THE Court of Appeal sitting in Ibadan has delivered a landmark split decision overturning a High Court judgment that permitted female Muslim students at the University of Ibadan International School (ISI) to wear the hijab with their school uniforms.
In a 2-1 majority ruling delivered on Friday, the appellate court held that ISI is a private institution and therefore not bound by the Supreme Court’s earlier precedent on hijab use in public schools. The court further determined that the students had voluntarily waived their right to wear the hijab by signing an undertaking to abide by the school’s uniform dress code upon enrolment.
The ruling overturns the Oyo State High Court’s judgment of May 22, 2024, which had declared the school’s hijab ban unconstitutional and affirmed the students’ right to wear the religious garment as part of their uniform.
The Dispute
The legal battle dates back to November 2018, when ISI management barred several female Muslim students from wearing the hijab over their school uniforms. In 2019, parents of 11 affected students, supported by the Muslim Rights Concern (MURIC), filed a fundamental human rights enforcement suit against the school. They argued that the hijab ban violated the students’ constitutional right to freely practise their religion as guaranteed by the Nigerian Constitution.
The Majority Decision
Justice Biobele Georgewill, who delivered the lead judgment with Justice K.I. Amadi concurring, allowed the school’s appeal and set aside the High Court’s ruling. The centrepiece of the majority decision was the distinction drawn between public and private schools in the application of the Supreme Court’s earlier hijab precedent.
Justice Georgewill held that the Supreme Court judgment which granted the use of hijab was delivered specifically in respect of a public school in Lagos State and that the decision was not applicable to private institutions.
“In public schools you can wear hijab on school uniforms based on the judgment of the Supreme Court, but the Supreme Court is yet to make any decision on the use of hijab in private schools,” Justice Georgewill stated.
“The judgment of the lower court allowing female Muslim students to wear hijab on their school uniforms in ISI, a private school, is set aside,” the judge declared.
The Waiver Principle
Justice Georgewill further held that the right to practise one’s religion is a personal right which any person can voluntarily waive based on his or her beliefs. He found that the female Muslim students of ISI had waived their right to wear hijab on their school uniforms by signing an undertaking to abide by the rules and regulations of the school, including its uniform dress code, when they enrolled.
This finding carries significant implications: even if the Supreme Court’s hijab precedent were applicable to private schools, the students in this case could not rely on it because they had voluntarily agreed, as a condition of their admission, to comply with the school’s uniform policy. Having accepted the school’s rules, they could not subsequently challenge those same rules as a violation of their fundamental rights.
The Dissenting Judgment
Justice Fadawu Umar delivered a minority judgment, dissenting from the majority decision and upholding the Oyo State High Court’s ruling. Justice Umar held that the appeal lacked merit and dismissed it accordingly, indicating that in his view, the right to wear hijab as an expression of religious belief applies regardless of whether the educational institution is public or private.
The dissent suggests that the question is not conclusively settled and may ultimately require determination by the Supreme Court, which has not yet pronounced on the specific issue of hijab use in private schools.
Legal Principles Established
The majority judgment establishes three interconnected legal principles:
Public-Private Distinction: The Supreme Court’s precedent on the right to wear hijab in schools applies strictly to public schools and does not extend to private institutions, which operate under their own institutional rules.
Voluntary Waiver: The right to religious expression is a personal right that can be voluntarily waived. Where a student signs an undertaking to comply with a school’s rules, that undertaking constitutes a binding waiver.
Institutional Autonomy: While the Constitution guarantees freedom of religion, private institutions retain the right to establish and enforce institutional rules, including dress codes, that are binding on persons who voluntarily choose to participate in those institutions.
Broader Implications
The case raises significant questions about the scope of fundamental rights in contractual relationships. The majority’s position is that a person who voluntarily agrees to a restriction on the exercise of a fundamental right, as a condition of accessing a private service, is bound by that agreement and cannot later invoke the right to override the contractual restriction.
Conversely, Justice Umar’s dissent rests on the contrary proposition: that fundamental rights, including the right to religious expression, are not subject to waiver through institutional rules, and that the distinction between public and private schools should not determine whether a citizen can exercise a constitutionally guaranteed right.
What Next?
The students and their supporters have the option of appealing the majority decision to the Supreme Court. If they do, the apex court would be presented with the opportunity to pronounce, for the first time, on the specific question of whether the right to wear hijab extends to private educational institutions.
The case also raises broader questions about the limits of fundamental rights in the context of private institutions, with implications extending far beyond the hijab issue. If the waiver principle established by the majority is upheld, it would mean that any private institution can lawfully restrict the exercise of fundamental rights through contractual terms that participants voluntarily accept upon entry.
The judgment was delivered by the Court of Appeal, Ibadan Division. The lead judgment was read by Justice Biobele Georgewill, with Justice K.I. Amadi concurring. Justice Fadawu Umar delivered the dissenting judgment.
