Appeal Court Declares Ban On Hijab in Lagos Illegal, Unconstitutional

Appeal Court Declares Ban On Hijab in Lagos Illegal, Unconstitutional

The Lagos Division of the Court of Appeal on Thursday declared the ban on the wearing of Hijab (Muslim head scarf) in public primary and secondary schools in the Lagos state illegal.

The appellate court in an Unaninomous judgment delivered by by a five-man panel presided over by Justice, A.B. Gumel held that the ban violates the fundamental human rights of muslim students is therefore wrongful and unconstitutional.

The special panel the Court of Appeal set up by the President of the Court, Justice Zainab Bulkachuwa also held that the state government failed to tender before the lower court any existing  policy or law that supported the ban on hijab.

The upper court further held that since the use of Hijab by muslim students does not violate any known law and does not infringe on the rights of other members of the society the government can not ban or restrict the use of the Muslim head scarf.

The court therefore set outside the judgment of Justice Grace Onyeabo of the Lagos State High Court, which had on October 17, 2014 held that the the restriction placed on the use of the Hijab in public primary and secondary schools in the state.

Other Justices in the five-man panel are: Justice M. Fasanmi, Justice A. Jauro, Justice J.S. Ikejegh and Justice I. Jombo Ofor.

Justice Grace Onyeabo had also held in the judgment  that the the restriction is not discriminatory and did not breach Sections 38 and 42 of the 1999 Constitution as claimed by the students.  

The Registered Trustees of the Muslim Society of Nigeria (MSSN) had dragged the Lagos state government to court over the restriction of the use of the Hijab on or outside the premises of any educational institution in the state, on the ground that it violates their fundamental human rights, is wrongful and unconstitutional . 

The MSSN had filed the case against the State Government along with two pupils, who were then 12 year old, Miss Asiyat Abdulkareem and Miss Maryam Oyeniyi, students of Atunrashe Junior High School, Surulere, Lagos State.

They were joined in the suit as claimants through their fathers – Alhaji Owolabi Abdulkareem and Suleiman Oyeniyi.

The defendants in the suit are the Lagos State Attorney-General and Commissioner for Justice, and Commissioner for Education and Commissioner for Home Affairs and Culture.

It will be recalled that the government had banned the use of Hijab on the argument that it was not part of the approved school uniform for pupils.

Not happy with the ban, the students filed the suit on May 27, 2013, seeking redress and asked the court to declare the ban as a violation of their rights to freedom of thought, religion and education.

While arguing the case of his clients on Friday, Adetola-Kaseem maintained that the essence of wearing Hijab by Muslim female is to prevent them from tempting people of the opposite sex or being tempted by them and also to protect their chastity.

The lawyer also submitted that from Islamic point of view, womanhood is determined not by biological age or marriage but by the time a person has attained the age of puberty.

He further stated that scientifically and from experience, the attainment of puberty varies between individual. Some females attain puberty as early as the age of nine years while others attain puberty at age 13 or more.

Adetola-Kaseem insisted that it is mandatory for all Muslim who have attained puberty to participate fully in the practice of Islam, including Islamic dressing mode, worship and fasting. 

He, therefore urged the court to grant the application because the position of the Lagos State Government violate the religious rights of the applicants and it is the duty of the court to protect them.

But in his response, the former Solicitor-General of Lagos State, Lawal Pedro (SAN) argued that the wearing of uniforms in public primary and secondary schools is for identification of students from different schools in Lagos and that the standardised set of dress for students is meant to encourage a sense of unity, discipline organisations and orderliness the schools.

He also submitted that the clamour and demand for compulsory use of Hijab on top of school uniform by Muslim girl students in Lagos is a recent development.

He also told the court that the state has decided not to allow the use of Hijab in its schools on the ground that any deviation from the prescribed uniform for any religious, cultural or personal reason will bring about and encourage group affiliations,promote prejudice and weaken the sense of unity amongst students.

Pedro further stated "We believe that the new state policy on Hijab is reasonable justifiable in a multi religion state like Lagos and Nigeria which constitutional prohibits state religion.

"The application lacks merit and should be dismissed because the Quarantine injunction or Islamic law which prescribes the use of Hijab in public for Muslim is made mandatory for woman not children", he concluded.

In her judgment, Onyeabor held that the prohibition of the wearing of Hijab over school uniforms within and outside the premises of public schools was not discriminatory.

According to her, the ban does not violate sections 38 and 42 of the 1999 Constitution as claimed by the plaintiffs.

The judge said Section 10 of the Constitution made Nigeria a secular state and that government must maintain neutrality at all times.

Onyeabor said the government therefore had a duty to preserve the secular nature of the institutions concerned as argued by the Lagos State Solicitor-General, Mr Lawal Pedro (SAN).

She noted that since the public schools were being funded by the government, it was therefore competent to issue dress codes and other guidelines to the students.

According to her, the use of uniforms engenders uniformity and encourages students to pursue their mutual academic aspirations without recourse to religious or any other affiliations.

The judge observed that the uniformity sought by the government in the issuance of the dress code would be destroyed, should the prayers of the plaintiffs.