The manipulation of belief systems not only undermines the integrity of individual choice but also fosters division among communities. As society becomes increasingly pluralistic, it is essential to confront these disparities and strive for a more equitable approach that respects all viewpoints without compromising the essence of personal freedom. Our interpretation and application of religious teachings in modern life is often subjective. Religious scholars' and believers' understandings of the teachings of their books and doctrines, as opposed to parallel doctrines held by others, highlight the assertive subjectivity in debates when compared to judges espousing their knowledge of constitutional law for our collective good.
In pluralistic societies like Ghana, constitutional law establishes a framework for the acceptance of multi-religious practices; however, this framework often becomes ineffective when religious doctrines are practised selfishly and without restraint. In a pluralistic society, individuals' fundamental human rights may be undermined or trampled upon in the struggle for dominance, supremacy, and majoritarian control. The irony is that the actors are swiftly attempting to claim the courts' jurisdiction to consider matters filed before them under constitutional law restitution. The boisterous thrill with which cases are filed and/or transferred from courtrooms to seek selfish and parochial favour under the guise of restitution exposes the terrible story of religious faiths suffocating constitutional law by playing chess with human rights.
Consider a few scenarios, the first of which is conversion based on interfaith marriage.In classical Islamic jurisprudence, a Muslim woman cannot marry a non-Muslim man, although a Muslim man can marry a "People of the Book" woman. Many current Muslims still regard this as binding. Non-Muslims may view this as a requirement that limits their ability to form associations and marry, which are important enshrined human rights. According to Muslims who hold it, it is a religious barrier rather than a civic one, and constitutional law becomes a subservient to a religious doctrine.
This dilemma arises when a secular constitution provides freedom of association and marriage, while religious communities impose membership requirements. Legal systems often prohibit forcing religious bodies to execute or recognise marriages. However, couples can still marry under civil law if their country allows it. Article 21 of Ghana's constitution guarantees freedom of religion and association, while also recognising customary and religious marriages. The issue is that Ghana does not offer a full legal marriage option that allows all residents to avoid religious restrictions. In effect, the religious condition limits possibilities and undermines the supremacy of constitutional law, which established human rights and equality for all in a republican society like Ghana.
Another is the Wesley Girls’ SHS case and “double standard” argument. Remember Islam ran to court to insist on breaches of fundamental human rights of students' choice of religion and its practices any where in Ghana under the pretext of equal rights to education? It was alluded that Muslim students at Wesley Girls’ were allegedly prevented from fasting during Ramadan, citing school health policy. Some Muslim groups sued, arguing breach of Article 21(1)(c) - freedom to practice religion. If the argument is “my religious practice is a fundamental right that the school must accommodate,” then denying a non-Muslim man the right to marry a Muslim woman without converting also looks like a religious rule overriding individual choice.
The understanding of the two flagged as an inconsistency spiral down to individual human rights as a datum and sandwiched between constitutional law and religious doctrine supremacy. The first is appealing to constitutional rights when you’re the minority in an institution, but invoking religious law to limit others’ choices when you’re the majority in that personal domain. However, mentioned was that human rights at time cannot be the yardstick measure and expect similarities.
From a legal-philosophy view, there’s a distinction: the Wesley Girls case is about state/ quasi-state institutions restricting religious practice. The marriage rule is about private religious communities setting conditions for their own rites. To say in furtherance that constitutions usually restrain the state and not private religious doctrine is mind-boggling. But I get why it feels like hypocrisy when the same actors use both frames for their parochial gains. Much as this highlights fairness of the law to others on one side of the coin, yet it raises critical questions about the balance between individual freedoms and collective beliefs in a diverse society.
The obvious striking revelation that constitutional law is oblivion to is the clandestine selfish tactics perpetuated by all the religions in Ghana except African Traditional Religion (ATR). All, except ATR are well positioned and grounded by law to increase their numbers regardless, and under no circumstance can the approach of any be frown on as a constitutional breach. Thus, they have carved selfish niches to increase numbers and demography matters to institutions in this regard - no denying it.
Lets spill the beans here! Marriage and conversion rules, school environments, proselytisation - they all affect group size and influence. Because every philosopher knows that, even if without faith, numbers can mean or do a lot to any grouping, and its common sense. For instance, when a rule says “marry in or convert,” that functionality is to increase retention and growth. Critics call that strategic. Adherents call it preserving theological integrity. Both can be true at once. The test for a pluralistic society is whether the state enforces those rules on non-adherents.
The Wesley Girls stalemate is one too many that judges dares not rule on. Cases like this are damn politically loaded because they pit two constitutional goods: freedom of religion up in arms with the right of institutions to set rules. Judges also know rulings will be read as “Christian school wins” or “Muslims win,” not just law. So delays happen. It’s not unique to Ghana - see France’s hijab laws, US cases on school prayer, India’s hijab case in Karnataka. Courts move slowly when any ruling escalates social tension, hence anticipate no judgement anytime sooner in anybody's lifetime.
In any event, the core dilemma with pluralism clashing are two titans. One is the negative liberty wherein the state shouldn’t stop a citizen from practising his/her faith. The other is the equal treatment with which the state shouldn’t let private religious rules determine human rights for others. I see the constitution not being supreme due to such glaring lacunae that gag judges to make the needed swift ruling on cases like this brought before courts. When religious communities want both i.e. protection from the state and authority over membership terms that affect outsiders - we get the double-standard registered.
Where does that leave us as a people? Three honest positions exist so far us situation like continue to happen. Firstly, secularist may hold the view that the state must ensure civil alternatives so religious rules don’t bind non-adherents. Civil marriage for all, and schools can’t restrict personal practice unless there’s a clear health/safety case. Secondly, pluralist-communitarian may say religious groups have a right to set internal rules, even if they look restrictive, provided no one is forced to join. The state’s job is to protect exit rights, not rewrite doctrine. Lastly, majoritarian religious norms should shape public life where that faith is dominant.
The argument advanced in this article is tilted to the first and pointing out when others switch between the other two depending on context. The objective was never to defend or attack Islamic doctrine - that’s for scholars and adherents. However, the observation about inconsistent appeals to “rights” is real, and it’s one of the main tensions in every diverse democracy.
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