The Fundamental Right To Wear Hijab Of Female Muslim Students Of St. Anthony And C & S Secondary School, Ilorin By Abdullahi Soliu Dagbo

In recent time, specifically on 13^th May 2019, the
Principal of St. Anthony Secondary School Ilorin, Mrs. E.F Afolayan
rebuked some female Muslim students for wearing hijab on their
school uniforms after the school hour.

On the following day, she made it the subject of her discourse
on the assembly ground, warning all female Muslim students of the
school to stop wearing Hijab on their school uniforms within and
outside the school premises. She even warned against the use of
same in all MSSN programs of the school. This has caused a lot of
brouhaha from the Muslims, particularly the female Muslim students
of the school. They contend that the order of the Vice-Principal
impedes on a sacrosanct tenet of their religion and that such order
is a breach on their fundamental right to religion.

Hijab is a head covering worn by Muslim women especially in
front of non-related adult males. Although, there is no universal
definition as to the exact ambit of the hijab but there is a
consensus among Islamic scholars that a woman must cover her head
in a manner that her hair, her neck and the shape of her bosom do
not expose. Hence, wearing of hijab is a religious injunction, the
basis of which is substantiated in Chapter 24 Verse 30-31 of the
Glorious Qur’an. Accordingly, a prolific professor of law, A.A Oba
remarks in one of his papers (The Hijab in Educational Institutions
and Human Rights: Perspectives from Nigeria and Beyond) thus:

“The juristic basis of the hijab is found in the Qur’an and
the Hadith. The status of hijab, khimar and niqob as part of Islam
is undisputable”

Fundamental rights on the other hand, are the inherent and
innate rights of a person which cannot be taken away from him
except in accordance with the constitution. These rights are
fundamental because they have been guaranteed by the fundamental
law of the country, which is the constitution – Uzoukwu v.
Ezeonu (1991)6NWLR (pt 200)708.

The question that naturally flows from the above postulations
is, whether wearing of Hijab is a fundamental right in the context
of the Constitution of the Federal Republic of Nigeria 1999 and if
yes, then is this right exercisable in St. Anthony and C&S
Secondary School, Ilorin.

By virtue of section 38 and 42 of the Constitution, right to
freedom of thought, conscience and religion and freedom from
discrimination are guaranteed respectively. The echo of these
rights is further amplified and pontificated by Article 2, 5, 8,
10, 17`and 19 of African Charter on Human and Peoples Right.

Section 38(1) CFRN 1999 (as amended) provides that:

”Every person shall be entitled to freedom of thought,
conscience and religion…to manifest and propagate his religion or
belief in worship, teaching, PRACTICE and
OBSERVANCE” (emphasis on the bold upper case
words).

It therefore, appears from this provision that a person shall be
entitled to practice and observe the injunctions of his religion
without any infraction whatsoever from another person(s). Hijab,
the practice and observance of which amounts to the practice and
observance of Islamic religious injunction is thereby guaranteed as
a fundamental right by the fundamental law of Nigeria.

This position is settled beyond recondite and has gained
judicial blessing from a full panel of the Court of Appeal in the
case Abdukareem v Lagos State Government (2016)15NWLR (pt
1535)177. In this case, the court expounded and gave
effect to the provision of section 38 CFRN 1999 when it held thus:
“…the respondents’ refusal to allow the 1^st and
2^nd appellants wear Hijab on their school uniforms
during or after school hours breached their rights to freedom of
religion because, the wearing of hijab by female Muslims
constitutes an act of Islamic worship.”

The fact that led to this decision is not in any disparity with
the occurrence in St. Anthony Secondary School, Ilorin. In
Abdulkareem’s case, the Vice-Principal of a public school in Lagos
openly reprimanded two female Muslim students for wearing Hijab on
their school uniforms. The court concluded that the refusal to
allow these girls to wear hijab on their school uniform is a clear
infraction of their constitutional guaranteed rights. A. A
Oba  also has this to say:

“The requirement of Hijab for Muslim women is a recognized
tenet of Islam. To deny Muslim women the right to any aspect of the
Hijab would be tantamount to denying them the right to be Muslims.
The longing of female students to comply fully with the Islamic
mode of dressing is a legitimate human right, a fundamental right,
and a constitutional right in Nigeria”

It therefore goes without saying that the female Muslim students
of both St. Anthony and Cherubim and Seraphim have a very trite
constitutionally guaranteed right to wear hiajb on their school
uniforms which no one can wittingly or unwittingly violate. It also
follows that any female student who subscribes to the sacrosanctity
of hijab must not be deprived of her fundamental right to practice
and observe same.

It may whisper into one’s mind that these female students might
have waived their right by signing some forms on admission into the
schools. This does not hold water because, the constitution is the
grundnorm and it is the law that provides for the right. Therefore,
any regulation in any form which is inconsistence with the
constitution must give way and abate – PDP v CPC
(2011)17NWLR (Pt 1277)485. Also, in an unreported case of
Saliu Bashirat v The Provost, Kwara State College of
Education, the High court sitting in Kwara State held that
the female Muslim students of Kwara State College of Education,
Ilorin could not individually waive their fundamental rights under
section 38 of the constitution. On this light, it will be
notoriously wrong to posit that the female Muslim students of St.
Anthony Secondary school or Cherubim & Seraphim Secondary
School Ilorin have, by any way, waived their fundamental right to
wear hijab.

Clearly,  the principal and the school have strayed into
plain unconstitutionality and this is not only bad but incurably
bad. This aberration and open challenge to the provision of the
Constitution that binds all of us,  ethnicity, religion and
sex notwithstanding, should not be allowed to go on without end.
Religious tolerance is central to the jurisprudence of the law
cited in the above constitutional provisions and it must be
observed if Nigeria is to realize her unity. As such all hands must
be on deck to correct this anomaly, as it is.

Let’s accommodate divergent view and abandon archaic dogmas
which are not supported by the law of God and the fundamental law
of man. Obviously, this affects in substance, the freedom of
religion of these girls as well as their fundamental right and
should not be given a pride of place. These students have an
unfettered right, the breach of which gives them a reasonable cause
of action before the court. We thereby honourably call on the
government and the relevant authorities to see to this
unconstitutionality because unconstitutionality should not be given
a place to stay in a decent society.

Abdullahi Soliu Dagbo is a Student of Law
in his second year, Faculty of Law, University of Ilorin. He can be
reached via +234 903 566 3513 or [email protected]^[1]

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