Inibehe Effiong
Continued from Monday..
The law is settled that freedom of association includes the freedom not to belong to an association. In the celebrated case of Agbai v. Okagbue (1991)7 NWLR (Pt. 204) 391, one of the issues for determination was whether the respondent who objected to membership of an age grade association on religious grounds could be compelled to do so or could be deemed to be a member willy-nilly. The respondent maintained that he was not a member of the age-grade and that his religion as a Jehovah Witness forbade him to join. The Supreme Court per WALI J.S.C. held:”The 1963 Constitution, Section 24(1) guaranteed all Nigerian citizens freedom of conscience, thought and religion. The respondent is entitled to hold to the tenet of his religion, thought and conscience which prohibit him from joining the age grade. Any custom that holds otherwise is contrary to the Constitution and, therefore, null and void to that extent.”
Choice of a religious sect is a matter of personal convictions and conscience.
In the case of Theresa Nwafor Onwo v. Oko (1996) 6 N.W.L.R. (pt. 456), 584 at 587, the applicant claimed damages against the respondent for shaving her hair, assaulting and locking her up as incidents of mourning for her late husband. According to her, that offends her religious belief and devotion. Although the trial court dismissed her application, the Court of Appeal allowed her appeal.
It is on record that the Catholic Church in Nigeria suspended her membership of the Christian Association of Nigeria in September 2012.
The constitution does not place restrictions on places where a person can manifest or propagate his religion. On the contrary, Section 38 (1) of the 1999 Constitution expressly allows for public manifestation and propagation of religion. Therefore, the provisions of Section 9 of the bill which limits the playing of all cassettes, CDs, Flash drive or any other communication gadgets containing religious recordings to the inside of one’s house, entrance porch, inside the Church and Mosque and any other designated place of worship is unconstitutional, null, void and of no effect whatsoever.
Going by the wordings of the bill, it will be an offence, for example, for a person to play cassettes inside a vehicle on the road in Kaduna State if the bill is passed into law. This bill is not only unconstitutional but absurd.
Section 10 of the bill prohibits any cassettes which contain “abusive language” against any person, religious organisation or religious leaders (past or present). Strangely, there is no definition of the phrase “abusive language” in the bill. The consequence is that this provision is susceptible to mischievous inferences which may invariably lead to the violation of the fundamental right of the citizens to freedom of expression and the press under Section 39 of the 1999 Constitution.
Another grave defect in the el-Rufai bill is the vesting of summary jurisdiction to try violators (sic) of the provisions of the bill in the Sharia Courts and Customary Courts. The bill does not state specifically who is subject to these courts. If we can logically infer that Muslims are the ones subjected to the Sharia courts, can we equally infer that Christians are subject to the Customary courts? Certainly not. Customary courts do not exercise jurisdiction over Ecclesiastical matters. Unlike in Islam where there is near parity between religion and customs/traditions, Christianity is not fused with custom. It is indefensible for the Kaduna State Government to seek to subject Christians to the jurisdiction of Customary courts. Customs in most instances are inconsistent with the tenets of the Christian faith.
It should be noted that the 1984 Edict which Section 15 of the bill seeks to repeal came into force during the military era. However, with the coming into force of the 1999 Constitution, the Edict became an existing law by virtue of Section 315 (1) (b) of the 1999 Constitution and is deemed to be a law made by the Kaduna State House of Assembly. However, the point should be made that the Edict (now Law) is still subject to the constitutional validity test. Indeed, Section 315 (3) of the 1999 Constitution expressly subjects the Edict to the jurisdiction of the courts to declare it invalid where any of its provisions offends the constitution or an Act of the National Assembly or any other law.
This point is significant because the 1984 Edict cannot survive the constitutional validity test. Being the forerunner to the bill, the edict is itself unconstitutional, null, void and of no effect whatsoever.
Once it is shown that an existing law is not within the legislative powers of the National Assembly or a state House of Assembly as the case may be, the court has a duty to declare the same null and void. The Supreme Court decisions in the celebrated cases of Abacha v. Fawehinmi (2000) 6 N.W.L.R. (Pt. 660) 228 and Attorney General of Lagos State v. Attorney General of the Federation & Ors (2003) 12 N.W.L.R. (Pt. 833). P.1 are instructive in this regard.
The Blue Pencil rule of statutory interpretation allows for the severance of invalid portions of an enactment from the valid portions. However, it is clear from the submissions earlier canvassed that the entire provisions of the bill (particularly Sections 3, 4, 5, 6, 7, 8,9, 10, 11, 12, 13 and 14 of the bill) run contrary to the express provisions of the constitution.
My humble view is that there is nothing in the bill that justifies its preservation. No matter the perceived nobility of Governor el-Rufai’s intention or motives for initiating this bill, the constitution is supreme without exceptions.
Admittedly, Kaduna State has been a hotbed for violent religious clashes over the years. The 2006 riots over the Danish cartoons, the Miss World riots and the 2011 post-election violence are just a few examples. What is, however, clear is that religious riots are usually orchestrated by bigoted fellows who believe that their religion has been defamed or blasphemed and that they have a divine duty to fight, maim, kill and destroy, all in the name of defending their religion.
How many persons have been successfully prosecuted and convicted since the promulgation of the 1984 Edict? This is the question that el-Rufai should answer.
I dare say that the solution to this perennial menace does not lie in encroaching on sacred provisions of the Nigerian Constitution. The Kaduna State Government cannot use an apparently unconstitutional legislation (the 1984 Edict) or proposed legislation (the 2016 Bill) as a weapon to fight religious extremism.
No government in Nigeria, federal or state, can validly subject Nigerians that have elected to manifest or propagate their religion or belief as Christian or Islamic preachers to the requirement of obtaining a licence. That is not the business of the government. We have a duty to uphold the secular character of the Nigerian state. The various offences in Section 12 of the bill are ultra vires the legislative powers of the Kaduna State House of Assembly. The constitution cannot allow any state to dabble in the religious affairs of the citizens to the extent of establishing the so-called “inter-faith ministerial committee” to regulate the practice of religion.
There are ample provisions under the Penal Code Law, Laws of Kaduna State 1991 that the state government can effectively deploy to checkmate violence, riots, incitement, public nuisance, etc. There are equally offences relating to religious worship under the Penal Code Law of Kaduna State. Frankly, the issue is not the inadequacy of law but the lack of political will to enforce it.
The Kaduna State Government should immediately retrace from this provocative and unconstitutional expedition by withdrawing the bill. The 1984 Edict should be repealed. There is no need creating a rancorous atmosphere that is capable of inciting members of the public and creating the very religious acrimony and hostility that the bill purports or seeks to cure. I implore persons and organisations who are aggrieved by the bill to seek redress in a court of competent jurisdiction.
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
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