1. Let us not be carried away by public sensationalism and the incessant attacks on Achimota school, for what some section of the public christen as repressive and a targeted attack on religion. The thrust of the issue has little to do with religion but more to do with a movement known for their radical non-conformist ideology. 

Please indulge me, Rastafari, as defined by (www.britannica.com/topic/), is a religious and political movement, trace its root in Jamaica and adopted by many groups around the globe that combines Protestant Christianity, mysticism, and a pan-African political consciousness.

Rastafari “livity,”  includes the wearing of long hair; locked and uncombed in its natural state, adorning clothes in the colours of red, green, gold, and black (which symbolize the life force of blood, herbs, royalty, and Africanness), and eating an “I-tal” (natural, vegetarian) diet. Religious rituals include prayer services, the smoking of ganja (marijuana) to achieve better meditation with Jah.

To profess Rastafarianism invariably means one submits to a prescribed way of life. And to erroneously, call for a ‘wholesale’ recognition of an inalienable right to a religion of choice, contemporaneously, calls for a recognition of all the above as they form the basic tenets underpinning the ‘Rastafari’ faith. From the horse's own mouth, these are the rights the young man under the care of his father is trying to enforce.

Achimota like any educational, religious or administrative of cooperate body private or otherwise have requirements which are justifiably discriminatory under law. The cases of Ayarna v. Agyemang & Nartey v. Gati provides a rational and legitimate basis for discrimination. The case of Neurtey Korboe v. Amosa emphasizes that these justifiable discrimination is neither arbitrary nor unreasonable.

2. The justifiable discrimination passes the PROPORTIONALITY TEST, also known as the Oakes Test as demonstrated in the case of Republic v Tommy Thompson Books Ltd (No.2), because the Rastafarian boy is below the age of 18. Article 14(1)(e) states that, “Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except for the purpose of the education or welfare of a person who has not attained the age of 18 years. And thus Article 14(1)(e) of the 1992 Constitution is instructive.

Personal liberty is the right of an individual to behave as one pleases except for those restraints imposed by laws and codes of conduct of the society in which one lives to safeguard the physical, moral, political, and economic welfare of others. I daresay that liberty has little to do with the right of movement but rather focuses on the freedom to live by your beliefs, principles, religion and to do as you please free from fear or abuse. This right can be restricted in Ghana for the purpose of EDUCATION of a person who has not attained the age of 18 years.

Let’s take a critical look at the letter and tenor of Article 25 (Educational Rights) specifically 25(b) secondary school in its different forms shall be made generally available and accessible to all by every appropriate means… Does this mean it is unconstitutional to make rules of justifiable discrimination/ requirement to regulate the enjoyment of these rights?  This will bring us to 12(2) which emphasises rights are subject to the rights and freedoms of others (enjoyment of equal rights) and public interest.

For purposes of elucidation, the apex court of the land has poignantly defined the scope of what constitutes public interest. In the landmark case of Ablakwa V Obetsebi-Lamptey, the court ascribed a narrow connotation to public interest. The court in its ingenuity maintains that an act which affects a section of the population may be deemed to be affecting the public interest.

3. Let me help you define “discriminate”. Article 17(3) states that “discriminate” means to give different treatment to same or similar persons only or mainly because of 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 or another description.

I heretofore submit that the boy being asked to shave his hair will be unlawfully discriminatory if some other religious group of students are allowed to keep their hair as they please or go against the same rules that are being applied to this young man.  The case of Nartey v. Gati has this to say, “It certainly does not mean that every person within the Ghanaian jurisdiction has, or must have, exactly the same rights as all other persons in the jurisdiction.  Such a position is simply not practicable. 

Soldiers, policemen, students and judges, for instance, have certain rights that other persons do not have.  The fact that they have such rights does not mean that they are in breach of Article 17. Rigid equal treatment would often result in unfair and unequal results. 

Accordingly, it is widely recognized that equality before the law requires equal treatment of those similarly placed. The provision that all persons shall be equal before the law is, therefore, to be understood in such a context, taking a cue from the fact that there are no absolute rights contained in the 1992 Constitution 1992.

This authority is clear on this issue because the young man who like other academically qualified young students have subjected themselves to the requirements of the school. They are all equally placed and must be treated equally, permitting the young man to smoke ganja, wear locks, Rastafari apparel or anything out of the rules and regulations of the school which past and present student have been subjected to is gross discrimination. And this is the injustice.

4. Last but not least, Achimota did not refuse him admission because of his religious beliefs. They only asked him as a child to subject himself to the rules and regulations of the school. Nobody is above the law because of his superior religious beliefs which are varying and subjective.

There is a condition to be met by everyone not just him. Taylor J poignantly posits in the case of MARHABA AND OTHERS V. THE REPUBLIC [1978] that, “it is obvious that everything that has reference to human wants and the manner of satisfying them is, merely empirical and subject to constant change and there is therefore not a single rule of law whose positive content can be fixed.

The only thing  one can hazard as regards the content of law is as Thomas Aquinas would have it that it must have as its proper object the well-being of the whole community, in other words, law strictly understood must have as its object the ordering of the common good”

5. Muslims, Christian, traditionalist etc have attended the school over the years and have been subjected to the same body of laws. How peculiar is his case? Don’t we have Rastafarians without locks? We do, but unfortunately we do not have one Achimota student past or present with locks, therefore it will be unlawfully discriminatory to admit him. He qualifies for other schools, it is not imperative for a Rastafarian to attend Achimota.

I doubt his religion makes that too, a prerequisite to being a good Rastafarian. It is trite knowledge that Achimota has over the years admitted children from different religious and cultural who are fully aware of the requirements of the school and apply themselves to the rules and regulations of the school which form part of the body or sources of laws contemplated in Article 11 of Constitution 1992.

If a citizen elects to join the security services i.e. Ghana Armed Forces, Police Force etc, he or she subjects him/herself to the rules and regulations which are justifiably discriminatory. If a Christian goes to the mosque to worship on Sunday because there is no church close by he would have to remove his shoes and respect their rules. Christians are not barred from entering a shrine but you need to obey their justifiably discriminatory rules.

6. Sincerely, I would love to see the lawyers representing the young Rastafarian address the justices of the court in traditional African wear. They can highlight the whole Chapter Five of the Constitution 1992 which stipulates a plethora of Human Rights provisions and they might end up being thrown out of court. 

The law has exceptions for a reason, let’s learn to take notes of those key exceptions to the Law instead of take popular, obvious and emotional position on issues.

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The writer, Theophilus Kwampong Abuah, is a social activist, student leader, and final year student at GIMPA Law Faculty.