HIJAB: LEGAL OR ILLEGAL?

1. HIJAB: LEGAL OR ILLEGAL? Barr. Amoo, Wasiu Kayode Presented at the FIQH FORUM 13th May, 2012

2. INTRODUCTION • The discourse on whether or not the use of Hijab constitute fundamental right of the Muslim Women will not and can never be appreciated or understood without an appraisal of what Human Right is in the light of constitutional provision.

3. WHAT IS HUMAN RIGHT? • L. Henkin once maintained that human rights are claims asserted and recognised as of right not claims upon love or grace or brotherhood or charity. • In another breath, he sees human rights as liberties, immunities and benefits which by accepted contemporary values, all human beings should be able to claim as of right of the society in which they live.

4. Justice kayode Eso (J.s.c) in the case of Olufunmilayo Ransome Kuti Vs A.G.F. says: • ‘This is no doubt a right guaranteed to everyone including the appellants by the constitution, but what is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilised existence and what has been done by our constitution since Independence’

5. Human Rights are the species of rights which are immutable and inalienable that flow from birth. • They are specially provided for to enhance human dignity and its preservation. Human rights and fundamental rights are used interchangeably. • The latter is codified in the book form called the Constitution, the Grundnum of the society and thus best explained the inclusion of Human Rights in the 1999 Constitution of the Federal Republic of Nigeria under chapter 4.

6. Justice Oputa in his treaties on Human Rights in the political and legal culture in Nigeria says: • ‘It is because each human being has intrinsic worth that we talk of fundamental rights or the inalienable rights of man and in response to the question why are these rights inalienable? He said ‘The simple answer is that they attach to man because of his humanity. Without them, there is automatic diminution of his humanity’

7. In the case of Ransome Kuti Vs A.G.F (1985) 2 NWLR (pt 6)211 Kayode Eso (J.s.c), offered what can be termed a classical definition of human rights from the Nigerian Judiciary, he says : • ‘It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our (Nigerian) Constitution since independence is to have these rights enshrined in the constitution so that the rights could be immutable to the extent of the non –immutability of the constitution itself’

8. These are rights inherent in man, which can never be whittled down by any administrative enactment or procedures. See Ariori Vs Elemona (1983) 1 SCNLR 1Per Obaseki JSC held that: • ‘Fundamental rights entrenched in our 1963 and 1979 constitution are in my opinion, out of reach of the operation of the law of waiver. Our oath of office to protect and defend the constitution over all other laws ensures this…’

9. IS HIJAB A FUNDAMENTAL RIGHT OF THE MUSLIM WOMEN? • The use of Hijab by the Muslim Women falls within the gamut of fundamental Human Right as universally accepted under the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948 • Article 2 Guarantee freedom from discrimination, Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other option, national or social origin,property,birth or other status

10. Article 18 specifically addressed Freedom of thought, consicence and religion • That everyone has the right to freedom of thought , conscience and religion • This right includes freedom to change his religion or belief and freedom either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

11. By the virtue of the Federal Republic of Nigeria signatory to the Universal Declaration of the United Nation Assembly, all declarations under the Charter are domesticated in the members Nation Constitution which include Nigeria. • This explains the provision of Fundamental Human Rights in 1999 Constitution of the Federal Republic Of Nigeria, the entire chapter 4 addressed Human Rights while Sections 38 and 42 specifically address right to religious practice and freedom from discrimination.

12. Section 38 (1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

13. That from Section 38(1) of the Constitution the underlining words worthy of definition are; manifest, observance and practice. From the Longman’s Dictionary of Contemporary English, New Edition at page 867,973 and 1104 as meaning to show or appear to become easy to see’ritual observances and something that you do often because of your religion or religious beliefs and practices respectively.

14. Section 42 (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person • a. be subjected either expressly by, or in the practical application of ,any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria ofother communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or

15. b. be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

16. In the case of Fatimo Abidemi Rasak & 3 Ords Vs Commissioner for Health Lagos State & 3 Ords Suit No ID/424M/2004 delivered in 2004 by Hon Justice J.O.K OYEWOLE of the Ikeja High Court Lagos State in favour of the students allowing the use of Hijab on School uniform, as fundamental right, the lawsuit gave a better appreciation of Sections 38 and 42 of the 1999 Constitution wherein the Judge said and I quote:

17. ‘the courts will give especially broad, liberal construction to those constitutional provisions designed to safeguard fundamental rights’. I think this approach should normally be at the background so as to be able to accommodate the social changes, which advancements and the passage of time have brought in their trail. This does not mean changing the words used by the framers of the constitution, but coming to terms with changing times even upon a literal interpretation of clear unambiguous words’

18. ... And more importantly, the applicants are not as can be seen in Exhibits 3 and 4,refusing to wear the prescribed school uniforms but are simply seeking not to leave their heads uncovered in accordance with the dictates of their faith’.

19. Another opportunity presented itself at the Court of Appeal Ilorin,Kwara State in the case of The Provost Kwara State College Of Education, Ilorin & 2 Ords Vs BashiratSaliu &2 Ords Suit No CA/IL/49/2006 the Court of Appeal Coram Hon Justice Hussein Mukhtar (JCA) with two other eminent Justices went further to give a broader appreciation of Sections 38 of the 1999 Constitution • ‘that the Muslim Women Right is not limited to the use of Hijab alone, it equally extend to the use of Veil/Niqab even in public places without any molestation’,

20. the court held that • ‘…the veiled dress is recommended for Muslim Women, which the respondents undeniably are, and which also enhances the preservation of their honour and chastity. It is their fundamental right to practice and observe their religious injunctions in any part of Nigeria …’

21. In the same Court of Appeal decision herein referred, Hon JusticeM. A. Oredola (JCA) in his own submission says and I quote • ‘the right of the respondents to wear their Hijab, Veil within the school campus and indeed anywhere else is adequately protected under our laws. Human Right recognizes and protects religious rights, Section 38 of the 1999 Constitution of the Federal Republic of Nigeria guaranteed freedom of religion to all and sundry…

22. Thus, things that lawfully constitute open manifestation, propagation, worship, teaching, practice and observance of the said religion are equally and by extension similarly guaranteed and protected by the constitution, • Indeed, the Hijab, Niqab or burqa, being part and parcel of Islamic mode of dressing and by whatever standards a dignified or vividly decent one, cannot be taken away by any other law other than the Constitution…’

23. The Right of Muslim Women to use Hijab is recognised as Fundamental Human Right even in the UK,U.S.A, Muslim women who are Security officers are given the option to wear the Hijab on duty so also its acceptance in Government owned Schools and Institutions, same position held applicable in other Jurisdictions that are signatory to the United Nations Charter, why the problem in Nigeria?. • Nigeria problem is borne out of religious bigotry and sentiment, which has no basis in law. • Nigeria law is clear and unambiguous on constitutional guaranteed rights and such rights cannot be negotiated or compromised.

24. CONCLUSION • From the foregoing it is evidently established that the Nigerian judiciary has indeed clarified and laid to rest the controversy on whether or not the Muslim Women can use Hijab, Veil, Niqab or burqa in public places and institutions including public schools. • Hijab indeed is a fundamental Human Right of the Muslim Women, the task of acceptability now lie with the Government and the public administrators who have always been at the vanguard of not allowing harmony in the community but have chosen an environment of stifling regimentation, reminiscent of fascist dictatorships with lazy and unreasonable arguments that the acceptance of Hijab will trigger crisis in public places, even in the face of Judicial interpretations.

25. I refused to be cajoled into any argument that will subvert the fundamental rights of the Nigerian Citizens, affront to the Judicial Interpretation and violation of the Constitutional provisions. • In the word of Per Karibi-Whyte.JSC in the case of A.G ONDO STATE VS A.G EKITI STATE (2001) 17 NWLR (Pt 743) 706@ 773 held that • ‘Parties cannot contract out their constitutional rights. That is clearly not permissible, and in my opinion not the subject matter for argument between the parties’ • Without mincing word, the next line of action is for us all, to turn to Human Rights crusaders with the view of urging our Government and its agencies to come to terms with the Constitutional provisions and acceptance of Judicial pronouncements from time to time and never to be tired to institute court action where necessary to safeguard the sanctity of our constitution.

26. Hijab: my right, my honour and my pride. • Thanks for your rapt attention