Religious freedom the winner in Zim school flag salute dispute

21 January 2021 · Carmel Rickard

Attempts to establish a compulsory daily ceremony for schoolchildren to salute the national flag have come unstuck in Zimbabwe. The education authorities intended the ceremony to ‘inculcate patriotism’ and other values, according to the justification their lawyers argued before the constitutional court. But not everyone was impresssed. One parent went to court with a claim that the ceremony was not constitutionally acceptable and saying that his right, and the right of his children, to freedom of religion was infringed by the compulsory requirement of flag-saluting. He argued that the ceremony, which included words directed at ‘Almighty God’, infringed the religious freedom of others as well. Nine judges including the Chief Justice sat as a constitutional court to hear the matter. They have agreed with the father, finding the ceremony unconstitutional because it was made compulsory, and because there was no provision for those who found it in conflict with their religious beliefs. The judges were, however, less forthcoming about why it took nearly four years for them to finalise and deliver the judgment.

Read judgment

When Zimbabwe’s schoolchildren get back to their books this year, Covid permitting, they will not have to recite a government-approved pledge, intended to inculcate patriotic feelings in the young.

That’s because the country’s constitutional court decided, in the days between Christmas and year-end 2020, that the pledge was unconstitutional. As a result, children whose parents object to them reciting the pledge – addressed to ‘Almighty God’ – or saluting the flag, must be allowed to opt out.

Pledge

The pledge and flag salute were introduced in 2016, with all schoolchildren being compelled to memorise the words and recite them at assemblies every day. Here’s what they had to say:

‘Almighty God, in whose hands our future lies:

I salute the national flag

United in our diversity

By our common desire

For freedom, justice and equality

Respecting the brave fathers and mothers who lost lives in the Chimurenga/Umvukela (tr. ‘revolutionary struggle’)

We are proud inheritors of the richness of our national resources

We are proud creators and participants in our vibrant traditions and cultures

I commit to honesty and dignity of hard work’

'Devout'

Then Mathew Sogolani, father of some of the children affected by the flag-saluting, stepped in with a constitutional challenge based on the notion of religious freedom. He told the court he was a ‘devout Christian’, a member of the Apostolic Faith Mission. So were all the members of his family.

He said he believes that no ‘secular object’ – in this case the flag – may be ‘saluted’, and thus claimed that the fundamental right of his children to freedom of religion had been violated. He also challenged the right of the authorities to compel all schoolchildren, regardless of their religious persuasion, to say the words, ‘Almighty God, in whose hands our future lies’.

Permanent

At some stage in the legal process, the education authorities suspended the daily ceremony. Now, however, that suspension must become permanent because the nine judges who heard the case decided unanimously that indeed the freedom of religion rights of Sogolani and his family were infringed. So were the rights 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’.

The court clarified that it was not the saluting of the flag and saying the words of the pledge that was unconstitutional – these became unconstitutional because the ceremony was compulsory.

This is far from the first case in which such school ceremonies have been found in breach of a constitution – the United States and India are but two examples – and the judgment drew on several of these earlier cases.

Orthodoxy

The court’s decision followed expected paths in reaching its conclusion, but there were some noteworthy aspects. The judges stressed that while Zimbabwe was not a secular state, no official religion was allowed. Neutrality on the part of the state was required, there was no state church and no orthodoxy.

One or two choice phrases emerge from an otherwise dour judgment. The judges quote from a 1944 US case holding that for a court to question tenets of a religious belief would be to ‘enter a forbidden domain’. They also warn against acts that would ‘coerce and torment the person’s conscience’. As for Sogolani, he ‘does not hold his belief idly and his conduct is not the outcome of any perversity’, the court held.

The judges were concerned that subjecting children to daily recitals as required by the education authorities might indoctrinate them, against the wishes of their parents and the teaching of their religion. ‘Saying the religious words under compulsion on a daily basis during school term might have some kind of proselytising effect’. They were also concerned that children might conclude that for one to become the ideal kind of person who lives according to the principles of the pledge, one must first agree with the religious principles lying behind the ceremony.

'Imperilled'

These children ‘may think that one may not embrace the values of patriotism and national identity without at the same time [believing in god],’ the court found.

The children would be coerced into thinking that unless one said the religious words of the pledge one would be ‘in jeopardy at the displeasure of God’ and that one’s future at school would be ‘imperilled’.

The education authorities conceded that the ceremony was not prescribed in terms of any law. However, they claimed to draw the right to formulate a compulsory daily event from the constitution’s preamble. The judges said they strongly disagreed: the preamble in this case was not ‘legally’ a part of the constitution; it ‘merely sets out the history behind the Constitution’s enactment, as well as the national’s core principles and values’. It was ‘merely ceremonial or symbolic and … does not confer any substantive rights.’

Noticeably missing

Something noticeably missing from the judgment, however, is an explanation by the court for the inordinate length of time it appears to have taken to finalise and issue the decision.

According to the information on the cover sheet of the judgment, the matter was heard on 1 February 2017 and delivered on 28 December 2020. That’s a couple of weeks short of four years. Hardly an example for this court – which includes the chief justice and his deputy – to set for Zimbabwe’s other courts and judicial officers.

Carmel Rickard

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