“A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client. The judge's only obligation – and it's a solemn obligation – is to the rule of law.” ~ Samuel Alito (US Supreme Court Justice)
Gentlemen of the Press, on behalf of the leadership of the Muslim Ummah of South West Nigeria (MUSWEN) and indeed all Muslims in the South West region of Nigeria, I want to warmly welcome you all to this all-important Press Conference.
As we are all aware, MUSWEN is the umbrella body for all Muslims, Muslim organisations and Muslim institutions domiciled in the South West region of Nigeria. The body aggregates the aspirations and interests of all Muslims in the region.
It is thus part of our primary obligations, not only to propagate Islam and defend the interests of Muslims, but also to promote the cause of peace and peaceful co-existence among the people, irrespective of their faith and ethnicity, in the region.
This press conference becomes imperative against some recent happenings with regard to the use of hijab in public primary and secondary schools in Osun State. We wish to state that this is not the first time that MUSWEN would be addressing the media on the issue of hijab in Osun State public schools. The first conference was held on 20th February, 2014 when the issue was at its infancy.
The Osun State Muslim Community and the Muslim Students’ Society of Nigeria
(MSSN) on February 14, 2013, dragged the Osun State Government to court seeking an order of the court to allow female Muslim students enjoy their fundamental right to use hijab in public primary and secondary schools in the State pursuant to Sections 38 and 42 of the Constitution of the Federal Republic of Nigeria 1999.
The suit which was directly instituted against the State Government also had the State Commissioner for Education, Attorney General and Commissioner for Justice, among others, as respondents. The Christian Association of Nigeria (CAN), Osun State Chapter, its chairman and other interested Christians voluntarily joined as respondents.
The applicants told the court that female Muslim pupils/students were being harassed by the fourth and fifth respondents (Principal and Head teacher of a public secondary and public primary school respectively), insisting that such was a clear discrimination and infringement on their fundamental rights.
The applicants premised their argument on a decision of the Court of Appeal, Ilorin, in The Provost, Kwara State College of Education, Ilorin & 2 Ors vs Bashirat Saliu & Ors, which noted that female Catholics wear hijab, while Mary, the mother of Jesus was always depicted as wearing hijab on her head.
However, the respondents insisted that only beret and face cap were recognized and that students should abide by the government’s directives. They insisted that allowing students to wear hijab in schools where Churches are located was alien to their religion and thereby urged the court to dismiss the application of the applicants.
In his judgment on June 3, 2016, Justice Jide Falola of the Osun State High Court, observed that religion was introduced to the case when the CAN and others joined the suit, noting that he decided to deliver the judgment after all pleas to settle the matter amicably had proved futile.
In a 51-page judgement, Justice Falola ruled that the use of hijab by female Muslims is their fundamental human right to freedom of religion, conscience and thought, and as such no female student should be molested or sent out of school for wearing it. Premising his judgment on Section 38 of the Nigeria Constitution and Article 8 of the 2004 policy published by the state Ministry of Education, Justice Falola held that female Muslim students were not exempted from the freedom of religion, conscience and thought.
He ordered that the respondents should be restrained from disallowing the use of hijab by female Muslim students, adding that the students who wear hijab should ensure that it is in the colour prescribed by the first to fifth respondents. He said since the respondents had failed to cite any relevant authority in their response, he would be bound by the decision of the Appellate court in Ilorin which the applicants had cited in their application.
Quoting copiously from Article 8 of the Guidelines on Administration and Discipline in Public Schools in Osun State which was issued by the State Government in 2004 which says “there are no mission school presently in Osun state as all schools have been taken over by government in 1975,” Justice Falola upheld all the prayers of the applicants and held that no student should be prevented from enjoying his or her right.
Hijab, Religious Freedom, Human Rights and the Rule of Law
In a multi-stakeholder setting like ours, only the supremacy of the law can help glue the diverse segments of the society together. The rule of law is a catalyst for peaceful co-existence. Thus, for peace and progress, and in settling intra and inter-group disputes, we all must strive to promote a regime of the rule of law in the society. As Dwight D. Eisenhower, a former US President, said,
“The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”
Hijab is not just a religious symbol but indeed a religious requirement, for the non-fulfilment of which the individual or her parent is accountable before Allah on Judgement Day.
In Qur'an 24:31, Allah states how a Muslim woman should be dressed especially when she appears in public; it includes covering her head down to her bosom. This directive applies to all Muslim women that have attained puberty and therefore are under obligation to carry out prescribed religious duties. Obviously, most of the female students in secondary schools are already in this category, these days when it is not uncommon to see 13-year old or even younger girls give birth to children.
Even the younger Muslim girls cannot be denied the right to wear hijab on the grounds that they have not attained puberty. Islamic tenets include the directive that parents teach and encourage their children, male and female, to observe the FIVE daily prayers when they attain the age of SEVEN and to be strict with them when they are TEN so that they get used to it as they grow older. By the jurisprudential principle of analogy (qiyaas), this should applied to dress as well. So, a female Muslim pupil in a primary school would be exercising her constitutional right if she chooses to wear hijab while in her school uniform.
It is from this angle that we should all consider this matter against the background of Section 38 (1) of the 1999 Constitution of Nigeria. It states that
"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" (emphasis is ours).
The Idea of School Uniform:
As Africans, we had traditional rules and regulations based on our cultural values before we were forcefully colonized by the Europeans. But those colonialists thought that our values were primitive and imposed theirs on us. By the time they were leaving after 99 years, the most fundamental heritage they bequeathed to us was a constitution based on their own culture. Yet after they left, we began to amend some aspects of that constitution to suit our own cultural values.
We can recall that while the colonialists held sway here, they imposed their own dress code on us and called it official dress code in which only their own mode of dressing was officially tolerated. After their departure, we changed that code and thus, today, every Nigerian working in the public office could wear his or her traditional dress to office with pride. It was the same colonialists who designed and imposed the so-called school uniform on our children without consulting us as stakeholders. After all, we are very much aware that the lawyers and judges dresses as well as the academic gowns worn in our Universities are all adopted Church robes, yet we have never complained about it since it does not affect the practice of our religion.
If we could amend the colonial constitution imposed on us to suit our cultural lifestyle; if we could do away with the colonial dress code to meet our own traditional dressing taste, why must anybody subject the issue of hijab which is statutorily obligatory in Islam to any unnecessary controversy even after 66 years of independence? Should we be tied to colonial apron in one aspect of our life and not in another? In our perception, based on our experience, the problem of religion in Nigeria is not as much of intolerance as in deliberate provocation to fan the ember of religious strife.
As Muslims, we have exhibited enough of tolerance in the fact that Christianity is officially granted two days holiday every week in Nigeria while none is granted to Muslims. Yet, Muslims have neither begrudged the Christians on this nor made any frivolous demand as of right. Nigerian Muslims, like their brothers and sisters in other parts of the world, do not demand what their religion does not prescribe. Therefore, by supporting the wearing of hijab by their wards, Muslim parents are only fulfilling the obligation of their religion.
Osun CAN’s Strange Reaction to the Judgement of the Court:
We wish to call the attention of the world to the fact that the current round of crisis arose when the Christian Association of Nigeria (CAN), Osun State Chapter, supported by a section of the media in the South West, rejected that rulingof a High Court of the State.
What is worse, Osun State CAN not only rejected the ruling of a court of competent jurisdiction; it encouraged Christian pupils/students to disobey the court order by instigating them to go to school in their variety of full church attires!
It is curious that, while hijab is merely a head-cover worn over the school uniform, what Osun State CAN directed the children to wear have no bearing with the school uniform. Full church attires are nothing but substitution for the school uniform. What is more, judging from what we all saw on television or read in the newspapers, there is nothing uniform in the church attires paraded by the Christian kids as ‘school uniform’! They came in all shades and shapes!
For the avoidance of doubt, what is called hijab in this instance is only the head-cover and not full Islamic attire. Again, due consideration is always given to ensure that the head-cover matches the colour of the school uniform. To that extent, for Muslim girls, the head-cover complements and is an essential part of the school uniform. It is not a substitute for the school uniform. We, therefore, wish to emphasise that all the pupils who wear hijab in public schools in Osun State do so in the prescribed form which in itself is a part of the uniform.
We agree with the opinion expressed by a respected former consultant to the United Nations Educational, Scientific and Cultural Organisation (UNESCO), Dr. Amiel Fagbulu, who submitted that
“Hijab is like a cap. You can wear a uniform and put a cap on it, you can wear a uniform and put a sweater on it but you cannot wear cassock and say it is a uniform. It is wrong. They are breaking the law by wearing cassocks to schools.”
We consider it a disservice that while the debate raged on the issue, the best that the national leadership of CAN could do was to further encourage the disobedience of the judgement of the court. Reverend Musa Asake, CAN’s General Secretary, had this to say about the development:
“We at the national level are in total support of the decision by the Osun State chapter of CAN that Christian pupils should attend classes in choir gowns, Girls Guide and Boys Scout apparels, including white garments, depending on whatever attire appeals to any Christian parent.”
We are also aware of the on-going campaign by some Christians who circulate hate materials through the social media.
Could all of these be happening coincidence? Events in the last few years suggest that there exists a script that is playing out. But we are not surprised.
In our press statement and letters to authorities back in 2014, we alerted the world about the antics of Archbishop Magnus Atilade, the Chairman of South West Zone, who in late January that year declared that the South West would be the next battleground against ‘Islamisation of Nigeria’. This is not only insensitive; it is also provocative.
In his recent contribution to the debate on the matter, Rev. Francis Ejiroghene Waive, General Overseer, Fresh Anointing Missionary Ministries Inc., indicated an expectation of war unless the matter was resolved to the satisfaction of CAN.
We, therefore, call on governments at the Federal and State levels to get to root of this matter. CAN’s actions in Osun State, without doubt, point to a broad agenda.
Hijab issue may just be smokescreen.
We, however, recognise the fact that, in spite of the belligerent posture of Osun State CAN, there are Christians who understand the fact about the issue and express it emphatically. A case in point is the article of one Okikiowo Ileowo, a Christian, which was reproduced in The Message column on page 46 of The Nation newspaper of Friday, June 24, 2016.
Muslims’ Reaction under Similar Circumstance:
It is interesting that dispute over the issue of hijab in public school was not limited to Osun State. A similar scenario played out in Lagos State in 2013. When in 2014 a High Court Judge in the state ruled that female Muslim students in the state had no right to wear hijab over their school uniform, the Muslim Community of Lagos State did not raise hell. They did not incite the students to take the law into their hands and disrupt school activities and public peace. Neither did they influence the press against the governor at the time as is currently the case against Governor Aregbesola, who did not make the ruling. As law-abiding and peace-loving citizens, they did the needful by appealing the decision at a higher court which is yet to decide the case.
It is interesting to note that coincidentally, the Governor of Lagos State at the time was a Muslim. To the Christians and their friends in the media, as long as the judgement did not favour the Muslims, it was sound and well-reasoned! Conversely, however, neither CAN nor their supporters in the media see the need to toe the path of civility in this case as the Muslims did in Lagos State.
Ownership of Public Schools:
A major plank on which much of the argument of the Christians has been based was that they would not allow the use of hijab in schools previously owned by Christian Missions.
This leads to the question of the ownership of schools. In 1975, the government, for good reasons, took over schools previously owned by religious organizations or individuals. This was implemented via Edict No. 14 of 1975 and the Takeover of Schools Validation Decree of 1977. It must be emphasised that a major reason why government took this decision was to
“provide sustained education to the mass majority of the Nigerian public at an affordable cost without RELIGIOUS DISCRIMINATION AND BIAS” (emphasis is ours)
Notwithstanding the fact that virtually all such schools were grant-aided by government with tax payer's money the government at the time offered compensations to the original owners, even prior to the take-over.
One can then ask: can the previous owners of such schools still claim ownership while the government still holds on to them? Can we still talk of any Muslim or Christian public school when ownership of those schools was transferred to the government forty one years ago? Is government’s decision to retain the original names of those schools enough reason for the original owners to lay claim to them? In such a situation, how many owners/proprietors do those schools have? Is it not fair to declare that all institutions that are run with public fund are public institutions?
It is both instructive and interesting that an enlightened Christian commentator argued most convincingly why schools should not be returned to the previous owners. In her article on the matter which we referred to earlier, Kikiowo Ileowo traced the role that Christian missions played in discriminating against Muslim students and denying them religious rights.
Beside the issue of constitutional right, the previous proprietors of such schools have no moral justification to deny a female Muslim pupil/student her right on the spurious basis of religious difference. This is more so with respect to such schools that were community owned originally, having been jointly established by Christians and Muslims but later regarded as Christian schools mostly by dubious means. Such schools abound in some states in the South West including the State of Osun.
In any case, it is well known that the Nigerian Constitution prevails where any law or administrative directive conflicts with it. To this end, no previous or current school proprietor or administrator can deny a female Muslim pupil/student the right to wear hijab, not even in a private school, let alone a public one.
Reaction of Some Muslim Parents in Osun State
As reported in the media last week, we learnt of the attempt by some Muslim parents and clerics to enforce the court order on hijab at St. Charles High School and Ife Oluwa Middle School, both in Osogbo, Osun State.
We wish to use this medium to state clearly that the action of those Muslims does not enjoy the support of the leadership of MUSWEN. No citizen has the right to take the law into his hands. We believe that, barring any attempt to frustrate the enforcement of the court order, the government has adequate machinery to enforce it. Indeed, only the government possesses the power to enforce all laws. To this end, we will be glad to see the Osun State government do the needful on the court order. Justice must not only be done, it must be seen to be done.
The Role of the Nigerian Press:
It is disheartening to note that while the debate on the court judgement was going on, a section of the Nigerian media allowed primordial sentiment to becloud their sense of impartiality by joining the fray. We have read some self-serving opinions that were dumped on the unsuspecting public as editorials.
Editorials, as products of collective reflection, under normal circumstances, are supposed to represent the best thoughts that a media outlet could market to the world. They are supposed to be well-researched, well-reasoned, thoughtful and balanced. As the editors’ contributions to nation building, they are supposed to help deepen people’s understanding of their rights and obligations within the ambit of the law. Where necessary, they are supposed to call the people and their government to the path of rectitude. As materials for posterity, they are supposed to be couched in such a language that the writers could be proud of the day after.
It is, therefore, a dangerous development in any democratic environment when reporters turn themselves to judges.
We wish, therefore, to use this opportunity to remind Nigerian media of the huge responsibility that goes with the enormous power that they hold over the health of the nation.
Our Advice to CAN:
In view of the foregoing, we wish to advise the CAN leadership in Osun State to deeply consider the advice which one of the most respected Christian leaders in Nigeria, John Cardinal Onaiyekan, the Catholic Archbishop of Abuja, offered at a recent Roundtable on Law and Religion. His Grace said the nation should adopt the policy that no law should prohibit what religion prescribes or require citizens to do what religion prohibits. The Osun State chapter of CAN should learn a lesson from this advice.
Besides, on purely moral grounds one may ask: how does a Muslim girl's wearing of hijab offend a Christian? Moreover, the court ruling does not compel all Muslim students to wear hijab. It is left entirely to the choice of the individual student who wishes to obey the order coming from her Creator. The court has only affirmed her God-given right.
The CAN leadership must be told that what they are doing in this case is challenging the directive of Allah. Do they really feel comfortable preventing people from doing the Will of God on earth as it is done in heaven?
If, however, CAN still feels strongly about the judgement, let them follow the commendable example of the Muslims of Lagos State by following the path of law.
Let the CAN leadership learn from the fact that Nigerian Muslims have demonstrated tolerance in the face of the imposition of the vestiges of Christian colonial legacies such as the observance of Sabbath on Sunday (and later on Saturday for Seventh Day Adventists) as well as the Gregorian calendar.
Let us all learn to adopt the spirit of give and take and accord our judiciary the respect that it deserves. Resort to self help will ultimately help nobody. It does not cost much for us to live together in peace and harmony.
In our multi-religious, not secular, nation, the peculiarities of the groups that make up the Nigerian State must be respected within the limits of the law. This is the only way by which we can all make progress together and in peace.
As always, we want to appeal to all Muslims to remain calm and not to be provoked in spite of the challenging situation.
Professor Dawud O. S. Noibi, OBE, DSc, FISN, FIAC
Muslim Ummah of South West Nigeria (MUSWEN)