By Bubacarr Drammeh, Esq.
“The constitutional freedom of religion is the most inalienable and sacred of all human rights,” Thomas Jefferson.
The “Hijaab lawsuit” has befittingly dominated the public discourse in The Gambia. Most of the people who intervened in the debate on this issue (either publicly or privately) bank on either sentiment or religious affiliation but not on legality. The population of The Gambia is over 93 percent Muslim and over 4 percent Christian, thus over 98 percent of the population are religious. Yet, the country is a Constitutional Republic not a Theocracy. This article will focus on the constitutional protection for those who wish to wear Hijab in public and what restrictions, if any, can be placed on them.
The Constitution, according to the Supreme Court of The Gambia in the ruling of United Democratic Party & Ors v. Attorney General & Ors, is the supreme law as “it occupies the first place in the legal system of The Gambia and its jurisprudence. It is the Alpha and Omega of the legal system. It is just not one perimeter fence policing the legal system. It is the barometer with which the entire legal system is mirrored and measured. It is the king of the entire legal system and all statutes of The Gambia and the common laws of The Gambia.” For this reason, it is indisputable that a constitutionally protected right and freedom eclipse any other law or policy.
Chapter four of the 1997 Constitution entitled fundamental rights and freedom stipulates that:
The fundamental human rights and freedoms enshrined in [constitution] shall be respected and upheld by all organs of Freedoms the Executive and its agencies, the Legislature and, where applicable to them, by all natural and legal persons in The Gambia, and shall be enforceable by the Courts in accordance with this Constitution.
Consequently, every public sector (including the ministry of education), private sector (including schools) and persons (natural or legal) are required by the constitution to respect the fundamental rights enshrined in the constitution.
One such fundamental right is the right to practice religion and manifest such practice as enshrined in Section 25(1)(C) of the 1997 Constitution. The said section provides that “every person shall have the right to freedom to practice any religion and to manifest such practice.”
Islam is a religion and wearing Hijab in public milieu, according many practicing Muslims, is a manifestation of the practice of Islam. Certain women who profess Islam as their religion claimed to take their injunction of wearing Hijab in public from the teachings of the Noble Qur’an which states in the following verses:
Chapter 7, Verse 26:
“O you Children of Adam! We have bestowed on you raiment to cover your shame as well as to be an adornment to you. But the raiment of righteousness, that is the best. Such are among the Signs of Allah, that they may receive admonition.”
Chapter 33, Verse 59:
O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves [part] of their outer garments.1That is more suitable that they will be known2and not be abused. And ever is Allāh Forgiving and Merciful.
Chapter 24, Verse 31:
“And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what must ordinarily appear thereof; that they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, or their brothers’ sons or their sisters’ sons, or their women or the servants whom their right hands possess, or male servants free of physical needs, or small children who have no sense of the shame of sex, and that they should not strike their feet in order to draw attention to their hidden ornaments. And O you Believers, turn you all together towards Allah, that you may attain Bliss.”
Accordingly, wearing of Hijab in public places is a religious injunction for Muslim women qualifying the act to falls under the protection enshrined in Section 25(1)(c). Therefore, any person who seeks to wear a Hijab in public believing to be in compliance with the teachings of these verses, among many others, has the fundamental right and freedom to do so. When the person wears a Hijab in the public square as a manifestation of her Islamic faith, it “shall be respected” by all public-sector employees and entities, and where applicable to them, so too on private-sector employees and individuals.
Notwithstanding the above, there is a limitation clause in Section 25 that enables the freedom to practice any religion and manifest such practice to be “partially limited to a specified extent and for a certain democratically justifiable purpose.” Hence, the fundamental right and freedom to practice any religion and manifest such practice is not absolute. It is subjected only to the restrictions specified in Section 25(4) which provides that:
The freedoms to practice any religion and to manifest such practice “shall be exercised subject to the law of The Gambia in so far as that law imposes:”
- Reasonable restriction which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia,
- Reasonable restriction which are necessary in a democratic society and are required in the interests of national security,
- Reasonable restriction which are necessary in a democratic society and are required in the interests of public order,
- Reasonable restriction which are necessary in a democratic society and are required in the interests of decency or morality, or
- Reasonable restriction which are necessary in a democratic society and are required in relation to contempt of court.
No restriction can be placed on Hijab when worn as a practice of religion and to manifest such practice on any grounds other than those specified in Section 25(4) as enumerated in the Constitution. The restriction must be reasonable and can be imposed only by the laws of The Gambia not by any other means such as executive actions outside of Section 7 of the Constitution. Section 7 of the Constitution stipulates the following on what constitutes the Law of The Gambia:
In addition to this Constitution, the laws of The Gambia consist of
- Acts of the National Assembly made under this Constitution and subsidiary legislation made under such Acts;
- Any orders, Rules, Regulations or other subsidiary legislation made by a person or authority under a power conferred by this Constitution or any other law;
- The existing laws including all decrees passed by the Armed Forces Provisional Ruling Council;
- The common law and principles of equity;
- Customary law so far as concerns members of the communities to which it applies;
- The sharia as regards matters of marriage, divorce and inheritance among members of the communities to which it applies.
Moreover, any law that purports to restrict Muslim women from wearing Hijab in public places on any basis other than what is specified in Section 25(4) is unconstitutional and therefore, should be ruled as “null and void” by the courts in legal challenges.
We must not digress and make this issue Muslims versus Christian thereby disrupt our peaceful coexistence.
About the Author: Bubacarr Drammeh, a Columnist at The Gambia Times, holds a LLM Degree from the University of Washington, in Seattle, in the State of Washington. He was a State Counsel at the Attorney General’s Chambers in The Gambia.