In defense of the seemingly defenseless; Tyrone Marghuy and matters arising

Recent events that have characterized the Ghanaian media space must have caught your attention. I’m sure you have shared an opinion on the subject. At the outset, let me indicate that I am not a Rastafarian and do not profess to speak on behalf of the religion. I also do not hold the view that any right is absolute.

I however find the general commentary, reductionism and dismissal of the tenets of the Rastafarian belief as insulting and the same should not be countenanced in our attempt to safeguard the religious freedoms of all and not some. Everyone must be concerned with upholding constitutional freedoms. Allowing them to be chipped away in the name of ‘indiscipline’ is the beginning of tyranny.

Religion has been the justification for some of the worst atrocities ever perpetrated on society. Indeed, several millions of lives have been lost in the name of religious wars waged on behalf of a ‘higher power’. However, Societies recognize a need to respect people’s choices in respect of who/what they choose to worship and how they choose to worship.

It is a notorious fact that in the Christian religion alone, several sects exist that do not even share similar views on issues such as salvation and what happens to post our death. Society does not chastise these beliefs even though they differ and it's for good reason.

a.The Recognition of Rastafarianism as a Religion.

A democracy unlike a theocracy has at its core the idea that plurality of views must be tolerated in respect of religion no matter how bizarre. The framers of the 1992 Constitution appreciating this reality elucidated in Article 21(1)(c) that all persons shall have the freedom to practice any religion and to manifest such practice. The constitution captures this freedom as general fundamental freedom.

Rastafari, a religious and political movement, begun in Jamaica in the 1930s and has been adopted by many groups around the globe, that combines Protestant Christianity, mysticism, and a pan-African political consciousness. It has long been recognized across the world as a religion and so its Ghanaian believers are entitled to constitutional freedoms guaranteed by the 1992 Republican Constitution.

Our Constitution further encourages the plurality of religious ideologies in Article 56 where it bars the legislature from attempting to impose on the people of Ghana a common program or set of objectives of a religious or political nature. Simply put, People must be allowed to believe in what they want and the Constitution guarantees their right to manifest the same to the extent that it doesn’t infringe on the enjoyment of the rights of other nationals.

The real risk if we were to allow any credence to the view that Rastafari is not religion ‘properly so-called, is that smaller religions can always be declared not ‘good’ enough and thus undeserving of ‘wholesale recognition’.

This line of thinking smacks of a distasteful attempt to undermine the freedom of thought and of the religion of the many Rastafarians resident in Ghana. I am at pains to understand why Christianity or Islam is deserving of ‘wholesale’ recognition where Christians can wear their rosary anywhere without fault but a Rastafarian who manifests his religion in the form of having dreadlocks is underserving of the same freedoms. This form of discrimination in the manifestation of religion is not acceptable.

The esteemed Adinyira JSC in the more recent decision of James Kwabena Bomfeh Jnr v. Attorney General provided further clarity on religious freedoms thus; “by the letter and spirit of these provisions religious pluralism and diversity which are features of a secular state are clearly recognized and thereby discrimination on any ground is prohibited”.

b.Justifiable Discrimination?

Admittedly, the law allows for some form of discrimination to the extent that it is meted out equally to persons equally placed. The learned jurist Dr Date-Bah JSC, provided the most conclusive interpretation on Article 17 in the oft celebrated case of Nartey v Gati.

The question we must avert our minds to is if indeed the requirement imposed on Tyrone Marhguyis fair in light of Article 17 and meets the test as provided for by the Nartey case referred to supra. As has already been outlined above, the manifestation of a religion in its truest form is only limited to the extent that it infringes on other’s rights or affects the general sanctity of the Ghanaian state.

Would Achimota school ask Kwadwo Boakye to take off his rosary as he seeks admission to the school and appears in the headmistress’s office while wearing the rosary? Will Amina Ibrahim be directed to remove her Hijab because she is not allowed to express her religious beliefs in a school? The obvious answer to these questions is no.

Senior High Schools do not abhor religious practices or their manifestation. In fact, several schools compel students to attend Church Services, Morning Devotions, Dormitory Prayers but to name a few. So why does it appear right to you that as, for example, a Christian, you were allowed to do all that was required in the pursuit of your salvation but another person believing in a different idea does not have the same liberties? It is apparent that the discrimination meted out to Mr Marghuywas not done in a like manner with his colleagues similarly placed and, on its face, clearly offends Article 17.

In sum on this point, discrimination is permissible-true. However, it is only permissible in this instance if all students for whatever reason were expressly forbidden from manifesting their religion or the practice of his religion would adversely affect other students and the School.

c.Minor’s rights and the restrictions thereof

The skewed interpretation of Article 14(1)(e) being bandied about by the Authorities, Old Students and sections of the Ghanaian populace is most regrettable. The cardinal rule of construction is that the whole statute should be drawn upon as necessary, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes.

The decision to isolate the specific article referred to above and interpret it in a manner that suits the argument of placing restrictions on the enjoyment of all rights for the purposes of educating a minor cannot be tenable. Indeed, Article 14(1) should be read as a whole. The whole of Article 14 when read together will demonstrate that it relates to the restriction of a person’s movement in certain instances and not his general personal liberties per se.

The decisions in the following cases illustrate the scope of Article 14; Sabbah v Attorney General, Kpebu v Attorney General. Further, Article 14(1)(a) for instance is to the effect that a person’s liberties may be curtailed if it is in the execution of a sentence. The other provisions related to the deprivation of a person’s liberties in the case of a person suffering from a contagious disease or the preventing of unlawful entry into Ghana.

Careful cleaning of the entirety of Article 14 would demonstrate to all and sundry that the provision cannot form a sufficient enough basis for Achimota’s actions. In any case, assuming without admitting that Article 14 was relevant to the present discourse, the Supreme Court in the Kpebu v Attorney General held the view that the restriction of a person’s liberty under Article 14(1) was only permissible under judicial authority.

Benin JSC held the view that the issue of whether to deprive a person of his personal liberty under Article 14 of the Constitution was not a magisterial or executive act, but a judicial one. He further indicated that Article 14(1)sets out under what terms and situations the detention of an individual may be justified; in none of those situations is the court’s involvement excluded. Achimota is not a court by any stretch of the imagination and its management or old students cannot purport to be enforcing Article 14(1)(e).

d.Achimota School is a Public School.

Achimota is a public school simpliciter. Public schools belong to the public. Not the missions or churches, not private individuals and certainly not me. They belong to the state and as such every individual has equal claim and access to the school.

The only restriction on entry to this school is not meeting the academic requirement. This Government in attaining the broad goals of our framers have succeeded in eliminating the cost barrier. This means any student regardless of creed, ethnicity or religion must be allowed to attend Achimota school once she meets the academic requirement and is duly placed by the CSSPS.

A country, that has the majority of its folk uneducated, should not be throwing roadblocks steeped in colonial structures and religious intolerance at young children who just want to learn. There is no basis to compel the bright young man to abandon his religious values in pursuit of his education.

The framers of the 1992 Constitution understood the possible dangers of a theocracy that is why the clause in Article 21 admits a broad view to the practice and manifesting of any religion. The Young Rastafarian must go to school. He must attend Achimota as he is qualified and the system deems it so and he must be allowed to pursue his education while manifesting his religion.

Allowing a person to manifest his religion does not constitute an egregious breach of the rules and discipline of the school and neither will it severely hamper the educational objectives of the School. Schools have shown the capacity to regulate the educational space while allowing the practice of religious beliefs in a manner that does not affect the primary motive for going to school. I fail to see why this cannot be done in this instance.

Concluding Reflections

Human Rights are linked directly to who we are as a people and is the last thing we must be eager to do away with. Today it is the Young Rastafarian’s freedom of religion that is being infringed on. Tomorrow it could be your right to free expression. Our democracy is only as strong if we are willing to allow it to accomplish the broad goals a democracy seeks to achieve. So, by all means, be vocal! By all means, speak out when injustice is being meted out.