What is a Constitution?
According to the Black’s Law Dictionary 9th Edition, a Constitution is “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 rights and civil liberties”. “A Constitution…….is not a mere Act or law—- ” -per Aboki JCA in AGF v Abubakar 2007 8 N.W.L.R. Part 1035 Page 117 at 144. “A Constitution is a unique legal document, it enshrines special kind of norms and stands at the top of the normative pyramid” – per Musdapher CJN (as he then was) in Marwa v Nyako 2012 6 N.W. L. R. Part 1296 Page 199 at 290.
The 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) is the supreme law of our land and grundnorm; it protects our rights and freedoms, and limits the powers of government through the doctrine of separation of powers, which should act as a system of checks and balances within the three main organs of Government – the Executive, Legislature and Judiciary – if the said doctrine is implemented as its proponent, Baron de Montesquieu, meant that it should be.
The Constitution has binding force on all authorities and persons throughout Nigeria (Section
1(1)), and if any other law is inconsistent with its provisions, the Constitution shall prevail and such other law shall be void to the extent of its inconsistency (Section I(3) of the Constitution).
So, why then has Section 10 of the Constitution (which is binding on all authorities in Nigeria including State Governments) providing thus: “The Government of the Federation or of a State shall not adopt any religion as State Religion”, been thrown into the dustbin by many, including Government? “The word” shall” when used in a statutory provision imports that a thing must be done, and when the negative phrase “shall not” is used, it implies that something must not be done. It is a form of a command or mandate – see Ugwu v Ararume 2007 12 N.W.L.R. Part 1048 Page 367 at 441-442 per Tobi JSC.
Why then, is it that Section 10 of the Constitution is being observed in its breach, so much so that, some States have adopted religions as their State religions? If Section 10 of the Constitution unequivocally states that no State shall adopt a State religion, isn’t it unconstitutional for the Northern States to adopt Islam, and a particular State in the South South which was said to have proclaimed itself as a Christian State, adopt Christianity too? It most definitely is.
We cannot argue that the enforcement of Sharia law in a State, does not strictly mean that such a State has adopted a State religion, because Sharia is not applicable to non-Muslims. In the context of how the Northern States are enforcing Sharia law, it is obvious that Islam is their State religion. For instance, I recall that in Kano in 2013, 240,000 bottles of beer were destroyed, while drinking bars were bombed, not even taking into consideration the fact that there are those who are resident in Kano who are not of the Islamic faith, and are at liberty to consume alcoholic beverages if they so desire .
Yahaya Sharif Aminu
The other day, I saw that Kano State musician, Yahaya Sharif Aminu was sentenced to death by hanging for using derogatory expressions against Prophet Mohammed (PBUH), in a song which he sent around on WhatsApp earlier this year. The song is considered to be blasphemous, at least by Muslim faithfuls in Kano – and this satisfies one of the elements of the offence of insult to religion as provided in both the Criminal Code and Penal Code.
I will never support the insult of the Holy Prophet (PBUH) or Jesus Christ or any religion; and, while it is true that Sections 38 and 39(1) of the Constitution guarantee our right to freedom of thought and expression respectively, I cannot understand why any religious faithful should/would blaspheme against their own religion (or another’s), let alone seek to defame or make a mockery of it, especially knowing the stand of his/her religion and other religious faithfuls on blasphemy.
However, it is interesting to note that though the Holy Quran disapproves of those who blaspheme, nowhere in the whole of this Holy Book is there a prescription of the death penalty for blasphemy, unlike the Holy Bible in Leviticus 24:16 which says “Anyone who blasphemes the name of the Lord is to be put to death. The entire assembly must stone them”. In fact, the Quran enjoins Muslims thus: “And overlook their annoying talk, and put your trust in Allah” (Quran 33:49) . Muslims are enjoined to ignore the words of blasphemers, and to avoid their company (Quran 4:141). An incident is mentioned in the Quran, in which Abdullah bin Ubay blasphemed against Prophet Muhammad (PBUH), to the extent that Abdullah’s son came to the Prophet (PBUH) to ask permission to kill his own father because he felt so insulted by his father’s utterances. The Prophet (PBUH) did not allow it. In fact, on the death of Abdullah, the Prophet himself (PBUH) led the funeral prayer.
We are not in a religious State, but a secular democracy, and therefore, there is a need to examine the constitutionality of the decision handed down by the Sharia Court vis-a-vis sections like 1(1), (3), 10, 38 and 39(1) of the Constitution, in a country that is secular in nature and whose laws – whether the Criminal Code (applicable in Southern Nigeria) or the Penal Code (applicable in Northern Nigeria) – make provisions for the offence of blasphemy/ insult to religion.
The Oxford Advanced Learner’s Dictionary defines blasphemy as “behaviour or language that is offensive or shows a lack of respect for God or religion”. Section 204 of the Criminal Code provides for blasphemy thus: Insult to religion: “Any person who does an act which any class of persons consider as a public insult on their religion, with the intention that they should consider the act such an insult, and any person who does an unlawful act with the knowledge that any class of persons will consider it such an insult, is guilty of a misdemeanour, and is liable to imprisonment for two years”. The Penal Code which is applicable to Mr. Sharif Aminu who resides in Kano, in Sections 210 and 213 also makes similar provisions to that of the Criminal Code for the offence of Insult to religion, and prescribes a punishment of a maximum of two years imprisonment or a fine or both, on conviction for committing the offence.
Trend of Thought
Even though Section 38(1) of the Constitution allows all persons to propagate their own religion or belief in worship, teaching, practice and observance, Section 38(4) makes some form of limitation by seemingly making such practice voluntary by providing inter alia thus: “Nothing in this section shall entitle any person to form, take part in the activity…..”. This means that even though Mr Sharif Aminu is a Muslim, the Constitution allows him the freedom of thought and association (Section 40 of the Constitution) etc. The fact that Mr Sharif Aminu was constrained to appear in a Sharia Court, is not just unconstitutional for this reason, but is undeniable proof that Kano State has adopted a State religion, albeit that it is said to apply only to Muslims. I submit that Muslims also enjoy the same freedoms that are guaranteed every person under our Constitution, and since the Constitution is supreme, they cannot be forced to be charged before a Sharia Court, even if they are Muslim and the court had the jurisdiction to hear the matter. If Mr Sharif Aminu was in Lagos, Muslim or not, he would have been prosecuted before a Magistrates Court.
Secondly, Sections 262, 267, 277 and 282 of the Constitution do not confer criminal jurisdiction on the Sharia or Customary Courts, like Sections 233, 241(1), 251 confer on the State High Courts and Federal High Court; and we are all aware that without the requisite jurisdiction, any proceedings conducted in a court which lacks jurisdiction, are null and void and of no effect – Madukuolu v Nkemdilim 1962 2 S.C.N.L.R 341. I therefore submit that the criminal proceedings against Mr Sharif Aminu are null and void, and the death sentence pronounced on him is of no effect (no offence to the Sharia Court). The confirmation of the death sentence of Mr. Sharif Aminu by the Governor of Kano State is not just unconstitutional, but reprehensible, since he must be aware of all these constraints, considering the fact that the State has an Attorney-General whose responsibility it is to have advised the Governor accordingly. How can a person in such a position of high authority, play to the gallery with the lives of citizens whom he has sworn to protect?
Thirdly, statute which is recognised as a primary source of Nigerian law, has prescribed a maximum of a two year sentence with or without a fine, for committing the offence of blasphemy/insult to religion. How then, can a pronouncement of the death sentence from a court which has not been conferred the requisite jurisdiction by the grundnorm to entertain such matters, then stand? I submit that, by virtue of the a Constitution, the Sharia Court is not the proper venue for the prosecution of Mr Sharif Aminu; he should have been arraigned before a Kano State Magistrates Court, which obviously has the jurisdiction to entertain such misdemeanours.
All this contempt for the rule of law in the name of religion, has no place in a constitutional democracy like ours. Likewise, for the Christians. Take for example the new CAMA saga, it is mostly the non-orthodox Christians who have made a big outcry against Section 839 of the new Company and Allied Matters Act (CAMA). Why should Churches not be monitored and sanctioned, if there is mis-management? Why should there not be transparency and accountability as global best practice demands, especially as most of the Church funds are generated from members (Other People’s Money)? Surely, if your Church is being administered properly, there is nothing to fear.
For the Sharia and Customary Courts to be able to exercise criminal jurisdiction, there must be a constitutional amendment to that effect. I hope such amendment never occurs. More importantly, this may be as good a time as any for the issue of Section 10, the adoption of State religions and the enforcement of Criminal Sharia law to be challenged properly up to the highest court of the land, once and for all. Some have argued that the imposition of Sharia law in Northern Nigeria, offends the right to freedom of movement of every Nigerian citizen – especially of non-Muslims who may want to reside there – guaranteed by Section 41(1) of the Constitution.
Section 10 of the Constitution must be strictly adhered to, in the interest of a peaceful and progressive Nigeria. The practice of religion is a personal matter, and must remain so. Too much emphasis has been placed on religion, to the detriment of Nigerians – and it’s all about the Muslims and the Christians – Muslim/Christian ticket etc – nothing about Ifa/Amadioha ticket. Our country is a multi-ethnic multi-religious one, and to fulfil one of the main objectives of the Constitution which is to promote equality amongst Nigerians, no religion – whether Islam or Christianity which are considered to be the majority religions – must be given pre-eminence, especially as such pre-eminence is discriminatory and offends Section 42(1)(b) of the Constitution. The only situation in which adopting a State or National religion works, is one in which everybody practices the same religion. This is certainly not the case in Nigeria.
“FOR THE SHARIA AND CUSTOMARY COURTS TO BE ABLE TO EXERCISE CRIMINAL JURISDICTION, THERE MUST BE A CONSTITUTIONAL AMENDMENT TO THAT EFFECT. I HOPE SUCH AMENDMENT NEVER OCCURS…… TOO MUCH EMPHASIS HAS BEEN PLACED ON RELIGION, TO THE DETRIMENT OF NIGERIANS…..”