By Justina Unegbu
Nigeria is a secular country with no preference for any particular religion. The complex nature of the country with multi-ethnic and multicultural milieu may have lured it into a proliferation of religions with the resultant consequence that the make up ranges from the Christian religion to Islamic, Traditional, Hindus , Atheists etc, the most prevalent being the Muslim and the Christian faiths. In the jurisprudence of law and religion, there are two schools of thought. While one school maintains that law and religion are inseparable and should form part of the political build up of a state, the other believes that religion should be separated from state and politics.
The drafters of the 1999 Constitution perhaps belong to the second school of thought. Little wonder that in their wisdom they chose to grant every individual the freedom to practice any religion of their choice, to preach and propagate it anywhere whether in public or private without undue restrictions.
The recent Religious Preaching Bill being sponsored by the Kaduna State government has generated some controversies. The first issue is derived from Section 12 which prohibits any person from (a) preaching without a valid license ; (b) Plays religious cassette or uses a loudspeaker for religious purposes after 8 pm in a public place; (c) Uses a loudspeaker for religious purposes other than inside a mosque or church and the surrounding areas outside the stipulated prayer times; (d) Uses a loudspeaker in vehicles plying the streets with religious recording.
The 1999 Constitution (as amended) provides for freedom of association and of religion. In particular section 38 subsection 1 provides that “every person shall be entitled to freedom of thought, conscience and religion, including 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. Other related sections are section 39(1) which provides for freedom of expression, and section 41 which provides for freedom of association.
The above provisions of the Bill contravene sections 38, 39 and 41 of the Constitution. The freedom which the Constitution grants to individuals under those sections is limitless and without restriction. Thus, the requirement for license to preach constitutes an interference to the rights granted under the Constitution.
Section 45 (1) of the Constitution however, provides that “Nothing in sections 37, 38, 39, 40, and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society – (a) In the interest of defense, public safety, public order, public morality or public health; or (b) For the purpose of protecting the rights and freedom of other persons.”
It is arguable that the Religious Preaching Bill may have been made under Section 45(1) of the Constitution. But the question to be answered in this regard is- is the Bill sought to be passed in the interest of defense, public safety, public order, public morality or public health? Or could it rightly be said that it is made for the protection of the rights and freedom of others in the state.
Another problem is the issue of jurisdiction of the courts to try the offenders. The same Section 12 of the Bill provides that the Sharia Courts and Customary Courts shall have jurisdiction to try violators of this law summarily, and shall on conviction give orders for the forfeiture or destruction of any vehicle, equipment, instrument, gadget or book or other material carrying any offensive message. The Bill does not specify which court has jurisdiction over which religion. However, bearing in mind that the Bill took cognizance of only two religions, it is presumable that the Sharia Court will have jurisdiction over Islamic offenders while the Customary Court will have jurisdiction over Christian offenders.
The Constitution did not provide for the establishment of Shariah Courts and Customary Courts. The power for the establishment of the Sharia Courts and Customary Courts lies in the State. The jurisdiction of the courts is conferred by the state. However, from long time practice, the jurisdictions of those two courts appear to be settled. While the jurisdiction of the Sharia Courts is to determine matters of Islamic personal law, the Customary Court exercises jurisdiction over issues of custom or customary law. Thus, while the Muslim faith may validly come under the jurisdiction of the Shariah Court, it is questionable whether the Christian faith can come under the jurisdiction of Customary Court. The Christian religion is not an issue of custom or customary law. The subject matter of an issue before the court is part of what confers competence to a court of law. Foisting the jurisdiction of either the Sharia Court or the Customary Court on a Christian offender may be against the principle of fair hearing as provided in the Constitution.
A proper consideration of the provisions of the Bill shows that the Bill took into cognizance only two religions (See particularly section 4). That is, the Christian and the Muslim faiths. The Bill discarded all other religions. In fact the Bill went ahead to provide for the creation of two committees for the two major religions and an interface committee to interface between the two religions. From the tone of the Bill, two things can be inferred. In one dimension, the Kaduna State Government has adopted only two religions for the members of the state. This is clearly against Section 10 of the Constitution which precludes any state of Nigeria in express terms from adopting any religion as a state religion. In another dimension, it could also be said that the intention of the Bill is to restrict only these two religions from freely exercising their faith while allowing the other religions to freely exercise their faith. This is discriminatory and against the intendment of the Constitution. Any attempt to restrict people’s choice of religion is clearly unconstitutional.
The Supremacy of the Constitution must at all times be observed. This is necessary so that any law that is found to be contrary or inconsistent with the Constitution shall, to the extent of the inconsistency, be void.
•Unegbu, a lawyer, writes from Lagos.