CONSTITUTIONAL SECULARISM AND FREEDOM OF

RELIGION IN NIGERIA; ANALYSIS OF ASIYAT

ABDULAKAREEM & Ors v. LAGOS STATE GOVERNMENT &

Ors (Unreported; Suit No. ID/151M/13)

BY

RUSSEL OSHIOKHAYAME ERAGA

FACULTY OF LAW

UNIVERSITY OF BENIN

BENIN CITY

SEPTEMBER 2015

2

TABLE OF CONTENT

Title Page . . . . . . . . . . . i

Cover Page . . . . . . . . . . ii

Certification . . . . . . . . . . iii

Approval . . . . . . . . . . iv

Dedication . . . . . . . . . . v

Acknowledgement . . . . . . . . . vi

Table of Content . . . . . . . . . vii

Table of Cases . . . . . . . . . xi

Table of Statutes . . . . . . . . . xiv

Abbreviations . . . . . . . . . .

CHAPTER ONE: INTRODUCTION

1.1 Introduction . . . . . . . . . 8

1.2 Law and Religion . . . . . . . .

1.2.1 Law . . . . . . . . .

1.2.2 Religion . . . . . . . .

1.2.3 The Relationship between Law and Religion . . . .

CHAPTER TWO: CONSTITUTIONAL SECULARISM

2.1 Constitution . . . . . . . . . 22

2.2 Theocracy . . . . . . . . .

3

2.3 Secularism . . . . . . . . .

2.4 States-Religion Models . . . . . . .

2.5 Comparative Analyses of Secular Constitutions . . . .

2.5.1 United States of America . . . . . .

2.5.2 France . . . . . . . . .

2.5.3 Turkey . . . . . . . . .

2.5.4 India . . . . . . . . .

2.5.5 Comment . . . . . . . .

2.6 The Nigerian State . . . . . . . .

CHAPTER THREE: CONCEPT OF RIGHTS

3.1 Fundamental Rights . . . . . . . . 61

3.2 Rights as Correlative of Duty . . . . . . .

3.3 Absolute Rights . . . . . . . .

3.4 Limitation of Rights . . . . . . . .

3.5 Proportionality of Limitation . . . . . . .

3.6 Right to Freedom of Religion . . . . . . .

3.6.1 Freedom of Religion as an Assemblage of Other Freedoms . .

3.6.2 Limiting the Freedom . . . . . . . .

3.7 Problem of Minority . . . . . . . . .

3.7.1 Accommodation of Religious Precepts . . . .

4

CHAPTER FOUR: ASIYAT ABDULAKAREEM & ORS v. LAGOS STATE

GOVERNMENT & ORS

4.1 Facts . . . . . . . . . . 102

4.2 Analysis of the Ratio . . . . . . . .

4.2.1 Scope of the Right . . . . . . .

4.2.2 Proportionality . . . . . . .

4.2.3 Comments . . . . . . . .

CHAPTER FIVE: SUMMARY AND CONCLUSION

5.1 Summary . . . . . . . . . 114

5.2 Conclusion . . . . . . . . .

5

TABLE OF CASES

A v. United Kingdom (1999) 27 EHRR 611

Adamu v. Attorney General, Borno State [1996]8 NWLR (pt. 465) 203

A.G. Lagos v. Hon Justice Dosunmu (1989) 3 NWLR (Pt 3) 552

Ahmad v United Kingdom (1981) 4 EHRR 126.

Asiyat Abdulakareem & ors v. Lagos State Government & ors (unreported) Suit No.

ID/151M/13

Baxter v. Laugley (1868) LJMC 15.

Bayatyan v. Armenia [2011] 23459/03

Board of Education of Kiryas Joel Village School District v. Grumet 512 U.S. 687 (1994).

Braunfeld v. Brown, 366 U.S. 59, 81 S.Ct. 1144, 6 L.Ed.2d (1961)

Buscarini and Others v. San Marino (1999) App. no. 24645/94

Cantwell v. Connecticut 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed 1213 (1940)

Church of the Lukunmi Babalu Aye Inc. v. Hialeah 508 U.S. 520 (1993)

Cole v. PC 443A [1936] 3 All ER 107

Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835

Dimitras and Others v. Greece, 2010 Application nos. 42837/06, 3237/07, 3269/07, 35793/07

and 6099/08.

Emmanuel Bijoe v. State of Kerala AIR (1987) S C 748

Everson v. Board of Education 330 U.S. 1, 67 S.Ct. 504 (1947)

Eweida & Ors v. The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and

36516/10.

Fawehinmi v Abacha [1996] 9 NWLR (pt. 475) 710

Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing,

(1999) 1 A.C. 6.

Hasan v. Bulgaria, Application no 30985/96, (2010) 24 EHRR 55.

Jakobski v. Poland [2010] 30 EHRR 417

Kalac v Turkey (1997) 27 EHRR 552.

Karaduman v Turkey (1993) 74 DR 93

Kokkinakis v. Greece, 1993 App. no. 260-A 25

Lee v. Weisman 505 U.S. 577 (1992).

Lemon v. Kurtzman 403 U.S. 602 (1971).

Lynch v. Donnelly, 465 U.S. 668 (1984)

6

McCollum v. Board of Education 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed 649 (1948)

Metropolitan Church of Bessarabia v. Moldova Application no. 45701/99, (2002)

Niklnikoff v. Archbishop of Russia Orthodox Greek Church, 1422MISC 894: 225 NYS 653.

O.F. Agoreyo & ors v. C.A. Olatunji & ors Unreported, suit no. M/531/89

Ojeigbe & anor v. Ubani & anor [1961] All NLR 277

Osawe & ors v. Registrar of Trade Unions (1985) NWLR (Pt 4); (1985) 5 S.C. 343.

Paddignton v. Bates [1960] All ER 660.

Peter Obi v. INEC SC.123/2007, 3

R (S.B.) v. Governors of Denbigh High School [2007] 1 AC 100.

R v. Home Secretary, ex p Brind [1991] 1 AC 696.

R v. Jones [1986] 2 S.C.R 284

R v. Oakes (1986) 1 S.C.R. 103

R. (Williamson) v. Secretary of State for Education and Skills [2005] 2 AC 246

Refah Partisi (The Welfare Party) & ors v. Turkey, App no 41344/98

Registered Trustees of the Rosicrucian Order, Amorc (Nigeria) v. Awoniyi & ors [1994] 7

NWLR (pt. 355) 155

Reynolds v. United States 98 U.S. 145, 25 L.Ed 244 (1879)

S. v. Mambolo, 2001 (3) S.A 409(CC)

Sahin v. Turkey, Application no. 44774/98

Sherbert v. Verner 374 U.S. 398 (1963)

Sinan Isık v. Turkey, 2010 App. no. 21924/05.

Sunday Times v. United Kingdom, App. No. 6538/74, 2 EHRR 245 (1980).

Valsamis v. Greece, (1997) App. No. 21787/93

Walz v. Tax Commission 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)

Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970)

West Virginia State Board of Education v. Barnette 319 U.S. 624, 63 S.Ct 1178, 87 L.Ed

1628 (1943)

Wisconsin v. Yoder 406 U.S. 205 (1972)

Zobrest v. Catalina Hills School District 509 U.S. 1 (1993)

Zorah v. Clauson, 343 U.S., 306, 72 S.Ct. 679,96 L.Ed. 954 (1952)

7

TABLE OF ABBREVIATIONS

A.C - Appeal Cases

AIR - All Indian Reporter

All E.R - All England Reports

All N.L.R - All Nigerian Law Report

C.L.R - Commonwealth Law Report

D.R - Decisions and Reports of the European Commission of

Human Rights

ECtHR - European Court of Human Rights

E.H.R.R - European Human Rights Report

K.B - King‟s Bench

L.Ed - Lawyers‟ Edition, Supreme Court Reports

LJMC - Law Journal Magistrate‟s Cases

N.W.L.R - Nigeria Weekly Law Report

S.A - South African Law Reports

S.C - Supreme Court Report (Nigeria)

S.C.R - Supreme Court Reports (Canada)

Q.B - Queen‟s Bench

8

CHAPTER ONE

1.1 INTRODUCTION

The idea that humans were in general entitled to certain rights; a movement that gained

prominence after the Second World War, had its origin in the Natural Law philosophy which

drew on religious belief, and later human intellect (reason) to justify their position on these

rights.1 This position is testified to by their being contained in the constitutions and

documents of older democracies like Britain,2 United States,

3 and France

4 even before the

war.

After the war, and the horrors it saw, there was an increased clamour for the movement of

these entitlements from the realm of Natural law and its persuasions to the realm of Positive

law. This was to give them a sort of cast in stone character not subject to the whims of

political authorities. This was the background to the United Nations Declaration of Human

Rights adopted in Paris by the United Nations General Assembly in 1948. The Declaration5

became the first international statement recognising these rights as belonging to every human

being6 with the goal of making government meet certain standards of behaviour in treating

1. Adaramola F., Jurisprudence ( Durban: Lexis Nexis, 2008), 20.

2. Magna Carta 1215 and later The Bill of Rights of 1689.

3. The Bill of Rights in the United States Constitution (1791).

4. The French Declaration of the Rights of Man and of the Citizen of 1789.

5. Declarations are not always legally binding. The term is deliberately chosen to indictate that the

participants did not intend to create binding obligations but merely to declare certain aspirations. See

Amos Enabulele and Bright Bazuaye, Teachings on Basic Topics in Public International Law (Benin-

City: Ambik Press, 2014), 116

6. The Declaration is composed of 30 articles, provides for instance, „All human beings are born free and

equal in dignity and rights. They are endowed with reason and conscience and should act towards one

another in a spirit of brotherhood‟ - Article 1 of the Universal Declaration of Human Rights.

9

persons within their jurisdiction. Thereafter came their inclusion in many regional

agreements7 and the constitutions of many emerging constitutions.

8

Over the past six decades, the international community has proceeded from the initial step in

the Universal Declaration of accepting a basic moral obligation to respect and promote the

observance of human rights and fundamental freedoms, through successive stages of their

codification and enumeration, to the recent efforts to provide for their implementation

mechanisms for the effective realization of these rights.9

In Nigeria, the idea that man deserved certain rights necessary for ordinary living, came as a

result of the recommendations of the Willinks Committee 1957 set up to inquire into the fear

of the minority with a view to allaying them. This saw their inclusion in the Nigerian

Independence Constitution of 1960.10

However, with the enactment of this rights came incidences of alleged encroachments and

infringement by government.11

The question then became; how far were rights protected,

were rights absolute to what extent could they be validly limited? In 21st Century Nigeria,

7. African Charter on Human and People‟s Right 1981, European Convention on Human Rights 1950,

American Convention on Human Rights 1961.

8. Part III of the Indian Constitution 1949, Chapter II of Kenya Independence Constitution 1963, Chapter

III of Kuwait Constitution 1961, Chapter III of Nigeria‟s 1960 Independence constitution.

9. The efforts of the International Criminal Court in trying world leaders accused of genocide and other

war crimes. The European Court of Human Rights (ECtHR) established by the European Convention

on Human Rights (1950) to hear applications alleging breaches of rights guaranteed under the

Convention. Protocol of the African Court on Human and People‟s Right (2004) setting up the Court to

enforce the African Charter.

10. Sections 17-32 of the 1960 Constitution. Protected rights included; right to life (s.17), dignity of person

(s.19), freedom of conscience (s.23), freedom from discrimination (s.27).

11. The Federal Military Government State Security (Detention of Persons) Decree No. 2, 1984, under

which anyone could be detained by the military government for an indeterminate period. Public

Officers (Protection Against False Accusation) Decree No. 4, 1984, which led to the detention of two

of Guardian Newspaper Employees for an article they wrote on the appointments to be made by the

Military government. Academic Staff Union of Universities (Proscription and Prohibition from

Participation in Trade Union Activities) Decree no.2 1988.

10

these questions seem not to have been answered as many still cling to the notion of an

absolute right and the courts have not done enough in justifying the limitations that may be

constitutionally placed on rights.

This work seeks to answer these questions by addressing the justifiable limitations that are

necessarily placed on the full realisation of rights. It does this by examining the fundamental

distinction between recognising the scope of constitutional rights and their limitation.

However, the purview of this work is limited to the treatment of the fundamental right to

freedom religion.12

It would discountenance the opinion of many who seek an unrestrained

exercise of their rights.

This work is the product of legal thought ignited by the decision in Asiyat Abdulakareem &

ors v. Lagos State Government & ors13

, where the Lagos High Court upheld a uniform

regulation of the state government for public schools, thereby banning the use of head-

covering (hijab) at such schools.14

It would therefore focus on the justifiable grounds for the

limitation of the fundamental right to freedom of religion under a secular constitution,

particularly, the manifestation of religious belief. It would appeal to comparative law in other

to expose instances of justified limitations of the right and the rationale behind such

limitation to give the work the practicality it needs to be a useful discourse.

For the purpose of carrying out this task, this work would proceed in the following manner;

Chapter 2 would discourse the concept of secular constitution. It would also examine

concepts like constitution, theocracy. The chapter analyses the traits common to secular

12. Guaranteed under s.38 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

13. (unreported) Suit No. ID/151M/13, Lagos State High Court, Ikeja Divison.

14. The use of hijab has caused controversies in some states: Femi Makinde, “Osun: Muslims warn CAN

against opposition to hijab,” last modified june 23, 2015, http://www.punchng.com/news/osun-

muslims-warn-can-against-opposition -to-hijab/

11

countries and the effect of such secular stance on the right to freedom of religion. It would

explore the various State-religion models in practice across the globe. The chapter would also

consider those religious precepts which have been permitted despite their clash with legal

provisions.

Chapter 3 examines the concept of rights in general, strict rights. It discusses the place of

fundamental rights under different International instruments and its place under the

Constitution of the Federal Republic of Nigeria (as amended). It would review the criteria for

determining the scope of constitutional rights and what limitations may affect their full

realization. The chapter finally analyses the doctrine of Proportionality in balancing rights

and their limitations. It would adopt Aharon Barak view that proportionality does not suggest

a neutral approach towards constitutional rights, but is based on the need to protect them.15

It

would also discuss the right to freedom of religion. It would reveal that the scope of the right

covers a multitude of freedoms. It would pick one of these freedoms: manifesting religious

belief in action, and examine the justification for its limitation such as the interest of the

public and other competing interests.

As a work influenced by the decision in Abdulakareem & ors v. Lagos State Government &

ors,16

chapter 4 would critically analyse the ratio of the case with the aid of judgements from

foreign jurisdiction like that of R. (S.B.) v. Governors of Denbigh High School17

and Sahin v.

Turkey18

and propose issues that subsequent judgement have to address.

Chapter 5 would witness the conclusion of this work.

15. Aharon Barak, Proportionality: Constitutional Rights and their Limitations ( UK: Cambridge

University Press, 2012), 4.

16. Supra n.13.

17.

[2007] 1 AC 100.

18. Sahin v. Turkey, Application no. 44774/98, judgement of 10 November 2005.

12

In the discussions that would follow in the subsequent chapters of this work, one noticeable

strain of thought would feature; the relationship between law and religion. An examination of

this dynamic relationship is essential to this work

1.2 LAW AND RELIGION

1.2.1 LAW

Much effort has been spent towards providing a universally acceptable definition of law but

with little sign of attaining that objective.19

The reason for this may not be hard to come by.

Some have put the blame on the nature of words which make definitions no more than

approximation. Also the choices of definition is largely influenced the ideology of the

chooser. For instance, the Positivist and Natural Law scholars have been locked in arguments

on the place of morality in the content of law.20

Some have gone further to query the

necessity of definition as Ayer says „inquiry into the use of words can equally be regarded as

inquiry into the nature of the fact which they described‟.21

Despite these issues, legal scholars have not relented in proffering their idea of the law, and,

more often than not, stressing some functions of law more than others. The reason for this is

underscored by the importance of definitions; in that they serve to illuminate our

understanding. So that even where they are approximations they help in the light of the

functional exposition to provide an overall picture and emphasis certain key criteria. Lloyds

and Freeman‟s words are instructive here; definitions should be treated as „summing up of

19. „The concept of law fulfils a central role in jurisprudence...no simple definition will satisfy us in the

absence of a clear grasp of the ramifications of the concept throughout its domain and an acceptable

criterion of adequacy.‟ P.M.S. Hacker Law, Morality and Society (ed. Hacker and Raz, 1997),5

20. This work does not consider the controversy between the conroversy between these schools of thought.

21. A. J. Ayer, The Problem of Knowledge (1956), 2-3, Cf Lloyd‟s Jurisprudence

13

discussion than as a series of axioms from which all subsequent conclusions may be logically

inferred.‟22

Black‟s Law Dictionary defines „the regime that orders human activities and relations

through systematic application of the force of politically organised society, or through social

pressure backed by force, in such a society; the legal system.‟23

Llewellyn, in his book Bramble Bush defined law as „what official do about disputes is...the

law itself.24

Oliver Wendell Holmes defined law as „the prophecies of what the court will do... are what i

mean by law.25

Kelsen sees law as „...a coercive order, that is that law seeks to brng about a specific mode of

human conduct by attaching to the opposite mode of conduct as sanctions a coercive act

(such as), the forcible taking of life, of freedom or of economic or other value.‟

This definition identifies law as a command system prescribing acceptable conduct and also

identifies some of the ways law commands obedience. Salmond joins in agreement when he

says that law, includes any standard or pattern to which actions are or ought to be performed.

Lauterpacht on the other hand sees law as „the maximum of socially obtainable morality.‟ A

problem about this definition is that it does not take into consideration such amoral laws

(without moral content) which are found in rules of court.

Adaramola sees law as

22. M.D.A. Freeman Lloyd‟s Introduction to Jurisprudence 8

th ed. (London: Sweet & Maxwell, 2008),37

23. Black‟s Law Dictionary 9

th edition ed, Bryan A. Garner (New York: West Publishing Co., 2009), s.v.

“law”

24. M.D.A. Freeman Lloyd‟s Introduction to Jurisprudence 8

th ed. (London: Sweet & Maxwell, 2008), 1

25.

Ibid no.22

14

a normative psychological instrument of social management, social

motivation, social control and social change, produced from practical

social necessity by which a politically organised society influences human

conduct within its jurisdiction.26

Despite the perspective of the varied definitions, it is evident that laws procedes with the

authority and power of the law giver and related penalties for failure to comply with the law.

Also, these definitions identify some functions of law in the society. Kelsen in his General

Theory of Norms27

identified four of these functions of law. For him, law performed the

following functions:

1. Command function; to prescribe (as opposed to describe) by expressing how a certain

behaviour ought to be.

2. Permitting function: according to him, this function could be used in a negative or

positive sense. Behaviour is permitted if it is neither commanded nor forbidden. In the

negative sense, it means that no valid norm exist which forbids, positively permits or

empowers this behaviour. The behaviour here is not captured in any law.28

In the positive sense, permitting would also obtain if the validity of a norm

prohibiting a certain behaviour (i.e. commanding the omission of this behaviour) is

restricted by another, derogating norm. He gives the example of a norm commanding

one to refrain from killing and another norm restricts the validity of this norm by

making an exception for cases of self-defence. Killing in self-defence is then

permitted.29

26. Adaramola F., Jurisprudence (Durban: Lexis Nexis, 2008), 9.

27. General Theory of Norms (New York: Claredon Press, 1991), 96.

28. Ibid, 98

15

3. Empowering function: here law confers legal power on certain individuals to posit

and apply norms.30

4. Derogative function: this involves the repeal of the validity of a norm by another

norm. A norm does not lose its validity by the act of its derogation but because the

time for which it is to be valid has run out, or because it is no longer actually observed

and applied (ie it has lost its effectiveness, which is a condition for its validity).31

Kelsen goes on to say that all legal norms have the same structure and function and are

addressed not to the subject of the legal system but to the officials and direct them to impose

sanctions under certain conditions32

. This position Michael Hartney does not subscribe to. He

is of the opinion that legal norms do not impose legal duties on the officials to whom they

addressed but on the persons liable to the sanction.33

Joseph Raz on the other hand, holds that law performs two broad functions; normative and

social function.34

Under its normative function, law performs both determinate and indeterminate guidance.

Law brings about determinate guidance by making the performance of a certain action the

condition for an unpleasant consequence, thereby providing a reason for avoiding certain

actions. Law brings about indeterminate guidance when a law makes the performance of an

action sometimes more desirable and sometimes less desirable than it would otherwise be.

29.

Ibid, 99

30. Ibid. 102

31. Ibid.106

32. Ibid. xxii

33. Ibid. xxv

34. Joseph Raz “On the Function of Law.” In Oxford Essays in Jurisprudence 2

nd series, ed. A.W.B.

Simpson (London, Claredon Press, 1973), 279-304.

16

Raz ties the social function of the law to the extent to which laws are obeyed and applied and

on the effect of the existence of laws on human behaviours and attitudes. Under the social

function, law serves to;

a) Preventing undesirable behaviour and securing desirable behaviour

b) Providing facilities for private arrangement between individuals

c) The provision of services and the redistribution of goods

d) Settling unregulated disputes

e) Providing procedures for changing the law

f) Procedures for enforcing the law.35

For the purpose of this work Adaramola definition of law is adopted as this work focuses on

the social effects of law particularly as an instrument of social management achieved by its

normative and empowering character.

1.2.2 RELIGION

The term religion is one common to everyday life, used to refer to a person‟s belief in a

supreme being. Despite its everyday use, in all facet of society, yet it is a herculean task to

get an acceptable definition.36

One of such reasons for the absence of an acceptable definition

is identified by Andras and Renata, that a definition premised on the worship of God or the

creator which satisfies Judeo-Christian and Muslim perspective leaves out Buddhism and

Taoism.37

35. Ibid. 298

36. Latham C.J. in Adeliade Company of Jehovah‟s Witnesses, inc v. The Commonwealth (1943)67 CLR

116

17

Etymologically, religion comes from the Latin word „relegare‟ meaning to bind what is

broken. This literal translation suggest that religion is something which is redemptive in its

healing quality,38

repairing the broken bonds between human and gods.

Oxford dictionary defines religion to mean „the belief in the existence of a god or gods, and

the activities that are connected with the worship of them.‟39

Black‟s Law dictionary defines religion as;

a system of faith and worship usually involving belief in a supreme being and

usually containing a moral or ethical code especially, such a system recognized

and practiced by a particular church, sect or denomination.40

These dictionary definitions stress two aspects of religion; faith/belief and worship. The

belief usually located in the content of what they profess, while worship is evident in their

rituals, sermons, commemoration, and meditations.

Despite the problems in defining religion, scholars have not been deterred in their efforts. A

caveat is to the effect that some of the definition are coloured by the bias of the definer.

Emmanuel Kant has taken the position that „religion is the recognition of our duties as divine

commands.‟ This definition leaves out those aspects of religion earlier mentioned: belief and

worship.

37.

Andras Sajo, Renata Utiz, “Freedom of Religion,”in The Oxford Handbook of Comparative

Constitutional Law, ed. Michel Rosenfeld and Andras Sajo (New York, Oxford University Press,2013),

909-928

38. Li-Ann Thio, “Control,Co-Optation and Co-Operation: Managing Religious Harmony in Singapore‟s

Multi-Ethnic, Quasi-Secular State,” Hastings Constitutional Law Quarterly vol.33 no.2&3, 2006 197-

253.

39. Oxford Advanced Learner‟s Dictionary, 8

th ed., s.v. “religion.”

40. Black‟s Law Dictionary 9

th edition, ed. Bryan A. Garner (New York: West Publishing Co., 2009), s.v.

“religion.”

18

According to Wiles J., religion;

is it not what a man honestly believes in and approves and think it is his

duty to inculcate in others whether with regard to this world or the next? It

must, i think include the principle of gratitude to an active power who can

confer blessings.41

For Callowy, religion „is a man‟s faith in a power beyond himself where he seeks to satisfy

the emotional needs and stability or success of life which he expresses in the act of worship

and service.‟42

His definition emphasis the emotive psychological effect of religion, in that it

brings a sense of security by claiming to provide answers to questions that have plague the

thoughts of man like where did man come from; what happens at death, amongst others.

Communist on the other hand questions the truth as well as the value of religion and as such

are hostile to it which they consider superstition. Their position is well represented Karl

Marx‟s famous definition of religion as „the opium of the poor and an obstacle to the growth

of a classless society.‟43

In Niklnikoff v. Archbishop of Russia Orthodox Greek Church, religion was defined as;

Man‟s relation to divinity, to reverence, worship, obedience and submission

to mandates and precepts of supernatural or superior beings. In its

broadest sense, it includes all forms of belief in the existence of volition,

imposing rules of conduct, with future rewards and punishment. Bond

41. Baxter v. Laugley (1868) LJMC 15

42. Obiajiaku I.O. “ Extent of the Right of the Freedom of Religion and Worship under the 1999 Nigeria

Constitution,” University of Benin: Journal of Private and Property Law 3, 2012.

43. Ibid.

19

uniting man to God and virtue whose purpose is to render God worship due

to him as a source of all beings and principle of government of things44

.

The above definitions, recognises that free will is necessary to a true religious experience. It

identifies that religion sometimes imposes some obligations on its adherents motivating

obedience through future rewards and punishment.

This work identifies with the above definition in Niklnikoff v. Archbishop of Russia Orthodox

Greek Church particularly the idea that religion obliges its adherents to observe its precepts;

for this is the source of the conflict (that not all religious precepts can be carried out in a

secular democracy) sought to be addressed in this work

1.2.3. THE RELATIONSHIP BETWEEN LAW AND RELIGION

It was once a popular opinion to hold that law had its origin in religion and both were

indistinguishable;45

the truthfulness of this is still subject to intellectual debates as very little

of the complex commercial and property law of contemporary industrial society can be tied to

religious precepts.46

However, before the religious unity of Europe was broken, it was not

uncommon to find many societies with only one religion. In such societies, the belief of the

ruler was foisted on the people47

, with the enactment of laws set to encourage and promote

unity by prescribing some orthodox form of worship.

44. 1422MISC 894: 225 NYS 653, 663. reported by Dominic Asada, “The Right to Religion in Nigeria,”

Confluence Journal of Jurisprudence and International Law, 4 no.1 (2011): 12.

45. Dias R.M.W., Jurisprudence 4

th ed. (London: butterworths, 1976), 536.

46. Adamson E. Hoebel, The Law of Primitive Man (Massachusetts: Harvard University Press, 1967), 257.

47. Egyptian Pharoah Amenhotep IV (ca. 1385-1336 B.C.E.) defied the tradition of polytheism by

elevating Aten (the Sun god) to a position of supremacy over all other gods thereby imposing

monotheism. He later changed his name to Akhenaten in honour of Aten. See Gloria K. Fiero,

Landmarks in Humanities (New York: McGraw Hill 2006), 20.

20

When the religious unity of Europe was broken as a consequence of the Protestant

Reformation, the authorities of many states tried to ensure religious unity through legal

means and governmental. The result was massive persecution of those with a contrary

belief.48

States were rife with religious protest49

and wars were fought along religious

divides.50

Even in states where the people willingly adhered to a sanctioned religion,

persecutions were still cared out by fanatics against fellow believers whom they denounced

as unbelievers because they did not subscribe to some of the tenets held fast by the fanatics.51

The end result was a thorn continent as many would not yield to change because religion

engages the deepest passion of the believer.

However, as enlightenment wore on; which saw the end of these conflicts, it was discovered

that, there was no political point in promoting an orthodox belief by the use of compulsion as

such form of religious intolerance always led to conflict, and that the unity could be achieved

in an atmosphere of tolerance as seen in the examples of ancient multi confessional states.52

Also, that there was little religious point in enforcing the adoption of a particular religion for

a religion can only save the man who really and sincerely accepts it, not just anyone who

48. The killing of persons considered heretics in the Middle Ages bears testimony to this.

49. The Suppression of Religious Houses Act 1535, which caused the dissolution of monasteries set up by

the Roman Catholic Church in England let to the 1536 Pilgrimage of Grace, a religious protest

undertaken by some 30,000 people loyal to the Catholic Church.

50. The Holy League, an alliance between Pope Julius II, Ferdinand of Spain and the Venetians formed in

1511 to expel the French from Italy is an example of the religious alliances form after the Church lost

its hold in Europe. See Niccolo Machiavelli The Prince (New York: Bantam Book, 1981), 134.

51. Hunwick gives example of the Kharijite Muslim Sect, who for the purpose of Jihad (which was

supposed to be cared out against unbelievers), held that Muslims who commit grave sins like adultery

or wine drinking ceased to be Muslims. Those who didn‟t share this view (the vast majority of the early

Muslims) were considered unbelievers. See J.O. Hunwick “The Nineteenth Century Jihads,” in A

Thousand Years of West African History, ed. J.F. Ade Ajayi and Ian Espie (Lagos: Thomas Nelson ltd,

1965), 267.

52. Egypt was in peace despite its Polytheism. It returned back to polytheism after the death of Pharaoh

Amenhotep. Fiero, “Landmarks,” 20.

21

pays outward obedience to it.53

From this consideration flowed religious freedom, as much

injustice is done by preventing a person from practising the religion he truly believes in.

In other that religious freedom be protected, the law became separated from religion in the

conception of Secular state. Here, the law while accommodating various religious beliefs,

does not favour nor endorse any specific religion. These conclusions have found their way

into the constitutions of many countries including Nigeria.54

Flowing from the above relationship, it becomes clear that, religious freedom is anchored on

the separation of law from religion in the conception of secular states. This separation does

not imply that religion should be stamped out as the communist would demand, or that the

law should never legislate on any subject which would agree with certain religions and

conflict with others (so long as it can be justified on a purely secular ground), but that law

should never impose an orthodoxy or adopt a religion. More on this relationship would be

said in chapter two.

53. See J.M. Elegido, Jurisprudence (Ibadan: Spectrum Law Publishing, 1994), 368.

54. Section 10, 1999 Constitution (as amended) provides „The Government of the Federation or of a State

shall not adopt any religon as State Religion.‟

22

CHAPTER TWO

2.0 CONSTITUTONAL SECULARISM

In Chapter One, it was identified that the secular state was an off shoot of the efforts to keep

religion from the state sphere, in other that they do not taint the other. Here we take a look at

what such seperation portends for the state as well as for religious freedom. We therefore

examine what it means for a constitution to be theocratic, and secular.

2.1 CONSTITUTION

Black‟s Law Dictionary, defines Constitution as:

The fundamental and organic law of a nation or state that establishes the institutions and

apparatus of government, defines the scope of governmental sovereign powers, and

guarantees individual civil right and civil liberties. 2. The written instrument embodying this

fundamental law, together with any formal amendments.55

The definition above sees constitution from two different senses, the abstract and the

concrete. The constitution of a state in the abstract sense is the system of laws, customs and

conventions which define the composition and powers of organs of the state, and regulates

the relations of the various state organs to one another and to the private citizen. A

constitution in the concrete sense is the document in which the most important laws of the

constitution are authoritatively ordained.56

55. Black‟s Law Dictionary 9

th edition, ed. Bryan A. Garner (USA: West publishing, 2009), s.v.

“Constitution”

23

Professor K.C. Wheare defines constitution as ...the whole system of a country, the collection

of rules which establishes and regulates the government.57

The constitution of any nation has been described as its basic or fundamental law and is

sometimes (wrongly) equated to the „Grundnorm.‟58

It is a document that acts as the fountain

from which all other laws governing the relationship in the polity derive their authority,

strength and validity.59

Thomas Pine in an old definition says;

A constitution is not the act of a government, but of a people constituting a government. And

a government without a constitution is power without right... a constitution is a thing

antecedent to a government and a government is only the creature of a constitution.60

From this it can be discerned that a constitution is something which is prior or as Pine said,

antecedent to government. The Constitution gives government legitimacy, defining their

powers to act thereby regulating the powers to be exercised and the manner in which they are

exercised.

The House of Lords Committee on Constitution had this to say:

The set of laws, rules and practices that create the basic institutions of the state and its

components and related parts and stipulate the powers of those institutions and the

56.

Paul Jackson and Patricia Leopold O. Hood Phillips Constitutional and Administrative Law 8th

ed.,

(London: Sweet & Maxwell, 2001), 5.

57. Hilaire Barnett, Constitutional and Administrative Law 9

th ed., (London: MPG Books Group, 2011), 7.

58. According to Kelsen in his book Pure Theory of Law, the Grundnorm is not the constitution. It is an

abstract element, an initial hypothesis, a presupposition that an effective state of affairs be obeyed. See

Adaramola Folorunsho, Jurisprudence, 4th

ed., (Durban: Lexis Nexis Butterworth, 2008).

59. Bola Ajibola, “The Federal Attorney-General: Powers, Duties and the Administration of Law.” NIALS

Law Series no.2 (1989)

60. Barnett, Constitutional and Administrative Law, 7

24

relationship between the different institutions and between those institutions and the

individual‟ is the constitution.61

It is clear that the constitution performs functions of allocating power and duties and

determining the relationship between the institutions of the state. It fulfils two functions;

those of defining and evaluation.62

The constitution will both define the manner in which the

rule in question sets a standard of behaviour which is regarded as correct and which is

expected to be adhered to by those to whom the rule is addressed. It performs the evaluative

function by providing through its normative function, a standard through which independent

acts can be judged. The Constitution as the foundation of the legal order, serves therefore to

identify organs of government, the limits of their powers, acting as a touchstone for testing

the legality of government policies and actions, and also prescribes or guarantees rights63

of

citizens and the duties they owe to the society.

2.2 THEOCRACY

Webster‟s Comprehensive Dictionary defines theocracy to mean;

1. A state, polity, or group of people that claim a deity as its ruler…

2. A government of a state by a God or by a priestly class claiming to have divine authority as

in the Papacy.64

61. House of Lords Paper II (2001-2) Ch. 2

62. Barnett, 7

63. The Natural Law theorist have been consistent in claiming that constitutions or laws in general do not

give or bestow fundamental rights as they are inherent in man by nature. What the state does by

recognising them, is guaranteeing their protection. See M.D.A. Freeman, Lloyds Jurisprudence, 9th

ed.,

(UK: Sweet & Maxwell, 2009).

25

Black‟s Law Dictionary aligns with the above dictionary definition when it says that

theocracy means;

Government of a state by those who are believed to be or represent that they are acting under

the immediate direction of God or some other divinity. 2. A state in which power is exercised

by ecclesiastics.65

Both definitions identify theocracy to mean a government controlled by persons exercising

religious authority i.e., by people who serve in dual capacity as religious ruler and head of

state.

A constitution is said to be theocratic not so much by the fact that it prescribes rule by

ecclesiasts, but by the fact that it picks or selects a religious belief as the foundation of the

legal system created. Such constitutions provide for a religion as the established or state

religion. For instance in Saudi Arabia, Article 1 of the Basic System (of Government),66

provides, „the kingdom of Saudi Arabia is an Arab and Islamic Sovereign State. Its religion is

Islam, and its constitution, the Holy Quran and the prophet’s Sunnah. Its Official

Language is Arabic and it‟s Capital, Riyadh.‟67

Similarly, is the provision of Article 1 of

Qatar Constitution which provides amongst others that ...its religion is Islam and Islamic

Shari ‟a Law shall be the fundamental source of its legislation. This is a succinct outline of

the state founding its identity on a particular religion.

64.

The New international Webster‟s Dictionary of The English Language 2010 ed., ( USA: Typhoon

Media Corp, 2010), s.v. “theocracy.”

65. Black‟s Law Dictionary 9

th edition, ed. Bryan A. Garner (USA: West publishing, 2009), s.v.

“Theocracy”

66. Decree A/90 of 28-8-1412AH (1 March, 1992). It is regarded as one of Saudi Arabia‟s constitutional

documents alongside The Provisional System and The System of the Majlis al- Shoura promulgated by

King Fahd Ibn Abdulaziz Al-Saud.

67. Emphasis mine.

26

In theocratic societies religion becomes the justification for the whole legal system.

Everything must be seen as sanctioned in the religion. There is no separation of law and

religion in those societies, but a fusion of it, sometimes in the same person. Such religions

that have often become state religion are those which are referred to as „Book Religion,‟68

which have legal systems of their own regulating ordinary life as well as religious affairs and

make very wide and overreaching claims to regulate secular rulers according to moral or

disciplinary codes of their own.69

It becomes clear that the adoption of a state religion in the constitution of the multi-religious

state portends danger for persons within that jurisdiction with a contrary belief, as such

constitution do not always provide for nor recognise the right to freedom of religion.70

Such

situations leave no room for non-conformers.

2.3 SECULARISM

The word „Secular‟ comes from the Latin word „saeculum‟ which is used to denote a great

length of time as in the phrase „saecula saeculorum‟ (forever and ever).71

This etymological

meaning is clearly different from what it has come to mean in present times.

68.

Dhokhalia, R.P. “The Human Right to Religious Freedom: Problems of Definition and

Effective Enjoyment.” The Calabar Law Journal 1, no. 1 (1986): 91-128.

69.

Herbert Stroup, “Church and State in Confrontation” (1967)136-152, op. cit Dhokhalia, Human Right

to Religious Freedom

70. Iran provides a curious example here. After providing in Article 1 and 12 of the 1979 Constitution (as

amended), the recognition of Islam and Quranic justice as the basis of its form of government, it

recognises in Article 13, the existence of Zoroastrian, Jewish and Christian Iranians are the only

recognised religious minorities, who within the limits of the law are free to perform their religious rites

and ceremonies, and to act according their own canon in matters of personal affairs and religious

education. What is not clear is how the State would greet new religious minorities.

71. Michael Hill, A Sociology of Religion,(London: Heinemann Educational Books, 1973), 229.

27

Secularization has been given defined as „a process whereby religious thinking, practise and

institutions lose social significance.‟72

By this is meant, that previously accepted symbols,

doctrines and institutions lose their prestige and influence, and the end point of such a process

would be religion-less society.

Larry Shiner identifies six uses of the word secularization, but of significance is its use to

denote „the disengagement of society from religion or to the differentiation of religious ideas

and institutions from other parts of the social structure.‟ Here, instead of religions function

being that of the whole society, it becomes increasingly a matter of private choice,73

restricted

to the sphere of religiously interested participants. Religion loses its public role and as a

corollary, society looks elsewhere for the source of its authority.

Secular [adjective] is defined by Black‟s Law Dictionary as, „worldly, as distinguished from

spiritual.‟74

When used to describe a constitution it simply refers to a constitution whose

validity is not predicated on any religion. Here, the constitution protects the freedom of

religion by not establishing or enthroning a state religion. Such constitutions prohibit the

recognition of any religious organisation. The constitution maintains this non recognition not

because it is oblivious to the existence of religious organisations but because it is necessary to

maintaining its neutrality as recognition, even without establishment leads to the creation of a

privileged position for the religion so recognised. A ready example of this kind of

constitution is that of the United States of America, where the First Amendment provides that

„Congress shall make no law respecting an establishment of religion or prohibiting the free

72

Bryan Wilson, op cit, Michael, A Sociology of religion, 229.

73. „The Privatization of Religious Beliefs and Actions,‟ B.B. Hallahmi, “The return of Martyrdom:

Honour Death and Immortality,” in Religious Fundamentalism and Political Extremism, ed. Leonard

Weinberg and Ami Pedahzur (London: Frank Cass, 2004).

74. Black‟s Law Dictionary 9

th edition, ed. Bryan A. Garner (USA: West publishing, 2009), s.v. “secular.”

28

exercise thereof...‟75

(emphasis mine). Similarly, is Article 1 of Constitution of France 1958

(as amended), which provides; „France is an indivisible Secular, democratic and social

republic, it assures the equality of all citizens before the law without distinction of origin,

race or religion. It respects all beliefs.‟

What these constitutions seek to provide is to remove government intervention in religious

affairs so as not to corrupt religious teachings and also to prevent government powers from

being used to further religious and sectarian interest.

Secularism is not atheism. Atheism is a lack of belief in gods. Though, atheists have an

obvious interest in supporting secularism, secularism itself does not seek to challenge the

tenets of any particular religion or belief, neither does it seek to impose atheism on anyone.

Secularism simply provides a framework for a democratic society, for ensuring equality

throughout society- in politics, education, the law and elsewhere, for believers and non-

believers alike.

The origin of secularism is founded on liberalism76

and equality. In a time of conflict in

many countries between law and religion, liberalism presented itself as a third way of

organising society.77

Liberalism has three central premises:

1. Belief in the intrinsic and ultimate worth of the human individual;

2. A view of the state‟s role as maximising human dignity, self-fulfilment and autonomy,

while minimising interference with individual moral choice; and

75. Also, Article VI of the American Constitution goes further to prohibit religious test from being required

as qualification to any office or public trust.

76

Nadia Merhi, “Unveiling the Basis of Human Rights” University College London Review no. 12

(2005): 127-143.

77

Laborde C., “On Republican Toleration” (2002) 9(2) Constellation 167

29

3. The belief that the state and the law should be neutral as to particular conceptions of the

good life.

Due to the neutrality of the state under the liberal model towards the competing and

conflicting conception of the good life, the state needed to guarantee that individuals would

be free to formulate and seek their own conception of life.

States which are beset by ethnic or religious conflicts face the challenge of danger to their

very political existence if they do not consolidate the unity of the society around the nation

principle, hence their adoption of the secular constitutions. Religion was also to gain from

this secular stance as without proper separation, the state will divert religious organisations

and its tenets for its own purposes. It will not respect freedom of opinion and state power will

become factional and divisive. Thus, separation from the state unburdens religion.78

Despite the arguments above, not every state accepts the secular philosophy as some may

claim it weakens or destroys its traditional religions which govern the life and culture of a

predominant proportion of its population. Brennan J. does not accept this, for he has

explained that if the secular state helps religion, then it is in danger of corrupting the sacred;

the secular powers capture the sacred.79

When the state political process favour one religion

over another or gives tax support to religion, the state creates political insiders and outsiders,

and bitter resentment of one religion against another or against civil government, which leads

to passionate intolerance, fanatical reactions and even to a breakdown of civil government.

78. Andras Sajo and Renata Utiz, “Freedom of Religion,” in The Oxford Handbook of Comparative

Constitutional Law, ed. Michael Rosenfeld and Andras Sajo, (New York: Oxford University press,

2013), 924

79. Lynch v. Donnelly, 465 U.S. 668 (1984) (Brennan J dissenting)

30

The secular state is also founded on equality.80

Freedom of religion in any society can exist

only on the premise of the equality in the enjoyment of this freedom. Any reason to treat

different religions differently imports all kinds of invidious distinctions. Any discrimination

in a multi-religious society corresponding to the differences raises issues of reasonableness

and justice. Permissible discrimination is a reverse side of the notion of equality before the

Law.81

In the secular state the law permits the freedom to speak out what one believes in, or

to preach, practise and worship as one chooses, and the social and legal system guarantees

similar freedom to all without any distinction and up to the limit that no crime of sedition or

blasphemy or the tort of slander is committed. Only in a secular state does one truly enjoy the

right to religious freedom.

Under the secular state, the law does not concern itself with the individual‟s beliefs or

disbeliefs unless that person propagates his views in circumstances likely to give rise to a

breach of peace, or in a place to which he is denied lawful access. Justice therefore, demands

that the freedom of an individual could be curtailed for securing the equal freedom of others,

because of the affirmation of the principle equality amounts to asserting the universal

possession of human dignity.

In a multi-religious society, various normative systems compete for the allegiance of society.

When the society is secular; its law takes precedence over the dictates of religion, morality or

community mores, and it may allow some scope for deviation in recognition of varieties of

religious belief. While secular law may assert pre-eminence to guarantee equality to all

80. Dhokhalia, R.P. “The Human Right to Religious Freedom: Problems of Definition and Effective

Enjoyment.” The Calabar Law Journal 1, no. 1 (1986): 9.

81. Ibid.

31

religion, the right to freedom of religion cannot be enjoyed in a pluralistic society without a

limiting some forms of religious expression.82

2.4 STATES-RELIGION MODELS

This necessarily brings up the question of relationship between a social and legal system and

religion in general, or one religious system in particular, in the event of its dominance. Whilst

the relationship between a legal system and religion in earlier societies had been a fused one,

the relationship during the course of history has ranged from being fused, infused, coordinate,

subordinate and tolerated, to supressed. For example Christianity, has over the course of ages

enjoyed the status of established or state religion to privileged religion, to a tolerated religion

along with others, and finally to that of forbidden or discriminated against religion.83

Considering the constitutional provision as guidelines, States according to Dhokhalia may be

grouped into the following categories:84

a. Formal and Functional Theocracy: under this category, are found states which have an

official religion, sometimes provided in their constitutional documents and where there exist

no dividing line between secular and religious prescriptions to all aspects of life. In such

states there is hardly the provision of the right to exercise a contrary religion. This kind of

states are characterised in the carrying out of religious rites by the state, recognition of the

82. Ibid.

83.

Article 44(1) of Eire‟s Constitution 1937, (now abrogated), provides for special position of the Holy

Catholic Apostolic and Roman Church as the guardian of the Faith professed by the majority of

citizens. In England, the Protestant Church is the Official Church of England. 84.

Dhokhalia, R.P. “The Human Right to Religious Freedom: Problems of Definition and Effective

Enjoyment.” The Calabar Law Journal 1, no. 1 (1986): 91. He here identifies six state-religion model

adopted in this work.

32

head of state as the protector of the religion as well as the allocation of state offices

exclusively to holders of religious positions. Saudi Arabia provides an example of this kind

of state, where Islam is adopted as state religion and the state acts as the protector of the

Islamic creed, carries out its Sharia and undertakes its duty towards the Islamic call.85

b. Formally Theocratic but Functionally Secular: these states formally recognise a state

religion, or even reserve the office of the head of state for the adherents of the recognised

religion. But in practise, they guarantee freedom of religion to the followers of other faith or

denominations and do not discriminate between the followers of different religions in public

affairs. England provides a good example of this type of state where the Crown is the

supreme head and patron of the clergy,86

where Christian doctrine has seized to be the basis

for laws and every person has the freedom of conscience and profession of his own religion.87

c. Formally Secular but Functionally Theocratic: In these states, there is no provision for an

official state religion, but owing to historical reasons, ties with certain religious organisations

have continued to be maintained. Though these states permit religious freedom and impose

no handicaps on the basis of religion, religious organisations mount influence and assert

traditional personal laws based on religious doctrines. They control educational institution

and in some other places, political parties, as well as operating as pressure groups for the

allotment of seats in legislatures and cabinet. An example is to be found in India in which

even with its secular stance, religion continues to determine which personal law applies

person.

85.

Article 23 the Basic System (of Government) Decree A/90 28-8-1412AH (1st March, 1992).

86. The English Act of Settlement 1700 provides that the Crown must swear to maintain the Churches of

England and Scotland, thereby disqualifying from succession Roman Catholics and those who marry

Roman Catholics.

87. Article 13 English Human Rights Act 1998 provides for the right of freedom of thought, conscience

and religion. The English Dissenters‟ Relief Act 1779, relieved dissenters from subscribing to the

Thirty-Nine Articles of the Doctrines of the Church of England.

33

d. Formally as well as Functionally Secular: under this type of state-religion model, there is

a separation of law from religion such that one is completely disassociated from the other.

Here, there is an entrenched entitlement to religious freedom and a ban on religious

qualification for ascension to a public office. The United States of American provides a good

example of this kind of state where, as a result of the First Amendment to its Constitution, the

state is not to adopt or participate in establishing any religion and not to prevent the free

exercise of religious liberty. The attitude of the US Supreme Court on the type of neutrality

required by the provision of the First Amendment has been that of „benevolent neutrality.‟88

e. Egalitarian and Protective Secularism: this type of state has no established religion, and

in some cases, the constitution prohibits the adoption of a state religion. However, the state is

neither neutral nor hostile to religion, but offers protection and aid to all religions on the basis

of equality and on its policy that religion embodies the moral, as well as other higher noble

values of life to be cultivated by the people individually and collectively.89

Nigeria provides a

good example of this kind of state where it is constitutionally prohibited from adopting a state

religion.90

It stays clear of the two extremes of adopting theism or atheism91

and its

secularism enables it to be committed to tolerance of all religions in line with the

constitutional mandate to guarantee freedom of religion.92

The prohibition against adopting a

state religion has been interpreted limitedly by government to only apply to a formal

declaration by a federal or state government of the direct enthronement of a religion, thereby

88. Per Burger CJ in Walz v. Tax Commission 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)

89. Dhokhalia, “Human Right,” 114.

90. S.10 Constitution of Federal Republic of Nigeria 1999 (as amended).

91. Dhokhalia, “Human Right,” 115.

92. S.40 CFRN1999

34

permitting the state to sponsor religious pilgrimages as well as set aside funds for the building

of places of worship and schools for religious organisations.93

f. Ideologically Indoctrinated Mobilizing State:94

under this state, laws are the instrument for

the realisation of ideological goals. This type of state is hostile to religion and so patronises

anti religion propaganda. It denounces the religious faith and institutions as altogether

unrealistic in a rational planning of social institutions. Fascist and communist states are

examples of this category as they aim toward total mobilization of all resources, human and

material, subordinating the considerations of conscience and individuals rights in favour of

the larger and higher ideological goal. The former U.S.S.R., provides a good example of this

kind of state where even with the Helsinki Accord and the guarantee of religious freedom,

reference were been made to the Soviet Code on Marriage and the Family particularly Article

52 of the Code as being used for the sinister purpose of depriving religious parents of their

children.95

From the above, it is clear that states all over the world fall within the ambit of one or more

of this classification. For instance, Nigeria which Dhokhalia grouped as Egalitarian and

protective secular exhibits characteristic of a formally secular but functionally theocratic

state, shown in the privileges it has accorded over the years to two religious groups- Islam

and Christianity, and its excessive entanglement with aiding them despite the presence of

other religious groups and the secular stance of the Constitution.

93. The national mosque as well as the national ecumenical centre in Abuja, was sponsored by funds

disbursed from the Federation account.

94. Dhokhalia does not group this model of state with other states as part of the of the state-religion model,

maybe because religion has no place in such society, and so not a model.

95. Article 52 provides that; „parents shall educate their children in the spirit of the moral code of the

builders of communism.‟

35

The models above also show that state relationship falls within the a spectrum as identified

above. For instance, the secularisation process which started in the 16th

and 17th

century96

has

not been carried through in all European countries with the same pace and strictness.97

We

see in Europe a huge variety of relationships between state and religion. Many countries still

have an established church. Greece, Denmark and Norway may serve as examples. In

England, the Queen is the highest official in the Anglican Church and she appoints Anglican

bishops, on nomination by the Prime Minister. The Italian Constitution separates church and

state by giving a special status to the Catholic Church: the state and the Catholic Church are

each within their ambit independent and sovereign. In Germany, the situation is different.

While the Constitution itself states that there is no established church, the preamble of the

Constitution opens with a reference to the responsibility of the German people to God (and

men).98

This reference is interpreted as recognition of the importance of freedom of religion.

As can be seen from above, there is not a single standard as far as the relationship between

state and religion is concerned. All that can be added is that whatever the model adopted has

great implication for the equal exercise of the freedom of religion.

2.5 COMPARATIVE ANALYSIS OF SECULAR CONSTITUTIONS

96. The Treaty of Augsburg, 1555, one of the earliest treaties on religious freedom, sought to ensure

equality between Catholics and Protestants and to promote living quietly and peacefully together. Also

is the Treaty of Westphalia1648, which permitted citizen to practise religions other than those of their

rulers.

97. Aernout Nieuwenhuis “European Court of Human Rights State and Religion, Schools and Scarves, An

Analysis of the Margin of Appreciation as Used in the Case of Leyla Sahin v. Turkey, Decision of 29

June 2004 Application Number 44774/98,” in European Constitutional Law Review, 1: (2005) 495

-510.

Available at http://internationalhumanrightslaw.net/wp-content/uploads/2011/01/ European

-Court-of-Human-Rights-State-and-Religion-Schools-and-Scarves-An-Analysis-of-the-Margin-of

-Appreciation-as-Used-in-the-Case-of-Leyla-Sahi-v-

Turkey.pdf&sa=U&ved=0CAgQFjAAahUKEwigy7HihYrIAhVLXBQKHbX4AZo&usg=AFQjCNH

H8CK6TCHoHiLKmY8TQUKp94DHhg

98. Preamble to the Basic Law for the Federal Republic of Germany 1949

36

Secularism as a global phenomenon, has taken different shapes in societies in the political

and legal scheme implemented by states as part of their policy to manage and control

religion. Indeed it is important to note that, although secularization seems to have touched in

one way or the other every corner of the world, the way it has been received and implemented

as a state policy, has been largely influenced by specific historical and political experience of

countries.99

Some countries becoming secular upon their creation, others, upon its adoption.

2.5.1 UNITED STATES OF AMERICA

After the American Revolution, there was a separation church and state in the national

government through the First Amendment, but leaving the possibility of establishment to the

states which has since been extended to states in the case of Everson v. Board of

Education100

. In the original Constitution, religion was only mentioned once101

in Article VI

which requires that „no religious test shall ever be required as a qualification to any office or

public trust under the United States.‟ Protection of religious freedom was embodied in the

First Amendment prohibition that, „Congress shall make no law respecting an establishment

of religion or prohibiting the free exercise thereof...‟

The prohibitions surrounding the First Amendment are phrased in an absolute terms but

experience has shown that they are seldom enforced as such. The tension surrounding the

realization of First Amendment guarantees is particularly acute for the amendment contains

two distinct prohibitions which often appear to directly contradict another. Both the

Establishment and the Free Exercise Clause were intended to provide the greatest latitude in

99. Using Rights to Re-invent Secularism in France and Turkey Amelie Barras

100. 330 U.S. 1, 67 S.Ct. 504 (1947)

101. H.W. Chase and C.R. Ducat Constitutional Interpretation 2

nd edition (US: West Publishing Co., 1979)

37

religious freedom. Yet a governmental policy which is helpful to one man in the exercise of

the exercise of his religious belief is the actualization of the establishment prohibition to one

person is, for another individual, the impairment of a right to worship.

2.5.1.1 The Establishment of Religion

The First Amendment forbids the establishment of religion. But, what constitutes the

establishment of religion? Historically, the Establishment clause has received two different

views as to its interpretation.102

One view of this prohibition holds that the word

“establishment” should be interpreted narrowly to mean that it prohibits the kind of

establishment which existed in Europe prior to the American Revolution. For them, Congress

is prohibited from instituting an official, publicly supported church, something comparable to

the Church of England.

A second view which has consistently been espoused by the Supreme Court, demands that, in

the words of Justice Black, „a wall of separation between church and state.‟103

For this view,

government is barred from supporting or becoming involved with religion in any manner.

Yet, decisions in some cases appear contradictory as government have sometimes done things

in aid of religion. For example, in Walz v. Tax Commission,104

the petitioner challenged the

constitutionality of property tax exemption given to religious institutions. The court while

upholding the constitutionality of this exemption held that the constitutional relationship

between church and state was that of „benevolent neutrality.‟105

102. Harold W. Chase and Craig R. Ducat, Constitutional Interpretation, 2

nd ed.,

(US: West publishing Co., 1979), 1383

103. Everson v. Board of Education 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed 711 (1947)

104. 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)

105. Per Chief Justice Burger

38

Decisions under the Establishment clause have been mainly based on public financial aid to

church related institutions and religious practises in public schools. A few of these would

illustrate:

In Everson v. Board of Education,106

the statute at issue contained a very controversial

provision permitting school boards to reimburse parents of both public and parochial school

students for transportation cost incurred to and from school on the public transportation

system. Everson contended that the reimbursement to schools owned by religious

organisations was the establishment of religion. The Supreme Court, while interpreting the

Establishment clause to apply to both the federal and state government, prohibiting them

from openly or secretly participating in the affairs of any religious organisation or group and

vice versa, held that the statute in question was saved because it provided benefits to the

pupils and not the school. In this way, the court regarded the statute as a general public

welfare legislation, thus to deny parents of students in parochial schools such reimbursement,

was tantamount to denying them welfare benefit on the basis of religious faith- an act which

would have clergy led to a breach of the free exercise clause.

In McCollum v. Board of Education,107

the court held that a Champaign, Illinois public

school released time program violated the establishment clause. In that case privately

employed teachers held weekly classes, on public school premises, in their respective religion

for student whose parents signed request cards, while non-attending students pursued secular

studies in other parts of the building. Black J. opined, „Here, not only are the state‟s tax

supported public school building used for the dissemination of religious doctrine. The state

106. 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed 71 (1947)

107. 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed 649

39

also affords sectarian groups an invaluable aid in that it helps to provide pupils for their

religious classes through the use of state‟s compulsory school machinery.‟108

In a bid to present a test for neutrality in the establishment of religion, the Supreme Court, in

Lemon v. Kurtzman,109

designed a three pronged test: (1) whether the program has a secular

purpose, (2) if the primary effect is neither to advance nor inhibit religion (3) whether the

programme fosters an excessive government entanglement with religion. Where the program

failed the test above, it was struck down. Thus, in Lee v. Weisman,110

the Supreme Court

found an establishment clause violation in a clergy-led non-sectarian prayer in a public

school setting. This programme clearly did not have a secular purpose. Similarly, in Board of

Education of Kiryas Joel Village School District v. Grumet,111

a state law creating a separate

school district on behalf of a village with only one religious sect was held to be in violation of

the neutrality expected under the Establishment clause. However, in Zobrest v. Catalina Hills

School District,112

a state program which provided a sign language interpreter for a deaf

student attending a religiously affiliated school was held to be religiously neutral.

2.5.1.2 The Free Exercise of Religious Belief

In what appears to be equally absolute terms, the First Amendment also prohibits government

from limiting the free exercise of religious belief. As we have already seen from the cases on

establishment, there is an inevitable clash between the interest protected by that clause and

108. In Zorah v. Clauson, 343 U.S., 306, 72 S.Ct. 679,96 L.Ed. 954 (1952), a case with similar facts, the

court held that there was no establishment because the religious instruction were held at church

buildings. „The program involves neither religious instruction in public school classrooms nor the

expenditure of public funds. All cost including the application blanks are paid by the religious

organisation...therefore unlike McCollum.‟ Per Douglas J

109. 403 U.S. 602 (1971)

110. 505 U.S. 577 (1992) (opinion, Kennedy, J)

111. 512 U.S. 687 (1994) (opinion, Souter, J)

112. 509 U.S. 1 (1993) (opinion, Rehnquist, CJ)

40

those subsumed under this. The problems raised in attempting to guarantee the free exercise

of religious belief, however transcend the observation that they bear an awkward relationship

to the solution of establishment problems. Equally as significant as the conflict between the

two religion clauses, is the collision between the free exercise clause and the concept of equal

obligation under law. In sum, the vindication of conscience, as an exemption from duties

which all owe under the law, may create a specially-privileged group.113

The most common problem of whether there has been a denial of free exercise of religion

arises when a government regulation whose purpose is secular, either makes illegal, or

otherwise burdens conduct that is dictated by some religious belief, or requires or otherwise

encourages conduct that is forbidden by some religious belief. This is exemplified in

Reynolds v. United States;114

the court upheld a federal law making polygamy illegal to a

Mormon whose religious duty was to practise polygamy: “Congress was deprived of all

legislative power over mere opinion, but was left free to reach actions which were in

violation of social duties or subversive of good order.” In Cantwell v. Connecticut,115

the

Supreme Court reemphasised the distinction between religious opinion or belief, on the one

hand, and action taken because of religion, on the other.

The constitution forestalls compulsion by the law of the acceptance of any creed or the

practise of any form of worship. Freedom of conscience and freedom to adhere to such

113. In Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), the interpretation of

s.6(j) of the Universal Military Training and Service Act, which exempted from combat any person

“who, by reason of religious training and belief, is conscientiously opposed to participation in war in

any form.” The question to be desired was whether persons objecting on personal philosophical

grounds other than religion were covered by this exemption. It was held that the exclusion of those

persons with essentially political, sociological or philosophical views or a merely personal moral code

should not be read to exclude those who hold strong belief about the domestic and foreign affairs or

even those whose conscientious objection to participation in all wars is founded to a substantial

extent upon considerations of public policy.

114. 98 U.S. 145, 25 L.Ed 244 (1879)

115. 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed 1213 (1940)

41

religious organisation or form of worship as the individual may choose cannot be restricted

by law. Free exercise embraces two concepts, -freedom to believe and freedom to act. The

first is absolute but, in the nature of things, the second cannot be.116

However in some cases the courts have invalidated application of state law to conduct

undertaken pursuant to religious beliefs. Thus in West Virginia State Board of Education v.

Barnette,117

the Supreme Court held that children of the Seventh - day Adventist whose

religion forbade them to salute the flag and recite the pledge of allegiance could not be

required by state law to engage in these activities in public schools violated the first

amendment. Similarly in Wisconsin v. Yoder,118

it was held that the Amish, members of a

religious sect, should be relieved of compulsory public education for their children after the

eighth grade, so that they could be able to fulfil the requirement of their religion to learn

skills in their community through working.

2.5.2 FRANCE

Article 1 0f 1958 constitution of France provides;

France is an indivisible secular, democratic and social republic. It assures the equality of all

citizens before the law, without distinction of origin, race or religion. It respects all beliefs.

France has in clear terms shown itself to be a secular democracy. French secularism is

represented in the term laicite. Laicite appeared quite late in the French language.119

And

116. Ibid, per Owen Robert J

117. 319 U.S. 624, 63 S.Ct 1178, 87 L.Ed 1628 (1943)

118. 406 U.S. 205 (1972)

119. Amelie Barras, “Using Rights to Reinvent Secularism in France and Turkey,” EUI Working Papers

RSCAS 2008/20

42

since it has never been clearly defined, it has become one of those terms like democracy that

is easily invested with a multitude of meanings. Laicite means a clear acknowledgement of

the lack of competence in the religious domain by the public authorities, exactly as a civil

court declares itself not competent under penal law.120

The Council d‟Etat121

(the highest judicial organ France) sees the law of 1905 as central in

defining and providing a legal framework to them. This law, often referred to as the Law of

Separation, regulates the status of religion in France by preventing the state from subsidizing

or extending special recognition to any religion.122

Laicite implies the neutrality of the state

with regard to religion, which should not favour or discriminate against any type of religion.

In short, this neutrality is a form of public order that should allow for religious pluralism to

flourish in the republic. The practises of this neutrality requires that state representatives are

not to represent publicly any religion, for instance by wearing visible religious symbols, or

engage in proselytizing activities.

French commitment to secularism and relegation of religion can best be understood only

through reference to history. The concept of laicite is traced to the French revolution. The

lengthy process of freeing government from the grasp of the Catholic Church was a catalyst

for the commitment to the disestablishment of the church and to the enshrinement of

neutrality in the law. The Law of Separation of 1905 expressly recognised state neutrality by

asserting that „the State neither recognises nor subsidises any religion.‟123

Thus, religious

120. Raphael Liogier “Laicite on the Edge in France: Between the Theory of Church-state Separation and

the Praxis of State-church Confusion” Macquarie Law Journal (2009) 9. 25-46

121. The Conseil d‟État is in charge of determining who and what are eligible for the status of an

association for religious activities („association cultuelle‟) and who and what is not.

122. Merhi, “Unveiling the Basis of Human Rights.”

123. Article 2, Law of Separation 1905

43

organisations operate as private entities recognised by private law, without any financial

support of the state and without public function.

Laborde124

identifies three stands of laicite to be neutrality, autonomy and community. On

neutrality, Laborde says that the 1905 law is largely forbids all form of government

assistance to any religion. The principle of neutrality is seen as the only way for the state to

treat all citizens equally, and to deny the privileges once held by members of the Catholic

Church. It is thought that by making the state neutral as to competing conceptions of the good

life, by privatising religious matters, inclusiveness in society would be guaranteed. Laicite on

the score of autonomy is deeply intertwined with the process of disestablishing religion as a

dominant force in society, and emancipating the citizen from religious dogma. It is thought

that only through the promotion of autonomy by education could the citizen adequately

become enlightened, hence the crucial autonomy promoting function of state education.

Laicite in its final component with Laborde calls community serves to foster a civic sense of

loyalty to a particular historical community.‟125

A new civic bond, national French identity

was to be formed. It was thought that if a secularised national identity came into existence

then the function of religion in the public sphere would be diminished and fully relegated to

the private. Under this conception the public domain was to be transformed into a

homogenous and autonomous area which transcended particular loyalties, identities and

groups to as to avoid the conflict associated with public pluralism.

As a result of the strict secularization of the society, education became the primary tool by

which to inculcate the values of secularism and civic identity into society. The preamble of

the Constitution of 1958 stipulates that the government takes care of education with a secular

character. Furthermore, a strict secular starting point forbids the funding of schools with a

124. C. Laborde, “On Republican Toleration” (2002) 9(2) Constellations 167.

125. Ibid.

44

religious character. This strict regime was somewhat mitigated by the Loi Debré in 1959

which provided that schools with a religious character now can get government funds when

meeting certain conditions. However, teachers in state schools have to keep from wearing all

distinguishing marks of a philosophical, religious or political nature. Such a ban actually

holds for all civil servants, but is maintained more strictly for state schoolteachers, because

they are more or less considered to be representatives of the secular state.

It is not therefore surprising that in March 2004, the French senate gave the approval for a

Act prohibiting the wearing of conspicuous religious symbols in public schools (it does not

ban the wearing of those items in universities, or in private schools)126

however recent

attempts have since 2010 to extend such ban to other public areas.127

2.5.3 TURKEY

The Turkish Republic was established as a secular state by Ataturk in 1923. Its attachment to

secularism stated in the Preamble is reiterated in Article 2 of Turkey‟s current constitution:128

126. Law no. 2004- 228 of March 2004. It implements one of the recommendations of a special commission

on religion in France appointed by the government and headed by Bernard Stasi, a former member of

the European Parliament. This law has received condemnation from any quarters. See Anneliese

Blackwood “The Privatisation of Religion.”

127. Anthony Gray “Religious Freedom and Section 116 of the Australian Constitution: Would a Banning

of the Hijab or Burqa Be Constitutionally Valid?” available at

http://www.google.nl/url?q=http://forumonpublicpolicy.com/vol2011.no2/archivevol2011.no2/gray.

pdf&sa=U&ved=0CAgQFjAAahUKEwjW5pubkIrIAhUB7xQKHZmMDsA&usg=AFQjCNHPWuao

4WcfVAzUZqN_XCO8M4wHBQ

128. 1982 Constitution. As a product of military rule, it was characterised by severe restrictions on the

fundamental rights and freedom, less trust in national will, and a strengthened presidency and `

national security council. Although largely criticised, the Grand Assembly of Turkey did not attempt

to replace it by a totally new constitution. Instead, it was subjected to several minor rather than

comprehensive amendments starting from the opening of democratic politics in turkey since 1987. See

Omer F.G. “Politics of Constitutional Amendment in Turkey, 1987-2002 in Constitutions of the

Countries of the World edited by Gisbert H. Flanz, (New York: Oceana publications Inc. 2003).

45

In the determination that no activity can be protected contrary to Turkish national interests,

the principle of the indivisibility of the existence of Turkey with its state and territory,

Turkish historical and moral values or the nationalism, principles, reforms and modernization

of Ataturk and that as required by the principle of laicism, sacred religious feelings can in no

way be permitted to interfere with state affairs and politics.129

The Republic of Turkey is a democratic, secular and social state based on the rule of law,

respectful of human rights in a spirit of social peace, national solidarity and justice, adhering

to nationalism of Ataturk and resting on the fundamental principles set out in the Preamble.130

The creation of this new secular republic came with other reforms to separate the public and

religious sphere. Worthy of such reforms include the abolishment of the Caliphate in 1923,

the retraction in the constitution of the provision declaring Islam a state religion, the closing

of religious courts, and the banning of the traditional Turkish Fez131

for men. All this moves

were inspired by the evolution of the nature of society in the nineteenth century and sought

first and foremost to create a religion free zone in which all citizens were guaranteed equality

without distinction on the grounds of religion or denomination.

The constitution also guarantees the right to freedom of religion. Article 24 It provides:

Everyone has the freedom of conscience, religious belief and conviction. Acts of worship,

religious rites and ceremonies shall be conducted freely, as long as they do not violate the

provisions of Article 14. No one shall be compelled to worship, or to participate in religious

rites and ceremonies, or to reveal religious beliefs and convictions, or be blamed or accused

because of his religious beliefs and convictions.

129. Sixth paragraph preamble

130. Article 2

131. A cylindrical hat made of red felt with a tassel attached to the top. It remains illegal to wear this item of

clothing in Turkey as part of its dressing regulations.

46

Religious and moral education and instruction shall be conducted under state supervision and

control. Instruction in religious culture and morals shall be one of the compulsory lessons in

the curricula of primary and secondary schools. Other religious education and instruction

shall be subject to the individual‟s own desire, and in the case of minors, to the request of

their legal representatives.

No one shall be allowed to exploit or abuse religion or religious feelings, or things held

sacred by religion, in any manner whatsoever, for the purpose of personal or political interest

or influence, or for even partially basing the fundamental, social, economic, political, and

legal order of the State on religious tenets.

In Turkey, the Constitutional Court has maintained that, within a secular state, religious

feeling simply cannot be associated with politics, public affairs and legislative provisions.

Those are not matters to which religious requirement and thought apply. Thus, the neutral

state is prevented

From manifesting a preference for a particular religion or belief and constituted the

foundation of the freedom of conscience and equality between citizens before the law.

Intervention by the state to preserve the secular nature of the political regime had to be

considered in a democratic society.132

Also, recognising the importance of education in building minds of the young, public

authorities have strived to preserve this state neutrality as well as prevent discrimination in

public schools by making regulations banning the wearing of religious items within the

school environment. An example is found in the case of Leyla Sahin v. Turkey.133

In that

132. Refah Partisi (The Welfare Party) & ors v. Turkey, App no 41344/98, judgement of 13 February 2003

paragraph 25

133. Decision of 29 June 2004, Application Number 44774/98.

47

case, the applicant, enrolled at the University of Istanbul and on 23rd

February 1998, the

Vice-Chancellor issued a circular with the following stipulation:

By virtue of the Constitution, the law and regulations, and in accordance with the

Case-law of the Supreme Administrative Court and the European Commission of

Human Rights and the resolutions adopted by the University Administrative

Boards, students whose „heads are covered‟ (wearing the Islamic headscarf) and

Students (including overseas students) with beards must not be admitted to lectures, courses

or tutorials.

Thereafter the applicant, who refused to take off her scarf, was denied access to written

examinations and lectures. She started a procedure to have set aside the circular of February

1998. The Istanbul Administrative Court dismissed her application and the Supreme

Administrative Court her appeal. The case then came before the European Court of Human

Rights. The Court therefore had to consider whether the interference was „prescribed by law‟,

pursued a legitimate aim and was „necessary in a democratic society‟ within the meaning of

Article 9(2) of the European Convention on Human Right.

The law was „accessible and sufficiently precise in its terms to satisfy the requirement of

foreseeability‟. From 23 February 1998 onward, it could have been clear to the applicant that

she was liable to be refused access to lectures if she continued to wear the headscarf.134

Having regard to the circumstances of the case and the terms of the domestic courts‟

134. Ibid, paragraph 81.

48

decisions, the Court found that the impugned measure primarily pursued the legitimate aims

of protecting the rights and freedoms of others and of protecting public order.135

To assess the necessity of the interference, the Court started with some general considerations

concerning the possibility of restrictions of freedom of religion in a pluralist society:

The Court notes that, in the decisions of Karaduman v. Turkey (no. 16278/90, Commission

decision of 3 May 1993, DR 74, p. 93) and Dahlab v. Switzerland (no. 42393/98, ECHR

2001-V), the Convention institutions found that in a democratic society the State was entitled

to place restrictions on the wearing of the Islamic headscarf if it was incompatible with the

pursued aim of protecting the rights and freedoms of others, public order and public safety. In

the Dahlab case cited above, in which the applicant was a schoolteacher in charge of a class

of small children, it stressed among other matters the impact that the „powerful external

symbol‟ conveyed by her wearing a headscarf could have and questioned whether it might

have some kind of proselytising effect...136

The Court noted that the interference was based on two principles which reinforce and

complement each other: secularism and equality.137

Finally, the Court unanimously held that

there has been no violation of Article 9 of the Convention.

2.5.4 INDIA

India is a multi-religious state, with the belief that religion supplies morality which society

should imbibe. It has not been truly neutral toward religious matters as is seen in the inability

to develop a single civil code138

to apply to everyone and not personal religious laws.

135. Ibid, paragraph 84.

136. Ibid paragraph 98

137. Ibid paragraph 104

49

The constitution provides:

We the people of India, having solemnly resolved to constitute India into a [Sovereign

Socialist Secular Democratic Republic] and to secure to all its citizens; justice, social,

economic and political; liberty of thought, expression, belief, faith and worship; equality of

status and of opportunity; and to promote among them all fraternity assuring the dignity of

the individual and the [unity and integrity of the Nation].139

There also is the protection of the right to freedom of religion in the constitution. This is

embodied in Article 25 which provides that;

(1) Subject to public order, morality and health and to the other provisions of this Part, all

persons are equally entitled to freedom of conscience and the right freely to profess, practise

and propagate religion.

It is important to note that this provision even before defining the right goes on to identify

grounds for its limitation. The ambit of this protection was raised in Emmanuel Bijoe v. State

of Kerala140

the issue of right to freedom of conscience and freely to practise and propagate

religion- national anthem- children standing up respectfully but not joining in singing because

of their religious faith – whether expulsion from school for not joining in singing violative of

the fundamental right. The Supreme Court has held that:

There is no provision of law which obliges anyone to sing the National Anthem nor is it

disrespectful to the National Anthem if a person who stands up respectfully when the

National Anthem is sung does not join the singing. It is true that Article 51-A (a) of the

138. Article 44 of the Indian constitution provides that; „The state shall endeavour to secure for the citizens

a uniform civil code throughout the territory of India.‟

139. The bracketed words have been substituted by the Constitution (Forty Second Amendment) Act, 1976,

section 2 for „Sovereign Democratic Republic‟ and „unity of the Nation.‟

140. AIR 1987 Supreme Court 748.

50

Constitution enjoins a duty on every citizen of India “to abide by the Constitution and

respect its ideals and institutions, the National Flag and the National Anthem.” Proper

respect is shown to the National Anthem by standing up when National Anthem is sung. It

will not be right to say that disrespect is shown by not joining in the singing.

Whenever the Fundamental right to freedom of conscience and to profess, practise and

propagate religion is invoked, the act complained of as offending the Fundamental right must

be examined to discover whether such act is to protect public order, morality and health,

whether it is to give effect to the other provisions of Part III of the Constitution or whether it

is authorised by a law made to regulate or restrict any economic, financial, political or secular

activity which may be associated religious practice or to provide for social welfare and

reform. It is the duty and function of the Court so to do. Here again as mentioned in

connection with Article 19(2) to (6), it must be a law having the force of a statute and not a

mere executive or a departmental instruction.

The two circulars on which the department has placed reliance in the present case have no

statutory basis and are mere departmental instructions. They cannot, therefore, form the

foundation of any action aimed at denying to citizens the Fundamental Rights under Article

19(1) (a). Further it is not possible to hold that the two circulars were issued “in the interest

of the sovereignty and integrity of India, the security of the state, friendly relations with

foreign States, public order, decency or morality, or in relation to contempt of Court,

defamation or incitement to an offence and if not so issued, they cannot again be invoked to

deny a citizen‟s Fundamental Right under Article 19 (1) (a). If the two circulars are to be

interpreted as to compel each and every pupil to join in the singing of the National Anthem

despite his genuine, conscientious religious objection, then such compulsion would clearly

contravene the rights guaranteed by Article 19 (1)(a) and Article 25 (1).

51

In the present case, the expulsion of the three children from the school for the reason that

because of their conscientiously held religious faith, they do not join in the singing of the

National Anthem in the morning assembly though they do stand-up when the Anthem is

sung, is a violation of their fundamental right to freedom of conscience and freely to profess,

practise and propagate religion.

2.5.5 Comment

As identified above in the state-religion model, states are at different levels secularisation;

however, secular states share some three traits by which they are identified. These are;

1. The prohibition of the adoption of a state religion;

2. The guarantee of freedom of religion;

3. The general provisions which aim at separation of the religion from the sphere of the

State (though in varying degrees) in acts like the prohibition of discrimination on

grounds of religion and imposition of religious test for qualifying to a public office.

What these countries intend by providing for a secular constitution, is to ensure equality and

respect of the citizen as a rational, intellectual being, little wonder the freedom of religion is

guaranteed alongside the freedom of conscience.141

Also, to ensure equality of exercise of the

right to freedom of religion, secular government have found it necessary on placing

restriction on the full realisation of the scope of the right. The reasons for this are to protect

the rights of others as well as promote national security. These limitations are as a result of

being in democratic society. This point was made by Owen J. in Cantwell v. Connecticut,142

141. Section 38(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

142. Supra, n57

52

when he said „Free exercise embraces two concepts, -freedom to believe and freedom to act.

The first is absolute but, in the nature of things, the second cannot be.‟

On other scores, some states share other similarities. It is noteworthy to indicate that there

exist close similarity between the French and Turkish secularism. The French Conseil d‟État

is in charge of determining who and what is eligible for the status of an association for

religious activities („association cultuelle‟) and who and what is not. Similar to this is the

Turkish state‟s open and public control of Islam through its State Directorate of Religious

Affairs under the supervision of the Prime minister, which is responsible for nominating

Imams and regulating Islamic education and training in schools.143

This, on comparative

analysis with other states, is at best odd as this supervision somehow questions government‟s

neutrality.144

They have also maintained their similarity in the area of creating a public sphere

free of religious symbols.

2.6 THE NIGERIAN STATE.

Nigeria as a state exists with pluralities, both ethnic and religious. Nigeria is indeed a multi-

religious country with religious groups like Christians, Muslims, African Traditional Religion

followers, Jehovah‟s Witness, Amorc (Rosicrucian Order), Grail Movement, amongst others.

From the models of state and religion, we have seen that where there exist two or three

dominant religions, forming nearly equal proportions of a state‟s population it has before it

either of the following choices: opting positively for secularism of giving no formal

recognition to any religion; or adopting an anti-religious posture; or making the divisive

143. Paragraph 4, Article 24 of Turkish Constitution, provides that; „Education and instruction in religion

and ethics are conducted under state supervision and control...‟

144. The supervision by the French and Turkish is stems from their historical experience with religious

groups and the problems of religious fundamentalism presently plaguing both countries.

53

choice of one religion over another as an official religion. The Nigerian Constitution has

chosen the first option and without mincing words prohibits the federal and state government

from adopting any religion. It provides that „the government of the Federation or of a state

shall not adopt any religion as state religion.‟145

In an effort to deepen religious tolerance, the constitution guarantees religious freedom in the

following manner;

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.146

To accommodate more successfully the freedom of religion, the constitution also guarantees

the positive freedom of manifesting, transmitting to others and acting upon ones beliefs and

the protection from being coerced in religious matters. It provides;

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.147

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.148

145. Section 10 CFRN 1999 (as amended).

146. S. 38(1) CFRN 1999

147. Ibid, S. 38(2)

54

All this goes to show how committed the Constitution is in avoiding religious domination and

its desire to foster religion in a positive way. However, these seeming absolute guarantees of

the manifestation of religious freedom are not without limitations imposed lawfully in the

interest of public safety, defence, order, health and morality as well as to protect the rights

and freedom of other persons.149

Also, the freedom of conscience and religion does not

include the freedom to form or take part in the activities of secret cults.150

Compared with the negative limitations in the US Constitution, that guard against an

establishment or government interference with religious liberty, Nigeria via the subsections

above151

places restraints that appear to favour religious choice. The first prevents an

education system from impacting unwanted religious instruction, while the second subsection

prohibits education systems from preventing the provision of religious instruction for pupils

of that community or denomination in any place of education maintained wholly by that

community or denomination. The freedom to receive religious instruction of one‟s choice

was tested in Adamu v. Attorney General, Borno State.152

In that case, the appellant, a

Christian, had two children who were attending primary school at Gwoza Local Government

Area of Borno State alongside other Muslim pupils. He claimed that he was paying for the

teaching of the religious instruction of his children, while the local government paid for the

instruction of the Muslim pupils. He further pleaded that despite the payments made, his

children were still being taught Islamic religion and Arabic language against their wishes.

148.

Ibid, S. 38(3)

149. Ibid, S. 45

150. Ibid, S. 38(4). See S. 318 (1) CFRN for the definition of secret cult

151. Section 38(2) and (3) 1999 constitution

152. [1996]8 NWLR (pt. 465) 203

55

The respondent had countered that the scope of the right of freedom of religion touching on

religious education, was provided for under Section 18 of the 1979 Constitution and not

justiciable being contained under chapter II of the same constitution. The appellant failed at

the High court. On appeal, the trial court‟s decision was reversed and while remitting the case

back to the High court for retrial, Oguntade JCA, opined that;

Religion as a subject falls within the objective policy and directive principles of state policy

not justiciable per se under chapter II of the constitution. However the teaching of religious

knowledge which carries with its practise and worship can give rise to certain fundamental

rights enforceable by virtue of section 42 chapter IV of the constitution.153

It must be pointed out that the guarantee of religious education in public schools, though for

the purpose of instilling morals, raises enforcement challenges. This Section 38 (2) guarantee

is different from the American system where, a religious society is prohibited from using a

public place of education for religious education.154

Presently, only religious instruction in

Islam and Christianity are given in schools, and written in inter school and university

entrance examinations. Enforcing an equal right to religious education in the particular belief

of the student at the public school system would prove a daunting task in multi-religious

Nigeria. What then happens when a student (for example, an adherent of the Grail

Movement) demands the right provided here, to be instructed in his own religion? This

provision unnecessarily entangles the state in the religious matters.155

This section should be

altered to leave religious education in the domain of the religious groups to educate their

153. Ibid. 225

154. McCollum v. Board of Education 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948)

155. Gordon A. Christenson, “Core Freedoms in Nigeria and U.S. Constitution A Study in

Difference,” African Journal of International and Comparative Law 3, pt.2 (1991) 321

56

adherents. Education for the purpose instilling of morals can be done without concentrating

on a particular religions view and its doctrines.

The commitment to protecting the rights of citizens to peaceful enjoyment of their freedom of

religion is shown in the criminal and Penal codes prohibition against the insult of religion,156

disturbing a lawfully assembled religious worship157

and injuring or defiling a place of

worship158

with varying degrees of custodian sentences for their contravention.

The position enounced by the Constitution particularly in Section 10 seems to be at variance

with government practices. Presently, government across the various tiers sponsor religious

activities mainly of Christian and Islamic organisations. Such acts have included the

sponsorship of religious pilgrimages, building centres for worship, declaration of public

holidays to mark days of religious celebrations, hosting interdenominational services and

prayers on celebrations like that of the Armed Forces Remembrance Day in churches and

mosques, amongst others.

Some have interpreted these acts of government as breaches of the constitution159

and have

hinged their argument on the privileged and albeit exalted positions to which Islam and

Christianity have been elevated to, receiving privileges and sponsorship from government

such as which are not made available to other religious groups. This raises questions of

equality which secularism seek to guarantee.

156. Section 204 Criminal Code Act, Section 210 Penal Code Act.

157. Section 206 CCA, section 212 Penal Code Act.

158. Section 211 Penal Code Act

159. Dominic Asada, “The Right to Religion in Nigeria,” Confluence Journal of Jurisprudence and

International Law 4, no.1 (2011): 12-25.

57

Others have advocated a limited interpretation of the provisions of Section 10 in the light of

the Sharia Courts recognised under Section 6 (5) of the Constitution.160

It must be said that

despite the religious undertones which Sharia courts bear, the Constitution recognises them as

merely local, native courts of the same status as the Customary Courts existing in the

southern part of the country. Therefore, their recognition is just for the purpose of keeping the

native customs of the people alive and not for the recognition of a religious group.

Niki-Tobi JSC has also attacked the secular purpose of Section 10 when he said161

There is a general notion that Section 11 (of the 1989 Constitution, now the equivalent of

Section 10 of the 1999 Constitution), makes Nigeria a secular nation. That is not correct. The

word secular etymologically means pertaining to things not spiritual, ecclesiastical or not

concerned with religion. Secularism, the noun variant of the adjective, secular, means the

belief that the state‟s morals, education etc., should be independent of religion. What Section

11 is out to achieve is that Nigeria cannot for example adopt either Christianity or Islam as a

State religion. But that is different from secularism.162

What Niki-Tobi (with due respect) forgets is that Nigeria‟s social order is founded on ideals

of freedom, equality and justice163

which are the foundation of secular democracies. Also, he

160. The common law which is applicable to everybody is clearly not detached from the religion of

Christianity; hence it is only in consonance with the multi-religious nature of the country that Sharia

law has to be allowed for those who profess the religion it seeks to governs, since the Constitution

guarantees freedom of religion. See Ajibola Adesumbo “Challenges to Religious Human Rights and

Jurisprudence In Nigeria”.

161. Niki-Tobi, “Law religion and Justice,” Fundamental Legal Issues in Nigeria, Essays in Honour of

Andrew Obaseki JSC (Rtd.) Wole Owaboye, ed. (1995) p. 135

162. ibid

58

didn‟t averted his mind to the fact that Nigeria is a multi-religious country where to maintain

peace and toleration, the government must be seen to be neutral towards religious groups.

Besides when one understands the status of the constitution as the supreme law of the land, as

well as its unique role in shaping the nation‟s image across generations, the only

interpretation that Section 10 can be given is that Nigeria is a secular state. Niki-Tobi‟s claim

is not sustainable on the ground that Nigeria by virtue of its constitutional provisions clearly

exhibits the three traits common to secular states; it has provided for the freedom of religion,

prohibited the adoption of a state religion and finally, its general provisions have been

directed at ensuring equality thereby preventing discrimination on grounds of religion. Niki-

Tobi interpretation of section 11, 1979 Constitution (now Section 10, 1999 Constitution)

seems to stem from what is actually done in practise by government which on proper

analysis, amounts to gross violation of the constitution.

In contravention of the Constitution, public policy on religion hasn‟t been directed toward the

freedom from discrimination. Religious affiliations are secretly but clearly considered for

public welfare initiatives. For instance government sponsors religious pilgrimages of

adherents of the Christian and Muslim faith whereas other religious groups do not receive the

same government funding. Also, Federal Character allocation of public offices have tended to

further deepen this discrimination as this seem always to falls on members of the Christian

and Islamic persuasion. What this does is to indirectly force members of other religious

groups to conform or, when they seek government welfare or a place in government to claim

affiliation with either one of the two „established‟ or „privileged‟ religions. The attitude of

government in recognising Islam and Christianity explain why despite the copious provisions

for the protection of places of worship both in the Criminal164

and Penal Code165

, places of

163.

Section 17 CFRN 1999 (as amended).

164. Sections 204-206 Criminal Code Act (operating in southern Nigeria)

59

worship of traditional religious groups have been destroyed and burnt down without

government arresting the culprits even where known.166

The attitude towards other religious groups is even made more evident when recognised

religions use derogatory words to describe adherents of other religions in their sermons, and

writings. Such words like sinners, unbelievers, infidels, are used to describe people who do

not accept their faith. This attitude does discriminates and show lack of tolerance which the

spirit of Section 10 seeks to foster.

CONCLUSION

As has been pointed out in this chapter, a secular conception of the society, serves to protect

the interest of all religious groups. This is seen from the effects of adoption of a state religion

in a multi-religious state. The state, as well as religion gain from this secular posture.

Separation prevents the state from diverting religious organisations and its tenets for another

purposes: separation unburdens religion. It has also been pointed out that between theocracy

and secularity, exists a spectrum in which states fall with each shade having an implication

for the freedom of religion.

It has also been pointed out that Nigeria is secular state by virtue of the provisions of Sections

10, 18, 38 of the1999 Constitution (as amended) having met the three requirements of secular

states; the prohibition of the adoption of a state religion; the guarantee of freedom of religion;

the general provisions which aim at separation of the religion from the sphere of the State.

165. Section 210 Penal Code Act (operating in Northern Nigeria)

166. Consider the case of Moremi Shrine, which was located at the palace of the Olofa in Kwara state which

was demolished by some fundamentalist. See M.O. ENE, “Raiders of Sacred Shrine,” available at

http://www.kwenu.com/moesmemo/raiders_shrine.htm (Feb. 18, 2002) (stating that, in 2000, Police

arrested six of the Muslim fundamentalists who destroyed the Moremi Shrine in Otta, the second

largest city of Kwara State”).

60

Therefore government practises at variance with this secular stance is a violation of the

constitution and one thing is clear, excessive government entanglement with a select religion

never augurs well in a multi-religious society.

61

CHAPTER THREE

3.0 CONCEPT OF RIGHTS

The consciousness of rights has grown over the last six decades such that demands have been

made of certain standards of care and treatment from government, be it in civil or criminal

proceedings167

or in the guarantee of everyday services. People have begun to demand

minimal standards as citizens of the state than they did in the past.168

The development of rights seems to have arisen from the recognition of man‟s basic needs

and it has continually grown to cover many ambits as time evolved. It has its history in the

search for human dignity, to liberate man form servitude in order to differentiate man from

beast owing to the unique rational qualities man. Thus rights have grown out of the natural

rights of people which in ancient times and centuries thereafter, are still being recognised.169

As entitlements that grew out of the inherent nature of man, their recognition can be found in

writings of philosophers of the Natural Law school of thought way back to the time of the

Ancient philosophers such as Plato, Socrates and Aristotle. Human rights experienced

increased growth during the Reformation which brought changes in the Roman Catholic

Church and the need to protect the freedom of religious belief. It was after this period that the

social theorist John Locke developed his social contract theory of government.170

However,

167.

See Article 14 International Covenant on Civil and Political Rights 1966; section 36 Constitution of the Federal Republic of Nigeria 1999 (as amended) for the right to fair hearing. 168.

Edwin Shorts and Claire de Than, Civil Liberties, Legal Principles of Individual Freedom (London: Sweets & Maxwell, 1998), 1.

169.

See Shorts, Civil Liberties, 2. In the pre-world war II era, there was only the recognition of Civil and Political right. However, recently, there is the recognition of Social, Economic and Cultural Rights. See International Covenant on Economic, Social and Cultural Rights, 1966.

62

the modern theory of constitutional human rights was formed after the Second World War.

Before the war, freedom of religion, freedom of life, freedom from want and freedom from

fear171

were the only essential freedoms recognised as discussions at that time focused on the

political rights and civil liberties. But with the war, questions regarding humanity and the

dignity and worth of the individual took a world focus; the United Nations was formed in

1945, with the intent of establishing an international commitment to peace and protecting

human rights on a global scale. One of the UN‟s first acts in this direction was the Universal

Declaration of Human Rights in 1948 which has been hailed as a “significant milestone”172

in

protecting human rights. The declaration while emphasising the inherent nature of human

rights stated in its preamble that;

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all

members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have

outraged the conscience of mankind, and the advent of a world in which human beings shall

enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as

the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to

rebellion against tyranny and oppression, that human rights should be protected by the rule of

law…,

170.

Locke imagined an actual social contract between individuals and the state at the setting up of civil society in which citizens, in other to secure the protection of their property, handed over certain power – most importantly, a monopoly of coercive force, to the government in return for the guarantee of certain rights to lives, liberties and estates. See Helen Fenwick, Civil Liberties and Human Rights 3rd ed., (London: Cavendish Publishing Inc., 2005), 6. 171.

See The Atlantic Charter, 1941 signed by Winston Churchill and Franklin D. Roosevelt. 172.

See P. van Dijk and G.J.H van Hoof, Theory and Practice of the European Convention on Human Right, 2nd ed., (Kluwer: Deventer, 1992).

63

Whereas the people of the United Nations have in the Charter173

reaffirmed their faith in the

fundamental human rights, in the dignity and worth of the human person and in the equal

rights of men and women and have determined to promote the social progress and standards

of life in larger freedom…,

Whereas a common understanding of these rights and freedom is of the greatest importance

for the full realisation of this pledge,

NOW THEREFORE THE GENERAL ASSEMBLY PROCLAIMS THIS UNIVERSAL

DECLARATION OF HUMAN RIGHTS.

This declaration though lacking legal force was the first concerted effort by nations to

guarantee the rights of persons. It has inspired the formulation of binding treaties on rights

between nations174

and the bills of rights of various countries.175

3.1 FUNDAMENTAL RIGHTS

Fundamental rights are a class of rights which the state seeks to protect by enshrining them in

the constitution. 176

These rights are thought essential to life and are contained in both

municipal and international instruments. Fundamental rights are said to be made up of civil

173. See Preamble, Charter of the United Nations, 1945.

174.

International Covenant on Civil and Political Rights 1966, African Charter on Human and People’s Right 1981, European Convention on Human Rights 1950, American Convention on Human Rights 1961.

175.

See the British Human Rights Act, 1998; Canadian Bill of Rights, 1960.

176. N.A. Inegbedion and J.O. Odion, Constitutional Law in Nigeria 2nd ed., (Benin City: Ambik Press,

2011) 245. According to them, fundamental rights are more appropriately called Civil and Political Rights.

64

liberties and human rights177

which are claimed by individuals as part of, and which relate to

the position of the individual in the state. These rights which are seen as inherent to man‟s

status as a human being, are often found in Constitutional documents, couched in negative

terms so as to give them an urgency for protection. The United Nations has on its part,

worked to establish the concept of an international protection for rights. In seeking to achieve

these goals, the United Nations has relied primarily on the treaties. The basic human rights

jurisdiction of the United Nations is set out in the U.N. Charter; its Preamble affirms „faith in

fundamental human rights, in the dignity and worth of the human person ...‟178

Green179

is of the opinion that the principle of the protection of fundamental rights is derived

from the concept of man as a person and his relationship with the society which cannot be

separated from universal human nature. The existence of human rights does not depend on

the will of the state; neither does it depend on its municipal laws nor on international treaty,

in which the express will of the State constitutes the essential element. What this means is

that states are not capable of creating human rights by law or by convention as in

international treaties. They can only confirm their existence and give them protection; hence

the role of the state is no more than declaratory.

Another product of the international community in the protection of rights is the International

Covenant on Civil and Political Rights, 1966. This covenant was adopted by the UN General

Assembly in 1966 and came into force in 1976.180

It provides for a vast range of civil and

177.

Steve Foster, Human Right and Civil Liberties (London: Pearson Education Ltd, 2003), 8. 178.

Preamble United Nations Charter See also Article 55 (c) which provides for universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex language, or religion. 179.

See L.C. Green, Law and Society (New York: Oceana Publications, Inc., 1975), 311. 180.

The covenant contains a list of civil and political rights similar to that of the European Convention.

65

political rights as well as a number of exceptions and restrictions on the rights. for example, a

power of derogation is contained in Article 4 of the covenant, and rights such as freedom of

religion in Article 18, freedom of expression in Article 19, are subject to restrictions which

are provided by law and are necessary for the preservation of the rights of others and national

security, public order, public health and public morals. Under this covenant, the Human

Rights Committee; a body which monitors the enforcement of the covenant, was created via

Article 28. The Human Rights Committee has the functions of; receiving and studying reports

submitted to it by state parties;181

receiving and considering communications made to it by a

State Party claiming that another State Party is not fulfilling its obligations under the

Covenant;182

and receiving communications from individuals claiming to be a victim of a

violation of his or her covenant rights by a state party.183

Africa has not been left in the efforts to guarantee a minimum standard of protection for its

people. There is the African Charter on Human and Peoples‟ Right184

which is at the core of

African human rights protection. This instrument shows the willingness of African states to

be bound by the obligations created under the Charter.185

The charter created the African

Commission on Human and Peoples‟ Rights,186

to monitor states compliance with the

181.

Article 40 ICCPR. 182.

Ibid, Article 41. 183.

Article 1 Optional Protocol to the Covenant. 184.

Adopted by the Organisation of African Unity (OAU) now African unity (AU) at Banjul, The Gambia on June 27th, 1981 and which came into force on October 21st, 1986. With Eritrea’s deposit of instrument of ratification on January 14, 1999, all member states of the African Union had ratified the African Charter on Human and Peoples’ Right. 185.

However, given the action of states in recent years, one would be tempted to question the commitment of states to translate the rights in the charter into tangibles as even the economic, social and cultural rights still receive less attention while violation of civil and political rights continue on a massive scale See Sheila B. Keetharuth, “Major African Legal Instrument,” in Human Rights in Africa: Legal Perspectives on their Protection and Promotion, edited by Anton Bosl and Joseph Diescho (Namibia: Macmillan Education, 2009),163.

66

Charter. However, given the dynamic nature of the rights, the African charter, provided that

...special protocols and agreements may, if necessary, supplement the provisions of the

present Charter.187

Based on this provision, many protocols have been signed, some of which

are the Protocol on the Establishment of an African Court on Human and Peoples‟ Rights,

1998 188

and the Protocol to the African Charter on Human and Peoples‟ Rights on the Rights

of Women in Africa, 2003189

Nigeria on its own part has ratified the African Charter.190

However, the ratification was not

the beginning of Fundamental human right codification and protection in Nigeria. All

constitutions since independence have contained bills of rights of similar phrasing, the first

being the 1960 Independence Constitution. The origin of these human right provisions can be

traced to the report of the Minorities Commission headed by Sir Henry Willink. The

commission; set up by the colonial government in 1957, was to investigate complaints by

minority ethnic groups that the majority groups at independence would dominate them. The

commission was asked to investigate these fears and if they were found to be genuine, how

they could be allayed. The commission recommended the entrenchment of fundamental rights

in the Independence constitution. It noted that;

Whilst provisions of this kind are difficult to enforce and sometimes difficult to interpret,

they should be inserted in the constitution because they define belief widespread among

186.

See Article 30, African Charter. 187.

Ibid, Article 66. 188.

It entered into force on January 25th, 2004. 189.

It entered into force on November 25th, 2005. 190.

African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, cap A9 LFN 2004.

67

democratic countries and provide a standard to which appeal may be made by those whose

rights have been infringed.191

Presently, fundamental human rights are codified in Part IV of the 1999 Constitution which

along with the African charter has served as basis for the protection of rights in Nigeria.192

This point has been taken judicial notice of in Fawehinmi v Abacha193

where the applicant

sought a declaration that his arrest and continued detention without charge by the agents of

the respondent constitutes a gross violation of his fundamental rights guaranteed under

section 31, 32 and 38 of the 1979 Constitution and article 5, 6 and 12 of the African Charter

on Human and Peoples‟ Rights (Ratification and Enforcement) Act, and sought for the

enforcement of his right. The respondent, at the hearing of the preliminary objection,

contended that the appellant was detained pursuant to a detention order made by the

Inspector-General of Police under the provision of the State Security (Detention of Persons)

Decree No. 22 0f 1984 (as amended) and consequently, the court has no jurisdiction to hear

the action in that its jurisdiction was ousted by the decree. The appellant replied that the

provisions of the decree were inferior and could not override the provisions of the African

Charter under which the appellant was seeking the reliefs. The Court of Appeal in allowing

his appeal held that;

The provisions of the African Charter on Human and Peoples Rights are in a class of their

own and do not fall within the classifications of the hierarchy of local laws in Nigeria…while

the decrees of the Federal Military government may over ride other municipal laws, they

191.

C. Obiagwu and C.A. Odinkalu “Nigeria: Combating Legacies of Colonialism and Militarism,” in Human Rights under African Constitutions edited by A.A. An-Na’im (Philadelphia: University Of Pennsylvania Press, 2003), 219.

192. See Fundamental Rights (Enforcement Procedure) Rules, 2009 Preamble paragraph 3.

193.

[1996] 9 NWLR (pt. 475 ) 710

68

cannot oust the jurisdiction of the court where properly called upon to do so in relation to

matters pertaining to human rights under the African Charter.194

3.2 RIGHTS AS CORRELATIVE OF DUTY

Wesley Hohfeld, an American jurist attempted to analyse the nature of “rights”. The term

“rights” according to him, tends to be used indiscriminately to cover a range of legal terms.

He sought therefore to show how claims of right in everyday language,195

can in fact be

broken down into four more specific claims; true right (claim), liberty, power and immunity.

In his analysis, a “right” in it strictest sense is to be defined by an advantage conferred on a

person or a group of persons by a rule of law which is enforceable against some other person

or group of persons upon whom some duty in respect of that right has been laid by that rule

of law. Thus a true right is defined in terms of duty correlative to it. This means a true right

must be enforceable.196

Since a true right imposes a duty on another, it can be said that duty

and rights are correlative terms. When a right is invaded, a duty is violated.197

„Liberty‟ on the other hand, presupposes the absence of a legal right or duty on the part of the

person enjoying the liberty. Liberty is the existence of no restraint from action or compulsion

to act one way or the other. Here, the person with the liberty is free to take an action in any

194. Ibid.

195. This mistake is also made in legal writings. See Black’s Law Dictionary 9th edition, ed. Bryan A.

Garner (New York: West Publishing Co., 2009), s.v. “right.” One of its definitions says a right is ‘a power, privilege, or immunity secured by law’. 196.

Adaramola Folorunsho. Jurisprudence, 4th ed. (Durban: Lexis Nexis, 2008), 144. 197.

M.D.A. Freeman, Lloyds Introduction to Jurisprudence 8th edition (London: Sweet & Maxwell, 2008), 569. See also Hawley Park Coal co. v. L. & N. W. Railway [1913] A. C. 11, 25. (per Viscount Haldane L. C. at 27: “there is an obligation of a lateral support on the neighbour, and in that sense there is a correlative right on the part of the owner of the first piece of land.”

69

direction or even not to act at all. Also, there is no duty on any person to aid the person with

the liberty to act.198

„Power‟ refers to ability, capacity in a person, to influence or alter his or another‟s legal

position, while „immunity‟ connotes being free from the control of another‟s power or

control. Immunity is therefore situations where one person has no legal control over another.

Hohfeld‟s explanation is a useful analytical tool. Its utilisation shows that rights are a series

of immunities,199

that is, areas of entitlements which even democratic governments are

incapable of interfering with. 200

In the application of Hohfeld‟s theory to rights protection, it

can be seen that it endows the ability to distinguish between the different forms of protection

offered towards different freedoms. It becomes clear from Hohfeld‟s analysis that most

freedoms are merely liberties; one did no wrong to exercise them, but there was no positive

duty on any organ of the state to allow or facilitate them. However, some rights clearly had

and have the quality of Hohfeldian claim rights in that they are protected by a positive

correlative duty.201

It must also be pointed out that Hohfeld‟s analysis exposes situations where a guaranteed

freedom could be made up of varying combinations of right, liberty, power and immunity.202

For example the complex right to acquire and own immovable property can be analysed as

follows;

198.

See Cole v. PC 443A [1936] 3 All ER 107; Paddignton v. Bates [1960] All ER 660. 199.

For example, the guarantee of right to private and family right prevents government control or interference with correspondence, telephone and telegraphic communications of private individuals. 200.

Helen Fenwick, Civil Liberties and Human Rights, 3rd ed., (London: Cavendish Publishing Inc., 2005), 14.

201.

Section 36 CFRN 1999 (as amended) guarantee of right to fair hearing. See also the right to freedom from discrimination in section 42. 202.

Adaramola, Jurisprudence 158.

70

a. Others shall not enter or injure the property [true right];

b. The owner may use, misuse or abuse the property [liberty];

c. The owner can alienate his interest in the property to another by legal means [power];

d. The owner, in relation to the property is not subject the control of those who have no

power over it [immunity].203

3.3 ABSOLUTE RIGHTS

International human rights204

law recognises that rights do not have equal weight. Some

rights are absolute, while reasonable limits may be placed on other rights and freedoms.

Therefore rights could either be absolute or relative.

Black‟s Law Dictionary defines absolute right as;

1. A right that belongs to every human being, such as the right of personal liberty.

2. An unqualified right; specifically a right that cannot be denied or curtailed except

under specific conditions.

Amongst the definitions above, the second meaning almost captures the meaning of absolute

rights. The term „absolute right‟ is used only if the scope of the right is fully protected in the

constitutional and sub-constitutional level – that is, the extent of its realisation is equal to its

scope.205

Rights are absolute when they allow no possible justification for limitation; they

cannot be violated or derogated from. The reason for this is because they put a duty on state

203. Ibid.

204.

International Covenant on Civil and Political Rights, European Convention on Human Rights. 205.

Barak, Proportionality, 26.

71

actors to ensure their realisation. In A v. United Kingdom,206

the UK government was found

to have violated an absolute right when a nine year old boy had been beaten by his step-

father. This was upon the finding that he had been subjected to inhuman and degrading

treatment.207

An absolute right cannot therefore be limited for any reason. No circumstance justifies a

qualification or limitation of an absolute right. Absolute rights cannot be suspended, nor can

they be restricted, even during a declared state of emergency. International law recognises

the existence of this kind of rights to include; freedom from torture and other cruel, inhuman

or degrading treatment or punishment,208

freedom from slavery and servitude.209

The

prohibition of interference with these rights is absolute. The public interest, or the rights of

other individuals, cannot diminish the extent of its protection or realisation.

Rights on the other hand that exist with limitations are referred to as relative rights. A right is

relative if it is not protected to the full extent of its scope.210

Here, justifiable limits are placed

on the right‟s realisation in terms of actions that are otherwise included with its scope. These

set of rights have their realisation dependent on the rights of others or on public interest.211

These kinds of rights form a majority of the species of guaranteed rights under both

206. (1999) 27 EHRR 611

207.

See Article 3 European Convention on Human Rights. 208.

Ibid, Article 7. See also The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. 209.

Ibid, Article 8. 210.

Barak, Proportionality, 32. 211.

See Black’s Law Dictionary 9th edition, ed. Bryan A. Garner (New York: West Publishing Co., 2009), s.v. “relative right.”

72

municipal and international laws. They include; the freedom of expression,212

freedom of

religion, 213

freedom of assembly, 214

freedom of association, 215

amongst others.

3.4 LIMITATION OF RIGHTS

A limitation of a right occurs whenever a state action denies or prevents the right‟s owner

from exercising the right to its fullest scope. Accordingly, a limitation occurs whether the

effect on the right is insignificant or not; whether it is intentional or not; or whether it is

carried out by an act or omission.216

Rights can be restricted in various ways under human rights instruments. Many rights are

qualified such as by specific limitation clauses217

that apply to the right directly. For example,

under the ICCPR and the European Convention on Human Rights (ECHR), every person has

the right to liberty and security of the person, but this right may be qualified in specified

circumstances such as lawful detention after conviction by a competent court or the detention

of a minor for the lawful purpose of educational supervision.218

For instance, rights contained

in Articles 8–11 of the ECHR are guaranteed, subject to limitations that can be justified by

reference to particular objectives such as the protection of public health, order or morals; the

national interest; national security, public safety or the wellbeing of the country; public order;

212.

Ibid, Article 19. 213.

Ibid, Article 18.

214. Ibid, Article 21.

215.

Ibid, Article 22. 216.

Barak, Proportionality, 30. 217.

Barak differentiates specific limitation clauses from internal qualifying provisions. The latter according to him are linked to the right definition. They do not turn the right into a relative right, but rather help in determining or defining the scope of the right more narrowly. See Barak, Proportionality, 33. 218.

Article 9 ICCPR. See also section 35 CFRN 1999 (as amended).

73

the prevention of disorder or crime; or the protection of the rights and freedoms of others.

Such internal limitations must be in accordance with law and necessary in a democratic

society.

Further, rights can be qualified by a general limitation clause contained in the rights

instrument which applies to all the rights guaranteed. For example, Section 1 of the Canadian

Charter of Rights and Freedoms, 1982 guarantees enumerated rights, subject to any

reasonable limits that are prescribed by law and can be justified in a free and democratic

society. This limitation clause applies to all of the guaranteed rights. Similar wording has

been adopted in the Constitution and bill of rights of South Africa,219

and Nigeria,220

New

Zealand.221

Finally, rights can be temporarily suspended in exceptional circumstances. In international

and regional settings, this is referred to as derogation. For example, Article 4 of the

International Covenant on Civil and Political Rights222

provides;

in time of public emergency which threatens the life of the nation and the existence of which

is officially proclaimed, states may take measures derogating from their obligations under the

ICCPR to the extent strictly required by the exigencies of the situation, provided that such

measures are not inconsistent with their other obligations under international law and do not

involve discrimination solely on the ground of race, colour, sex, language, religion or social

origin.

219.

South African Constitution section 36. In South Africa, the human rights guarantees are found in chapter 2 of the South African Constitution and are commonly referred to as the ‘Bills of Rights.’ The principal model for the South African Bill of Rights is the Canadian Charter of Rights and Freedoms which contains a list of rights and a general limitation clause governing the limitation of those rights. 220.

Section 45(1) CFRN 1999. 221.

See Section 5 New Zealand Bill of Rights Act 1990. 222.

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (21) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49.

74

In limiting rights, there is a need to draw a distinction between the scope of the right and the

extent of its protection.223

The scope of the right determines the right‟s boundaries and

defines its content, while the extent of its protection determines the legal limitations on the

exercise of the right within its scope. This distinction highlights the difference between the

constitutional level where rights are determined and their scope prescribed, and the sub-

constitutional level, where the extent of the rights realization is determined and its limitation

prescribed.224

The fact that rights can be limited raises issues of the jurisdiction of the courts to interpret the

provisions of the constitution and all statutes generally particularly where constitutional

rights are threatened with invasion. The place of the courts in ensuring their protection,

ensuring that only limitations that are justified are applied cannot be overemphasized. This

point was made by the Nigerian Supreme Court in Peter Obi v. INEC.225

Where the court

while identifying the interpretative jurisdiction of Courts, lamented that the anxieties arising

from litigating the case before it would have been removed if over the interpretative

jurisdiction conferred on courts by section 251(1) (q) and (r) of the 1999 constitution had

been fully recognized by all the parties.226

One of these relative rights was the subject of the decision in the case of O.F. Agoreyo & ors

v. C.A. Olatunji & ors.227

In that case, the dispute was the interpretation of the freedom of

association particularly the freedom to associate and form and belong to a trade union. The

court per Adeniji J. said;

223.

Barak, Proportionality, 19. 224.

Ibid. 225.

SC.123/2007, 3 Constitutional Law Classicus 226.

Per Oguntade JSC, 817 227.

Unreported, suit no. M/531/89 High Court Lagos State.

75

The right to assemble freely, to associate with other people and to form political parties or

trade unions no doubt exist, but the freedom to exercise that right is entirely a different

thing… under section 41 of the same 1979 Constitution, laws can be made curtailing the right

to associate and form trade unions.

3.4.1 Purposes for the Limitation of Rights

Under constitutional law, to achieve the permissible limitation of rights, such limitations must

be for the purpose of securing some objectives. These objectives are called “Proper

Purposes”228

and they require that acts or omissions of government which limit rights must be

to further such purposes. These requirements are those of public safety (health; morals;

security) and the right of others. Section 45(1) Constitution of the Federal Republic of

Nigeria 1999 (as amended)229

provides an example of the phrasing of such purposes. It

provides;

(1) 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 defence, public safety, public order, public morality or public health; or

(b) For the purpose of protecting the rights and freedom or other persons

From the above it is clear that relative rights can only be constitutionally limited where the

limitations have the objectives of securing or safeguarding public safety, public health, public

morals and protecting the rights and freedoms of others. Laws that limit rights for the purpose

of achieving purposes other than those are above are said to be improper and therefore

228.

Barak, Proportionality, 245. 229.

See Article 29(2) of the UN Declaration of Human Rights.

76

amounts to a violation of the constitutional right. Only laws meant to achieve proper purpose

are put through the process of balancing to weigh the extent to which they justifiably limit

rights.

a. Safeguarding the rights of others.

The protection of the rights of others is essential to the proper purpose for two reasons; the

constitutional right is itself the object of limitation and the right is also an element of the

proper purpose.230

A society seeking to protect one person‟s free will must protect the free

will of another with opposite views. The legal system‟s recognition of both of their free wills

requires, in turn, the imposing of limitations on both of their rights. The Declaration of the

Rights of Man and of the Citizen (1789) recognises this same idea;

Liberty consists in the freedom to do everything which injures no one else; hence the exercise

of the natural rights of each man has no limits except those which assure to the other

members of the society the enjoyment of the same rights. These limits can only be

determined by law.231

Thus, where by the use of freedom of expression, one incites violence on the person of

another, thus infringing his right to security of person; there would be a valid case for

limiting the right to freedom of expression based on the considerations of the rights of others.

b. Public interest

230.

Barak, Proportionality, 255. 231.

See Section 4 of the declaration.

77

Democracy does not consist alone nor is it preserved only in the separation of powers and the

rule of law.232

It also consists in the protection of the shared existence of the society, its

national security and public order. These are necessary to guarantee the continuance of

democracy. Therefore, there are instances where the exercise of a right may pose a real

danger to society. In such instances, there may be a justification for the overriding of the right

in question.

It must also be noted that in constitutional democracies, a constitutional right cannot be

limited unless such a limitation is authorised by law. This is the principle of legality.233

From

here stems the requirement that a limitation on a right is to be “prescribed by law.” What this

means is that the act or omission of government or its agency limiting rights must be

traceable to some legal norm which gives them the authority to function in such a manner.

The foundation for this is found in the principle of the rule of law. In the European case of

Metropolitan Church of Bessarabia v. Moldova, the European Court explained the concept of

“prescribed by law,” saying:

The expression „prescribed by law‟ . . . not only requires that an impugned measure should

have a basis in domestic law, but also refers to the quality of the law in question, which must

be adequately accessible and foreseeable, that is to say, formulated with sufficient precision

to enable the individual . . . to regulate his conduct.234

What this means is that for a limitation to be said to have been prescribed by law, it must be a

valid law which forms part of the hierarchical structure of laws in the legal system; it should

232.

Barak, Proportionality, 256. 233.

See ibid, 107. 234.

Application no. 45701/99, (2002), the Court has also described the concept as providing “a measure of legal protection in domestic law against arbitrary interferences by public authorities.”

78

be based on a chain of authority starting with the constitution itself.235

Where the norm is

bereft of this chain of authority, it constitutes a violation of both the constitution and

constitutional right. Thus, public policy considerations do not suffice to form a legal basis to

limit a constitutional right unless based on an authorisation traceable back the constitution.

It must also be pointed out that laws include both statutes and common law.236

The inclusion

of the common law is as a result of its recognition as a source of law in common law legal

systems thereby meeting the requirement of being prescribed by law.237

Common law affects

the rights of the individual in the same way as a statute238

and therefore must go through

balancing in order to be constitutional.

3.5 PROPORTIONALITY OF LIMITATION

From the above discussion it is clear that some rights may be regarded as absolute, in that

they are at no time to be limited or derogated from, while other rights are relative in that they

could be limited. Also, while some bill of rights may limit rights by a general limitation

clause, others may limit rights by clauses specific to each right. Here discussion is on the

doctrine of proportionality,239

which is borne out of requirements that limitations on rights be

235.

See Hans Kelsen’s Pure Theory of Law in M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, (London: Sweet & Maxwell, 2008), 336.

236. In Common Law legal systems, precedents form part of the law.

237.

See S. v. Mambolo, 2001 (3) SA 409(CC) where the court held that ‘… a rule of common law which, for example infringes on a person’s right to privacy or human dignity can be saved if it meets the section 33 (1) (Constitutional of the Republic of South Africa) requirements.’ 238.

For example are the common law torts of slander and libel which limit the freedom of expression. See Sunday Times v. United Kingdom, App. No. 6538/74, 2 EHRR 245 (1980). The European court was asked to decide whether such a common law concept may properly limit the constitutional right to freedom of expression, guaranteed by Article 10 of the European Convention. The court observed that the expression “law” in the phrase “prescribed by law” covers not only statute but also unwritten law.

79

„prescribed by law‟ and „necessary in a democratic society.‟240

A restriction cannot be

regarded as „necessary in a democratic society‟ unless it is proportionate to the legitimate aim

pursued. So that if in a given situation there is need for public action to restrict the right, the

restriction must be necessary and proportionate to the damage which the restriction is

designed to prevent. Any further restriction is unjustified.

Courts have applied the principle of proportionality as a procedure that aims at guaranteeing

the full respect of human rights by the State. Proportionality does not as a balancing tool

suggest a neutral approach towards constitutional rights nor is it indifferent to rights. On the

contrary, it is based on the need to protect them.241

The principle of proportionality prescribes

that if action to achieve a lawful objective is taken in a situation where it will restrict a

fundamental right, the effect on the right must not be disproportionate to the public purpose

sought to be achieved. 242

Therefore, the doctrine of proportionality requires the court to

review the balance which the decision maker has struck and whether it is within the range of

reasonable decisions. Also, the doctrine goes further than the traditional grounds of reviewing

by requiring attention to be directed to the relative weight accorded to interest and

considerations.243

239.

Other tools for balancing rights and their limitations exist, but proportionality is chosen here because it is has started to receive wide acceptance. See Barak, Proportionality, 493, for the alternatives to proportionality. See also Helen Fenwick and Gavin Phillipson, Text, Cases and Materials on Public Law and Human Rights, 3rd ed. (London: Rutledge, 2003), 882, for the differences between proportionality and other tools of balancing.

240. A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law, 15th ed., (England: Pearson,

2011), 681. 241.

Barak, Proportionality, 4. 242.

See R v. Home Secretary, ex p Brind [1991] 1 AC 696, 751 (Lord Templeman). 243.

See Fenwick, Text, Cases and Materials, 882.

80

Despite the acceptance of proportionality (at least in Western Legal Tradition – both civil and

common law jurisdictions), 244

the concept is found in varying forms in the constitutional law

of countries; mostly with regard to the importance of the framework questions. For instance,

Grant et al245

say proportionality sets out four questions in evaluating whether the limitation

of a right is justifiable. They are;

1. Does the legislation (or other government action) establishing the right‟s limitation pursue

a legitimate objective of sufficient importance to warrant limiting a right?

2. Are the means in service of the objective rationally connected (suitable) to the objective?

3. Are the means in service of the objective necessary, that is, minimally impairing of the

limited right, taking into account alternative means of achieving the same objective?

4. Do the beneficial effects of the limitation on the right outweigh the deleterious effects of

the limitation; in short, is there a fair balance between the public interest and the private

right?

They246

admit that there are other formulations and give example of some courts decisions

that replace the last question with a “comparison of the deleterious effects on a right against

the importance of the objective,” rather than against the beneficial effects of the limitation,247

244.

Juan Cianciardo, “The Principle of Proportionality: its Dimensions and Limits,” available at: http://works.bepress.com/juan_cianciardo/1 245.

Grant Huscroft, Bradley W. Miller, and Grégoire Webber, Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press: 2014), 2. Available at http://www.lse.ac.uk/collections/law/wps/wps.htm 246.

Ibid. 247.

See Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835 at 839.

81

while other courts employ the proportionality framework without explicit reference to the

final question.248

Another formulation of the framework questions is found in the Canadian case of R v.

Oakes249

where the court identified three: the means used to limit the right must be rationally

connected to the objective sought; the right must be impaired as little as possible to achieve

the objective; and finally, there must be proportionality between the effect of the limitation

upon the right and the objective achieved by that limitation.250

The court here did not

consider the first question proposed by Grant; the issue of legitimate purpose, it goes straight

to the rationalization of the means used and objective to be achieved.

Aharon Barak251

on the other hand refers to proportionality as the set of rules determining the

necessary and sufficient conditions for a limitation of a constitutionally protected right by a

law to be constitutionally permissible. According to him, proportionality is made up of four

sub-components which a limitation on constitutional right has to pass;

1. It is designated for a proper purpose;

2. A rational connection between the limitation and the fulfilment of that purpose;

3. The measures taken are necessary in that there are no alternative measures with a

lesser limitation of the right;

248.

See Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, (1999) 1 A.C. 6. 249.

(1986) 1 S.C.R. 103, 138-9. 250.

Grant, Proportionality and the Rule of Law: Rights, Justification, Reasoning, 2.

251. Aharon Barak, Proportionality: Constitutional Rights and Their Limitations, (UK: Cambridge

University Press, 2012) 4.

82

4. Whether there exist a proper relation between the importance of achieving the proper

purpose and the social importance of preventing the limitation on the constitutional

right.252

Now, these differences in formulation and practice does not diminish the claim that

proportionality is the jus cogens of human rights law, any more than the existence of different

theories of rights poses an obstacle to the ascendance of rights discourse.253

The doctrine of

proportionality requires that investigations into the limitation of rights be carried out in three

stages. The first stage deals with the determination of the whole scope of the right and that

part of it that may be considered the penumbra without any thought given to the ways that the

right may be limited or the adverse effects of its expressions. Here the right is treated like if it

were absolute. The second stage of constitutional review would involve the purposes set forth

for the justifiable limitation of rights. In this second stage, the proportionality is fully

unleashed to analyse the permissible grounds for limitation of the scope of the right

previously identified. The third stage is occupied with the remedy to be made available

should the court pronounce the limitation disproportionate i.e., unconstitutional.

This analytical model is based on the distinction between the scope of the right on the one

hand, and the ways in which it may be realised on the other.254

The constitutional review

above allows conflicts between rights and other interest to be resolved not by narrowing the

scope of the rights but by limiting the way they are realised. The right should be allowed to

exist in a pure form as an aspiration which should exist in a constant state of conflict with

252.

Ibid. 253.

Grant Proportionality and the Rule of Law, 3.

254. Ibid.

83

other opposing aspirations. Such conflict is then resolved through balancing at the sub-

constitutional level to be governed by the rules of proportionality.255

A limitation of a constitutional right only narrows the ability to realise the right without

changing the right‟s actual boundaries. These limitations are constitutional only if they are

proportional as required by the limitation clause. Thus we distinguish between a limitation

that is proportional and therefore valid, and a limitation that is not proportional and therefore

invalid. When the limitation is not valid, the right has been violated or breached.

3.6 RIGHT TO FREEDOM OF RELIGION

For centuries intolerance and discrimination rooted in religion have had considerable impact

on the course of international affairs. Indeed, the inception of the Peace of Westphalia of

1648 resulted from a series of religious wars fought to fill the void created by the breakdown

of the Christianity in the medieval period.256

A survey of matters considered by the United

Nations in the past twenty-five years demonstrates the extent to which religious differences

continue to contribute to problems of world order.257

Such a list might include the following

items: the Kashmir dispute between India and Pakistan;258

the continuing Middle East crisis;

and the situation in Northern Ireland.259

In all of these cases the religious factor has operated

in varying degrees either to precipitate or to worsen these international crises.

255.

Barak, Proportionality, 78.

256. Green, Law and Society, 311

257.

John Claydon, Treaty Protection of Religious Rights: U.N. Draft Convention on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 12 Santa Clara Lawyer (1972), 403. Available at: http://digitalcommons.law.scu.edu/lawreview/vol12/iss2/8 258.

It was on the basis of religion that the sub-continent of India eventually divided itself in 1947 into two separate states of India and Pakistan. See Dhokhalia, “The Human Right to Religious Freedom: Problems of Definition and Effective Enjoyment.” The Calabar Law Journal 1, no. 1 (1986): 91-128.

84

In recent years there has been an increase in multilateral treaty-making aimed at providing

more adequate international protection for human rights, but recourse to treaties for the

protection of individuals from religious intolerance and discrimination is not a new

phenomenon. As early as the Peace of Augsburg of 1555 the principle of religious tolerance

achieved unprecedented international expression. The Treaty of Westphalia260

on its part

ensured international protection for religious minorities against their sovereigns by granting

signatories the right of intervention to enforce its provisions. Moreover, it has been argued

that the majority of humanitarian interventions in the nineteenth century were undertaken on

the basis enforcing people‟s right to religious freedom.261

Despite the inclusion of freedom of religion in the Article 18 of the UN Universal Declaration

of Human Rights,262

its inclusion in the International Covenant on Civil and Political

Rights,263

(which came later in time) was intended to supplement the universal declaration

and to have undoubted legal force as a treaty for the contracting parties. The ICCPR has

redefined and further elaborated the right to religious freedom in Article 18 in the following

language:

259.

For the Catholic grievances and allegations of discrimination, Report of the Cameron Commission, (1969), the Scarman Tribunal of Enquiry on Violence and Civil Disturbances in Northern Ireland (1972), the Parker Report, (1972). 260.

Treaty of Westphalia, 1648 provided that subjects who in 1627 had been barred from the exercise of their religion, other than that of their ruler were granted the right of conducting private worship, and of educating their children, at home or abroad, in conformity with their own faith; they were not to suffer in any civil capacity nor to be denied religious burial, but were to be at liberty to emigrate, selling their estates, or having them to be managed by others. See Gross “The Peace of Westphalia 1648-1948”, Am. J. International Law, (1948)20, 22. 261.

See L.C. Green, Law and Society, 292. 262.

The Declaration proclaims a right to religion, which includes the freedom to change religion and the freedom to manifest religion or belief either individually or collectively in teaching, practice, worship, and observance. Although technically not a binding instrument, the Declaration has become increasingly authoritative because of its widespread acceptance. 263.

General Assembly Resolution 2200A, 21 U.N. GAOR Supp. 16, at 52, U.N. Doc A/6316 (1966), it entered into force on 23 March, 1976.

85

1. Everyone shall have the right to freedom of thought, conscience and religion. This right

shall include freedom to have or to adopt a religion or belief of his choice, and freedom,

either individually or in community with others and in public or private, to manifest his

religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a

religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are

prescribed by law and are necessary to protect public safety, order, health, or morals or the

fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of

parents and, when applicable, legal guardians to ensure the religious and moral education of

their children in conformity with their own convictions.

The Nigerian constitution incorporates the above provision fully in Section 38264

when it

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.

The right to freedom of religion so captured has the following features: first, the right belongs

to every member of the society and entail the notion of human equality and universal

possession of the right without any discrimination or distinction. Secondly, the right includes

the freedom to adopt a religion or belief of one‟s choice and to profess and practise alone or

264.

Constitution of the Federal Republic of Nigeria 1999 (as amended)

86

in community with others. Continuing, it rules out conversion based on compulsion of the

individual. It also provides that religious freedom is not unfettered and is subject to such

limitations as may be prescribed by law to meet requirements of public safety and social

order, health, morals, and rights and freedom of others.265

Finally, the right imposes on

government a legal obligation to respect the right of parents in deciding the religious and

moral education of their children according to their parent‟s choice.266

Freedom of religion or belief protects every human being‟s right to believe or to hold an

atheistic, theistic or non-theistic belief,267

and to change religion or belief. The freedom to

manifest one‟s religion also has a negative aspect, namely the right not to be obliged to

disclose one‟s religion.268

Freedom of religion or belief applies to individuals, as right-

holders, who may exercise this right either individually or in community with others and in

public or private. Its exercise may thus also have a collective aspect. This includes rights for

communities to perform “acts integral to the conduct by religious groups of their basic

affairs.”269

These rights include, but are not limited to, legal personality and non-interference

in internal affairs, including the right to establish and maintain freely accessible places of

worship or assembly, the freedom to select and train leaders or the right to carry out social,

cultural, educational and charitable activities.

265.

This limitation is provided for under section 45(1) CFRN 1999 (as amended). 266.

Dhokhalia is of the view that the guarantee of religious education of one’s choice has far wider ramification for the extension far beyond his own religious groups and institution and such poses a danger to national integration and cohesion. See Dhokhalia, “Human Right to Religious Freedom,” 99. 267.

In 1993, the UN Human Rights Committee (which monitors States Parties’ implementation of ICCPR) described religion or belief as “theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion. Available at http://www1.umn.edu/humanrts/edumat/studyguides/religion.html 268.

Sinan Isık v. Turkey, App. no. 21924/05 judgement of 2nd February, 2010 where the ECtHR held that ‘a violation of Article 9 of the Convention had arisen from the fact that an identity card contained an indication of religion, regardless of whether it was obligatory or optional.’

269. See EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief adopted on 24

June 2013 by the Foreign Affairs Council meeting at Luxembourg. Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137585

87

The right to freedom of religion has been further amplified in Declaration on the Elimination

of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981.270

It

provides in Article 1 that;

1. Everyone shall have the right to freedom of thought, conscience and religion. This right

shall include freedom to have a religion or whatever belief of his choice, and freedom, either

individually or in community with others and in public or private, to manifest his religion or

belief in worship, observance, practices and teaching.

2. No one shall be subject to coercion which would impair his freedom to have a religion or

belief of his choice.

3. Freedom to manifest one's religion or belief may be subject only to such limitations as are

prescribed by law and are necessary to protect public safety, order, health or morals or the

fundamental rights and freedoms of others.

3.6.1 FREEDOM OF RELIGION AS AN ASSEMBLAGE OF OTHER FREEDOMS

Freedom of thought, conscience and religion, enshrined in Article 18 ICCPR, is one of the

foundations of a democratic society because, from its religious dimension, it is one of the

most vital elements that make up the identity of believers and their conception of life, but it is

also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism

inseparable from a democratic society, which has been fought for over the centuries,271

270.

G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Document A/36/684 (1981), in its eight Articles, it re-emphasised the content of Article 18 of International Covenant on Civil and Political Rights, 1966.

271. See Treaty of Westphalia, 1648.

88

depends on it. That freedom entails inter alia, freedom to hold or not to hold religious beliefs

and to practise or not to practise a religion.272

The guarantee of Article 18 ICCPR of religious freedom shows that the right to freedom of

religion has expressions in other freedoms guaranteed under the law. It falls partly within the

scope of freedom of expression and the freedom of assembly and association. It also touches

on the right to private and family life, dignity of human person freedom from discrimination

and even the right to education (where educational right is guaranteed).

Therefore, elaborating on the content of the right to freedom of thought, conscience, religion

and belief would include the following freedoms: to adhere or not to any religion or belief or

to change it as one pleases, without any coercion; to manifest one‟s religion or belief either

alone or in community, in private or in public without any discrimination; to express one‟s

opinion concerning religion or belief;273

to worship and to hold assemblies related to religion

and to establish and maintain the places of worship or assembly for these purposes and the

place for disposal of dead bodies according to religious practices including entitlement to

equal legal protection of these places; to teach, to disseminate and to learn about one‟s

religion or belief, its sacred languages or traditions; to write about one‟s religion or belief, its

sacred languages or traditions; to write, to print, and to publish religious books and text; to

train religious personnel; to establish and maintain charitable and educational institutions, to

practise one‟s religion, observe its rituals, and other practices, and to produce objects, foods,

and other articles and facilities customarily required in such practices, to make religious

272.

See Kokkinakis v. Greece, app. no. 260-A 25 May 1993. In the Kokkinakis judgment, the Court held, in the context of Article 9, that a State could legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with the respect for the freedom of thought, conscience and religion of others. 273.

Article 1, International Convention on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, 1981.

89

pilgrimages inside and outside one‟s country;274

to organise and maintain local, regional,

national , and international associations in connection with one‟s religion or belief,275

to

participate in their activities, and to communicate with one‟s fellow believers; to take or not

to take an oath of religious nature,276

to enjoy and to exercise civic, political, economic,

social and cultural rights, to bring up as parents one‟s children in the religion or belief of

one‟s choice277

and that children are protected against precepts and practices based on

religious intolerance or discrimination.278

The importance in identifying the freedoms which the right to freedom of religion covers is to

show how easily an action or policy of government directed at the advancement or restriction

of an independent right could interfere with a person‟s free exercise of religion. Therefore,

states must exercise caution when developing and implementing policies so that

discrimination in the form of distinction, exclusion, restriction or preference based on religion

or belief – theistic, non-theistic or atheistic is prevented.

3.6.2 LIMITING THE FREEDOM

In a democratic society, in which several religions or branches of the same religion coexist

within one and the same population, it may be necessary to place restrictions on this freedom

274.

Ibid, Article 6. 275.

See Hasan v. Bulgaria, Application no 30985/96, (2010) 24 EHRR 55. 276.

The Nigerian Evidence Act 2011 via Sections 205, 207 and 208, permits any person giving testimony to either swear an oath or simply to affirm that he speaks the truth, where taking an oath offends his religious sensibilities or in the opinion of the court, by reason of want of religious belief, he ought not to give evidence on oath. See the European case of Dimitras and Others v. Greece, Application nos. 42837/06, 3237/07, 3269/07, 35793/07 and 6099/08, 3 June 2010. 277.

Adamu v. Attorney General, Borno State [1996]8 NWLR (pt. 465) 203 278.

Dhokhalia, “Human Right to Religious Freedom”.

90

in order to reconcile the interests of the various groups and ensure that everyone‟s beliefs are

respected. However, in exercising its regulatory power in this sphere and in its relations with

the various religions, denominations and beliefs, the State has a duty to remain neutral and

impartial. What is at stake here is the preservation of pluralism and the proper functioning of

democracy.279

The problem is that, religion is a sanctioning system which claims immunity from control of

the secular power which is committed to the goals of liberty, equality and non-discrimination.

Besides, whilst the freedom of religion may on one hand allow one to believe in whatever

one pleases, one‟s religious acts need to be regulated in the interest of society and other

dominant interests. As has been pointed out, most of the rights incorporated as fundamental

rights in modern constitutions are stated in general terms and their limitations are not fully

stated. 280

Since religious belief remains a fundamental element in man‟s conception of life,

the attempts to justifiably limit them meets with challenges.

The case of proselytism provides a tangle of competing claims: one the one hand is the right

of proselytisers to free exercise of religion and freedom of speech; on the other hand, the

rights of targets of proselytism to be free from injury to their religious feelings. This conflict

is illustrated in the case of Cantwell v. Connecticut281

where a Jehovah‟s Witness was

arrested for violating an ordinance requiring a permit for solicitation and for the common law

offence of inciting a breach of peace after distributing religious materials in a predominantly

Roman Catholic neighbourhood and playing on a phonograph record an anti-Catholic

message to two pedestrians. The claim of the proselyte is one of free exercise i.e.

279.

European Court of Human Rights Research Division, “Overview of the Court’s case-law on freedom of religion,” 19 January 2011 and updated on 31 October 2013. Available at www.echr.coe.int 280.

See Absolute Rights above. 281.

310 U.S. 296 (1940); see Kokkinakis v. Greece above.

91

manifesting of religious belief in accordance with Section 38 of the 1999 constitution. He

also has claim to the freedom of expression under section 39. The target of proselytism on the

other hand, has the freedom to adopt or change religion and to be free from injury or offence

to his/her religious feelings. Given that the right claimed by the proselyte is supported by

different guarantees of the constitution, it gives rise to conflicts not only internal to the

different aspects of the right to freedom of religion itself but also to conflicts between

religious freedom and other rights.

Society therefore has the right to defend itself against possible abuses committed on the

pretext of freedom of religion. It is the special duty of government to provide this protection

not only out of the need for the safeguard of the rights of all citizens and the peaceful

settlement of conflicts of rights, but also out of the need for an adequate care of genuine

public peace, which comes about when men live together in good order and in true justice. Its

action therefore in this regard is to be controlled by juridical norms which are in conformity

with the doctrine of proportionality.282

Proportionality here would necessitate the examination of the right to freedom of religion in

the three stages of constitutional review; first the determination of the right‟s scope, then the

proportionality of limitations, and finally, the award of remedy where there is a violation of

the right. In the examination of a constitutional right to freedom of religion, its scope should

be determined to include manifestations that may be hurtful to the public interest and other

people‟s religious sensitivities, or even affect their privacy;283

this is the first stage. The

considerations relating to the right of others as well as public interest are extremely

important, they should not be ignored. They are taken into account into account in the second

282.

Barak, Proportionality, 6. 283.

We have analysed above the content of the right to freedom of religion. See sub head “freedom of religion as an assemblage of other freedoms” above.

92

stage of constitutional review as part of the proper purposes test. The measures put in place to

strike a balance, for instance, anti-proselyting laws as in our problem above would be

analysed to find the rational connection, as well as necessity of the measures; finally, whether

there exist a proper relation between the importance of achieving the proper purpose and the

social importance of preventing the limitation on the constitutional right.284

All these are to

be considered in the second stage of constitutional review. The last stage only comes up on

the finding that the measures put in place are disproportionate.

The freedom of religion285

has two aspects: internal and external aspects. Regarding the

„internal‟ aspect, the freedom is absolute with respect to deeply held ideas and convictions

that are forged in a person‟s individual conscience and cannot therefore in themselves

prejudice public order. These cannot therefore be the subject of restrictions on the part of the

State authorities. However, with regard to the „external‟ aspect, founded on the freedom to

manifest one‟s beliefs, public order and the rights of others may be affected or even

threatened. The freedom to manifest one‟s religion or belief in worship, observance, practice,

and teaching is the more public freedom of religion that is subject to limitation under Article

18 ICCPR. According to the European Court, the Article 9 ECHR freedom to manifest one‟s

religion protects acts which are „intimately linked‟ to religious belief, such as acts of worship

or devotion which are aspects of the practice of a religion or belief in a generally recognised

form.286

The term „practice‟ does not, according to the Court, cover every act which is

motivated or influenced by a religion or belief, and one does not necessarily have the right to

284.

In Kokkinakis v. Greece, the ECtHR held that the conviction of the applicant accused of attempting to proselytize by undermining belief could not be justified within the context of a pressing social need such as it was necessary for the protection of the rights and freedoms of others within article 9 (2) ECHR. 285.

Guaranteed under Section 38, Constitution of the Federal Republic of Nigeria 1999 (as amended); see Article 9 ECHR. 286.

Valsamis v. Greece, App. No. 21787/93, 24 Eur. H.R. Rep. 294, 307 (1997), See also Eweida & Ors v The United Kingdom (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10).

93

behave in the public sphere in a manner dictated by a religion or a conviction. Accordingly,

Nowak,287

is of the view that „worship‟ under Article 18 ICCPR means the typical form of

religious prayer and preaching, (i.e. freedom of ritual) – this is the core of the freedom of

religion. „Observance‟ covers processions, wearing of religious clothing, prayer and all other

customs and rites of the various religions; and „teaching‟ is understood as every form of

imparting the substance of a religion or belief. Observance and teaching are at varying shades

of the penumbra of the freedom of religion. Nowak, in recognition of the need for „practice‟

not to include every action or omission motivated by religion or belief, says, „religious

practice may thus be said to be only that conduct obviously related to a religious

conviction‟288

i.e., religious worship.

The fact that the freedom to manifest religious beliefs cannot be absolute in a pluralistic

society has been recognised by, for example, the Catholic Church. In 1965, Pope Paul VI

proclaimed the Second Vatican Council‟s Declaration on Religious Freedom (Dignitatis

Humanae).289

In that Declaration it is expressly recognised that the right of religious

communities to „govern themselves according to their own norms‟ is subject to the „just

demands of public order‟. It was also acknowledged by the Second Vatican Council in the

Declaration that there must be limitations on the exercise of the right to religious freedom in

any society, when such exercise may affect others. The Vatican Declaration states:

The right to religious freedom is exercised in human society: hence its exercise is subject to

certain regulatory norms. In the use of all freedoms the moral principle of personal and social

287.

M. Todd Parker, “The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR,” Duke Journal of Comparative & International Law. Vol 17 no. 91 (2006), 91-129. See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCRP Commentary (1993), 309-10. Available at http://law.bepress.com/expresso/eps/1107 288.

Ibid. 289.

Second Vatican Council, Declaration on Religious Freedom - Dignitatis Humanae, Proclaimed by His Holiness, Pope Paul VI on December 7, 1965, last modified March 15, 2010, http://www.christusrex.org/www1/CDHN/v10.html

94

responsibility is to be observed. In the exercise of their rights, individual men and social

groups are bound by the moral law to have respect both for the rights of others and for their

own duties toward others and for the common welfare of all. Men are to deal with their

fellows in justice and civility.290

3.7 PROBLEM OF MINORITY

The concept of „minority‟ has different meanings and consequences in different places and at

different times. Black‟s Law Dictionary defines it to mean; a group that is different in some

respect (such as race or religious belief) from the majority and that is sometimes treated

differently as a result; a member of such a group.291

The use of the term minority is not

limited to group that is outnumbered. It may be applied to a group that has been traditionally

discriminated against or socially suppressed, even if its members are in the numerical

majority in an area.292

It has its quantitative and non-quantitative dimensions. Thus a minority

group may be one with a small population or one with very little power to influence decisions

in the public domain within society.293

The protection of human rights stemmed from the need to protect the minority from the

dominating powers of the majority so that man is not made to live a slavish life. It is no doubt

that such protection in the end become of great benefit to all; guaranteeing minimum

entitlements of the governed in a civilised and democratic society. These rights cannot be

290.

Ibid. 291.

Black’s Law Dictionary 9th edition, ed. Bryan A. Garner (New York: West Publishing Co., 2009), s.v. “minority.” 292.

Ibid. 293.

Maxwell M. Gidado, “Minority Rights Guarantee under the 1999 Nigerian Constitution” in Ethnicity and National Integration in Nigeria: Recurrent Themes. Edited by D.A. Guobadia and A.O. Adekunle (Abuja: Nigerian Institute of Advanced Legal Studies, 2004) 229-244.

95

said to be exclusively for the minorities, thus, they are applied to both minority and majority

citizens of the state.294

This point was recognised by Obafemi Awolowo, who while speaking

of rights guaranteed under the 1979 Nigerian Constitution said „the fundamental human

rights were ordained not for the protection of ethnic minorities as such but for the protection

of the citizens at large against executive and legislative tyranny and excesses.‟295

The problem of religious freedom is no less the same a problem of minorities in multi-

religious societies. This fear is more pronounced where religious differences have become

highly politicised.296

Therefore, if the state is not built on a secular philosophy, religious

resistances erupt with the likelihood of violence to the society. The problem of minorities is

also compounded by the fact that it is a multifaceted social problem and not easily amenable

to precise formulation.

In Nigeria, in terms of numerical strength, Christianity and Islam are said to be the two major

religions. All other religions are said to be minorities despite the increasing numbers that

enter their folds. The Nigerian situation presents the problem of satisfaction of minority

interest. There is hardly any case-law concerning the main religions because the tenets are

known and the relationship with the State is well established.297

However, the issue is more

294. Allswell Osini Muzan, “The Nigerian Constitution and Minority Rights Guarantees” in Ethnicity and

National Integration in Nigeria: Recurrent Themes. Edited by D.A. Guobadia and A.O. Adekunle (Abuja: Nigerian Institute of Advanced Legal Studies, 2004) 213-228. 295.

Obiagwu, “Combating Legacies,” 220. 296.

Dhokhalia identifies five factors which could foster the fear of minorities. See Dhokhalia, “Human Right to Religious Freedom.” 117. 297.

See Ojeigbe & anor v. Ubani & anor [1961] All NLR 277, where the appellant, a Seventh-day Adventist challenge the holding of elections on Saturdays on the grounds that Saturdays were his day of religious worship and fixing the election on that day, prevented him from voting. It was held that the fixture was not an infringement of his right to freedom of religion as other religious groups may claim any day of the week to which the elections are fixed and thus prevent the possibility of holding elections. This problem is not peculiar to Nigeria. The US Supreme Court has in its decisions accommodated the majority if no state endorsement of religion is involved. See the American case of

96

delicate regarding minority religions and new religious groups that are sometimes called

“sects” at national level and the intolerant attitudes of more established religions, even in the

face of Sections 38 and 42 of the constitution which demands all religious groups and their

members are to enjoy equal protection under the Constitution. In Registered Trustees of the

Rosicrucian Order, Amorc (Nigeria) v. Awoniyi & ors,298

the appellant had sued the

respondent for libel arising out of three articles published at various times in a magazine

called “Today‟s Challenge.” In the N10 million damages suit, the appellant argued that the

content of the articles projected Amorc as satanic. The respondents relied on the defence of

justification and fair comment. At both trial and the appellate courts, one of the issues for

determination was whether the appellant was a secret cult. Though the Supreme Court did not

find the Appellant to be a secret cult, there were some excerpts of the judgement that used the

standard of Christianity in criticising the teachings of the appellant. Hear Iguh JSC say;

I agree entirely with the majority opinion of the Court of Appeal that it is difficult in the

circumstance not to associate AMORC with mysticism… in the first place, it cannot be

seriously suggested that there is anything secret in the teachings of Jesus Christ which is in

my view public and properly documented in the scriptures. Clearly to assert as the plaintiff

unequivocally did, that Jesus Christ was a member of secret societies and that he was an

advocate of occult teaching is, speaking for myself, satanic, sinister, blasphemous and

entirely unacceptable.299

Braunfeld v. Brown, 366 U.S. 59, 81 S.Ct. 1144, 6 L.Ed.2d (1961) and its sister case McGowan v. Maryland, where the Supreme Court was asked to consider the constitutionality of Sunday Closing Laws which were prevalent throughout the country. Applying the “purpose and primary effect” test it was held that the laws had a secular public welfare purpose; to provide a compulsory day of rest from work. 298.

[1994] 7 NWLR (pt. 355) 155

299. Ibid.

97

The tenor of the excerpt above shows a comparison of the Amorc teaching with the Christian

teaching. Because the Christian teaching is “open” it is not a secret society. Notice must be

had that the perception of any religious group at its early stage of growth is always suspect.

But with time, their teachings become known and are no longer „secret.‟ Only where there is

toleration would the teachings of a new religious group have the opportunity of becoming

unravelled.

Under the European Convention on Human Rights, the right under Article 9(1) to hold

religious and other beliefs and to change them is an absolute right, which means that the state

is prohibited from interfering with it. Article 9 recognises that belief systems are part of the

identity of individuals and their conception of life and that respecting an individual‟s beliefs

accords respect for human dignity. As Lord Nicholls explained in the R. (Williamson) v.

Secretary of State for Education and Skills;300

Religious and other beliefs and convictions are part of the humanity of every individual. They

are an integral part of his personality and individuality. In a civilised society individuals

respect each other‟s beliefs. This enables them to live in harmony.

The holding of any religious belief, however unattractive, is protected, though some limits

may be place on its manifestation where genuine conflicts would arise. In the Williamson‟s

case, the House of Lords suggested that while everyone is entitled to hold whatever beliefs he

wishes;

A belief must satisfy some modest, objective minimum requirement. The belief must be

consistent with basic standards of human dignity or integrity. … The belief … must possess

an adequate degree of seriousness and importance … it must be a belief on a fundamental

300.

[2005] 2 AC 246

98

problem. With religious belief this requisite is readily satisfied. The belief must also be

coherent in the sense of being intelligible and capable of being understood. But, again, too

much should not be demanded in this regard. Typically, religion involves belief in the

supernatural. It is not always susceptible to lucid exposition or, still less, rational justification

... Overall, these threshold requirements should not be set at a level which would deprive

minority beliefs of the protection they are intended to have under the convention.301

3.7.1 ACCOMODATION OF RELIGIOUS PRECEPTS

The right to freedom of thought, conscience, religion or belief302

more commonly referred to

as the right to freedom of religion or belief is a fundamental right of every human being. It is

a freedom that includes all religions or beliefs, including those that have not been

traditionally practised in a particular country, the beliefs of persons belonging to religious

minorities, as well as non-theistic and atheistic beliefs. As a universal human right, freedom

of religion or belief safeguards respect for diversity. Its free exercise directly contributes to

democracy, development, rule of law, peace and stability while violations of the freedom lead

to intolerance and often constitutes indicators of potential violence and conflicts.

The fundamental nature of the freedom of religion makes it incumbent on the government to

accommodate the precepts of minority and new religious societies. Public institutions do not

have competence to define religion. Religious beliefs cannot be limited to the “main”

religions or to religions and beliefs with institutional characteristics or practices similar to

301.

See R. (Williamson) per Lord Nicholls, at paragraphs 64, 57 and 76. 302.

See article 18 of the UDHR and article 18 of the ICCPR.

99

those of the main religions; it must be interpreted non-restrictively. Government has a duty

to protect all persons from direct and indirect discrimination on grounds of religion or belief,

whatever the reasons advanced for such discrimination. This includes the duty to rescind

discriminatory legislation, implement legislation that protects freedom of religion or belief,

and halt official practices that cause discrimination, as well as to protect people from

discrimination by state and other influential actors, whether religious or non-religious.303

Attempts should not only be made at accommodating the religious beliefs of main

religions;304

the beliefs of minority religions require accommodation.305

Where government

regulations offend against the freedom of religion, the courts should also strike them down.

Foreign courts offer examples of such accommodation. Thus, the US Supreme court has

shown its accommodation of religious minorities, for instance, in Sherbert v. Verner,306

the

court ruled that South Carolina could not constitutionally deny unemployment benefits to a

Seventh day Adventist who refused to work at jobs requiring attendance on Saturdays. Also

in Wisconsin v. Yoder,307

it was held that the Amish, members of a religious sect, should be

relieved of compulsory public education for their children after the eighth grade, so that they

could be able to fulfil the requirement of their religion to learn skills in their community

303.

EU Guidelines on The Promotion and Protection of Freedom of Religion or Belief, adopted at the EU Foreign Affairs Council meeting at Luxembourg, 24 June 2013. Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137585 304.

See Lagos State Coroner Law 2007 which requires autopsy for all deaths occurring in the state. Opposition to the law by Muslims on the ground that a compulsory autopsy on every dead body interfered with their religious burial requirements, made the Fashola’s government to propose amendments to the law. See Nigerian Muslim Network (NMN) Suggest Amendments to Lagos Coroner Law 2007. Available at http://www.nmnomline.net/nmn_pub/Autopsy.pdf 305.

See dissenting opinion of Jackson J. in U.S. v. Ballard (1944) 322 U.S. 882. 306.

374 U.S. 398 (1963), see Brennan J. 307.

406 U.S. 205 (1972)

100

through working. Similarly, in Church of the Lukunmi Babalu Aye Inc. v. Hialeah,308

the

court invalidated city laws prohibiting some forms of ritual animal slaughter as burdening the

free exercise of religion by a particular sect.

Similarly, the European Court has upheld the freedom of minority groups in Jakobski v.

Poland309

where the Court accepted that a Buddhist‟s decision to adhere to a vegetarian diet

could be regarded as motivated or inspired by a religion and was not unreasonable, and that

the refusal of the prison authorities to provide him with a vegetarian diet breached his Article

9 rights. Also, in Buscarini and Others v. San Marino,310

the applicants who were elected to

the San Marino Parliament in 1993 complained that they had been required to swear an oath

on the Christian Gospel in order to take their seats in Parliament, which in their view

demonstrated that the exercise of a fundamental political right was subject to publicly

professing a particular faith. The Court held that there had been a violation of Article 9 of the

Convention. It found in particular that the obligation to take the oath was not “necessary in a

democratic society” for the purpose of Article 9(2) of the Convention, as making the exercise

of a mandate intended to represent different views of society within Parliament subject to a

prior declaration of commitment to a particular set of beliefs was contradictory.

It flows from the above that states existing in religious diversity must accommodate the

various religious groups that exist, and even those that are recently new to their jurisdiction.

The need for accommodation is as a result of the importance of the freedom of religion as the

as the core of man‟s explanation for his existence. Act or omissions of government which do

not encourage the accommodation of religious diversity deprive the individual of this

essential “truth”. Commendation must be given to the Nigerian National Assembly on this

308.

508 U.S. 520 (1993), see opinion of Kennedy J. 309.

Jakobski v. Poland [2010] 30 EHRC 417; Bayatyan v. Armenia [2011] 23459/03.Paras 110-111. 310.

See Application no. 24645/94 1999.

101

score for taking in consideration (however belated it was) the objection of persons whose

religious precepts forbid the taking of oath in the provisions of Sections 205, 207 and 208 of

the Evidence Act, 2011. Such forms of accommodation are necessary in multi-religious

Nigeria.

102

CHAPTER FOUR

4.0 ASIYAT ABDULAKAREEM & ORS v. LAGOS STATE GOVERNMENT &

ORS311

The present case involves a public school that refused to allow some students to deviate from

dressing in their school uniforms. One issue that this case brought up is the interference with

the manifestation of religion or belief (abiding by the dress requirements of a religion) by a

law, and in this case, a State‟s Uniform Regulation.

4.1 FACTS

In 2012, the 1st and 2

nd applicants, both 12 years old, pupils of Atunrashe Junior High School,

Surulere, Lagos State, had worn hijabs over their school uniforms and on their way to school.

At about 7:10am, the school‟s vice principal saw them and seized the items from them

claiming that hijab was not part of the school uniforms and warned other pupils against such

mode of dressing, directing the teachers to prevent a reoccurrence and to seize the hijab of

any student who wore same over their school uniform within the school‟s premises.

The representatives of the Muslim Students Society of Nigeria protested the incident and

subsequently held a meeting with the Commissioner of Education (3rd

respondent) over the

issue and later wrote a petition against the prohibition. All attempts to have the prohibition on

the use of hijab lifted failed. Therefore, they sought the intervention of the court.

The issue raised was whether the refusal of the respondents to allow the introduction and use

of hijab in the state owned primary and secondary school amounts to a violation of the

students‟ fundamental right to freedom of thought, conscience and religion, freedom from

311. Unreported; Suit No. ID/151M/13.

103

discrimination and the right to dignity of the human person and as well as the right to

education guaranteed under Section 38 and 42 (1) (a) and (b) of the 1999 Constitution (as

amended) and Article 2, 5, 8, 10, 17 and 19 of the African Charter on Human and Peoples‟

Right (Ratification and Enforcement) Act.

The respondent had argued that there had been a State policy on the code of dressing in all

public schools and that, by this policy each school has a recognised uniform for all its

students irrespective of race, religion or sex. The respondent further referred to S. 45 (1) of

the 1999 Constitution (as amended) and the judicial authority of Osawe v. Registrar of Trade

Union 1985 NWLR (pt. 4) 755 for the position that the rights guaranteed under Sections 34,

35, 37 and 38 of the 1999 constitution (as amended) are qualified rights.

Holdings

1. Uniforms were not a new phenomenon in our public schools. Beyond the purpose of

identity, the school uniform suggests discipline and in particular conformity. Students,

by its use learn the values of comradeship, and loyalty amongst those with whom they

share same. It is a symbol of the uniformity.

2. The basis for association in a public school setting does not rest on any religious

affiliation but rather that the primary focus of the state is education. And therefore the

state policy on uniform code encourages objectivity on the part of students and

teachers, and students are not judged or related to on the basis of appearance. It

enables the state to maintain neutrality and provides an environment devoid of

misapprehension of its intention. Once there is a deviation from the general

regulation, there can be no neutrality.

3. It is trite that the exercise of a person‟s right stops where another‟s right begins.

Students who enrol in a State school as distinct form a mission or faith based school

104

have the right to expect the neutrality engendered by the State policy on uniform and

secularism intended by the framers of the constitution.

4. The prohibition or denial of the wearing of the hijab over the school uniform cannot

be said to be a breach of the fundamental right of the applicant as guaranteed by

Section 38 and 42 of the 1999 Constitution (as amended).

4.2 ANALYSIS OF THE RATIO

In analysing the above case, attention would be directed to the determination of the scope of

the freedom as well as its justification on grounds of proportionality and the criticism of some

part of the court‟s reasoning.

4.2.1 Scope of the Right

In the case above, the right to freedom of religion particularly the manifestation of the

religious belief through clothing was said to have been infringed. In the constitutional review

of a limitation rights, it was indicated that there is a need to draw a distinction between the

scope of the right and the extent of its protection.312

The scope of the right determines the

right‟s boundaries and defines its content, while the extent of its protection determines the

legal limitations on the exercise of the right within its scope. This part of review is concerned

with the determination of the boundaries and content of the freedom to manifest religious

belief through clothing. The importance in identifying its content is to show how easily a

policy of government directed at the advancement or restriction of an independent right could

interfere with a person‟s free exercise of religion.

312.

See Aharon Barak, Proportionality: Constitutional Rights and Their Limitations, (UK: Cambridge University Press, 2012), 19.

105

The interpretation of the freedom‟s boundaries must be broad even to cover situations where

it could infringe on other person‟s freedom. This would necessarily include: to wear religious

clothing without compulsion, to wear the clothing anywhere one pleases, to wear the clothing

for the purpose of proselyting others, to wear the religious outfit in conjunction with others

and for whatever purpose. The scope sought to be limited is the right to wear religious

clothing anywhere, removing the public school premises from the realisation of the right.

4.2.2 Proportionality

In Chapter 3 proportionality was said to be balancing tool which does not suggest neutrality

towards rights, but is based on the need to protect them. Here, the intention is the analysis of

the judgement with the aid of this balancing tool, for to speak of rights in the twenty-first

century, is to speak of proportionality.313

Recall that Proportionality sets out certain questions

in evaluating whether the limitation of a right is justifiable, and that Barak‟s delineation of

these questions314

was preferred which includes;

5. It is designated for a proper purpose;

6. A rational connection between the limitation and the fulfilment of that purpose;

7. The measures taken are necessary in that there are no alternative measures with a

lesser limitation of the right;

313.

Grant Huscroft, Bradley W. Miller, and Grégoire Webber, Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press: 2014), 1. Available at http://www.lse.ac.uk/collections/law/wps/wps.htm

314. See Barak, Proportionality, 4.

106

8. Proportionality stricto sensu. Whether there exist a proper relation between the

importance of achieving the proper purpose and the social importance of preventing

the limitation on the constitutional right.315

4.2.2.1 Proper Purpose

It must be said that the primary purpose of the uniform regulation was not to limit right;316

its

purpose was to „encourage objectivity on the part of students and teachers, and students are

not been judged or related to on the basis of appearance or mode of dressing.‟ The court

added that the regulation ensures neutrality, unity, discipline, objectivity, and orderliness,

thereby preventing discrimination and intimidation in the public schools. For the purpose of

this analysis, these objectives are classed into one; Uniformity. And, as it has limited a right,

it must be subject to review on grounds of proportionality.

Proper purpose as provided in Section 45317

requires that;

a. the limitation it is provided by law;

b. the limitation pursues either or both the object of safeguarding public safety, order,

health or public morality or protecting the rights and freedom of other persons

In the European case of Metropolitan Church of Bessarabia v. Moldova, the European Court

explained the meaning of „prescribed by law,‟ saying:

315.

Ibid. 316.

The power to create and regulate the schools created by the government incidentally limited the expression of religious freedom when there was prescribed a uniform regulation. See Aharon Barak, Proportionality: Constitutional Rights and Their Limitations, (UK: Cambridge University Press, 2012), 106. 317.

See Constitution of the Federal Republic of Nigeria 1999 (as amended).

107

The expression „prescribed by law‟ . . . not only requires that an impugned measure should

have a basis in domestic law, but also refers to the quality of the law in question, which must

be adequately accessible and foreseeable, that is to say, formulated with sufficient precision

to enable the individual . . . to regulate his conduct.318

In this case, the limiting instrument is said to be a regulation. Can regulations qualify as law

for the purpose of limiting rights? Barak319

recognises that limitations of rights could validly

result from regulations. Accordingly, a limitation of constitutional right by a regulation is

according to law when such regulation derives authority from a legally made statute.320

This

regulation arises by way of delegated legislation which could include executive or

administrative regulation.321

The question becomes, what statute empowers the Lagos State

government to make regulations on uniform for Public Schools? The constitution provides

this power. By virtue of section 18 of the 1999 Constitution government is encouraged to

pursue certain Educational objectives inclusive of establishing schools. This power to

establish schools would also include the necessary power to manage or regulate the

operations of the schools it has created. Therefore, the uniform regulation made in order to

manage the schools created, necessarily flows from the constitutional power to establish and

maintain schools. Here the constitution gives authorisation for making such regulation even

though implicitly. It must be stated that this logic applies to uniform regulations made for

Private and or Missionary Schools, in which case their authorisation may stem from Section

38 of the constitution.

318. Application no. 45701/99, (2002), the Court has also described the concept as providing “a measure

of legal protection in domestic law against arbitrary interferences by public authorities.” 319.

See Aharon Barak, Proportionality, 111. 320.

Ibid. 321.

See Hilaire Barnett, Constitutional & Administrative Law, 9th

ed., (London: Routledge, 2011), 81.

108

What about the requirement that it be accessible and foreseeable so as to enable the

individual to regulate his conduct. This requirement is met for even the court took judicial

notice of the operation of the uniform policy since the creation of Lagos State in 1967.

Therefore, the school uniform regulations had gained sufficient notoriety to enable the

applicants in this case to be properly guided.

Next, does “Uniformity” fulfil the requirement of safeguarding public or private interest?

Liberty consists in the freedom to do everything which injures no one else. Section 17 of the

1999 Constitution provides that Nigeria‟s social order is founded on ideals of freedom,

equality and justice. Does uniformity uphold these values? The answer is yes. The question is

how does uniformity protect freedoms or equality or justice in schools? Public schools are

places where different persons meet; uniformity aids such meetings. Uniformity ensures

equality in that everyone is related to in the same way, ensuring that no one receives special

treatments or is treated differently from others. It also reduces discrimination, promotes unity

amongst students by preventing the formation of cliques along religious lines with the

potentials of conflicts within the school. It guarantees the freedom of other students not to be

intimidated by those wearing of religious apparels and the conflicts that would result when

other religious groups demand that they be allowed to put on their religious wears. Also, the

state is not drawn into favouring any religious order as demanded by the neutrality of

secularism. The requirement of uniform also aid interaction between teachers and students

and prevents certain discriminatory tendencies of teachers to favour those who share of the

same religions as them. Where a teacher discriminates between students, there is no equality,

no uniformity, but discrimination – not only against the peculiar student but also the other

students are being made subjects of discrimination. In all these, uniformity safeguards both

public and private interests.

109

4.2.2.2 The requirements of Rational Connection and the Absence of Alternative

Measures

Under this head, two questions are grouped much because. The first askes; is there a rational

connection between the purposes sought to be safeguarded and the measures taken by the

making of uniform regulations? The answer is simple, yes. This is because, uniformity seeks

to prevent association based on external appearance. The requirement of wearing a single

uniform ensures that relations between students is anchored on a single identity; that of

student-hood. The rational connection is further shown in that the uniform regulations is only

operative within the school‟s premises during the school year.

Next, are there alternatives to uniforms, in the sense that would allow students who intend on

wearing hijabs to go on with their religious practise while still achieving uniformity in the

treatment of students? Other alternatives that could have a lesser impact on the right to

freedom of religion would include holding seminars or instructions on tolerance, unity and

the negative side of discrimination. However, how effective would these alternative measures

be in encouraging objectivity? It is submitted that it would not be much. Uniforms ensure that

everyone stands on an equal footing.322

4.2.2.3 Proportionality stricto sensu

This head requires the examination whether there is a proper relation between the importance

of achieving the proper purpose and the social importance of preventing the limitation on the

constitutional right. Put in another way, does the beneficial effect of the limitation on the

right outweigh the deleterious effects of the limitation?

322.

The importance of uniform informed the 1996 President Clinton and the Department of Education encouragement for schools to adopt uniforms. See Elisabetta Gentile and Scott A. Imberman “Dressed for Success? The Effect of School Uniforms on Student Achievement and Behaviour.” Available at

110

It must first be stated that what constitutes interference with the manifestation of religious

belief depends on all the circumstances of the case, including the extent to which in the

circumstances an individual can reasonably expect to be at liberty to manifest his beliefs in

practice. The ECtHR has found infringement only when the interference or limitation makes

it impossible for a person to manifest their beliefs.323

Much of the importance of achieving

the proper purpose (and in this case, securing the State‟s legal foundation) has been discussed

under the proper purpose test. The present test requires the weighing of the beneficial interest

of maintaining the state‟s legal order (values of freedom, equality and justice) as against the

benefit of preserving the freedom to manifest belief through clothes (which does not consist

in the core of the right but its outer fringes). It is submitted that the beneficial effect of the

limitation on the right far outweigh the deleterious effects of the limitation. This is because,

the effect on the freedom is very trivial 324

as the limitation is only operative within the school

premises on the days the students present him/herself for learning, while the social benefit of

using uniforms continue year round in helping to secure the values of freedom, equality and

prevent discrimination with its attendant evils.

4.2.3 Comments

In this case there is mention of no form of balancing between the right to freedom of religion

and the uniform regulation made, making it seem that any law made by virtue of section 45

authority, whether pursuing the proper purposes or not is justified. This lack of attention to

balancing is not peculiar to the present case. The Supreme Court in Osawe & ors v. Registrar

of Trade Unions,325

(cited as authority by the High Court in holding that rights could be

323.

See Kalac v Turkey (1997) 27 EHRR 552, 564, para 27; Ahmad v United Kingdom (1981) 4 EHRR 126, para 11. 324.

See R v. Jones [1986] 2 SCR 284 at 313 per Wilson J. ‘Legislative or administrative action whose effect on religion is trivial or insubstantial is not… a breach of freedom of religion.’ 325.

(1985) NWLR (Pt 4); (1985) 5 S.C. 343.

111

subject to limitation) mentions no form of balancing. In that case, the issue was the right to

form or join a trade union of one‟s choice, provided by section 37 of 1979 Constitution,

which was limited by section 41 of the 1979 Constitution. The Supreme Court (with due

respect) was content to state that the section 3 (2) of the Trade Union (Amendment) Act which

provided that no trade union shall be registered to represent workers or employers in a place

where there already exist a trade union, was made on the authority of section 41. The court

neither paid attention to the maybe deleterious effect of limiting statutes nor to the

circumstances which would require the justified limitation of rights. This lack of attempts at

balancing begs the constitutional requirement in the section 45 of the 1999 Constitution that

the law limiting a right „be reasonably justified in a democratic society.‟ It is submitted that

justification is to be found in balancing.

Similarly, the court takes a very uncomfortable view that on the authority of A.G. Lagos v.

Hon Justice Dosunmu,326

“the courts have a duty to recognise and trust the discretion of the

government and therefore should not dismiss off-hand a State policy adopted as a means to

achieving ends for public good. Judicial utterances like this (with due respect) can lead to the

fettering of judicial powers. The importance of rights explains their inclusion in the

constitution.327

When an applicant complains about an act of government that infringes a

provision of the constitution, judicial review is required to protect the sanctity of the

constitution.328

The recognition of government‟s duty to make laws for the good governance

of the country does not impose a duty on the courts to trust that when laws are made, they

326. (1989) 3 NWLR (Pt 3) 552; (1989) 6 SCNJ (Pt 11) 134.

327.

The urgency to be given to fundamental rights litigation is evident in the Fundamental Rights (Enforcement Procedure) Rules, 2009 which requires that no human right litigation be dismissed or struck out for want of locus standi. See the preamble to the rules. 328.

Allan R. Brewer-Carias Constitutional Courts as Positive Legislators: A Comparative Law Study, (New York: Cambridge, 2011), 174.

112

have met the criteria of good governance, governments are not infallible. If that were so,

there would be no need for review of government actions by the courts. A better view is the

acknowledgement that the government authorities are in principle better placed than the

courts to evaluate local needs and conditions before making laws that limit rights. However,

this does not impose a duty on the courts to trust the discretion exercised without reviewing

the laws so made.

Finally, there is a problem with the acceptance of the authority of Sahin v. Turkey329

while

two other Nigerian authorities are distinguished by the court on the grounds that the

applicants in the suit before the court involves minor while in the Nigeria cases, the

applicants were adults. It must be stated that the acceptance of Sahin‟s case is unjustified if

that ground of distinguishing is solely to be followed as that case involved an adult in a

university where a dress code was imposed. Though the final conclusion of the case is not

affected by the choice of Sahin v. Turkey, a better authority is to be found in the English case

R. (S.B.) v. Governors of Denbigh High School.330

In that case the House of Lords on

applying the doctrine of proportionality found that the application of a school‟s uniform

policy did not breach the Article 9 rights of the Muslim claimant. A majority of the Court

took the view that there was no interference with the claimant‟s rights.

The facts are that; Shabina Begum, a 16-year-old Muslim girl, was sent home from her

school in Luton, Bedfordshire, for wearing a full-length „jilbab‟ rather than the school

uniform. Begum remained out of school for two years before she began to attend another

school which allowed her to wear the jilbab. She commenced proceedings for judicial review

against the head teacher and governors of Denbigh High school, claiming that the decision

not to admit her while wearing a jilbab was unlawful because it infringed two of her

329.

Decision of 29 June 2004 Application Number 44774/98. 330.

[2007] 1 AC 100

113

Convention rights: the right to manifest religion in practice and observance and the right to

education.

The Lords found that the right to hold a belief was absolute but the right to manifest that

belief was qualified. In other words, the state could interfere or limit the manifestation of

religion or belief if it was justified. To be justified under Article 9(2), the limitation or

interference must be prescribed by law and necessary in a democratic society and must be

proportionate in its scope and effect. In finding there was no infringement of Begum‟s rights

under Article 9, Lord Hoffmann pointed out that Article 9 does not require that one should be

allowed to manifest one‟s religion at any time and place of one‟s own choosing.331

A majority of the House of Lords found that the school‟s uniform policy did not constitute an

interference with her Article 9 rights. Lord Scott, following the approach of the European

Court of Human Rights,332

stated that a rule does not infringe the right of an individual to

manifest his or her religion merely because the rule does not conform to the religious beliefs

of that individual. And in particular this is so where the individual has a choice whether or

not to avail him or herself of the services of that institution or other public institutions

offering similar services, and whose rules do not include the objectionable rule in question.

Baroness Hale and Lord Nichols suggested that this approach set too high a threshold for

determining whether the school‟s uniform rule interfered with Ms Begum‟s right to manifest

331.

Ibid paragraph 50. 332.

See Karaduman v Turkey (1993) 74 DR 93, where the applicant was denied a certificate of graduation because a photograph of her without a headscarf was required and she was unwilling for religious reasons to be photographed without a headscarf. The Commission found no interference with her article 9 right because by choosing to pursue her higher education in a secular university a student submits to those university rules, which may make the freedoms of students to manifest their religion subject to restrictions as to place and manner intended to ensure harmonious coexistence between students of different beliefs. Similarly in Valsamis v Greece (1996) 24 EHRR 294, It was held that article 9 did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner and that there had been no interference with the child’s right to freedom to manifest her religion.

114

her religion. Lord Nicholls said that he was not so sure that there had been no interference

noting that it was not easy to move to another school, and this disrupted her education.333

Baroness Hale thought that there had been interference with Begum‟s right to manifest her

religion, as it was her parents‟ choice to send her to the school and accept the uniform policy,

rather than her own. Both concluded, however, that the interference was justified.334

Conclusion

Where questions concerning the relationship between state and religions are at stake, it is

necessary to have regard to the fair balance that must be struck between the various interests

at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order.

However, it must be noted that there is a difference between the right to freedom of thought,

conscience and religion and other rights. It has an internal dimension and falls beyond the

jurisdiction of the state so it must not be restricted. The right to manifest one‟s religion or

belief may be limited or interfered with as long as it is justifiable. The justifications must be

prescribed by law and be necessary and proportionate to the aim of the limitation.

333.

Ibid, Paragraph 41. 334.

Ibid, paragraph 94.

115

CHAPTER FIVE

This chapter comprises the summary and conclusion derived as a result of the findings of this

study.

5.1 SUMMARY

The purpose of this works was to show that in democratic societies, the law must of necessity

impose some limitations on the right to freedom of religion particularly, the manifestation of

such religious beliefs in actions.

The introductory part of this work dealt with the conflict between law and religion, the theme

of this work. It was once a popular opinion to hold that law had its origin in religion and both

were indistinguishable. However, present indications show that they are being separated and

with good reason. It questioned the merits in keeping law and religion in separate spheres. It

was identified that States which are beset by ethnic or religious conflicts face the challenge of

danger to their very political existence if they do not consolidate the unity of the society

around the nation principle, hence their adoption of the secular constitutions. It was also

noted that religion also gains from this secular stance as without proper separation, the state

will divert religious organisations and its tenets for its own purposes. Thus, separation from

the State unburdens religion

116

In chapter 2, discussion took the turn of examining what it meant for a State to be secular and

clearing certain misconceptions about secular countries. To that extent, secularism is not

synonymous with atheism, though it is recognised that atheist have an interest in the state

being secular, but that secularism simply provides a framework for a democratic society, for

ensuring equality throughout society - in politics, education, the law and elsewhere, for

believers and non-believers alike.

Also, by way of comparative analysis of secular countries, three traits by which secular

countries are identified was unearthed. These are;

4. The prohibition of the adoption of a state religion;

5. The guarantee of freedom of religion;

6. The general constitutional provisions which aim at separation of the religion from the

sphere of the State (though in varying degrees) in acts like the prohibition of

discrimination on grounds of religion and imposition of religious test for qualifying to

a public office

Based on the above requirements, it was concluded that the framers of the Nigerian

Constitution intended by the inclusion of Section 10 that Nigeria be a secular state even

though in practise government isn‟t being neutral. This is because Nigeria is a multi-religious

country where to maintain peace, order and toleration, the government must be seen to be

neutral towards religious groups. Also, an understanding of the status of the constitution as

the supreme law of the land, as well as its unique role in shaping the nation‟s image across

generations, that Nigeria is a secular state is the only interpretation that can be given to

Section 10. It was also identified that freedom of religion in any society can exist only on the

premise of the equality in the enjoyment of the freedom. This equality can only be found

where the State was neutral and secular.

117

In chapter 3, focus was on fundamental rights and its history. The development of rights

arose from the recognition of basic needs and it has continually grown to cover many ambits

as time evolved. It was found that the modern theory of constitutional human rights was

formed after the Second World War with the Universal Declaration of Human Rights in 1948

which emphasised the inherent nature of rights. The importance of rights to checkmate

government abuses inspired their inclusion in many international and regional agreements

and even within the African Continent335

and in Nigeria‟s Constitutions since Independence

in 1960.

Also, it was revealed that rights were not all absolute; few were, but a vast majority of them

could be justifiably limited. The categories of limited rights were referred to as “relative

right,” and in limiting them, there is a need to draw a distinction between the scope of the

right and the extent of its protection.336

The scope of the right determined the right‟s

boundaries and its content, while the extent of its protection determined the legal limitations

on the exercise of the right within its scope. The doctrine of Proportionality was suggested as

a modern tool for reviewing limitations and carrying out balancing of deleterious effects

limitations could have on rights.

In addition to the above, the freedom of thought, conscience and religion was discussed in

chapter 3 as an inherent part of the fundamental rights laid down by the United Nations.

Accordingly, under Article 18 of the International Covenant on Civil and Political Rights and

Section 38 of the Constitution of The Federal Republic of Nigeria,337

everyone has the right to

freedom of thought, conscience and religion. This right includes freedom to have or to adopt

335. See African Charter on Human and Peoples’ Right, 1981.

336.

Barak, Proportionality, 19. 337.

See also Article 9 of European Convention on Human Rights, 1950.

118

a religion or belief of his or her choice, and freedom, either individually or in community

with others and in public or private, to manifest his or her religion or belief in worship,

observance, practice and teaching. No one can be subject to coercion which would impair his

or her freedom to have or to adopt a religion or belief of his or her choice. Freedom to

manifest one‟s religion or beliefs may be subject only to such limitations as are prescribed by

law and are necessary to protect public safety, order, health, or morals or the fundamental

rights and freedoms of others. Further, Article 18 in fine specifies that the States Parties to the

Covenant undertake to have respect for the liberty of parents and, when applicable, legal

guardians to ensure the religious and moral education of their children in conformity with

their own convictions. Article 26 of the Covenant lays down a general principle of non-

discrimination, which concerns religion among other things. The importance of freedom of

thought, conscience and religion cannot be overstressed. Generally speaking, it is regarded as

one of the foundations of democratic society. Specifically, religious freedom is a vital

element that goes to make up the identity of believers and their conception of life.338

In Chapter 4, the case of Asiyat Abdulakareem & ors v. Lagos State Government & ors339

was

analysed. With the aid of proportionality it was found that the uniform regulations for public

primary and secondary schools of the Lagos State Government was justifiable to limit the

right to freedom of religion and in that case, the manifestation of religious belief in dressing.

However certain problems with the ratio were identified including the absence of attempts by

the court to consider balancing of rights and their limitation.

In all, the following are the major finding of this work.

338. It is noteworthy that over the past ten years the number of cases examined by the ECtHR under

Article 9 has been constantly growing. This trend can largely be explained by the increasing role of religion and associated questions in the socio-political arena. 339.

Unreported; Suit No. ID/151M/13.

119

That there are merits in advocating for secularism as there is greater co-operation and

lesser incidence of religious intolerance in secular countries.

That Nigeria is operates a secular constitution but, despite the wordings of Section 10

of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Nigeria is

not yet functionally secular.

That a right is hardly absolute in its realization.

That public interest and the rights of others could limit another person‟s realisation of

his/her right.

That in a democratic society, limitations on the fundamental rights of persons must be

justifiable and founded on law.

That the doctrine of proportionality aids in achieving a balance between conflicting

rights and interests.

5.2 CONCLUSION

A secular conception of the society, serves to protect the interest of all religious groups.

Nigeria is secular state by virtue of the provisions of the constitution, therefore government

practises at variance with this secular stance is a violation of the constitution. Also, the view

that rights are absolute is unsupportable as only a few are. A person rights stops where

another‟s right starts. Similarly, the right to freedom of religious is better protected in a

secular state but also can be justifiably limited in the interest of society, both private and/or

public.

120