Constitutional Court of Zimbabwe: While scrutinizing the constitutionality of the policy and actions of the education authorities in compelling schoolchildren to salute the national flag and to say the words “Almighty God, in whose hands our future lies” in the process of reciting a pledge of allegiance to the country, the 9-Judge Bench of the Court held that the policy of the education authorities which compels schoolchildren, regardless of religious affiliation, to salute the national flag and to say the words “Almighty God, in whose hands our future lies” as part of the recitation of the schools’ national pledge of allegiance violates Section 60(1) of the Constitution which enshrines the Right to Freedom of Religion and the Right to Freedom of Religion of Children who belong to faiths that do not embrace the belief in the existence of God or in the existence of a God at all.
Facts and Contentions: In 2016, the Ministry of Primary and Secondary Education introduced the pledge wherein all school students were compulsorily required to memorise and recite at assemblies every school day without any exemption. The primary purpose and objective of the pledge was to “inculcate into schoolchildren of feelings of patriotism and other ethical precepts, such as honesty and dignity of hard work”. The intent behind the introduction of the said pledge was secular in nature. Compulsory recitation of the pledge in the current form by children at the private and public infant, primary and secondary schools was the chosen means by which the governmental policy behind the pledge is enforced.
The pledge was challenged by a devout member of the Apostolic Faith Mission (AFM). He approached the Court alleging that-
- The pledges as formulated violate his children’s fundamental right to freedom of religion, in that they are compelled to salute the national flag contrary to their religious belief.
- The compulsion on his children to salute the national flag violates his parental right to determine, in accordance with his religious belief, his children’s moral and religious upbringing.
- by compelling all schoolchildren, regardless of religious persuasion, to say the words “Almighty God, in whose hands our future lies” in the recitation of the pledge the first respondent violates the fundamental right to freedom of religion of the schoolchildren who do not share the religious belief embodied in the words.
“The applicant, without desire to show disrespect for the national flag and the country, interprets the Bible as commanding, at the risk of God’s displeasure, that his children must not go through the form of a pledge of allegiance that involves saluting a secular object such as a flag. The applicant does not reject the national flag. His case is that the use of the national flag as symbolism for the legitimate secular purpose does not have to take the form of a coerced salutation of the flag, which he says he genuinely believes is a form of worshipping of the flag”
Issues: Given the nature of the dispute at hand and the tussle between religion and secularism, the 9-Judge Bench, headed by Luke Malaba, C.J., framed the following issues-
- Whether the policy and the actions of compelling the applicant’s children, who hold a religious belief that saluting a flag is “worshipping a graven image” contrary to a fundamental doctrine of their faith, infringed their right to freedom of religion.
- Whether the policy and the actions of the education authorities of compelling the applicant’s children to salute the national flag infringed the applicant’s parental right to determine the upbringing of his children according to his religious belief.
- Whether the policy and the actions of the education authorities of compelling all schoolchildren, regardless of religious affiliation, to say the words “Almighty God, in whose hands our future lies” infringed the right to freedom of religion of children who do not belong to religions that embrace the belief in the existence of God or in the existence of a god at all.
Section 60 of the Constitution of Zimbabwe contains provisions vis-à-vis the Right to freedom of conscience, freedom of thought, opinion, religion or belief.
Important Observations by the Court
The Bench delved in-depth into various facets of secularism, patriotism and religious freedom. Some of the important areas upon which the Court focused were-
Regarding the interpretation of the Constitutional Provisions- Sections 60(1) and 60(3): It was observed that Section 60(1) of the Constitution is based on the universal principle that every person has inherent fundamental rights and freedoms by virtue of being human. Constitution recognises and embraces the fundamental principle that every person has a conscience which is an experiential and spiritual phenomenon that compels a person to commit himself or herself unreservedly to an ideal. Freedom of conscience must be interpreted broadly to reflect the true meaning of the concepts used to denote the area of its operation. State must adopt a position of neutrality in its relationship with individuals in respect of matters of religion. While referring to Supreme Court of India’s decision in Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615, the Bench noted that as long as a court of law finds that the person claiming constitutional protection genuinely holds the belief that the matters to which his or her belief relates are commanded by the fundamental doctrines, tenets or rules of his or her faith, the belief would fall within the ambit of Section 60(1) of the Constitution as a religious belief. Vis-à-vis, Parental Right, the Court observed that Section 60(3) of the Constitution should not be interpreted to mean that the parental right authorises one person to dominate or control the life of another to satisfy his or her own religious interests.
The compulsion suggests to the schoolchildren who hold polytheistic religious beliefs or non-theistic beliefs that their beliefs are inherently less religious than the theistic ones embraced by the pledge. At best, there is an unconscious bias against non-theistic religions and their beliefs in the adoption as part of the pledge a statement that has as its content acceptance in the existence of God and exaltation of His powers. Children are impressionable individuals and vulnerable to outside influences because of their age and level of maturity. The impression likely to be created in the children’s minds would be that for one to become the ideal person who lives according to the values and principles espoused by the pledge, one has to be a believer in the features of the monotheistic religions represented in the words “Almighty God, in whose hands our future lies”. The children may think that one may not embrace the values of patriotism and national identity without at the same time being a holder of the belief in the existence of God.
Regarding infringement and limitation on Fundamental Rights- The Bench observed that Section 86(3) of the Constitution makes provision for fundamental human rights which are non- derogable and right to freedom of religion is not one of them. The justification for limitation of fundamental human rights and freedoms is the principle that they must be reasonably exercised and with due regard for the rights and freedoms of other persons. Freedom of religion guaranteed under S. 60 has as its point of departure the view of a human being in the Constitution as a responsible personality, developing freely within the social community. It can be restricted by the Legislature by a law of general application with constitutional anchors and sufficient safeguards for the rule of law when community goods are endangered. The limitation of a right must be a result of a meticulous and extensive legislative process and such limits should be interpreted narrowly, thereby respecting the importance of the fundamental right or freedom sought to be protected and enforced. “The Executive cannot introduce measures which have a direct impact on fundamental rights secured by the Constitution without there being a law that authorises such action”. There must be a balance between respecting the religious freedom of the schoolchildren objecting to participation in the compulsory recitation of the pledge and the legitimate public interest in having the values of patriotism.
Preamble to the Constitution- Its role and connection to Fundamental Rights: The Court while deliberating upon the importance of the Preamble in a country’s Constitution referred to the 13 Judge Bench decision of the Indian Supreme Court in Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225, wherein the importance of Preamble as the embodiment of the great purposes and objectives underlying the provisions of the Constitution was observed.
It was noted by the 9 Judge Bench that in Zimbabwe, the Preamble to the current Constitution can best be characterised as ceremonial and is not a numbered section in the body of the Constitution. It is not regarded as an integral part of the law as it does not create rights and obligations. The law is independent of the Preamble. The current Preamble merely sets out the history behind the Constitution’s enactment, as well as the nation’s core principles and values.
Concluding Remarks: Concluding the discussion, the Bench stated that, “Patriotism is a heritage that every nation must pass on to its children if it has pride in itself as an independent and sovereign nation of people who share common values and aspirations enshrined in a constitution which defines its destiny”. However, they also observed that, compulsion, as employed in the pledge, is not a permissible means for achieving the objective of inculcating in schoolchildren feelings of patriotism. “There is a tension between negative and positive religious freedom. The tension cannot be neutralised by the elimination of the reference to the salutation of the national flag and the saying of the words “Almighty God, in whose hands our future lies” from the pledge. The elimination of these elements from the pledge would infringe the right to freedom of religion of those children and their parents or guardians who want the saluting of the national flag and the saying of the religious words in the course of the recitation of the pledge to be observed “. [Mathew Sogolani v. Minister of Primary and Secondary Education, Judgment No. CCZ 20/20, decided on 28-12-2020]
Sucheta Sarkar, Editorial Assistant has put this story together
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