A full panel of the Court of Appeal sitting in Lagos on Thursday gave a legal imprimatur to the rights of Muslim students in Lagos to wear Hijab (Islamic headscarf) in public primary and secondary schools.
That was after the court, in a unanimous verdict, annulled a verdict entered by a Lagos high court which banned its use.
In the lead judgement read by Justice Gumel, the intermediate appellate court held that the use of hijab was, had been and is still an Islamic injunction and also an act of worship hence it would constitute a violation of the appellants’ rights to stop them from wearing hijab in public schools.
The appellate court held that the lower court erred in law when it held that the ban on wearing the hijab was a policy of the Lagos State Government, saying that no circular was presented before the lower court to show that it was a policy of Lagos State adding that “he who asserts must prove.”
The court further held that if there was a policy, such policy ought to have emanated from the State House of Assembly and not the executive arm of government.
Consequently, the court declared that the fundamental human rights of female Muslim students as enshrined in section 38 (1) of the 1999 constitution was violated by the Lagos government.
The court dismissed the argument of Lagos State that it made an exception by allowing female Muslim students to wear hijab during prayers.
The verdict threw a mammoth crowd of Muslims who came to the court for the judgment into wild jubilation while the shouting of ‘Allahu Akbar’, ‘Alihamdulilah’, meaning Allah is the greatest and all thanks are due to Allah respectively rented the air.
Bar and Bench Watch reports that Lagos government had banned the wearing of the hijab by Muslim students to public schools on the account that it was not part of the approved school uniform for pupils.
Following the ban, 12-year old Asiyat Kareem (minor) suing through Mr. AbdulKareem Raji; another 12-year old Mariam Oyeniyi through Mr. Sulaimon Oyeniyi and Muslim Students’ Society of Nigeria, Lagos State Area Unit (suing through its President, Saheed Ashafa), had instituted a class action against Lagos State Government (LASG) before a Lagos high court to challenge the government policy on the hijab.
The class action was filed on May 27, 2013.
They had prayed the high court to declare the hijab ban as a violation of their rights to freedom of thought, religion and education.
But Justice Modupe Onyeabor of a Lagos High Court sitting at Ikeja had on October 17, 2014, dismissed the suit.
In her judgment, Justice Onyeabor declared 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 did 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.
The case was argued by the then Lagos State Solicitor-General, Mr. Lawal Pedro (SAN).
The judge further held 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 dress code would be destroyed should the prayer of the plaintiff be granted.
But the two minors who sued alongside Muslim Students’ Society of Nigeria were dissatisfied with the verdict.
They therefore appealed against the judgment at the Lagos division of the Court of Appeal, urging the appellate court to set aside the judgement and protect their constitutional rights.
Specifically, the appellants formulated five issues for determination.
A three member panel of the Court of Appeal headed by Justice A. B Gumel during hearing of the appeal ruled that given the nature of the appeal, it was only a full panel of the court that could hear the case since a final and conclusive determination of the case would require constitutional interpretation.
The panel advised parties to write the President of h Court of Appeal to convoke a full panel to take the matter, a request that was granted.
The presiding justice, A.B. Gumel, also asked parties involved in the case to update their defence documents
The intermediate appellate court eventually raised a full panel of five justices to look at the constitutional issues formulated for determination.
Other Justices on the five-man panel set up by President of the Court of Appeal, Justice Zainab Bulkachuwa were Justice M. Fasanmi, Justice A. Jauro, Justice J.S. Ikejegh and Justice I. Jombo Ofor.
After hearing out both parties, the panel decided all the five issues formulated in the case in favour of the appellants and upheld their rights to wear hijab in both public primary and secondary schools.
With the verdict, it means that Muslim students in Lagos State public schools have the right to wear Hijab on their school uniforms both within and outside their school premises without being punished or victimised.
Responding to the judgement, on Thursday the President of Muslim Students’ Society of Nigeria in Lagos State, Saheed Ashafa, expressed delight over the pronouncement by the court.
While saying the right to wear Hijab was long overdue, Ashafa urged all parties to act in accordance with the judgement.
He said, “This is victory for Islam! Victory to Muslims. The words of Allah have come to pass. We are glad that there are few judges whose neutrality has not been stained by sentiment.
“We wonder why we had to face so many challenges before our right is granted.
“This recognition and truthful interpretation on freedom of religion as enshrined in the Nigeria constitution (Section 36) and United Nations Charter, will further strengthen public trust in the judiciary.
“Today will remain historic in the life of every Muslim in Lagos and Nigeria as a whole. We will remain law abiding and appeal to all and sundry not to act in ways and manners that are contrary to the judgement.
“This should mark the end to harassment, embarrassment, victimisation, cheat and all acts of wickedness unleashed on Muslim female students who wear the Hijab.”
Also, Amirah of MSSN in Lagos State, Hafsah Badru, described Hijab as a religious garment, which should be put on at all times.
“Justice can never prevail over injustice, truth will always prevail over falsehood; the commands of Allah are supreme over all man made laws. Allah is the Greatest. We have not asked anyone not to observe their religious right in respect to legality, we have only asked that ours should not be tampered with, and as Allah wants it, we have the right granted,” she said.
She, subsequently, appreciated all Muslims and Islamic organisations who supported the Muslim students to get their right to wear Hijab on school uniform granted.