An opinion/concept note by The Oyemaja Institute of Law.
There have been mixed reactions following the decision reached by the Supreme Court of the Federal Republic of Nigeria on Friday 17th of June 2022 regarding the wearing of hijab by female muslim public school students in Lagos public schools.
The most dramatic was however that of a lawyer, who stormed the court premises adorned in his traditional worship regalia. From the feathers in his cap to the red cloth around his loins as well as his poise and confidence; he did look fascinating enough to catch the attention of Nigerians.
and he did! His actions caused a media frenzy.
Now when someone pulls a stunt like that, it is important that we get past the catchy gimmick and focus on what is really important; their motives, or else, we just might end up missing the point.
This lawyer, through his actions and subsequently his words, indicated that in his opinion, the supreme court erred by upholding the right to freedom of thought, conscience and religion above the right of the government to regulate the practice of religion in public places on reasonably justifiable grounds.
Let's see how this claim checks out when compared with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
Religion and the individual
In Nigeria, there are quite a number of religions. Under Section 38 of the Federal Republic of Nigeria, 1999 as amended, every Nigerian has a right to freedom of thought, conscience and religion which includes the right to manifest religious beliefs in public or private. The Constitution further guarantees the freedom against discrimination on various grounds, including religion.
Religion and the state
Religion is definitely one of the most controversial topics in the world. Hence, attempting to solve religion requires as much caution as skating on thin ice would.
Almost every state of the world is multi-religious. The existence of multiple religions in a state can either be a disaster waiting to happen or a chance to foster unity in diversity (if we are able to play our cards right).
Depending on a number of factors, a state can choose either to have a state religion (like Afghanistan or the Vatican City) or take what I would refer to as the high road of secularism. While religious states have a recognised state religion, secular states make a conscious decision to distance themselves from all things religion.
As such, religious issues are not to be the basis of politics . In some instances, secularism can also imply that religion is relegated to personal observance and as such has no place in public life.
Religion in Nigeria
Nigeria is a secular state. Although the Constitution of theFederal Republic of Nigeria, 1999 as amended does not expressly state that Nigeria is a secular state. This position can be implied from a number of Constitutional provisions.
Section 10 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that "the Government of the Federation or of a State shall not adopt any religion as State Religion."
Under the Fundamental Objectives and Directive Principles of State policy in Chapter II, the state is enjoined to make provisions for facilities for religious life among other things.
Section 45(1) of the Constitution also provides that "nothing shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defense, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other persons."
From the foregoing, we see a number of things. Firstly, religious freedom is woven into the fabric of the Nigerian society, as such, every individual is entitled to freedom of religion. The state, on the other hand, is not expected to actively participate in religion but can regulate the public practice of religion where necessary.
The Supreme Court's Position
The supreme court prioritised the personal rights ( right to freedom of thoughts, conscience and religion, freedom from discrimination and dignity of human person) over the interest of the government in regulation.
In reaching its decision, the supreme court considered the hijab to be a "an Islamic injunction and a required act of worship for female Muslims". This is in fact, the position and sentiment of a number of states in Nigeria as well as of Islamic countries like Iran and Saudi Arabia as opposed to Islamic countries like Turkey and Tunisia.
Generic or situation specific?
A number of other religions have articles of clothing that just might fall into the category of being "required as an act of worship" like sutanas, cowries, rasta caps and so on.
Can this decision therefore be considered as a situation specific decision requiring "common sense" application or a generic decision that can be stretched to accommodate other religious worship modes of dressing? Is there a limit to how far it can be stretched to accommodate similar situations?
Following the reasoning of the court, there is no justifiable grounds for disallowing students who wish to appear in school wearing any articles of clothing considered integral to their religious worship. Doing so may raise suspicions of undue favoritism. This decision may therefore open the floodgates to allow for unintended consequences especially since the supreme court is the highest judicial body, hence, the lower courts are bound by its decisions.
Public Schools
While private schools may insist on the adoption of particular religious motivated dress code, public schools are government owned and taxpayers funded schools. They are therefore meant to be secular centers for learning. The identification of religion by the dress code of students may result in favoritism, nepotism, victimization or disunity.
Striking a balance
It is imperative that fundamental human rights are respected and the interest of the state is protected. Matters relating to religious freedom in public places must therefore be scrutinized so as to ensure that the interests of every party is adequately protected and justice is done at all times.
The court is also expected to holistically consider the Constitution as an entire document while being faithful to uphold the intentions of the law makers; which in this case, can be deduced from a literal interpretation of the provisions relating to the secularity of the Nigerian State.
Should the supreme court decide that it erred in its judgment, the Supreme Court can decide to depart from its precedent in any similar case that comes before it.
In conclusion, Nigeria has a track record of engaging in activities that seem to defy its secular status. These include the prevalence of evangelism and sermons in public places, state sponsored pilgrimages, as well as Nigeria's membership of the Organization of Islamic Countries as well as Islamic Development Bank.
This therefore alludes to the need for the enactment of a more comprehensive legislation upholding the secularity of the Nigerian state to protect and preserve the unity of Nigeria.
State legislation should also be passed to prescribe acceptable dress codes in government owned schools or we just might have our schools looking more like cultural centres and art galleries.
Your dear,
Damilare,
Oyemaja Law.
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