Re Chikweche [1995] ICHRL 19 (27 March 1995)

Zimbabwe
1995 (4) BCLR 533 (ZS); [1996] 1 CHRLD 26
For the Applicant: T Biti, Honey & Blackenberg
For the Attorney General: ET Binali, Civil Division of the Attorney General's Office
The applicant, a Rastifarian, applied for registration as a legal practitioner and was
approved by the Law Society. The High Court, however, declined to permit him to
take the oath of loyalty and of office in view of his dreadlocks hairstyle. It was
unclear from the judgment of the High Court whether the refusal was based on the
failure of the applicant to show that he was a fit and proper person as required
under statute or upon a rule of practice that members of the legal profession must be
formally dressed, tidy and well-groomed. The applicant contended that the High
Court refusal infringed his constitutional rights to (a) freedom of conscience; (b)
freedom of expression; and (c) protection from discriminatory treatment.
In directing the High Court to permit the applicant to take the oaths, it was held that:
1. Rastafarianism had the status of a religion (McNally J expressing
reservations) and, in any event, freedom of conscience was intended to
encompass and protect systems of belief which were not religiously motivated
or centred on a deity.
2. The wearing of dreadlocks was a symbolic expression of the religious beliefs
of the Rastafari and the court should not be concerned with the validity or
attraction of religious beliefs, only with their sincerity.
3. The permitted limitations to freedom of religion contained in the relevant
section were inapplicable in the present case because (a) the rule of practice
had no legal basis as it was not contained in or under the authority of any
law; or alternatively (b) the statutory requirement of being a fit and proper
person alluded to personal qualities, and appearance bore no rational
connection with the object of the statute in maintaining the integrity and
honour of the profession.
4. The applicants right to freedom of religion had been contravened and he
must be allowed to take the requisite oaths.
5. It was unnecessary in view of this conclusion to examine the submissions
relating to freedom of expression and discrimination.

Attride-Stirling v Attorney General [1995] ICHRL 20 (30 March 1995)

Bermuda
[1995] 1 LRC 234; [1996] 1 CHRLD 24
For the Appellant: Ian Kawaley
For the Respondent: Peter DeJulio
The appellant had reported under s. 13A of the Defence Act 1965 for selection for
military service. By the time a notice had been served requiring him to present
himself for medical examination and enlistment, he had formed the view that he could
not in conscience serve within a military organisation whatever the role. He lodged an
application to be registered as a conscientious objector under s. 27(1) of the Act
which provided that a person may, after reporting under s. 13A, apply to the
exemption tribunal on the grounds that he conscientiously objects to performing
combatant duties. At the appellants hearing before the tribunal, the Chairman
concluded that the role of the Bermuda Regiment was mainly to assist the police in
civil disorder in times of national emergency such as hurricanes, and that assistance
in external defence was a minor role unlikely to be exercised in the appellants
lifetime. He recommended, therefore, that the appellant serve in a non-combatant
role and this was confirmed by the Governor. The appellant applied to the Supreme
Court for a declaration that, as s. 27 failed to provide for possible total exemption, it
was inconsistent inter alia with the constitutional right to freedom of conscience. The
Supreme Court held that the Act did not make provision for exempting conscientious
objectors as such from military service and the appellant appealed.
In allowing the appeal, it was held that:
1. As the Defence Act exempted only those who genuinely object to being
required to do combatant duty, it hindered the right to freedom of conscience
of those whose objection extended to serving in a military organisation in any
capacity whatsoever and it was not for the court to consider whether such
attitude was reasonable.
2. Further, the right claimed had been sanctioned by resolution A. 3-15/89 of the
European Parliament in Strasbourg which had called for the right to be
granted to all conscripts at any time to refuse military service, whether armed
or unarmed on grounds of conscience. The Constitution had been greatly
influenced by the European Convention of Human Rights which had been
signed and ratified by the United Kingdom and applied to dependent
territories including Bermuda.
3. To force conscientious objectors to serve as members of a military
organisation, if like service could be done in a non-military organisation, could
not be regarded as reasonably required in the interests of defence, public
safety or public order as a constitutionally permitted restriction. As the
Attorney General had himself admitted, the effect on defence would be small.
4. The provisions of s. 27, however, were not to be declared void as they were
unobjectionable in so far as they related to conscientious objectors seeking
exemption from combatant duties only. It was sufficient to declare that the
Defence Act be read as exempting any persons able to show that they
conscientiously object to serving in a military organisation with the effect that
the exemption tribunal may now entertain such applications and the Governor
may grant total exemptions from military service.