Kwara State Hijab Crisis- why CAN lost in both Trial Court and Court Of Appeal.

Kwara State Hijab Crisis- why CAN lost in both Trial Court and Court Of Appeal.

By Saheed Akinola Esq

Many people do not understand the genesis of the crisis that rocked some public schools originally owned by churches before they were released to the government by those former owners of the schools. It is not in dispute that all mission schools were founded by religious bodies: Islamic / Christian organisations

However, the management and controls of those schools were voluntarily given to the government through grant-in-aid arrangement, by virtue of which they were transformed from privately owned mission schools to public schools with government having the responsibility to control and manage the schools including recruitment of teachers and payment of salaries etc

In the matter instituted against the Kwara state government by CAN to challenge the control and management of those schools by the government, the trial court and the court of Appeal found, contrary to the position of CAN, that the schools were public schools and that government had the right to manage and to formulate policies for all the public schools without discrimination.

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It is part of the grievance of CAN that the government policies allowing freedom of religion in those schools including wearing of hijab by willing muslim students to the schools is against the policies of the founders to use those schools to propagate their religion and as such it was an infringement on their fundamental right to freedom of association and religion.

It was argued by CAN that policies and regulations introduced by Kwara State Government into those schools were not in tune with their religious doctrine, hence, the same were in violation of their constitutional rights as enshrined and guaranteed under section 38(1) and 44(1) of the Constitution which empower them to establish, own, manage and run the schools in accordance with Christian religious doctrine.

The counsel to kwara State Government argued that S. 38 (1)(2)(3) of the Constitution of Federal Republic of Nigeria 1999 (as amended) have been misconstrued by the appellants such that their own construction of the provision can only lead to imposition of appellants Christian religious belief on any student regardless of the religious divide the students or pupils belong. It is argued that this is not the intendment of S. 38(3) of the Constitution (as amended). Given this position, it is argued that it is the appellants who are all out to Christianize and introduce Christian doctrines in the schools which now flourish as co-educational, co-religious, co-ethnic etc, by their desire to run those schools only in accordance with their beliefs, contravene section 38(1) of the Constitution.

The Learned counsel further argued on the issue of the use of Hijab by female students and pupils in those schools, that this is a right available to those students and pupils and this is not applicable to all students in those schools. He referred to the decision in the Provost, Kwara State College of Education & 2 ors v. Bashirat Saliu & 2 ors appeal No. CA/IL/49/2006 and the decision in Esabunor v. Faweya (2008)12 NWLR (Pt. 1102) 794, 810.

In drumming home the point that it is the right of those student to use Hijab, reference was made to Kwara State Education Law of 2006, particularly provisions as in sections 2, 20(1)(a)(b), 22, 30, 31, 44and 45.

I find those sections very interesting and apt and for the purpose of adumbration, I hereby reproduce the provisions of section 30 and 31 herein under:

Section 30 provides:

“(1) No person shall be refused admission as a pupil or prevented from attending as a pupil at an institution on an institution on account of his religious persuasion.

  • It shall not be required as a condition for any pupil attending any institutions that he shall attend or abstain from attending any place of worship other than as approved by his parent or guardian.
  • Any person who contravenes the provisions of this section shall be guilty of an offence and liable on conviction to a fine of ten thousand naira or to imprisonment for one year or both.”

Section 31 provides:

“(1) If the parent or guardian of any pupil in attendance at any institution requests that he be wholly or partly excused from attendance at religious worship or instruction in the institution or from attendance at both religious worship and religious instruction

in the institution, then until the request is withdrawn, the pupil shall be excused from such attendance accordingly.

  • Where any pupil has been wholly or partly excused from attendance at religious worship or religious instruction in accordance with the provisions of this section and the commissioner is satisfied:-
  • That the parent or guardian of the pupil desires him to receive religious instruction of a kind which is not provided in the institution during the periods which he is excused from such attendance;
  • That the pupil cannot with reasonable convenience be sent to another institution where religious institution of the kind desired by the parent or

guardian is provided; and

  1. The satisfactory arrangements have been made for him to receive religious instruction or attend weekly worship at another place and for his supervision during the course of his journey to and from this place, the pupil may be withdrawn from the institution during each periods as are reasonably necessary for the purpose of enabling him to receive religious instruction in accordance with such arrangements and shall not be dismissed from the institution on this account nor suffer any disability in consequence thereof.
  2. Where the parent of any pupil who is a boarder at any institution requests in writing that the pupil be permitted to attend weekly worship in accordance with the tenets of a particular religious faith or denomination, or receive religious instruction in accordance with such tenets outside school hours the Principal of the institution shall make arrangements, affording the pupil reasonable opportunities for so doing.
  3. No withstanding the provisions of subsection (3), the principal of an

institution need not make arrangements involving absence from the institution if he is not satisfied with the supervision provided far the pupil outside the premises of the institution. “

In the well-considered judgement of the court Appeal, the court held against the Appellant and in favour of the Kwara state Government as follow:

“The provision, particularly provision of subsection 1 of section 38, guarantees freedom therein contained to the appellants and all students admitted to schools under focus. Every person has a right to conduct himself in a manner permitted by his religious calling, but the provision does not permit any person under the guise of propagating his religion to impose his beliefs on another person who does not belong to the same religious calling with him. The appellants have by no means alleged the restriction of christian students from the practice of their religion or that Christian students were prohibited by 1st – 3rd respondents from the practice of their religion by reason of the control exerted by them in the management of the affairs of those schools. If that were the case, their grievance would have been understood as genuine. This is not the case. Rather it is the appellants, who are not happy to see the 1st – 3rd respondents continue to allow certain policies being introduced to those schools.

…The constitution under S. 42(1) prohibit those tendencies which the appellants want to bring to be a Section 38(2) also forbids it. It sounds rather ironic to me that the appellants who cry foul and shouted to high heavens that their rights to freedom of thought, conscience and religion had been violated, are the same group who are hell bent to unleash their own practices on other people who are not of the same religious inclination.

The appellants see the wearing of Hijab by students of the schools under focus as provoking enough and an insult in school or institution established to practice Christian religious doctrines.

There is no evidence coming from them on record as would suggest that Christian female students were compelled to wear the Hijab. The Hijab, the practice, where Moslem female cover their heads with veil or head cover, is an act of Ibada or worship as recognized in the Islamic religious worship. This act or practice is also in tune with the Constitution of the Federal Republic of Nigeria,1999 (as amended), See in particular section 38(1) See Provost Kwara State College of Education Ilorin & 2 Ors v. Bashirat Saliu & 2 Ors (Unreported) Appeal No. CA/K/49/2006 of 18th June, 2009.See further, the decision of this court in Abdulkareem v. Lagos State Government (2016) 15 NWLR (Pt. 1535) 177. The appellants, thus have no right to complain of acts which do not impugn on them. See: Adewole ors v. Alhaji Jakande & ors (1981) NCLR 262.

The submission made on behalf of the appellants that section38(3) of the Constitution allow them or give them the exclusive right to make Christianity the only norm in the schools under focus is only wishful thinking. Such is not tenable in a heterogenous set- up such as the schools under focus where students and pupils alike do not belong to the same religious community or denomination. Students and pupils of those schools came from different backgrounds and so there is no semblance of homogeneity amongst these students as to permit the imposition of the practice, the appellants have in mind over those schools.

In Esabunor v. Faweya (2008) 12 NWLR (Pt. 1102) 794, 870 the court held that every student must be given the right to choose the course of his/her life fashioned on what he/she believes in and reserve the right not to be coerced into acting contrary to one’s religious beliefs. There is no evidence on the printed record that the1st – 3rd respondents have coerced the appellants or students of the schools in focus into acting contrary to their religious beliefs”.

The court of appeal dismissed the appeal of the appellant in his entirety and pronounced as follows:

“The appeal, on the whole fails and the same is dismissed as lacking in merit hence the judgment of the High Court of Justice of Kwara State delivered on the 17th May, 2016 in suit No. KWS/20C/2015 is affirmed, less the order of joinder of the 14th –15th respondents, as parties to the suit, on appeal. There is no order as to cost”

All the Five justices are unanimous in this judgement without any dissenting opinion

The essence of this article is to analyse the judgement of the court of Appeal in the above matter and not to offer any opinion because CAN has further appealed to the supreme court. However, what we don’t understand is the reason why CAN and other appellant could not wait for the outcome of their appeal in the supreme court

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