Whether Prohibition of Wearing Hijab by Moslem Students of Public Schools is an Infringement on Their Constitutional Right

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CASE TITLE:  LAGOS STATE GOVT & ORS v. ABDULKAREEM & ORS (2022) LPELR-58517(SC)

JUDGMENT DATE:  17TH JUNE, 2022

JUSTICES:

  • OLUKAYODE ARIWOOLA, JSC
  • KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
  • JOHN INYANG OKORO, JSC
  • UWANI MUSA ABBA AJI, JSC
  • MOHAMMED LAWAL GARBA, JSC
  • TIJJANI ABUBAKAR, JSC
  • EMMANUEL AKOMAYE AGIM, JSC

COURT DIVISION: ABUJA

PRACTICE AREA:  CONSTITUTIONAL LAW

FACTS:

​The facts culminating to this instance suit according to the 1st and 2nd Respondents who were female Muslim students of Atunrashe Junior High School, Surulere, Lagos State, a public school owned by the 1st appellant. The 1st and 2nd Respondents wore Islamic headscarf (hijab) over their school uniform and were on their way to school in a commercial bus when they encountered the Vice Principal of the school, who allegedly snatched their hijabs from their heads on the ground that they were not part of the school uniform. Upon getting to school, the Vice Principal called the school assembly and directed the teachers to remove and seize any hijab worn by any, female Muslim student whether within or outside the school premises. They were further warned not to wear the hijab on their school uniforms.

The 1st and 2nd Respondents suing through their “next of friends”  along with The Registered Trustees of Muslim Students’ Society of Nigeria, 3rd Respondent/Applicant, by an Originating Summons sought for amongst other reliefs; a declaration that the continuous denial of the 1st and 2nd Respondents and other female Muslim students who resolve or are obliged to use Hijab (Islamic headscarf) within or outside the premises of any educational institution in Lagos State at any time is wrongful and unconstitutional as same constitutes violation of their rights to freedom of thought, conscience and religion, freedom from discrimination and right to the dignity of the human persons and right to education as guaranteed by Nigeria’s Constitution and the African Charter on Human and Peoples’ Right.

​In opposition, the Appellants filed a counter affidavit along with a written address. The Appellants in their contention maintained the stance that wearing of hijab is in breach of the dress code of the school.

The learned trial Judge, in a considered judgment dismissed the Respondents’ suit.

​The Respondents were dissatisfied with the decision and appealed to the Court of Appeal. A full panel of the Court of Appeal unanimously allowed the appeal and set aside the judgment of the trial Court.

Dissatisfied with the judgment, the Appellants appealed to the Supreme Court.

ISSUES:

The appeal was determined upon consideration of the issues thus:

  1. Whether the Court below was right when it held that there was no legislation or regulation etc. before the lower Court to enable it place restriction or disability on female Muslim students to wear Hijab on their uniforms having found that the Respondents did not join issue on the existence of the Appellants’ policy prescribing the mode of uniform in public primary and secondary schools in Lagos State?
  1. Whether the Court below was right in relying heavily on the decision in the case of The Provost Kwara State College of Education, Ilorin & Ors. v. Bashirat Saliu & 2 Ors., Appeal No. CA/IL/49/2006 to effect that non-use of “Hijab” violates the provisions of Section 38 and 42(1) and (2) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) when, the facts in the unreported cases are distinct with the facts in the instant case?
  1. Whether the raising of the new issue of secularity of this Country vis-a-vis Section 10 of the 1999 Constitution, as amended suo motu by the trial Court was done wrongly and out of place?
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COUNSEL SUBMISSIONS

Learned counsel for the Appellants argued that the Respondents did not dispute the existence of the Appellants’ policy prescribing the mode of uniform in public primary and secondary schools in Lagos State. He further submitted that the regulation of the rights of the 1st and 2nd respondents with regard to the wearing of hijab on their school uniform was in order and in accordance with the provisions of the 1999 Constitution, as amended.

Learned counsel argued that assuming (without conceding) that the appellants did not produce any document relating to the guidelines and/or policy on the prescribed school uniform in Lagos State, it is common knowledge that the hijab is not part of the school uniform for Muslim girls in primary and secondary schools under the management of the State Government. ​Learned counsel argued that the Court of Appeal erred when it held that the State Government cannot regulate the use of hijab by Muslim girls in secondary schools in the State because it violates the provisions of the Constitution.

Learned counsel further submitted with reference to Section 42 of the 1999 Constitution that permitting the use of hijab by Muslim female students without granting similar privilege to other female students of other faiths would amount to discrimination against them. Learned counsel argued that if, on the basis of equality, all students in public schools are allowed to wear their religious insignias on top of their school uniforms, it would constitute a breach of the Government’s policy on uniformity in dressing of students in public schools which would result in anxiety, animosity, unrest and lack of sense of unity amongst students in the same school.

In their reaction, learned counsel for the Respondents submitted that while they did not controvert the Government’s policy on school uniforms as averred by the Appellants, he contended that what is in issue is not whether there is a government policy on school uniforms in Lagos State, but the form and content of the said policy and that the averment falls under hearsay since the deponent was not the author nor did he disclose the source of his knowledge.

Learned counsel submitted that in the circumstances, it was not necessary to controvert the existence of a dress code for public schools in Lagos State, which is of common knowledge, but what is relevant is the fact that the appellants failed to refer to any document whose authenticity could not be doubted, which contained the policy on the subject.

Learned counsel further submitted that the argument is speculative to say that allowing female Muslim students to wear hijab without according similar religious privileges to girl students of other faiths is discriminatory, particularly in the absence of any averment by the Appellants that a female student of any other faith has asserted such a right; and contended that submission that a female Muslim student who finds the policy prohibiting the use of the hijab unacceptable, is free to enroll in a private, faith-based or community-owned school, is discriminatory.

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He submitted that the wearing of the hijab is not just a mere innovation by any Muslim group to make a difference, but a religious injunction firmly rooted in the Holy Quran.

DECISION/HELD

In a majority decision, the appeal was dismissed.

RATIO

  1. CONSTITUTIONAL LAW – RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION: Whether the prohibition of wearing Hijab by Moslem students of public schools on their school uniform amounts to an infringement of the right to freedom of thought, conscience, and religion guaranteed under Section 38 of the 1999 Constitution, as amended

“In surah Al-Nur (24:31) the Qur’an signifies the Hijab as a mark of modest and elegant women who are recognised from a far as discreet and unapproachable by undesirable elements. Muslim women wear the Hijab as part of their religious obligations. Again, in Surah AL-AHZAB Chapter 33, Verse 59 Allah the Exalted said:

’10 Prophet! Tell your wives and your daughters and the women of the believers to draw their cloaks (veils) all over their bodies (i.e., screen themselves completely except the eyes or one eye to see the way). That will be better, that they should be known (as free respectable women) so as not to be annoyed. And Allah is Ever Oft-Forgiving, Most Merciful.”

The 1st and 2nd respondents fall within the category of persons commanded to wear Hijab (Head covering) by the Holy Quran, they fall within daughters as ordained by Allah in the Holy Qur’an. What is obligatory Upon the woman is to cover herself as her Lord the Mighty and Majestic is more knowledgeable of her well-being. Umm ‘Abdillah al- Waadi’iyyah, in her book, my sincere advice to women page 161 said: That is why He has enjoined the wearing of Hijab on her. Such contains protection for you from corruption and evil. It also contains chastity for you …”. Wearing of Hijab is a religious obligation, Government has responsibility to ensure that the rights of citizens are protected; any policy designed in flagrant violation of the right of a citizen is a clear violation of the Constitution and must be held to be so. Competent authorities or Government must justify derogation from the fundamental rights of citizens by showing facts suggesting that the act or policy complained of is reasonably justifiable in a democratic society. It must be shown that the derogation is in the interest of public safety, public order, public morality or public health, or that the policy or action is for the purpose of protecting the rights and freedom of other persons as required by Section 45 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In the instant appeal, the appellants failed to show any good cause.

From all I said therefore, Islam is the religion of the respondents and it is within their fundamental rights to wear Hijab and so doing does not in any way constitute danger to the safety or security of other persons. The right of the respondents is guaranteed and protected by Section 38 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 38 of the Constitution provides as follows:

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“38(1) Every person shall be entitled to freedom of thought, conscience and religion, including 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.

(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance relates to a religion other than his own, or a religion not approved by his parent or guardian.

(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination. “

Apart from the above express provision of the Constitution, Section 42(1) (a) and (b) also clearly provides that a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person be subjected either expressly by or in the application of any law in force in Nigeria, or any executive or administrative action of government to disabilities or restrictions to which citizens of Nigeria or other communities, ethnic groups, places of origin, circumstances of birth, sex, religious or political opinions are not made subject, or be accorded either expressly by, or in the practical application of any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions.

From the provisions of Sections 38 and 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it is very clear to me that the policy of the appellants preventing the 1st and 2nd respondents from wearing head scarf (Hijab) is a flagrant violation of their right to freedom of thought, conscience and religion. It is a clear misconception of the law by the trial Court as rightly found by the lower Court that “There is an obligation for every student enrolled in the school system to obey the regulations laid down by constituted authority…” the regulations are in conflict with the provisions of the Constitution, and the Constitution of the Federal Republic of Nigeria 1999 (as amended) being the fundamental legal order of State is supreme, and shall prevail over any other law to the extent of the inconsistency. See; FIRST BANK OF NIGERIA PLC V. T.S.A. INDUSTRIES LIMITED (2010) LPELR-1283 (SC) where this Court held as follows:

“By virtue of the provision of Section 1(3) of the 1999 Constitution, the doctrine of supremacy of the Constitution demands that if any law is inconsistent with the provision of the 1999 Constitution, the Constitution shall prevail and the other law shall to the extent of the inconsistency be void.” Per ABUBAKAR, J.S.C.

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