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]