Continued from Friday
Inibehe Effiong
Unsurprisingly, the bill has generated
heated debates across the country with some religious leaders issuing an
ultimatum to Governor Nasir el-Rufai, to either retrieve it from the
state House of Assembly or face “serious consequences”. So far, the
arguments advanced in support and against the bill have been largely
tainted with sentiments and emotion.
However, one question that continues to
agitate the minds of legal experts, religious leaders, the media, civil
society and the teeming public is: Can the bill pass the test of
constitutional validity? In other words, are the provisions of the bill
consistent with the provisions of the Constitution of the Federal
Republic of Nigeria 1999 (as amended)?
This is the constitutional question which I intend to address and hopefully, resolve.
It is elementary that by virtue of
Section 1 (1) and (3) of the Constitution of the
Federal Republic of
Nigeria 1999 (as amended), (subsequently referred to as the “1999
Constitution”), the constitution is supreme and if any other law is
inconsistent with its provisions, the constitution shall prevail and
that other law shall be declared null and void to the extent of its
inconsistency. See F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) 113; A-G.,
Abia State v. A-G., Federation (2002) 6 NWLR (Pt. 763) 264; Abacha v.
Fawehinmi (2000) 6 NWLR (Pt. 660) 228.
A careful and dispassionate perusal of
the bill shows a litany of apparent, inherent and indisputable
provisions in it which conflicts with the letters and spirit of the 1999
Constitution. The bill in my respectful view is so constitutionally
defective that there is clearly nothing left for a serious parliament to
consider. The conflicting and inconsistent provisions in the bill are
too obvious to ignore; they cannot survive the surgical eyes of the
courts.
The bill is unconstitutional for the reasons stated below:
It has expressly adopted Christianity
and Islam as the official state religion(s) in Kaduna State contrary to
the express provisions of the constitution. For clarity, Section 10 of
the 1999 Constitution states that: “The Government of the Federation or
of a State shall not adopt any religion as State religion.” Section 4 of
the bill declares Islam and Christianity as “the two major religions in
the state.” The bill goes further to establish committees to regulate
the two religions.
It is instructive to note that the marginal note to Section 10 of the 1999 Constitution reads “prohibition of State Religion.”
The 1999 Constitution has effectively
and expressly prohibited every state in Nigeria and the Federal
Government, including the Kaduna State House of Assembly, from enacting
any piece of legislation which purports to adopt any religion or
religions over others. By specifically identifying Islam and
Christianity as “the two major religions” in Kaduna State, and
establishing committees to regulate them, the bill has literarily set
fire on the provisions of Section 10 of the 1999 Constitution.
It is needless to say that there are
different religions in Kaduna State, other than Islam and Christianity,
whose adherents are neither Muslims nor Christians. It is not within the
legislative powers of the Kaduna State House of Assembly to determine
which religion is major and which is minor. Such discriminatory
legislation offends Section 42 of the 1999 Constitution which prohibits
discrimination on the basis of religion among others.
The bill audaciously infringes on the
constitutional rights of the citizens of Nigeria in Kaduna State to
freedom of thought, conscience and religion and freedom of assembly and
association. Section 3 of the bill defines a “preacher” as “a person
duly licenced by Jama’atu Nasil-Islam or Christian Association of
Nigeria, to preach.”
This definition is bereft of any legal
basis. Section 38 (1) of the 1999 Constitution emphatically states 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.”
Sections 5, 6 and 7 of the bill
establish committees in each local government area to screen and issue
preaching licences to preachers and permits to the so-called “sponsored
external preachers”, and ensure compliance with the terms of the
licences and permits. These provisions are offensive to the fundamental
right to freedom of religion in Section 38 of the 1999 Constitution.
I wish to restate three basic limbs to
the constitutional right to freedom of religion under Section 38 of the
1999 Constitution supra. That provision guarantees the right of every
person to belong to any religion and the right to change one’s religion;
under the provision, every person is free to practise any religion,
including Islam and Christianity, either ALONE or in community with
others. Furthermore, every person is free to manifest his religion or
belief in PUBLIC or in private in worship, teaching, practice and
observance.
A person can decide to practise his
Christian or Islamic religion and belief alone without regard or
reference to other members of the society or the Christian Association
of Nigeria and the Jama’atu Nasir-Islam, respectively. It is manifestly
unconstitutional for any government to seek to legislate on what
qualifies a person to be a Christian or an Islamic preacher. That is a
matter for God and Allah to decide, respectively.
A pastor in Kaduna for instance can
decide to establish a Church without joining CAN. No person or
institution in Nigeria can legally require such a pastor to join CAN and
obtain a preaching licence as a precondition for manifesting or
propagating his Christian religion and belief in public or in private.
Lest we forget, in the celebrated case
of Inspector General of Police v. All Nigeria Peoples Party and Ors
(2007) 18 NWLR (Pt.1066) 457, the Court of Appeal in a landmark
judgment, declared as unconstitutional the provisions of the Public
Order Act, Cap. 382 L.F.N. 1990 which requires Nigerians to obtain a
police permit before staging a protest or peaceful demonstration. The
Appeal Court declared that the requirement of police permit as a
pre-condition to protest is a violation of the fundamental right to
freedom of expression and association. The appellate court rejected the
argument of the Police that such a permit was in the interest of public
safety and security.
If police permit is not required as a
pre-condition to holding public rallies, peaceful demonstrations and
protests, why should any state government even contemplate issuing
licences to religious preachers or determine who is eligible to be a
religious preacher in the 21st century Nigeria?
To be concluded
Effiong, a constitutional
lawyer and the Convener of the Coalition of Human Rights Defenders,
originally wrote this piece for SaharaReporters. inibehe.effiong@gmail.com
No comments:
Post a Comment