Why Supreme Court’s judgment on hijab heightens religious fault lines

In a majority decision of five in favour and two dissenting, the Supreme Court of Nigeria on Friday, June 17, in Abuja, affirmed the rights of female Muslim Students in Lagos state public primary and secondary schools to wear hijab.  

The seven-member panel of the Supreme Court affirmed the July 21, 2016 judgment of the Court of Appeal, Lagos, which set aside the October 17, 2014 judgment by Justice Grace Onyeabo of the High Court of Lagos State, which upheld the hijab restriction.

Justice Kudirat Kekere-Ekun, who wrote the lead majority judgment, which was read by Justice Tijani Abubakar, dismissed the appeal filed by Lagos State against the 2016 judgment of the Court of Appeal, Lagos, on the grounds that the appeal was without merit.

The Supreme Court held that wearing the hijab was an Islamic injunction and an act of worship required of Muslims, and consequently, the banning of female Muslim students from wearing it to school is a violation of their fundamental rights to freedom of thought, conscience, religion, the dignity of human persons and freedom from discrimination.

The apex court heavily relied on section 38 of the 1999 Constitution, which guarantees every Nigerian citizen the right to freedom of thought, conscience and religion.    

Since the judgment, there have been diverse reactions. Lawyers, stakeholders and other groups have responded in various ways. 

One of the notable reactions was by a lawyer, who dressed to court in odd and strange attire to express his own freedom of religion, having declared to be a traditionalist. The lawyer, Chief Malcolm Omirhobo, who caused a stir at the Supreme Court on Thursday, June 23, forced the Justices to abruptly suspend proceedings.

Omirhobo was in the courtroom bare-footed. He tied a red wrapper atop his black trousers, which he rolled up to his knees. He also had a gourd tied around his neck with a red piece of cloth. He attached a feather to his wig.

He said: “We are free to express our way of worship in our schools and in our courts. The Supreme Court reached that decision and that has encouraged me.

“Because I am a traditionalist and this is the way I worship. Based on the decision of the Supreme Court, this is how I will be dressing henceforth in court because I am a strong adherent to ‘Olokun’, the god of rivers.”

Omoirhobo added that the judgment implied that every Nigerian, no matter their profession could express their religious beliefs with their mode of dressing. It obviously was a subtle way of protesting against the judgment of the apex court.

Those opposed to the judgment had argued that it is a flagrant violation of section 10 of the Nigerian Constitution, which provides for the secularity of Nigeria by prohibiting the government of the federation or of a state from adopting any religion as the state religion.

They said justices ignored the secularity of Nigeria in section 10 of the Constitution, which serves as checks on the individual right of every Nigerian citizen to freedom of thought, conscience and religion as contained in section 38 of the Constitution. 

Those opposed to the judgment further argued that public schools are established by the government with public funds and by virtue of section 10 of the 1999 Constitution are secular. They added that public schools are supposed to be centres of learning and not worship centres, stressing that students must be helped to focus on their studies at school, not a religion because religion is a personal thing that must be practiced privately.

OKUEYELEGBE Sylvanus Maliki an Abuja-based human rights activist and a constitutional lawyer reiterated the immortal words of the late Justice Chukwudifu Oputa in the case of ADEGOKE MOTORS LTD V ADESANYA & ANOR (1989) LPELR-94 (SC), wherein his lordship echoed the imperfection of the apex court as follows: “We are final not because we are infallible; rather we are infallible because we are final.”

For the lawyer, the Supreme Court’s judgment in the hijab case is one area wherein the court erred “with the greatest respect to the justices of the apex court of the land.”

He said: “The Supreme Court while recognising the right of Muslim students to wear hijab in public schools premised its decision on section 38 of the 1999 Constitution. With the greatest respect to the Supreme Court, the right to freedom of thought, conscience and religion contained in that section are mere private rights, which were strained beyond the limit.

“This judgment, when widely construed, is tantamount to the adoption of a state religion, which is contrary to the public right provided in section 10 of the said Constitution, which expounds the irreligious nature of the Nigeria State. Section 10 of the Constitution provides: ‘The Government of the Federation or of a State shall not adopt any religion as State Religion.’

“The justices of the Supreme Court who sat over this appeal did not avert their minds to the provision of section 45(1) (2) of the Constitution, which circumscribed the right to freedom of thought, conscience and religion provided for in section 38 of the Constitution.

“Such rights are not absolute in the interest of public order and among other things. This judgment did not take cognisance of public order. This failure accounted for the fears expressed in the dissenting judgments of the two justices of the seven-man panel. The judgment with the utmost respect is an invitation to societal anarchy. When a person has submitted himself to a particular association or trade; he is deemed to have submitted to the ethics of such body.” 

Citing the case of EGBE v. ADEFARASIN (1987) LPELR-1032 (SC)¸he argued that the Latin maxim, volenti non fit injuria, which states that no one suffers injury from his own voluntary action, applies in such circumstance, when a person elects to join an organisation that has a prescribed uniform.

He said there is a need to separate issues of religion from legality. Having recognised the right of Muslim students to the use of hijab in public schools in Lagos State, he stated, that it is necessary corollary for such rights to be extended to students of other religious beliefs.

“Can you image an atmosphere where Christian students and traditional religions complement their rights?” He asked.

He regretted that once the Supreme Court has determined a case, it becomes funtus officio, urging the apex court to review the matter as was the case in FIRST BANK v. TSA INDUSTRIES LTD (2012) LPELR-9714 (SC).

A LAWYER, J. O. Okebe said the Supreme Court ought to be wary of the consequences of its decisions because section 235 of the 1999 Constitution makes it the final court and as such, appeals from it can only lie to the heavens, perhaps on the last day, unless it reconsiders its position. 

Notwithstanding, the lawyer said the justices are humans and are therefore fallible and capable of erring.

The lawyer noted that after the judgment, there has been uproar from different quarters condemning the decision. “The question that begs for answer is whether it be rightly said that the Supreme Court erred when it delivered the now controversial decision commonly tagged hijab judgment?

“If it is agreed as the justices did, that wearing of hijab is religious instruction, then it will not matter where hijab is worn, whether in public or in private. Section 38 of the Constitution allows for manifestation or propagation of one’s religion or belief in public and the school in question being a public school cannot ban or prohibit propagation of one’s belief or conviction, which the wearing of the hijab represents. To hold contrary is to endorse derogation of constitutional provisions,” he said.

Okebe, however, insisted that the argument of Nigeria’s secularity as provided in section 10 of the Constitution does not arise.  According to him, allowing Muslim students to wear hijab cannot by any stretch of imagination be said to be an endorsement of a state religion.

“Far from it! The argument of adoption of state religion will only hold water if the Lagos State Government had mandated the wearing of hijab in its public schools,” he argued.

The lawyer stressed that wearing of hijab is not a privilege accorded to Muslim students or advantage denied others on the basis of their religious view for it to be situated within section 42 (1) of the Constitution as it has been variously argued. 

He said: “One other argument of the critics of the judgment is that if all the students are allowed to wear their religion apparels, the schools would be unrecognisable. The above argument is only a moral argument not legal. It is not the duty of any court and indeed the Supreme Court to speculate on what could happen to others who are not before the court or will the court allow itself to be influenced by speculations in reaching its decision. Courts are constituted to deal with live issues brought before it and not to speculate.”

The lawyer stressed that it is difficult to fault the majority decision of the Supreme Court when it rightly held that wearing of Hijab was an Islamic injunction and an act of worship required of Muslims and as such, the ban is a violation of the fundamental rights to freedom of thought, conscience, religion, dignity of human persons and freedom from discrimination. 

WHILE underscoring the finality of the decisions of the Supreme Court, Godwin Ogboji, also a lawyer, pointed out that the apex court is also a policy court, meaning that the court has the luxury to use its judgment to ensure stability in Nigeria.

He lamented that such decision as it affects professional bodies like lawyers was condemnable. “To me, Nigeria being a secular state and the Supreme Court being a policy court, the usual ethnic and religious challenges we have should have been considered in the judgment, particularly in view of the fact that law, being a profession with certain standards for its members, anybody aspiring to become a lawyer must be ready to adhere to certain codes of the profession, including its peculiar dress code.

“Even though the judgment is in accordance to the law, the aftermath of it, with regards to how it was interpreted by some lawyers dressing in their religious attires to court, aptly justifies our position that the court being a policy court should have taken the standard of the profession more into consideration in the judgment, so as to avoid the controversy being raised by some lawyer using the judgment as a justification,” he said.

BUT Dr. Azizat Omotoyosi of the Department of Islamic law, faculty of law, University of Ilorin, said the implication of the judgment, as a matter of law, is that any Muslim girl or woman attending all public educational institutions in Nigeria has an unfettered right to the use of hijab if they so choose.

The Sharia law expert, however, admitted as some lawyers alluded to, that the hijab decision seems to protect only a particular religion and could pose a threat to the unity of Nigeria; that it is insensitive to the religious rights of others and could also promote religious bigotry.

“Out of all the comments against the hijab decision, it is the expressions of disapproval by lawyers and the basis of such expressions that worries me the most,” she said. 

She noted that even though the theory of Nigeria being a secular state is always constitutionally anchored on the provisions of section 10 of the 1999 Constitution, it is not the only perspective on the matter. “The other aspect of the debate, which is more realistic in my view, is the multi-religious state theory,” she pointed out. 

Dr. Omotoyosi said the theory is also very much sustainable within the same provisions of Section 10 that neither a state nor the Federal Government shall adopt any religion as a state religion. 

She stated that Archbishop of the Catholic Diocese of Abuja, John Olorunfemi Onaiyekan in the foreword to a book (Religion, Politics and Power in Northern Nigeria, 1993) by Bishop Mathew Hassan Kukah of the Catholic Diocese of Sokoto, succinctly demonstrated the fallacy of the secular state theory in the following timeless words – “Even nations, which make much of separation of religion and politics find many ways in practice to act against this principle. It seems to me that this is why our prolonged debate over the ‘secular’ nature of the Nigerian state has remained inconclusive.”

Her words: “Secular state means different things to different people. It is surely more useful to tackle concrete issues of interaction of politics and religion and from there evolve just and fair solutions to our problems of peaceful cooperation.

“Why I found the disapproving comments by lawyers, particularly of the Christian faith worrisome, is the demonstration of unconscientious cherry-picking of when and how to chant the secular state theory slogan. 

“Although it seems to be the case that it is the Nigerian style, regardless of religious affiliation, that issues of national significance are always left bereft of needed intellectual public engagement,” said Dr. Omotoyosi.

The posture, according to Dr Omotoyosi encourages the citizenry to employ persuasive sentimentalism and orchestrated sensationalism without a logical basis to score points against each other on issues with polarised views. “But I think professionals, and more particularly lawyers, should always strive to rise above such in the interest of building a collective value system that caters to diverse aspirations.

“I think it is important for all Nigerians regardless of religious affiliations to always try to be objective and dispassionate about issues that by their nature must be susceptible to diverse perspectives such as religion, culture or ethnicity. It is disingenuous, in my view, to instrumentalise religion for personal gains or weaponise religious sentiments that are not shared,” she argued.