Religion has found its way into the public discourse again. This time, the issue is about whether or not all students in “government subvented mission schools”, regardless of their faith, should be made to attend school gatherings at which the prayers and other religious practices of the religious missions are observed.

I look at the issue from the broader perspective of what ought to be the relationship between institutions of state and religion under a constitutional democracy.  Because as one would observe, religious practice in schools has not been the only issue that has raised this debate regarding the extent to which the state ought to relate to religion and religious establishments. 

In times past, and even in recent memory, there have been instances where the Presidency has presented rams or cows, drinks and sometimes cash to support the celebration of some religious and traditional festivals in the country. Is the state, together with its institutions, forbidden from engaging in such practices? If not, to what extent could the state do these without trespassing the limits of non-discrimination in its dealings with various religious establishments?

The discussion is thus placed within the context of what ought to be relationship between the state and religion in a constitutional democracy like ours. I examine the provisions of the 1992 Constitution that govern the relationship between the state and institutions of religion. I attempt to ascertain whether or not our Constitution seeks to establish a secular society along the lines of the American model, or a religiously plural society in which case the state is not necessarily forbidden from associating with religion. I then conclude with what ought to be the way forward on this conundrum between the Christian missions, the GES/Government and the Muslim Community.

It is important to point out, as I have already hinted, that “secularism” and “religious pluralism” are not one and the same thing. I will therefore at this juncture attempt an explanation of the two concepts by illustrating how they are understood in the United States and Europe respectively.

AMERICAN SECULARISM

The religion clauses of the First Amendment to the United States Constitution provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The first part of the provision (the establishment clause) has been subject to two principal theories of interpretation. What has become the dominant theory (i.e. the separatist view) postulates a strict separation between the state and religious establishments. It calls for strict neutrality of government in all matters affecting religion and religious establishments.  The idea is that practices of the state and its institutions must “have a primary effect that neither advances nor inhibits religion.”

The other theory is the minority view of non-preferentialism.  This view postulates that the establishment clause of the First Amendment to the US Constitution was intended merely to prevent “the establishment of a national church or religion, or the giving of any religious sect or denomination a preferred status”.  That the government may, therefore, support religion in general so long as it does not prefer one religion over the other. (See Sullivan & Gunther, Const’l Law, 17 Edn., p 1277) The two views on the interpretation of the First Amendment respectively illustrate the contrast between secularism and pluralism.  While secularism commands a divorce of the state and religion, pluralism encourages a marriage of convenience in which the state is expected to relate to all religions in a fair and non-discriminatory manner.

It is instructive to note that the United States has not always been this secular. Indeed in the early days, the understanding appeared to be that a non-preferentialist relationship between the government and religious establishments was not a violation of the First Amendment.  Practices of government contemporaneous with, and in the immediate aftermath of, the adoption of the First Amendment confirm this observation.  For instance, almost all the early Presidents made prayer part of their official inaugural ceremonies.  

Sessions of Congress, beginning with the First Congress, have always been opened with prayers by a chaplain. And indeed the day after the First Amendment was proposed, the US Congress “urged President Washington to proclaim a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.”  Now Thanksgiving Holiday has become part of American secular culture. But when it was actually first proclaimed by President Washington, it was meant as “a day of thanksgiving to offer prayers and supplications to the Great Lord and Ruler of Nations, and beseech him to pardon [their] national and other transgressions…”  [See Justice Scalia’s opinion in Lee v. Weisman, 505 U.S. 577 (1992)]

Notwithstanding these historical pieces of evidence, the Supreme Court has over the years adopted the strict secular interpretation of the First Amendment,  directing  the government to stay out of matters of religion whether for the good or for the bad. The Court has for instance decreed that “neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another….No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.”

Proceeding on this tangent, the Court has banned a number of practices which for years had been part of American culture and which were widely considered innocuous. It has banned officially sanctioned prayers, scripture reading and meditation of any kind in public schools.

It has prohibited the saying of non-denominational prayers at public high school graduations, outlawed the study of creation science and declared as unconstitutional inscriptions of any of the Ten Commandments on the walls of courthouses. This attitude of the Court to the interpretation of the First Amendment has led some to wonder whether it is not promoting irreligion and atheism at the expense of religion. If this is case, as it obviously appears to be, then these decisions of the Court are in themselves a violation of the principle that there must be strict neutrality. This is because by pushing religion out of the public space one ends up promoting irreligion and atheism, which in any case  are  beliefs  and world views alternative to religion.

So it would appear that the solution to how one must handle the relationship between the state and religion does not lie in pushing one set of belief system out of the public space. Perhaps the better approach lies in developing an equitable and non-discriminatory relationship with religion. This leads me to the European approach.

EUROPEAN PLURALISM

Europe is by far the region of the world that has been the worst victim of the atrocities of war, human suffering and abuses. It has been the theater for the two World Wars in the history of mankind. After the Second World War, precisely in 1949,  European states come together to form the Council of Europe an organization which was designed as a vehicle for European cooperation in the field of human rights, the rule law,  and democracy. This organization as envisaged was going to serve as an important tool for the promotion of human rights and the rule of law so as to stem the tide of any further destruction and human suffering similar to what Europe had experienced in the past. It is important to emphasize that the Council of Europe is an entirely different institution from the European Union.

 Within the framework of the Council of Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was adopted. Article 9 of the Convention guarantees the freedom of religion. The relevant portion of the article states that: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” 

The European Court of Human Rights, the judicial body charged with the interpretation of the Convention has interpreted this to include a negative right of the individual to resist any form of religious indoctrination. The Court has however been careful in declining the invitation, on a number of occasions, to “secularize Europe” in the American understanding of the term. The most recent of such invitations to Court was in the case of Lautsi v. Italy (2011) which has become popularly known as “the Crucifix Case”. Here the applicants complained that the practice whereby public schools in Italy were required to hang crucifixes in the classroom violated the principle of secularism.  

According to the applicants,  secularism required the  “State to establish a neutral space within which everyone could freely live according to his own beliefs”  and that “by imposing religious symbols, namely crucifixes, in classrooms, the Italian State was doing the opposite.” 

The respondent state of Italy, with the support of some amici curiae, argued that on a true interpretation of the Convention, state parties do not have  an obligation to promote secularism.  First, because strict neutrality is the pivot around which secularism revolves, it meant that States would have to refrain from promoting not only a particular religion but also atheism. But since atheism is an alternative world view to religion, the promotion of secularism by the state would be no less problematic than religious indoctrination by the state.  

The second point was, that “states should not have to divest themselves of part of their cultural identity simply because that identity was of religious origin”.  So in this case, the mere fact that the Crucifix is a religious symbol did not mean that the age-old Italian culture of hanging it in classrooms and other public places should be discontinued. The Court preferred the arguments of the State of Italy and held that the hanging of crucifixes in the classrooms of public schools, without more, did not constitute an infringement of the rights of the applicants and their children to practice their  convictions whether religious or irreligious.

In concurring with the opinion of the Court, Judge Power observed that: “The [] applicant may have taken offence at the presence of a crucifix in classrooms but the existence of a right ‘not to be offended’ has never been recognized within the Convention. Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind… secularism (which was the applicant’s preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option.”

It is therefore clear from the above discussion that Europe has chosen a different path as far as the relationship between the state and religion is concerned. They have chosen a pluralist approach which requires the adoption of a fair and non-discriminatory relationship with all religions or world views, and not the secularist approach of yanking religion out of the public sphere and replacing it with irreligion or atheism.

WHAT IS THE GHANAIAN POSITION? SECULARISM OR PLURALISM?

Article 21(a) and (c)  of  the 1992 Constitution provide respectively that “[a]ll persons shall have the right to: freedom of thought, conscience and belief, which shall include academic freedom and  [the] freedom to practise any religion and to manifest such practice”. This right to practice any religion and to manifest such practice is reiterated in Article 26 of the Constitution. In article 17, discrimination of all forms including discrimination on grounds on religion is prohibited. Article 35 imposes on the state a positive obligation to “actively promote the integration of the peoples of Ghana and prohibit discrimination and prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender or religion, creed or other beliefs”. 

Where there arises any doubt as the meaning of any provision of the Constitution, the Supreme Court is the body charged with the responsibility of interpreting those provisions so as to eliminate those doubts. Even though the Supreme Court has not as yet given an opinion on the “religion clauses” of the 1992 Constitution, I dare say that the combined effect of the various provisions cited above irresistibly leads to the conclusion, that the Constitution envisages a religiously plural society as opposed to a secular one. Two reasons support this conclusion.

First, a look at the Directive Principles of State Policy, precisely article 35 supports the view. As already noted, that article imposes on the state a positive obligation to take steps to integrate the people of Ghana by bridging the differences, including religious differences, which exist among the population. This duty can obviously not be carried out with the state standing aloof. It would involve the state having to develop some relationship with religious establishments. A pluralistic approach whereby the state respects all religions and beliefs, and relates to religious establishments on the basis of fairness and non-discrimination is clearly the approach that best comports with the religion clauses of the Constitution 1992.

Second, as Justice Sowah once observed: “A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life.” (Tuffour v. Attorney-General [1980] GLR 647).  The Preamble to the 1992 Constitution opens with the words: “In The Name of the Almighty God We the People of Ghana...” Though the Preamble is technically not part of the Constitution, it expresses the values, ideals and aspirations upon which the Constitution is established. It is serves as an important tool for interpreting and giving effect to the provisions of the Constitution. So for all intends and purposes, the Preamble is practically an integral part of the Constitution. In this regard, the opening words of the Preamble to the 1992 Constitution cannot be taken for granted. They are reflective of the kind of society the people of Ghana wish to establish for themselves. And from all indications this society is one in which the people of Ghana want God to take a center stage. This would rebut any contrary argument, that the Constitution envisages a secular society where belief in the Supreme God and the public manifestation of such belief is replaced with irreligion.  

In any case, belief in the Almighty God and the manifestation of such belief in public life has long been part of the culture and traditions of the people of Ghana. Like the Europeans, I would not advocate the annihilation of this aspect of the Ghanaian public and cultural life merely because it is religious in character. So clearly it appears that the issue is not whether or not there should be some relationship between the state and religion, but rather what should be the nature and extent of such relationship.

SCHOOL PRAYER, RELIGIOUS GARMENTS AND OTHER RELATED MATTERS

The Constitution frowns on discrimination of all forms including discrimination on grounds of religion. The state can therefore not discriminate against one set of religious establishments in its relationship. All shades of religious opinion must be given equal representation in public life. As far as matters such as prayers at public functions are concerned it would appear therefore that, where the prayer of a particular faith is consistently given prominence and visibility to the exclusion of others, there could be a case of  discrimination and unfair treatment. In view of the plural society that our Constitution envisages, the best way to go, I suppose, will be to institute NON-DENOMINATIONAL PRAYERS for state functions. A perfect example is the prayer that is read by the Speaker to commence business in Parliament. This will remove any sense of exclusion and rather promote unity and tolerance.  

As far as the presentation by the state of cash, drinks and other items to support religious celebrations is concerned, I think the practice must be discontinued unless there can be equitable demonstration of such gesture to all other faiths. So here, the guiding principle, at all material times, should be fairness and non-discrimination. Where the practice of the state does not measure up to this standard, there should be a cause for concern.

Now, let’s examine the problem of the school prayer and so-called devotions at school gatherings. Having established the premise that the 1992 Constitution envisages a religiously plural society and not a secular one, I think we can safely postulate that prayers and other religious observances in schools are not contrary to the Constitution. They cannot be banned. To do so will be to impose atheism or irreligion on everyone in the school setting.  It follows therefore that the solution to the present standoff between Christian missions, the GES/Government and the Muslim community does not lie in banning prayers and religious observances in schools. Rather there must be a regime that ensures fairness and respect for all faiths and religious persuasions in the school setting.

This is what I propose: In dealing with the problem we must separate what I term “religious rituals” from “school gatherings at which religious practices are observed”. By “religious rituals” I refer to those special ceremonies, worship services or gatherings which are commanded by the precepts of a particular religious denomination and at which the prayers, doctrines, and other practices of that denomination are observed and/or propagated. By this reasoning I consider  that  the right of a student in a public school or government subvented mission school is infringed if  he is compelled  against his will to, say, attend a Catholic Mass, a charismatic vigil service, or a Friday Muslim prayer. This particularly so if the student does not subscribe to the religious persuasion of the school authorities or  has not previously consented to attending the ritual in question as part of his school training. I consider such mandatory rituals objectionable because they create the avenue for forced indoctrination, which everyone is entitled to resist.  A  practical way out may be to allow only those students who are willing to attend the rituals, and let those who object have their own devotions under school under the guidance of the  school authorities, or to require all those who object to undertake supervised personal studies (“prep”) for the duration of the ritual.

On the contrary,  I do not consider that “school gatherings at which religious practices are observed” are objectionable per se, or necessarily in conflict with the right of a student to subscribe to, and exercise, a religion of his choice.  Gatherings which I consider to come within this category include morning assemblies, graduation ceremonies, speech and prize giving days, school anniversaries, etc. These are school gatherings meant for everyone, and not religious rituals of a any particular denomination. They serve significant educational and sociological purposes, and are not inherently religious or meant to be.  To this end, a student should not necessarily be excused from such a gathering merely because a prayer, or a religious practice he does not subscribe to, is observed as part of the gathering. As I mentioned earlier, prayers are a part of the Ghanaian culture. Therefore like the European Court on Human Rights endorsed in the Crucifix case, we do not have to divest ourselves of a particular part of our “cultural identity simply because that identity [is] of religious origin”.  

In advancing this view, I am not oblivious to the fact that in every human community including a school there is likely to be a dominant religious culture and minority ones. In the greater number of cases, it is the prayer or other religious practice of the majority that may be observed at social gatherings. That the prayers and other religious practices of the majority dominate the public square does not necessarily mean that minority religious cultures are being suppressed. So long as the minority religious culture is tolerated, and its members are not compelled to observe the prayers and rituals of the majority at such public gatherings there should be no cause for alarm.

To my mind therefore, if the purpose of the prayer or other religious observance at a school gathering is “to solemnize the occasion” and it is not employed as a tool, whether immediately or over time, to “proselytize”, promote one religion, or to disparage any other faith or belief, it should be acceptable and well within limits of the Constitution. Alternatively, to avoid any semblance of bias in favor of or against one religious faith, a non-denominational prayer, like the one earlier suggested for national events and ceremonies may be adopted for gatherings in the school setting.

Now to the issue of religious garments and adornments. 

The right to freely exercise a religion of one’s choice has been held to involve two things: “freedom to believe and freedom to act”. “The first is absolute, but in the nature of things, the second cannot be.” (Cantwell v Connecticut, 310 U.S. 296 (1940)) To permit the absolute freedom of people to act out whatever they believe “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself”. (Reynolds v United States, 98 U.S. 145 (1878)) Consequently, as a cosmopolitan nation made up of people of varied religious preferences, it cannot be expected, much less required, that there should be no rules regulating conduct generally in society, and particularly in schools. 

Thus in my view a person cannot complain of discrimination simply because there is a school rule which requires all students to wear school uniform, or dress in a particular way, even if the rule indirectly prevents that person from wearing an apparel commanded by his religion. From this it would appear to me that the question of whether or not Muslim students should or should not be allowed to wear the “hijab” in schools does not arise, if the school rule requires that all students must appear in school uniform.  If the school rule imposing standards of dressing  (i) is neutral on  its face; (ii) does not appear to have masked any underlying discrimination, and (iii) serves legitimate purposes like school discipline, identification and security, it cannot be objected to simply because it makes it difficult for a section of the students to express their religious faith.  To permit exemptions would be to undermine its binding force on the entire school community. And indeed the fact that some are permitted to ignore such a rule will eventually undermine the resolve of those who choose to remain under it. In the end we would have rendered school authorities powerless to supervise students and to maintain discipline in schools. I do not think that such would be a proper reading of the religion clauses of our Constitution.

CONCLUSION

The problem of prayer and other religious practices in schools is complex, and must be handled with tactfulness. Insistence on strict legal solutions may be right, but not necessarily wise. To prevent avoidable tensions and promote national unity and social cohesion it would be important for the various stakeholders involved in this standoff to dialogue and come up with a unified position which satisfies everyone, thereby leaving constitutional adjudication as a measure of last resort. It will also be important for all us, but particularly politicians, religious and opinion leaders, and social commentators to avoid inflammatory language and the tendency to harp on about trivial differences in religious persuasions.

(This article shall not be republished in any other medium, in full or in part, without the author’s authorization