’s multiparty democracy, dreadlocks had increased in popularity, among both men and women, with artists, sportspeople, academics and other professionals wearing them. Though these people may not be Rastafarians by faith, said LHF, by wearing dreadlocks they were rejecting ‘the colonial verdict’ that ‘African hair is inferior’, and they also indicated that they were at peace with their ‘African hair’.

Celebrate

The judgment deals in detail with the negative impact of the government’s policy – whether that policy is written or not – that children wearing dreadlocks would not be admitted to school. This bar is deduced from a requirement that ‘all students in government schools [must] have short hair which is combed.’ The judgment considers a wide range of authorities from other jurisdictions, from continental sources as well as international covenants, in reaching the conclusion that the rule is unconstitutional.

One of the most surprising, and exciting, sections of the judgment comes when Ntaba finds that codes of conduct for schools and national policies on education should ‘celebrate diversity and be conscious of their potential to exclude, particularly in relation to hair, but also [to] be more comprehensively inclusive.’

It’s a position for which she finds support in the Education Act which says education must be promoted for all in Malawi, ‘irrespective of race, ethnicity, gender, religion, disability and any other discriminatory characteristics.’ Further, the education minister must carry out his or her functions using guiding principles that include, among others, ‘equality, equity, liberalisation’ and bearing in mind that students ‘are to be educated in accordance with the wishes of their parents.’

Given all the authority that education should be offered in an inclusive way, it shouldn’t have taken the courts to intervene against discriminatory practices since these ‘were outlawed in the first place,’ she wrote.

Dodgy

The judge also made some comments that should be closely read by certain individuals – and that should cause them to feel ashamed.

She criticised the AG’s office, not for the first time, for the ‘abhorrent’ way it had handled the matter. She said she was highlighting the court’s concerns about the AG’s office, ‘because in this particular case, the court noted that the dodgy manner in which this matter was defended amounted to the AG defending an illegality.’

The AG was duty bound ‘not to defend and enforce constitutionally objectionable policies and conduct [like that displayed by the respondents],’ she added.

That disapproval was again seen, at the end of the decision, when the court ordered costs in favour of the applicants. The judge said such a costs order was rare in judicial review cases, but that the way the matter had been handled by the AG warranted such an order. It was ‘critical’ that the AG’s office be reminded that its behaviour should not ‘undermine the rule of law’.

Inexcusable

There were also some tough words for the head of the junior school where one of the children in the matter had tried to enroll. Though the district education manager said the girl had a right to be enrolled, the school head still refused to permit it. This attitude persisted even after an urgent interim interdict, last year, ordering that the child be admitted pending the outcome of the main case.

The court’s description of what had happened after the post-interdict admission sounds like persecution, with life being made extremely difficult for the girl, behaviour by the school authorities that the court described as ‘appalling’ and ‘inexcusable’.

That behaviour by the school head led to the final remarks of the judgment, with Ntaba saying the conduct of the head ‘can only be described as unconscionable’. The head is a public servant, reminded the judge, and as such was duty bound to obey the law. Referring to the interim order, the judge said the school head’s conduct in this case ‘where there were court orders directed to them for compliance, was tantamount to contempt.’

This behaviour was ‘conduct liable to litigation’ if the applicants wished to take such steps, the judge cautioned, adding, ‘This court issues a warning to [the school head] that they are not above the law and that their deplorable conduct should not be repeated.’

Carmel Rickard

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