THE VIOLATION OF THE FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION: THE ROLE OF STATE ACTORS By Edim Effiong Edim Esq

Section 38(1) of the Constitution makes provision for the citizen’s "freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or together with others; in public or private) to manifest and propagate his religion or belief in worship, teaching, practice and observance." Section 39(1) also provides that; "every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference", while Section 40 guarantees that "every person shall be entitled to assemble freely and associate with other persons". 

These are the granting clauses that give the citizens of Nigeria the constitutional right to engage in religious propagation within the shores of Nigeria among other rights; to associate and to hold opinions or to impart ideas without any hindrance.

However, these rights are not absolute. The Constitution gives the state power to derogate from them through laws that "are reasonably justifiable in a democratic society".  Specifically, Section 45(1) provides that "nothing shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other persons". 

The ordinary implication of the provision of Section 45(1) is that governments do not have the right to limit the enjoyment of the right as they deem fit—unless and until the conditions mentioned in the provision are satisfied. 

The questions that immediately come to mind however are; What is the meaning of the phrase “reasonably justifiable law”? What are the criteria for its determination? Also, what comes within the purview of these "legitimate aims" that the Constitution allows? Unfortunately and quite regrettably, the Constitution is silent on the meaning of these phrases. The Constitution did not also define what comes within the purview of phrases such as defence, public health, public morality etc or even the right of others that it seeks to protect. This lack of definitions by the drafters of the Constitution, allows the government and it's actors to take advantage of this vacuum to determine the meaning of those terms in derogating from the rights. In addition, the meanings of words like manifestation, worship, teaching, practice and observance in the provision are not provided for. Nobody knows whether they can apply to a wider range of beliefs or not. This therefore places on the Courts, a very heavy burden in interpreting what these rights actually entail and their limitations.

In discharging this somewhat heavy burden, the Supreme Court has in several cases, given protection to freedom of religion. In the case of Asiyat Abdulkareem & ORS v. Lagos State Government & ORS, the High Court of Lagos held that the wearing of hijab by a female Muslim students in a secular school infringed on the right of other non-Muslim students who would feel inferior to the hijab-wearing students. On appeal, The Court of Appeal reversed this decision in favour of the student. In reversing the judgement of the High Court of Lagos State, the Court of Appeal held that each individual has the basic right to believe what he chooses to worship, whom he pleases and how he pleases, always provided that he does not interfere with the right of others. 

By this judgement, the Court acknowledged the existence of majority and minority religious groups in Nigeria.  It objected to the definition of religion based on a formal way of worship and reliance on a holy book. The Court also affirmed that the Nigerian Constitution guarantees the right to freedom of thought, conscience and religion. In the opinion of the court, by virtue of the provision of Section 38 of the Constitution, a person is free in private or public to manifest and propagate and practice his religion. The limits of this freedom as in all cases are "when they impinge upon the rights of others or where they put the welfare of the society or public health in jeopardy."

The "state actors" as discussed in this article, are not just the actors at the Federal (Centre) level, but also at the local levels (i.e the 36 states). Interestingly, the various states by their actions and inactions at various quarters (whether by utterances or enactments), play a greater role in the violation of the right to freedom of thought, conscience and religion than their counterparts at the Federal level. An example is where Governors of states with a Christian majority, declare their states, Christian States against the clear provision of Section 10 of the Constitution which states, “[t]he Government of the Federation of a State shall not adopt any religion as State Religion.” Another example is the continued use of state resources to fund mosque construction, the education of Kadis (Muslim judges), pilgrimages to Mecca (Hajj), and religious instruction in schools. Some states have also used government funds to pay for Christian pilgrimages to Jerusalem. In general, states with a Christian or Muslim majority favour and give privileges to the majority faith to the exclusion of religious minorities. We have seen several cases where Northern states have enacted laws compelling preachers to secure preaching licences before holding crusades. There have also been cases where in predominantly christian southern states, Muslims have been denied permission to build Mosques. These and many more, are roles active state actors have played in derogating from these right. 

In 2019, the United States of America listed Nigeria amongst "Countries of Particular Concern" for religious freedom, thereby accusing Nigeria and other countries of violation of religious freedom.

The Nigerian Government in response, stated that the development was "surprising", noting that as a secular country, the government remained committed to ensuring "respect and protection of all citizens' right to religious freedom and promotion of religious tolerance and harmony". Nigeria's response to say the least, was laughable because the actions and inactions of the Government towards the continuous violation of religious freedom are very visible to even the blind! From arresting one person for "insulting" Prophet Mohammed through a Facebook post, to sentencing to death another, for posting a song on Whatsapp that was also deemed "insulting", the cases abound in grave proportion.

Laws prohibiting sedition, criminal defamation, and publication of false news are regularly used by the government to crack down on dissent. In November 2019, the National Assembly considered two draft legislations: Protection from Internet Falsehood and Manipulation and other Related Offences Bill 2019 and the Bill to establish a National Commission for the Prohibition of Hate Speech. If passed into law, the bills will give authorities arbitrary powers to shut down the internet, make criticizing the government punishable with penalties of up to three years in prison, a life sentence and a maximum of death penalty. Following public outcry, the decision to pass the bills was suspended. Interestingly, the bills are yet to be formally withdrawn.

Way forward

In view of the aforesaid, it is evidently clear, that the 1999 Nigerian Constitution has to be amended to make provisions for the definitions of all-important phrases used in the freedom of religion provision so that the state is not allowed to determine the meaning of such terms and phrases alone and the way they want it. 

It is also important that states re-examine their preaching Laws with a view to checkmating decisions based on individual discretion. This will of course, ensure neutrality. 

Also there has to be massive enlightenment campaigns to educate people on the meaning and values of freedom of religion and belief.  

Finally, judges must undergo regular training to understand how these legitimate limitations stated above should be interpreted and how courts elsewhere have interpreted them.