Monday, 21 December 2015


Published in The Guardian Newspaper

By Dauda Ayanda on November 27, 2015 2:36 am

THE post-colonial constituent assembly of 1978 made provision for a Shari’ah Court of Appeal for a state that wants it. In explaining the background to the inclusion of the Shari’ah Court of Appeal in the Constitution, eminent legal icon, Prof. Ben Nwabueze in a paper delivered at Spiritan International School of Theology in 2001 said: … a Sharia Court of Appeal in the Constitution, which was a half-way compromise contraption adopted by the Constituent Assembly in 1978 to placate the Moslem members who had walked out en masse from its meetings to press home their demand for a full Constitutional recognition of the Sharia in its civil as well as criminal aspects. The compromise, of which I was one of the principal architects, bestowed Constitutional recognition on Sharia, counter-balanced by a like recognition of customary law, but only to the extent of establishing for “any state that requires it,” a Sharia Court of Appeal or (as the case may be) a Customary Court of Appeal. No wonder Sections 275 to 279 of the Constitution make analogous provision for the Shari’ah Courts of Appeal of a state while Section 280 provides for the creation of States Customary Courts of Appeal.

The often cited section of Nigerian Constitution on the provision of a secular state is Section 10 of 1999 Constitution thus: The Government of the federation or of a state shall not adopt any religion as state religion. This constitutional provision is wrongly interpreted by some advocates of secularism to mean a secular state. This is more compounded by the fact that there is no legal pronouncement on the particular section of the Constitution. Therefore, the logical interpretation of the provision is that a single religion is prohibited from being imposed on all the citizens of the country. In other words, Nigeria is a non-theocratic, multi-religious and multi-cultural state.

Moreover, a retired Justice of the Supreme Court – Justice Niki Tobi – similarly expressed the view that Nigeria is not a secular state. He said: There is the general notion that section 11 (of the 1989 Constitution, similar to section 10 of the 1999 Constitution) makes Nigeria a secular nation. That is not correct. The word secular etymologically means pertaining to things not spiritual, ecclesiastical or not concerned with religion. Secularism, the noun variant of the adjective, secular, means the belief that state, morals, education etc should be independent of religion. What section 11 is out to achieve is that Nigeria cannot, for example, adopt either Christianity or Islam as a state religion. But that is quite different from secularism (see Fundamental Legal Issues in Nigeria: Essays in Honour of Andrew Obaseki, 1999).

In the same vein, Prof. Ben Nwabueze expressed his scholarly opinion in a paper presented at the School of Theology Symposium on the state provision for a religion-based court to enforce the civil aspect of Shari’ah as not inconsistent with section 10 of the 1999 Constitution. He made a distinction between civil and criminal law as it relates to the secularity question and the Constitutional provisions relating thereto. The Professor said: In civil law, the state, through its judicial arm, the courts, merely interposes its machinery as an impartial, disinterested arbiter between parties in a dispute; it lacks the power to initiate the process of adjudication, and must wait until it is moved by one of the disputants. So the enforcement, through the courts, of the civil aspects of Sharia does not involve the support, promotion or sponsorship by the state of the Moslem religion in preference to other religious. The controversy does not therefore concern the application of Sharia civil law. Thus from the foregoing, section 10 of 1999 constitution is geared towards attaining an equilibrium among different religions in the country and preventing a state of theocracy which is a government by an established religion.

This fact is further corroborated by Section 38 sub-section 1 which states 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. This provision caters for freedom of expression in public and private as well as religion. Shari’ah is both a principle of religion and law which is in accordance with this provision. Also, Section 14 sub-section 2 states that sovereignty belongs to the people of Nigeria from whom Government through this constitution derives all its power and authority. Muslims constitute 50 per cent of the population (according to CIA world fact book 2010) and their several centuries’ old legal system of regulating their temporal and spiritual life is germane to this provision.

In recognizing the fact that religion should be a right for moral compass, justice and equity in a multi-religious society of ours and not a privilege, the late sage, Chief Obafemi Awolowo set up the first Pilgrims’ Board in 1958 to assist Muslim faithful in fulfilling one of the requirements of the five pillars of Islam. This socio-cultural understanding of building a just and egalitarian society also explained why General Yakubu Gowon as the then head of state and Chief Obafemi Awolowo as the Vice Chairman in 1969 enlisted Nigeria as an observer-member of the Organization of Islamic Countries (OIC). This culminated into a full-fledged membership in 1986 by General Ibrahim Babangida in line with strategic diplomat interest of Nigeria with neighboring Francophone countries and other African countries like Cameroun, Chad, Niger, Benin and Cote de Ivoire who are also full-fledged members of OIC. Paradoxically, the percentages of Muslims in these countries are lower than that of Nigeria while there is mutual respect and tolerance across all religion.

Obviously, secularism as a concept was developed by agnostics and advanced by atheists and that underscore the temporal nature of its philosophy. It also seeks to promote godlessness which is at crossroad with African culture on one hand and Islamic system of Shari’ah on the other hand.

No wonder, Prof. Ben Nwabueze criticized the rigid separation of state and religion as follows: It can thus be concluded that no society in which morality and religion are absent can ever attain and maintain liberty, democracy and justice. Hence, religion needs encouragement by the state to thrive and to be effective in providing an anchor for morality and in fostering the morality-based values of liberty, democracy and justice, and in inculcating among citizens morality, spirituality and piety. A developing country should not indulge in the doctrinaire rigidity of the state completely dissociating itself from religion. Whatever discrimination against non-religionists – agnostics and such others – that may be entailed in the state giving encouragement to all religions on the basis of equality is not really an unfair one, certainly not such as to warrant the state in keeping off religion completely. (see B.O. Nwabueze, Constitutional Democracy in Africa, Spectrum Books, Ibadan, 2003).

In conclusion, the newly appointed Secretary General of Anglican Communion Worldwide and the immediate past Kaduna Diocesan Bishop of Church of Nigeria, the eminent Rev. Josiah Idowu-Fearon recently stated in Vanguard Newspaper of July 11, 2015 under the caption “Bishop who teaches Islam” that:….. Instead, we should come together and be aware of the fact that secularism has become a religion and it is very strong and some of the promoters control most of the media. Christians ought to come together, forget whether we are Roman Catholic, Pentecostal and all others who worship God, the Christian way and join hands with the Muslims who are also fighting secularism. That is my mission. Indeed, secularism is a form of religion that denies the existence of Almighty God!!!

Engr. Dauda Ayanda (MNSE),wrote from Ibadan.