BY AHMED ADETOLA-KAZEEM
There have been many opinions on the refusal of the Body of Benchers to call Firdaus Amasa to the Bar because of her hijab. I however noticed that most of the opinions were more of emotional outbursts rather than exposition of the provisions of the law on the subject matter. This piece will be x-raying the position of the law on the right of the female Muslims to wear the hijab on the call to bar.
WHICH BODY IS RESPONSIBLE FOR CALLING SUCCESSFUL LAW STUDENTS TO THE BAR?
S. 3(5) of the Legal Practitioners’ Act(LPA), Provides that, “There shall be a body of legal practitioners of the highest distinction in the legal profession in Nigeria to be known as “the Body of Benchers” which shall be responsible for the formal call to the Bar of persons seeking to become legal practitioners…
WHAT ARE THE REQUIREMENTS TO BE MET BEFORE A PERSON CAN BE CALLED TO THE BAR?
S. 4(1) of the LPA provides that “Subject to the provisions of this section, a person shall be entitled to be called to the Bar If, (a) he is a citizen of Nigeria; and (b) he produces a qualifying certificate to the Benchers; and (c) he satisfies the Benchers that he is of good character.
WHAT IS THE DRESSING REQUIREMENT FOR THE CALL TO BAR?
S. 16(3) of the Body of Benchers Regulations provides that: “Every student proposed and approved for call to the Bar shall, on any Call Night, be dressed in his BIBS and BARRISTER’s gown but shall not place his wig on his head until he has been called to the Bar by the Chairman”.
Did Firdaus have a bib? Yes
Did she have a barrister’s gown? Yes
Did she have her wig? Yes
Please note that the provision above did not make any provision on exposing one’s natural hair. It could be argued that there was no mention of the hijab in that section, the answer to that is there was equally no mention of trousers, suit, skirt, shirt, pants etc. The only reasonable conclusion is that the hijab is not prohibited by the regulations guiding the operations of the Body of Benchers who are saddled with calling eligible persons to the Bar.
ASSUMING THERE IS A LAW PROHIBITING THE WEARING OF THE HIJAB FOR THE CALL TO BAR, WHAT IS THE IMPLICATION OF SUCH LAW?
The Courts have held in plethora of cases that Fundamental Human Rights are not ordinary rights, they are elevated rights. They are “Special class of rights” and no person should be deprived of the enjoyment of any such rights except by the proper observance of the due process of law. The 1999 Constitution is not a mere academic model but a pragmatic living instrument that must be respected , it must not read with levity, contempt or disdain. Every of its section must be given meaning and effect by the Courts. It is at the top of all normative prescription. See Marwa &Anor v. Nyako and Ors. (2012) 6 NWLR (Pt. 1296) 199; Felix Amadi &Anor v. INEC & 2 Ors (2013) 4 NWLR (Pt. 1345)595.
A full panel of the Court of Appeal held in the case of Abdulkareem v. LASG (2016) 15 NWLR (Pt 1535) 177 that: “the use of hijab by female Muslims constitutes an act of worship, hence the refusal to allow the appellants to wear it on their school uniform, is a clear infraction of their constitutionally guaranteed right”. The court went further to hold that section 38 of the 1999 constitution which provides that every person shall be entitled to freedom of thought, conscience, and religion, and freedom (either or in community with others, and in public or in privacy) to manifest and propagate his religion or belief in worship, teaching, practice and observance, cannot be wished away just because some other persons feel uncomfortable with it.
Jumbo-Ofo, JCA held that every citizen is imbued with the right to practice, manifest and even propagate their religious beliefs without restrictions in any community they found themselves within the precinct of Nigeria. Such religious practice, manifestation or propagation shall not be disturbed or hindered either expressly or by the practical application of any ‘LAW’ in force in Nigeria. Such a document cannot fly at all in the face of the supremacy of the constitution.
WHAT IS THE EFFECT OF SECTION 45 ON THE RIGHTS GUARANTEED IN SECTION 38 OF THE 1999 CONSTITUTION
In The Provost Kwara State College of Education, Ilorin V. Bashirat Saliu(CA/IL/49/2009) the Court of Appeal held that: “The provision of section 45 of the Constitution is designed to save laws that are reasonably justifiable in a democratic society, notwithstanding their apparent inconsistency with any provisions in sections 37, 38, 39, 40, and 41 of the Constitution, either:
(a) In the interest of defence, public safety, public order, public morality or public health, or
(b) For the purpose protecting the rights and freedom of other persons
The laws saved by section 45 of the Constitutions are enactments made by the State Legislature. For the avoidance of doubt section 318 of the Constitution has defined “Law” as follows: “Law mean a law enacted by the House of Assembly of a State.” The Court also held in Abdulkareem v. LASG (Supra) that a law contemplated under section 45(1) must be one duly enacted to safeguard the defence of the country, public safety of its people, or public health and morality, or meant to protect the rights and freedom of other persons. Most people get it wrong by assuming that the exception is the main rule and the main rule is the exception. Ask them what is their justification, they simply tell you the right is not absolute, or the authorities have so so rules… but that’s not what the Constitution says. In conclusion the provision of S. 45 is not applicable in Firdaus’s case or in the case of any female Muslim who choose to wear the Hijab during the call to bar because there is no law enacted by the National Assembly validly curtailing such rights as guaranteed under section 38 of the constitution.
CAN THE RIGHT TO MANIFEST RELIGIOUS BELIEFS (IN THIS CASE, WEARING THE HIJAB) BE WAIVED BY SIGNING AN OATH OR CONSENTING TO THE DRESSCODE?
Some commentators have argued that Firdaus waived her rights to use the hijab during the call to bar when she allegedly signed some forms on admission into the lawschool.
I doubt if that is true, but assuming it is true, the Supreme Court held in ARIOVI V. ELEMONA (1983) 1 SCNLR 1 that:
“Fundamental rights entrenched in our 1963 and 1979 Constitution are in my opinion, out of reach of the operation of the law of waiver. Our oath of office to protect and defend the constitution over all other laws ensures this…. The right to life, right to personal liberty, right to freedom of expression, thought, conscience and religion, right to lawful and peaceful assembly and association which are vital to human existence and democracy in this nation cannot in my view be waived.”
In a more recent decision the Apex Court held in A.G Ondo State V. A.G Ekiti (2001) 17 NWLR (Pt. 743) 706 @ 763 per Karibi-Whyte JSC, that:
“ Parties cannot contract out their constitutional rights. That is clearly not permissible, and in my opinion not the subject for argument between the parties.”
It was held in Provost of Kwara College of Education V. Bashirat Saliu (Supra) that:
“The Respondents could not individually waive their fundamental rights under section 38 of the Constitution. Such right may only be lost or forfeited under the proviso to that section or by application of section 45 of the Constitution, neither of which is applicable to the 3rd Applicant’s dress code.”
WAS IT RIGHT FOR FIRDAUS TO HAVE INSISTED ON WEARING THE HIJAB DESPITE ENTREATIES MADE BY SENIOR MEMBERS OF THE BODY OF BENCHERS?
In my view, the entreaties made by the members of Body of Benchers were most unnecessary since Firdaus’s dressing did not contravene any valid law. They should have concentrated that energy in convincing themselves to call her to bar since there was no valid law preventing them from doing so. She was very right in asserting her rights and the rights of thousands of female Muslims whose right have been trampled upon unjustly and unjustifiably. Today we hail Rosa Park, Nelson Mandela and Gani Fawehinmi. What stood them out was challenging the status quo and asserting their rights when others were too timid to speak.