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THE SCHOOL, THE HIJAB AND THE HUMAN RIGHTS QUESTION:ABDULKAREEM V. LAGOS STATE GOVERNMENT.

Abstract

In recent times, the hijab has stepped out of its closet in religious space into thepublic domain. In many countries, the right to wear the hijab and other forms ofreligious dress has been contested on grounds of human rights. The controversygenerated by the hijab has assumed a variety of forms. Over the years, the hijab hasmetamorphosed into a sports wear, a security outfit, fashion apparel and other formsbeyond the religious usage to which it was previously confined. Almost all Islamicscholars attribute the use of the hijab to certain prophetic pronouncements in the holybooks of Islam, the Quran and the Hadith. The point of divergence among Islamicscholars and countries is whether the said requirement is mandatory or not. SomeIslamic countries like Turkey and Tunisia do not consider the hijab as a compulsorysartorial requirement of Islam and thus banned its use in secular spheres like theschool. Some other Islamic countries like Iran and Saudi Arabia adopt the oppositepractice. Nigeria has joined the fray. In Osun State, the use of the hijab is permitted.The Lagos State Government disallowed the use of same. This later instance led to theCourt of Appeal case under review which set aside the judgment of the trial court, andupheld the right of female Muslim students to wear the hijab in and outside school asa form of human rights. We shall attempt to analyse this decision in the light ofIslamic jurisprudence, relevant human rights instruments and the Nigerianconstitution.1

Key words: Hijab, Islam, freedom of religion, human rights, constitution, school,Nigeria.

1. Introduction

Several decades ago, Karl Marx remarked that religion is the opium ofthe people. That statement remains the most apt description of thedestructive influence of religion on society and its slur on humancivilization. There are many harmful substances available to humanity.Why, one would ask, did Karl Marx use opium as an analogy, inpreference to the others? At a point in history, opium was cheaper thanalcohol2 and was generally available as a cure for everything. One of theharmful effects of opium is addiction.3 It is also used for pain relief.

(2016) 15 NWLR (Pt. 1535).1 Obumneme Aloysius Ezeonu, is an Onitsha-based Legal Practitioner and Notary Public. E-mail:obumneme.ezeonu@rocketmail.com. Tel. 08034098929.2 According to Howard Abadinsky: “De Quincey (1952) noted that opium was often cheaper thanalcohol.” See , Drugs: An Introduction (Fifth Edition) 2004, United States, Thomson Wadsworth, p. 263 “Two centuries ago, opium was generally available as a cure for everything. It was like aspirin; everyhousehold had some, usually in the form of laudanum. Naturally, the general availability of opium andthe medical profession’s enthusiasm for it helped create addicts, some of them very famous: SamuelTaylor Coleridge (1772-1834) and Thomas De Quincy (1785-1859) are the best known.” SeeAbadinsky, H., op. cit., p. 27

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Analogically speaking, addiction to religious beliefs could lead to anumber of unsavoury results for the individual and the society at large.Like opium, religion is cheap, available, analgesic and addictive. Thisdanger becomes amplified in a multi-religious country like Nigeria whichhas recorded quite a number of phenomenal crises and compromisesbased on religious causes and disputes. Of the different faiths that inhabitits religious space, Christianity and Islam have proved to be dominantover the years in Nigeria. This scenario has generated a lot of crisesranging from the socio-political to the constitutional. The resentment andopposition that greeted the possible “Muslim-Muslim ticket” during the2015 Presidential election could have adversely affected the electoralfortunes of the then opposition party4 that presently rules Nigeria had theparty not adhered to the “Muslim-Christian ticket” arrangement.Professor Ben. Nwabueze recounts that the establishment of the ShariaCourt of Appeal was a constitutional compromise to save a situationwhere Muslim members of the then Constituent Assembly had wanted ordemanded a wholesale constitutional recognition and adoption of Islamiclaw.

Recently, the issue of the use of the hijab in schools has joined the queueof constitutional issues engendered by religious concerns. Thecontroversy had reared its head in Colleges of Education and Universitiesattracting divergent court judgments.5 Its adoption in Public Primary andSecondary Schools is the subject matter of the latest controversy. In OsunState, a State High Court upheld the right of female Muslim students towear the hijab as a part of their school uniform. This led to some form ofunorthodox reactions from Christians who ordered their wards to put onChristian religious dresses. As the controversy was stoking, two minors(students of Atunrase Junior High School, Surulere, Lagos State, a publicschool owned and managed by the Lagos State Government) and theRegistered Trustees of Muslim Students’ Society of Nigeria (MSSN)sued the Lagos State Government and other relevant agencies in a matterof the enforcement of the fundamental right of female Muslim students towear the hijab in schools. The case was dismissed at the High Court ofLagos State coram Onyeabor J. The Applicants appealed. The Court ofAppeal in Abdulkareem v. Lagos State Govt.6 set aside the judgment ofthe High Court and affirmed the right of the female Muslim students inpublic secondary schools to wear the hijab. It is our purpose to review thereasons given by the Court of Appeal in the light of Islamic jurisprudence,4 The party is known as All Progressives Congress (A.P.C.)5 Abdulmumini A. Oba, “The Hijab in Educational Institutions and Human Rights: Perspectives fromNigeria and Beyond” in Identity, Culture & Politics: An Afro-Asian Dialogue, Vol. 10, No. 1 (July2009).6 (2016) 15 N.W.L.R. (Pt. 1535)

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relevant human rights instruments and decisions, and relevant provisionsin the 1999 Constitution of the Federal Republic of Nigeria (as amended).

2. Undressing the hijab as a doctrinally sanctioned cloth

The hermeneutical reference-point for advocating that the hijab is ahuman rights issue is the view that the wearing of the hijab is a religiousinjunction in Islam. The Nigerian daily newspaper, The Nation, in itseditorial of 16th June 2016 described the Osun State High Court judgmentpermitting female Muslim students to use the hijab in public schools as:“That curious Verdict”. Some Muslim groups reacted adversely to thiseditorial.7 They claimed that the hijab is neither a dress code nor afunctional equivalent of religiously-associated garments such as choirrobes as wrongly construed by the Christian Association of Nigeria(CAN). For them,

Hijab is a doctrinally sanctioned and an inalienable part of the day-to-day identity manifestation and lived experience of a female Muslim.8

These groups sought to create a distinction between “religiously-associated” and “doctrinally-sanctioned” dress codes. A point that mustbe made is that feminine modesty is not an exclusive preserve of Islam. Ifby “doctrinally-sanctioned”, the agitators meant that there is an injunctionto that effect in the Qur’an, the bible itself contains a number ofinjunctions relating to modesty in female dressing. The book of 1Timothy 2:9 provides thus:

Likewise also that women should adorn themselves in respectableapparel with modesty and self-control, not with braided hair and goldor pearls or costly attire.

In fact, the bible specifically in Deuteronomy 22:5 provides that:

A woman shall not wear a man’s garment, nor shall a man put on awoman’s cloak, for whoever doest these things is an abomination tothe LORD your God.

These biblical texts have been given different canonical interpretations bydifferent Christian sects with the result that some see these admonitionsas mere religious observances that do not speak to the real dimension ofspirituality. They equate strict observance of this to the hypocritical7 See The Nation Newspaper and Hijab Judgment Editorial: A Rejoinder BY ADYAN, MSSN, Others.See therenaissanceng.com/the-nation-newspaper-and-hijab-judgment-editorial-a-rejoinder-by-mica-mssnadyan-and-academy. (Accessed on 29/8/2016).8 Ibid.

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attitudes of the Pharisees who would scrupulously maintain the religiousrituals of Judaism as admonished by the Law of Moses, yet will not lift afinger to help their fellow. Some sects, like the Catholics, take it seriously.Pope Benedict XV has taught clearly about modesty in an encyclicalletter (Sacra Propediem 1921), commemorating the 7th centenary of thefounding of the Franciscan Third Order. His Holiness stated thus: “Onecan not sufficiently deplore the blindness of so many women of every ageand station. Made foolish by a desire to please, they do not see to whatdegree the indecency of their clothing shocks every honest man andoffends God. Most of them would formally have blushed for such apparelas grave fault against Christian modesty.”9 Happily, it is not the argumentof these agitators that the school uniforms used in the various publicschools are immodest. If the point is all about modesty, why bringunnecessary conflict into an otherwise peaceful environment made for theeducation of minds primarily.

Therefore, the claim to the use of hijab as a requirement of modesty is afalse claim to freedom of religion. Ironically, Christians in Osun Stateprotested against the use of hijab not by preventing the Moslem womenfrom wearing it but by wearing their own religious dresses like choirgowns. A choir gown is modest clothing by all standards. Yet, theGovernor, Rauf Aregbesola threatened to expel such students for puttingon “inappropriate attire”. In other words, within the school setting,modest Moslem clothes are appropriate, whilst modest Christian clothesare inappropriate. As a Nigerian Journalist, Ray Ekpu, observed,

The hijab is gradually becoming a major subject of public discourse inNigeria. It is perhaps time to fully address or undress it. In Decemberlast year, a group of Moslem youths under the aegis of Moslem Youthsin Da’wab wanted the hijab introduced into the National Youth ServiceCorps (NYSC) programme…. The then Director General JohnsonOlawumi, told them that he was a respecter of the rights of all corpsmembers but the ban was for security reasons.10 (Emphasis supplied)

According to Abdulmumini A. Oba, “Islam recognizes as a factual matterthat Muslims are of varying degrees of faith but enjoins every Muslim tostrive to greater heights of faith. A Muslim cannot claim to be a truebeliever (Mumin), that is, a person with faith (iman) unless he or shecomplies or strives to the utmost of his or her ability to comply with allthe tenets of Islam. Any pious Muslim woman would therefore feel

9 Available at www.catholicmodesty.com/Popesonmodesty.html (accessed on 29/8/2016)10 Ray Ekpu, “Unveiling the hijab” @ Jimi Disu’s blog. jimidisu.com/unveiling-the-hijab-by-ray-ekpu.(Accessed on 30/8/2016).

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strongly, the imperative to adopt the hijab. This is because it is a great sinnot to do so.”11

This position appears not to be a settled theological matter in Islam.Contrary to the assertion that the hijab is a doctrinally-sanctioned piece ofclothing with a mandatory application, there have been counter-pressuresfrom certain Islamist feminists who see the hijab as a symbol ofoppression for the women folk and its abolition as a component part ofthe struggle to install human rights safeguards for Muslim women. Thecontroversy surrounding the wearing of the hijab in Islam is not a matterof “varying degrees of faith” as presented by A.A. Oba but runs deeperthan that. It is a matter of exegetical differences. Whether the hijab is anIslamic injunction is still a vexed issue. The foregoing account of thereligious significance of the hijab appears to be the conservative view. Itis not subscribed to by a majority of Muslims. In this regard, TheEconomistMagazine observed as follows:

Fashion is intertwined with the debate, about what Islam prescribesfor women’s clothing. Most Muslims read the Koran as describing theProphet Muhammad’s wives as covering their hair; only someinterpret this as a command to all women. For the most conservative,the very concept of Islamic fashion is anathema. Some imams postcriticisms in online forums of women who wear skinny jeans or lots ofmake-up, even together with a hijab, since they attract attention. Othersretort that Allah created beauty and that pretty clothes help dispel themisconception that all Muslim women are oppressed.12 (Emphasissupplied)

It does appear then that the argument that the wearing of hijab is anIslamic injunction breach of which amounts to disobedience of Allah isnot a monolithic interpretation of the Qur’an. Indeed, some Muslimhuman rights activists see the sustenance of that view as an extension ofthe recent conservative movements to subjugate the rights of Muslimwomen. Asra Q. Nomani and Hala Arafa are well known Muslim humanrights activists. In an article: “As Muslim Women, we actually ask younot to wear the hijab in the name of interfaith solidarity” published in TheWashington Post,13 they argued that the wearing of the hijab is not anessential part of Islamic practice. According to them, the spectacle ofwomen wearing the hijab is a painful reminder of the well-financed effortby conservative Muslims to dominate modern Muslim societies. This

11 A.A. Oba, art. cit., p. 53.12 The Economist, April 24th, 201413 See The Washington Post (December 21, 2015). www.washingtonpost.com/news/acts-of-faith/wp/2015/12/21/as-muslim-women-we-actually-ask-you-not-to-wear-ther-hijab-in-the-name-of-interfaith-solidarity. (Accessed on 30/8/2016).

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modern-day movement spreads an ideology of political Islam, called“Islamism”, enlisting well-intentioned interfaith do-gooders and themedia into promoting the idea that “hijab” is a virtual “sixth pillar” ofIslam, after the traditional “five pillars” of the shahada (or proclamationof faith), prayer, fasting, charity and pilgrimage. They rejected theinterpretation that the “hijab” is merely a symbol of modesty and dignityadopted by faithful female followers of Islam.14 For them,

… in interpretations from the 7th century to today, theologians, fromthe late Moroccan scholar Fatima Mernissi to UCLA’s Khaled Abou ElFadl, and Harvard’s Leila Ahmed, Egypt’s Zaki Badawi, Iraq’sAbdullah al Judai and Pakistan’s Javaid Ghamidi, have clearlyestablished that Muslim women are not required to cover their hair.15

According to the study carried out by Ray Ekpu: “Three scholars, KaremArmstrong, Reza Ashan and Leila Ahmed have stated that actually ‘thestipulations of the hijab were originally meant only for ProphetMuhammad’s wives and were intended to maintain their inviolability.This was because Muhammad conducted all religious and civic affairs inthe mosque adjacent to his home.’ The three scholars maintain that duringthe Prophet’s life time no other Moslem woman wore the hijab. Aslonsays that Moslem women started to wear the hijab simply to emulateMuhammad’s wives who were revered as ‘Mothers of the Believers’ inIslam. She also states that there was no tradition of veiling until around627c in the Moslem community.”16 Recently, the Nigerian newspaperVanguard reported a story with the headline: “Egypt: Two Muslims fighton TV over hijab”.17 It transpired that Sheikh Mustafa Rashed, a Muslimlegal expert known for his lax rulings on religious matters, ticked offEgyptian lawyer Nabih Al-Wahsh. He vexed Al-Wahsh, when he said theheadscarf was a cultural tradition, not a religious duty. The guests hurledinsults at each other – and Al-Wahsh questioned Rashed’s scholarlycredentials.18 Abdur Rahman I. Doi recounts that in Shari’ah (IslamicTheology), actions are divided into five classes, as follows:

1. Fard or Wajib: a compulsory duty the omission of which ispunished.

2. Mandub or Mustahab: An action is rewarded, but the omissionis not punished.

14 Ibid.15 Ibid.16 Ray Ekpu, art. cit.17 See Vanguard, Tuesday (October 4, 2016). Available at odili.net/news/source/2016/oct/4/306.html.(accessed on 5th October, 2016).18 Ibid.

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3. Jaiz or Mubah: An action which is permitted but is legallyindifferent.

4. Makruh: An action which is disliked and disapproved by theShari’ah but it is not under any penalty.

5. Haram: An action which is forbidden. It is punishable by law.19

One indeed would ask: what is the punishment prescribed in Islam for notwearing the hijab? None. Some Muslim scholars see the wearing of thehijab as a permissible practice which does not command any religiousobligation. It is, therefore, not all Islamic practices or beliefs that wouldamount to deprivation of human rights if same are not enforced. Thewearing of the hijab in public primary and secondary schools is a classiccase in point. In the light of the foregoing, the attempt by some groups orpersons to present a monolithic interpretation of Islam’s sacred books tothe effect that the wearing of the jihab is a religious obligation and an actof worship does not reflect the true theological state of affairs in Islam.Barbara M. Cooper put the point poignantly thus:

Debates about what is and is not orthodox, who is and is not heretical,have been at the core of the history of Islamic West Africa. Thus,while all Muslims argue that their own practices are Islamic, they don’tall agree about what constitutes proper Islamic practice.

The insistence upon a monolithic textual interpretation of Islam bysome Muslims and Scholars of Islam contributes to the perception thatthere is ‘real’ (established, scholarly, and orthodox) Islam and someother ambiguously Islamic phenomenon referred to as ‘folk’ Islam. AsLouis Brenner observes, scholars and activists need an approach thatrecognizes the heterogeneity and pluralism of both Islamic andindigenous practices. Debates about what constitutes normative Islamare at the heart of the history of religion in much of Africa….20(Emphases supplied).

This phenomenon of exegetical differences does not obtain only in Islam.It applies to all religions whose canons of belief are based on sacred textslike Christianity and Judaism. As will be demonstrated anon, if everyreligion were to enforce its religious practices in all spheres of seculararena based on their exegetical colourations, there will be disorder in thesociety as showcased in the Osun drama.3. Addressing the hijab as a fundamental rights issue

19 A.I.Doi, Shari’ah: The Islamic Law, at pp. 50-5120 B.M. Cooper, “Secular States, Muslim Law and Islamic Religious Culture: Gender Implications ofLegal Struggles in Hybrid Legal Systems in Contemporary West Africa” in Droit et Cultures – Revueinternationale interdisciplinaire – 59/2010. Available at droitcultures.revues.org/1982#abstract-en.(accessed on 9/12/2016)

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Rights to freedom of thought, conscience and religion and freedom fromdiscrimination are guaranteed by sections 38 and 42 respectively of theConstitution of Nigeria 1999 (as amended) and Articles 2, 5, 8, 10, 17and 19 of the African Charter on Human and Peoples Rights and a host ofother human rights instruments. Freedom of religion and religious beliefscould range from issues of dress, food (some meats are consideredforbidden in some religions), marriage (some religions believe inmonogamy, and some in polygamy), medical treatment, etc. For example,Jehovah’s witnesses do not believe in the sanctity of transfusion of blood.In this vein, A.A.Oba remarks thus:

“The requirement of hijab for Muslim women is a recognized tenet ofIslam. To deny Muslim women the right to any aspect of the hijabwould be tantamount to denying them the right to be Muslims. Thelonging of female students to comply fully with the Islamic mode ofdressing is a legitimate human right, a fundamental right, and aconstitutional right in Nigeria.”21

It is important to note that fundamental rights are not absolute. In Nigeria,they are subject to the limitations provided in section 45(1) of the 1999Constitution (as amended). The said section provides thus:

45(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitutionshall invalidate any law that is reasonably justifiable in ademocratic society-

(a) in the interest of defence, public safety, public order, publicmorality or public health; or

(b) for the purpose of protecting the rights and freedom of otherpersons.

It is contended that even if the right to wear the hijab is a fundamentalright, it is subject to the above statutory limitations. Appellants’ counselin the case under review admitted as such when he cited the case ofHassan v. EFCC22 to the effect that the enjoyment of fundamental rightsmay be curtailed by appropriate authorities where there are good groundsfor doing so. To this extent, it is immaterial whether the right to wear thehijab is mandatory or not. Indeed as the Court of Appeal in the unreportedcase of The Provost, Kwara State College of Education, Ilorin & 2 Ors. v.Bashirat Saliu & 2 Ors.23: “The use of veil by respondents, therefore,qualifies as a fundamental right under section 38(1) of the Constitution. It

21 A.A. Oba, art. cit., p. 74.22 (2014) 1 NWLR (Pt. 1389).23 (Unreported) Appeal No. CA/IL/491.2006.

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is immaterial whether it is compulsory or otherwise.”24 In his concurringjudgment, Oredola, J.C.A. stated thus:

The right of the respondent to wear the hijab, veil within the schoolcampus and indeed anywhere else is adequately protected under ourlaws. Human right recognizes and protects religious rights. Section 38of the 1999 Constitution of the Federal Republic of Nigeria guaranteedfreedom of religion to all and sundry. Thus, things that lawfullyconstitute open manifestation, propagation, worship, teaching, practiceand observance of the said religion are equally and by extensionsimilarly guaranteed and protected by the Constitution. Indeed, thehijab, niqab or burqa, being part and parcel of Islamic mode ofdressing and by whatever standard a dignified vividly decent one,cannot be taken away by other law other than the Constitution.25(Emphases supplied)

An observation is apposite at this stage. The lead judgment and theconcurring judgment of Oredola, J.C.A. in the case of The Provost,Kwara State College of Education, Ilorin & 2 Ors. v. Bashirat Saliu & 2Ors (supra) throw up something of a paradox. The first impression, fromthe lead judgment, is that the wearing of the hijab is a fundamental rightof all female Muslims not minding whether it is compulsory or not. Thus,it cannot be derogated from except by some law consistent with theconstitution. The second impression, from the concurring judgment, isthat the wearing of the hijab is a fundamental right borne out of somereligious compulsion and which no law can derogate from except theconstitution. In other words, even a law consistent with the provisions ofsection 45(1) of the 1999 Constitution cannot ban the wearing of the hijab.How did the Court of Appeal resolve this paradox in the case underreview especially as it relied heavily on this case in making its decision?

Facts of the case under review

As the facts of the case under review are well summarized in the editorialnotes of the publishers of Nigerian Weekly Law Reports, I shall replicatethem thus:

“The 1st and 2nd appellants were minors and female students ofAtunrashe Junior High School, Surulere, Lagos State, a public schoolowned and managed by the 1st respondent. The 3rd appellant is anIncorporated Trustee registered under the Companies and Allied Matters

24 The Provost, Kwara State College of Education, Ilorin & 2 Ors. v. Bashirat Saliu & 2 Ors. (supra),p.222, C-D.25 Ibid., p. 223, D-G.

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Act, and was established to promote the welfare of muslim students andto propagate Islamic tenets in Nigeria.

In January 2012, the Vice-Principal called out the 1st and 2ndappellants during the school’s assembly and openly reprimanded them forwearing hijab (female muslim head covering) on their uniforms outsideof the school. The Vice-Principal also directed the school’s teachers toremove and seize hijab worn by all female muslim students of the school.He warned all female muslim students of the school to stop wearing hijabon their school uniforms within and outside the school premises.Subsequently, the fathers of the 1st and 2nd respondents went to meet theVice-Principal to resolve the matter to no avail.

So the 1st and 2nd appellants sued the respondents at the High Courtof Lagos State by means of an originating summons for enforcement oftheir fundamental human rights through their respective parents as theirnext of kin, with the 3rd appellant as a co-claimant in the suit. Theappellant’s case was that the wearing of the hijab in public places by afemale muslim is cardinal principle of Islamic faith in which the 1st and2nd appellants had been brought up from their pre-teen years. Theappellants asserted that any directive by the respondents restricting the 1stand 2nd appellants and female muslim members of the 3rd appellant fromwearing hijab within or outside any educational institution in Lagos Statewas wrongful and unconstitutional, because it breached the rights tofreedom of thought, conscience and religion, freedom fromdiscrimination, right to dignity of the human person and right toeducation guaranteed under sections 38 and 42 of the Constitution of theFederal Republic of Nigeria, 1999 (as amended), and Articles 2, 5, 8, 10,17 and 19 of the African Charter on Human and People’s Rights(Ratification and Enforcement) Act.

Consequently, the appellants sought several declarative reliefs andan injunctive order against the restriction on the wearing of hijab inschools owned and managed by the 1st respondent. And they relied on thedecisions of the High Court of Lagos State and the Court of Appeal.”26

Matters arising:

In the course of arguing the appeal, a number of issues were raised andcanvassed by the parties. As these issues guided the court in reaching itsdecision, it is pertinent to review them:

26 Abdulkareem v. Lagos State Govt. (supra), pp. 182-183

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(a) judicial notice of government policy

The Appellants’ counsel argued that if there is any government policy onwearing of the school uniform, it will be available in a document orstatutory instrument. In relying on section 122 of the Evidence Act, 2011,counsel argued that the court cannot take judicial notice “which was notshown to have existed by any credible evidence or which does not fallwithin items or facts which the law allows it to take judicial notice of.”27On the contrary, respondents’ counsel urged the court to rely on section124 of the Evidence Act to hold that wearing of school uniforms in ourschools is a matter of common knowledge.28 Counsel also contended thatthe paragraphs of the affidavit affirming the existence of such agovernment policy were not contradicted by the appellants. In resolvingthe issue, the Court of Appeal, per Gumel, J.C.A., after exploring thedictionary meanings of policy stated that a policy requires some form ofdocumentation in form of Circulars, Rules, Regulations, Orders,Guidelines, Directions, etc.29 The Court then held thus:

A court is not allowed to make findings on documents that have notbeen laid in evidence before it. I am of the view that it would amountto an undue speculation for the lower court to do more than hold thatthere is in existence an old policy of Lagos State Government onschool uniforms in its public schools. That is no more than what can bedeemed to have been admitted by the appellants in the circumstance ormay be even the objectives of that old policy. Whether that old policyis relevant and up to date as to ban or restrict the wearing of Hijab byfemale Muslim students must remain a moot question subject to aproper perusal of its actual contents. Whether that old policy isrelevant or could be said to be relevant said to be relevant (sic) againstthe provision of the 1999 Constitution, (as amended), and as now beingsought to be enforced by the appellants is also another hugequestion.”30 (Emphasis supplied)

It does appear that a policy statement by government requires some formof documentation. In the case of S.J. Bamgbade v. Vice Chancellor,O.A.U., (Suit No. HIF/MISC/20/2002), the High Court of Ife had occasionto interpret the “university guideline” on dress code. In the case ofBashirat Salim & Ors v. The Provost, Kwara State College of Education,Ilorin & Ors (Suit No. KWS/28M/2006), the High Court of Kwara Statehad the occasion to interpret a “circular” on dress code.31 Even in the case

27 Ibid., p. 20628 Ibid., p. 207, G.29 Ibid., p. 21030 Supra, p. 210, E-H.31 For the decisions on these cases, see A.A. Oba, supra.

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of Attorney General of Lagos State v. Dosunmu32 (relied on by therespondents in the case under review) the policy therein is contained in alegislation i.e. Edict No. 3 of 1976 and Legal Notice No. 9 pursuant towhich it was issued.33 To take judicial notice of information contained ina gazette, the gazette must be tendered in court. But in this case, therewas no affidavit countering the deposition of the appellant to the effectthat there is such a policy. This is deemed admitted. But as the Court ofAppeal earlier stated: Whether that old policy is relevant and up to dateas to ban or restrict the wearing of Hijab by female Muslim students mustremain a moot question subject to a proper perusal of its actual contents.The appellant contended that if such a policy exists, it is discriminatoryand ought to be struck out. The Court of Appeal did not make anydetermination with respect to this submission as it held that no suchpolicy exists. As the Court of Appeal held:

If the lower court was entitled to take judicial notice of the existence ofsome old policy with respect to school uniforms in Lagos State, it mustadditionally also take judicial notice of the fact that such policy musthave been embodied, as is usual with governments at all levels to issueCirculars, Rules, Regulations, Orders, Guidelines, Directions etc. withrespect to the management, control, observance etc. of certain subjectmatters. It is compelling and necessary, in my view, for the lower courtto consider and take judicial notice of these collateral circumstancesfor a proper decision in the matter before it.34

Unlike Universities and Polytechnics, there are no laws or statutes settingup secondary schools and primary schools. Before such schools areestablished, they must be registered with the relevant ministries ofeducation. Intending entrants to the said schools are usually given adocument which is known as “prospectus”. This is a form of guidelinethat states the regulation of the relevant school which includes issues ofuniform. What the respondents would have done, in this case, was to haveannexed the prospectus of the relevant school in their counter-affidavit.

But the Appellant in this case also contended that the regulation guidingthe wearing of school uniforms in primary and secondary schools is amatter of common knowledge. He then urged the Court of Appeal to takejudicial notice of that fact. According to the Supreme Court in the case ofOsafile v. Odi (No.1),35

32 (2016) 15 NWLR (Pt.1535).33 Abdulkareem v. Lagos State Govt. (supra) , p. 211, F-G34 Supra, p. 210, C-E.35 (1990) 3 NWLR (Pt. 137).

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“… judicial notice founded on common knowledge is founded on theJudge’s actual knowledge, experience and memory as a member ofsociety; sometimes however, he finds it necessary to refresh hismemory by reference to records, books or reports. The materialfoundation of notice of a statute is the production of a copy of thestatute; that of any official act is the production of the official Gazette.Where the matter to be noticed is an acquired knowledge the onlyfoundation is the production of the book, document or other materialwhich will enable the court to do so under section 73(3) [now 74(3) ofthe Acts.”36

It does appear that the wearing of a school uniform is commonknowledge. It is a common experience in Nigeria that schools areidentified with their uniforms. A Judge being a member of the society istaken to have actual knowledge, experience and memory of that fact.Unfortunately, the respondents did not state this position in their counter-affidavit. A perusal of the relevant paragraphs of the respondents’counter-affidavit reveals their stand to the effect that the wearing of theschool uniform is a government policy. The counter-affidavit did notsaying anything about common knowledge. As Gumel, J.C.A. stated:“Apart from arguing that section 125 of the Evidence Act does not applyto the facts in this appeal, learned counsel Mr. Olakunle Ligali, on behalfof the respondents merely added that he was urging this court to rely onsection 124 of the Evidence Act to hold that wearing of school uniformsin our public schools is a matter of common knowledge and that mattersof common knowledge needed no proof.”37 Since this point is notcontained in the affidavit, it stands to correct judicial reasoning that thecourt cannot put it in consideration in resolving this issue as it did notform part of the evidence in the case.

(b) raising the issue of secularity suo motu

The appellants equally complained that the issue of the secular status ofNigeria was raised suo motu by the trial Judge without calling on theparties to address on it. In resolving this issue in favour of the appellants,the Court of Appeal, per Gumel, J.C.A. held thus:

The learned SAN, on behalf of the appellants faulted this approach ofthe lower court in raising the issue whether section 10 of our extantConstitution makes this country a Secular State. A very highlycontroversial issue. According to the SAN, the issue, as contentious asit is, was raised suo motu and resolved without the input of any counsel.Against this position of the appellants, learned counsel on behalf of the

36 Supra, p. 160, E-H.37 Supra, p. 207, F-G.

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respondents disagreed and went on to submit even if, it was correctthat the issue was raised suo motu and resolved without addresses bycounsel it did not matter as the eventual finding in the resolution of theissue did not prejudice the case of the appellants and it also did notoccasion any miscarriage of justice in the circumstance. I beg to differ,because it was the ultimate finding of the lower court on the secularstatus of Nigeria that led it to find sanctuary or refuge in the decision inLeyla Sahin v. Turkey and to use it as the main authority to dismiss thecase of the appellants. Let me point out that the law frowns at asituation whereby a court makes a case for the parties before it. In SkyeBank Plc v. Akinpelu (2010) 9 NWLR (Pt. 1198) 179, the SupremeCourt held that it is not the duty of a court to make its own case outsidethe evidence and pleadings of the parties. Also, in Amasike v. TheRegistrar General C.A.C. (2010) 13 NWLR (Pt.1211) 337, theSupreme Court held that if at all an issue was raised suo motu then theparties should be given the opportunity to be heard on the issue soraised.”38

Again, the Court of Appeal is right in its pronouncement. An example ofthis principle is a situation where the court raises the issue of non-suit of acase suo motu. I remarked that in such a situation the court is liberty todismiss, affirm or non-suit a party with respect to some reliefs or even allthe reliefs. In other words, the court after an address by both counselcould affirm some reliefs, dismiss some reliefs, non-suit with respect tosome reliefs, dismiss all the reliefs, affirm all the reliefs or non-suuit thecase in its entirety.39 It is sad that the respondents did not raise the issueof secularity at the lower court. It would have provided a window ofopportunity to lay to rest the controversy surrounding the interpretation ofsection 10 of the 1999 Constitution (as amended). The argument hasalways been that the word “secular” was not specifically mentioned in theconstitution. For that reason, Prof. Ben Nwabueze preferred the term“religious neutrality”.40 However, I find apposite the apt response of Dr.Nnamdi Osita Ogbu to this charge that Nigeria is not a secular statebecause the words “secular state” was not mentioned in the 1999Constitution (as amended). According to him,

It goes without saying that the Constitution did not expressly state thatNigeria is a secular state. However, notwithstanding the Constitutionalsilence on the matter, the intention of the drafters of the Constitutioncan be gathered from a community reading of the relevant provisions

38 Abdulkareem v. Lagos State Govt. (supra), pp. 232-233, E-A.39 Ezeonu, A.O. and Obidimma, E.O.C. “Judgment in Favour of a Party After a Non Suit Address:Conflicting Echoes from the Court of Appeal” in Premier Bar Journal (PBJ) Vol. 2, No. 2, 2015, pp.30-43.40 See Nwabueze, B.O., “Freedom of Religion, The Religious Neutrality of the State Under theConstitution and the Sharia Controversy” (paper delivered at a Symposium organized by the SpiritanInternational School of Theology, Enugu, March, 23 2001).

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of the Constitution. There are postulates behind the words of theConstitution which could be gleaned from the Constitutionalprovisions even when the express words are not used. For instance,there is no express mention of separation of powers in the Constitutionbut the Constitution has been interpreted as importing the doctrine ofseparation of powers.41

(c) Relying on foreign decision as against Nigeria decisions

The appellants equally complained that the trial Judge relied on a foreigndecision which has a persuasive effect as against the binding decision of aCourt of Appeal the existence of which the court’s attention was drawn to.The appellants also complained that the court relied on the said foreigndecision (a European Human Rights case with respect to the ban of thehijab in Turkey) suo motu by the trial court without inviting parties toaddress him on them.42 According to the appellants, no party relied onthis decision in their written addresses. My short reply with respect to thisissue is that the court is free to rely on a decision or point of law toresolve an issue even if parties did not rely on them during trial orsubmission. In other words, “the rule of suo motu” mandating theinvitation of parties to address the court relate only to ISSUES not raisedby them, not on PRINCIPLES OF LAW OR DECISIONS not cited bythem, but applied to the issues raised by them. In the case of HeinNebelung Isensee K.G. v. U.B.A. Plc,43 the Court of Appeal, per Peru,J.C.A., restated the position of the law thus:

I am of the view that a Judge is duty bound to deduce law from thefacts before him. He is also duty bound to invite counsel to parties toaddress it when new issues arise in a matter.

But when, not where, it applies, principles of law not cited bycounsel whether statutory, or judicial can be called in aid in the courseof writing its judgment, as he rights did. Like in this case, estoppel isdiscernible from the facts pleaded by the respondent, and not denied bythe appellant.44

Could it be said that the issue of the secularity of Nigeria is discerniblefrom the facts of the case under review? Indeed, the pronouncement ofthe Court of Appeal is worth repeating,

… it was the ultimate finding of the lower court on the secular status ofNigeria that led it to find sanctuary or refuge in the decision in Leyla

41 Ogbu, O. N., “Is Nigeria a Secular State? Law, Human Rights and Religion in Context” in TheTransnational Human Rights Review 1.(2014): 2042 Abdulkareem v. Lagos State Govt. (supra) , p. 226.43 (2012) 16 NWLR (Pt. 1326).44 Ibid., p. 387, A-B.

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Sahin v. Turkey and to use it as the main authority to dismiss the caseof the appellants.45

Indeed, the court is at liberty to apply suo motu a principle of law or relyon a case law in resolving issues raised before it. The rule requires thatparties be only called to address it when the matter raised suo motu is anissue not canvassed by both parties. If the issue of secularity wascanvassed at the lower court, the reliance placed on the case of Sahin v.Turkey (supra) would be appropriate. The issue of relying on a foreigndecision in preference to Nigerian decisions does not even arise in thiscase as a distinction between the applicability of the cases would haveforeclosed that issue.

Decision of the Court of Appeal: A Review

With respect to the issue of wearing the hijab as a fundamental right ofevery female Muslim student, the Court of Appeal, per Gumel, J.C.A.held thus:

It is beyond dispute that the fundamental human right enshrined is (sic)section 38 is not absolute, as its enjoyment or even existence is subjectto certain exception stipulated in section 45. According to section 45the right in section 38 is not meant to invalidate any law that isreasonably justifiable in a democratic society. Any such lawcontemplated under section 45(1) must have been enacted law that wasmeant to safeguard the defence of the country, public safely of itspeople or public health and morality. Also such a law could invalidatesection 38 if it was meant to protect the rights and freedoms of otherpersons. The enjoyment of the right under section 38 may also becurtailed or restricted during a duly proclaimed and approved periodof emergency. For example, during the height of the Boko Harammenace in certain states of this country, many restrictions were placedon the practice and observance of religious activities to the extent thatMuslims could not perform some of the 5 daily prayers incongregations. It was that bad. But because it was for defence, security,public safety etc. such laws, regulations, curfews etc. were dulyobserved and enforced.46 (Emphasis supplied)

In relating the above interpretation of the Constitution to the facts of thiscase, the Court of Appeal held thus:

With respect to the facts and circumstances in the appeal, I am of theview that it is only a validly enacted law by the Lagos State House ofAssembly as contemplated or authorized by section 315 of the

45 Abdulkareem v. Lagos State Govt. (supra), p…………46 Ibid., pp. 224-225, H-C.

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Constitution or duly authorized Order, Regulation, Circulation,Guidelines, etc. issued by the relevant authority of the Lagos StateGovernment that can be within the contemplation of section 45. Therewas no such legislation or regulation etc. before the lower court toenable it to place a restriction or disability on female Muslim studentsto weal (sic) Hijabs on their uniforms.47 (Emphasis supplied)

As will be shown shortly, this interpretation of the Constitution is undulyrestrictive and imputes a meaning not intended by that section. By theprinciple of hierarchy of laws, not all laws are made by the StateExecutive or the House of Assembly or even any legislative body strictlyspeaking. Even a bye-law or the constitution of a traditional institution,club or co-operative society qualify as law and can come within theprovision of section 45 of the Constitution of the Federal Republic ofNigeria. This point is demonstrated by the case of Aniekwe v. Okereke48which dealt with the Constitution of a cartel of traders known as PlateauState Palm Oil Traders Association. At the trial court, the respondent hadinstituted a fundamental rights matter claiming breach of his fundamentalrights by the said association. The trial court found that the associationwas duly registered and had objects that are legal. Respondent was at allmaterial times a member of the association. Despite these findings, thetrial court still held that the association not being a legislative body hadno right to impose penalties for disobedience to its rules by membersplacing reliance on the case of Agbai v. Okogbue.49 Respondents at thetrial court appealed against this decision. In allowing the appeal, theCourt of Appeal, per Ora, J.C.A. held thus:

I have read the Supreme Court decision in Agbai v. Okogbue (supra).There is no doubt, that the learned trial Judge misconstrued the facts ofAgbai v. Okogbue (supra) and inevitably wrongly applied the decisionto the different facts in the instant case. In Agbai v. Okogbue (supra),the person whose property was seized was not a registered member ofthe AMANKALU AGE GRADE ALIYI, while in the instant case, therespondent is a full fledged member of the Association. Indeed, therespondent in the instant case is the Secretary of the Association. He isbound by the Association’s terms and conditions as to allocation ofquota for distribution of palm oil in Bokkos and Mangu markets and tofines in default.50

After distinguishing the case of Agbai v. Okogbue (supra), his lordshipconcluded thus:

47 Ibid., p. 225, F-G.48 (1996) 6 NWLR (Pt. 452).49 (1991) 7 NWLR (Pt. 204).50 Aniekwe v. Okereke (supra), pp. 73-74, H-A.

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The position in the instant case is radically different. The respondentbeing a member of the Palm Oil Traders Association, Mangu PlateauState of Nigeria is subject to the privileges and disadvantages that mayarise by that fact. He is deemed to have consented to them, volenti no(sic) fit injuria.51

In the case of Rimi v. P.R.P.,52 the law in question is the constitution of apolitical party. In the case of Mbanefo v. Molokwu,53 it is the constitutionof Agbalanze Society of Onitsha. In the latter case, the appellant was aregular member of Agbalanze Society of Onitsha, which was anassociation of titled men. He claimed that on 26/12/2004, he attended afunction of the association where he was ostracized from the associationby the respondents without being informed of the reasons for the action.The respondents’ case was that the respondents and a few otherindividuals engaged in acts of rebellion against the monarch as well as ofgreat violence to the customs and tradition of Onitsha with a determinedobjective of occasioning a state of emergency in the Onitsha town.Consequently, the appellant, along with other renegades, were suspendingfrom the activities of the community until they purged themselves of theircontempt. This decision was adopted by the “Ugwunaobamkpa” kindredgroup which the Agbalanze Association adopted. The appellant sued theAgbalanze Association, Onitsha alleging ostracism on the ground that hisfundamental rights to peaceful assembly and association has beeninfringed. This right is enshrined in section 40 of the 1999 Constitution.The trial court dismissed appellant’s case. He appealed to the Court ofAppeal. In dismissing the appeal, Tsamiya, J.C.A. held thus:

What must be borne in mind is the fact that the appellant voluntarilyjoined the association and undertook to abide by its constitution. Itfollows that he undertook to abide by the decision of AgbalanzeOnitsha. He is therefore bound by the decision of Agbalanze Onitshahowever unreasonable or unwarranted that decision might be. A manwho joins a society as in this case, must abide by the will of suchassociation or clear out. If a man finds himself, as a member of suchassociation and it takes a decision which he does not accept, adecision which could even be contrary to common sense, he has onlyone course open to him, and that, to get out. He has to abide or get outas voluntarily as he came in.

In view of the above observation of mine, I would say that thiscourt will not interfere in a case like this one, where members of avoluntary association have come to implement a decision within the

51 Supra, p. 74, E.52 (1980) 2 NCLR 76353 (2009) 11 NWLR (Pt.1153).

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provisions of their constitution even if that implementation of thedecision is unreasonable.54 (Emphasis supplied).

The flip side of this decision of the Court of Appeal is that any pupil isfree to adorn any outlandish outfit in a claim of religious right. Yes. Sincethere must be a law to enforce a ban or restriction before it becomeseffective, any pupil could adorn any wear in the absence of any such law.In this light, the proclamation of the Governor of Osun State referring toChristian outfits as inappropriate is an infringement of the fundamentalrights of Christian pupils. Since the bible commands and commendsmodesty in dressing, Christians who choose to adhere with suchadmonitions cannot be prevented from doing so since there is no lawforbidding them.

This scenario is an invitation to anarchy. It calls for legislative and/orexecutive intervention in two ways. In the first alternative, the legislatureis encouraged to enact laws placing restrictions on dress codes in schoolseven if such the right to deviate from the prescribed uniform is couchedin religious or cultural terms. Provided that such prohibition shouldadhere to the indices indicated in section 45(1) of the 1999 Constitution,namely, in the interest of defence, public safety, public order, publicmorality, public purpose, or for the purpose of protecting the rights andfreedom of other persons. The executive is also encourages to makesimilar guidelines on this matter. It is in this light that I suggest a shortcut to undermine the decision of the Court of Appeal in this case. TheLagos State Government should make an Order, Regulation, Circular, orGuideline through the appropriate Government organ or parastatalbanning the use of the hijab in public primary and public schools. Thiswill put paid to the controversy and forestall future problems from otherreligious groups who may claim the religious right to put on wearsdifferent from the one identified by their schools.

To this effect, the Lagos State Government could be guided by thelegislative intervention which followed the aftermath of the case ofN.U.E.E. v. B.P.E.55 One of the issues in this case was the properjurisdictional forum for the adjudication of a trade dispute. Is the NationalIndustrial Court or the State High Court? By Decree No. 47 of 1992, theNational Industrial Court was given the exclusive jurisdiction to handletrade dispute matters. But the National Industrial Court was not a superiorcourt by the 1999 constitution. In resolving the jurisdictional controversy

54 Mbanefo v. Molokwu (supra), p. 45555 (2010) 7 N.W.L.R. (Pt. 1194).

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in favour of the State High Court, the Supreme Court, per Chukwuma-Eneh, J.S.C., held thus:

…, it is trite law that the jurisdiction of the State High Court asconferred by the Constitution can only be curtailed or abridged or eveneroded by the Constitution itself and not by an Act or law respectivelyof the National Assembly or State House of Assembly, meaning thatwhere there is conflict in that regard between the provisions of theConstitution and the provisions of any other Act or law of NationalAssembly or House of Assembly respectively the constitution shallprevail if I may emphasize excepting as I have observed above bydirect and clear provision in the Constitution itself to that effect. I havemade the foregoing pronouncements bearing in mind that it has cometo be so since our return to Constitutionalism again particularly sincethe return of democratic dispensation to this country and the end of theMilitary era. So that Decrees are no longer the fundamental laws of theland.56

The Court then concluded thus:

It means therefore that by Decree No. 47 arrogating to the NationalIndustrial Court a superior court of record as has been contended bythe appellants does not by that token make the said National IndustrialCourt a superior court of record without an amendment of theprovisions of Section 6(3) and (5) of the 1999 Constitution which haslisted the only superior courts of record recognized and known to the1999 Constitution and the list does not include the National IndustrialCourt; until the Constitution is amended it remains a subordinate courtto the High Court…57

In a legislative reaction to this case, the Constitution was amendedmaking the National Industrial Court, a superior court of record. In orderto comply with the interpretation given to section 45(1) of theConstitution by the Court of Appeal, the Lagos State Government canonly effect the ban on the wearing of the hijab in schools through themachinery of a guideline, a circular, etc. to that effect.

Another legislative intervention could be in the area of amendment of theconstitution itself. I suggest the following amendment:

45(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitutionshall invalidate any law or practice or administrative decisionthat is reasonably justifiable in a democratic society or adecision of a competent court made -

56 Supra, p. 570, D-F.57 Supra, p. 572, A-B.

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(a) in the interest of defence, public safety, public order, publicmorality or public health; or

(b) for the purpose of protecting the rights and freedom of otherpersons.

In this case, the facts of the case will determine the decision of the court.It will be appropriate to apply this alternative especially where there is nolaw in place to checkmate any sartorial anarchy. However, like in the caseof legislative intervention, decisions of court should be guided by theindices indicated in section 45(1) supra. Indeed, this later alternativeappears to be the legal practice in Nigeria.

Conclusion

To wear or not to wear: that is the question. The case under review dealtwith the human rights question of whether it is constitutional to wear ornot to wear the hijab in school. The Court of Appeal affirmed the right ofthe female Muslim student to wear the hijab in school. It acknowledgesthe fact that this right is subject to the limitations imposed by theConstitution. However, the assertion of such limitation must be backed upby legislative or executive actions. Indeed, the Court of Appeal wascorrect when it held that any policy made by the Government must be inform of a document. But even if the argument that the wearing of schooluniform is common knowledge were true, it would not salvage the case ofthe respondents. By the ipsisima verba of section 45(1) of the 1999Constitution (as amended), there ought to be a law enforcing a restrictionon the wearing of the hijab based on any of the grounds stipulated therein.It is this writer’s contention, however, that such law must not necessarilybe made by the legislature or executive. Bye-laws and constitutions ofclubs, societies and associations qualify as law to this effect.

The alternative contention of the appellants is that if such a policyexists – that is, the policy of restraining the use of hijab in schools – it isdiscriminatory.58 This contention remains a moot point as the Court ofAppeal held that such a policy does not exist. It is the view of this writer,however, that the enactment of such a policy in the future would not bediscriminatory if the provisions of section 45 of the 1999 Constitution (asamended) is adhered to. Indeed, if the right to wear the hijab is enforcedbecause there is no specific law prohibiting it, it then follows that anyother religious group can put on their own dresses because there are nospecific laws prohibiting them. As observed earlier, this will lead tosartorial anarchy. A better reasoning is to rule out any dress that does not

58 Abdulkareem v. Lagos State Govt. (supra), P. 214

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adhere to the prescribed uniform. The specific mention of a dress code ina school is an implied exclusion of any contrary dress code. To holdotherwise, is to place deductive logic on its head.