Unsurprisingly, the bill has generated heated debates across the country with some religious leaders issuing an ultimatum to Governor Nasir el-Rufai, to either retrieve it from the state House of Assembly or face “serious consequences”. So far, the arguments advanced in support and against the bill have been largely tainted with sentiments and emotion.
However, one question that continues to agitate the minds of legal experts, religious leaders, the media, civil society and the teeming public is: Can the bill pass the test of constitutional validity? In other words, are the provisions of the bill consistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended)?
This is the constitutional question which I intend to address and hopefully, resolve.
It is elementary that by virtue of Section 1 (1) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), (subsequently referred to as the “1999 Constitution”), the constitution is supreme and if any other law is inconsistent with its provisions, the constitution shall prevail and that other law shall be declared null and void to the extent of its inconsistency. See F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) 113; A-G., Abia State v. A-G., Federation (2002) 6 NWLR (Pt. 763) 264; Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228.
A careful and dispassionate perusal of the bill shows a litany of apparent, inherent and indisputable provisions in it which conflicts with the letters and spirit of the 1999 Constitution. The bill in my respectful view is so constitutionally defective that there is clearly nothing left for a serious parliament to consider. The conflicting and inconsistent provisions in the bill are too obvious to ignore; they cannot survive the surgical eyes of the courts.
The bill is unconstitutional for the reasons stated below:
It has expressly adopted Christianity and Islam as the official state religion(s) in Kaduna State contrary to the express provisions of the constitution. For clarity, Section 10 of the 1999 Constitution states that: “The Government of the Federation or of a State shall not adopt any religion as State religion.” Section 4 of the bill declares Islam and Christianity as “the two major religions in the state.” The bill goes further to establish committees to regulate the two religions.
It is instructive to note that the marginal note to Section 10 of the 1999 Constitution reads “prohibition of State Religion.”
The 1999 Constitution has effectively and expressly prohibited every state in Nigeria and the Federal Government, including the Kaduna State House of Assembly, from enacting any piece of legislation which purports to adopt any religion or religions over others. By specifically identifying Islam and Christianity as “the two major religions” in Kaduna State, and establishing committees to regulate them, the bill has literarily set fire on the provisions of Section 10 of the 1999 Constitution.
It is needless to say that there are different religions in Kaduna State, other than Islam and Christianity, whose adherents are neither Muslims nor Christians. It is not within the legislative powers of the Kaduna State House of Assembly to determine which religion is major and which is minor. Such discriminatory legislation offends Section 42 of the 1999 Constitution which prohibits discrimination on the basis of religion among others.
The bill audaciously infringes on the constitutional rights of the citizens of Nigeria in Kaduna State to freedom of thought, conscience and religion and freedom of assembly and association. Section 3 of the bill defines a “preacher” as “a person duly licenced by Jama’atu Nasil-Islam or Christian Association of Nigeria, to preach.”
This definition is bereft of any legal basis. Section 38 (1) of the 1999 Constitution emphatically states 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.”
Sections 5, 6 and 7 of the bill establish committees in each local government area to screen and issue preaching licences to preachers and permits to the so-called “sponsored external preachers”, and ensure compliance with the terms of the licences and permits. These provisions are offensive to the fundamental right to freedom of religion in Section 38 of the 1999 Constitution.
I wish to restate three basic limbs to the constitutional right to freedom of religion under Section 38 of the 1999 Constitution supra. That provision guarantees the right of every person to belong to any religion and the right to change one’s religion; under the provision, every person is free to practise any religion, including Islam and Christianity, either ALONE or in community with others. Furthermore, every person is free to manifest his religion or belief in PUBLIC or in private in worship, teaching, practice and observance.
A person can decide to practise his Christian or Islamic religion and belief alone without regard or reference to other members of the society or the Christian Association of Nigeria and the Jama’atu Nasir-Islam, respectively. It is manifestly unconstitutional for any government to seek to legislate on what qualifies a person to be a Christian or an Islamic preacher. That is a matter for God and Allah to decide, respectively.
A pastor in Kaduna for instance can decide to establish a Church without joining CAN. No person or institution in Nigeria can legally require such a pastor to join CAN and obtain a preaching licence as a precondition for manifesting or propagating his Christian religion and belief in public or in private.
Lest we forget, in the celebrated case of Inspector General of Police v. All Nigeria Peoples Party and Ors (2007) 18 NWLR (Pt.1066) 457, the Court of Appeal in a landmark judgment, declared as unconstitutional the provisions of the Public Order Act, Cap. 382 L.F.N. 1990 which requires Nigerians to obtain a police permit before staging a protest or peaceful demonstration. The Appeal Court declared that the requirement of police permit as a pre-condition to protest is a violation of the fundamental right to freedom of expression and association. The appellate court rejected the argument of the Police that such a permit was in the interest of public safety and security.
If police permit is not required as a pre-condition to holding public rallies, peaceful demonstrations and protests, why should any state government even contemplate issuing licences to religious preachers or determine who is eligible to be a religious preacher in the 21st century Nigeria?
To be concluded
PUNCH
END
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