By Yinka Kolawole in Osogbo
An Osun State High court, sitting in Osogbo, the state capital, has ordered that Muslim students should be allowed to wear hijab in all the public primary and secondary schools owned by the government.
However the Christian Association of Nigeria (CAN) said yesterday that the Judgement would be appealed by the body.
The trial judge, Justice Jide Falola in a 51-pages judgment delivered on Friday, held that any act of molestation, harassment, torture and humiliation against female Muslim students using hijab, constituted a clear infringement on their fundamental right as contained in Section 38 of the 1999 constitution of Nigeria, as amended.
The Osun State Muslim Community on February 14, 2013, dragged the state government to the court, seeking an order of the court to allow female Muslim students enjoy their fundamental rights by granting them order to use hijab in public schools.
The suit which was directly instituted against the state government, was also joined as respondents, the state Commissioner for Education, Attorney General and Commissioner for Justice.
But, the Christian Association of Nigeria, CAN, its chairman and others, voluntarily joined as respondents.
The applicants, in a 44 paragraph affidavit in support of their motion, applied for the enforcement of their fundamental rights pursuant to Sections 38 and 42 of the constitution.
The applicants through their lead-counsel, Kazeem Odedeji, told the court that female Muslim students were being harassed by the fourth and fifth respondents, insisting that such was a clear discrimination and infringement on their fundamental rights.
Odedeji who premised his argument on a decision of a Court of Appeal, Ilorin, between the Provost, College of Education and one Basirat Saliu, noted that female Catholics wear hijab, while Mary, the mother of Jesus always appear on picture with hijab on her head.
Odedeji also explained that his prayer was to allow female Muslim students wear hijab in some schools where they were being denied, noting that they had been wearing it in accordance with the 2004 Directives of the state government.
But, the respondents insisted that only beret and face cap were recognised and students should abide by the government’s directives.
Respondents insisted that allowing students to wear hijab in schools where Churches were located, was alien to their religion and thereby urged the court to dismiss the application of the applicants.
In his judgment, Justice Falola, traced the history of religion and observed that religion was introduced to the case when the CAN and others joined the suit, noting that he decided to deliver the judgment after all plea to settle the matter amicably has proved futile.
Premising his judgment on Section 38 of the Nigeria Constitution and Article 8 of the 2004 policy published by the state Ministry of Education, Justice Falola held that female Muslim students were not exempted from the freedom of religion, conscience and thought.
He ordered that the respondents should be restrained from disallowing the use of Islamically prescribed hijab by female Muslim students, adding that the students should wear hijab in the colour already prescribed by the first to fifth respondents.
Quoting copiously from Article 8 of the 2004 directives of the state government which says “there are no mission school presently in Osun State as all schools have been taken over by government in 1975,” Justice Falola upheld all the prayers of the applicants and held that no student should be prevented from enjoying his or her right.
Justice Falola submitted that since the respondents had failed to cite any relevant authority in their response, he would be bound by the decision of the Appellate court in Ilorin which the applicants had cited in their application.
Earlier, Mr. Festus Adesiyan, told the court that he was willing to be joined in the matter and urged the court to allow him to move his application.
But, Justice Falola said it was too late to join as respondents, saying the CAN had taken care of his application, even despite the counsel’s insistence that his clients were not willing to stay under the CAN.
He said he had written his judgment and could not go back, advising the counsel to join at the appellate court.
The first to fifth respondents (Governor Rauf Aregbesola, Attorney General of Osun state, Commissioner for Education and two others), were represented by Tijani Adekilekun, while the 6th to 9th respondents (CAN and three others) were represented by Femi Ayandokun.
Meanwhile, Ayandokun, who spoke on behalf of the respondents after the judgment, stated that the judgment would be appealed
CAN Chairman, Rev. Elisha Ogundiya said already papers are being filed. As Emergency meeting of all Church leaders in the state is slated for Tuesday to discuss further action .