Children's Right to Education versus their Right to Religion and Culture in South Africa: With Specific Reference to the Wearing of a Headscarf in South African School

Abstract

In terms of section 29(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution), ''everyone has the right to basic education''. At the same time the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion, and the right to participate in the cultural life of his or her choice. Children's right to education versus their right to religion and culture is a highly debated topic in South Africa. The Constitution guarantees both the right to education and the right to religion and culture. In the culturally diverse South African environment the right to education and the child's right to participate in the cultural life of their choice may conflict with each other. The conflict referred to can mean that the child's right to participate in the cultural life of his or her choice might be sacrificed to the right to education. One such instance is the wearing of a headscarf in schools. The headscarf, also known as a hijab, is a traditional piece of clothing worn by Muslim women in accordance with their religious beliefs. The wearing of a headscarf in schools has become a contentious issue as it is seen by some as conflicting with the principles of education and the dress codes of schools. The government has a constitutional obligation to provide basic education to all children in the country. This right is seen as a crucial factor in ensuring that children can develop to their full potential. On the other hand, the right to religion and culture is equally important as it allows individuals to practice their religious beliefs and maintain their cultural identity. To evaluate discrimination against children in a culturally diverse classroom, it is mandatory to look at what the right to basic education entails and what obligations this right place on the state – more specifically on the Department of Basic Education – when it comes to promoting the right to basic education while protecting children's other constitutional rights. The government must adopt a balanced approach to ensure that both the right to education and the right to religion and culture are respected and protected. This study will investigate whether the state fulfils its obligation to protect the child's constitutional right to basic education without infringing on the child's right to religion and culture.