By Mohammed Etudaiye
I have just read an opinion by one Chief Malcolm Emokiniovo Omirhobo titled, “HIJAB: WHY THE SUPREME COURT OF NIGERIA ERRED AND WILL REVERSE ITSELF” on the recent decision of the Supreme Court declaring the wearing of the Hijab to public primary and secondary schools constitutional. The shocking factor in Mr. Omirhobo’s write up was his statement, without supplying any authority that the “justices failed to see the rights contained in section 38 of the constitution as private rights that must be exercised privately in our homes, place of worship, community, religious schools and not in the public or public schools for that matter funded with tax payers money”.
That the writer characterises “place of worship”, “community”, even “religious schools” as “not” “public” is a thing of worry. Worse, the inability to see that the right as declared becomes a public right that everyone, Muslims, Buddhists, Jews, Christians, Sikhs (especially those wishing to practise their faiths both in letter and spirit) may benefit from culminating in the reckless assertion that the decision is “tantamount to its encouraging the adoption of Islam as State religion” is the clearest signal still that Nigeria is in deep trouble.
There is a lot of ignorance out there on the streets. I would think that it is in the state of ignorance that we should be as cautious as possible in order not to advertise it. Therefore, I implore everyone, especially those who pride themselves as senior lawyers – take some lessons in Jurisprudence. Believe me, no matter how senior you are as a lawyer, without a knowledge of Jurisprudence, you are almost as ignorant of the law as the bricklayer on a construction site. I think this syndrome is what affects people most when they argue issues of law.
Mr. Omirhobo counts heavily on section 10 of the Constitution and argues that the Court ignored “the secularity of Nigeria”. Regarding this, this is what happens when you do not have a firm understanding of concepts but chose to build upon them.
So, we briefly discuss the issue of secularism and its Jurisprudence to know where Nigeria stands and to understand why the Supreme Court decision is dead on the mark.
We define secularism first. It is a broad concept. “In political terms, secularism is a principle of the separation of government institutions and persons mandated to represent the state from religious institutions and dignitaries”. From this definition, it is clear that it is a broad concept that, in this case, encompasses the concepts of “secular society” and “secular state”.
“A secular state is a concept of secularism whereby a state or country purports to be officially neutral in matters of religion, supporting neither religion nor irreligion”. This is not the same thing as a secular society. Unfortunately, this is where many people miss the point and therefore argue from a false premise. A secular society is one that “has no connection with religion”. This is why the interpretation of section 10 of the Constitution to mean that Nigeria is a secular society couldn’t be farther from the truth. Section 10 defines Nigeria as a secular state (and I am glad that Mr. Omirhobo also refers to the concept in his last paragraph as “secular country”) in providing, “The government of the Federation or of a state shall not adopt any religion as state religion”. Lawyers focus on the words of the law and interpret them in their natural and ordinary meaning without unnecessary interpolation. The meaning of section 10, therefore, is not that there shall be no religion in the state but that government is not to treat a particular religion as the religion of the state or government. This is also why section 38 of the Constitution not only provides for the right to freedom of religion but section 42 prohibits discrimination on account of religion. Most importantly, section 17(3)(b) of the Constitution actually enjoins the Nigerian state to direct its policy towards ensuring that there are adequate facilities for religious life – those are not my words; those are the Constitution’s words. And that is why when a religious organisation desires to build a religious house, it applies for a right of occupancy from government and upon the fulfilment of certain conditions, they are granted an allocation – adequate facilities. Now, go back to the definitions of secular society and secular state that I supplied earlier, you will very easily see why, given the scenario I have painted, Nigeria is a secular state but not a secular society. The latter has no connection with religion and will, therefore, not make facilities available for religious life. Indeed, in a secular society, there would be a prohibition against making facilities available to people who want to build religious houses.
What does it mean under section 38(1) to have the right to the freedom of religion including the freedom either alone or in community with others and in public or in private to manifest your religion or belief in worship, teaching, practice and observance ? Please, check the dictionary for the meaning of each of those words. If anyone is in doubt, at least we know that the human rights chapter of the Constitution is modeled along the lines of the European Convention of Human Rights. Well in Eweida & Ors. v. United Kingdom, ECHR 2013 what was in issue was the cross usually worn by Christians. It was acknowledged in the case that the cross was not a doctrinal requirement of the Christian faith. In spite of this, the European Court of Human Rights held that what was required for the act in question to be a manifestation of religious belief was that the act be intimately linked to the religious belief i.e. a sufficiently close and direct nexus must be established and that there was no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question. How much more the Hijab that IS a doctrinal requirement of the Islamic faith.
The only known derogations from these rights are those contained in section 45(1) of the same constitution which validates any law that is reasonably justifiable in democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights of freedom of other persons . A few imperative questions: 1).Which law has expressly banned the use of hijab? 2). Even if there was such a law, would it be reasonably justifiable in a democratic society? 3). How does the hijab threaten defence, or public safety, or public order, or public morality, or public health or threaten other people’s rights and freedoms in this country? 4). What otherwise authorises an authority subjugated to the constitution to breach a provision of that constitution that permits one to ‘manifest’ his faith in ‘practice and observance’? 5). Is the hijab not “manifestation” in “practice” and “observance” of the Islamic Faith? Analyse these questions reasonably. The sum total of these submissions is that if there is such a law that prohibits the hijab, then such a law is unconstitutional. In other words, the only way any law can derogate from the right of a Muslim woman to wear the hijab is by justifying it on account of its adversity to defence, public health, public order, public morality, etc. These are the constitutional questions that resolve the issue and there were already at least four Court of Appeal decisions that had upheld the use of the hijab in offices and schools. You think 4 three-member panels of the Court of Appeal were wrong?
There are other jurisprudential fronts upon which to justify the constitutionality of the Hijab but there is no need for them. I have often told students – “by all means be as prejudiced as you like but never fail to find objective jurisprudential arguments for the position you hold”. Unfortunately, this is the malaise that bedevils Nigerians and, sadly, Nigerian lawyers.
Mr Omirhobo’s pre-occupation with how public schools will look if everyone came to school with uniforms sewn in their diverse religious styles only underlines the warped contemporary reasoning that the worship of our Supreme God and its manifestations should be subjugated to the appearances of our ceremonies and vocations. That is very sad indeed. In any case, if the will of our Constitution is to protect our diversity and multiculturalism, then that is the will of our Constitution and the Supreme Court is duty bound to implement that will.
As if that was not enough, Mr. Omirhobo adds:
“Whether we admit it or not the supreme court’s decision will give rise to the identification of students’ religion by their dress code which in turn will bring about discrimination, favouritism, nepotism, victimisation, disunity and distraction in the public school system.”
The rather elementary question that underlines the paucity in logic of this assertion is – is that what happens in our larger Nigerian society where our dress codes are also as diverse? Perhaps in some places, Mr. Omirhobo but don’t count on the “fact” that this is what happens across the country.
It is my well-founded suspicion, therefore, that given the very sound jurisprudential foundation for this decision, Mr. Omirhobo will be waiting a long, long time to have his wish to have this decision reversed realised.
Our constitution makers were not mad either. They were aware that Nigeria is a multicultural State. It is those who are determined to establish a culturally monolithic society and impose their ethnocentric beliefs on the rest of us, instead of allowing cultural diversity to blossom, who are at the bottom of these persistent controversies. God help them.