by Odunayo Orisafunmi | Sharp Journal
This piece was meant to be ‘El-Rufai and his repugnant religious law,’ but a careful dissects of the Nigerian 1999 constitution and international statutes on human rights subscribed to by Nigeria, changed my lopsided thought to ‘pros and cons’ of the law. Unequivocally, this law is predominantly repugnant on the one hand, but plausible on the other hand. So, what is your perspective on El-Rufai’s decision?
There is, of course, a disproportionate locus over this law which is perceived to be too stringent or draconian in dealing with religious issues. However, it is likewise perceived as a suitable measure to eradicate forms of religious fundamentalism and public nuisance in Kaduna State.
Content of the law
- The law categorically prohibits “playing or circulating of all cassettes, CDs, flash drives or any other communication gadgets containing religious recordings from accredited preachers other than inside one’s house, porch, Church, Mosques and other designated place of worship.”
- It prohibits the usage of loudspeaker for religious activities “other than inside a Mosque or Church and the surrounding areas outside the stipulated prayer times.”
- The law forbids the sale or playing of any cassette containing “religious recordings in which abusive language is used against any person or religious organization or religious leaders (past or present).”
- Prohibits the sale of religious books, usage of offensive languages in describing any religion.
- The law proposes that anybody found guilty of preaching without a valid licence is liable and shall be convicted for a prison term of 2 years or an option to pay a fine of N200, 000.
PROS OF THE LAW
It should interest you that Lagos State has a (mild) law of this nature checkmating on religious activities within its metropolis, especially when it has to do with noise pollution. Constituting nuisance all in the name of serving God is reprehensible. It is very annoying, that, the peace of the society is threatened by incessant noise pollution oozing out of these religious centres, be it a church or a mosque. Without being ignorant of our various religious inclinations and orientation, constituting nuisance or menace to peaceful coexistence of other members of the society is unconstitutional, and morally abnormal.
The same constitution that gives individual right to assembly, worship, and preaching of one’s religion forbids extreme advocacy of such a religion, in which such a demonstration is believed or found to be a security threat, constituting nuisance or public disturbance, sowing discord or preaching heresy.
You may suppose that, what is El-Rufai trying to pull with his new religious law? Is he trying to create a country out of Nigeria or what? Are we in America where confederalism is practised? Where, a state can decide to pass gay law without recourse to any directive from the central government. Where, there is devolution of power among states making up America. But here in Nigeria, we operate a presidential federal state. Where, federalism is the order of the day; states function according to the dictates of the central government. Where, no state can function outside the constitution binding on every component state comprising Nigeria. So this law is therefore unacceptable?
However, the constitution of the federal republic of Nigeria emphasizes that whatsoever right that will jeopardize the peace and security of the country should be reviewed or aborted, when serious violation of another citizen’s right is proved.
Besides, Nigeria is a secular country. In section 10 of the 1999 constitution, it is clearly stated that, state religion is not allowed. In a heterogeneous society like Nigeria, forcing a particular religion on everybody (whether Christianity or Islam) will amount to infringement of one’s religious conviction and will ultimately lead to religious crisis in the country. So, secularism is the standard norm in Nigeria. No religious group should constitute nuisance or a threat to the peace of other law abiding members of the society.
However, we cannot be insensible to what is obvious — the state and religion work hand in hand, i.e. politics cannot be completely separated from religion. That is why we hold different religious colourations and ideologies concerning government policies. Nonetheless, since there is a constitutional reference to the right of worship and religion, the commensurate recommendation by the constitution in respect to national security cannot be thrown into the dustbin. Practising one’s religion requires responsibility and civility. Being overly spiritual and giving various inferences to the application of this law is totally irrational. There should be a balance of the equation while concluding on the overall dimension of the law.
Clauses against the exclusive right to religion
Laying credence to this, the federal constitution of Nigeria provides room for religious control in the stated circumstances under section 45(1) (a-b): Nothing in section 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 defence, public safety, public order, public morality or public health; or
(b) For the purpose of protecting the rights and freedom of other persons.
The African Charter on Human and Peoples Rights in its article 10 and 11 which Nigeria is a signatory, also give necessary conditions that may preclude one’s fundamental right of assembly or freedom of association:
- Every individual shall have the right to free association provided that he abides by the law.
- Subject to the obligations of solidarity provided for in Article 29 no one may be compelled to join an association.
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedom of others.
The Kaduna State religious law sponsored by El-Rufai is an existing 1984 law, dealing with religious issues which the sponsor is just trying to exploit and modify its content to comply with his administration agenda. Kaduna State is peopled by both Muslims and Christians, but the activities of some Islamic sects like the Shiite group headed by Sheik El-Zakzaky constitutes a serious nuisance and a security threat to the general public. So this law is not only harsh on Christians, Muslims are also affected in the quest to curtail reoccurring religious crisis.
CONS OF THE LAW
On the other hand, El-Rufai’s decision to criminalize people preaching without obtaining a licence to do so is unconstitutional and repugnant to the fundamental human rights of citizens.
Article 18 of the United Nations UDHR (Universal Declaration of Human Rights) emphatically confer the universal right to religion (worship and manifestation) without any formal or state restriction: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
The freedom of religion is fundamental and unavoidably necessary — individual crave or desire for religious association should be appropriately gratified. The moral benefit of religion is highly necessary for any country desiring a sane society. With this universal declaration, member countries of the UN are automatically compelled to adhere to this declaration. Nigeria, being a formal member of the United Nations also sworn allegiance to this charter now reflected in section 38 of the Nigerian constitution. Though with overriding clauses, the UDHR is formally domesticated in Nigeria and nothing should stop its total adherence.
Freedom of assembly and worship is sacrosanct — it is incontrovertible. Enacting a stringent law that prescribes imprisonment/fine for religious assembly or preaching is totally against the doctrine of human rights. The UDHR charter spells out in clear terms that, freedom of assembly and worship is fundamental to everybody (see above).
What the Constitution Says
Therefore, any attempt by a subordinate unit in Nigeria —Kaduna state, to initiate a contrasting law against the provision of section 38 is objectionable. The provision of this section is as follows:
- (1) 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.
(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.
(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.
(4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.
The constitution also states that the President, state governors and other government officers shall maintain the provisions of the constitution. Kaduna state is a component of Nigeria as a nation-state and cannot enact any unilateral law that is consonant with the constitution, or that may affect other citizens within the territory of Nigeria. In other words, Kaduna State is not an independent or sovereign state outside the jurisdiction of the central constitution binding on every other state in Nigeria. El-Rufai’s action is tantamount to contempt of constitutional provisions on religion.
Subjecting the people of Nigeria, resident in Kaduna State to draconian religious law is flagrant to constitutional provisions. In addition, according to section 5 (3) a – c of the constitution: the executive powers vested in a state under subsection (2) of this section shall be so exercised as not to
(a) Impede or prejudice the exercise of the executive power of the federation;
(c) Endanger the continual of a federal government in Nigeria.
Whereas, the federal constitution of Nigeria grants individual right to worship and preaching of one’s religion, it however, limits such rights for the purpose of national security, safety, public order, or for the purpose of protecting the rights and freedom of other persons in the society. However, there is a need for caution in the way and manner subordinate states in Nigeria enact laws that are repugnant to the central constitution, the source of their executive power. With the enactment of this law, it will not take time before this unconstitutional state fiat is replicated in other states, infringing on the religious rights of Nigerians.
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The opinions expressed in this article are solely those of the author.