1

From: Prof. Ishaq O. Oloyede, Prof. Wahab O. Egbewole, and Hussain T. Oloyede

RE: Abstract Submission – 2015 Religious Freedom and Religious Pluralism in

Africa: Prospects and Limitations Conference

THE OPERATIONAL COMPLEXITIES OF “FREE EXERCISE” AND “ADOPTION

OF RELIGION” CLAUSES IN THE NIGERIAN CONSTITUTION

ABSTRACT

INTRODUCTION

The status of Nigeria vis-a-vis religion is still a subject of contestation, argument and

intellectual discussions. To some scholars, Nigeria is a secular State1 while to others, Nigeria

is a multi-religious State.2 Tabiu made the point in arguing poignantly on the interpretation of

Section 103 of the Nigerian Constitution on the varied meaning of secularism and the clear

words used in the Constitution. He pointed out that:

“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 derivates 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.”

*Professor of Islamics, former Vice-Chancellor, University of Ilorin ioloyede@yahoo.co.uk

**Professor of Jurisprudence and International Law, Faculty of Law, University of Ilorin

eabdulwahab@yahoo.co.uk & eabdulwahab@unilorin.edu.ng

***Ph.D student in the Faculty of Law, University of Ilorin oloyedehussain@yahoo.com

1 Nwabueze, B.O. Military Rule and Constitutionalism (1992) 282; Iwobi, A.U. “Tiptoeing Through a

Constitutional Minefield: The Great Shari’a Controversy in Nigeria” (2004) 48 Journal of Law 133-135

reproduced in Nwauche, E.S. Law, Religion and Human Rights in Nigeria” African Human Rights Law Journal

(2008) 8(2) 568-

2 Tabiu, M. “Shari’a Federalism and Nigerian Constitution” Paper presented at the International Conference on

Shari’a, London, 2001 reproduced in Tyus, J. “Going Too Far: Extending Shari’a Law in Nigeria From Personal to

Public Law (2004) 3 Washington University global Studies Law Review 199.

3 The section provides “The Government of the Federation or of a State shall not adopt any religion as State

Religion.”

2

Peter appears to support this position but with a caveat that the emphasis to make is that no

arm of government must be used to aid or promote any religion.4 Nwauche shares the view

that given our circumstance as a nation and the fact that the government in Nigeria actively

promotes Islam and Christianity in its entire programme, it cannot be said that Nigeria is a

secular state. In our attempt to establish and/or discuss religious freedom in Nigeria, the

fundamentality of Section 10 cannot be over emphasised. Nwauche however added a

different dimension of what he called the adoption of a de facto state religion.5 This cannot be

the correct deduction of Section 10 of the Nigeria Constitution. The rule of interpretation is

that constitutional provision must be given their ordinary meaning.6 While Section 10 of the

Constitution forbids choosing a religion(s) as state religion(s), the Constitution allows the

legislature to make laws for the good of the society. The laws can be from any source

including religion. This is the reason why the line between adoption of state Religion and

practice is very thin. The question is what can project laws for peace, order and good

governance better than religious values?7

This is more so when the term secularism is itself a subject of contextual and conceptual

controversy.8 It is perceived as ‘disappearance of religion altogether’

9 which was not the

contemplation of the drafters of the Nigeria Constitution especially if other provisions of the

Constitution are considered together as will be demonstrated anon. It is our argument in this

paper that Nigeria recognizes the existence of religions and they have adherents whose rights

must be protected, who must be allowed to freely exercise the rights but to what extent are (or

4 Peter, R. Islamic Criminal Law in Nigeria (2003) 33 reproduced in Nwauche, N.S. op cit; Oloyede, I.O. “In

Search of a Peaceful Society” Paper delivered at the Reunion Luncheon of University of Lagos Muslim Alumni

Association (UMA) on 24th

June, 2000 p.16 where he posited that in a multi-religious country like Nigeria ‘just

and equitable system for the management of religious interests of their citizens’ should be adopted in order to

ensure peace and tranquillity.

5 Nwauche, N.S. op cit p.573

6 Egbe V. Yusuf (1992) NWLR (Pt.245) 1; Okotie-Eboh V. Manager (2004) 18 NWLR (Pt.905) 242; Awolowo V.

Shagari (1979) 6-9 SC 73

7 See Section 4(7) of the 1999 Nigerian Constitution where it is provided “The House of Assembly of a state

shall have power to make laws for peace, order and good government of the state or any part thereof with

respect to the following matters, (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 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.”

8 Oloyede, I.O. “Secularism and Religion: Conflict and Compromise (An Islamic Perspective) (1987) XVIII(1)

Islam and Modern Age 21-38.

9 Primor, A. “A Collection of States or a State of Mind: The Religious and Spiritual Dimensions of European

Citizenship” in N Doe & R Sandberg (eds) cited in Quashigah, K. “Religion and the Republican State in Africa:

The Need for a Distanced Relationship” (2014) African Human Rights Law Journal 78-92

3

can) these rights be freely exercised? What are the constraints for this free exercise? What

are the complexities encountered in the exercise? How can they better freely exercise the

freedom of the practice of their religion? What are the perceived limitations and presumed

limitation to the implementation of the exercise? All these are to be investigated in this paper

which is structured to address the conceptual issues, state and religion dynamics and matrix,

Nigerian Constitutional provisions and judicial interpretations with recommendations and

concluding remarks.

CONCEPTUAL ISSUES

Religion is perceived differently especially when a distinction is to be made between

‘religion’ and ‘religions’ as dichotomized by Henkin10

where one was conceptualized as

being particular and the other generalised. There is also the issue of differentiation between

religion and culture especially from the perspectives of African religion arguing that religion

in the African context is deeply rooted in cultural tradition and connotes a broader and wider

dimension beyond concern with personal faith.11

Religion is a personal relationship with the

Creator and normally ‘arouses interest and sentiments across the globe’ and for our purpose,

it is simply the practice of one’s faith. Consequently government must put measures in place

to protect it firmly. This leads us to free exercise of religious right. This exercise is not more

of lack of constitutional arrangement but rather that of implementation.

The challenge has been that of using ‘political-legal approach’ instead of ‘socio-cultural

approach’ as advocated by Baderin.12

It was his argument that:

“The socio-cultural approach is a bottom-to-top approach while the politico-legal approach is

a top-to-bottom approach. These approaches are complimentary and must be simultaneously

pursued for the robust and effective realization of human rights globally.”

Apart from the fact that human rights generally by way of application will be more effective

at the micro level, the exercise of religious right as a personal matter13

will be more

practicable, more enduring, more effective and far more available to the citizens if the

bottom-to-top approach is also employed and this is the socio-cultural approach postulation

of Baderin. This position is brought to the fore the more if one considers the argument of

Roosevelt that:

10

Henkin, L. “Religion, Religions and Human Rights” (1998) 26 Journal of Religious Ethics 229-239

11 Johan D van der Vyver & M Christian Green “Law, Religion and Human Rights in Africa: Introduction” (2009)

8 African Human Rights Law Journal 337-356; See also MEC for Education Kwazulu-Natal V. Pillay & Others

2008 1 SA 474 (CC); 2008 2 BCLR 99 (CC) paras 47 & 53

12 Baderin, M.A. “Islam and the Realization of Human Rights in the Muslim World” in Sarah Joseph & Adam

McBeth Research Handbook on International Human Rights Law 440-466

13 By personal matter, this is not to give support to the Nigerian constitutional provision of making the

availability of Islamic law to the personal level

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“Where, after all, do universal human rights begin? In small places, close to home-so close

and so small that they cannot be seen on any map of the world. Yet they are the world of the

individual person: the neighbourhood he [or she] lives in; the school or college he [or she]

attends; the factory, farm or office where he [or she] works. Such are the places where every

man, woman, and child seeks equal justice, equal opportunity, equal dignity without

discrimination. Unless these rights have meaning there, they have little meaning anywhere.

Without concerted citizen action to uphold them close to home, we shall look in vain for

progress in the larger world. Thus we believe that the destiny of human rights is in the hands

of all our citizens in all our communities.”14

In Nigeria, it appears that politico-legal approach is depended upon for the exercise of

religious rights because the argument has been whether there is Constitutional provision

ensuring religious freedom or not. There is also the issue of whether there are limitations to

the practice of these rights. This point was emphasized in the judgment of Ayoola JSC (as he

then was) that:

“The right to freedom of thought, conscience or religion implies a right not to be prevented

without lawful justification from choosing the course of one’s life, fashioned on what one

believes, and the right not to be coerced into acting contrary to one’s belief. The limits of

these freedoms, as in all cases, are where they impinge on the rights of others or where they

put the welfare of society or public health in jeopardy.... Law’s role is to ensure the fullness

of liberty when there is no danger to public interest.....”

The most effective approach is for citizens to own this freedom and utilize it. While it is

important to underscore the need for harmonious relationship between adherents, the law

should only serve as a guide and what I call the referee to ensure that the players maintain

their own turf and fouls are not committed in the field of play. This approach is

accommodated within the present constitutional arrangement in Nigeria both within the

national law and the international legal instruments to which Nigeria has subscribed.

This position also calls for the need to examine whether we need religious freedom, freedom

of religion or right to religion. By religious freedom we mean a situation when there is

liberty15

in the practice of religion which portends a grave danger. It is merely a freedom to

roam in a cage. A society cannot operate in an unguided path. Equally, there is also the need

to examine the concept vis-a-vis independence of freedom of religion in Nigeria instead of

the present approach of the ‘dry in the wool’ current situation of ‘freedom of thought,

conscience and religion’ that is constitutionally guaranteed under Section 38 which will form

14

Roosevelt, E. Remarks made at the presentation of In Your Hands: A Guide for Community Action for the

Tenth Anniversary of the Universal Declaration of Human Rights to the UN Commission on Human

15 Oloyede, I.O “Theories and Realities of Religious Liberty” Conscience and Liberty International Journal of

Religious Freedom p.51 where it was argued that “it is equally clear that when one talks of religious liberty,

one talks cautiously because every person knows that unrestricted liberty spells doom and breeds chaos in

society.”

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the major discussion in this paper. Right to religious freedom in our view is better perceived

from the perspectives of Domingo to the effect that it should connote practices in accordance

with religious moral claims that ‘go beyond or even contradict reason, within the limit of

public order and morality.’16

This is what the citizens can and should accommodate but the next stage should actually form

the aspiration of the global community which is right to religion as against freedom of

religion which has been pigeon holed as a necessary condition for the existence of basic

human rights. Right is to protect the ‘religious capacity of the human person against political

monopolization’17

and prevent the government from improper religious interference. It was

argued further that “[t]he right to religion includes all the traditional articulations of the

American founders; freedom of exercise or practice, religious equality before the law,

freedom from religious discrimination, freedom from religion or coercion in religious

matters.”18

In our view, this is a more expansive approach to the rather restrictive implication of religious

freedom. Coupled with this is the Nigerian ‘delimitation’ with the making the freedom of

religion available within the context and confines of thought and conscience application.

There is need to provide different paradigm for the each of the concepts lumped together. The

idea of freedom of thought and conscience is beyond religion as this will accommodate both

moral and immoral exercise of freedom as well as religious and non-religious exercise.19

This

is likely to stifle in a way the freedom provided for religion. In the same vein, it must be

acknowledged that different scenario guide the issue of morality and religion because right

within the context of practice of religion is different from that of moral freedom. While it

may not be argued that no religion should be devoid of morality, it cannot be argued that no

morality can be devoid of religion. Different treatment should be meted to them even within

the same human right.20

The argument that freedom of religion should be a specialized right was criticized by Gey21

but Durham noted that virtually, all legal systems do accord religious special respect to

16

Domingo R. “A Right to Religious and Moral Freedom?” (2014) 12 (1) International Journal of Constitutional

Law 226-247

17 Ibid. P. 243

18 John Witte, Jr & Joel A. Nichols Religion and the American Constitutional Experiment (3

rd ed.) reproduced in

Domingo, R. Ibid n.12 at p. 243

19 Maclure, J. & Taylor, C. Secularism and Freedom of Conscience (2011) 110

20 Fuller, L. L. The Morality of Law 189 ( rev’d ed. 1969) reproduced in Domingo n. 12 p. 228

21 Gey, S.G. “Why is Religion Special? Reconsidering the Accommodation of Religion Under the Religion Clauses

of the First Ammendment”, (1990) 52 U. Pitt. L. Rev. 75; Smith, S.D. ‘The Rise and Fall of Religious Freedom in

Constitutional Discourse” (1991) 140 U. Pa. L. Rev. 149

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freedom of religion.22

The rationale for the present state of affairs was provided by d Van der

Vyver and Green23

when they argued:

“It should be noted that the drafters of international instruments relevant to religion for good

reasons preferred to place freedom of religion and freedom of belief in the same basket.

Religion is almost impossible to define. By linking it inseparably to freedom to belief,

international law avoids that dilemma: Since the same protections apply to both, it is not

necessary to draw a line between belief structures that qualify as a religion and those that do

not. Not everything one might believe in should come within the confines of freedom of

religion or belief. One ought to confine the belief prong of freedom of religion or belief to

beliefs which at least have something in common with religion (ejusdem generis); perhaps an

element of faith in a metaphysical reality, acceptance as the truth of something which one

cannot observe through one’s senses or prove through scientific analyses or logical

reasoning.”24

While the argument is sound, it is however escapist and begging the issue. There are different

considerations for the two concepts of religion and beliefs. This position appeared

underscored or appreciated even by the proponents of this idea when they argued that given

the limitations imposed by the Universal Declaration of Human Rights25

, it is obvious the

limitations will affect both regimes even where such limitation is only applicable to one and

not both. The world community is no longer in doubt about religion, the challenges of

definition notwithstanding. It is important to stress that definitional problem is not the

monopoly of religion; it is a human challenge because definition is a function of perception,

experience, circumstance or station in life.26

To that extent, the ejusdem generis rule could

even be the tool to convey the specific perception of any particular society about what it

meant by religion.27

It is also possible to spell out what is meant by ‘religion’ in the enabling

instrument either at the national or international legal regimes. This further confirms our

Ostrich theory on the part of both national and international communities when the issue of

religion is involved. To properly provide the enabling environment for religious freedom, the

22

Durham, W.C. Jr. & Sewell, E.A. “Definition of Religion” in James A. Serritella (ed.), Religious Organizations in

the United States: A Study of Identity, Liberty, and the Law (Carolina Academic Press; 2006) 29-30

23 Johan D van der Vyver & M Christian Green “Law, Religion and Human Rights in Africa: Introduction” (2009)

8 African Human Rights Law Journal 337-356

24 Ibid p. 355

25 Adopted in 1948 by the United Nations General assembly

26 Egbewole, W.O. Judex: Hope for the Hopeful and the Hopeless 139

th Inaugural Lecture of the University of

Ilorin delivered on 28th

November, 2013

27 Oloyede, I.O. “Secularism and Religion: Conflict and Compromise (An Islamic Perspective) Islam and the

Modern Age (1987) XVIII (1) p.22

7

Nigerian government should make freedom of religion an independent provision as against

the present shared provision.

STATE AND RELIGION DYNAMICS AND MATRIX

Between the two extremes of theocracy and secularism, there are numerous governance

patterns vis a vis the balance of influence between the State and Religion. ‘Religion’ itself

has also incorporated all belief systems including non-belief in any religion. In an attempt to

properly situate the relationship that should exist between State and religion it is incumbent to

look at religion from what has been described as the four dimensional approaches to the

concept of freedom of religion including substantive, functional, analogical and deferential.28

These approaches have been used over time and the Courts have given them judicial

imprimatur.

Terms such as Religion, Belief system, Church, Faith and to some extent, conscience are

often taken as synonyms in relation to the State and organized faith systems (Religions). Each

term speaks volumes of the disguised intendment or particular context within which it is

used. Similarly, theocracy and secularism are freely used without a common understanding of

the variety of their connotations.29

It is our candid view that we need to re-examine the nature

of Law and Religion as more of arts than science to avoid giving different names to an

identical issue or giving a single name to different and irreconcilable phenomena.30

Multi-

religiosity and secularism might in operation be the same despite the apparent gap in the

literal meaning. In the Nigerian concept and the way the two concepts are generally used, this

gap appear unbridgeable.

It is also important that we understand the imperative of conflict between Law and Religion.

Law, itself seems to define itself and Religion without conceding the right of religion to

determine what it is or what law is. As far as most revealed Religions are concerned the

rightful and apex law-maker is God. Consequently, Law must essentially emanate from

Religion. Conversely, Law is made by the human-Legislature who is the custodian of the

Society and so must define the scope of Religion not only in public space but also in the

expression of private convictions in domestic matters.

Competition between Society/State and Religion is gradually being presented as between

Law and Religion, simply because the State appropriates Law to itself. The truth however is

that both Law and Religion are tools for the regulation of the Society/State. There is constant

conflict of Law between Laws prescribed by Religion and those (Laws) prescribed by the

State. The State created an arbiter – the Courts, to moderate and prevent encroachment of one

28

Durham, W.C.Jr & Scharffs, B.G. Law and Religion (New York, Aspen Publishers; 2010) p.39

29 Oloyede, I.O. “Secularism and Religion: Conflict and Compromise (An Islamic Perspective)” Islam and the

Modern Age (1987) XVIII (1) 21-38

30 Oloyede, I.O. Shari’ah Versus Secularism in Nigeria (Islamic Publication Bureau; Lagos:1985) p.29

8

side on the rights and privileges of the other. The inherent principle is the acceptance that

each of the State and Religion has the right, and must regulate the affairs of humans at both

the individual and inter-personal levels.

There are essentially two views on what should be the relationship between state and religion.

One view is championed by the separatist to the effect that state and religion are two distinct

entities and can never meet or must never meet. The other view is championed by the

harmonists that argue that state and religion can work together harmoniously.

The proponents of separation now described by us as separatists, include John Locke who

identified in the main three reasons for the separation firstly that no man is given authority

over another to compel anyone to his religion, secondly that care of souls cannot belong to

the civil magistrate because his power consist of outward force alone and lastly that ‘though

the rigour of laws and the force of penalties were capable to convince and change men’s

minds, yet would not that help at all to the salvation of their souls.’31

John Rawls is also of

the same perception as Locke.32

These two extreme views cannot advance the course of any society. In many societies, there

are adherents of different faiths or belief systems. It will therefore not be right for such state

to adopt a particular religion to the exclusion of others within the same society. In a multi-

religious society, the state is expected to provide enabling environment for citizens to practice

their religion without hindrance, favouritism or discrimination. This approach was upheld in

the United States in Lynch v. Donnelly33

where the Supreme Court held that the Constitution

did not require complete separation of church and state but mandates accommodation, not

merely tolerance, of all religions, it also frowns at hostility towards any religion. Oloyede

argued for religious understanding as against religious tolerance in a multi-religious setting

like Nigeria.34

The relationship between State and religion in Africa is seen from three different perspectives

by Nsereko as that of separation, supremacy of religion over the state and the subordination

31

Locke, J. A Letter Concerning Toleration (William Popple, trans; Huddersfield 1796) reproduced in Durham,

W.C. & Scharffs, B.G. Law and Religion National, International and Comparative Perspectives (New York, Aspen

Publishers: 2010) p.14-15. See also Quashigah, K. “Religion and the Republican State in Africa: The Need for a

Distanced Relationship” (2014) African Human Rights Law Journal 14 78-92

32 Quashigah, K. Ibid p.80

33 465 U.S. (1989)

34 Oloyede, I.O. “Polemics and Dynamics of Religious Tolerance: An Examination of Some Major Impediments

to Religious Harmony in Nigeria” Paper delivered at the Council for the World’s Religion Conference on

“Religion and Peace in Multi-Faith Nigeria” held at Obafemi Awolowo University, Ile-Ife, Nigeria December, 4-

8, 1989

9

of religion to the state.35

The Constitution of Republic of Angola belongs to the first category

by proclaiming that it is a secular state.36

Being secular does not mean anti-religion that is

why in paragraph 2 of the same Article provides for the protection of churches, places and

object of worship.37

The Constitution of Ethiopia is also that of separating religion from the

state but did not use the term secular as employed by Angola.38

The contest between state and

religion can be described as medieval in nature.39

The Constitution of Botswana provides for

a secular state, though the same Constitution provides for a number of religious public

holidays which actually belies the stance of the instrument.40

Democratic Republic of Congo

claims it is religiously neutral but Banze41

claimed the country is in reality has Roman

Catholicism as the preferred religion in the country. The best approach in assessing the

dynamics of state and religion in Africa is that of separating constitutional rhetoric from

practical and pragmatic reality. The disposition of African governmental leadership is that of

politicization of religion and ‘religionization’ of politics. The South African Constitutional

Court appropriately and clearly appreciated the fundamentality of religion in the African

setting in the case of In Minister of Home Affairs v. Fourie; Lesbian and Gay Equality

Project v. Minister of Home Affairs.42

Sachs J held:

“Religious bodies play a large and important part in public life, through schools, hospitals

and poverty relief programmes. They command ethical behaviour from their members and

bear witness to the exercise of power by state and private agencies; they promote music, art

and theatre; they provide halls for community activities, and conduct a great variety of social

activities for their members and the general public. They are part of the fabric of public life,

35

Nsereko, D. “Religion, the State and the Law in Africa” (1986) 28 Journal Church reproiduced in Quarshigah,

K. n.26

36 Article 8(1) Constitution of Republic of Angola

37 This provision clearly negates paragraph 1 because a variant of secularism is rejection of ‘all forms of

religious faith and worship’ as defined in The Lexicon Webster Dictionary U.S.A. 1973, 1971 Vol.ii p.683

referred to in Oloyede, I. Shari’ah Versus Secularism p.29

38 Article 11, Constitution of Ethiopia. See also the Article 156 of Constitution of the Republic of Benin and

Articles 55(4) and 56 of the Constitution of the Republic of Ghana.

39 Stevenson, I. (ed.) A New Eusebius London, 1971 p.390 reproduced in Oloyede, I.O. “Religion and the State”

Religion and Society published by World Council of Churches (Dialogue with People of Living Faiths) 15-25. See

also Ferm, R. L. (Ed.) Issues in American Protestiatism ..... Double Day New York, 1966.

40 Botswana Constitution of 1996 provides for Easter and Christmas as public holidays yet it proclaimed

secularism.

41 Rev. Banze in his paper at the Conference on “Law, Religion and Human Rights in Africa” Durban, South

Africa 30th

April to 3rd

May, 2008 criticized the position of the Constitution of Congo as reproduced in D van der

Vyver & Green op. Cit p.343

42 2006 1 SA 524; 2006 3 BCLR 355 (CC) para 93

10

and constitute active elements of diverse and pluralistic nation contemplated by the

Constitution. Religion is not just a question of belief or doctrine. It is a part of people’s

temper and culture, and for many believers a significant part of their way of life. Religious

organisations constitute important sectors of national life and accordingly have a right to

express themselves to government and the courts on the great issues of the day. They are

active participants in public affairs fully entitled to have their say with regartd to the way law

is made and applied.”43

The complexity is the multiplicity of religious systems with their peculiar demands and

exclusivities. Another layer is the inherent challenge of State and Religion of the legitimacy

of each other to control the affairs of humanity. Since Religion is diverse, Religious pluralism

is a reality that religionists and non religionists must embrace to rescue religions/beliefs from

the tyranny of the State.

Almost all religions prescribed that the present world is a test and the performance here

determines comfort or lack of it after death. Thus it would be suicidal for man/woman to

surrender his/her hereafter exclusively to the State which has no provision for its life after

death. This is the kernel, in my view, of the ding-dong between Religion and State. “Thy will

be done on earth as it is in heaven” says the Lord’s prayer. The Qur’an says “whoever does

not judge by Allah’s revelation is an ingrate”. Ideally, Religious pluralism would allow the

State to moderate among the faith – (ideological) blocks to ensure fairness to all.

STATE, LAW AND RELIGION IN NIGERIA:

There is no unanimity on the status of Nigeria vis a vis State-Religion-relationship. Many

claim that Nigeria is a secular State while others assert that Nigeria is a multi-religious State.

Each group draws some inferences and support from the constitution which is the grundnorm

of the Republic. Interestingly no Nigerian Constitution has ever expressly used the term

“secular” or “multi-religiousity”. They both are mere deductions or interpretations. However,

the fact that secularism connotes none belief in God then the only option left especially

judging from the existing constitutional and statutory arrangement, multi-religious status is

more in tune with the reality in Nigeria.

Statutorily, Nigeria is said to be “under God” in the wordings of the

Preamble to the 1999 Constitution.44

Indeed the National anthem contains prayers to “God of

Creation” to “direct our noble cause”. Christian Sabbath is enforced by Law. S. 15 of the

Interpretation Act.45

defines holiday as “Sunday and public holiday.” The Governments

43

See also Christian Education South Africa v. Minister of Education 2000 4 SA 757; 2000 BCLR 1051 (CC) para

36

44 Constitution of the Federal Republic of Nigeria (Promulgation) Act Cap. C23 Laws of the Federation of

Nigeria, 2010.

45 Cap. 123 Laws of the Federation, 2010

11

openly provide supports for purely religious causes such as religious places of worship and

pilgrimage. These among others question the secularity claim of Nigeria.

The religious demography of Nigeria makes it impracticable for either Christianity or Islam

to be made a state religion in Nigeria. No religion is predominant unlike in other countries

where there are overwhelming majority professing a particular religion. The fact is that

Nigerians are religious and thus religion cannot but play roles in their private and public life.

Consequently, religious pluralism (multi-religiosity) is more suitable than secularism. 50.5%

of Nigerian population are Muslims, 48.2% are Christians and 1.4% belonging to other

religions.46

Another demographic assessment states that 50% is Muslims, 40% Christians and

10% others.47

The stipulation in Section 10 of the Nigerian Constitution is that “The Government of the

Federation or of a State shall not adopt any religion as State Religion”. This non-

establishment clause leads many to conclude that any State without State Religion/Church is

a secular nation. Great Britain, Sweden (Before 2000), Spain, Malaysia, Indonesia & Norway

(Before 2012) belie that position. They claim to be secular despite their affirmation of

respective State-Religion. The “free exercise of religion-clause” is contained in Section 38

(1) (2) (3) (4) of the 1999 constitution:

“(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) 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.”

46

The Pew Forum on Religion and Public Life provided this statistics in 2003. See http//www.state.pew-

forum.org/world-affairs/countries/CountryID=150 assessed 6th

May, 2015

47 State.gov/j/drs/rls/irf/2013/af/222083.htm assessed 6

th May, 2015 which is the 2013 Report on

International Religious Freedom

12

This provision represents what is regarded as the primary rights on the freedom of religion

matrix. The other secondary rights which assist in the protection of religion include the

freedom of association,48

right to private and family life,49

right to freedom of expression,50

right to freedom of movement51

all cumulatively protecting Nigerians rights to practice their

faith. These provisions are complemented with or by international legal instruments.52

Nigerians are expected to freely choose their religion and practice same unhindered, and no

religion is preferred over another in the scheme of governance. No Nigerian is expected to be

treated differently on the basis of his/her faith. The judiciary has interpreted this right in a

number of cases with the tone set by Ayoola JSC in Medical and Dental Practitioners

Disciplinary Tribunal V. Okonkwo53

where his lordship emphasised that law has the role of

ensuring ‘fullness of liberty when there is no danger to public interest.’ The Nigerian courts

have interpreted these provisions to emphasis freedom of religion.

COURT PRONOUNCEMENTS

The Courts in Nigeria have generally tilted more towards “free exercise clause” than

“elasticity of non-establishment clause”. The limitation of free exercise clause by (Sec 45 of

the Constitution) i.e. “public interest of defence, public safety, public order, public morality

or public health” (b) for the purpose of protecting the rights and freedom of others” has

always been cautiously allowed.

In The Provost, Kwara State College of Education, Ilorin & ORS V. Basirat Saliu & ORS54

the Court of Appeal held that denial of the use of niqab/hijab by female Muslim students of

the College under the pretext of protection of public safety, public order & the rights of

others violates the “free exercise clause in S.38. It was also established that the free exercise

clause (Sec. 38) can only be restricted by the Constitution itself or Law(s) made in protection

of Section 45 (defence, public order, morally, health & protection of the rights of others) and

not by mere policy.

In Medical & Dental Practitioners Disciplinary Tribunal V. Dr. John E.N. Okonkwo.55

The

Supreme Court further reaffirms that Sections 37 & 38 of the Constitution allow a patient,

48

Section 40 of the Constitution

49 Section 37 of the Constitution

50 Section 39 of the Constitution

51 Section 41 of the Constitution

52 Universal Declaration of Human Rights, 1948, International Covenant of Civil and Political Rights, 1966 and

African Charter on Human Peoples Right, 1981 to mention a few of such instruments.

53 (2001) 6 NWLR (Pt.710); (2001) 3 SC 76

54 CA/IL/49/2006 delivered on 18

th June 2009

55 (2001) 7 NWLR (PT.711) 206 AT 244-245

13

even to a point of death, to refuse on religious grounds, particular medical, treatment. A

particular exception is the decision of the High Court of Lagos State, in Asiyat Abdulkareem

& ORS V. Lagos State Government & ORS56

where it was held that: hijab by female Muslim

students infringes on the right of other non-Muslim students who will feel inferior to the

Hijab wearing students. The case is currently before the Court of Appeal.

The Court emphasised the points equally more forcefully in Nkpa V. Nkume57

where the

Supreme Court upheld the objection of a Jehova’s witness refusal to be part of a community

contribution on the basis of the religious belief of the Appellant. Ikongbe JCA deprecated the

attitude of the trial Judge for his refusal to accord the Appellant the constitutionally

guaranteed right. The same position was taken in Agbai V. Okagbue58

and this was extended

to freedom of association in Ajao V. Ashiru59

The Court of Appeal however distinguished the freedom of religion and bench mark it against

right to life in Esunabor V. Faweya60

where a Jehova witness adherent who is the Appellant

in the case refused to give consent to blood transfusion for her child on the ground of her

faith system. The police got the order of a Magistrate Court to administer the blood

transfusion. After the child was discharged from the hospital, efforts were now made to quash

the decision of the Magistrate Court. The High Court refused to discharge the order and the

Court of Appeal further affirmed the correctness of the position of the Magistrate. The

appellate court emphasised that the attitude of the Appellant is ‘illegal and despicable act

which must be condemned in the strongest terms’61

Constitutional provisions on Religions in Nigeria are in Sections 10, 38, 17 (3) (b) 42 and the

limitations are spelt out in Section 45 to the effect that:

“(1) 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

56

Suit No. ID/151M/13 delivered on 17th

October, 2014 pp.13 & 14

57 (2001) 6 NWLR (PT.710) 543

58 (1991) 7 NWLR (Pt.204) 391

59 (1973) 8 NSCC 525. It should be noted that this decision was taken before the 1979 and 1999 Constitution

where the provision of S.38 under consideration was given consideration. The reasoning with respect to

emphasis on freedom of association is the parity of reasoning we are conveying with this decision.

60 (2009) All FWLR (Pt.478) 380

61 Ibid at p.397.

14

(b) For the purpose of protecting the rights and freedom of other persons.”62

Although the above is serving as limitation the extent of the limits are clearly defined and

under the principle of expressio unis exclusio uterius (express mention of one thing is the

exclusion of the others) thus the limitation can only be imposed for specified reasons. We

must however ask whose defence, whose safety and whose public order? The only way this

provision can be interpreted is by delimiting it within the context of the government and not

the occupiers of the office of government. It must however be emphasised these stream of

rights are equally available through international legal instruments including Universal

Declaration of Human Rights (UNDR),63

International Covenant on Civil and Political Rights

(ICCPR),64

African Charter on Human and Peoples Right (ACHPR),65

All Forms of

Intolerance and of Discrimination Based on Religion and Belief.66

Nigerian government

domesticated the African Charter on Human and Peoples Rights67

and Chapter II of the

Constitution captured the essence of ICCPR provisions though not directly referred to as

such.

Section 17 (3) (b) states that “The State shall direct its policy towards ensuring that

conditions of work are just and humane and that there are adequate facilities for ….. religious

and cultural life”.

It is a constitutional right to be provided with adequate religious facilities in a work place,

therefore such a country cannot be said to be secular in the sense of not providing assistance

for the practice of religions. Though, Section 17 of the Constitution is in Chapter II which is

generally not justiciable and courts have held that rights in that category cannot be enforced

by citizens68

but their compliance with such provision cannot be said to be illegal or

unconstitutional. It has even been argued elsewhere that rights in this sphere must be

62

Oba, A.A. “The Relevance of Religion in Nigeria” (1997) Punjab University Law Journal LIV(23) 37-39 where

an overview of the section was discussed

63 Adopted on December, 10 1948 G.A. Res 217A (III). UN Doc. A/810 at 71 . See Art.18 on the freedom of

religion

64 Adopted 16

th December, 1966 but came into force after the required signatory on 23

rd March, 1976 G.A. Res.

2200A (XXI), UN Doc. A/6316, 999 UNTS 171 as contained in (1993) 6 International Legal Materials 368.

Freedom of religion is also contained in Art.18

65 Adopted 27/6/1981 but became effective 21/10/1986, OAU Doc. CAB/LEG/57/3 Rev.5 reprinted in (1982) 21

International Legal Materials 58. Art.8 provides for freedom of religion

66 Adopted 25 November, 1981, G.A. Res 36/55, 35 UN GOAR, Supp. (No.51) UN Doc. A/36/51, at 171 (1981)

67 Cap. A9 Laws of the Federation of Nigeria, 2010

68 Okogie V. AG Lagos (1981) NCLR 218; AG Ondo State v. AG Federation & Ors (2002) 9 NWLR (Pt.772) 222

15

enforced by the courts using judicial activism and public interest litigation as basis.69

The

usual argument of economic challenge on the part of government cannot and should not avail

it in this regard. This particular policy direction has nothing to do with economy. It only

requires a committed leadership to the issue of religious freedom.

It has also been argued that Islamic Penal Code being applied in some Northern States70

violates Section 38. The Courts are yet to determine the constitutionality or otherwise of the

introduced laws. In spite of the fact that no court has pronounced on the constitutionality of

this law, scholars have argued that the law is constitutional.71

Nwauche argued:

“I am convinced that the introduction is constitutional and that these states have only

reaffirmed Islam as a de facto state religion for three reasons. First, the criminal law in

northern states of Nigeria before 1999 was largely religiously based. Few people seemed

willing to argue then that this fact caused these laws to amount to the adoption of a state

religion. Secondly, the validity and operation of these laws are within a constitutional

scheme. These laws are subject to overriding provisions of the Constitution, including the

fundamental human rights found in chapter four.”72

One needs to observe that there are 4 recognised sources of Law in Nigeria: (a) Common

Law of England (b) Shariah (c) Customary Law & (d) Legislation. The penal codes are

products of the legislature. They are also restricted to only Muslims or non-Muslims who

voluntarily opt to be brought under the code. Prior to the enactments, the Penal Code of

Northern Nigeria which was essentially based on Islamic penal system applied to all

inhabitants of all the States of Northern Nigeria.

The Common Law of England introduced into Nigeria is predominantly giving preference to

Christianity as epitomised by provisions in the Marriage Act,73

Criminal Code74

and the

69

Egbewole, W.O. & Olatunji, O. “Justiciability Theory Versus Political Question Doctrine: Challenges of the

Nigerian Judiciary in the Determination of Electoral and Related Cases” (2012) 14 Journal Jurisprudence 117-

150

70 The states are Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe and

Zamfara but it was Zamfara state that first introduced the Islamic penal law on 27th

October, 1999

71 Nwauche, E.S. “Law, Religion and Human Rights in Nigeria” (2008) 8 African Human Rights Law Journal

p.576; Yadudu, A. “Evaluating the Implementation of Shari’a in Nigeria: Time for Reflection on some

Challenges and Limiting Factors” paper presented at the Nigerian Bar Association General and Delegates

Conference in 2006 cited in Nwauche, E.S. p.576

72 The courts have demonstrated that the criminal penal law cannot operate outside of the Constitution in the

determination of the appeal in Safiyatu v. AG Sokoto State Unreported Appeal of Sokoto State Shari’a Court of

Appeal delivered on 25th

March, 2002 where the court emphasised the applicability of S.36(9) of the

Constitution with regards to the non existence of the law at the time the offence was allegedly committed.

73 Cap M6 Laws of the Federation of Nigeria, 2010 where marriage under it is not at the same pedestal as

those solemnized under the Islamic law and customary law. Indeed they can be legally speaking regarded as

‘inferior’. Sections 33 and 35 clearly depicted this position.

16

Evidence Act.75

All these cumulatively indicate that while Nigeria is a multi-faith state, there

is need for amendment of some of our laws to properly reflect the correct status of Nigeria

appropriately.

CATEGORISATION OF NIGERIA

Durham & Scharffs76

provided a 10 point Schematization of state and religion. The ten types

are:

(i) Absolute theocracy such as Kingdom of Saudi Arabia.

(ii) Established State-Church such s England and Spain

(iii)Religious Status system such as Nigeria.

(iv) Historically favoured or endorsed churches such as Italy.

(v) Preferred set of religions. In practice Islam and Christianity in Nigeria are by practice,

the preferred.

(vi) Cooperationist Regimes e.g. Poland and Germany

(vii) Accomodationist Regimes

(viii) Separationist Regimes

(ix) Secular Control Regimes such as France

(x) Abolitionist States such as Cuba and Russia.

The question to ask is where is the place of Nigeria in this? It is our view that labelling may

be deceitful. Very few care about names/labels but most respond to particular action and

effect. The reality is that in State-Religion affairs dynamism of issues makes almost all States

oscillate between theocracy and abolitionism. Nigeria, depending on the particular issues can

be said to be theocratic or abolitionist. The mood swings. Furthermore, It is believed that the

demarcations among the classes if at all they exist, are very thin. The fact that there is

obvious over lapping attests to this assertion.

In the view of Oloyede77

, the clear classifications are only four.

74

Cap. C38 Laws of the Federation 2010 where ‘husband’ and wife were defined from the perspective of a

Christian marriage. Equally, evidence cannot be elicited against any of the couples in a Christian standing trial

by the other couple. This is not extended to marriage under Islamic Law and Customary Law.

75 Evidence Act, 2011 vide S. 258 on definition of husband and wife, S.178 on competence of witnesses as

husband and wife and S.182 on compellability of husband and wife as witnesses

76 Durham, W.C. & Scharffs, B.G. Law and Religion National, International and Comparative Perspectives (New

York, Aspen Publishers: 2010) p.114-121

17

(1) identification with a particular Religion. (Theocracy or pseudo-theocracy) (tolerant or

intolerant of others)

(2) Multi-Religiosity/Pluralism – with historical particularity/without historical

particularity

(3) Genuinely & truly indifference (friendly to all but not helpful to any)

(4) Anti-Religious (hostile)

Secularity or even secularism is invoked as applicable in numbers 2 to 4. Even some

theocratic States such as Egypt, Tunisia claim to be secular.

Nigeria by Law and by practice clearly belongs to the Second category.

One other feature of Religion, Law and the State in Nigeria is history. Spain has transformed

from a Catholic theocracy to a ‘secular’ nation just as Egypt or Algeria have transformed

from Islamic theocracy into “secularity”.

In the case of Nigeria, it is an amalgamation of two previously theocratic States – Northern

Nigeria was an Islamic theocracy while Southern Nigeria was at best a Christian-‘secular’

society.

I support the strong complaints of Chief Obafemi Awolowo against the sectarian partisanship

of secularism being operated in Southern Nigeria. He stated:

“The existing association between the State and the Church should be

completely severed. It is an old British custom which is apish, unreflecting and

discriminatory for us to preserve. Why should there be State services at all?

Why, even if they are necessary, should they be confined to the Anglican

Churches, and not held in Churches of other confessions and in the Mosques

as well? Why should there be any religious services at all in connection with

the opening of the assizes? And why, if such services are necessary, are they

not held in Churches other than those of the Anglican confession, and in the

Mosques as well? The whole thing is ludicrous”78

While the British imperialists managed to institute a governance system which incorporates

characteristics and features of the two different backgrounds; intolerance, ignorance and

limited vision made assimilation rather than accommodation or pluralism attractive to the

77

Oloyede, I. In his contributions at the Conference on “Towards Law and Religious Freedom in Africa”

sponsored by Centre for Human Rights of the Faculty of Law, University of Lagos, Ikeja and Lagos Branches of

the Nigerian Bar Association, the African Consortium for Law and Religious Studies, South Africa and the

International Centre for Law and Religion Studies at Brigham Young University, Utah, USA held at the university

of Lagos between 23-27 February, 2015.

78 Awolowo, O. Thoughts on Nigeria Constitution (1966) (Ibadan: Oxford University Press) p.150

18

political class and indeed the legislature. Once the safety-valves and reassurance mechanism

were blown off, the backbone of nationalism became shattered.

The unique features of Nigeria’s religious pluralism are (a) lack of majority/minority

syndrome (b) forced the marriage of two persons/groups that were already in different

respective matrimonies. The pull from their respective original spouses distracts from or

disturbs the new marriage. Like all marriages with its ups and downs, it is incumbent on all

stakeholders of this new marriage to make it work. The way to achieve this is by projecting

religious understanding within the context of religious freedom.

RECOMMENDATIONS

In order to further the accessibility of freedom of religion in Nigeria it is imperative that the

following be considered:

The implementation mechanism of freedom of religion to be improved upon by the

government by ensuring that the leaders maintain the appropriate balance in dealing

with the two major religions in Nigeria, Islam and Christianity instead of playing the

Ostrich theory of religious balance while favouring one to displease the other. Our

recent experience at the political divide leaves so much to be desired.

The citizens must make concerted effort at owning freedom of religion through the

socio-cultural approach by establishing the freedom from the micro level and adopt

the bottom-to-top approach instead of expecting government to ensure freedom of

religion. The Constitution has provided the legal framework for citizens to work on.

Nigerian legislature must endeavour to legislate for independent freedom of religion

instead of the present shared freedom with conscience and thought.

The leadership of the two dominant religions must learn to live together in harmony in

order to ensure the sustained peace in Nigeria.

The Nigerian Judiciary should take a more pro-active position by way of judicial

activism by using the interpretative skill to put the provisions of Section17 in proper

perspectives through the instrumentality of the international legal instruments to

which Nigeria is a signatory.

There is the need to move from the present freedom to the next level of right to

religion.

CONCLUSION

The operational complexities of the free exercise of religious rights in Nigeria are

determinable by a collective position of the government and the governed. There is a legal

framework that guarantees free exercise of religious practices in spite of its limited scope and

19

the operational impediments. It could be improved upon but the existing arrangement if

properly managed is enough to sustain the multi-religious status of Nigeria.

The judiciary has assisted tremendously in ensuring application and sustaining the access to

the freedom as guaranteed by the Constitution. This freedom is abused in some respects but it

will be counter- productive to attempt to limit or stifle the rights on the pretext of abuse.

It is not yet eureka but Nigeria is on the right course on the path to right to religion.

REFERENCES

LEGISLATIONS

1. African Charter on Human and Peoples Right (ACHPR), Adopted 27/6/1981 but

became effective 21/10/1986, OAU Doc. CAB/LEG/57/3 Rev.5 reprinted in (1982)

21 International Legal Materials 58.

2. Constitution of the Federal Republic of Nigeria (Promulgation) Act Cap. C23 Laws of

the Federation of Nigeria, 2010.

3. Criminal Code, Cap. C38 Laws of the Federation 2010

4. Evidence Act, 2011 Cap E14 Laws of the Federation, 2010

5. International Covenant on Civil and Political Rights (ICCPR), Adopted 16th

December, 1966 but came into force after the required signatory on 23rd

March, 1976

G.A. Res. 2200A (XXI), UN Doc. A/6316, 999 UNTS 171 as contained in (1993) 6

International Legal Materials 368.

6. Interpretation Act Cap. 123 Laws of the Federation, 2010

7. Marriage Act, Cap M6 Laws of the Federation of Nigeria, 2010

8. Universal Declaration of Human Rights (UNDR), Adopted on December, 10 1948

G.A. Res 217A (III). UN Doc. A/810 at 71

BOOKS

1. Awolowo, O. Thoughts on Nigeria Constitution (1966) (Ibadan: Oxford University

Press)

2. Durham, W.C. & Scharffs, B.G. Law and Religion National, International and

Comparative Perspectives (New York, Aspen Publishers: 2010)

3. Durham, W.C. Jr. & Sewell, E.A., James A. Serritella (ed.), Religious Organizations

in the United States: A Study of Identity, Liberty, and the Law (Carolina Academic

Press; 2006)

4. Fuller, L. L. The Morality of Law 189 ( rev’d ed. 1969)

5. John Witte, Jr & Joel A. Nichols Religion and the American Constitutional

Experiment (3rd

ed.)

6. Maclure, J. & Taylor, C. Secularism and Freedom of Conscience (2011)

7. Oloyede, I.O. Shari’ah Versus Secularism in Nigeria (Islamic Publication Bureau;

Lagos:1985

20

ARTICLES

1. Baderin, M.A. “Islam and the Realization of Human Rights in the Muslim World” in

Sarah Joseph & Adam McBeth Research Handbook on International Human Rights

Law 440-466

2. Domingo R. “A Right to Religious and Moral Freedom?” (2014) 12 (1) International

Journal of Constitutional Law 226-247

3. Egbewole, W.O. Judex: Hope for the Hopeful and the Hopeless 139th

Inaugural

Lecture of the University of Ilorin delivered on 28th

November, 2013

4. Egbewole, W.O. & Olatunji, O. “Justiciability Theory Versus Political Question

Doctrine: Challenges of the Nigerian Judiciary in the Determination of Electoral and

Related Cases” (2012) 14 Journal Jurisprudence 117-150

5. Gey, S.G. “Why is Religion Special? Reconsidering the Accommodation of Religion

Under the Religion Clauses of the First Ammendment”, (1990) 52 U. Pitt. L. Rev. 75

6. Henkin, L. “Religion, Religions and Human Rights” (1998) 26 Journal of Religious

Ethics 229-239

7. Iwobi, A.U. “Tiptoeing Through a Constitutional Minefield: The Great Shari’a

Controversy in Nigeria” (2004) 48 Journal of Law 133-135

8. Johan D van der Vyver & M Christian Green “Law, Religion and Human Rights in

Africa: Introduction” (2009) 8 African Human Rights Law Journal 337-356

9. Nsereko, D. “Religion, the State and the Law in Africa” (1986) 28 Journal Church

reproduced in Quarshigah, K

10. Nwabueze, B.O. Military Rule and Constitutionalism (1992) 282; Iwobi, A.U.

“Tiptoeing Through a Constitutional Minefield: The Great Shari’a Controversy in

Nigeria” (2004) 48 Journal of Law 133-135

11. Nwauche, E.S. “Law, Religion and Human Rights in Nigeria” (2008) 8 African

Human Rights Law Journal

12. Oba, A.A. “The Relevance of Religion in Nigeria” (1997) Punjab University Law

Journal LIV(23) 37

13. Oloyede, I.O. “Polemics and Dynamics of Religious Tolerance: An Examination of

Some Major Impediments to Religious Harmony in Nigeria” Paper delivered at the

Council for the World’s Religion Conference on “Religion and Peace in Multi-Faith

Nigeria” held at Obafemi Awolowo University, Ile-Ife, Nigeria December, 4-8, 1989

14. Oloyede, I.O. “Religion and the State” Religion and Society published by World

Council of Churches (Dialogue with People of Living Faiths) 15-25

15. Oloyede, I.O. “Secularism and Religion: Conflict and Compromise (An Islamic

Perspective)” Islam and the Modern Age (1987) XVIII (1) 21-38

16. Oloyede, I. “Towards Law and Religious Freedom in Africa” paper presented at the

conference by Centre for Human Rights of the Faculty of Law, University of Lagos,

Ikeja and Lagos Branches of the Nigerian Bar Association, the African Consortium

for Law and Religious Studies, South Africa and the International Centre for Law and

Religion Studies at Brigham Young University, Utah, USA held at the university of

Lagos between 23-27 February, 2015

17. Peter, R. Islamic Criminal Law in Nigeria (2003) 33 reproduced in Nwauche, N.S. op

cit; Oloyede, I.O. “In Search of a Peaceful Society” Paper delivered at the Reunion

Luncheon of University of Lagos Muslim Alumni Association (UMA) on 24th

June,

2000 p.16

21

18. Primor, A. “A Collection of States or a State of Mind: The Religious and Spiritual

Dimensions of European Citizenship” in N Doe & R Sandberg (eds) cited in

Quashigah, K. “Religion and the Republican State in Africa: The Need for a

Distanced Relationship” (2014) African Human Rights Law Journal 78-92

19. Quashigah, K. “Religion and the Republican State in Africa: The Need for a

Distanced Relationship” (2014) African Human Rights Law Journal 14 78-92

20. Roosevelt, E. Remarks made at the presentation of In Your Hands: A Guide for

Community Action for the Tenth Anniversary of the Universal Declaration of Human

Rights to the UN Commission on Human Right

21. Smith, S.D. ‘The Rise and Fall of Religious Freedom in Constitutional Discourse”

(1991) 140 U. Pa. L. Rev. 149

22. Tabiu, M. “Shari’a Federalism and Nigerian Constitution” Paper presented at the

International Conference on Shari’a, London, 2001

23. Tyus, J. “Going Too Far: Extending Shari’a Law in Nigeria From Personal to Public

Law (2004) 3 Washington University global Studies Law Review 199.

LIST OF CASES

1. Agbai V. Okagbue(1991) 7 NWLR (Pt.204) 391

2. Ajao V. Ashiru(1973) 8 NSCC 525.

3. Asiyat Abdulkareem & ORS V. Lagos State Government & ORS Suit No. ID/151M/13

delivered on 17th

October, 2014

4. Awolowo V. Shagari (1979) 6-9 SC 73

5. Christian Education South Africa v. Minister of Education 2000 4 SA 757; 2000

BCLR 1051

6. Egbe V. Yusuf (1992) NWLR (Pt.245) 1

7. Esunabor V. Faweya (2009) All FWLR (Pt.478) 380

8. Medical and Dental Practitioners Disciplinary Tribunal V. Okonkwo (2001) 6 NWLR

(Pt.710); (2001) 3 SC 76

9. Medical & Dental Practitioners Disciplinary Tribunal V. Dr. John E.N. Okonkwo

(2001) 7 NWLR (PT.711) 206 AT 244-245

10. Nkpa V. Nkume(2001) 6 NWLR (PT.710) 543

11. Okogie V. AG Lagos (1981) NCLR 218; AG Ondo State v. AG Federation & Ors

(2002) 9 NWLR (Pt.772) 222

12. Okotie-Eboh V. Manager (2004) 18 NWLR (Pt.905) 242

13. Provost, Kwara State College of Education, Ilorin & ORS V. Basirat Saliu & ORS

CA/IL/49/2006 delivered on 18th

June 2009

14. Safiyatu v. AG Sokoto State Unreported Appeal of Sokoto State Shari’a Court of

Appeal delivered on 25th

March, 2002