Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Balancing Nigeria’s secularism and religious pluralism 16 Aug 2022

A formidable human rights activist and recipient of the Nobel Peace Prize for 1984, Archbishop Desmond Tutu is credited with saying “instead of separation and division, all distinctions make for a rich diversity to be celebrated for the sake of the unity that underlies them; we are different so that we can know our need of one another.”

Nigeria’s multi-religious, multi-cultural, and multi-ethnic composition is one of its alluring attributes internationally; it, however, presents itself as a tool and device for division and rancour within its borders. Over the past few weeks, conversation surrounding the judgment of the Supreme Court on the issue of the wearing of hijabs in public schools and the decision by the ruling party, All Progressives Congress (APC) to field a Muslim-Muslim presidential ticket has again brought to the fore our challenges with blending our diversity in our public affairs.

On the 17th of June 2022, the Supreme Court in a 5:2 majority decision held that the prohibition of hijab, a headscarf worn by many Muslim women as part of the observance of their religion, on the school uniform to be worn by female students in the public primary and secondary schools in Lagos State constituted a breach of the fundamental rights of the students to freedom to practice their religion and freedom against discrimination. The case, which was first instituted at the High Court of Lagos State, was brought by two female students suing through their legal guardians and the Registered Trustees of Muslim Students Society of Nigeria (MSSN) against the Lagos State Government (LASG). They were challenging the defendant for its directive and or policy prohibiting the use of hijab on school uniforms worn by students of the public primary and secondary schools in the state.

On the 17th of October 2014, the High Court of Lagos State dismissed the suit holding that the state’s policy on dressing in public primary and secondary schools did not infringe on any fundamental rights of the students. On the 21st of July 2016, the Court of Appeal overturned the decision of the High Court and found that the prohibition of the wearing of hijab on the school uniform by female students did breach their fundamental rights to freedom to practice their religion and discriminated against them. The appeal filed by the Lagos State Government to the Supreme Court was dismissed and the Apex Court by a majority decision agreed with the Court of Appeal.

Controversy regarding conventional rules of dressing which does not permit the wearing of hijab or similar headscarves is not new in Nigeria. Even the legal profession had its own controversy in December 2017 when a law graduate was denied entry into the Call to Bar Ceremony because of her refusal to remove her hijab and her insistence on wearing the lawyer’s wig on top of the veil. She was subsequently called to bar the following year wearing her hijab following interventions from several quarters.

The case against the LASG would, however, seem to be the first intervention on the issue by the Supreme Court. The Court of Appeal had in an earlier case of Provost Kwara State College of Education, Ilorin & Ors vs. Bashirat Saliu & 2 Ors taken the same stand it took in the Lagos State Government’s case. The Supreme Court has now upheld the decision of the Court of Appeal in the case.

Section 38 of the Constitution protects the right of every person to the freedom of thought, conscience, and religion. This freedom includes the right of a person to change religion or belief, and to manifest and propagate his or her religion or belief in worship, teaching, practice, and observance whether in public or private. The section specifically provides that no person shall be required to receive religious instruction or take part in or attend any religious ceremony or observance of a religion different from his or her own or not approved by his or her parents while attending an educational institution.

The section also specifically protects religious institutions from being prevented from providing religious instruction for pupils of its community or denomination in any place of education maintained wholly by that community or denomination. Thus, the Constitution expressly prevents educational institutions from mandating a student to practice a religion outside his own or one approved by his parents; the Constitution also permits religious institutions to train students in the way of their religion.

There is, however, no express provision on how to balance the ‘manifestation’ and ‘propagation’ of an individual’s religion while maintaining the neutrality of public life. The Courts have had the duty to that and on this particular issue have held in the lead judgment that: “the wearing of hijab by a female Muslim is a manifestation, practice and observance of her religion of Islam. …Unless it is shown that they are infringing on the rights of others, there is no justification for curtailing that right.”

Section 10 of the Constitution provides that “The Government of the Federation or of a State shall not adopt any religion as State Religion.” This is the provision that is usually used to describe Nigeria as a secular nation. The concept of secularism is grounded in the principle of separation of state institutions from religious institutions. A secular nation recognizes and promotes the freedom of its citizens to practice any religion of choice while maintaining a neutral structure for its citizens to do so. While Nigeria has not adopted any religion as its State Religion, she promotes the rights of her citizens to practice their religion of choice. In fact, as part of the fundamental objectives and directive principles of state policy provided in Chapter II of the Constitution, the State is enjoined to provide facilities for among other things, religious life.

Nigeria is not completely detached or oblivious to the practice of religion in its implementation of secularism, she actively seeks to promote and protect the practice of the religion of choice of her citizens. In almost all of its affairs, Nigeria recognizes the two dominant religions practiced in the country – Islam and Christianity - from the public taking of oaths on either the Bible or Quran, the observance of public holidays to celebrate core events in both the Christian and Islamic calendars, to the subventions on Jerusalem pilgrimage and Hajj pilgrimage.

The Constitution also makes provisions for the establishment of Sharia Courts of Appeal with jurisdiction over questions of Islamic personal law. The Constitution, therefore, seeks to create a country that upholds the right of each individual to practice and observe his or her religion, without upholding one as superior to the other or giving any advantage or privilege to one above the other. Therefore, Nigeria is not a country that ignores the concept of religion and it upholds its laws and regulations above the personal beliefs of its citizens. As can be gleaned from the decision of the Supreme Court, the fundamental right to freedom of religion, being a constitutional provision, ranks higher than other legislations and statues.

The delicate balance lies in protecting the right to observe one’s religion especially in public life without granting it as an advantage or privilege over others. It is clear from the dissenting judgments of the Supreme Court in the LASG’s case that it was in respect of maintaining this balance that the justices disagreed. Hon. Justice Agim said for instance: “In any case genuine discussions involving the right to freedom of religion cannot disregard S.10 of the 1999 Constitution. S.38 of the 1999 Constitution which gives every person the right to freedom of religion is clearly in furtherance of S.10 of the 1999 Constitution that provides that the Government of the Federation or of a State shall not adopt any religion as a State religion. It is obvious that if the State adopts any religion as a State religion, the right to freedom of worship is destroyed. That is why no government should in the operation of state institutions allow anything or practice that suggests or creates impression of preference for or adoption of a religion by government.”

Thus, while upholding the fundamental right of the litigants and every person to freedom of religion and freedom in public and private to manifest and propagate their religion, belief, worship, teaching, practice, and observance, he held that such right was not absolute by virtue of Section 45(1) of the Constitution for the purpose of maintaining public order and protecting the rights and freedom of other persons.

Hon. Justice Okoro in his dissenting judgment said: “I hold the opinion that bringing religious sentiments and biases to bear on dress code in a formal setting such as public primary and secondary school will not augur well for the students. If every student were to cover their school uniforms with their different religions togas, I wonder what the school compound would be like. Imagine a scenario where students who are traditional religious worshippers turn up at school fully adorned with their traditional worship regalia on top of their school uniforms and students whose faith prescribe wearing of white garments without shoes turn up in that fashion. What would the school environment look like? It would be chaotic to say the least.”

It is instructive to note that the dissenting judgments of the Supreme Court did not find the decision of the Court of Appeal in the case of Provost Kwara State College of Education, Ilorin & Ors vs. Bashirat Saliu & 2 Ors to have been wrong. Hon. Justice Agim who referred to the case in his dissenting judgment distinguished it from the Lagos State Government’s case by stating that the Lagos State Government’s case was in respect of children under the legal guardianship of the school authorities while in school while the former case involved adults in an institution of higher learning. Furthermore, in the Lagos State Government’s case, public primary and secondary schools had prescribed uniforms for the purposes of maintaining public order, and there was no such requirement in the former case. This would seem to suggest that the area of dissent is the superiority of the right vis-à-vis public order and the need to maintain a neutral environment for the practice of all religions.

Religion is clearly both a private and public issue in Nigeria. It is too late to relegate it only to private life. Nigeria promotes the freedom of its citizens to practice the religion of their choice. In doing that, she removes any advantage or privilege one seeks to have over the other. Thus, she constitutionally provides for the composition of Government recognizing the diversity within her borders.

Section 14(4) of the Constitution provides that “the composition of the Government of a State, a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or such agencies shall be carried out in such manner as to recognize the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the peoples of the Federation.”

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).