Until the rule is changed, or until a court of law declares the rule or the enforcement thereof a breach of the right of the lady, under Section 38 of the Constitution and analogous provisions in other applicable charters, the Council of Legal Education and the Body of Benchers have not violated nor breached the right of the lady under any law.
The Rules that were set by the Body of Benchers and the Council of Legal Education regulating attendance of the Nigerian Law School and the Call to Bar Ceremony at the end of the professionnal training for aspirant lawyers in the Law School provide for the dress codes for the Call to Bar Ceremony.
In part, the Rule states that Muslim ladies who may wish to wear the hijab should ensure that their faces, including their ears are not covered. The Rule reportedly provides thus: “During the exercise, all your facial features, including your ears, must be exposed for capturing. This is also applicable to all our famale muslim students wearing the Hijab.” This is the regulation governing the dress code.
In defiance of that regulation, a lady, Amasa Firdaus, at the recently concluded 2017 Call to Bar Ceremony, insisted on wearing the hijab. She was advised to remove it so that she could be called to the Bar. The Authorities demanded compliance with the acceptable dress code. She obdurately refused. Not even the entreaties and pleas of friends would move her. She was unshaken and unshakeable in her beliefs. She was defiant. She stuck to her “right to freedom of thought, concience and religion.”
Consequently, she was denied a call to the Bar.
She has taken to the media to explain her case and cause. Religion, being a major driver of emotions, has seen many rally to her cause. One of them is the president of the Nigerian Bar Association, A.B. Mahmoud (SAN), who along with others have cited the wearing of hijab by female lawyers in other jurisdictions. The New York Bar. Kenyan. Pakistan. Some have started to allege “Islamaphobia”. It is noteworthy that A.B Mahmoud, whose ascendancy to the Bar presidency was propelled by the mantra of a “brave new Bar”, is a member of the Council of Legal Education, and a statutory member of the Body of Benchers, being the president of the NBA. It is difficult to know if the conduct of Amasa Firdaus, which the Bar president gave a ringing endorsement by his tweet-post, showing the photograph of his daughter donning the hijab at her Call to the New York Bar, was a radical part of the manifestation of the fulfilment of that “brave new Bar.”
What is not difficult to understand, however, is that the president of the NBA, an acting chairman of the Council of Legal Education and a member of the Body of Benchers, should not have issued that tweet-post. He was recklessly adding fuel to a needless fire. By so doing, he gave validation to the defiance of bodies of which he is an important member, and preempted any deliberation or consideration the bodies may wish to undertake on the matter. Now that his anti-Council of Legal Education and Body of Benchers’ position has been publicly declared, it will be interesting to see if the NBA president will recuse himself when these bodies meet to discuss this matter.
Other examples, from other jurisdictions, of air hostesses, medical doctors, law enforcement agents, et cetera, previously disallowed to put on hijabs by dress codes in their respective professions, but now permitted to do so, have been cited to argue that the lady should not have been disallowed from being called to the Bar.
She could have gone to court to seek an order of declaration and injunction restraining the Law School from preventing her from being called to the Bar on account of her wearing the hijab to the Ceremony, should she pass her examination. She did not take that step. She was not going to follow the rule of law.
And some “human rights activists” have lampooned other human rights activists for not immediately queuing behind the lady in support of her fundamental right to practice her religion, and for not lauding her act of “bravery”. These persons may never understand why a subject as potentially volatile as this one needs to be calmly and carefully treated, albeit in a principled manner. Certainly, not rushing to applaud the action of a devout member of the Jehovah Witness Sect, who, for reasons of his faith and religious beliefs, refused blood transfusion in order to live, and died in consequence of that refusal, cannot amount to a de-recognition of the “act of bravery” of the deceased, and the exercise of his right to freedom of thought, conscience and religion.
It is instructive and revealing that the lady emphatically has stated that she knew that what she did was not permitted or allowed by the Rules, which she has derided as mere conventions and not laws. According to her, she deliberately defied the Rules so that other Muslim sisters coming behind her could exercise the right of wearing the hijab. She was prevented from wearing the hijab when the compulsory Bar Dinner was held. She knew she was going to be prevented from wearing the hijab at the Call to Bar Ceremony if she passed the Bar Final Examinations. She could have gone to court to seek an order of declaration and injunction restraining the Law School from preventing her from being called to the Bar on account of her wearing the hijab to the Ceremony, should she pass her examination. She did not take that step. She was not going to follow the rule of law. She was going to force the hands of the legal profession to accept the “manifestation of her religious beliefs and practice”, as allowed by Section 38 of the Constitution, and to abide by and observe what she deemed to be her right.
She is leading a struggle. She wants to emancipate people who are being denied their religious freedoms. She is now being celebrated, in default, by both condemnatory and adulatory commentaries. She has instantly hit the limelight and spotlight.
She has even taken the shine and glamour off the delectable young lady, Viola-Nuela Echebima who obtained a First Class in the University of Nigeria, Nsukka (UNN) and in the Law School, as the best graduating student respectively, who was called to the Bar at the same ceremony. We are forced to overlook celebrating excellence and academic industry. We are now conscripted, wittingly or unwittingly, into discussing bravery and feats in religious zealotry. We engage in incessant intellection over the rights that should be enjoyed in the legal profession in harmony with adherence to religious tenets, religious piety or zealotry.
Was the conduct of Amasa Firdaus an act of bravery or an act of “knavery”? Is she a legitimate crusader for equal rights, justice and respect for Islamic tenets in the legal profession? Or was her conduct a deliberate mischief and rabble-rousing opportunistic stunt, calculatingly delivered at the prime Call to Bar ceremony to generate maximal divisive impact? Is she a “conscientious objector” or an unconscionable protestor?
Should the insistence on wearing the hijab, when she is professionally robed, be the primary human rights concern of a Muslim lady lawyer in the legal profession? What of gender rights and equal treatment of the male and female genders in the legal profession, Bar and Bench? In Northern Nigeria, there exist Sharia Courts which are established by law and recognised by the Constitution. The Constitution of the Federal Republic of Nigeria establishes the Sharia Court of Appeal for the Federal Capital Territory, Abuja; and a Sharia Court of Appeal for States. See Sections 260-264, and Sections 275-279 of the Constitution. In Southern Nigeria, there exist Customary Courts and Customary Courts of Appeal established by law and recognised by the Constitution. The Constitution of the Federal Republic of Nigeria establishes the Customary Court of Appeal of the Federal Capital Territory, Abuja, and the Customary Court of Appeal of a State. See Sections 265-269, and Sections 280-284 of the Constitution. Appeal lies from the Sharia Court of Appeal, and from the Customary Court of Appeal to the Court of Appeal (of Nigeria). See Sections 244 and 245 of the Constitution.
The fact that is easily verifiable is that female lawyers and judges are appointed onto the Bench of the Customary Courts of Appeal in Nigeria, but female lawyers and judges, qualified to be appointed by being versed in Islamic Law, as a rule, are not appointed onto the Bench of the Sharia Courts of Appeal. At the (Nigerian) Court of Appeal (and also by implication at the Supreme Court of Nigeria), whereas any appeal from a Customary Court of Appeal may be determined by a gender mix of panel of justices that is versed in the applicable customary law, appeals from the Sharia Courts of Appeal may not be decided by a gender mix of panel of justices in the Sharia Division of the (Nigerian) Court of Appeal.
…we must be careful when we are stoking the embers of religious division. True, there is religious diversity and plurality in Nigeria. We must be sensitive to this. Religious and faith sensibilities should be tolerated and accommodated. Rules can and should be adjusted from time to time. But we must work to change them to accord with our desires. Not bend or break them to submit to our whims and caprices.
Thus, if Amasa Firdaus and her “mentees” were to succeed in their fight to compel the legal profession to accept that she and other Muslim sisters be allowed to wear the hijab when professionally attired, and at Call to Bar ceremonies and in Court, they may not be appointed to be judges of the Sharia Court of Appeal, even if they so desire, upon being admitted to the Bar.
Shouldn’t we recommend the quest for female lawyers and judges to be appointed to the Sharia Courts (of Appeal) as Kadis and Grand Kadis as a “struggle” worthy of being waged, to the emergency religious rights activists who have adopted Amasa Firdaus as a veritable “battle axe” to fight for equal religious rights and justice in the legal profession?
Religious division, animosity or war is one of our faultlines in Nigeria. Boko Haram is not a secessionist war. It is not a separatist war propagated over historical claims to land. It is not an ethnic war. It is a religious war to Islamise a territory of Nigeria and establish a theocratic state therein. That is the mission of Boko Haram. Terror is the means for actualising their agenda. That is why we say we are fighting terrorism or insurgency. We call them terrorists. They dismiss us, including fellow muslims, as infidels. Terror, fanaticism or extremism is not an end by itself. It is a means to an end.
So, we must be careful when we are stoking the embers of religious division. True, there is religious diversity and plurality in Nigeria. We must be sensitive to this. Religious and faith sensibilities should be tolerated and accommodated. Rules can and should be adjusted from time to time. But we must work to change them to accord with our desires. Not bend or break them to submit to our whims and caprices.
For those who want to see a change in the dress code in the legal profession to enable Muslim female lawyers wear the hijab, with a wig on top, or without a wig, they have the right to so wish. Those who want the wearing of the wig and gown to be discarded altogether have a right to do so. In America, lawyers in practice do not wear wigs and gowns. Judges wear gowns or robes but do not wear wigs. Recently in the United Kingdom, the wearing of wigs and gowns was revised and jettisoned in certain respects. Thus, it is legitimate to campaign that the dress code be reformed.
Some mavericks, green professional gadflies or rookie iconoclasts may even start campaigning tomorrow that it is religiously offensive to address human beings as “Lords” or “Your Worship”, as judges and magistrates are addressed. They may insist that it affronts their religious beliefs and faiths – which accord God preeminence, honour and majesty – to address mere mortals as “Lords” or to “worship” them. Their right to freedom of expression allows them to start a campaign like this. But a rule is different from a notion. An aspiration is different from reality.
Judgments of the Court of Appeal permitting the wearing of hijab by Muslim female students in certain secondary schools and a tertiary institution are being cited as legal ground to argue that the Council of Legal Education and Body of Benchers breached the right of Amasa Firdaus. The argument, we must state very humbly, is misleading.
Amasa Firdaus was not a total rebel. She had no objection to wearing a wig and gown and collarrette. She did not object to the black and white colours. She succumbed to a partial regulation. She, thus, substantially complied with the dress code. She just felt that it was within her powers not to comply fully with the dictates of the dress code.
Lawyers make a distinction between what the law is, and what the law ought to be. The “law”, rule, convention, tradition, custom, or norm regulating the dress code for female aspiring lawyers and lawyers in Nigeria today is that if a hijab or skull cap is worn, the face, neck and the ears of the female aspiring lawyer or lawyer must be visible. Until the rule is changed, or until a court of law declares the rule or the enforcement thereof a breach of the right of the lady, under Section 38 of the Constitution and analogous provisions in other applicable charters, the Council of Legal Education and the Body of Benchers have not violated nor breached the right of the lady under any law. Rule 36 (a) of the Rules of Professional Conduct in the Legal Profession provides that “when in the court room, a lawyer shall be attired in a proper and dignified manner and shall not wear any apparel or ornament calculated to attract attention to himself”. If the legal profession believes that the wearing of hijab will violate this Rule, and is thus enforcing a “no hijab policy”, the legal profession must be persuaded to change the policy or be compelled by court action to scrap the policy. A solitary act of defiance by an individual should not be the fear that should drive the legal profession to abandon the policy.
Judgments of the Court of Appeal permitting the wearing of hijab by Muslim female students in certain secondary schools and a tertiary institution are being cited as legal ground to argue that the Council of Legal Education and Body of Benchers breached the right of Amasa Firdaus. The argument, we must state very humbly, is misleading. The judgments being cited determined the rights of the parties in the cases and appeals wherein they were rendered or delivered. The judgments do not bind Nigerians at large, nor do they bind the Council of Legal Education and Body of Benchers.
Everywhere we turn in our public life in this Country, we see the Nigerian State promoting competition and rivalry between the two dominant religions – Christianity and Islam. It has now become the norm that in every official function, the opening and closing prayers are rendered by a Christian and a Muslim. State governments build mosques and cathedrals with funds of the States, and state funds are used to send pilgrims on holy pilgrimages to Mecca and Jerusalem. Our political elites are perpetually going to the main hajj and lesser hajj. Christians go to Jerusalem. Goodluck Jonathan was there to seek the face of God to win the 2015 Presidential Election. Mrs. Aisha Buhari was in Saudi Arabia to pray for the president, Muhammadu Buhari, when he was ill. Increasingly, our political elites are frequenting Rome to have photo ops with Pope Francis.
The more religious and sanctimonious we are as a people and a country, the more our country reels in socioeconomic misery.
We need a new thinking. We need a new direction.
Jiti Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the legal adviser to PREMIUM TIMES.