USE OF HIJAB IN CHRISTIANS MISSIONARIES SCHOOLS IN ILORIN: A SETTLED LEGAL POSITION
Kwara state is a state of harmony and it will be disastrous to keep quiet and allow religious or ethnic crises take over the harmonious atmosphere within the state. We are all students of history as our ages are enough certification on this. The position of Christians missionaries to prevent Muslims students from practising their religion and participating in Christian missionaries schools in control of government will definitely not be in the interest of peace which this state is known for.
There is the need to go down the memory lane since we have all agreed that we are students of history, back in time, to historical antecedents or facts which led to the missionaries schools in Kwara state coming under the control and management of Kwara state government. The lofty educational programmes of the then government did it. Initially, missionaries schools were absolutely in control of missionaries without expectations of aid or support from the government. Those schools were run in private. It was unfortunate that no missionaries were buoyant enough to invest heavily in education as the government were doing in public schools. Those missionaries schools were becoming incapacitated and deprived of the public benefits from the Kwara state government and there were needs to be captured to benefit as a public school.
The inclusion of missionaries to the public grant dates back to the early 1970s, specifically about the year 1974. The programme came to be known as the Government's grant in aid to schools. So, with the introduction to schools grant in aid programme by Government, sometime in 1974, there was the clamour from various religious denominations (Islamic and Christian) asking the Kwara state government to take over the schools established by them in order to enjoy the grant in aid. The government thus, confronted as it were, with huge requests coming from organizations such as the private schools and missionaries schools. Kwara state government must find a way of regulating the affairs of those schools, so voluntarily surrendered to Government. The surrender of those schools by the missionaries/privates schools was not shown to have been made under any condition.
Consequently, Government nonetheless came in to promulgate the Kwara State Education Law of 1974. The law has since then been reviewed a lot of times. The extant of the existing law on this point is the Kwara State Education Law of 2006. It is made up of forty-eight (48) sections. I find as intriguing, provisions as in Sections 2, 20(1)(a)(v), 22, 30, 31, 44 and 45 of the law among others. Section 2, is the interpretation section. It defines the term: "Private institutions", it defines "Proprietor". The Section also defines " Voluntary agency".
Before a school can be said to be a private school, certain conditions must be fulfilled in line with Kwara State Education Law of 2006. Section 20(1)(a)(b): "Provides:-
(1) No person shall establish an institution other than a Government institution unless:-
A. He gives notice in writing to the Honourable Commissioner of his intention to open such institution giving the following
(i) The name and address of the proprietor;
(ii) The name and address of the Manager;
(iii) The situation of the institution and the plan of the buildings;
(iv) The type of institution, the number and type of classes and the medium of instruction proposed;
(v) The subjects to be taught including the two major religions in the state;
(vi) The number, qualifications, Local Government area, State, religion and nationality of the staff;
(vii) The nature of the interest in or tenure of the land to be possessed by the institution; and
(viii) Evidence that the school is sited at the permanent site through the submission of Right of Occupancy or Certificate of Occupancy of the land on which the school is sited.
B. Evidence in writing of the Commissioner has been obtained."
Furtherance to the above provisions of law,
Section 22(1) provides- "
(1) The proprietor of any private institution shall within three months of the coming into operation of this law register the same with the Ministry giving the following particulars:-
(a) The name and address of the proprietor;
(b) The name and address of the manager;
(c) The situation of the institution;
(d) The type of the institution, the medium of instruction;
(e) The population of pupils by class, by local Government Area and by religion; and
(f) The numbers, qualifications, Local Government, State, Religion and nationality of the staff."
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.
(2) 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.
(3) 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.
(2) 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:-
(a) 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;
(b) 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
(c) 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.
(3) 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 to 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.
(4) Notwithstanding 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 for the pupil outside the premises of the institution."
Section 44 provides:
" The commissioner may make grants-in-aid or recommend an institution for grants in aid in accordance with regulations made under this law having been satisfied that the institution has fulfilled all necessary conditions."
Section 45 provides
"The Administrator may make regulations with respect to:-
(a) grant-in-aid in respect of institutions or for any other educational purpose;
(b) the size of classes and the nature and use of accommodation;
(c) the instruction to be given in institution;
(d) the examination of teachers and pupils and the classification or certification given to teachers and pupils;
(e) the determination of the fitness of persons to act as proprietors or managers of schools;
(f) the supervision, inspection and examination of Institutions;
(g) the management of institutions;
(h) the records, including account books, to be kept at institutions and the manner in which returns are to be furnished by proprietors and managers;
(i) proprietors and the duties of opening and closing institutions;
(j) the structure sanitary arrangements and recreation facilities of institutions;
(k) the precautions to be taken against fire or other areas lively to endanger the lives or the health or the pupils;
(l) the health inspection of pupils or students and the premises of institutions and the medical examination of teachers;
(m) measures to be taken to ensure the health and well-being of teachers and pupils or students including the arrangements made for meals in an institution and other refreshments taken in an institution;
the salaries, allowances and conditions of service of teachers and the payment of retiring benefits, gratuities, or allowances of teachers and non-teachers who are in the employment of government;
(o) the establishment of staff and categories of teachers to be employed in various types of institution;
(p) forms and fees;
(q) the recognition of private institutions;
(r) the conduct and recognition of correspondence colleges;
(s) the exemptions of certain institutions or classes from the provisions of any regulations made under this law; and
(t) the carrying into effect generally of the purposes and provisions of this law."
A careful examination of the law reproduced above, it is practically impracticable to make any private schools a single religion school. To do justice to this legal argument, it is highly necessary to ascertain what differentiate Private and Public schools. The law specifies “ Private Institution” as defined at Section 2 of Kwara State Education Law
“ mean an institution which is not a government institution established under Section 20 and is not in receipt of government grant in aid
A Public Institution is not defined in the law but we know as a matter of fact and also the law that the word " Public" is the opposite of " Private". It is therefore not difficult to come to the conclusion that a public school or institution is the reverse in the definition of " private institution". In other words, a public institution, to all intents and purposes is not only a government's institution but one in receipt of a government grant in aid. In any case, all the hullaballoo surrounding the question of whether the missionaries schools in Ilorin are " public schools" has been laid to rest by the definition of that term at Section 41 of the Kwara State Compulsory, Free Universal Basic Education Law to mean
"A school which is assisted out of funds provided by the Federal or State or Local Government."
The effect of government giving aids to schools is well established in the case of THE INCORPORATED TRUSTEES OF CHRISTIAN ASSOCIATION OF NIGERIA & ORS V. THE KWARA STATE GOVERNMENT & ORS (2019) LPELR-48561(CA)
The Christians Association of Nigeria cannot dispute the fact that the missionaries schools identified by them are beneficiaries of government grants, an arrangement whereby the government provide grants-in-aid for the affected schools, give regulations on the academic and administrative activities/programmes of the schools, recruit, post and transfer staff, pay salaries, allowances, benefits and other emoluments of staff of the schools, build classrooms, provide infrastructures and facilities for the schools, hence the affected schools in the light of all these are under the control and management of government as represented by the government. These Christians missionary schools are " Public' not " Private" schools or institutions and this arrangement has subsisted over the years since 1974 under a law known as the Education Law of Kwara State. The law has been reviewed a couple of times. Those schools, given the provisions such as Sections 2, 20(1)(a) (v), 30 of the Education Law of Kwara State 2006 among others. Given the historical antecedents to governments take over of the missionary schools under focus which are grant-aided, the Kwara State Education Law No. 6 of 2006, in particular, provisions highlighted, the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the National Policy on Education, the Kwara state government, has the right of control and management of those schools.
I am not unaware of the stands of the Christian missionaries in this regard. To them, the introduction of certain policies to the schools under focus by the government such as the conversion of classrooms into mosques, the "flooding" of these schools with Islamic Teachers, the wearing of Hijab by female students and pupils among others, are policies or acts which are antithetical to Christian doctrines and values upon which the schools were established by the Christian missionaries owners and for which reason there was an infraction of Christians’ rights to run, manage and propagate the Christian religion and values as guaranteed under Section 38 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Mention was also made of Section 44 of the same Constitution. Those provisions fall under Chapter IV of the Constitution which deal with the Fundamental Rights of the citizenry. These are the irreducible minimum rights that all humans are endowed with. They are inalienable basic rights and because of the fundamental nature of those rights, they have been incorporated into the grundnorm such that any infraction of, or attempted violation of any of those rights in relation to any person or individual is met with stiff resistance by the law, subject of course, and this is elementary law of evidence, that the person who asserts the breach of his fundamental rights must first prove same. May I refer to Awolowo v. Shagari (2001) FWLR (Pt. 73) 53; Union Bank of Nigeria Ltd v. Prof. A. O. Ozigi (1994) 3 NWLR (Pt. 333) 385. Those rights are general and have universal applicability to all and sundry without exception. It is the exclusive preserve of all humans. Section 38 of the Constitution of Federal Republic of Nigeria, 1999 (as amended), under which the Christian missionaries may take refuge provide thus at subsections 1, 2, 3, 4:-
(1) Every person shall be entitled to freedom of thought, conscience and religion, including the 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.
(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance relates to a religion other than his own, or a religion not approved by his parents or guardian.
(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.
(4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society."
As it can be seen from the above, Section 38 guarantees the right to freedom of thought, conscience and religion. A person or all persons are free to practice their religion without let or hindrance either in the public or private. This freedom of worship includes the freedom of the individual to change his religion if he so desires. The person reserves the right to manifest and propagate his religion or belief in worship, teaching, practice and observance. The provision, particularly the provision of Subsection 1 of Section 38, guarantees freedom to 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 Christian missionaries have by no means alleged the restriction of Christian students from the practice of their religion or that Christian students were prohibited by Kwara state government or anybody whatsoever 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 in issue. Rather it is the Christian missionaries who are not happy to see the Kwara state government continues to allow certain policies being introduced to those schools. They failed to realize that the schools under focus, some of which are co-educational, multi-ethnic and co-religious institutions, have been run or managed as such public institutions for well over, a period of 40 years. The control and management of schools, in their own way, by the missionaries in line with their Christian beliefs and value, not minding the heterogeneous nature of those schools, smacks discriminatory. The Constitution under S. 42(1) prohibits those tendencies which the missionaries want to bring to bear. Section 38(2) also forbids it. It sounds rather ironic to me that the Christian missionaries 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 Christian missionaries 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 females cover their heads with the veil or head cover, is an act of Ibada or worship as recognized in 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) No. CA/K/49/2006 of 18th June 2009. See further, the decision of the Court of Appeal in Abdulkarim v. Lagos State Government (2016) 15 NWLR (Pt. 1535) 177. The appellants, thus have no right to complain of acts that do not impugn on them. See Adewole Ors v. Alhaji Jakande & Ors (1981) NCLR 262. The Position of Christian missionaries that Section 38(3) of the Constitution allow them or give them the exclusive right to make Christianity the only norm in the Christian missionaries schools under the aids of the Kwara state government is only wishful thinking. Such is not tenable in a heterogeneous 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 Christians 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 that the Kwara state government have coerced the Christians or students of the schools in focus into acting contrary to their religious beliefs.
May I refer the readers to another contention of the Christian missionaries regarding the missionaries schools taken over by the government. They claimed that the Kwara state government did not pay any compensation for taking over their schools. This matter has been successfully laid to rest by the court of Appeal in the case of THE INCORPORATED TRUSTEES OF CHRISTIAN ASSOCIATION OF NIGERIA & ORS V. THE KWARA STATE GOVERNMENT & ORS (2019) LPELR-48561(CA)
The issue raised by the Appellants pertaining to compensation, not having been paid to them, as required under S. 44(1) of the Constitution, meant that they are still the owners of all the schools under focus. This does not arise. Since there is no evidence of compulsory take over of the schools in dispute, the issue of compensation cannot arise. On the contrary, facts and evidence do indicate that the take over of the schools in focus was in line with due process, the Kwara State Education Law No. 6 of 2006, the Constitution of Federal Republic of Nigeria, 1999 (as amended), and the National Policy on Education."
Per HUSSAINI, JCA (Pp. 42-61, paras. C-B)
Finally, I seek the indulgence of the parties involved in this unhealthy activities and government to prevent religion and ethnic crises in this state and any other state whatsoever.
SAMBO MURITALA ESQ.
PRINCIPAL PARTNER SAMBO MURITALA & CO.
SUITE 7, LEGISLATIVE OFFICE ARCADE, NEW YIDI ROAD, IREWOLEDE AREA, ILORIN.
PHONE: 08035320457 Email:email@example.com
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