Zomba, 9 May 2023 – On 8 May 2023, the High Court of Malawi delivered a judgment declaring that the unwritten or written policy of the Government requiring all learners, including children of the Rastafari community, to cut their hair before admission into government schools is unlawful and constitutes a violation of the right to education, freedom of religion and amounts to discrimination on grounds of religious affiliation.
From the end of colonialism in Malawi and beyond, dreadlocks and hairs of the African people, in general, have perpetually been regarded with disdain and simply seen as not beautiful and undesirable. This was due to dreadlocks being perceived as a sign of rebellion against slavery and subsequent colonial rule, with Europeans deeming African hair unattractive and not being considered human hair in the first place. The High Court of Malawi noted that despite this suppression of African identity, dreadlocks are however not new as far as African culture in general and the history of Malawi are concerned – dreadlocks are part and parcel of the Malawian and African heritage and the Government should take appropriate steps to promote such heritage.
The Court, therefore, ordered that in the spirit of tolerance and respect for unity in diversity, the policy be abolished immediately and that the Government of Malawi issue a circular to all government schools in the country by 30 June 2023 allowing all Rastafari children, with their, dreadlocks, to be enrolled in such schools.
The Applicants in the case were represented by Chikondi Chijozi of Southern Africa Litigation Centre, and the case is supported by the Women Lawyers Association of Malawi (WLA), the Southern Africa Litigation Centre (SALC), and the Centre for Human Rights Education, Advice and Assistance (CHREAA).
Background
The Applicants, who are minors, were denied admission at Malindi Secondary School and Blantyre Girls Primary School. The two Applicants were refused admission into these government schools following their refusal to cut their dreadlocks and defiance of the policy by the Ministry of Education that requires all learners to cut their hair before admission into government schools. Following their refusal of admission into the schools, the Applicants applied for leave for judicial review challenging the lawfulness and constitutionality of the said policy. On 14 January 2020, the Court granted an interim order of injunction compelling the schools to enroll and admit the Applicants and all Rastafari children pending the final determination of the matter.
The policy to require all learners in government schools to trim their hair seems to originate from the previously repealed Decency in Dress Act of 1974 and Section 180(g) of the Penal Code which regulated the way in which people of Malawi ought to dress and look and most importantly, prohibited people of Malawi from keeping long hair in a certain way that was not generally accepted as “well-kept” or “neat-looking”.
Rastafarians keep dreadlocks as a visible mark of their religion. Rastafarians grow their hair into dreadlocks because it is part of the Nazarite Vow. All Rastafarians take this vow and claim it is commanded by the Bible (Leviticus 21:5, “They shall not make baldness upon their head, neither shall they shave off the corner of their beard nor make any cuttings in their flesh”). Therefore, those from the Rastafari community who cut their hair are treated with contempt as they are perceived to have abandoned their faith and culture.
Justice Ntaba held that the requirement that dreadlocks should be cut before registration and enrollment in schools constituted an unreasonable and unjustifiable limitation on the rights of the Applicants and does not meet the requirements of section 44 of the Constitution of the Republic of Malawi. She further stated that the policy failed to ensure the promotion and protection of the rights of Rastafari children to be protected from discrimination and treated equally under Section 20 of the Constitution. Justice Ntaba further stated, “Courts need to remain vigilant and be diligent in scrutinizing cases where human rights violations are alleged. Courts should be critical and not sanction or encourage illegality perpetrated by those public officers that violate the human rights of persons whom they are bound to protect”.
“This judgment will go a long way in showcasing the importance of democracy in Malawi and that at the heart of unfair discrimination lies a recognition that the purpose of Malawi’s Constitution is the establishment of human rights accorded to all human beings equally, in dignity and respect regardless of their membership of particular groups,” said Chikondi Chijozi, Criminal Justice Lawyer at the Southern Africa Litigation Centre.
The High Court, in its judgment followed precedent from Courts in Kenya, South Africa and reiterated that “physical colonization ended and so must all other forms of colonization such as mental, social, cultural, and spiritual colonization which are in this case manifested by the unfair rejection of one of the main symbols Africanness or African Identity: the wearing of dreadlocks and keeping hair natural. Erasure of Africanness or African identity in any form (among others through banning dreadlocks in schools) should not be an additional cost to accessing education at a public school in Malawi”.
ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE AND THE CENTRE FOR HUMAN RIGHTS EDUCATION, ADVICE AND ASSISTANCE.
