Misbau Alamu Lateef, PhD
Religion is a delicate issue, particularly in Nigeria, where adherents of the dominant religions, Christians and Muslims, seem to be in a perpetual and sometimes destructive mutual suspicion, distrust, or competition. Therefore, it is understandable why the current adjustment to police uniform by the Inspector General of Police (IGP) in Nigeria has sparked another round of religious controversy in the polity. In a report generally available online, the IGP recently approved a new dress code for women officers, permitting them to wear stud earrings and headscarf under their berets or peak caps as the case may be. The dress code was reportedly unveiled at the IGP’s meeting with Strategic Police Managers on March 3, 2022. According to the report, the IGP noted that the Nigeria Police workforce has officers from every local government area with varying ethnic and religious backgrounds, thus warranting the need for increased inclusion of female folks, gender mainstreaming, and diversity for optimum output and professionalism.
From the report, the objectives of the Nigerian Police are crystal clear. It is instructive to note also that no religious words such as ‘hijab’ or ‘Islamic’ or ‘Muslim’ were used in the statements of the Nigerian Police. Now, the stated objectives of the Nigerian Police can be summarised in two words: diversity and inclusivity. As a matter of fact, these objectives are also consistent with the global standard practice of other police institutions around the world that have approved the headscarf or hijab for their officers. Some striking examples of such global standard practice can be found with the Metropolitan Police (Met Police) in London, and the Police Scotland, both in the United Kingdom; the New York Police Department (NYPD) – and all over the United States of America; the Royal Canadian Mounted Police (RCMP) as well as the police officers in the Canadian cities of Toronto, Edmonton and Vancouver; the Australian Federal Police (AFP); the Swedish Police Authority (SPA); the New Zealand Police Force; the South African Police Service (SAPC) and the South African Military Force, amongst other. There are also other police forces around the world in which the hijab, or to put it better, the headscarf, is literally banned. Some of such are in Europe, and France appears the most prominent. Even at that, the pro-hijab groups in those countries are very strong.
However, many commentators in Nigeria, and perhaps for obvious reasons, have interpreted the new development in the Nigerian Police to mean approval for the use of the hijab, a religious adornment worn mainly by Muslim women following their faith (recall again that the police statement did not use any religious term or justification). Some have also pushed the comments further to accuse the IGP of using his office to promote the Islamic religion or push a religious agenda. In this piece, I intend to examine the arguments for and against the current ‘hijab’ (read headscarf) adjustment to the police uniform by the IGP from both the jurisprudence of human rights and the 1999 Constitution of Nigeria. In other words, is allowance of the ‘hijab’ or, to put better, a headscarf, for Muslim policewomen a violation of sections 10 and 42 of the 1999 Constitution of Nigeria as posited by many, including but not limited to Mr Ebun Olu-Adegboruwa, a senior advocate of Nigeria (SAN). Interestingly, both sides of the divide rely on human rights jurisprudence and provisions of the 1999 Constitution of Nigeria.
Before examining either side of the arguments, it is essential to provide some contexts further to aid our understanding of the underlying issues. First, what the Nigerian police has just approved is a headscarf and not necessarily what the Muslims understand as the hijab strictly so-called. What the hijab encapsulates in Islamic theology is another matter entirely outside the purview of this piece. Still, it is sufficient to say that a headscarf, often regarded as the hijab by many Muslims and non-Muslims, is a garment that covers only the hair and neck of the wearer. The truth is, it is not only the Muslims who wear headscarves. However, it would seem that many Muslims worldwide have conceded to the compromise of a headscarf as the hijab. For want of a better adjective, I think such a compromise is imperatively healthy and understandable in every multi-religious society. Second, the idea that Muslim women are forced to wear the hijab or headscarves or face veils or niqab or burqa against their will is particularly persistent in public debates and mainstream media. Sometimes, this idea is pushed further to say that wearing the hijab or headscarves or face veils or niqab or burqa ‘degrades’ women’s dignity, and these Muslim women, therefore, need to be ‘freed.’ Somehow, these ideas also find some legal justifications in the opinions of many commentators. Consequently, it is against this background that the arguments for and against the hijab are often pushed.
The argument favouring the hijab is firmly rooted in the Islamic faith. For Muslims, the hijab is not just a piece of covering that a Muslim woman wears on her head or adorn her body for occasions or ceremonies. It is a commandment of their Lord (Allah) as prescribed in their holy book, the Quran, in chapters 24, verse 31, and 39 verse 59, commanding Muslim women to cast down their glances and guard their private parts by being chaste and for identity and respect. Accordingly, interested Muslim women and other stakeholders (parents and guardians) in Nigeria have consistently sought to enforce their constitutional right to freedom of religion under section 38(1) and freedom against discrimination under section 42 of the same Constitution. To be clear, the exact words of section 38(1) are: ‘Every person shall be entitled to freedom of thought, conscience and religion, including the freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.’ It is essential to note the emphasis in the parenthesis, which simply means that religious identity manifestation is allowed privately and publicly.
The argument against the hijab, on the other hand, is anchored, first, on section 10 of the Constitution, which provides that ‘The Government of the Federation or a State shall not adopt any religion as State Religion’ and, second, on the provision of section 42 which guarantees the right of every Nigerian against discrimination relating to their community or ethnic group or place of origin or sex or religion or political opinion. Section 42 simply forbids the conferment of any right or benefit or denial of any right or benefit on any of such grounds. The provision is thus known as the non-discriminatory provision of the Constitution. It is these preceding provisions of the Constitution that Mr Ebun Olu-Adegboruwa, like other commentators against the development in the Nigerian Police, has anchored his opposition. For example, the learned senior advocate of Nigeria was reported to have said that ‘The religion of public officers, including members of the security agencies, should be a private matter to them. The Inspector-General of Police is not competent to use the platform of his office to enforce religion. Section 10 of the Constitution of Federal Republic of Nigeria stipulates that the government and all its agencies should be neutral in religious matters.’ In summary, the argument against the hijab is that it violates the supposed religious neutrality of the Nigerian state under section 10 and discriminates against non-Muslims under section 42.
While the above argument against the hijab appears valid superficially, there are many latent flaws underneath its face value. First, the argument tends to over-flog the provision of section 10 of the Constitution on the supposed religious neutrality of the Nigerian state. Section 10 has also been interpreted by many to mean that the Nigerian state is secular without any official religious identity. This is not exactly incorrect. However, a state’s secularity or official religious neutrality is not exclusive or inconsistent with recognising plural religious identities or diversities. Thus, Nigeria is officially a religiously neutral state and a multi-religious state. The provision of section 10 only forbids the adoption of a state religion. It does not prohibit the recognition of diverse religious identities by any stretch of the imagination. That is precisely why section 38(1) guarantees freedom of manifestation of religious identities both privately and publicly. Second, the argument against the hijab tends to overlook and suppress section 38 (1) on freedom of manifestation of religious identities privately and publicly and the provision of section 42 on non-discriminatory practices on the ground of religion. To support my position on the above fundamental flaws in the argument against the hijab, I take refuge in some jurisprudential expositions on fundamental human rights and several judgements of the Nigerian Court of Appeal on the interpretation of sections 10, 38 (1), 42, and 45 of the Nigerian Constitution (regarding the hijab in particular).
Without a doubt, legal jurisprudence has played an essential role in shaping legal frameworks both Internationally and within national jurisdictions, as many cases, even in Nigeria, have required the courts to strike an appropriate balance between a broad state interest, such as neutrality or security, and individual rights, chiefly freedom of religion and non-discrimination. Accordingly, numerous judgements handed down — both nationally and internationally —have tended to pull down the wall of restrictions on rights that directly bear on inclusivity and diversity in society. In human rights jurisprudence, therefore, a human right is generally asserted in the positive and not in the negative. This means that it is for the one whose rights are infringed or allegedly infringed upon to assert such a right in the positive. It is not for another to claim that a right upheld for someone else is necessarily discriminatory against him unless he can show his positive right that is so discriminated against. So, the argument that allowing interested Muslim women to wear the hijab or a headscarf is discriminatory against non-Muslims under section 42 of the Constitution is both ridiculous and fallacious. The question is, what exact positive right of those against the hijab is being discriminated against by upholding the religious freedom of those who seek to wear the hijab? To put differently, what exact harm do those who do not and are not compelled to wear the hijab suffer when those who are interested in wearing the hijab do so? Interestingly, the Nigerian Court Appeal has posed and answered this same question in the negative in some of the cases cited below.
In Nigeria, the Court of Appeal in different cases has consistently considered the provisions of sections 10, 38(1), 42, and 45 of the 1999 Constitution, as well as other relevant international instruments, and came to the same irresistible conclusions that may be summarised as follows: The right of a Muslim woman or girl to wear the hijab is an inalienable constitutional right; such a right does not conflict with other provisions of the Constitution, particularly sections 10 on religious neutrality of the Nigerian state, and 42 on non-discrimination. These cases include Bashirat Saliu & 2 Others v The Provost Kwara State College of Education, Ilorin, Kwara State (No CA/IL/49/2006); Asiyat AbdulKareem (through her father), Moriam Oyeniyi and Muslim Students’ Society of Nigeria v Lagos State Government (CA/L/135/2015); and Incorporated Trustees of Christian Association of Nigeria & Ors v. Kwara State Government & Ors (LOR (20/09/2019). Quite instructively, the Court has repeatedly held that it was immaterial whether wearing the hijab is compulsory in Islam. Therefore, the emphasis was on the wearer’s right to manifest and propagate their religion in worship, practice, teaching, and observance. Section 45 of the Constitution, it must be noted, allows a restriction or derogation on some fundamental human rights in “the interest of defence, public safety, public order, public morality or public health and the protection of rights of other persons.”
From the foregoing, it is crystal clear that the IGP of the Nigerian Police cannot be said to have breached any provision of the Nigerian Constitution by the latest adjustment to police unform. It is perplexing, therefore, to see any lawyer who claims to be a human rights activist, particularly any lawyer of the eminent status of a senior advocate of Nigeria, fail to appreciate the nuances of jurisprudence on issues of human rights, their modern trends, as well as the consistent interpretation of the Nigerian Constitution by the appellate court.
It is perhaps necessary that I also consider other arguments that have been offered against the constitutionality of the hijab in public institutions in Nigeria. These include the claim that it will lead to a floodgate of rights assertions across other religious diversities. A babalawo (a traditional religious worshiper), it is said, may also demand to be allowed to manifest his religious identity by wearing his traditional amulets and other insignia on his police uniform. A Christian of the Celestial Church denomination, it is also argued, may insist on walking barefooted daily in his police uniform. It is also contended that a traditional masquerade worshiper may insist on wearing his regalia on his police uniform. But how practically plausible are these other banal claims (never mind that many acclaimed Christians and Muslims hypocritically wear traditional amulets discreetly for ‘protection’)? But let us admit for the sake of argument that these other claims are also practically plausible, then it will be within the rights of such persons to demand or insist on such rights. After all, the underlying philosophy is inclusion and diversity.
In conclusion, while the argument on leaving symbols of religions and practices out of public affairs and institutions in a religiously neutral but plural society looks superficially attractive, it is preposterous not to recognise the far-reaching danger of exclusion of a people (be it Muslims or non-Muslims) from effective participation in the educational, social and public affairs of their society because of barriers or discrimination against their values or beliefs or faiths. A Christian, Muslim, or traditional worshiper should never have to choose between effective participation as a freeborn member of society and upholding basic tenets of their faiths that do not necessarily offend our common sensitivity or national security. However, it is granted that the equilibrium will never be balanced, and we cannot help that. But we can all help with continuous evolution or inculcation of practices that will encourage and promote inclusivity. This is the standard practice or approach in other jurisdictions. And, yes, this includes evolving practices that will accommodate the preferences of people of all faiths and beliefs as practicable as possible. As we evolve or develop inclusive practices to build our country, all sides of the divide must also learn to be tolerant and accommodating. That way, peace and progress will not elude our land.
Misbau Alamu Lateef, PhD.
Columbia Law School, New York.