The recent impasse between Ministry of Education, Christian Missionary Schools and Muslims presents a challenge to the old ways in which the freedom of worship has been viewed.
Humans have historically sought meaning in our existence through spirituality. The fundamental nature of religion to humanity is seen in the ancient and still ongoing struggle either to believe in, and therefore hold as proved, the existence of a Higher Being or to reject and disprove any claims as to the existence of such a Being.
The matter is complicated further because beyond agreeing on His/Her existence, disciples of the former posture do not agree on the nature, name or instructions of this Higher Being. Many religions assert a unique ability to reach the Higher Being. Christians profess that no-one can reach God except through their messiah. Jews self- identify as God’s chosen people, who alone are entitled the blessings of His favour. Muslims believe Mohammed, their prophet is the one with the true message of salvation etc. Each of these claims is easily manipulated or interpreted to breed intolerance of other faiths within our society.
Furthermore, the manifestations of particular religions may be incompatible with the law of the State. The famous case of Nyameneba & Others v The State  GLR 723 supplies a good example. The appellants were members of a religious sect who, for about four years before their arrest, had been cultivating, “herbs of life” which they used publicly; burning it as incense for invocation during their worship, as food, and medicine both on themselves and on others. In the end, their proven ignorance as to the fact that these ‘herbs of life’ were actually Indian hemp, led to their acquittal. But had they known the nature of the herb they relied on, the unquestioned religious validity of their actions would not have saved them from punishment.
It is an understanding and acceptance of these two truth (i.e. a. that man needs religious expression to self-actualise-whether by proclaiming or denouncing a Higher Being- and b. that these forms of religious expression do not necessarily make harmonious neighbours either with each other or with the State), that the Constitution both grants and limits the right to religious freedom in Ghana.
The recent impasse between Ministry of Education, Christian Missionary Schools and Muslims presents a challenge to the old ways in which the freedom of worship has both been viewed and practised among us. It is not surprising therefore that it has culminated in a question of constitutional interpretation before the Supreme Court.
In this piece we briefly examine the Constitutional provisions on the matter. We argue that the Muslim community’s position has merit. Moreover, we endorse NAGRAT’s contention that government support of the Muslim position, to the extent that it excludes other religions is also unconstitutional.
The scope of freedom of worship in Ghana is set out in the Constitution as follows:
Article 21(1) All persons shall have the right to
(c) freedom to practise any religion and to manifest such practise”.
Article 26 (1)
Every person is entitled to enjoy, practise, profess, maintain and promote any culture, language, tradition or religion subject to the provisions of this Constitution.
(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.
(3) For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.
and Article 12 (2) specifically mentions religion as one of the grounds which is not permitted as a reason for interfering with a person’s fundamental human rights.
Although religion is an entrenched right under both our Constitution and Article 2 of The UN’s Universal Declaration on Human Rights, it is not a limitless right.
Article 21 (3) permits Parliament to prohibit conduct inciting hatred against other members of the society. Article 26 (2) also outlaws practices that dehumanise persons or damage their physical or mental well-being and article 12 (2) subjects all our rights to the respect for the rights of other people and the public interest.
In his 2015 State Of The Nation address, President Mahama, announced government’s intention to sanction all heads of public schools who compelled Muslim students to attend Christian services or vice versa. The Catholic Bishops Conference responded thus:
We wish to assure Heads of our Catholic Educational Institutions to remain resolute and not feel unduly intimidated by threat of sanctions. We expect our Heads to continue to manage our schools in ways and practices that are in conformity with our Catholic identity and mission.
So the battle lines were drawn. We consider the President’s position to be backed by the Constitution. In determining the limits of religious freedom, we must distinguish between public and private rights. While persons in Ghana- whether human or legal, have a right to worship as they choose and associate with fellow believers, this right is limited to their private activities. Since missionary schools receive support from the State, they are not private platforms for the maintenance, promotion and enjoyment of their personal religious beliefs. They have become public institutions.
They cannot on the one hand enjoy economic support from the taxes of members of these other religions and on the other refuse to accord them equal opportunity to enjoy the facilities they help pay for in the manner to which they are most inclined.
It appears to us, that the State cannot compel missionary schools who take no sustenance from it to allow the expression of other religions on their premises as this would go against their constitutional freedom of association. However, the missionary schools too cannot have their cake and eat it. The right to education is a fundamental right along with the right to religious freedom. They are therefore binding on all public institutions; including public schools. As it would be unlawful for them to refuse admission to pupils based on gender, ethnicity or religion, so it is unlawful, once they have been admitted, to deny them the dignity of manifesting their religious beliefs. It seems clear to us that our religious bodies have the option of either allowing other religions equal expression in their schools or becoming fully responsible for the funding of their institutions.
Furthermore, as NAGRAT has pointed out, religious equality under our Constitution is not limited to the Christian and Islamic faiths. Government must put similar effort into ensuring the free expression of all religious practises that do not violate the law. Religious dreadlocks share a status with hijabs. If the latter is permissible, so should be the former. We must understand that Ghana is a secular state, which tolerates every religion whose practice does not conflict with any law.
Though the Preamble to our 1992 Constitution states, “In the name of the Almighty God, we the people of Ghana…do hereby adopt enact and give to ourselves this Constitution”, it does not specify the religion whose God is being referred to. It is our considered opinion that the framers of the Constitution, deliberately refrained from naming God by religion so that each person, whatever his/her religious persuasion and provided it is compatible with law, might find Ghana a conducive milieu in which exercise that faith.
Our understanding of the rights guaranteed under the 1992 Constitution will from time to time be questioned. Such moments allow us to reflect on the justness of our society. Rather than resent those who spark them, we must seize such moments to help us ‘form a more perfect union’. Our Constitution proclaims our commitment to ‘liberty, equality of opportunity and prosperity’. Now, we have to live up to it.
Maame is a barrister and Lecturer of Constitutional and Criminal Law at Lancaster University Ghana and Samuel is her Research Assistant.