Compelling School Children To Recite Religious Words In National Pledge & To Salute National Flag Unconstitutional: Zimbabwe Constitutional Court

Compelling school children to recite religious words in national pledge and to salute the national flag is unconstitutional, the Constitutional Court of Zimbabwe has held.

The court held that the policy requiring all children in schools to recite the pledge of allegiance as formulated is constitutionally invalid, as it violates the right to freedom of religion in relation to the children and schoolchildren not sharing the belief in the existence of God.

The education authorities may formulate a pledge of allegiance which allows schoolchildren who, on conscientiously held religious beliefs, object to saying the words 'Almighty God, in whose hands our future lies' and to saluting the national flag to be exempted in the course of the recitation of the pledge from saying the religious words or saluting the national flag., the Court observed.

National Pledge Challenge

The Education Ministry of Zimbabwe introduced the following pledge in the year 2016, which all schoolchildren were compelled to memorize and recite at assemblies every school day:

"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
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".

One parent named Mathew Sogolani challenged the imposition of this pledge alleging that the versions of the pledge 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.  He contended that 1) The applicant and his children hold a belief that it is a compelling precept of their faith that a secular object must not be saluted. 2) 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. 3)  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, violates the fundamental right to freedom of religion of the school children who do not share the religious belief embodied in the word.

Allowing the petition, the 9 judge bench of the Court unanimously held thus:

"The policy and the actions of the education authorities of compelling all 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 ("the pledge") infringed the right to freedom of religion of the applicant's children, enshrined in s 60(1) of the Constitution; the applicant's parental right, enshrined in s 60(3) of the Constitution; 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, enshrined in s 60(1) of the Constitution."

Following are some of the significant observations made in the judgment authored by the Chief Justice Malaba. The judgment makes references to Indian Supreme Court judgments viz. Bijoe Emmanuel v. State of Kerala and Kesavananda Bharati v State of Kerala.

Loyalty and unity cannot be demanded in violation of fundamental rights

The benefits alleged to accrue to society from the compulsory flag salute do not justify the correlative violation of an individual's freedom. Loyalty and unity cannot be demanded in violation of fundamental rights; they can only be attained by the exercise of an individual's volition.

Any dominance of a faith would be unjust

A schoolchild, whose conscience dictates that he or she should not salute the national flag during the recitation of the pledge because doing so is contrary to his or her religious belief, would find it difficult to act in accordance with the dictates of his or her conscience because of the position of subordination to authority in which he or she is placed. He or she would also find it difficult to act in accordance with the dictates of his or her conscience because of the compulsion imposed on him or her by the policy and the governmental action to recite the pledge and to salute the flag. The schoolchild is then forced to act contrary to his or her conscience. No constraint of conscience can be appropriate. Any dominance of a faith would be unjust, for faith ought to be free of all subjection to humans. Faith knows subjection only to its own rules or fundamental doctrines.

Objective of instilling Patriotism can be achieved infringement of the right to freedom of religion 

The objective of instilling in schoolchildren the values of patriotism, national identity, honesty and hard work can be achieved without infringement of the right to freedom of religion of the schoolchildren participating in the recitation of the pledge. Good citizenship in a secular society does not necessitate the abandonment of religious discipline. 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. Patriotism entails the appreciation and upholding of the foundational constitutional principles and values of nationhood, which include the plurality and diversity of religions and religious beliefs characteristic of Zimbabwean society. Compulsion as employed in the pledge was not a permissible means for achieving its legitimate objective of inculcating in schoolchildren feelings of patriotism 

The State cannot compel a person to perform acts which are forbidden by the religion he or she belongs to. The duty to say the words exalting God in the pledge would seriously impair the freedom of religion of the schoolchildren who do not hold the religious belief embraced by the words "Almighty God, in whose hands our future lies". The coercion on the schoolchildren to say the religious words offends the religious beliefs of the schoolchildren who belong to religions that do not espouse the belief in God, His oneness and His power to directly and actively influence human life. It offends the schoolchildren who belong to religions that espouse belief in the existence of more than one god. It offends those schoolchildren who, whilst believing in the existence of a supernatural power, do not believe in that force in the form of a god. It also offends the schoolchildren who do not hold belief in the existence of a supernatural power. Their belief begins and ends with the existence of a human being as a matter of fact. They do not hold a spiritual belief in the existence of a supernatural being arising from seeking to find answers to the question of how the human being came to be in existence in the first place. The compulsion suggests to the schoolchildren who hold polytheistic religious beliefs or nontheistic beliefs that their beliefs are inherently less religious than the theistic ones embraced by the pledge. At best, there is an unconscious bias against nontheistic 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.

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. Schoolchildren may begin to believe that the future at the school, for anyone who refused to say the religious words forming part of the pledge for reasons of a coerced conscience, would be in jeopardy at the displeasure of God in whose hands the future of every person is said to lie. Participation in the recitation of the pledge would, in the circumstances, be out of fear that one's future at the school would be imperilled.

CASE : MATHEW SOGOLANI vs. MINISTER OF PRIMARY AND SECONDARY EDUCATION [Const. Application No. CCZ 31/16] 

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