A special constituted panel of the Court of Appeal sitting in Lagos yesterday in a unanimous decision set aside the judgment of a Lagos High Court that banned students in public primary and secondary schools in Lagos State from putting on Hijab (Muslims headscarf) with their school uniforms.
A special panel of the court presided over by Justice A B Gumel held that the appeal is meritorious and same should be allowed.
In his lead judgement, Justice Gumel held that the use of hijab is an Islamic injunction and also an Act of worship, hence it will constitute a violation of the appellants’ rights to stop them from wearing hijab in publics schools.
Resolving all the five issues raised in favour of the appellants, the appellate court held that the lower court erred in law when it held that ban of hijab is a policy of the Lagos State Government (respondent).
The court noted 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.”
There 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 held that the fundamental human rights of female Muslim students as enshrined in section 38 (1) of the 1999 constitution was violated by the Respondent.
The court dismissed the argument of Lagos State that it made exception by allowing female Muslim students to wear hijab during prayers.
Other Justices in the five-man panel set are Justice M. Fasanmi, Justice A. Jauro, Justice J.S. Ikyegh and Justice I. Jombo Ofor.
It would be recalled that Justice Modupe Onyeabor of an Ikeja High Court had on October 17, 2014, dismissed the suit instituted against the Lagos State Government by two 12-year-old girls under the aegis of the MSSN, Lagos State Area Unit.
Dissatisfied, the appellants urged the appellate court to set aside the judgement and protect their constitutional rights.
The government had banned the use of Hijab on the argument that it was not part of the approved school uniform for pupils.
Following the ban, the students filed the suit on May 27, 2015, seeking redress and asked the court to declare the ban as a violation of their rights to freedom of thought, religion and education.
In her judgment, Onyeabor held 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 does 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 as argued by the then Lagos State Solicitor-General, Mr Lawal Pedro (SAN).
She noted 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 the dress code would be destroyed, should the prayers of the plaintiffs be granted.