The Legal Status Quo Of Hijab And Niqab Under The Nigerian Law

INTRODUCTION

It’s no more a news that the Muslims in Nigeria especially in the South West of the nation has been put under serious quandary due to the recent hikes in the ban on the use of Niqab and public harassment of ladies in Niqab. This has made people to question the legality of these actions or otherwise. The writer discuss the legal status of hijab and niqab under the Nigeria law, absolute ness or otherwise of right to religion and surmise that both Hijab and Niqab are Constitutional right of any lady willing to use it.

LEGAL STATUS

Starting with, Section 38 of the 1999 constitution of the Federal Republic of Nigeria herein after referred to as CFRN provides for the rights to religion, the provision of the constitution is herein reproduced:

(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Going by the constitutional provision, subsection 1 provides the right to practice any religion of one choice and the right to practice and manifest the teaching of such believe. Undoubtedly, the fundamental teaching of Islam is that Hijab is compulsory whereas scholars differ on the obligatory of Niqab. It’s suffice to say that anyone who believes that Niqab is obligatory to her should be allowed to use it as she has the right to practice and manifest her believe. Chapter 24:31 of the Glorious Qur’an provides thus:

And tell the believing women to lower of their gaze and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and that they should draw their veils over their bosoms and not display their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.

Also, Chapter 33:59 provides thus:.

O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves [part] of their outer garments. That is more suitable that they will be known and not be abused. And ever is Allah Forgiving and Merciful.

The provision of Chapter 24:31 of the Glorious Qur’an enjoins the blessing of judicial interpretation in the case of “THE PROVOST, KWARA STATE COLLEGE OF EDUCATION, ILORIN & 2 ORS VS BASHIRAT SALIU & 2 ORS Appeal No CA/IL/49/2006″ where it was held, per Hussein Mukhtar, JCA, at page 15 – 16 of lead judgement:

“…The foregoing verses of the Glorious Qur’an and Hadiths have left no room for doubt on the Islamic Injunction on women’s mode of dress, which is clearly in conformity with not only the Respondent’s veiled dress but also the controversial article J of the 3rd Applicants’ dress code. ­­­ The use of veil by the respondents, therefore qualifies as a fundamental right under Section 38 (1) of the Constitution”

The Court of Appeal further held per Massoud AbdulRahman Oredola, JCA at page 2 of the concurrent judgement;

The right of the Respondents to wear their Hijab, veil within the School campus and indeed anywhere else is adequately protected under our laws. Human rights recognizes and protects religious rights. Section 38 of the 1999 Constitution of the Federal Republic of Nigeria guaranteed freedom of religion to all and sundry. Thus things that lawfully constitute open manifestation, propagation, worship, teaching, practice and observance of the said religion are equally and by extension similarly guaranteed and protected by the constitution.

The provision of the constitution is clear, it’s the grundnorm, supreme and binding on all authorities and persons in Nigeria and as well above the ordinary laws of the land. Since the constitution recognizes ones right to manifest ones religion and belief in practice and observance, a Muslim female, who is a Nigerian has the right to wear her hijab and Niqab anytime and anywhere.

In the case of PDP V CPC (2011) 17 NWLR (pt 1277) 485 at 511 it was held;

“The Constitution of Nigeria is the grundnorm, otherwise known as the basic norm from which all the other laws of the society derive their validity. Each legal norm of the Society derives its validity from basic norm. Any other law that is in conflict with the provision of the Constitution must give way or abate”.

Courts have consistently held that, having regards to chapter 24:30-31 of the Holy Quran, a Muslim female has the unfettered right to wear her hijab anywhere. Also, there’s no difference between either a mature or under age, right is right. See the case of SHEIKH SALAUDEEN ADE OLAYIWOLA & 3 ORS v. THE GOVERNOR OF OSUN STATE

This writer is very much aware that section 38 (rights to religion) of the constitution is not absolute as well as other rights. (See the case of Isiyaku and Anor v. COP Yobe state and ORS). The right is subject to section 45 of the constitution which gives government the right to disregard citizen’s right to religion in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.

To conclude with, in the light of the above provisions and judicial precedents, it’s far settled beyond reasonable doubt that the use of Hijab and Niqab is a constitutional right of any Muslim female who seeks to use it anywhere and anytime except in circumstance provided in the last paragraph above. Hence, the concerned institutions are advised to reverse their decision and allow rules of law to govern or the affected parties should enforce their fundamental human right in an appropriate court of law.

Biography

Keulere Nabil Olarewaju is a law student of the Faculty of Law, Ahmadu Bello University (ABU), Zaria, Kaduna state. He is a legal researcher and author.

Email: [email protected]
LinkedIn: https://www.linkedin.com/in/keulere-nabil-olarewaju-b495431a7

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