The right to wear hijab, versus the right to school uniform
Justice Saka Oyejide Falola of the Osun High Court on June 3, ruled that Muslim female students should be allowed to wear the hijab in all public schools in the state. According to him, it is part of their fundamental rights as enshrined in the 1999 Constitution as amended. The Christian Association of Nigeria (CAN), in an emergency meeting following the ruling, threatened to direct Christian students in the state, to wear their choir robes and other religious garments to school in compliance with the judgment. They made good their threat as some students reportedly went to school dressed in choir robes and other garments depicting their distinct religious affiliations. As a result, JOSEPH ONYEKWERE, BRIDGET CHIEDU ONOCHIE AND GODWIN DUNIA sought the views of some senior lawyers on the development. While some agree with the judgment, others say no.
Former Attorney General of the Federation and Minister of Justice, Chief Akin Olujimi (SAN), expressed the need to isolate religion totally from matters that have to do with the education of Nigerian children.
Describing the scenario where students have to dress to school according to their religious beliefs as disturbing and laughable, Chief Olujimi urged the players not to undermine the fact that the future of the children was at stake.
He noted that uniforms, when prescribed for students and pupils in public schools must be complied with, that encouraging otherwise would amount to efforts at destroying education in the state.
His words: “One thing people should not forget is that the future of this country should be of primary importance to all of us. Education is no doubt very important in building a nation and when you are training your youths, you have to bear in mind that they are the leaders of tomorrow.So, we must all learn to avoid anything that would create clog to the effort to develop these children.
“The situation that we have in Osun State is disturbing and very laughable. I saw the pictures in the papers and my heart went chilly because looking at that kind of situation, they have introduced religion to create a problem.
“Now, Christians wear their religious uniform to school, the Muslims also wear their own. It is a very serious matter. There is a need for us to remove religion totally from matters that have to do with education. We all went to school and I cannot remember anything like this happened when we were there. They prescribed uniform for students, anybody who wants to attend that public school must comply with the uniforms prescribed for the students. You cannot say because you are a Muslim, you want to put on a particular kind of dress while the Christians also put on their own kind of dress. That will destroy education and we seem not to appreciate that we are joking with the future of this country.”
Mallam Yusuf Ali (SAN) called for caution. According to him, the rights of non Muslims will not be affected by what the Muslims wear. He said: “Some people went to court to say they want their rights to be protected and the court said yes, we are enforcing the right. I think that we should all be law abiding, to start with. But unfortunately, most things in this country polarized along religious divide. I don’t see how the interest of non-muslim is affected by the fact that Muslims are to dress in a particular way. For me, I don’t see crisis there. If Christians say it is also their right to be wearing choir uniforms to school, what does it matter to me?
“ For me, the only thing that will be offensive is when they go to school naked. If somebody likes, he can wear agbada or blazers, I don’t see an issue there. If they say that is how they want to go to school, so be it. I don’t see any crisis there and we should not promote any. It is their right! The court said that wearing of hijab is part of the fundamental rights of the students and as law abiding citizens, we should obey the court. If any party is dissatisfied with the decision of the court, the constitution says the party should appeal the decision. That is what I prescribed to the affected parties in Osun as a lawyer.”
A constitutional lawyer, Mr. Sebastine Hon (SAN) blamed Osun state governor for the impasse. According to him, he (governor) started it all by merging the schools. Citing the constitution, he said: “Section 38 subsection 3 of the constitutions says that no religious community or denomination shall be prevented from providing religious instructions for pupils of that community or denomination in any place of education maintained wholly by that community or denomination”.
So if he had allowed the Christian schools to be maintained by the Christians and the Muslim schools to be maintained by Muslims, this issue would not have arisen. Each school would have to teach the students moral lessons which include mode of dressing. I think he can undo that, it is not late. It is statesmanly for him to do that than to allow the situation to degenerate further. Having said that, wearing of Hijab or Niqab by female muslims have been subject of judicial interpretations by various courts in United States of America, Canada and European Court of Human Rights.”
He explained that an aggregation of those decisions showed that a lot of considerations are taken into account. “For instance, the right of others to coexist with female Muslims without security threats. In July 1, 2014, a European Human Rights Court gave a decision where in France, Muslim women where banned from wearing Niqab and a Muslim woman challenged the decision in that court that it amounts to infringement on her European convention rights. The court held that the lady could not prove the breach of her freedom of association. She also could not prove discrimination. Therefore, the prayers were refused”, he stated.
He further added that wearing of hijab in public places is not unconstitutional but can be regulated when security concerns are raised. “So, we have to strike a balance. When it is for public safety and security, it can be banned. If it is not, it cannot be banned. In United States of America, a private organization refused to employ Muslim women because she is wearing hijab. She filed a suit. On the 1st October 2013, a 10 circuit of the court of appeal held that such action was unconstitutional. Then, the private organization appealed to the Supreme Court and in 2015, the US Supreme Court affirmed the decision of the court of appeal.
“In Canada, in the case of R against NS, a female Muslim was a victim of sexual assault. The question was whether she could wear a Niqab and enter into the witness box. Objection was taken against her entering into the witness box under that regalia. The supreme court of Canada also took a major course. It respected the importance of religious practices and said that the degree of the state interference with that practice in the court room should be measured.
It also considered the broader society harms such as disparaging hijab wearing women from participating in a justice system. It also considered the nature of the case and the liberty of the accused and the evidence of the Niqab wearing women. As a general rule, it concluded that no witness shall wear a Niqab to a witness box and therefore said that there should be a balance between the right to fair hearing and that the judges needs to see the face of the person to be able to determine her demeanor.
“So the judges should use their discretion properly at every given time. Wearing of hijab is protected. However, it can be restricted under certain circumstances under section 45 of the constitution. For instance, when it will create security risk. Secondly, it is not good to expose school children of that age into conflict based on religion. To this end, I will say that what is happening in Osun state does not enjoy my support and I believe that the governor has the power to stop it before it generates into more serious problem”, he declared.
Speaking further, Hon said: “The decision of the state high court is constitutional. If you look at section 38 (1) what is protected is freedom of thought, conscience and religion. So if a Muslim considers it unconscionable to expose herself – that is her religion. My problem is that the way it has been managed has exposed the situation to crisis level. If the state government does not come in to tackle the situation, the state house of assembly can make a law pursuant to section 45 of the constitution barring wearing of certain clothes to school at that age, especially when school authorities have stipulated a certain uniform for students. it will now be a law made in a democratic society for the peace and order of the society. As it is now, the situation is already tensed up, so they should act fast.”
But Mr. Emeka Etiaba (SAN), said wearing school uniform is not a fundamental right. He argued further that even when the issue of the right of the child arises, that of the state should take preeminence.
“Individual right cannot overrule that of a State. The right of the child is subject to the rules of the state where he or she is. Otherwise, what we will see is a situation where religious issues begin to take front burners in our society.
“Again, wearing school uniform is not a fundamental right issue. The reason schools wear uniform among others, is to ensure that everybody conforms and have a sense of belonging”, he said.
Etiaba, who expressed fears that the ruling could incite religious crises in the state if not properly managed, asked if a lawyer, rather than wear the stipulated suit, can decide to wear babariga to court because it is his or her fundamental right to wear cloths? He therefore held that anyone who feels that his right has been infringed upon by wearing a uniform like other people in the group he belongs, can as well pull out of the group rather than engage in actions that are capable of plunging the state of Osun into religious crises.
“We all saw what happened the other time where people wore all kinds of attire to school. Such development can lead to state of annomy. What it means is that state cannot even regulate what goes on in schools. Everybody comes in whatever he or she believes is good for him. It is quite wrong and when you talk about fundamental right, fundamental right has limit. Once you infringe on another person’s right, it has to be curtailed”, Etiaba stated.
Ms. Caroline Ajie, a constitutional lawyer said the appellate courts must have to resolve the issue. “The Lagos High Court Judge held “no” to hijab citing sections 10, 38 and 42 of the 1999 Constitution while the Osun High Court Judge held “yes” to hijab also relying on sections 10, 38 and 42 of the Constitution and other similar provisions, both are courts of co-ordinate jurisdictions. So, the appellate courts must have to resolve it one definite way”, she stated.
Mr Joseph Otteh, executive director of Access to Justice said dress code for students of public institutions is usually, a matter of policy and stipulation made by educational authorities. His words: “In many jurisdictions, such policies are made in such a way as to be religion, race and gender neutral; in other words, dress codes should not reflect any peculiar or self-serving religious, cultural or ethnic affinities or be seen as propagating the tenets of any particular systems of belief.
“However, questions of the expression of faith-based identities in educational institutions are not straightforward neither are they simple to decide. Some European countries are now having to navigate the complex trajectories between state policy and individual freedoms. However, there is some prudence in accepting the fact that, in these particular contexts, policy making would, it seems, be better left in the hands of those branches of government which make and execute laws; for example, the legislature of Osun State or the Executive bodies which control the management of public schools.
“If the laws or regulations made by these institutions permit the use of faith-based identities in educational institutions, all well and good. If not, it is still their call. A court’s intervention should clearly be to overrule the choices made by the appropriate organs of government, but to see whether those choices unjustifiably interfere with the rights guaranteed by the Constitution. If, as the facts state, the Osun state High Court has found that they interfere unreasonably with the rights of students to dress in a particular manner, let us respect that decision until it is set aside. There is, of course, need to warn that these matters, given our nation’s history and its contemporary challenges, need to be handled carefully and delicately, so that we do not further exacerbate volatile religious tensions in our nation. ”
Mr. Michael Ogunjobi of Jireh & Greys Attorneys, said some scholars relying on Section 10 of the 1999 Constitution (as amended), opined that Nigeria is a secular State while for others, Nigeria is a multi-religious State.
According to him, the judgment of Justice Falola can be appreciated when viewed from the perspective of relevant constitutional provisions. His words: “First is the doctrine of stare decisis. Sec. 6(5) of the 1999 Constitution (as amended), states the hierarchy of courts in Nigeria. Hence the court placed reliance on the decision of the Appellate Court, Ilorin in The Provost, Kwara State College of Education, Ilorin & ORS V. Basirat Saliu & Ors CA/IL/49/2006 delivered on 18th June 2009.
“Therein, it was held that denial of the use of niqab or hijab by female Muslim students of the College under the pretext of protection of public safety, public order & the rights of others violates Section 38 of the 1999 Constitution. Remarkably, constitutional provisions on religion in Nigeria are in Sections 10, 38, 17 (3) (b), and 42 of the 1999 Constitution, while the limitations are spelt out in Sections 38 and 45 of the 1999 Constitution.
“In distinguishing The Provost, Kwara State College of Education, Ilorin & Ors’ Case, it is pertinent to state that just as Christian missionary schools can prescribe codes of conduct for their students, Muslims can set out regulations for anyone seeking admission into schools ‘wholly maintained’ by them. This is in accordance with Section 38(3) of the 1999 Constitution, which constitute an exception to Section 38(2) of the 1999 Constitution. To sustain the tempo of expanding the horizon of our laws, it is expected that the Apex Court will finally be the arbiter in the hijab law suits emanating from Osun State and that of Lagos State, threatening to polarize the States along religious lines.”
In his reaction, Lagos lawyer, Charles Lambo, said the issue of hijab being part of the school uniform for muslim students in Osun State public School is a misnomer in the real sense of sound reasoning vis-a-vis the accepted order of regulations in public school built by missions of whatever denomination of the Christians faith. He insisted that it is not a fundamental human rights issue.
“The prescribed uniform of each school is regulated by the school authority and the judgment given by Justice Falola is erroneous as chapter 4 of the 1999 Constitution did not envisaged the usurpation of regulations made by the constituent bodies to make laws and regulations that will enhanced orderliness in such bodies.
“Since hijab is not part of the prescribed uniform as to differentiate muslim adherents from other non-muslim students as prescribed by the school authority, it is totally an aberration. If muslim students now add hijab to their uniform, then other faiths are at liberty to wear whatever is suitable to promote their religion.
“The judgment was erroneous and given with bias and therefore not sustainable in appeal if weighed in the light of chapter 4 of the 1999 constitution moreso when the learned judge said that, not allowing them is a breach of their constitutional rights and their human right to wear hijab. I disagreed with the judgement as it is discriminatory”, he declared.