ABDULKAREEM V. LAGOS STATE GOVERNMENT (2016)

Background

This appeal concerned the right of female Muslim students in Lagos State public primary and secondary schools to wear the hijab over their prescribed school uniforms. The first and second appellants were minors and students of Atunrashe Junior High School, Surulere, Lagos. They commenced proceedings through their respective next friends, while the third appellant, the Registered Trustees of the Muslim Students’ Society of Nigeria, joined the action in a representative and public-interest capacity.

The appellants claimed that school authorities had prevented them and other female Muslim students from wearing the hijab, including outside school premises while they were dressed in their school uniforms. They alleged that a vice-principal had removed their hijabs in a commercial bus, reprimanded and humiliated them at school assembly, and directed that the practice should cease. They sought declarations and injunctive reliefs under sections 38, 42 and 46 of the 1999 Constitution, the African Charter on Human and Peoples’ Rights and the Fundamental Human Rights Enforcement Procedure Rules, 2009.

The Lagos State Government maintained that the restriction formed part of a general school-uniform policy intended to promote identification, discipline, unity, orderliness and equality among students. It argued that the hijab was permitted during certain religious activities, including Islamic religious classes, afternoon prayers and Friday prayers, and that unrestricted use of the hijab would undermine uniformity. The High Court dismissed the originating summons, prompting the appeal.

Issues

1. Whether the prohibition or restriction on wearing the hijab violated the appellants’ rights to freedom of thought, conscience and religion under section 38 of the Constitution.
2. Whether the restriction amounted to discrimination on the ground of religion contrary to section 42.
3. Whether the alleged school-uniform policy was sufficiently established by evidence and whether it could lawfully restrict a constitutional right.
4. Whether the trial court improperly relied on the foreign decision in Leyla Sahin v. Turkey and raised the alleged secular character of Nigeria suo motu without hearing the parties.
5. Whether the trial court’s findings concerning disunity, inferiority and distraction among non-hijab-wearing students were based on evidence or speculation.

Ratio Decidendi

The Court of Appeal unanimously allowed the appeal. It held that wearing the hijab constitutes a manifestation and observance of the Islamic faith and therefore falls within the protection of section 38(1), which applies to “every person.” The constitutional protection is not limited by age, and the fact that the appellants were minors or secondary-school students did not deprive them of the right.

The court accepted, on the affidavit evidence and the authorities placed before it, that the hijab is a recognized Islamic religious practice. Its prohibition consequently interfered with the appellants’ constitutional freedom of religion. Although section 38 rights are not absolute, any restriction must fall within section 45: it must be authorized by law and reasonably justifiable in a democratic society for purposes such as public safety, public morality, public health or the protection of the rights of others. A general assertion of administrative policy, unsupported by a valid law, regulation, circular or other properly authorized instrument, could not satisfy that constitutional requirement.

Court Findings

The court distinguished between the existence of a general school-uniform policy and proof that such policy prohibited the hijab. The respondents’ counter-affidavit, which was not specifically controverted, established that uniforms were used for administrative and disciplinary purposes. It did not establish the contents or legal validity of a rule banning hijabs. The trial court therefore acted speculatively when it made findings about an “old policy” without the underlying document being produced or properly proved.

The Court of Appeal further held that the refusal to permit the hijab discriminated against the appellants on the ground of religion under section 42. Allowing Muslim students to add a religious covering to their uniforms was not, without evidence, discrimination against other students. Rather, the discriminatory disability arose from singling out Muslim students and preventing them from observing a religious practice available to them under the Constitution.

The trial court had also failed to follow the binding Court of Appeal decision in The Provost, Kwara State College of Education, Ilorin v. Bashirat Saliu, which had recognized the constitutional protection of Muslim women’s veiling. The distinction based on age and educational level was rejected because section 38 contains no such limitation. A High Court is bound by applicable decisions of superior courts and may not prefer a foreign authority over binding Nigerian precedent.

Finally, the trial court breached fair hearing by raising and determining, without inviting submissions, the question whether section 10 of the Constitution made Nigeria a secular state. A court must not make a case for the parties or decide a material issue on which they were not heard. Findings that permitting hijab would cause disunity, inferiority or distraction were also held to be conjectural and unsupported by evidence.

Conclusion

The judgment of the Lagos State High Court in Suit No. ID/151M/2013, delivered on 2014-10-17, was set aside. The appellants’ declaratory and injunctive reliefs were granted. The Court ordered that the respondents must not interfere with the wearing of hijab by female Muslim students on their school uniforms in the circumstances of the case. There was no order as to costs.

Significance

The decision is significant for Nigerian constitutional law, religious freedom and educational administration. It confirms that the constitutional right to manifest religion protects conduct such as religious dress, including the hijab, and that minors enjoy fundamental rights under section 38. It also emphasizes constitutional supremacy: administrative convenience, school uniformity or an informal government policy cannot override a guaranteed right. Any restriction must be legally authorized, constitutionally justified and supported by evidence. The decision further reinforces stare decisis, the limits of judicial speculation and the fundamental requirement that parties must be heard before a court determines an issue capable of affecting the outcome of litigation.