The constitutional Court has declared that the practice of Uganda National Examinations Board (UNEB) of organizing exams to be written on Muslim religious holidays, unconstitutional since it is inconsistent with and in contravention of the religious freedoms of Muslim students.
A panel of five justices namely; Fredrick Egonda Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamir Kibeedi and Irene Mulyagonja in a ruling delivered on Tuesday declared that, holding exams on days such as Eid-ul-Fitri (marking the end of Ramadhan), and Eid-al-Adhuha (feast of sacrifice), infringes with the Muslim students’ right to manifest their practice of religion through observance of those religious holidays as guaranteed under the 1995 Constitution.
The Court thus issued a permanent injunction restraining UNEB from conducting exams on Muslim religious holidays and also ordered that if in its schedules made before ascertaining the exact date of any Muslim religious holiday, the examination so arranged shall be postponed to a later date.
The ruling stems from a 2013 petition by Sadik Kakaire and Sulaiman Isotah Magumba against the examinations body and Fagil Mandy who was its chairman at the time, seeking permanent orders restraining UNEB from conducting examinations on any day coinciding with any of the relevant Muslim religious holidays.
The petitioners through their lawyers led by Najib Mujuzi told court that the actions of UNEB to organize national Examinations on days that coincide with Eid-al-Adhuha and Eid-ul-Fitr, were inconsistent with a number of constitutional Articles.
They for instance, named articles that provide for non-adoption of a state religion, fundamental and other human rights, freedoms which are inherent, equality and freedom from discrimination, respect and protection from inhumane treatment, protection of freedom of conscience, expression, movement, religion, assembly and association.
The petitioners submitted to court timetables of exams UNEB conducted in the years 2003, 2004, 2005,2006 and 2012 as part of their evidence.
They stated that even in 2013, UNEB had organized examinations on Eid-al-Adhuha day but they were reportedly forced to reschedule the examinations due to the pressure from the Muslim community.
Fagil Mandy was specifically sued for having insisted that the exams would go on in 2013 on Eid-al-Adhuha day despite it being declared a public holiday by the government.
But during the case hearing, UNEB and Mandy who were represented by principal state attorney, Geoffrey Atwiine argued that the petition was raising allegations that concerned acts that did not occur in 2013 and may never occur again.
Court also heard that the petitioners never adduced evidence to show that there were examinations conducted on October 15, 2013 that coincided with Eid-al-Adhuha in that year.
UNEB also argued that when making timetables, it doesn’t consider any religious preferences but simply do so in exercise of their mandate under the law.
However, in their decision, Justice Elizabeth Musoke who wrote the lead judgement explained that the way she understood the petitioners case was that the practice of UNEB when organizing examination timetables is that examinations can be conducted on the relevant Muslim religious holidays and such practice had never been abandoned and it continues to date.
Much as she agreed with the respondents that there was no any evidence as to whether UNEB since 2013 conducted exams on Muslim religious holidays, Musoke stated that the fact that no formal renunciation has been made by UNEB means that it’s act of implementing such practices was done in the years stated by the petitioners and is most likely to continue in future.
“In the year 2013, the fist respondent/ UNEB in fact amended the examination timetable and postponed examinations that had been scheduled to be conducted on relevant Muslim religious holiday to a later date. This strengthens my conviction that reasonable accommodation of the rights of Muslim students can be achieved through postponement as has been stated in this judgement” reads the judgment in part.
She added that in order to uphold the rights of students of the Muslim faith to manifest their practice of religion through observance of Muslim religious holidays, there is reasonable accommodation that requires UNEB to refrain from organizing examinations to be carried out on the relevant days.
“I would therefore declare that the practice of the first respondent/UNEB in organizing for examination for students under its mandate to be written on days coinciding with any of the relevant Muslim religious holidays is inconsistent with and in contravention of the right to freedom of religion of Muslim students, in particular the right to manifest their practice of religion through observance of the relevant Muslim religious holidays as guaranteed under the 1995 Constitution” said Musoke.
Musoke also ordered that the Petitioners be paid costs of the petition.