2017 Commentary on the National Pledge : A legal perspective.
The Schools National Pledge: A Guillotine of the Child’s Right (as per Section
60 of the Zimbabwean Constitution)
Human Rights are by nature universal, that is, they are accorded to everyone. This means that by the mere fact that one is a human being he or she is entitled to them, regardless of race: whether one is black or white, despite sex: whether one is a man or a woman and regardless of age: whether one is an adult or a child. If the Universal Declaration of Human Rights or any Bill of Rights guarantees the right to life or freedom of religion, conscience or thought then it entitles everyone regardless of the abovementioned and any other grounds. In other words Women‟s Rights, Rights of People living with disabilities and Children‟s Rights are in essence Human Rights.
However, there has been a misconception that a parent, a guardian or any other person who takes care and oversees the welfare of the child has the discretion that extends to deciding which rights accrue and do not accrue or are suitable to the child whose welfare they take care of. Their rights have for a long time been mistaken for privileges. However, the truth is any guardian or parent taking care of a child‟s welfare has a responsibility to guarantee that each and every right of the child have been fulfilled. Misconceptions with regards to rights of children have culminated into a number of actions by the guardians, parents, society and even government departments that have unjustifiably limited the full enjoyment of the children‟s rights and even at some instance violated them.
One of such recent action particularly by the government is the Schools‟ National Pledge. This was a development that was introduced by the Honourable Dr. Lazarus Dokora who is the current Minister of Primary and Secondary Education. It was introduced surrounding the times and same year of banning of the Scripture Union, when a new wave of civil unrest was rising. It was then accompanied by the New Curriculum. Within it are embedded various meanings and implications that may pose far reaching consequences on the right(s) of the child. Some of these include state indoctrination, forced patriotism and violation of the right to freedom of conscience as provided for in Section 60 of the Constitution.5 It is the purpose of this write up to make a close analysis of the Schools‟ National Pledge in light of the constitutional rights of the child particularly the right to freedom of religion, thought or conscience.
INTERNATIONAL, REGIONAL AND NATIONAL INSTRUMENTS GUARANTEEING THE CHILDREN’S RIGHT TO FREEDOM OF THOUGHT, CONCIENCE AND RELIGION.
Children‟s Rights are recognised internationally. The coming into effect of the most ratified Convention, that is, Convention on the Rights of the Child (hereinafter referred to as the Convention) (C.R.C) guaranteed the rights of the child. Article 14 of the Convention on the Rights of the Child provides as follows:
(1) State parties shall respect the right of the child to freedom of thought, conscience and religion.
(2) State parties shall respect the rights and duties of parents and when applicable, legal guardians to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
(3) Freedom to manifest one‟s religion or belief may be subject to limitations as are prescribed by the law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
The essential theme underlying the Convention is that children need special protection and priority cares as a vulnerable group because they are in the developmental phase of their lives. The international community decided there was a need to create a „special normative visibility, and, to an extent, „priority‟ for children‟s interests and needs due to this vulnerability. The Convention is remarkable in that it seeks to protect the children‟s rights and that it is the most ratified treaty with an exception of United States of America.
A much more “home grown” instrument is the African Charter on the Rights and Welfare of the Child (hereinafter referred to as the Charter). It specifically caters for the rights of the African Child. Its Article 9 provides as follows:
(1) Every child shall have the right to freedom of thought, conscience and religion.
(2) Parents and where applicable, legal guardians shall have the duty to provide guidance and direction in the exercise of these rights having regard to the evolving capacities and best interest of the child
(3) State parties shall respect the duty of the parents and direction in the enjoyment of these rights subject to the national laws and policies.
The African Charter on the Rights and Welfare of the Child is more particular in that it mainly focuses on the social evils that are more prevalent in Africa against realisation of the rights of the African child. It specifically dedicates a provision to the effect that every child has the right to freedom of conscience, thought and religion unlike the C.R.C that guarantees that right impliedly. It goes a step further from the generality of the C.R.C.
Zimbabwe adopted a new Constitution in 2013 (hereinafter referred to as the Constitution) which makes provisions for the rights of the child. Section 60 provides as follows:
(1) Every person has the right to freedom of conscience which includes- (a) Freedom of thought, opinion, religion or belief, and
(b) Freedom to practice, propagate and give expression to their thought, opinion or religion or belief whether in private or in public and whether alone or together with others.
(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief
It further makes provisions to the effect that parents and guardians of minor children have the right to determine in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the right to which they are entitled under the Constitution. It is important to note at this point that the Constitution is the Supreme Law of the land against which any other laws conduct, regulations, practices and policies are to be examined. The Constitution provides categorically and in unambiguous terms that “every person” is entitled to enjoy this freedom. It goes an extra mile unlike the International and Regional Conventions to guarantee that this freedom is not violated by providing that no person is to be compelled to take an oath that is contrary to his or her religion or belief. All of these legislative frameworks are pertinent in guaranteeing the respect of this freedom to the child.
ANALYSIS OF THE SCHOOLS NATIONAL PLEDGE AGAINST THE RIGHT TO FREEDOM OF THOUGHT, CONCIENCE AND RELIGION
The much criticized Schools National Pledge goes like this:
“Almighty God, in whose hands our future lies, I salute the national flag. Respecting the brave fathers and mothers who lost lives in the Chimurenga/Umvukela. We are proud inheritors of the richness of our natural resources. We are proud creators and participants in our vibrant traditions and cultures. I commit to honesty and the dignity of hard work.”
There are several striking issues surrounding the coming into effect of the National Pledge, the contents of the Pledge itself as well as the effects it leaves on the children‟s mind. All these have legal implications.
Freedom of religion undermined.
As stated earlier on, the Constitution in Section 60 inter alia, guarantees freedom of religion to every person including the child. This is supported by Article 9 of the Charter and Article 14 of the Convention as mentioned above. From its contents, the
National Pledge expressly makes reference to “Almighty God” right from the beginning. One needs not be Einstein to recognise that this is addressed to “Almighty God”. A meaning of the word pledge will bring more light to this. According to Merriam Webster Dictionary, a pledge is a binding promise to do or forbear. Therefore, it becomes a solemn oath or a binding promise made before (as a witness) or to a deity, a higher or divine power. A pledge to, or before Almighty God. Its effect is two-fold.
First of all it goes against various religious practices that forbid taking of oaths. For example it will be against those that believe in the bible and are bound by it to take such oaths (Leviticus 5:4). The court in Holden v Board of Education of the city of
Elizabeth had this to say with regards to the child‟s right to freedom of religion against practices similar to Zimbabwe‟s National Pledge “Neither our domestic tranquillity in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation. If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremony, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution. As such, it is inconsistent with our Constitution’s plan and purpose.” And the terms religion and belief are to be broadly construed to include every religious practices.
Another serious impact it poses is with regards to Agnostics and Atheists children. It will be a serious violation of their beliefs that they should take such an oath or pledge. It is clearly apparent that the National Pledge is a violation of the freedom of religion, bearing in mind that all children regardless of their religion have the right to attend school.18 Section 60 (3) clearly states that only parents and guardians have the right to determine in accordance with their beliefs, moral and religious convictions the upbringing of their children. The Constitution could not have been any clearer that the Primary and Secondary Education ministry cannot determine the moral or religious upbringing of minors without roping in the parents of such minors. It has to be borne in mind that, if not manifested which is the case here, this right is absolute.
Freedom of thought and conscience trampled upon. The Schools National Pledge has become a fly in the face of the child‟s freedom of thought and conscience. It is important to note that within its nature, freedom of thought includes the freedom against having ideas forced down on an individual. Such a right if not manifested is absolute in every respect. This is against the common knowledge that the National Pledge is mandatory in all schools. Two serious issues inherent in it are introduced here that is: indoctrination and forced patriotism. Indoctrination is teaching a person to accept a set of beliefs uncritically or to often repeat an idea or belief to someone in order to make them accept it. It is more or less similar to forced patriotism-involuntary vigorous support for one‟s country. The elements of indoctrination and forced patriotism are apparent in the contents and recitation of the National Pledge. The ideas of the National Pledge are repeated every school day, it has been mandatory from the beginning and the obvious consequence is that it would generate support for one‟s country.
Commenting on the idea similar to the Zimbabwean one of “saluting the national flag”, the court in People v Sandstrom had this to say “A salute of the flag is a gesture of love and respect . . . fine when there is real love and respect. The flag is dishonoured by a salute by a child in reluctant and terrified obedience to a command of secular authority which clashes with the dictates of conscience. The flag „cherished by all our hearts‟ should not be soiled by the tears of a little child. The Constitution does not permit and … never intended that the flag should be so soiled and dishonoured. ” It should be noted that liberty of conscience is not subject to uncontrolled administrative action . The very idea that it is mandatory is against the child‟s freedom of thought and conscience as well as freedom of expression in that the freedom confers with it the right to conscientious objection.
Such practices as the recital of the National Pledge defeats the purpose of the Convention which was brought about with the desire and aim by the international community to get rid of all kind of practices as was common during the first and second World Wars of having children as soldiers and spies of the state which more often than not comes as a result of children indoctrination. It is the writer‟s submission (but does not intend to dwell much on it) that the child‟s free conscience will be damaged close beyond repair especially when the recited Pledge does not tally with the truth, for instance, the fact that the child is the proud inheritor of the natural resources when in actual fact a few Zimbabweans enjoy these resources. However, all in all, the right to freedom of conscience is violated when the Pledge is mandatory.
OTHER JURISDICTIONS ON FORCED PARTRIOTISM
On November 10 2012, the Michigan Senate passed a bill directing every school board to “ensure that each pupil in each public school it operates is required to recite the pledge of allegiance to the flag of the United States each school day.” A separate section clarifies that pupils “shall not be compelled” to recite the pledge against pupil or parental objections. However, the Supreme Court, it turns out, addressed these questions in a classic statement of American liberty and intellectual freedom in education: West Virginia State Board of Education v. Barnette (1943).
“If there is any fixed star in our constitutional constellation,” ruled the Court, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
This serves as a classic example that our jurisdiction ought to adopt such a stance when confronted with conduct of such kind from the executive. The rights of the child in every case should be accorded a generous interpretation.
THE CASE OF A SUB-STANDARD POLICY
The Constitution in Section 19 has qualified any policy that the state seeks to adopt with regards to matters relating to children. Section 19 has made the following as the qualifications:
(i) The best interests of the child should be considered
(ii) Reasonable policies
(iii) Measures to ensure that children are not required to perform services that are inappropriate for their age and place at risk the child‟s…mental health and spiritual well being
A generous examination of the National Pledge against these requirements exposes the unconstitutionality that surrounds the National Pledge. Had it been done in consideration of the best interests of the child then the responsible ministry would have considered the fundamental rights and freedoms it would violate. This would inevitably make it difficult to pass the reasonability tests. Furthermore, taking into consideration the fact that, parents and guardians have the ultimate authority to determine in accordance with their beliefs, the way their children are supposed to be brought up, a stakeholder consultation was necessary . This is also in tandem with the provisions of Section 194 of the Constitution which requires that the Ministry, among others should encourage the public to participate in policy making . Again, the criticism is simple: in failing to consult extensively with parents and society at large, the ministry and its minister have failed in discharging their constitutional duties.
Section 68 guarantees the right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. The Administrative Justice Act defines administrative conduct as any action or decision taken by the administrative authority . In this case, the Ministry of Primary and Secondary Education is the administrative authority. In the spirit of this provision, the Minister, Dr. Lazarus Dokora was dutifully obliged to provide reasonable opportunity for the affected parties to be represented before the decision could be finalised. Furthermore, adequate notice of intended administrative action must be given to affected parties which in this case mean parents. In terms of the minimum content of fairness envisaged in the Act, it is clear that the minister has, once again, violated this piece of legislation and on this basis alone, his actions can be said to be unreasonable and procedurally unfair.
It can be noted from the above write up that the Schools National Pledge is unlawful. It is a violation not only of the Constitution and rights provided therein but also a procedural violation of the law surrounded by unreasonable conduct. It was unlawful from its making, its substantive content and up to the practice thereof. It is the writer‟s submission that it was crafted with a somewhat selfish, politically intended purpose rather than for the best interests of the child.