versão On-line ISSN 1609-073X
Afr. hum. rights law j. vol.8 no.2 Pretoria 2008
Enyinna S Nwauche
Associate Professor of Law; Director, Centre for African Legal Studies, Port Harcourt, Nigeria
This paper explores the relationship between law, religion and human rights in Nigeria. The level and intensity of religious strife in Nigeria justify this inquiry, whose aim should be the design of a framework that enables individuals to enjoy the freedom of religion and ensures that religious conflicts are managed in Nigeria's multi-ethnic and multi-religious context. Almost a decade to the introduction of Islamic criminal law in the 12 northern states of Nigeria, there is no longer any doubt that religion is fundamental to the survival of Nigeria. The basic thesis of this paper is that the key to understanding the relationship between law, religion and human rights in Nigeria lies in the unacknowledged dominance of Islam and Christianity, which I characterise as de facto state religions, and the resulting neglect of other religions. It is this reality, its denial and misunderstanding of attendant constitutional obligations that define the relationship between the Nigerian state and religion.
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1 Eg, see H Agberemi 'Nigeria beyond secularism and Islamism: Fashioning a reconsidered rights paradigm for a democratic multicultural society' (2005) 2 Muslim World Journal of Human Rights http://www.bepress.com/mwjhr/vol2/iss1/art10 (accessed 30 September 2008). [ Links ]
2 The Pew Forum on Religion and Public Life states in its Religious Demographic Profile of Nigeria that according to the most recent Demographic and Health Survey held in 2003, which presents statistics of a nationally representative sample of women between the ages of 15 and 49 and men between 15 and 59, '50,5% of the population is Muslim and 48,2% is Christian. Only 1,4% is associated with other religions' http://www.pew-forum.org/world-affairs/countries/?CountryID=150 (accessed 24 April 2008).
3 The International Religious Freedom Report 2007 for Nigeria issued by the US Department of States, speaking of the proportion of Christians and Moslems, states that it is 'generally assumed that the numbers are equal'. http://www.state.gov/g/drl/rls/irf/2007/90114.htm (accessed 24 April 2008).
4 Sec 38 provides: '(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance. (2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian. (3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination. (4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.'
5 Sec 42(1) of the 1999 Constitution provides inter alia: 'A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:- (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.'
6 Sec 45(1) of the 1999 Constitution provides: '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.'
7  FWLR (Pt 44) 542 (Okonkwo). For commentary on this case, see N Tijani 'Physicians, patients and blood: Informed consent to medical treatment and fundamental human rights' in E Chianu (ed) Legal principles and policies: Essays In honour of Justice Chukunweike Idigbe (2006) 359. [ Links ]
8 Okonkwo (n 7 above) 588.
9 See eg the case of Onyinyeka M Enoch v Akobi (1994) 9 ANSLR 338, where the Anambra State High Court relied on a school directive to justify the refusal of the school to register a student on her objection to a directive to cut her hair on religious grounds. See CO Okonkwo 'Religious freedom - Onyinyeka M Enoch v Mary U Akobi - A comment' (1994-1997) 6 The Nigerian Juridical Review 214. [ Links ]
10  All FWLR (Pt 303) 308.
11 n 10 above, 340-341. See also Nasir P in Uzoukwu v Ezeonu  6 NWLR 708.
12 This seems to be the Islamic response that has caused controversy regarding the allegation that President Yar'Adua led a delegation to the just concluded meeting of the OIC and that Nigeria is now a full member of the OIC because it had paid up all relevant dues during the tenure of President Olusegun Obasanjo. See Punch 3 April 2007 8.
13 See J Tyus 'Going too far: Extending Shari'a law in Nigeria from personal to public law' (2004) 3 Washington University Global Studies Law Review 199. [ Links ]
14 See BO Nwabueze Military rule and constitutionalism (1992) 282; [ Links ] AU Iwobi 'Tiptoeing through a constitutional minefield: The great Shari'a controversy in Nigeria' (2004) 48 Journal of African Law 133-135. [ Links ]
15 See eg M Tabiu 'Shari'a federalism and Nigerian Constitution' paper presented at an International Conference on Shari'a, London, 2001, reproduced in Tyus (n 13 above) 205: 'We can see that the section does not establish ... [the] claim that the Constitution describes Nigeria as a secular state. In fact the Constitution does not use the word secularism or any of its derivatives at all. How then can they build an argument, alleging violation of the Constitution, merely on their personal interpretation of such a word of varied and controversial meaning, which is not even in the Constitution?'
16 See R Peters Islamic criminal law in Nigeria (2003) 33.
17 Sec 4(7) of the 1999 Constitution provides: 'The House of Assembly of a state shall have power to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters, that is to say: (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution; (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.'
18 See IT Benson 'Notes towards a (re)definition of the "secular"' (2000) 33 UBC Law Review 519.
19 See the Shari'a Establishment Law (27 October 1999).
20 Of the four Sunni schools of jurisprudence (Maliki, Hanifi, Shafi'i and Hanbali) the Maliki school prevails in Northern Nigeria. See Peters (n 16 above) 1.
21 These are the states of Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbu, Niger, Sokoto, Yobe and Zamfara. The other seven states in Northern Nigeria have no such laws.
22 See sec 92 of the Zamfara Penal Code.
23 See sec 405 of the Zamfara Penal Code.
24 See secs 406-407 of the Zamfara Penal Code.
25 See the discussion in sec 4.1 above.
26 See eg Peters (n 16 above) ch 1, 12: 'The direct but controlled and restricted application of Islamic criminal law came to an end in 1960 when the new Penal Code Law for Northern Region 1959 was brought into effect. The code remained in force until the recent enactment of Shari'a Penal Codes. The Penal Code of 1959 was based on the Indian (1860) and Sudanese (1999) Penal Codes, and was essentially an English code. However, here and there special provisions were included based on Shari'a criminal law.'
27 See Safiyatu v Attorney-General of Sokoto State, unreported judgment of the Sokoto State Shari'a Court of Appeal dated 25 March 2002. In this case, the appellant appealed against a judgment of the Upper Area Court in Gwadabawa which sentenced her to death by stoning for the offence of zina (adultery) punishable under sec 129(b) of the Sokoto State Shari'a Penal Code 2000. One of her grounds of appeal was that the penal code law was not in existence at the time of the offence. The Court held that the Shari'a Penal Code itself prohibited retrospective criminal legislation in accordance with sec 36(9) of the 1999 Constitution. The Court further held that the Penal Code was in consonance with sec 36(12) of the 1999 Constitution which provides that 'a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection; a written law refers to an Act of the National Assembly or a law of a state, any subsidiary legislation or instrument under the provisions of a law'.
28 See also A Yadudu 'Evaluating the implementation of Shari'a in Nigeria: Time for reflection on some challenges and limiting factors' paper presented to the 2006 Nigerian Bar Association General and Delegates Conference (on file with author); BY Ibrahim 'Application of the Shari'a penal law and the justice system in Northern Nigeria: Constitutional issues and implications' in J Ezeilo et al (eds) Shari'a implementation in Nigeria: Issues and challenges in women's rights and access to justice (2003) http://www.boellnigeria.org/documents/sharia%20implementation%20 in20%Nigeria.pdf 128 132 (accessed 30 September 2008): 'Being a supreme law, a constitution is endowed with a higher status in some degree over and above other legal rules in the system of government. It is in this light that the 1999 Constitution can be described as the supreme law in Nigeria ... This being so, the Shari'a legislated and practised in some northern states of Nigeria must comply with the provisions of the 1999 Constitution.' See also JM Nasir 'Women's human rights in a secular and religious legal system' 1 28, being part of the a two-day strategic conference on Islamic legal system and women's rights in Northern Nigeria organiszed by WARDC Lagos and WACOL Enugu (27-30 October 2002) http://www.boellnigeria/docu-ments/sharia%20%20women%27s%20human%20Rights%20in%20Nigeria%20 %20strrategies%20for%20Action (accessed 30 September 2008).
29 See eg sec 68(A)(3)(b) of the Niger State Penal Code which provides that, in the requirement for proving the offence of unlawful sexual intercourse, the testimony of men is of greater value than that of women.
30 See egf FU Okafor Igbo philosophy of law (1992); O Adewoye The judicial system in Southern Nigeria 1854-1954 (1977).
31 A Ahmad 'Extension of Shari'a in Northern Nigeria: Human rights implications for non-Muslim minorities' (2005) 2 Muslim World Journal of Human Rights http://www.bepress.com/ mwjhr/vol2/iss1/art6 (accessed 30 September 2008).
32 See Iwobi (n 14 above) 5. See also Peters (n 16 above) 34: (t)he recognition of Muslim civil and personal law is sufficient for Muslims to be able to practise their religion. The introduction of criminal law necessitates an intensive involvement of the state and could be regarded as the adoption of Islam as state religion.'
33 See sec 277 of the 1999 Constitution.
34 See Ahmad (n 31 above) 17, who identifies the inability of the 12 northern state governments to enforce the constitutional obligations to other religions largely to the lack of articulation or justification of the difference between the principles of classical Shari'a and the Islamic Penal Codes with respect to the status of non-Muslims in an Islamic state.
35 Cap M6 Laws of the Federal Republic of Nigeria 2004.
36 See ladesinmi v Okoitie-Eboh  2 NWLR (Pt 429) 128 147-148.
37 Cap C38 Laws of the Federal Republic of Nigeria 2004.
38 Cap E14 Laws of the Federal Republic of Nigeria 2004.
39 Ch O1 Laws of the Federation of Nigeria 2004. Sec 8 of the Oaths Act allows persons to affirm rather than swear to an oath.
40 Ch P40 Laws of the Federation of Nigeria 2004.
41 (1994) 7 NWLR (Pt 353) 154.
42 n 41 above, 192-193.
43 See generally AA Oba 'Islamic law as customary law: The changing perspective' (2002) 51 International and Comparative Law Quarterly 817.
44 The assertion in IE Ekwo Incorporated trustees law for churches and religious associations (2003) 35 that '[a]pplication for registration by the church is an exhibition of an intention to have its formation and establishment legalised' is therefore wrong.
45 Ch C20 Laws of the Federation of Nigeria 2004.
46 E Chianu 'Registration of churches in Nigeria - Keeping religious freedom and societal interests on equipoise' (2000) 1 Nigerian Contemporary Law Journal 60.
47 (1985) 1 NWLR 755.
48 Sec 26(1) of CAMA provides that '[w]here a company is to be formed for promoting commerce, art, science, religion, sports, culture, education, research, charity or other similar objects, and the income and property of the company are to be applied solely towards the promotion of its objects and no portion thereof is to be paid or transferred directly or indirectly to the members of the company except as permitted by this Act, the company shall not be registered as a company limited by shares, but may be registered as a company limited by guarantee'.
49 See also Registered Trustees, Apostolic Church, Ilesha Area, Nigeria v The Attorney-General of the Mid-Western State of Nigeria (1972) 1 All NLR 359.
50 See eg Anyaebunam v Osoka (No 2) (2000) 5 NWLR (Pt 657) 380.
51 n 50 above, 389.
52 Sec 408(e) of CAMA.
53  3 NWLR (Pt 968) 463.
54  18 NWLR (Pt 957) 391.
55 See the cases of Lasisi v Registrar of Companies (1976) 7 SC 73 and Kehinde v Registrar of Companies (1979) 3 LRN 213.
56 The original jurisdiction over the CAMA vests in the Federal High Court in Nigeria by virtue of sec 251(e) of the 1999 Constitution.
57 See Tobi JCA in Registered Trustees of the Ifeloju Friendly Union v Kuku (1991) 5 NWLR (Pt 189) 65: 'In our democracy where the rule of law both in its conservative and contemporary constitutional meaning operates, the doors of the courts should be left wide open and I mean really wide open throughout the day for aggrieved persons and the generality of litigants to enter and seek any form of judicial redress or remedy.'
58 (1983) NSCC 523.
59 See also The Registered Trustees of the Apostolic Church v Olowoleni (1990) 6 NWLR (Pt 158) 514 538 : '[A] church organisation ... [is] subject to the rule of law and expected to obey the law.'
60 n 41 above.
61 See the case of The Registered Trustees of Faith Tabernacle Congregation Church Nigeria v Ikwechegh (2000) 13 NWLR (Pt 683) 1.
62 Cap C21 Laws of the Federation of Nigeria 2004.
63 See the 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief.
64  5 NCLR 78.
65 See E Obadare 'From students to disciples: Fundamentalism and the structural transformation of university campuses' in A Agbaje et al Nigeria's struggle for democracy and good governance (2004) 375.
66 One of such universities, the Covenant University, prescribed a virginity test for its graduating students. See 'Religious universities: Campuses of strange happenings' Newswatch 24 September 2007 18: 'Not a few Nigerians were shocked at the revelation that Covenant University conducts medical tests which includes HIV and pregnancy tests and that the result of the tests would stand between the students and their educational pursuits.'
67 Newswatch (n 66 above) 17 alleges that in the Crescent University, Abeokuta Jumat service is compulsory for every student whether you are a Christian or a Muslim.
68 As above.
69 See generally RIJ Hackett 'Conflict in the classroom: Educational institutions as sites of religious tolerance/Intolerance in Nigeria' (1999) Brigham Young University Law Review 537.
70 (1996) 8 NWLR (Pt 465) 248.
71 Ch P42 Laws of the Federal Republic of Nigeria 2004.
72 It is to be noted that the Public Order Act defines in sec 12 a 'public meeting' as including any assembly in a place of public resort and any assembly which the public or any section thereof is permitted to attend, whether on payment or otherwise, including any assembly in a place of public resort for the propagation of any religion or belief whatsoever of a religious or anti-religious nature but, notwithstanding any other provision of this Act, does not include (a) any regular religious service conducted in a mosque, church or any building or other structure customarily used for lawful worship of any description; (b) any charitable, social or sporting gatherings; (c) any meeting convened by a department of any government in the Federation or any other body established by law for its own purposes; or (d) any lawful public entertainment.
73 (2007) 18 NWLR (Pt 1066) 457. This decision can be taken to have overruled Chukwuma v Commissioner of Police (2005) 7 NWLR (Pt 927) 278.
74 Ch N11 Laws of the Federation of Nigeria 2004.
75 See RIJ Hackett 'Charismatic/Pentecostal appropriation of media technologies in Nigeria and Ghana' (1998) 28 journal of Religion in Africa 258.
76 See W Ihejirika 'Media and fundamentalism in Nigeria' 2005 (2) Media Development http://www.www.wacc.org.uk/wacc/publications/media_development/2005_2/media_fundamentalism_in_Nigeria: 'Before the advent of Pentecostal media, religious broadcasting has been provided as a form of public services by the various media houses. Today, because of the money accruing from the televangelists, none of the stations allocates space for public service religious programmes.'
77 See Hackett (n 75 above) 270: 'It is precisely the appeal of these Western Christian programmes that Muslim leaders fear, and their powerful images of health and wealth- directly offered and electronically mediated by the persuasive evangelist in the privacy of one's own home.' See also Ahmed (n 31 above) 3: 'The unprecedented proselytisation, televangelism and deployment of foreign religious personnel and fund into Nigeria is a manifestation of the power of Nigerian Christians, which spawns a siege mentality amongst Muslims, who then perceive the institutionalisation of Shari'a in Muslim states as a kind of safety net.'
78 See Iherjirika (n 76 above): 'For instance, on a number of occasions, attempts have been made by the Commission to stop the airing of the programmes of Pastor Chris Oyakilome, the most visible and flamboyant Pentecostal preacher. The allegation is that his programmes carry unsubstantiated claims of miracles and healings ... These attempts have ended in failure because of stiff resistance especially from the private electronic media owners in the country who know how much income they will be losing if the programme is stopped. Despite all the threats and warnings, Oyakilome still appears on both national, state and private radios and televisions with his programme "Atmosphere for Miracle".'
79  6 NWLR (Pt 710) 543.
80 Judgment reproduced at 557-8.
81 (1991) 7 NWLR (Pt 204) 391.
82 See ES Nwauche 'A note on the burdens of association and limits of legality in Nigeria' (1994-1997) 6 The Nigerian Juridical Review 235.
83  4 NCLR 492.
84 n 83 above, 494.
85 n 83 above, 493.
86  1 ALL NLR 277.
87 The said section provides that any person who (a) by his statements or actions represents himself to be a witch or to have the power of witchcraft; or (b) accuses or threatens to accuse any person with being a witch or with having the power of witchcraft; or (c) makes or sells or uses, or assists or takes part in making or selling or using, or has in his possession or represents himself to be in possession of any juju, drug or charm which is intended to be used or reported to possess the power to prevent or delay any person from doing an act which such person has a legal right to do, or to compel any person to do an act which such person has a legal right to refrain from doing, or which is alleged or reported to possess the power of causing any natural phenomenon or any disease or epidemic; or (d) directs or controls or presides at or is present at or takes part in the worship or invocation of any juju which is prohibited by an order of the state commissioner; or (e) is in possession of or has control over any human remains which are used or are intended to be used in connection with the worship of invocation of any juju; or (f) makes or uses or assists in making or using, or has in his possession anything whatsoever the making, use or possession of which has been prohibited by an order as being or believed to be associated with human sacrifice or other unlawful practice; is guilty of a misdemeanour, and is liable to imprisonment for two years.
88 See Gadam v R (1954) 14 WACA 442. See also Oputa JSC in Goodluck Oviefus v State (1984) 10 SC 207 262.
89 See LO Aremu 'Criminal responsibility for homicide in Nigeria and supernatural beliefs' (1980) 29 International and Comparative Law Quarterly 113.
90 See A Yadudu 'Colonialism and the transformation of the substance and form of Islamic law in the northern states of Nigeria' (1992) 32 Journal of Legal Pluralism and Unofficial Law 103.
91 See AG Karibi-Whyte The history and sources of Nigerian criminal law (1993) 124.
92 See C Okonkwo & M Naish Criminal law in Nigeria (1980) 9-10; MA Owoade 'Some aspects of criminal law reform in Nigeria' (1980) 16 Nigerian Bar Journal 25.
93 See sec 2 Native Courts Ordinance, Cap 142 Revised Edition of Laws of Nigeria 1948.
94 See sec 2 of the High Court Law, Cap 42, Laws of Northern Nigeria, 1963 (applicable to the northern states of Nigeria).
95 For the views of scholars, see AA Oba (n 43 above); YK Saadu 'Islamic law is NOT customary law' (1997) 6 Kwara Law Review 136; M Tilley-Gyado 'A case for the inclusion of African customary law in the curriculum of law faculties in Nigerian universities' (1993-1995) 2 & 3 Nigerian Current Legal Problems 246 256-7.
96 See the cases of Umaru v Umaru (1992) 7 NWLR (Pt 254) 377: '[T]he definition of "customary law" ... is incapable of including "Moslem law".' In Alkamawa v Bello  6 SCNJ 127 136 Wali JSC stated obiter that 'Islamic law is not the same as customary law as it does not belong to a particular tribe. It is a complete system of universal law, more certain and permanent and more universal than English common law.'
97 See sec 20(1) of the High Court Law of Cross River State which defines customary law as 'a rule or body of rules, regulating rights and improving correlative duties, being a rule or a body of rules which obtains and is fortified by established usage'.
98 See eg sec 16(1) of the High Court Law Bayelsa State which provides that '[t]he Court shall observe and enforce the observance of customary law and shall not deprive any person of the benefits thereto except where such customary law is repugnant to natural justice equity and good conscience or incompatible either directly or by its implication with any written law from time to time in force in the state'.
99 See eg the cases of Okonkwo v Okagbue  9 NWLR (Pt 368) 301; Yinusa v Adesubokan (1968) NNLR 97; Zaidan v Mohsen (1971) 1 UILR (Pt.II) 283.
100 Academic commentary on the repugnancy test is overwhelming. A representative sample is as follows: A Ojo 'Judicial approach to customary law' (1969) 3 Journal of Islamic and Comparative Law 44; Y Aboki 'Are some Nigerian customary laws really repugnant' (1991-1992) 9-10 ABU Law Journal 1; BO Achimu 'Wanted - A valid criterion of validity for customary law' (1976) 10 Nigerian Law Journal 35.
101 This test is provided for in sec 14(3) of the Evidence Act.
102 (1994) 9 NWLR (Pt 368) 301 (SC).
103 n 102 above, 341.
104 See Uke v Iro  11 NWLR 196 where a Nnewi custom, by which a woman is precluded from giving evidence, was held unconstitutional as it offended the right to freedom from discrimination. See also Ukeje v Ukeje  27 WRN 142, where the Court of Appeal held that an Igbo custom that disentitles daughters from participating in the sharing of the estate of their deceased father was unconstitutional.
105 See eg the case of Onyenge v Ebere  All FWLR (Pt 219) 981.
106 See generally AA Oba 'Juju oaths in customary law arbitration and their legal validity in Nigerian courts' (2008) 52 Journal of African Law 139.
107 See ES Nwauche 'The right to freedom of religion and the search for justice through the occult and paranormal in Nigeria' (2008) 16 African Journal of International and Comparative Law 35 53.
108 Ch A8 Laws of the Federation of Nigeria 2008.