CONSTITUTIONAL SECULARISM AND FREEDOM OF RELIGION IN NIGERIA; ANALYSIS OF ASIYAT ABDULAKAREEM & Ors v. LAGOS STATE GOVERNMENT & Ors (Unreported; Suit No. ID/151M/13) BY RUSSEL OSHIOKHAYAME ERAGA FACULTY OF LAW UNIVERSITY OF BENIN BENIN CITY SEPTEMBER 2015
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CONSTITUTIONAL SECULARISM AND FREEDOM OF
RELIGION IN NIGERIA; ANALYSIS OF ASIYAT
ABDULAKAREEM & Ors v. LAGOS STATE GOVERNMENT &
Ors (Unreported; Suit No. ID/151M/13)
BY
RUSSEL OSHIOKHAYAME ERAGA
FACULTY OF LAW
UNIVERSITY OF BENIN
BENIN CITY
SEPTEMBER 2015
2
TABLE OF CONTENT
Title Page . . . . . . . . . . . i
Cover Page . . . . . . . . . . ii
Certification . . . . . . . . . . iii
Approval . . . . . . . . . . iv
Dedication . . . . . . . . . . v
Acknowledgement . . . . . . . . . vi
Table of Content . . . . . . . . . vii
Table of Cases . . . . . . . . . xi
Table of Statutes . . . . . . . . . xiv
Abbreviations . . . . . . . . . .
CHAPTER ONE: INTRODUCTION
1.1 Introduction . . . . . . . . . 8
1.2 Law and Religion . . . . . . . .
1.2.1 Law . . . . . . . . .
1.2.2 Religion . . . . . . . .
1.2.3 The Relationship between Law and Religion . . . .
CHAPTER TWO: CONSTITUTIONAL SECULARISM
2.1 Constitution . . . . . . . . . 22
2.2 Theocracy . . . . . . . . .
3
2.3 Secularism . . . . . . . . .
2.4 States-Religion Models . . . . . . .
2.5 Comparative Analyses of Secular Constitutions . . . .
2.5.1 United States of America . . . . . .
2.5.2 France . . . . . . . . .
2.5.3 Turkey . . . . . . . . .
2.5.4 India . . . . . . . . .
2.5.5 Comment . . . . . . . .
2.6 The Nigerian State . . . . . . . .
CHAPTER THREE: CONCEPT OF RIGHTS
3.1 Fundamental Rights . . . . . . . . 61
3.2 Rights as Correlative of Duty . . . . . . .
3.3 Absolute Rights . . . . . . . .
3.4 Limitation of Rights . . . . . . . .
3.5 Proportionality of Limitation . . . . . . .
3.6 Right to Freedom of Religion . . . . . . .
3.6.1 Freedom of Religion as an Assemblage of Other Freedoms . .
3.6.2 Limiting the Freedom . . . . . . . .
3.7 Problem of Minority . . . . . . . . .
3.7.1 Accommodation of Religious Precepts . . . .
4
CHAPTER FOUR: ASIYAT ABDULAKAREEM & ORS v. LAGOS STATE
GOVERNMENT & ORS
4.1 Facts . . . . . . . . . . 102
4.2 Analysis of the Ratio . . . . . . . .
4.2.1 Scope of the Right . . . . . . .
4.2.2 Proportionality . . . . . . .
4.2.3 Comments . . . . . . . .
CHAPTER FIVE: SUMMARY AND CONCLUSION
5.1 Summary . . . . . . . . . 114
5.2 Conclusion . . . . . . . . .
5
TABLE OF CASES
A v. United Kingdom (1999) 27 EHRR 611
Adamu v. Attorney General, Borno State [1996]8 NWLR (pt. 465) 203
A.G. Lagos v. Hon Justice Dosunmu (1989) 3 NWLR (Pt 3) 552
Ahmad v United Kingdom (1981) 4 EHRR 126.
Asiyat Abdulakareem & ors v. Lagos State Government & ors (unreported) Suit No.
ID/151M/13
Baxter v. Laugley (1868) LJMC 15.
Bayatyan v. Armenia [2011] 23459/03
Board of Education of Kiryas Joel Village School District v. Grumet 512 U.S. 687 (1994).
Braunfeld v. Brown, 366 U.S. 59, 81 S.Ct. 1144, 6 L.Ed.2d (1961)
Buscarini and Others v. San Marino (1999) App. no. 24645/94
Cantwell v. Connecticut 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed 1213 (1940)
Church of the Lukunmi Babalu Aye Inc. v. Hialeah 508 U.S. 520 (1993)
Cole v. PC 443A [1936] 3 All ER 107
Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835
Dimitras and Others v. Greece, 2010 Application nos. 42837/06, 3237/07, 3269/07, 35793/07
and 6099/08.
Emmanuel Bijoe v. State of Kerala AIR (1987) S C 748
Everson v. Board of Education 330 U.S. 1, 67 S.Ct. 504 (1947)
Eweida & Ors v. The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and
36516/10.
Fawehinmi v Abacha [1996] 9 NWLR (pt. 475) 710
Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing,
(1999) 1 A.C. 6.
Hasan v. Bulgaria, Application no 30985/96, (2010) 24 EHRR 55.
Jakobski v. Poland [2010] 30 EHRR 417
Kalac v Turkey (1997) 27 EHRR 552.
Karaduman v Turkey (1993) 74 DR 93
Kokkinakis v. Greece, 1993 App. no. 260-A 25
Lee v. Weisman 505 U.S. 577 (1992).
Lemon v. Kurtzman 403 U.S. 602 (1971).
Lynch v. Donnelly, 465 U.S. 668 (1984)
6
McCollum v. Board of Education 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed 649 (1948)
Metropolitan Church of Bessarabia v. Moldova Application no. 45701/99, (2002)
Niklnikoff v. Archbishop of Russia Orthodox Greek Church, 1422MISC 894: 225 NYS 653.
seems to stem from what is actually done in practise by government which on proper
analysis, amounts to gross violation of the constitution.
In contravention of the Constitution, public policy on religion hasn‟t been directed toward the
freedom from discrimination. Religious affiliations are secretly but clearly considered for
public welfare initiatives. For instance government sponsors religious pilgrimages of
adherents of the Christian and Muslim faith whereas other religious groups do not receive the
same government funding. Also, Federal Character allocation of public offices have tended to
further deepen this discrimination as this seem always to falls on members of the Christian
and Islamic persuasion. What this does is to indirectly force members of other religious
groups to conform or, when they seek government welfare or a place in government to claim
affiliation with either one of the two „established‟ or „privileged‟ religions. The attitude of
government in recognising Islam and Christianity explain why despite the copious provisions
for the protection of places of worship both in the Criminal164
and Penal Code165
, places of
163.
Section 17 CFRN 1999 (as amended).
164. Sections 204-206 Criminal Code Act (operating in southern Nigeria)
59
worship of traditional religious groups have been destroyed and burnt down without
government arresting the culprits even where known.166
The attitude towards other religious groups is even made more evident when recognised
religions use derogatory words to describe adherents of other religions in their sermons, and
writings. Such words like sinners, unbelievers, infidels, are used to describe people who do
not accept their faith. This attitude does discriminates and show lack of tolerance which the
spirit of Section 10 seeks to foster.
CONCLUSION
As has been pointed out in this chapter, a secular conception of the society, serves to protect
the interest of all religious groups. This is seen from the effects of adoption of a state religion
in a multi-religious state. The state, as well as religion gain from this secular posture.
Separation prevents the state from diverting religious organisations and its tenets for another
purposes: separation unburdens religion. It has also been pointed out that between theocracy
and secularity, exists a spectrum in which states fall with each shade having an implication
for the freedom of religion.
It has also been pointed out that Nigeria is secular state by virtue of the provisions of Sections
10, 18, 38 of the1999 Constitution (as amended) having met the three requirements of secular
states; the prohibition of the adoption of a state religion; the guarantee of freedom of religion;
the general provisions which aim at separation of the religion from the sphere of the State.
165. Section 210 Penal Code Act (operating in Northern Nigeria)
166. Consider the case of Moremi Shrine, which was located at the palace of the Olofa in Kwara state which
was demolished by some fundamentalist. See M.O. ENE, “Raiders of Sacred Shrine,” available at
http://www.kwenu.com/moesmemo/raiders_shrine.htm (Feb. 18, 2002) (stating that, in 2000, Police
arrested six of the Muslim fundamentalists who destroyed the Moremi Shrine in Otta, the second
largest city of Kwara State”).
60
Therefore government practises at variance with this secular stance is a violation of the
constitution and one thing is clear, excessive government entanglement with a select religion
never augurs well in a multi-religious society.
61
CHAPTER THREE
3.0 CONCEPT OF RIGHTS
The consciousness of rights has grown over the last six decades such that demands have been
made of certain standards of care and treatment from government, be it in civil or criminal
proceedings167
or in the guarantee of everyday services. People have begun to demand
minimal standards as citizens of the state than they did in the past.168
The development of rights seems to have arisen from the recognition of man‟s basic needs
and it has continually grown to cover many ambits as time evolved. It has its history in the
search for human dignity, to liberate man form servitude in order to differentiate man from
beast owing to the unique rational qualities man. Thus rights have grown out of the natural
rights of people which in ancient times and centuries thereafter, are still being recognised.169
As entitlements that grew out of the inherent nature of man, their recognition can be found in
writings of philosophers of the Natural Law school of thought way back to the time of the
Ancient philosophers such as Plato, Socrates and Aristotle. Human rights experienced
increased growth during the Reformation which brought changes in the Roman Catholic
Church and the need to protect the freedom of religious belief. It was after this period that the
social theorist John Locke developed his social contract theory of government.170
However,
167.
See Article 14 International Covenant on Civil and Political Rights 1966; section 36 Constitution of the Federal Republic of Nigeria 1999 (as amended) for the right to fair hearing. 168.
Edwin Shorts and Claire de Than, Civil Liberties, Legal Principles of Individual Freedom (London: Sweets & Maxwell, 1998), 1.
169.
See Shorts, Civil Liberties, 2. In the pre-world war II era, there was only the recognition of Civil and Political right. However, recently, there is the recognition of Social, Economic and Cultural Rights. See International Covenant on Economic, Social and Cultural Rights, 1966.
62
the modern theory of constitutional human rights was formed after the Second World War.
Before the war, freedom of religion, freedom of life, freedom from want and freedom from
fear171
were the only essential freedoms recognised as discussions at that time focused on the
political rights and civil liberties. But with the war, questions regarding humanity and the
dignity and worth of the individual took a world focus; the United Nations was formed in
1945, with the intent of establishing an international commitment to peace and protecting
human rights on a global scale. One of the UN‟s first acts in this direction was the Universal
Declaration of Human Rights in 1948 which has been hailed as a “significant milestone”172
in
protecting human rights. The declaration while emphasising the inherent nature of human
rights stated in its preamble that;
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as
the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected by the rule of
law…,
170.
Locke imagined an actual social contract between individuals and the state at the setting up of civil society in which citizens, in other to secure the protection of their property, handed over certain power – most importantly, a monopoly of coercive force, to the government in return for the guarantee of certain rights to lives, liberties and estates. See Helen Fenwick, Civil Liberties and Human Rights 3rd ed., (London: Cavendish Publishing Inc., 2005), 6. 171.
See The Atlantic Charter, 1941 signed by Winston Churchill and Franklin D. Roosevelt. 172.
See P. van Dijk and G.J.H van Hoof, Theory and Practice of the European Convention on Human Right, 2nd ed., (Kluwer: Deventer, 1992).
63
Whereas the people of the United Nations have in the Charter173
reaffirmed their faith in the
fundamental human rights, in the dignity and worth of the human person and in the equal
rights of men and women and have determined to promote the social progress and standards
of life in larger freedom…,
Whereas a common understanding of these rights and freedom is of the greatest importance
for the full realisation of this pledge,
NOW THEREFORE THE GENERAL ASSEMBLY PROCLAIMS THIS UNIVERSAL
DECLARATION OF HUMAN RIGHTS.
This declaration though lacking legal force was the first concerted effort by nations to
guarantee the rights of persons. It has inspired the formulation of binding treaties on rights
between nations174
and the bills of rights of various countries.175
3.1 FUNDAMENTAL RIGHTS
Fundamental rights are a class of rights which the state seeks to protect by enshrining them in
the constitution. 176
These rights are thought essential to life and are contained in both
municipal and international instruments. Fundamental rights are said to be made up of civil
173. See Preamble, Charter of the United Nations, 1945.
174.
International Covenant on Civil and Political Rights 1966, African Charter on Human and People’s Right 1981, European Convention on Human Rights 1950, American Convention on Human Rights 1961.
175.
See the British Human Rights Act, 1998; Canadian Bill of Rights, 1960.
176. N.A. Inegbedion and J.O. Odion, Constitutional Law in Nigeria 2nd ed., (Benin City: Ambik Press,
2011) 245. According to them, fundamental rights are more appropriately called Civil and Political Rights.
64
liberties and human rights177
which are claimed by individuals as part of, and which relate to
the position of the individual in the state. These rights which are seen as inherent to man‟s
status as a human being, are often found in Constitutional documents, couched in negative
terms so as to give them an urgency for protection. The United Nations has on its part,
worked to establish the concept of an international protection for rights. In seeking to achieve
these goals, the United Nations has relied primarily on the treaties. The basic human rights
jurisdiction of the United Nations is set out in the U.N. Charter; its Preamble affirms „faith in
fundamental human rights, in the dignity and worth of the human person ...‟178
Green179
is of the opinion that the principle of the protection of fundamental rights is derived
from the concept of man as a person and his relationship with the society which cannot be
separated from universal human nature. The existence of human rights does not depend on
the will of the state; neither does it depend on its municipal laws nor on international treaty,
in which the express will of the State constitutes the essential element. What this means is
that states are not capable of creating human rights by law or by convention as in
international treaties. They can only confirm their existence and give them protection; hence
the role of the state is no more than declaratory.
Another product of the international community in the protection of rights is the International
Covenant on Civil and Political Rights, 1966. This covenant was adopted by the UN General
Assembly in 1966 and came into force in 1976.180
It provides for a vast range of civil and
177.
Steve Foster, Human Right and Civil Liberties (London: Pearson Education Ltd, 2003), 8. 178.
Preamble United Nations Charter See also Article 55 (c) which provides for universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex language, or religion. 179.
See L.C. Green, Law and Society (New York: Oceana Publications, Inc., 1975), 311. 180.
The covenant contains a list of civil and political rights similar to that of the European Convention.
65
political rights as well as a number of exceptions and restrictions on the rights. for example, a
power of derogation is contained in Article 4 of the covenant, and rights such as freedom of
religion in Article 18, freedom of expression in Article 19, are subject to restrictions which
are provided by law and are necessary for the preservation of the rights of others and national
security, public order, public health and public morals. Under this covenant, the Human
Rights Committee; a body which monitors the enforcement of the covenant, was created via
Article 28. The Human Rights Committee has the functions of; receiving and studying reports
submitted to it by state parties;181
receiving and considering communications made to it by a
State Party claiming that another State Party is not fulfilling its obligations under the
Covenant;182
and receiving communications from individuals claiming to be a victim of a
violation of his or her covenant rights by a state party.183
Africa has not been left in the efforts to guarantee a minimum standard of protection for its
people. There is the African Charter on Human and Peoples‟ Right184
which is at the core of
African human rights protection. This instrument shows the willingness of African states to
be bound by the obligations created under the Charter.185
The charter created the African
Commission on Human and Peoples‟ Rights,186
to monitor states compliance with the
181.
Article 40 ICCPR. 182.
Ibid, Article 41. 183.
Article 1 Optional Protocol to the Covenant. 184.
Adopted by the Organisation of African Unity (OAU) now African unity (AU) at Banjul, The Gambia on June 27th, 1981 and which came into force on October 21st, 1986. With Eritrea’s deposit of instrument of ratification on January 14, 1999, all member states of the African Union had ratified the African Charter on Human and Peoples’ Right. 185.
However, given the action of states in recent years, one would be tempted to question the commitment of states to translate the rights in the charter into tangibles as even the economic, social and cultural rights still receive less attention while violation of civil and political rights continue on a massive scale See Sheila B. Keetharuth, “Major African Legal Instrument,” in Human Rights in Africa: Legal Perspectives on their Protection and Promotion, edited by Anton Bosl and Joseph Diescho (Namibia: Macmillan Education, 2009),163.
66
Charter. However, given the dynamic nature of the rights, the African charter, provided that
...special protocols and agreements may, if necessary, supplement the provisions of the
present Charter.187
Based on this provision, many protocols have been signed, some of which
are the Protocol on the Establishment of an African Court on Human and Peoples‟ Rights,
1998 188
and the Protocol to the African Charter on Human and Peoples‟ Rights on the Rights
of Women in Africa, 2003189
Nigeria on its own part has ratified the African Charter.190
However, the ratification was not
the beginning of Fundamental human right codification and protection in Nigeria. All
constitutions since independence have contained bills of rights of similar phrasing, the first
being the 1960 Independence Constitution. The origin of these human right provisions can be
traced to the report of the Minorities Commission headed by Sir Henry Willink. The
commission; set up by the colonial government in 1957, was to investigate complaints by
minority ethnic groups that the majority groups at independence would dominate them. The
commission was asked to investigate these fears and if they were found to be genuine, how
they could be allayed. The commission recommended the entrenchment of fundamental rights
in the Independence constitution. It noted that;
Whilst provisions of this kind are difficult to enforce and sometimes difficult to interpret,
they should be inserted in the constitution because they define belief widespread among
186.
See Article 30, African Charter. 187.
Ibid, Article 66. 188.
It entered into force on January 25th, 2004. 189.
It entered into force on November 25th, 2005. 190.
African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, cap A9 LFN 2004.
67
democratic countries and provide a standard to which appeal may be made by those whose
rights have been infringed.191
Presently, fundamental human rights are codified in Part IV of the 1999 Constitution which
along with the African charter has served as basis for the protection of rights in Nigeria.192
This point has been taken judicial notice of in Fawehinmi v Abacha193
where the applicant
sought a declaration that his arrest and continued detention without charge by the agents of
the respondent constitutes a gross violation of his fundamental rights guaranteed under
section 31, 32 and 38 of the 1979 Constitution and article 5, 6 and 12 of the African Charter
on Human and Peoples‟ Rights (Ratification and Enforcement) Act, and sought for the
enforcement of his right. The respondent, at the hearing of the preliminary objection,
contended that the appellant was detained pursuant to a detention order made by the
Inspector-General of Police under the provision of the State Security (Detention of Persons)
Decree No. 22 0f 1984 (as amended) and consequently, the court has no jurisdiction to hear
the action in that its jurisdiction was ousted by the decree. The appellant replied that the
provisions of the decree were inferior and could not override the provisions of the African
Charter under which the appellant was seeking the reliefs. The Court of Appeal in allowing
his appeal held that;
The provisions of the African Charter on Human and Peoples Rights are in a class of their
own and do not fall within the classifications of the hierarchy of local laws in Nigeria…while
the decrees of the Federal Military government may over ride other municipal laws, they
191.
C. Obiagwu and C.A. Odinkalu “Nigeria: Combating Legacies of Colonialism and Militarism,” in Human Rights under African Constitutions edited by A.A. An-Na’im (Philadelphia: University Of Pennsylvania Press, 2003), 219.
192. See Fundamental Rights (Enforcement Procedure) Rules, 2009 Preamble paragraph 3.
193.
[1996] 9 NWLR (pt. 475 ) 710
68
cannot oust the jurisdiction of the court where properly called upon to do so in relation to
matters pertaining to human rights under the African Charter.194
3.2 RIGHTS AS CORRELATIVE OF DUTY
Wesley Hohfeld, an American jurist attempted to analyse the nature of “rights”. The term
“rights” according to him, tends to be used indiscriminately to cover a range of legal terms.
He sought therefore to show how claims of right in everyday language,195
can in fact be
broken down into four more specific claims; true right (claim), liberty, power and immunity.
In his analysis, a “right” in it strictest sense is to be defined by an advantage conferred on a
person or a group of persons by a rule of law which is enforceable against some other person
or group of persons upon whom some duty in respect of that right has been laid by that rule
of law. Thus a true right is defined in terms of duty correlative to it. This means a true right
must be enforceable.196
Since a true right imposes a duty on another, it can be said that duty
and rights are correlative terms. When a right is invaded, a duty is violated.197
„Liberty‟ on the other hand, presupposes the absence of a legal right or duty on the part of the
person enjoying the liberty. Liberty is the existence of no restraint from action or compulsion
to act one way or the other. Here, the person with the liberty is free to take an action in any
194. Ibid.
195. This mistake is also made in legal writings. See Black’s Law Dictionary 9th edition, ed. Bryan A.
Garner (New York: West Publishing Co., 2009), s.v. “right.” One of its definitions says a right is ‘a power, privilege, or immunity secured by law’. 196.
M.D.A. Freeman, Lloyds Introduction to Jurisprudence 8th edition (London: Sweet & Maxwell, 2008), 569. See also Hawley Park Coal co. v. L. & N. W. Railway [1913] A. C. 11, 25. (per Viscount Haldane L. C. at 27: “there is an obligation of a lateral support on the neighbour, and in that sense there is a correlative right on the part of the owner of the first piece of land.”
69
direction or even not to act at all. Also, there is no duty on any person to aid the person with
the liberty to act.198
„Power‟ refers to ability, capacity in a person, to influence or alter his or another‟s legal
position, while „immunity‟ connotes being free from the control of another‟s power or
control. Immunity is therefore situations where one person has no legal control over another.
Hohfeld‟s explanation is a useful analytical tool. Its utilisation shows that rights are a series
of immunities,199
that is, areas of entitlements which even democratic governments are
incapable of interfering with. 200
In the application of Hohfeld‟s theory to rights protection, it
can be seen that it endows the ability to distinguish between the different forms of protection
offered towards different freedoms. It becomes clear from Hohfeld‟s analysis that most
freedoms are merely liberties; one did no wrong to exercise them, but there was no positive
duty on any organ of the state to allow or facilitate them. However, some rights clearly had
and have the quality of Hohfeldian claim rights in that they are protected by a positive
correlative duty.201
It must also be pointed out that Hohfeld‟s analysis exposes situations where a guaranteed
freedom could be made up of varying combinations of right, liberty, power and immunity.202
For example the complex right to acquire and own immovable property can be analysed as
follows;
198.
See Cole v. PC 443A [1936] 3 All ER 107; Paddignton v. Bates [1960] All ER 660. 199.
For example, the guarantee of right to private and family right prevents government control or interference with correspondence, telephone and telegraphic communications of private individuals. 200.
Helen Fenwick, Civil Liberties and Human Rights, 3rd ed., (London: Cavendish Publishing Inc., 2005), 14.
201.
Section 36 CFRN 1999 (as amended) guarantee of right to fair hearing. See also the right to freedom from discrimination in section 42. 202.
Adaramola, Jurisprudence 158.
70
a. Others shall not enter or injure the property [true right];
b. The owner may use, misuse or abuse the property [liberty];
c. The owner can alienate his interest in the property to another by legal means [power];
d. The owner, in relation to the property is not subject the control of those who have no
power over it [immunity].203
3.3 ABSOLUTE RIGHTS
International human rights204
law recognises that rights do not have equal weight. Some
rights are absolute, while reasonable limits may be placed on other rights and freedoms.
Therefore rights could either be absolute or relative.
Black‟s Law Dictionary defines absolute right as;
1. A right that belongs to every human being, such as the right of personal liberty.
2. An unqualified right; specifically a right that cannot be denied or curtailed except
under specific conditions.
Amongst the definitions above, the second meaning almost captures the meaning of absolute
rights. The term „absolute right‟ is used only if the scope of the right is fully protected in the
constitutional and sub-constitutional level – that is, the extent of its realisation is equal to its
scope.205
Rights are absolute when they allow no possible justification for limitation; they
cannot be violated or derogated from. The reason for this is because they put a duty on state
203. Ibid.
204.
International Covenant on Civil and Political Rights, European Convention on Human Rights. 205.
Barak, Proportionality, 26.
71
actors to ensure their realisation. In A v. United Kingdom,206
the UK government was found
to have violated an absolute right when a nine year old boy had been beaten by his step-
father. This was upon the finding that he had been subjected to inhuman and degrading
treatment.207
An absolute right cannot therefore be limited for any reason. No circumstance justifies a
qualification or limitation of an absolute right. Absolute rights cannot be suspended, nor can
they be restricted, even during a declared state of emergency. International law recognises
the existence of this kind of rights to include; freedom from torture and other cruel, inhuman
or degrading treatment or punishment,208
freedom from slavery and servitude.209
The
prohibition of interference with these rights is absolute. The public interest, or the rights of
other individuals, cannot diminish the extent of its protection or realisation.
Rights on the other hand that exist with limitations are referred to as relative rights. A right is
relative if it is not protected to the full extent of its scope.210
Here, justifiable limits are placed
on the right‟s realisation in terms of actions that are otherwise included with its scope. These
set of rights have their realisation dependent on the rights of others or on public interest.211
These kinds of rights form a majority of the species of guaranteed rights under both
206. (1999) 27 EHRR 611
207.
See Article 3 European Convention on Human Rights. 208.
Ibid, Article 7. See also The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. 209.
Ibid, Article 8. 210.
Barak, Proportionality, 32. 211.
See Black’s Law Dictionary 9th edition, ed. Bryan A. Garner (New York: West Publishing Co., 2009), s.v. “relative right.”
72
municipal and international laws. They include; the freedom of expression,212
freedom of
religion, 213
freedom of assembly, 214
freedom of association, 215
amongst others.
3.4 LIMITATION OF RIGHTS
A limitation of a right occurs whenever a state action denies or prevents the right‟s owner
from exercising the right to its fullest scope. Accordingly, a limitation occurs whether the
effect on the right is insignificant or not; whether it is intentional or not; or whether it is
carried out by an act or omission.216
Rights can be restricted in various ways under human rights instruments. Many rights are
qualified such as by specific limitation clauses217
that apply to the right directly. For example,
under the ICCPR and the European Convention on Human Rights (ECHR), every person has
the right to liberty and security of the person, but this right may be qualified in specified
circumstances such as lawful detention after conviction by a competent court or the detention
of a minor for the lawful purpose of educational supervision.218
For instance, rights contained
in Articles 8–11 of the ECHR are guaranteed, subject to limitations that can be justified by
reference to particular objectives such as the protection of public health, order or morals; the
national interest; national security, public safety or the wellbeing of the country; public order;
212.
Ibid, Article 19. 213.
Ibid, Article 18.
214. Ibid, Article 21.
215.
Ibid, Article 22. 216.
Barak, Proportionality, 30. 217.
Barak differentiates specific limitation clauses from internal qualifying provisions. The latter according to him are linked to the right definition. They do not turn the right into a relative right, but rather help in determining or defining the scope of the right more narrowly. See Barak, Proportionality, 33. 218.
Article 9 ICCPR. See also section 35 CFRN 1999 (as amended).
73
the prevention of disorder or crime; or the protection of the rights and freedoms of others.
Such internal limitations must be in accordance with law and necessary in a democratic
society.
Further, rights can be qualified by a general limitation clause contained in the rights
instrument which applies to all the rights guaranteed. For example, Section 1 of the Canadian
Charter of Rights and Freedoms, 1982 guarantees enumerated rights, subject to any
reasonable limits that are prescribed by law and can be justified in a free and democratic
society. This limitation clause applies to all of the guaranteed rights. Similar wording has
been adopted in the Constitution and bill of rights of South Africa,219
and Nigeria,220
New
Zealand.221
Finally, rights can be temporarily suspended in exceptional circumstances. In international
and regional settings, this is referred to as derogation. For example, Article 4 of the
International Covenant on Civil and Political Rights222
provides;
in time of public emergency which threatens the life of the nation and the existence of which
is officially proclaimed, states may take measures derogating from their obligations under the
ICCPR to the extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under international law and do not
involve discrimination solely on the ground of race, colour, sex, language, religion or social
origin.
219.
South African Constitution section 36. In South Africa, the human rights guarantees are found in chapter 2 of the South African Constitution and are commonly referred to as the ‘Bills of Rights.’ The principal model for the South African Bill of Rights is the Canadian Charter of Rights and Freedoms which contains a list of rights and a general limitation clause governing the limitation of those rights. 220.
Section 45(1) CFRN 1999. 221.
See Section 5 New Zealand Bill of Rights Act 1990. 222.
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (21) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49.
74
In limiting rights, there is a need to draw a distinction between the scope of the right and the
extent of its protection.223
The scope of the right determines the right‟s boundaries and
defines its content, while the extent of its protection determines the legal limitations on the
exercise of the right within its scope. This distinction highlights the difference between the
constitutional level where rights are determined and their scope prescribed, and the sub-
constitutional level, where the extent of the rights realization is determined and its limitation
prescribed.224
The fact that rights can be limited raises issues of the jurisdiction of the courts to interpret the
provisions of the constitution and all statutes generally particularly where constitutional
rights are threatened with invasion. The place of the courts in ensuring their protection,
ensuring that only limitations that are justified are applied cannot be overemphasized. This
point was made by the Nigerian Supreme Court in Peter Obi v. INEC.225
Where the court
while identifying the interpretative jurisdiction of Courts, lamented that the anxieties arising
from litigating the case before it would have been removed if over the interpretative
jurisdiction conferred on courts by section 251(1) (q) and (r) of the 1999 constitution had
been fully recognized by all the parties.226
One of these relative rights was the subject of the decision in the case of O.F. Agoreyo & ors
v. C.A. Olatunji & ors.227
In that case, the dispute was the interpretation of the freedom of
association particularly the freedom to associate and form and belong to a trade union. The
court per Adeniji J. said;
223.
Barak, Proportionality, 19. 224.
Ibid. 225.
SC.123/2007, 3 Constitutional Law Classicus 226.
Per Oguntade JSC, 817 227.
Unreported, suit no. M/531/89 High Court Lagos State.
75
The right to assemble freely, to associate with other people and to form political parties or
trade unions no doubt exist, but the freedom to exercise that right is entirely a different
thing… under section 41 of the same 1979 Constitution, laws can be made curtailing the right
to associate and form trade unions.
3.4.1 Purposes for the Limitation of Rights
Under constitutional law, to achieve the permissible limitation of rights, such limitations must
be for the purpose of securing some objectives. These objectives are called “Proper
Purposes”228
and they require that acts or omissions of government which limit rights must be
to further such purposes. These requirements are those of public safety (health; morals;
security) and the right of others. Section 45(1) Constitution of the Federal Republic of
Nigeria 1999 (as amended)229
provides an example of the phrasing of such purposes. It
provides;
(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
(b) For the purpose of protecting the rights and freedom or other persons
From the above it is clear that relative rights can only be constitutionally limited where the
limitations have the objectives of securing or safeguarding public safety, public health, public
morals and protecting the rights and freedoms of others. Laws that limit rights for the purpose
of achieving purposes other than those are above are said to be improper and therefore
228.
Barak, Proportionality, 245. 229.
See Article 29(2) of the UN Declaration of Human Rights.
76
amounts to a violation of the constitutional right. Only laws meant to achieve proper purpose
are put through the process of balancing to weigh the extent to which they justifiably limit
rights.
a. Safeguarding the rights of others.
The protection of the rights of others is essential to the proper purpose for two reasons; the
constitutional right is itself the object of limitation and the right is also an element of the
proper purpose.230
A society seeking to protect one person‟s free will must protect the free
will of another with opposite views. The legal system‟s recognition of both of their free wills
requires, in turn, the imposing of limitations on both of their rights. The Declaration of the
Rights of Man and of the Citizen (1789) recognises this same idea;
Liberty consists in the freedom to do everything which injures no one else; hence the exercise
of the natural rights of each man has no limits except those which assure to the other
members of the society the enjoyment of the same rights. These limits can only be
determined by law.231
Thus, where by the use of freedom of expression, one incites violence on the person of
another, thus infringing his right to security of person; there would be a valid case for
limiting the right to freedom of expression based on the considerations of the rights of others.
b. Public interest
230.
Barak, Proportionality, 255. 231.
See Section 4 of the declaration.
77
Democracy does not consist alone nor is it preserved only in the separation of powers and the
rule of law.232
It also consists in the protection of the shared existence of the society, its
national security and public order. These are necessary to guarantee the continuance of
democracy. Therefore, there are instances where the exercise of a right may pose a real
danger to society. In such instances, there may be a justification for the overriding of the right
in question.
It must also be noted that in constitutional democracies, a constitutional right cannot be
limited unless such a limitation is authorised by law. This is the principle of legality.233
From
here stems the requirement that a limitation on a right is to be “prescribed by law.” What this
means is that the act or omission of government or its agency limiting rights must be
traceable to some legal norm which gives them the authority to function in such a manner.
The foundation for this is found in the principle of the rule of law. In the European case of
Metropolitan Church of Bessarabia v. Moldova, the European Court explained the concept of
“prescribed by law,” saying:
The expression „prescribed by law‟ . . . not only requires that an impugned measure should
have a basis in domestic law, but also refers to the quality of the law in question, which must
be adequately accessible and foreseeable, that is to say, formulated with sufficient precision
to enable the individual . . . to regulate his conduct.234
What this means is that for a limitation to be said to have been prescribed by law, it must be a
valid law which forms part of the hierarchical structure of laws in the legal system; it should
232.
Barak, Proportionality, 256. 233.
See ibid, 107. 234.
Application no. 45701/99, (2002), the Court has also described the concept as providing “a measure of legal protection in domestic law against arbitrary interferences by public authorities.”
78
be based on a chain of authority starting with the constitution itself.235
Where the norm is
bereft of this chain of authority, it constitutes a violation of both the constitution and
constitutional right. Thus, public policy considerations do not suffice to form a legal basis to
limit a constitutional right unless based on an authorisation traceable back the constitution.
It must also be pointed out that laws include both statutes and common law.236
The inclusion
of the common law is as a result of its recognition as a source of law in common law legal
systems thereby meeting the requirement of being prescribed by law.237
Common law affects
the rights of the individual in the same way as a statute238
and therefore must go through
balancing in order to be constitutional.
3.5 PROPORTIONALITY OF LIMITATION
From the above discussion it is clear that some rights may be regarded as absolute, in that
they are at no time to be limited or derogated from, while other rights are relative in that they
could be limited. Also, while some bill of rights may limit rights by a general limitation
clause, others may limit rights by clauses specific to each right. Here discussion is on the
doctrine of proportionality,239
which is borne out of requirements that limitations on rights be
235.
See Hans Kelsen’s Pure Theory of Law in M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, (London: Sweet & Maxwell, 2008), 336.
236. In Common Law legal systems, precedents form part of the law.
237.
See S. v. Mambolo, 2001 (3) SA 409(CC) where the court held that ‘… a rule of common law which, for example infringes on a person’s right to privacy or human dignity can be saved if it meets the section 33 (1) (Constitutional of the Republic of South Africa) requirements.’ 238.
For example are the common law torts of slander and libel which limit the freedom of expression. See Sunday Times v. United Kingdom, App. No. 6538/74, 2 EHRR 245 (1980). The European court was asked to decide whether such a common law concept may properly limit the constitutional right to freedom of expression, guaranteed by Article 10 of the European Convention. The court observed that the expression “law” in the phrase “prescribed by law” covers not only statute but also unwritten law.
79
„prescribed by law‟ and „necessary in a democratic society.‟240
A restriction cannot be
regarded as „necessary in a democratic society‟ unless it is proportionate to the legitimate aim
pursued. So that if in a given situation there is need for public action to restrict the right, the
restriction must be necessary and proportionate to the damage which the restriction is
designed to prevent. Any further restriction is unjustified.
Courts have applied the principle of proportionality as a procedure that aims at guaranteeing
the full respect of human rights by the State. Proportionality does not as a balancing tool
suggest a neutral approach towards constitutional rights nor is it indifferent to rights. On the
contrary, it is based on the need to protect them.241
The principle of proportionality prescribes
that if action to achieve a lawful objective is taken in a situation where it will restrict a
fundamental right, the effect on the right must not be disproportionate to the public purpose
sought to be achieved. 242
Therefore, the doctrine of proportionality requires the court to
review the balance which the decision maker has struck and whether it is within the range of
reasonable decisions. Also, the doctrine goes further than the traditional grounds of reviewing
by requiring attention to be directed to the relative weight accorded to interest and
considerations.243
239.
Other tools for balancing rights and their limitations exist, but proportionality is chosen here because it is has started to receive wide acceptance. See Barak, Proportionality, 493, for the alternatives to proportionality. See also Helen Fenwick and Gavin Phillipson, Text, Cases and Materials on Public Law and Human Rights, 3rd ed. (London: Rutledge, 2003), 882, for the differences between proportionality and other tools of balancing.
240. A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law, 15th ed., (England: Pearson,
2011), 681. 241.
Barak, Proportionality, 4. 242.
See R v. Home Secretary, ex p Brind [1991] 1 AC 696, 751 (Lord Templeman). 243.
See Fenwick, Text, Cases and Materials, 882.
80
Despite the acceptance of proportionality (at least in Western Legal Tradition – both civil and
common law jurisdictions), 244
the concept is found in varying forms in the constitutional law
of countries; mostly with regard to the importance of the framework questions. For instance,
Grant et al245
say proportionality sets out four questions in evaluating whether the limitation
of a right is justifiable. They are;
1. Does the legislation (or other government action) establishing the right‟s limitation pursue
a legitimate objective of sufficient importance to warrant limiting a right?
2. Are the means in service of the objective rationally connected (suitable) to the objective?
3. Are the means in service of the objective necessary, that is, minimally impairing of the
limited right, taking into account alternative means of achieving the same objective?
4. Do the beneficial effects of the limitation on the right outweigh the deleterious effects of
the limitation; in short, is there a fair balance between the public interest and the private
right?
They246
admit that there are other formulations and give example of some courts decisions
that replace the last question with a “comparison of the deleterious effects on a right against
the importance of the objective,” rather than against the beneficial effects of the limitation,247
244.
Juan Cianciardo, “The Principle of Proportionality: its Dimensions and Limits,” available at: http://works.bepress.com/juan_cianciardo/1 245.
Grant Huscroft, Bradley W. Miller, and Grégoire Webber, Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press: 2014), 2. Available at http://www.lse.ac.uk/collections/law/wps/wps.htm 246.
Ibid. 247.
See Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835 at 839.
81
while other courts employ the proportionality framework without explicit reference to the
final question.248
Another formulation of the framework questions is found in the Canadian case of R v.
Oakes249
where the court identified three: the means used to limit the right must be rationally
connected to the objective sought; the right must be impaired as little as possible to achieve
the objective; and finally, there must be proportionality between the effect of the limitation
upon the right and the objective achieved by that limitation.250
The court here did not
consider the first question proposed by Grant; the issue of legitimate purpose, it goes straight
to the rationalization of the means used and objective to be achieved.
Aharon Barak251
on the other hand refers to proportionality as the set of rules determining the
necessary and sufficient conditions for a limitation of a constitutionally protected right by a
law to be constitutionally permissible. According to him, proportionality is made up of four
sub-components which a limitation on constitutional right has to pass;
1. It is designated for a proper purpose;
2. A rational connection between the limitation and the fulfilment of that purpose;
3. The measures taken are necessary in that there are no alternative measures with a
lesser limitation of the right;
248.
See Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, (1999) 1 A.C. 6. 249.
(1986) 1 S.C.R. 103, 138-9. 250.
Grant, Proportionality and the Rule of Law: Rights, Justification, Reasoning, 2.
251. Aharon Barak, Proportionality: Constitutional Rights and Their Limitations, (UK: Cambridge
University Press, 2012) 4.
82
4. Whether there exist a proper relation between the importance of achieving the proper
purpose and the social importance of preventing the limitation on the constitutional
right.252
Now, these differences in formulation and practice does not diminish the claim that
proportionality is the jus cogens of human rights law, any more than the existence of different
theories of rights poses an obstacle to the ascendance of rights discourse.253
The doctrine of
proportionality requires that investigations into the limitation of rights be carried out in three
stages. The first stage deals with the determination of the whole scope of the right and that
part of it that may be considered the penumbra without any thought given to the ways that the
right may be limited or the adverse effects of its expressions. Here the right is treated like if it
were absolute. The second stage of constitutional review would involve the purposes set forth
for the justifiable limitation of rights. In this second stage, the proportionality is fully
unleashed to analyse the permissible grounds for limitation of the scope of the right
previously identified. The third stage is occupied with the remedy to be made available
should the court pronounce the limitation disproportionate i.e., unconstitutional.
This analytical model is based on the distinction between the scope of the right on the one
hand, and the ways in which it may be realised on the other.254
The constitutional review
above allows conflicts between rights and other interest to be resolved not by narrowing the
scope of the rights but by limiting the way they are realised. The right should be allowed to
exist in a pure form as an aspiration which should exist in a constant state of conflict with
252.
Ibid. 253.
Grant Proportionality and the Rule of Law, 3.
254. Ibid.
83
other opposing aspirations. Such conflict is then resolved through balancing at the sub-
constitutional level to be governed by the rules of proportionality.255
A limitation of a constitutional right only narrows the ability to realise the right without
changing the right‟s actual boundaries. These limitations are constitutional only if they are
proportional as required by the limitation clause. Thus we distinguish between a limitation
that is proportional and therefore valid, and a limitation that is not proportional and therefore
invalid. When the limitation is not valid, the right has been violated or breached.
3.6 RIGHT TO FREEDOM OF RELIGION
For centuries intolerance and discrimination rooted in religion have had considerable impact
on the course of international affairs. Indeed, the inception of the Peace of Westphalia of
1648 resulted from a series of religious wars fought to fill the void created by the breakdown
of the Christianity in the medieval period.256
A survey of matters considered by the United
Nations in the past twenty-five years demonstrates the extent to which religious differences
continue to contribute to problems of world order.257
Such a list might include the following
items: the Kashmir dispute between India and Pakistan;258
the continuing Middle East crisis;
and the situation in Northern Ireland.259
In all of these cases the religious factor has operated
in varying degrees either to precipitate or to worsen these international crises.
255.
Barak, Proportionality, 78.
256. Green, Law and Society, 311
257.
John Claydon, Treaty Protection of Religious Rights: U.N. Draft Convention on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 12 Santa Clara Lawyer (1972), 403. Available at: http://digitalcommons.law.scu.edu/lawreview/vol12/iss2/8 258.
It was on the basis of religion that the sub-continent of India eventually divided itself in 1947 into two separate states of India and Pakistan. See Dhokhalia, “The Human Right to Religious Freedom: Problems of Definition and Effective Enjoyment.” The Calabar Law Journal 1, no. 1 (1986): 91-128.
84
In recent years there has been an increase in multilateral treaty-making aimed at providing
more adequate international protection for human rights, but recourse to treaties for the
protection of individuals from religious intolerance and discrimination is not a new
phenomenon. As early as the Peace of Augsburg of 1555 the principle of religious tolerance
achieved unprecedented international expression. The Treaty of Westphalia260
on its part
ensured international protection for religious minorities against their sovereigns by granting
signatories the right of intervention to enforce its provisions. Moreover, it has been argued
that the majority of humanitarian interventions in the nineteenth century were undertaken on
the basis enforcing people‟s right to religious freedom.261
Despite the inclusion of freedom of religion in the Article 18 of the UN Universal Declaration
of Human Rights,262
its inclusion in the International Covenant on Civil and Political
Rights,263
(which came later in time) was intended to supplement the universal declaration
and to have undoubted legal force as a treaty for the contracting parties. The ICCPR has
redefined and further elaborated the right to religious freedom in Article 18 in the following
language:
259.
For the Catholic grievances and allegations of discrimination, Report of the Cameron Commission, (1969), the Scarman Tribunal of Enquiry on Violence and Civil Disturbances in Northern Ireland (1972), the Parker Report, (1972). 260.
Treaty of Westphalia, 1648 provided that subjects who in 1627 had been barred from the exercise of their religion, other than that of their ruler were granted the right of conducting private worship, and of educating their children, at home or abroad, in conformity with their own faith; they were not to suffer in any civil capacity nor to be denied religious burial, but were to be at liberty to emigrate, selling their estates, or having them to be managed by others. See Gross “The Peace of Westphalia 1648-1948”, Am. J. International Law, (1948)20, 22. 261.
See L.C. Green, Law and Society, 292. 262.
The Declaration proclaims a right to religion, which includes the freedom to change religion and the freedom to manifest religion or belief either individually or collectively in teaching, practice, worship, and observance. Although technically not a binding instrument, the Declaration has become increasingly authoritative because of its widespread acceptance. 263.
General Assembly Resolution 2200A, 21 U.N. GAOR Supp. 16, at 52, U.N. Doc A/6316 (1966), it entered into force on 23 March, 1976.
85
1. Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a
religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral education of
their children in conformity with their own convictions.
The Nigerian constitution incorporates the above provision fully in Section 38264
when it
provides that:
Every person shall be entitled to freedom of thought, conscience and religion, including
freedom to change his religion or belief, and freedom (either alone or in community with
others, and in public or in private) to manifest and propagate his religion or belief in worship,
teaching, practice and observance.
The right to freedom of religion so captured has the following features: first, the right belongs
to every member of the society and entail the notion of human equality and universal
possession of the right without any discrimination or distinction. Secondly, the right includes
the freedom to adopt a religion or belief of one‟s choice and to profess and practise alone or
264.
Constitution of the Federal Republic of Nigeria 1999 (as amended)
86
in community with others. Continuing, it rules out conversion based on compulsion of the
individual. It also provides that religious freedom is not unfettered and is subject to such
limitations as may be prescribed by law to meet requirements of public safety and social
order, health, morals, and rights and freedom of others.265
Finally, the right imposes on
government a legal obligation to respect the right of parents in deciding the religious and
moral education of their children according to their parent‟s choice.266
Freedom of religion or belief protects every human being‟s right to believe or to hold an
atheistic, theistic or non-theistic belief,267
and to change religion or belief. The freedom to
manifest one‟s religion also has a negative aspect, namely the right not to be obliged to
disclose one‟s religion.268
Freedom of religion or belief applies to individuals, as right-
holders, who may exercise this right either individually or in community with others and in
public or private. Its exercise may thus also have a collective aspect. This includes rights for
communities to perform “acts integral to the conduct by religious groups of their basic
affairs.”269
These rights include, but are not limited to, legal personality and non-interference
in internal affairs, including the right to establish and maintain freely accessible places of
worship or assembly, the freedom to select and train leaders or the right to carry out social,
cultural, educational and charitable activities.
265.
This limitation is provided for under section 45(1) CFRN 1999 (as amended). 266.
Dhokhalia is of the view that the guarantee of religious education of one’s choice has far wider ramification for the extension far beyond his own religious groups and institution and such poses a danger to national integration and cohesion. See Dhokhalia, “Human Right to Religious Freedom,” 99. 267.
In 1993, the UN Human Rights Committee (which monitors States Parties’ implementation of ICCPR) described religion or belief as “theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion. Available at http://www1.umn.edu/humanrts/edumat/studyguides/religion.html 268.
Sinan Isık v. Turkey, App. no. 21924/05 judgement of 2nd February, 2010 where the ECtHR held that ‘a violation of Article 9 of the Convention had arisen from the fact that an identity card contained an indication of religion, regardless of whether it was obligatory or optional.’
269. See EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief adopted on 24
June 2013 by the Foreign Affairs Council meeting at Luxembourg. Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137585
87
The right to freedom of religion has been further amplified in Declaration on the Elimination
of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981.270
It
provides in Article 1 that;
1. Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have a religion or whatever belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest his religion or
belief in worship, observance, practices and teaching.
2. No one shall be subject to coercion which would impair his freedom to have a religion or
belief of his choice.
3. Freedom to manifest one's religion or belief may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health or morals or the
fundamental rights and freedoms of others.
3.6.1 FREEDOM OF RELIGION AS AN ASSEMBLAGE OF OTHER FREEDOMS
Freedom of thought, conscience and religion, enshrined in Article 18 ICCPR, is one of the
foundations of a democratic society because, from its religious dimension, it is one of the
most vital elements that make up the identity of believers and their conception of life, but it is
also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism
inseparable from a democratic society, which has been fought for over the centuries,271
270.
G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Document A/36/684 (1981), in its eight Articles, it re-emphasised the content of Article 18 of International Covenant on Civil and Political Rights, 1966.
271. See Treaty of Westphalia, 1648.
88
depends on it. That freedom entails inter alia, freedom to hold or not to hold religious beliefs
and to practise or not to practise a religion.272
The guarantee of Article 18 ICCPR of religious freedom shows that the right to freedom of
religion has expressions in other freedoms guaranteed under the law. It falls partly within the
scope of freedom of expression and the freedom of assembly and association. It also touches
on the right to private and family life, dignity of human person freedom from discrimination
and even the right to education (where educational right is guaranteed).
Therefore, elaborating on the content of the right to freedom of thought, conscience, religion
and belief would include the following freedoms: to adhere or not to any religion or belief or
to change it as one pleases, without any coercion; to manifest one‟s religion or belief either
alone or in community, in private or in public without any discrimination; to express one‟s
opinion concerning religion or belief;273
to worship and to hold assemblies related to religion
and to establish and maintain the places of worship or assembly for these purposes and the
place for disposal of dead bodies according to religious practices including entitlement to
equal legal protection of these places; to teach, to disseminate and to learn about one‟s
religion or belief, its sacred languages or traditions; to write about one‟s religion or belief, its
sacred languages or traditions; to write, to print, and to publish religious books and text; to
train religious personnel; to establish and maintain charitable and educational institutions, to
practise one‟s religion, observe its rituals, and other practices, and to produce objects, foods,
and other articles and facilities customarily required in such practices, to make religious
272.
See Kokkinakis v. Greece, app. no. 260-A 25 May 1993. In the Kokkinakis judgment, the Court held, in the context of Article 9, that a State could legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with the respect for the freedom of thought, conscience and religion of others. 273.
Article 1, International Convention on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, 1981.
89
pilgrimages inside and outside one‟s country;274
to organise and maintain local, regional,
national , and international associations in connection with one‟s religion or belief,275
to
participate in their activities, and to communicate with one‟s fellow believers; to take or not
to take an oath of religious nature,276
to enjoy and to exercise civic, political, economic,
social and cultural rights, to bring up as parents one‟s children in the religion or belief of
one‟s choice277
and that children are protected against precepts and practices based on
religious intolerance or discrimination.278
The importance in identifying the freedoms which the right to freedom of religion covers is to
show how easily an action or policy of government directed at the advancement or restriction
of an independent right could interfere with a person‟s free exercise of religion. Therefore,
states must exercise caution when developing and implementing policies so that
discrimination in the form of distinction, exclusion, restriction or preference based on religion
or belief – theistic, non-theistic or atheistic is prevented.
3.6.2 LIMITING THE FREEDOM
In a democratic society, in which several religions or branches of the same religion coexist
within one and the same population, it may be necessary to place restrictions on this freedom
274.
Ibid, Article 6. 275.
See Hasan v. Bulgaria, Application no 30985/96, (2010) 24 EHRR 55. 276.
The Nigerian Evidence Act 2011 via Sections 205, 207 and 208, permits any person giving testimony to either swear an oath or simply to affirm that he speaks the truth, where taking an oath offends his religious sensibilities or in the opinion of the court, by reason of want of religious belief, he ought not to give evidence on oath. See the European case of Dimitras and Others v. Greece, Application nos. 42837/06, 3237/07, 3269/07, 35793/07 and 6099/08, 3 June 2010. 277.
Adamu v. Attorney General, Borno State [1996]8 NWLR (pt. 465) 203 278.
Dhokhalia, “Human Right to Religious Freedom”.
90
in order to reconcile the interests of the various groups and ensure that everyone‟s beliefs are
respected. However, in exercising its regulatory power in this sphere and in its relations with
the various religions, denominations and beliefs, the State has a duty to remain neutral and
impartial. What is at stake here is the preservation of pluralism and the proper functioning of
democracy.279
The problem is that, religion is a sanctioning system which claims immunity from control of
the secular power which is committed to the goals of liberty, equality and non-discrimination.
Besides, whilst the freedom of religion may on one hand allow one to believe in whatever
one pleases, one‟s religious acts need to be regulated in the interest of society and other
dominant interests. As has been pointed out, most of the rights incorporated as fundamental
rights in modern constitutions are stated in general terms and their limitations are not fully
stated. 280
Since religious belief remains a fundamental element in man‟s conception of life,
the attempts to justifiably limit them meets with challenges.
The case of proselytism provides a tangle of competing claims: one the one hand is the right
of proselytisers to free exercise of religion and freedom of speech; on the other hand, the
rights of targets of proselytism to be free from injury to their religious feelings. This conflict
is illustrated in the case of Cantwell v. Connecticut281
where a Jehovah‟s Witness was
arrested for violating an ordinance requiring a permit for solicitation and for the common law
offence of inciting a breach of peace after distributing religious materials in a predominantly
Roman Catholic neighbourhood and playing on a phonograph record an anti-Catholic
message to two pedestrians. The claim of the proselyte is one of free exercise i.e.
279.
European Court of Human Rights Research Division, “Overview of the Court’s case-law on freedom of religion,” 19 January 2011 and updated on 31 October 2013. Available at www.echr.coe.int 280.
See Absolute Rights above. 281.
310 U.S. 296 (1940); see Kokkinakis v. Greece above.
91
manifesting of religious belief in accordance with Section 38 of the 1999 constitution. He
also has claim to the freedom of expression under section 39. The target of proselytism on the
other hand, has the freedom to adopt or change religion and to be free from injury or offence
to his/her religious feelings. Given that the right claimed by the proselyte is supported by
different guarantees of the constitution, it gives rise to conflicts not only internal to the
different aspects of the right to freedom of religion itself but also to conflicts between
religious freedom and other rights.
Society therefore has the right to defend itself against possible abuses committed on the
pretext of freedom of religion. It is the special duty of government to provide this protection
not only out of the need for the safeguard of the rights of all citizens and the peaceful
settlement of conflicts of rights, but also out of the need for an adequate care of genuine
public peace, which comes about when men live together in good order and in true justice. Its
action therefore in this regard is to be controlled by juridical norms which are in conformity
with the doctrine of proportionality.282
Proportionality here would necessitate the examination of the right to freedom of religion in
the three stages of constitutional review; first the determination of the right‟s scope, then the
proportionality of limitations, and finally, the award of remedy where there is a violation of
the right. In the examination of a constitutional right to freedom of religion, its scope should
be determined to include manifestations that may be hurtful to the public interest and other
people‟s religious sensitivities, or even affect their privacy;283
this is the first stage. The
considerations relating to the right of others as well as public interest are extremely
important, they should not be ignored. They are taken into account into account in the second
282.
Barak, Proportionality, 6. 283.
We have analysed above the content of the right to freedom of religion. See sub head “freedom of religion as an assemblage of other freedoms” above.
92
stage of constitutional review as part of the proper purposes test. The measures put in place to
strike a balance, for instance, anti-proselyting laws as in our problem above would be
analysed to find the rational connection, as well as necessity of the measures; finally, whether
there exist a proper relation between the importance of achieving the proper purpose and the
social importance of preventing the limitation on the constitutional right.284
All these are to
be considered in the second stage of constitutional review. The last stage only comes up on
the finding that the measures put in place are disproportionate.
The freedom of religion285
has two aspects: internal and external aspects. Regarding the
„internal‟ aspect, the freedom is absolute with respect to deeply held ideas and convictions
that are forged in a person‟s individual conscience and cannot therefore in themselves
prejudice public order. These cannot therefore be the subject of restrictions on the part of the
State authorities. However, with regard to the „external‟ aspect, founded on the freedom to
manifest one‟s beliefs, public order and the rights of others may be affected or even
threatened. The freedom to manifest one‟s religion or belief in worship, observance, practice,
and teaching is the more public freedom of religion that is subject to limitation under Article
18 ICCPR. According to the European Court, the Article 9 ECHR freedom to manifest one‟s
religion protects acts which are „intimately linked‟ to religious belief, such as acts of worship
or devotion which are aspects of the practice of a religion or belief in a generally recognised
form.286
The term „practice‟ does not, according to the Court, cover every act which is
motivated or influenced by a religion or belief, and one does not necessarily have the right to
284.
In Kokkinakis v. Greece, the ECtHR held that the conviction of the applicant accused of attempting to proselytize by undermining belief could not be justified within the context of a pressing social need such as it was necessary for the protection of the rights and freedoms of others within article 9 (2) ECHR. 285.
Guaranteed under Section 38, Constitution of the Federal Republic of Nigeria 1999 (as amended); see Article 9 ECHR. 286.
Valsamis v. Greece, App. No. 21787/93, 24 Eur. H.R. Rep. 294, 307 (1997), See also Eweida & Ors v The United Kingdom (Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10).
93
behave in the public sphere in a manner dictated by a religion or a conviction. Accordingly,
Nowak,287
is of the view that „worship‟ under Article 18 ICCPR means the typical form of
religious prayer and preaching, (i.e. freedom of ritual) – this is the core of the freedom of
religion. „Observance‟ covers processions, wearing of religious clothing, prayer and all other
customs and rites of the various religions; and „teaching‟ is understood as every form of
imparting the substance of a religion or belief. Observance and teaching are at varying shades
of the penumbra of the freedom of religion. Nowak, in recognition of the need for „practice‟
not to include every action or omission motivated by religion or belief, says, „religious
practice may thus be said to be only that conduct obviously related to a religious
conviction‟288
i.e., religious worship.
The fact that the freedom to manifest religious beliefs cannot be absolute in a pluralistic
society has been recognised by, for example, the Catholic Church. In 1965, Pope Paul VI
proclaimed the Second Vatican Council‟s Declaration on Religious Freedom (Dignitatis
Humanae).289
In that Declaration it is expressly recognised that the right of religious
communities to „govern themselves according to their own norms‟ is subject to the „just
demands of public order‟. It was also acknowledged by the Second Vatican Council in the
Declaration that there must be limitations on the exercise of the right to religious freedom in
any society, when such exercise may affect others. The Vatican Declaration states:
The right to religious freedom is exercised in human society: hence its exercise is subject to
certain regulatory norms. In the use of all freedoms the moral principle of personal and social
287.
M. Todd Parker, “The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR,” Duke Journal of Comparative & International Law. Vol 17 no. 91 (2006), 91-129. See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCRP Commentary (1993), 309-10. Available at http://law.bepress.com/expresso/eps/1107 288.
Ibid. 289.
Second Vatican Council, Declaration on Religious Freedom - Dignitatis Humanae, Proclaimed by His Holiness, Pope Paul VI on December 7, 1965, last modified March 15, 2010, http://www.christusrex.org/www1/CDHN/v10.html
responsibility is to be observed. In the exercise of their rights, individual men and social
groups are bound by the moral law to have respect both for the rights of others and for their
own duties toward others and for the common welfare of all. Men are to deal with their
fellows in justice and civility.290
3.7 PROBLEM OF MINORITY
The concept of „minority‟ has different meanings and consequences in different places and at
different times. Black‟s Law Dictionary defines it to mean; a group that is different in some
respect (such as race or religious belief) from the majority and that is sometimes treated
differently as a result; a member of such a group.291
The use of the term minority is not
limited to group that is outnumbered. It may be applied to a group that has been traditionally
discriminated against or socially suppressed, even if its members are in the numerical
majority in an area.292
It has its quantitative and non-quantitative dimensions. Thus a minority
group may be one with a small population or one with very little power to influence decisions
in the public domain within society.293
The protection of human rights stemmed from the need to protect the minority from the
dominating powers of the majority so that man is not made to live a slavish life. It is no doubt
that such protection in the end become of great benefit to all; guaranteeing minimum
entitlements of the governed in a civilised and democratic society. These rights cannot be
290.
Ibid. 291.
Black’s Law Dictionary 9th edition, ed. Bryan A. Garner (New York: West Publishing Co., 2009), s.v. “minority.” 292.
Ibid. 293.
Maxwell M. Gidado, “Minority Rights Guarantee under the 1999 Nigerian Constitution” in Ethnicity and National Integration in Nigeria: Recurrent Themes. Edited by D.A. Guobadia and A.O. Adekunle (Abuja: Nigerian Institute of Advanced Legal Studies, 2004) 229-244.
95
said to be exclusively for the minorities, thus, they are applied to both minority and majority
citizens of the state.294
This point was recognised by Obafemi Awolowo, who while speaking
of rights guaranteed under the 1979 Nigerian Constitution said „the fundamental human
rights were ordained not for the protection of ethnic minorities as such but for the protection
of the citizens at large against executive and legislative tyranny and excesses.‟295
The problem of religious freedom is no less the same a problem of minorities in multi-
religious societies. This fear is more pronounced where religious differences have become
highly politicised.296
Therefore, if the state is not built on a secular philosophy, religious
resistances erupt with the likelihood of violence to the society. The problem of minorities is
also compounded by the fact that it is a multifaceted social problem and not easily amenable
to precise formulation.
In Nigeria, in terms of numerical strength, Christianity and Islam are said to be the two major
religions. All other religions are said to be minorities despite the increasing numbers that
enter their folds. The Nigerian situation presents the problem of satisfaction of minority
interest. There is hardly any case-law concerning the main religions because the tenets are
known and the relationship with the State is well established.297
However, the issue is more
294. Allswell Osini Muzan, “The Nigerian Constitution and Minority Rights Guarantees” in Ethnicity and
National Integration in Nigeria: Recurrent Themes. Edited by D.A. Guobadia and A.O. Adekunle (Abuja: Nigerian Institute of Advanced Legal Studies, 2004) 213-228. 295.
Obiagwu, “Combating Legacies,” 220. 296.
Dhokhalia identifies five factors which could foster the fear of minorities. See Dhokhalia, “Human Right to Religious Freedom.” 117. 297.
See Ojeigbe & anor v. Ubani & anor [1961] All NLR 277, where the appellant, a Seventh-day Adventist challenge the holding of elections on Saturdays on the grounds that Saturdays were his day of religious worship and fixing the election on that day, prevented him from voting. It was held that the fixture was not an infringement of his right to freedom of religion as other religious groups may claim any day of the week to which the elections are fixed and thus prevent the possibility of holding elections. This problem is not peculiar to Nigeria. The US Supreme Court has in its decisions accommodated the majority if no state endorsement of religion is involved. See the American case of
96
delicate regarding minority religions and new religious groups that are sometimes called
“sects” at national level and the intolerant attitudes of more established religions, even in the
face of Sections 38 and 42 of the constitution which demands all religious groups and their
members are to enjoy equal protection under the Constitution. In Registered Trustees of the
Rosicrucian Order, Amorc (Nigeria) v. Awoniyi & ors,298
the appellant had sued the
respondent for libel arising out of three articles published at various times in a magazine
called “Today‟s Challenge.” In the N10 million damages suit, the appellant argued that the
content of the articles projected Amorc as satanic. The respondents relied on the defence of
justification and fair comment. At both trial and the appellate courts, one of the issues for
determination was whether the appellant was a secret cult. Though the Supreme Court did not
find the Appellant to be a secret cult, there were some excerpts of the judgement that used the
standard of Christianity in criticising the teachings of the appellant. Hear Iguh JSC say;
I agree entirely with the majority opinion of the Court of Appeal that it is difficult in the
circumstance not to associate AMORC with mysticism… in the first place, it cannot be
seriously suggested that there is anything secret in the teachings of Jesus Christ which is in
my view public and properly documented in the scriptures. Clearly to assert as the plaintiff
unequivocally did, that Jesus Christ was a member of secret societies and that he was an
advocate of occult teaching is, speaking for myself, satanic, sinister, blasphemous and
entirely unacceptable.299
Braunfeld v. Brown, 366 U.S. 59, 81 S.Ct. 1144, 6 L.Ed.2d (1961) and its sister case McGowan v. Maryland, where the Supreme Court was asked to consider the constitutionality of Sunday Closing Laws which were prevalent throughout the country. Applying the “purpose and primary effect” test it was held that the laws had a secular public welfare purpose; to provide a compulsory day of rest from work. 298.
[1994] 7 NWLR (pt. 355) 155
299. Ibid.
97
The tenor of the excerpt above shows a comparison of the Amorc teaching with the Christian
teaching. Because the Christian teaching is “open” it is not a secret society. Notice must be
had that the perception of any religious group at its early stage of growth is always suspect.
But with time, their teachings become known and are no longer „secret.‟ Only where there is
toleration would the teachings of a new religious group have the opportunity of becoming
unravelled.
Under the European Convention on Human Rights, the right under Article 9(1) to hold
religious and other beliefs and to change them is an absolute right, which means that the state
is prohibited from interfering with it. Article 9 recognises that belief systems are part of the
identity of individuals and their conception of life and that respecting an individual‟s beliefs
accords respect for human dignity. As Lord Nicholls explained in the R. (Williamson) v.
Secretary of State for Education and Skills;300
Religious and other beliefs and convictions are part of the humanity of every individual. They
are an integral part of his personality and individuality. In a civilised society individuals
respect each other‟s beliefs. This enables them to live in harmony.
The holding of any religious belief, however unattractive, is protected, though some limits
may be place on its manifestation where genuine conflicts would arise. In the Williamson‟s
case, the House of Lords suggested that while everyone is entitled to hold whatever beliefs he
wishes;
A belief must satisfy some modest, objective minimum requirement. The belief must be
consistent with basic standards of human dignity or integrity. … The belief … must possess
an adequate degree of seriousness and importance … it must be a belief on a fundamental
300.
[2005] 2 AC 246
98
problem. With religious belief this requisite is readily satisfied. The belief must also be
coherent in the sense of being intelligible and capable of being understood. But, again, too
much should not be demanded in this regard. Typically, religion involves belief in the
supernatural. It is not always susceptible to lucid exposition or, still less, rational justification
... Overall, these threshold requirements should not be set at a level which would deprive
minority beliefs of the protection they are intended to have under the convention.301
3.7.1 ACCOMODATION OF RELIGIOUS PRECEPTS
The right to freedom of thought, conscience, religion or belief302
more commonly referred to
as the right to freedom of religion or belief is a fundamental right of every human being. It is
a freedom that includes all religions or beliefs, including those that have not been
traditionally practised in a particular country, the beliefs of persons belonging to religious
minorities, as well as non-theistic and atheistic beliefs. As a universal human right, freedom
of religion or belief safeguards respect for diversity. Its free exercise directly contributes to
democracy, development, rule of law, peace and stability while violations of the freedom lead
to intolerance and often constitutes indicators of potential violence and conflicts.
The fundamental nature of the freedom of religion makes it incumbent on the government to
accommodate the precepts of minority and new religious societies. Public institutions do not
have competence to define religion. Religious beliefs cannot be limited to the “main”
religions or to religions and beliefs with institutional characteristics or practices similar to
301.
See R. (Williamson) per Lord Nicholls, at paragraphs 64, 57 and 76. 302.
See article 18 of the UDHR and article 18 of the ICCPR.
99
those of the main religions; it must be interpreted non-restrictively. Government has a duty
to protect all persons from direct and indirect discrimination on grounds of religion or belief,
whatever the reasons advanced for such discrimination. This includes the duty to rescind
discriminatory legislation, implement legislation that protects freedom of religion or belief,
and halt official practices that cause discrimination, as well as to protect people from
discrimination by state and other influential actors, whether religious or non-religious.303
Attempts should not only be made at accommodating the religious beliefs of main
religions;304
the beliefs of minority religions require accommodation.305
Where government
regulations offend against the freedom of religion, the courts should also strike them down.
Foreign courts offer examples of such accommodation. Thus, the US Supreme court has
shown its accommodation of religious minorities, for instance, in Sherbert v. Verner,306
the
court ruled that South Carolina could not constitutionally deny unemployment benefits to a
Seventh day Adventist who refused to work at jobs requiring attendance on Saturdays. Also
in Wisconsin v. Yoder,307
it was held that the Amish, members of a religious sect, should be
relieved of compulsory public education for their children after the eighth grade, so that they
could be able to fulfil the requirement of their religion to learn skills in their community
303.
EU Guidelines on The Promotion and Protection of Freedom of Religion or Belief, adopted at the EU Foreign Affairs Council meeting at Luxembourg, 24 June 2013. Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137585 304.
See Lagos State Coroner Law 2007 which requires autopsy for all deaths occurring in the state. Opposition to the law by Muslims on the ground that a compulsory autopsy on every dead body interfered with their religious burial requirements, made the Fashola’s government to propose amendments to the law. See Nigerian Muslim Network (NMN) Suggest Amendments to Lagos Coroner Law 2007. Available at http://www.nmnomline.net/nmn_pub/Autopsy.pdf 305.
See dissenting opinion of Jackson J. in U.S. v. Ballard (1944) 322 U.S. 882. 306.
through working. Similarly, in Church of the Lukunmi Babalu Aye Inc. v. Hialeah,308
the
court invalidated city laws prohibiting some forms of ritual animal slaughter as burdening the
free exercise of religion by a particular sect.
Similarly, the European Court has upheld the freedom of minority groups in Jakobski v.
Poland309
where the Court accepted that a Buddhist‟s decision to adhere to a vegetarian diet
could be regarded as motivated or inspired by a religion and was not unreasonable, and that
the refusal of the prison authorities to provide him with a vegetarian diet breached his Article
9 rights. Also, in Buscarini and Others v. San Marino,310
the applicants who were elected to
the San Marino Parliament in 1993 complained that they had been required to swear an oath
on the Christian Gospel in order to take their seats in Parliament, which in their view
demonstrated that the exercise of a fundamental political right was subject to publicly
professing a particular faith. The Court held that there had been a violation of Article 9 of the
Convention. It found in particular that the obligation to take the oath was not “necessary in a
democratic society” for the purpose of Article 9(2) of the Convention, as making the exercise
of a mandate intended to represent different views of society within Parliament subject to a
prior declaration of commitment to a particular set of beliefs was contradictory.
It flows from the above that states existing in religious diversity must accommodate the
various religious groups that exist, and even those that are recently new to their jurisdiction.
The need for accommodation is as a result of the importance of the freedom of religion as the
as the core of man‟s explanation for his existence. Act or omissions of government which do
not encourage the accommodation of religious diversity deprive the individual of this
essential “truth”. Commendation must be given to the Nigerian National Assembly on this
308.
508 U.S. 520 (1993), see opinion of Kennedy J. 309.
Jakobski v. Poland [2010] 30 EHRC 417; Bayatyan v. Armenia [2011] 23459/03.Paras 110-111. 310.
See Application no. 24645/94 1999.
101
score for taking in consideration (however belated it was) the objection of persons whose
religious precepts forbid the taking of oath in the provisions of Sections 205, 207 and 208 of
the Evidence Act, 2011. Such forms of accommodation are necessary in multi-religious
Nigeria.
102
CHAPTER FOUR
4.0 ASIYAT ABDULAKAREEM & ORS v. LAGOS STATE GOVERNMENT &
ORS311
The present case involves a public school that refused to allow some students to deviate from
dressing in their school uniforms. One issue that this case brought up is the interference with
the manifestation of religion or belief (abiding by the dress requirements of a religion) by a
law, and in this case, a State‟s Uniform Regulation.
4.1 FACTS
In 2012, the 1st and 2
nd applicants, both 12 years old, pupils of Atunrashe Junior High School,
Surulere, Lagos State, had worn hijabs over their school uniforms and on their way to school.
At about 7:10am, the school‟s vice principal saw them and seized the items from them
claiming that hijab was not part of the school uniforms and warned other pupils against such
mode of dressing, directing the teachers to prevent a reoccurrence and to seize the hijab of
any student who wore same over their school uniform within the school‟s premises.
The representatives of the Muslim Students Society of Nigeria protested the incident and
subsequently held a meeting with the Commissioner of Education (3rd
respondent) over the
issue and later wrote a petition against the prohibition. All attempts to have the prohibition on
the use of hijab lifted failed. Therefore, they sought the intervention of the court.
The issue raised was whether the refusal of the respondents to allow the introduction and use
of hijab in the state owned primary and secondary school amounts to a violation of the
students‟ fundamental right to freedom of thought, conscience and religion, freedom from
311. Unreported; Suit No. ID/151M/13.
103
discrimination and the right to dignity of the human person and as well as the right to
education guaranteed under Section 38 and 42 (1) (a) and (b) of the 1999 Constitution (as
amended) and Article 2, 5, 8, 10, 17 and 19 of the African Charter on Human and Peoples‟
Right (Ratification and Enforcement) Act.
The respondent had argued that there had been a State policy on the code of dressing in all
public schools and that, by this policy each school has a recognised uniform for all its
students irrespective of race, religion or sex. The respondent further referred to S. 45 (1) of
the 1999 Constitution (as amended) and the judicial authority of Osawe v. Registrar of Trade
Union 1985 NWLR (pt. 4) 755 for the position that the rights guaranteed under Sections 34,
35, 37 and 38 of the 1999 constitution (as amended) are qualified rights.
Holdings
1. Uniforms were not a new phenomenon in our public schools. Beyond the purpose of
identity, the school uniform suggests discipline and in particular conformity. Students,
by its use learn the values of comradeship, and loyalty amongst those with whom they
share same. It is a symbol of the uniformity.
2. The basis for association in a public school setting does not rest on any religious
affiliation but rather that the primary focus of the state is education. And therefore the
state policy on uniform code encourages objectivity on the part of students and
teachers, and students are not judged or related to on the basis of appearance. It
enables the state to maintain neutrality and provides an environment devoid of
misapprehension of its intention. Once there is a deviation from the general
regulation, there can be no neutrality.
3. It is trite that the exercise of a person‟s right stops where another‟s right begins.
Students who enrol in a State school as distinct form a mission or faith based school
104
have the right to expect the neutrality engendered by the State policy on uniform and
secularism intended by the framers of the constitution.
4. The prohibition or denial of the wearing of the hijab over the school uniform cannot
be said to be a breach of the fundamental right of the applicant as guaranteed by
Section 38 and 42 of the 1999 Constitution (as amended).
4.2 ANALYSIS OF THE RATIO
In analysing the above case, attention would be directed to the determination of the scope of
the freedom as well as its justification on grounds of proportionality and the criticism of some
part of the court‟s reasoning.
4.2.1 Scope of the Right
In the case above, the right to freedom of religion particularly the manifestation of the
religious belief through clothing was said to have been infringed. In the constitutional review
of a limitation rights, it was indicated that there is a need to draw a distinction between the
scope of the right and the extent of its protection.312
The scope of the right determines the
right‟s boundaries and defines its content, while the extent of its protection determines the
legal limitations on the exercise of the right within its scope. This part of review is concerned
with the determination of the boundaries and content of the freedom to manifest religious
belief through clothing. The importance in identifying its content is to show how easily a
policy of government directed at the advancement or restriction of an independent right could
interfere with a person‟s free exercise of religion.
312.
See Aharon Barak, Proportionality: Constitutional Rights and Their Limitations, (UK: Cambridge University Press, 2012), 19.
105
The interpretation of the freedom‟s boundaries must be broad even to cover situations where
it could infringe on other person‟s freedom. This would necessarily include: to wear religious
clothing without compulsion, to wear the clothing anywhere one pleases, to wear the clothing
for the purpose of proselyting others, to wear the religious outfit in conjunction with others
and for whatever purpose. The scope sought to be limited is the right to wear religious
clothing anywhere, removing the public school premises from the realisation of the right.
4.2.2 Proportionality
In Chapter 3 proportionality was said to be balancing tool which does not suggest neutrality
towards rights, but is based on the need to protect them. Here, the intention is the analysis of
the judgement with the aid of this balancing tool, for to speak of rights in the twenty-first
century, is to speak of proportionality.313
Recall that Proportionality sets out certain questions
in evaluating whether the limitation of a right is justifiable, and that Barak‟s delineation of
these questions314
was preferred which includes;
5. It is designated for a proper purpose;
6. A rational connection between the limitation and the fulfilment of that purpose;
7. The measures taken are necessary in that there are no alternative measures with a
lesser limitation of the right;
313.
Grant Huscroft, Bradley W. Miller, and Grégoire Webber, Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press: 2014), 1. Available at http://www.lse.ac.uk/collections/law/wps/wps.htm
314. See Barak, Proportionality, 4.
106
8. Proportionality stricto sensu. Whether there exist a proper relation between the
importance of achieving the proper purpose and the social importance of preventing
the limitation on the constitutional right.315
4.2.2.1 Proper Purpose
It must be said that the primary purpose of the uniform regulation was not to limit right;316
its
purpose was to „encourage objectivity on the part of students and teachers, and students are
not been judged or related to on the basis of appearance or mode of dressing.‟ The court
added that the regulation ensures neutrality, unity, discipline, objectivity, and orderliness,
thereby preventing discrimination and intimidation in the public schools. For the purpose of
this analysis, these objectives are classed into one; Uniformity. And, as it has limited a right,
it must be subject to review on grounds of proportionality.
Proper purpose as provided in Section 45317
requires that;
a. the limitation it is provided by law;
b. the limitation pursues either or both the object of safeguarding public safety, order,
health or public morality or protecting the rights and freedom of other persons
In the European case of Metropolitan Church of Bessarabia v. Moldova, the European Court
explained the meaning of „prescribed by law,‟ saying:
315.
Ibid. 316.
The power to create and regulate the schools created by the government incidentally limited the expression of religious freedom when there was prescribed a uniform regulation. See Aharon Barak, Proportionality: Constitutional Rights and Their Limitations, (UK: Cambridge University Press, 2012), 106. 317.
See Constitution of the Federal Republic of Nigeria 1999 (as amended).
107
The expression „prescribed by law‟ . . . not only requires that an impugned measure should
have a basis in domestic law, but also refers to the quality of the law in question, which must
be adequately accessible and foreseeable, that is to say, formulated with sufficient precision
to enable the individual . . . to regulate his conduct.318
In this case, the limiting instrument is said to be a regulation. Can regulations qualify as law
for the purpose of limiting rights? Barak319
recognises that limitations of rights could validly
result from regulations. Accordingly, a limitation of constitutional right by a regulation is
according to law when such regulation derives authority from a legally made statute.320
This
regulation arises by way of delegated legislation which could include executive or
administrative regulation.321
The question becomes, what statute empowers the Lagos State
government to make regulations on uniform for Public Schools? The constitution provides
this power. By virtue of section 18 of the 1999 Constitution government is encouraged to
pursue certain Educational objectives inclusive of establishing schools. This power to
establish schools would also include the necessary power to manage or regulate the
operations of the schools it has created. Therefore, the uniform regulation made in order to
manage the schools created, necessarily flows from the constitutional power to establish and
maintain schools. Here the constitution gives authorisation for making such regulation even
though implicitly. It must be stated that this logic applies to uniform regulations made for
Private and or Missionary Schools, in which case their authorisation may stem from Section
38 of the constitution.
318. Application no. 45701/99, (2002), the Court has also described the concept as providing “a measure
of legal protection in domestic law against arbitrary interferences by public authorities.” 319.
See Aharon Barak, Proportionality, 111. 320.
Ibid. 321.
See Hilaire Barnett, Constitutional & Administrative Law, 9th
ed., (London: Routledge, 2011), 81.
108
What about the requirement that it be accessible and foreseeable so as to enable the
individual to regulate his conduct. This requirement is met for even the court took judicial
notice of the operation of the uniform policy since the creation of Lagos State in 1967.
Therefore, the school uniform regulations had gained sufficient notoriety to enable the
applicants in this case to be properly guided.
Next, does “Uniformity” fulfil the requirement of safeguarding public or private interest?
Liberty consists in the freedom to do everything which injures no one else. Section 17 of the
1999 Constitution provides that Nigeria‟s social order is founded on ideals of freedom,
equality and justice. Does uniformity uphold these values? The answer is yes. The question is
how does uniformity protect freedoms or equality or justice in schools? Public schools are
places where different persons meet; uniformity aids such meetings. Uniformity ensures
equality in that everyone is related to in the same way, ensuring that no one receives special
treatments or is treated differently from others. It also reduces discrimination, promotes unity
amongst students by preventing the formation of cliques along religious lines with the
potentials of conflicts within the school. It guarantees the freedom of other students not to be
intimidated by those wearing of religious apparels and the conflicts that would result when
other religious groups demand that they be allowed to put on their religious wears. Also, the
state is not drawn into favouring any religious order as demanded by the neutrality of
secularism. The requirement of uniform also aid interaction between teachers and students
and prevents certain discriminatory tendencies of teachers to favour those who share of the
same religions as them. Where a teacher discriminates between students, there is no equality,
no uniformity, but discrimination – not only against the peculiar student but also the other
students are being made subjects of discrimination. In all these, uniformity safeguards both
public and private interests.
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4.2.2.2 The requirements of Rational Connection and the Absence of Alternative
Measures
Under this head, two questions are grouped much because. The first askes; is there a rational
connection between the purposes sought to be safeguarded and the measures taken by the
making of uniform regulations? The answer is simple, yes. This is because, uniformity seeks
to prevent association based on external appearance. The requirement of wearing a single
uniform ensures that relations between students is anchored on a single identity; that of
student-hood. The rational connection is further shown in that the uniform regulations is only
operative within the school‟s premises during the school year.
Next, are there alternatives to uniforms, in the sense that would allow students who intend on
wearing hijabs to go on with their religious practise while still achieving uniformity in the
treatment of students? Other alternatives that could have a lesser impact on the right to
freedom of religion would include holding seminars or instructions on tolerance, unity and
the negative side of discrimination. However, how effective would these alternative measures
be in encouraging objectivity? It is submitted that it would not be much. Uniforms ensure that
everyone stands on an equal footing.322
4.2.2.3 Proportionality stricto sensu
This head requires the examination whether there is a proper relation between the importance
of achieving the proper purpose and the social importance of preventing the limitation on the
constitutional right. Put in another way, does the beneficial effect of the limitation on the
right outweigh the deleterious effects of the limitation?
322.
The importance of uniform informed the 1996 President Clinton and the Department of Education encouragement for schools to adopt uniforms. See Elisabetta Gentile and Scott A. Imberman “Dressed for Success? The Effect of School Uniforms on Student Achievement and Behaviour.” Available at
110
It must first be stated that what constitutes interference with the manifestation of religious
belief depends on all the circumstances of the case, including the extent to which in the
circumstances an individual can reasonably expect to be at liberty to manifest his beliefs in
practice. The ECtHR has found infringement only when the interference or limitation makes
it impossible for a person to manifest their beliefs.323
Much of the importance of achieving
the proper purpose (and in this case, securing the State‟s legal foundation) has been discussed
under the proper purpose test. The present test requires the weighing of the beneficial interest
of maintaining the state‟s legal order (values of freedom, equality and justice) as against the
benefit of preserving the freedom to manifest belief through clothes (which does not consist
in the core of the right but its outer fringes). It is submitted that the beneficial effect of the
limitation on the right far outweigh the deleterious effects of the limitation. This is because,
the effect on the freedom is very trivial 324
as the limitation is only operative within the school
premises on the days the students present him/herself for learning, while the social benefit of
using uniforms continue year round in helping to secure the values of freedom, equality and
prevent discrimination with its attendant evils.
4.2.3 Comments
In this case there is mention of no form of balancing between the right to freedom of religion
and the uniform regulation made, making it seem that any law made by virtue of section 45
authority, whether pursuing the proper purposes or not is justified. This lack of attention to
balancing is not peculiar to the present case. The Supreme Court in Osawe & ors v. Registrar
of Trade Unions,325
(cited as authority by the High Court in holding that rights could be
323.
See Kalac v Turkey (1997) 27 EHRR 552, 564, para 27; Ahmad v United Kingdom (1981) 4 EHRR 126, para 11. 324.
See R v. Jones [1986] 2 SCR 284 at 313 per Wilson J. ‘Legislative or administrative action whose effect on religion is trivial or insubstantial is not… a breach of freedom of religion.’ 325.
(1985) NWLR (Pt 4); (1985) 5 S.C. 343.
111
subject to limitation) mentions no form of balancing. In that case, the issue was the right to
form or join a trade union of one‟s choice, provided by section 37 of 1979 Constitution,
which was limited by section 41 of the 1979 Constitution. The Supreme Court (with due
respect) was content to state that the section 3 (2) of the Trade Union (Amendment) Act which
provided that no trade union shall be registered to represent workers or employers in a place
where there already exist a trade union, was made on the authority of section 41. The court
neither paid attention to the maybe deleterious effect of limiting statutes nor to the
circumstances which would require the justified limitation of rights. This lack of attempts at
balancing begs the constitutional requirement in the section 45 of the 1999 Constitution that
the law limiting a right „be reasonably justified in a democratic society.‟ It is submitted that
justification is to be found in balancing.
Similarly, the court takes a very uncomfortable view that on the authority of A.G. Lagos v.
Hon Justice Dosunmu,326
“the courts have a duty to recognise and trust the discretion of the
government and therefore should not dismiss off-hand a State policy adopted as a means to
achieving ends for public good. Judicial utterances like this (with due respect) can lead to the
fettering of judicial powers. The importance of rights explains their inclusion in the
constitution.327
When an applicant complains about an act of government that infringes a
provision of the constitution, judicial review is required to protect the sanctity of the
constitution.328
The recognition of government‟s duty to make laws for the good governance
of the country does not impose a duty on the courts to trust that when laws are made, they
The urgency to be given to fundamental rights litigation is evident in the Fundamental Rights (Enforcement Procedure) Rules, 2009 which requires that no human right litigation be dismissed or struck out for want of locus standi. See the preamble to the rules. 328.
Allan R. Brewer-Carias Constitutional Courts as Positive Legislators: A Comparative Law Study, (New York: Cambridge, 2011), 174.
112
have met the criteria of good governance, governments are not infallible. If that were so,
there would be no need for review of government actions by the courts. A better view is the
acknowledgement that the government authorities are in principle better placed than the
courts to evaluate local needs and conditions before making laws that limit rights. However,
this does not impose a duty on the courts to trust the discretion exercised without reviewing
the laws so made.
Finally, there is a problem with the acceptance of the authority of Sahin v. Turkey329
while
two other Nigerian authorities are distinguished by the court on the grounds that the
applicants in the suit before the court involves minor while in the Nigeria cases, the
applicants were adults. It must be stated that the acceptance of Sahin‟s case is unjustified if
that ground of distinguishing is solely to be followed as that case involved an adult in a
university where a dress code was imposed. Though the final conclusion of the case is not
affected by the choice of Sahin v. Turkey, a better authority is to be found in the English case
R. (S.B.) v. Governors of Denbigh High School.330
In that case the House of Lords on
applying the doctrine of proportionality found that the application of a school‟s uniform
policy did not breach the Article 9 rights of the Muslim claimant. A majority of the Court
took the view that there was no interference with the claimant‟s rights.
The facts are that; Shabina Begum, a 16-year-old Muslim girl, was sent home from her
school in Luton, Bedfordshire, for wearing a full-length „jilbab‟ rather than the school
uniform. Begum remained out of school for two years before she began to attend another
school which allowed her to wear the jilbab. She commenced proceedings for judicial review
against the head teacher and governors of Denbigh High school, claiming that the decision
not to admit her while wearing a jilbab was unlawful because it infringed two of her
329.
Decision of 29 June 2004 Application Number 44774/98. 330.
[2007] 1 AC 100
113
Convention rights: the right to manifest religion in practice and observance and the right to
education.
The Lords found that the right to hold a belief was absolute but the right to manifest that
belief was qualified. In other words, the state could interfere or limit the manifestation of
religion or belief if it was justified. To be justified under Article 9(2), the limitation or
interference must be prescribed by law and necessary in a democratic society and must be
proportionate in its scope and effect. In finding there was no infringement of Begum‟s rights
under Article 9, Lord Hoffmann pointed out that Article 9 does not require that one should be
allowed to manifest one‟s religion at any time and place of one‟s own choosing.331
A majority of the House of Lords found that the school‟s uniform policy did not constitute an
interference with her Article 9 rights. Lord Scott, following the approach of the European
Court of Human Rights,332
stated that a rule does not infringe the right of an individual to
manifest his or her religion merely because the rule does not conform to the religious beliefs
of that individual. And in particular this is so where the individual has a choice whether or
not to avail him or herself of the services of that institution or other public institutions
offering similar services, and whose rules do not include the objectionable rule in question.
Baroness Hale and Lord Nichols suggested that this approach set too high a threshold for
determining whether the school‟s uniform rule interfered with Ms Begum‟s right to manifest
331.
Ibid paragraph 50. 332.
See Karaduman v Turkey (1993) 74 DR 93, where the applicant was denied a certificate of graduation because a photograph of her without a headscarf was required and she was unwilling for religious reasons to be photographed without a headscarf. The Commission found no interference with her article 9 right because by choosing to pursue her higher education in a secular university a student submits to those university rules, which may make the freedoms of students to manifest their religion subject to restrictions as to place and manner intended to ensure harmonious coexistence between students of different beliefs. Similarly in Valsamis v Greece (1996) 24 EHRR 294, It was held that article 9 did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner and that there had been no interference with the child’s right to freedom to manifest her religion.
114
her religion. Lord Nicholls said that he was not so sure that there had been no interference
noting that it was not easy to move to another school, and this disrupted her education.333
Baroness Hale thought that there had been interference with Begum‟s right to manifest her
religion, as it was her parents‟ choice to send her to the school and accept the uniform policy,
rather than her own. Both concluded, however, that the interference was justified.334
Conclusion
Where questions concerning the relationship between state and religions are at stake, it is
necessary to have regard to the fair balance that must be struck between the various interests
at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order.
However, it must be noted that there is a difference between the right to freedom of thought,
conscience and religion and other rights. It has an internal dimension and falls beyond the
jurisdiction of the state so it must not be restricted. The right to manifest one‟s religion or
belief may be limited or interfered with as long as it is justifiable. The justifications must be
prescribed by law and be necessary and proportionate to the aim of the limitation.
333.
Ibid, Paragraph 41. 334.
Ibid, paragraph 94.
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CHAPTER FIVE
This chapter comprises the summary and conclusion derived as a result of the findings of this
study.
5.1 SUMMARY
The purpose of this works was to show that in democratic societies, the law must of necessity
impose some limitations on the right to freedom of religion particularly, the manifestation of
such religious beliefs in actions.
The introductory part of this work dealt with the conflict between law and religion, the theme
of this work. It was once a popular opinion to hold that law had its origin in religion and both
were indistinguishable. However, present indications show that they are being separated and
with good reason. It questioned the merits in keeping law and religion in separate spheres. It
was identified that States which are beset by ethnic or religious conflicts face the challenge of
danger to their very political existence if they do not consolidate the unity of the society
around the nation principle, hence their adoption of the secular constitutions. It was also
noted that religion also gains from this secular stance as without proper separation, the state
will divert religious organisations and its tenets for its own purposes. Thus, separation from
the State unburdens religion
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In chapter 2, discussion took the turn of examining what it meant for a State to be secular and
clearing certain misconceptions about secular countries. To that extent, secularism is not
synonymous with atheism, though it is recognised that atheist have an interest in the state
being secular, but that secularism simply provides a framework for a democratic society, for
ensuring equality throughout society - in politics, education, the law and elsewhere, for
believers and non-believers alike.
Also, by way of comparative analysis of secular countries, three traits by which secular
countries are identified was unearthed. These are;
4. The prohibition of the adoption of a state religion;
5. The guarantee of freedom of religion;
6. The general constitutional provisions which aim at separation of the religion from the
sphere of the State (though in varying degrees) in acts like the prohibition of
discrimination on grounds of religion and imposition of religious test for qualifying to
a public office
Based on the above requirements, it was concluded that the framers of the Nigerian
Constitution intended by the inclusion of Section 10 that Nigeria be a secular state even
though in practise government isn‟t being neutral. This is because Nigeria is a multi-religious
country where to maintain peace, order and toleration, the government must be seen to be
neutral towards religious groups. Also, an understanding of the status of the constitution as
the supreme law of the land, as well as its unique role in shaping the nation‟s image across
generations, that Nigeria is a secular state is the only interpretation that can be given to
Section 10. It was also identified that freedom of religion in any society can exist only on the
premise of the equality in the enjoyment of the freedom. This equality can only be found
where the State was neutral and secular.
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In chapter 3, focus was on fundamental rights and its history. The development of rights
arose from the recognition of basic needs and it has continually grown to cover many ambits
as time evolved. It was found that the modern theory of constitutional human rights was
formed after the Second World War with the Universal Declaration of Human Rights in 1948
which emphasised the inherent nature of rights. The importance of rights to checkmate
government abuses inspired their inclusion in many international and regional agreements
and even within the African Continent335
and in Nigeria‟s Constitutions since Independence
in 1960.
Also, it was revealed that rights were not all absolute; few were, but a vast majority of them
could be justifiably limited. The categories of limited rights were referred to as “relative
right,” and in limiting them, there is a need to draw a distinction between the scope of the
right and the extent of its protection.336
The scope of the right determined the right‟s
boundaries and its content, while the extent of its protection determined the legal limitations
on the exercise of the right within its scope. The doctrine of Proportionality was suggested as
a modern tool for reviewing limitations and carrying out balancing of deleterious effects
limitations could have on rights.
In addition to the above, the freedom of thought, conscience and religion was discussed in
chapter 3 as an inherent part of the fundamental rights laid down by the United Nations.
Accordingly, under Article 18 of the International Covenant on Civil and Political Rights and
Section 38 of the Constitution of The Federal Republic of Nigeria,337
everyone has the right to
freedom of thought, conscience and religion. This right includes freedom to have or to adopt
335. See African Charter on Human and Peoples’ Right, 1981.
336.
Barak, Proportionality, 19. 337.
See also Article 9 of European Convention on Human Rights, 1950.
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a religion or belief of his or her choice, and freedom, either individually or in community
with others and in public or private, to manifest his or her religion or belief in worship,
observance, practice and teaching. No one can be subject to coercion which would impair his
or her freedom to have or to adopt a religion or belief of his or her choice. Freedom to
manifest one‟s religion or beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, or morals or the fundamental
rights and freedoms of others. Further, Article 18 in fine specifies that the States Parties to the
Covenant undertake to have respect for the liberty of parents and, when applicable, legal
guardians to ensure the religious and moral education of their children in conformity with
their own convictions. Article 26 of the Covenant lays down a general principle of non-
discrimination, which concerns religion among other things. The importance of freedom of
thought, conscience and religion cannot be overstressed. Generally speaking, it is regarded as
one of the foundations of democratic society. Specifically, religious freedom is a vital
element that goes to make up the identity of believers and their conception of life.338
In Chapter 4, the case of Asiyat Abdulakareem & ors v. Lagos State Government & ors339
was
analysed. With the aid of proportionality it was found that the uniform regulations for public
primary and secondary schools of the Lagos State Government was justifiable to limit the
right to freedom of religion and in that case, the manifestation of religious belief in dressing.
However certain problems with the ratio were identified including the absence of attempts by
the court to consider balancing of rights and their limitation.
In all, the following are the major finding of this work.
338. It is noteworthy that over the past ten years the number of cases examined by the ECtHR under
Article 9 has been constantly growing. This trend can largely be explained by the increasing role of religion and associated questions in the socio-political arena. 339.
Unreported; Suit No. ID/151M/13.
119
That there are merits in advocating for secularism as there is greater co-operation and
lesser incidence of religious intolerance in secular countries.
That Nigeria is operates a secular constitution but, despite the wordings of Section 10
of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Nigeria is
not yet functionally secular.
That a right is hardly absolute in its realization.
That public interest and the rights of others could limit another person‟s realisation of
his/her right.
That in a democratic society, limitations on the fundamental rights of persons must be
justifiable and founded on law.
That the doctrine of proportionality aids in achieving a balance between conflicting
rights and interests.
5.2 CONCLUSION
A secular conception of the society, serves to protect the interest of all religious groups.
Nigeria is secular state by virtue of the provisions of the constitution, therefore government
practises at variance with this secular stance is a violation of the constitution. Also, the view
that rights are absolute is unsupportable as only a few are. A person rights stops where
another‟s right starts. Similarly, the right to freedom of religious is better protected in a
secular state but also can be justifiably limited in the interest of society, both private and/or