God in the Public Space and the Nigerian Constitution

It appears anytime we try to solve one problem in Nigeria, we end up creating more problems and leave the original problem partly solved or totally unsolved. Why did I say so? Before the 1979 Constitution of Nigeria, we have no record to say that a government or any religious group was calling or lobbying for the adoption of a particular religion as our national religion. So, why was Section 10 introduced into the 1979 Constitution for the first time in the constitutional history of Nigeria by the Constituent Assembly of 1977-78? Was it introduced to make Nigeria a secular state? Was the section squarely introduced to prevent any government from ever imposing one religion on the Nigerian people or making it a theocracy? If the latter was the intention of the drafters of the Constitution, does Section 10 also forbid spending of state funds on religious matters by any Nigerian government or state involvement in religious affairs? Was it introduced in response to the agitation to give the Sharia Court of Appeal a national recognition in our Constitution which came up for the first time during this period as opposed to the erstwhile 1963 Republican Constitution that confined the existence of the Court to the Northern region?

God in the Public Space and the Nigerian Constitution

After the Constitution Debate Coordinating Committee set up by a former Head of State, retired General Abdulsalam Abubakar, in 1998 reviewed the 1979 Constitution of Nigeria and found it suitable for adoption as the new Constitution to usher democracy afresh into Nigeria, it decided to update it and re-christen it as the 1999 Constitution. It is therefore little wonder, like so many other sections, that Section 10 in the old 1979 Constitution resurfaces also as Section 10 in the current 1999 Constitution of our country. Section 10 of the 1999 Constitution states: “The Government of the Federation or of a State shall not adopt any religion as State Religion.”

Our ability to decode what Section 10 really means as well as to define the scope of its application will help us to provide answers to some or all the questions raised above. However, it has remained a herculean task to find answers to all these questions as scholars, policy-makers, commentators, and other persons have ascribed different interpretations to the section.  What does Section 10 mean?

Unfortunately, no other section of the Constitution supplies us with any clues as to what it means and therefore, the section has been a subject of speculations and subjective interpretations. As if to compound the problem, no court in Nigeria has ever interpreted it, at least not to the knowledge of this writer. In order to overcome this challenge, the only choice that we have in the circumstance is to look at the plain meanings of the wordings of the section. I am of the opinion that the section simply means that no government in Nigeria, especially the federal and state governments, shall introduce any religion as the official religion of the people.  Prohibition of an official state religion without more is not enough to tag Nigeria a secular state, although non-existence of a national religion is an important feature of a secular state. It is also correct to say that no state can claim to be secular, while it has an officially recognised national religion like Pakistan and Bangladesh.

However, some people interpret the section to mean that Nigeria is a secular state, while some others argue that Nigeria is not secular but a multi-religious state. A country is either a secular or theocratic state; almost all countries of the world are, as a matter of fact, multi-religious. Only few are mono-religious such as Saudi-Arabia and the Vatican where the citizens are 98%, if not 100%, Muslims or Christians. If the drafters of our Constitution had wanted a secular country, they would have made it clear. How would they have wanted a secular state with a constitution having a preamble that reads, “TO LIVE in unity and harmony as one indivisible and indissoluble Sovereign Nation under God…”? Apart from the fact that neither the federal government nor a state government has passed a law or made an official policy declaring a religion as the national or state religion, the section has not helped in any other way to tackle the secularity argument nor has it resulted in taking religion out of our public life. It is even doubtful if the drafters of the Constitution ever intended to prevent government involvement in religious matters in the first place. I think all that the drafters wanted was to prevent the adoption of any religion as the official religion or the turning of the country to a theocratic state. And even if they intended to prevent the rate at which governments at all levels are now involved in religious matters, unfortunately, that intention is not manifest anywhere in the Constitution just as the intention of a secular state cannot be inferred anywhere in the Constitution.

The fact that no previous Nigerian Constitution before 1979 had a similitude of Section 10 compels one to ask why, what prompted its introduction? Unfortunately, available records do not provide any answer. However, there are reports of heated debates and serious anxieties over the agitation for the introduction of Sharia Court of Appeal into the constitution between 1977 and 1978 while the Constituent Assembly was considering the draft constitution that a previous body, the Constitution Drafting Committee, (1976-77) had submitted to it. The Northern Muslim delegates had demanded that Sharia Court of Appeal should be created in all states of the federation through the constitution with a Federal Sharia Court of Appeal to act as the Supreme Court on Sharia matters. In previous Constitutions, Sharia Court of Appeal was restricted to the Northern region.  The Southern delegates who were mostly Christians opposed the demand on the basis that Nigeria was a secular state. This was at a time when nothing like Section 10 had been written previously into any constitution in the country. The Northern Muslim delegates threatened a walk out and maintained that “no Sharia, no Nigeria”. Eventually, the impasse was resolved through a compromise tagged “the 1978 Solution”. It was the 1978 Solution that brought the Sharia Court of Appeal of a State and that of the Federal Capital Territory into the Nigerian Constitution for the first time but it was/is still only for a state that requires it and the jurisdiction of the court is limited to civil matters such as marriage, succession, and divorce involving Muslims or non-Muslims who consent. Whether this incident has anything to do with the incursion of Section 10 into our Constitution is still not clear.

Late Chief Rotimi Williams, SAN, one of the drafters of the 1979 Constitution in his lecture titled, “Christians and the Sharia Issue” in 2002, said, “Nigeria has a substantial moslem (sic) population but it is not an Islamic State. It is a secular state in accordance with the provisions of our Constitution. It cannot be otherwise unless there is a forcible imposition of the religion of Islam on the non-muslims (sic) of this country.” With great respect to the eminent lawyer, his assertion that Nigeria is a secular state is not different from what other persons who share the same opinion have said. Calling Nigeria a secular state without any evidence to back it up other than Section 10 cannot make the country one, no matter how many times it is said or who says it.

Section 10 would have been much more useful and meaningful, if it had been more elaborate so that we will know what it actually means and the scope of what either the federal or state government can do or not do in relation to religion. The section does not mention local government tier at all as if it does not exist or as if that tier of government is not capable of doing what the section tries to prevent. But that is even another issue on its own which should better be reserved for a different discourse. As it is, the section is only clear and unambiguous to the point that it forbids the imposition of any religion on the people and nothing more.

What does a secular state mean? A secular state is simply a country where government is neutral on religious matters. The concept of secular state is usually employed as a tool to prevent religious persecution or domination in a multi-religious setting like Nigeria. By the nature of Nigeria’s plural religious make-up, one of the best remedies against religious acrimony, mutual suspicion among various religious interests, and government involvement in matters of faiths is a secular system.  Unfortunately, Nigeria is, by law and practice, not a secular State.

However, being a secular state does not mean that such state must not recognise religion at all. It does not also mean that citizens’ right to freedom of religion and worship will not be recognised. It is not an irreligious or Godless state. Right to freedom of religion is a universal right, though in theocratic states like Saudi-Arabia religious right is seriously curtailed. Muslims cannot change their faith, while non-Muslims must not openly profess or preach their faith.  While a secular state will not use state funds to support religious activities, will not identify with any religion and may not allow religious education in its schools, citizens have right to practise their religions as they like within the limits of law. Anyway, absolute rights exist nowhere, not even in a non-secular state like Nigeria.

Contrary to the argument that Nigeria could not have been a secular state without the use of the word “secular” anywhere in our Constitution, it is possible to have a secular state without the word “secular” found anywhere in the Constitution, although it is better with it. What is important is the intention manifested in the constitution but such is not the case with Nigeria. Where intentions of the drafters of a statute are unclear, judicial authorities may resort to the mischief rule of interpreting laws which allows them to put into account the rationale and history behind a law or statutory provisions in order to give effect to the intentions of the lawmakers. Unfortunately again, there is no account of any history behind the introduction of Section 10 into the 1979 Constitution, now in Section 10 of the 1999 Constitution. However, I reiterate my conviction that the wordings of Section 10 are clear and the intention which can be inferred from it is that the drafters intended to prohibit adoption of any religion as a state religion in Nigeria.

The debate whether Nigeria is secular or not usually takes religious dimension, given that the two dominant religions in the country, Christianity and Islam, and their adherents are often at each other’s throats. The argument that Nigeria is secular is more attractive to the Christians, while the reverse position is more appealing to the Muslims. The impression that such divide portrays is that Islam is incompatible with secularism, while the Christians believe that the only safeguard they have against Islamisation and domination within the Nigerian space is secularism. It is often posited by the Muslims that Nigeria is a multi-religious state and not secular. The Muslims are right to the point that Nigeria is not a secular state but I strongly believe that one of the things that can make Nigeria better, a country devoid of religious acrimony and rivalry, is a true system of secularism, adopted through the amendment of our Constitution. This is the only guarantee that our country has against unhealthy and over-religionised public space that pervades our lives. For secularism to sanitise our public space, both government and civil societies will need to embark on deliberate enlightenment programs designed to make the people embrace acceptable and civilised ways of exercising religious right in a secular environment. When Nigeria is truly secularised, both the Muslims and the Christians, are sure to lose a number of privileges. Religious houses in public institutions will have to close up as well as the stoppage of government involvement in holy pilgrimages. The unwritten rule that if a president is a Muslim, vice-president must be a Christian must equally stop.  These are just few instances of the foray of religion into the Nigerian public space.  Secular societies protect religious right to the extent that the right is exercised within the confines of law, public order, and decency.

India provides a perfect example of a secular state for Nigeria to copy. Unlike the preamble to the Nigerian Constitution, the preamble to the 92nd Amended Constitution of India reads, “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure all its citizens…” As if to further demonstrate its resolve for secularism, Article 25 of the Indian Constitution states, “(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. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law – (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice… ”

There is nothing more fallacious than the claim that Islam is incompatible with secularism. Some countries in Africa, Asia, and Europe, though dominated by Muslim population, have vindicated the position that a Muslim country can embrace secular governance. Two shining examples of such countries are Turkey and Senegal. It is common knowledge that most countries dominated by Christians are usually secular. Even if some of them are not fully secular, they certainly do not parade religion in the public arena the way we do in Nigeria. If Muslims in some countries can embrace secularism, Nigerian Muslims cannot afford to view the concept of secularism as if it is anti-Islam. Secularism is the only way to go in a multi-religious setting.

Turkey is reputed to be 99% Muslims, yet it is a secular country. Paragraph 5 of the preamble to the Constitution of the Republic of Turkey reads, “That no protection shall be accorded to an activity contrary to Turkish national interests, Turkish existence and the principles of its indivisibility with its State and territory, historical and moral values of Turkishness; nationalism, principles, reforms and civilisationism of Ataturk and that sacred religious feelings shall absolutely not be involved in state affairs and politics as required by the principle of secularism.” Article 2 of its Constitution also states, “The Republic of Turkey is a democratic, secular and social state governed by rule of law…” The words “Islam” or “Sharia” or any religion are found nowhere in the Turkish Constitution.

What will Nigeria lose by becoming a secular state? It has a few things to lose but a lot more to gain. Having stated that one of the antidotes to perennial religious conflicts is secularism which, for me, is a huge benefit, it is necessary to consider a few things that will have to change once secularism is embraced as it should in Nigeria. Some existing Nigerian laws tainted with religious influences, either Christianity or Islam, will have to be reviewed and brought in compliance with secular principles. For instance, the Nigerian anti-same sex marriage law may have to be reversed because a secular state will not outlaw an act on account of religious sensibilities.  The Penal Code which applies in the Northern part will have to be reviewed. Adultery and alcoholic consumption which are offences under the Code will have to be decriminalised. The place of Sharia law in a secular Nigeria will also have to be reconsidered. Even if the civil aspect of Sharia law is allowed to stay, the criminal aspect will be totally incompatible with secularism. As the Nigerian Constitution is today with its non-secular, or at best quasi-secular, status, the 1999-decision of Zamfara State and other states like it remains a serious violation of the Constitution which disallows the implementation of the criminal aspect of Sharia law. Although Sharia law has been in the Northern Nigeria even long before the advent of colonialism, its criminal aspect had been stopped for decades before the Zamfara State Government re-introduced it.

In a secular Nigeria, the wearing of religious dresses is not likely to remain as it is now. There are cases of Muslim women who now wear a veil that covers their faces completely in public places such as schools, hospitals, and other government establishments. While I am of the opinion that all the court judgments which interpreted the right to freedom of thought, conscience and religion to include the right of Muslim women to wear their religious veils in public space are justified under the present state of the Nigerian Constitution, I strongly believe that they cannot stand in a secular Nigeria. However, wearing of such religious dresses may be allowed in public places under a secular system as long as those who wear them are not public servants or students in public schools.

Most European countries are secular, despite their huge Christian population. Secularism now gains popularity and acceptance widely in Europe because of the monumental havoc which the fusion of church and state had once wrecked in that part of the world. Between 1618 and 1648, there was a bloody war in Europe. The war had its root causes in the involvement of church and religious leaders in the political leadership of Europe with the aftermath of widespread religious oppression and persecution of fringe religious sects. At the end of the 30-year war, the Peace of Westphalia was signed and it was this that marked the birth of secularism in Europe. This is Europe that still has religious demographics of 70% Christians and 30% of other religions. A repeat of such protracted religious war has not occurred in Europe since 1648 largely because of the separation that now exists between the church and the state. A multi-religious country like Nigeria where demographics of the Christians and the Muslims are reportedly put at 45% and 50% respectively with a pocket of other faiths needs secularism  much more and in fact, urgently so! What is needed in a secular state is not the absence of individuals’ right to practise their faith but the curtailment of state involvement in matters of religion and prohibition of the use of state apparatus to advance the cause of any particular religious creed.

It, therefore, does no harm to us, if our Sections 10 and 38 are amended. New Section 10 should read thus, “The Federal Republic of Nigeria is a secular state and the State shall not be associated with any religion but shall actively protect the right of all citizens and persons to hold and practise the religion of their choice subject to such limits that this Constitution or other laws may stipulate”. Our Section 38, on the other hand, which deals with right to freedom of thought, conscience and religion and which currently has four subsections will have to be amended by creating a new subsection (5) to read, “Nothing in this section shall entitle any person to carry on his or her religion in a manner inconsistent with democratic values and secular principles which form the foundations of our national life.” With these amendments, Nigeria shall become a true secular state even if the preamble to the Constitution is left as it is.

 This article by Kehinde ADEGBITE Esq was originally published on www.ikengachronicles.com on May 15, 2017.