Section 4 of the Education Act [Chapter 25:04]..., provides as follows:
“(1) Notwithstanding anything to the contrary contained in any other enactment, but subject to this Act, every child in Zimbabwe shall have the right to school education.
(2) Subject to subsection (5), no child in Zimbabwe shall —
(a) Be refused admission to any school; or
(b) Be discriminated against by the imposition of onerous terms and conditions in regard to his admission to any school;
on the grounds of his race, tribe, place of origin, national or ethnic origin, political opinions, colour, creed or gender.
(3)…,.
(4) Any person who contravenes subsection (2) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
(5) It shall be a defence in any criminal proceedings for an offence under subsection (2) for the accused person to show, that, though he committed the act alleged against him —
(a) He committed the act on the grounds of the creed of the child against whom the act was committed, but he did so because the school concerned is controlled by a bona fide religious organization and members of that religious organization or adherents of a particular religious belief are accorded preference in admission to that school; or
(b) He committed the act on the grounds of the gender of the child against whom the act was committed, but...,.”...,.
What section 4(2) of the Education Act prohibits is the refusal of, or, discrimination against any child in regard to his admission to any school on the grounds of his creed, etc.
The plain wording of this subsection is silent as to any discrimination that might occur after the child has been admitted to the school.
It would, in my view, be improper to extend the express language of the provision to cover conduct that is omitted, particularly where its contravention imports criminal sanction in terms of subsection (4). This view is fortified by paragraph (a) of sub-section (5) which affords the accused person a defence against a criminal charge for an offence under sub section (2) with specific reference to admission to the school.
In short, the prohibition envisaged by section 4(2) of the Education Act does not extend to any allegedly discriminatory conduct committed after admission to the school....,.
The defence contemplated by paragraph (a) of subsection (5) is also very specific.
It enables the accused person to justify his refusal to admit or discriminate on the ground of creed on the basis, that, the school concerned is controlled by a religious organisation and that members of that religious organisation or adherents of a particular religious belief are accorded preference in admission to that school.
In effect, this provision expressly allows discrimination, in admission to the school, on the ground of creed or religion in the circumstances prescribed.
Of course, this does not mean that a child who is deliberately discriminated against on the ground of religion, after his or her admission to the school, is left without any legal recourse or remedy.
Depending on the circumstances of the case, he or she will always be entitled to invoke the constitutional rights to freedom of religion and protection from discrimination in order to challenge and counter any discriminatory conduct in violation of those rights.
