James Kanyip: El-Rufai’s Bill for Religious Preaching, The Constitution and the Global Context

The Kaduna State Governor has presented an Executive Bill entitled: “A Bill for a Law to Substitute the Kaduna State Religious Preaching Law, 1984” to the Kaduna State House of Assembly for its consideration and possible passage into Law. Presently, the Bill is at its Committee Stage awaiting public hearing and final presentation for its Third Reading. If the Bill is ultimately passed into Law, it shall be cited as: “Kaduna State Religious Preaching Law No… of 2016”.

The Bill is a direct replication of the 1984 Law in form and substance. The minor differences shall be pointed out in course herein.

The 1984 Law has been in existence all this while unnoticed. We wonder why this Bill has generated a lot of discussions at this point in time. If the Governor had put the necessary machineries on ground for the implementation of the 1984 Law, we are sure it would have attracted less anxiety. Or, the Governor should have sent an Amendment Bill to the House of Assembly in which case the people would appreciate the fact that the Law on Religious Preaching has been in existence since 1984 and what he is seeking to do is just to amend it to bring it in tandem with current realities. To me, the 1984 Law had adequately covered the field.

The Bill has 15 sections. Section 1 is the short title of the Bill. Section 2 contains the proposed date of its commencement. Section 3 is the interpretation section. Section 4 establishes the Committees of the two (2) major religious bodies in the State; to wit: the Committee of Jama’atu Nasir Islam (JNI) for the Muslims and the Committee of Christian Association of Nigeria (CAN) for the Christians and their respective composition. A third body which was not established under the 1984 Law has been added by the Bill, namely: the Inter-faith Ministerial Committee which shall exercise supervisory control over the JNI and CAN Committees.

Section 5 empowers the JNI and CAN Committees to issue licenses approved by the Ministerial Committee which shall not exceed one (1) year to preachers; and a sponsored external preacher shall be issued a permit for the period of the event that brought him to the State. Worthy of note is the distinction between the issuance of a license and a permit. The 1984 Law had no such provision for a permit to be issued to a sponsored external preacher.

Section 6 establishes Committees and their compositions in each Local Government Area of the State to screen applications for licenses within their localities and make necessary recommendations to the Ministerial Committee for approval.

Section 7 states the functions of the Committees of the Local Governments which include: to issue compliance with the terms of the licenses so issued; and to register accredited preachers of all religious groups and organisations operating in the Local Government Area.

Section 8 empowers the Kaduna State Chapter of the JNI and CAN to keep records of all the Churches and Mosques including the data of all its preachers in the State. The 1984 Law had no such provisions.

Section 9 restricts the playing of all cassettes, CDs, flash drives or any other communication gadgets containing religious recordings from accredited preachers in the following places only: inside one’s house; inside entrance porch (zaure, in Hausa language); inside the Church; inside the Mosque; and any other designated place of worship. The 1984 Law only restricted it to one’s house and porch only.

Section 10 provides that any cassette containing religious recording in which abusive language is used against any person or religious organization or religious leaders (past or present) is thereby prohibited. Section 11 provides for the payment of the allowances of the members of the Ministerial Committee.

Section 12 makes it an offence for any person who preaches without a license; plays a religious cassette or uses a loud speaker for religious purposes after 8pm in public places; uses a loud speaker for religious purposes other than inside a Mosque or Church and the surrounding area outside the stipulated prayer times; abuses religious books; incites disturbances of the public peace; abuses or uses any derogatory term in describing any religion; or carries weapons of any description whether concealed or not in places of worship or to any other place with a view to causing religious disturbance.

We are of the view that sections 10 and 12 of the Bill should have extended “cassette” to include CDs, flash drives, and all other gadgets of communication as is provided under section 9. We are also of firm view that the blockage of public roads by Mosques and Churches and other acts constituting annoyance, nuisance and obstructions to the general public should be made criminal by the Bill as well.

Section 13 provides that a person found guilty of any of the offences under the Bill shall be liable on conviction to a term of imprisonment not exceeding two (2) years or a fine of Two Hundred Thousand Naira (200,000.00) or both; and may, in addition, have his license revoked if he a licensed preacher. The 1984 Law imposed a maximum prison term of five (5) years without an option of fine; and also the revocation of license.

Section 14 vests the Sharia Courts and the Customary Courts with jurisdiction to try offenders or violators summarily. The 1984 Law had no such provisions. Section 15 seeks to repeal the 1984 Law.

As we said earlier, this Bill has generated a lot of anxiety. This is not unexpected. Religion, the Marxists say, is the opium of the people. The spirituality attached to religion, especially in Nigeria, has taken both emotional and sentimental dimensions. It is deeply rooted in our way of life so much so that some kill in the name of religion, while some give their all in all for its sake. Some treat their religious beliefs with extremist and fundamentalist passion.

The importance attached to religious freedom has made it to find acceptance in our Constitution and, indeed, in the Constitutions of developed democracies in the world. Freedom of religion and religious belief has been abused by many. Proliferation in religious activities is uncontrollably worrisome. Public order and peace are seriously threatened by uncontrolled religious activities. Many precious lives and property worth billions of Naira have been lost as well.

Kaduna State had, in the past, witnessed carnages as a result of religious intolerance. Presently, peace is fragile and relative in the State. Aside from the foregoing, religion is also being employed by some dubious and unscrupulous persons or preachers to perpetrate fraud on innocent and unsuspecting people. The need to balance between religious freedom and public order/peace becomes very necessary in a religiously plural and volatile State like Kaduna.

But, then, if this Bill is ultimately passed into Law in Kaduna State, will it be constitutional?

My learned friends like Festus Okoye, Garba Shehu (the immediate past Commissioner of Justice and Attorney-General of Kaduna State), Maxwell Kyon, and a host of others think that the Bill is unconstitutional. For instance, Festus Okoye, in his write-up entitled: “El Rufai and Religious Preaching Law” published in the New Telegraph of Wednesday, 2nd of March, 2016 is of the view thus:

“Unfortunately, the Bill for a law to substitute the Kaduna State religious preaching law, 1984 is a direct affront on the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and my candid advise is that the Bill should be withdrawn, properly aligned and cleaned up before it is presented to the State Assembly for passage into Law.

“This is because almost all the provisions of the Bill are direct affront to constitutional order and this may affect the positives of the Bill including the mischievous positioning and use and misuse of loud speakers in Mosques and Churches to the annoyance of others.

“I presuppose that the drafters of the Bill and our colleagues in the Ministry of Justice in Kaduna State are aware that the Constitution of the Federal of Nigeria is the Supreme Law of the land. They are aware that where the Constitution has covered the field in relation to an issue no State Assembly is permitted to legislate on and or refine or contradict its provisions.

“They know that section 38 of the constitution guarantees 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 observation.

“This particular Bill fails all constitutional tests and cannot for all practical purposes be said to be a Bill which when passed into law will be justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons…”

With the greatest respect to my learned friends, we hold a contrary view. To us, the Bill, if passed into Law, will be constitutional. The freedom to religion is not just a human right, but it is a fundamental human right entrenched as such by section 38 of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 as follows:

“38. (1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

“(2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.

“(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.

“(4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.”

Although the above provisions are fundamental human rights, they are not, as such, sacrosanct and absolute as we pointed out earlier. Indeed, there is no human right or fundamental human right anywhere in the world that has no limitations. Also, one right cannot be used to suppress another right. This is why the adage goes that one’s right ends where another’s begin. Even the right to life which is the most important and cherished human and fundamental right is not absolute.

It is our view that if people were to practice their religions truthfully, there would not be need for the entrenchment of human rights in man-made laws like the Constitution. After all, human rights are supposed to be God-given rights that are inherent to the individuals as human beings. But because the practice of religion has been selfishly abused, misused and turned into a weapon of destruction instead of spiritual construction by some preachers and followers, the need to control it becomes necessary. It is because of the foregoing reasons and many more others that our Constitution provides for an avenue of religious control under section 45 (1) (a) as follows:

“45. (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.”

The Religious Preaching Bill of Kaduna State will find constitutional anchorage under the above provisions if ultimately passed into law. The Bill is not seeking to abolish, stop or derogate on the freedom of religion and religious beliefs. No, that is not its purpose. It merely seeks to control religious preaching and activities in the State for purposes of public order, public safety, and to protect the rights and freedom of other persons. Therefore, it is our view that it has passed the test of constitutionality under the above provisions. To this extent, we are in agreement with the Governor of Kaduna State for sponsoring the Bill, and the House of Assembly if it ultimately passes it into Law.

Other more developed and similar democracies have equally placed restrictions on religious freedom and preaching. We shall give few instances. The First Amendment to the US Constitution guarantees religious freedom. However, to safeguard the public from fraud in the guise of religion, laws are made in the component States that require the preachers to present proof of ordination, and to obtain preaching license.

Article 52 of the USSR Constitution guarantees religious freedom. However, the 1997 Law on Freedom of Conscience and Religious Associations has placed some limitations on religious freedom and preaching in the USSR.

The Constitution of China provides for freedom of religious belief. However, the Government restricts religious practice to government-sanctioned organizations and registered places of worship; and also controls the growth and scope of the activities of religious groups.

Singapore has religious freedom entrenched in its Constitution, but went ahead to promulgate a law restricting the right in some circumstances. For instance, under the law the Government had deregistered the country’s congregation of Jehovah’s Witness in 1972 and Unification Church in 1982.

India guarantees freedom to religious belief under Article 25 of its Constitution, but subjects the right to “public order, morality, and health”; and also subject to other provisions under the Article.

Egypt has the Law No. 51 of 2014 which regulates sermons and religious lessons in Mosques; and imposes punitive sanctions for offenders.

However, whether or not some sections in the Bill will pass the test of constitutionality will depend on other constitutional variables. A major area of concern in the Bill which has been pointed out by Okoye under section 4 thereof is the recognition of Islam and Christianity as the two (2) major religions in the State to the exclusion of other religious bodies and associations; and this is fortified by the establishment of the JNI and CAN Committees. Even with that, not all sects or denominations in Islam and Christianity are members of JNI and CAN.

In the words of Okoye: “It is patently illegal and unconstitutional to elevate the Jama’atu Nasri Islam (JNI) and the Christian Association of Nigeria (CAN) to a preeminent position over and above every other religious group or Association.

“The Jama’atu Nasri Islam (JNI) and the Christian Association of Nigeria (CAN) enjoy the same incidents of registration and incorporation as any other association registered under part B and C of the Companies and Allied Matters Act.

“They are associations just like any other association recognized by the Constitution and the Bill cannot confer them with a special status over and above any other groups similarly registered. For the Christian Association of Nigeria there is nothing that makes it mandatory that every Christian denomination must belong to the Association.”

We appreciate the position of Okoye on this, especially if section 4 of the Bill is juxtaposed with section 10 of the Constitution which provides that the Government of the Federation or of a State shall not adopt any religion as State religion. However, the practicability of these provisions in Nigeria now is seriously in doubt.

Islam and Christianity have been notoriously, widely and generally identified in Nigeria as the two (2) major religions. Muslims and Christians prayers are offered in Mosques and Churches on almost all National occasions and ceremonies like the Independence Day, Democracy Day, Armed Forces Remembrance Day; the National Mosque and National Ecumenical Center are all built and maintained by the Federal Government; the Federal and State Governments have all established the Muslims Pilgrim Welfare Board and Christians Pilgrim Welfare Board; large chunk of our commonwealth is spent on sponsoring Muslims and Christians to pilgrimage to Mecca and Jerusalem respectively; Special Advisers and Permanent Secretaries are appointed and scheduled respectively to handle Muslims and Christians Affairs; we have Mosques and Chaplaincies in the Armed Forces, the Police and other Para-military bodies, with commissioned officers designated as Imams and Chaplains, we see both Federal and State Governments donating monies for the construction of Mosques and Churches, etc.

It is our view that section 4 of the Bill merely seeks to identify Islam and Christianity as the two major religions in the State and not to adopt them as State religions. To identify simply means to recognise. To adopt in the context used under section 10 of the Constitution is to officially take up and practice; or to select or choose and follow as a practice. Certainly, the Bill does not seek to entrench Islam and Christianity as the two major religions in the State. Therefore, we do not find the provisions of section 4 constitutionally offensive.

The problem with a Bill such as the Kaduna State Religious Preaching Bill is not in its passage but its implementation, enforcement, and compliance.

As we said earlier, the 1984 Law has been in existence in the Kaduna State Laws since 1984 but unnoticed. What assurance is there that if this Bill is passed into Law it will be sustainably implemented, enforced and complied with?

We suggest that the Government should organize a widely publicized public hearing on this Bill to sensitize the people on its importance to public peace and order in the State, and to collate their contributions for consideration towards fine-tuning the Bill to enable it enjoy widespread acceptance.

The Bill should take cognisance of other religions outside Islam and Christianity for purposes of control and adequate coverage.

Also, the blockage of public roads by Mosques and Churches and other acts constituting nuisance and obstructions to the general public should be considered in the Bill as well.

In the whole, we are of the view that the Kaduna State Religious Preaching Bill, if passed into Law, will be constitutional. However, only time shall tell whether it will be successfully implemented, enforced and complied with.

Barrister James Kanyip is the Principal Partner, James Kanyip & Co