The law is not seeking to abolish, stop or derogate 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.
The Kaduna State House of Assembly passed a aw on June 7 entitled: “Kaduna State Religious Preaching (Regulation) Law, 2019”.
The Bill that culminated into the law was presented to the House in 2016. However, as a result of upheavals and uproar from some members of both the Islamic and Christian communities in the State and elsewhere, it suffered many setbacks; hence the delay in passing it.
The law is a direct replication of the 1984 Edict in form and substance. The 1984 law has been in existence all this while, but unnoticed and without any practical implementation.
The constitutionality of the law had been challenged from many quarters. I had written extensively on this on my Facebook Timeline on March 30, 2016; and it was widely shared by others. I want to briefly discuss it here since the Bill has now been passed into a law.
Is the Kaduna State Religious Preaching (Regulation) Law, 2019 constitutional?
The freedom to religion is not just a human right, but it is a fundamental human right entrenched as such by section 38 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended/altered), as follows:
“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.”
It is important to make the point here that, although the above provision gurantees fundamental human right to religion, it is not sacrosanct and absolute. Indeed, there is no human right or fundamental human right anywhere in the world that has no limitation or restriction. Even the right to life, which is the most important and cherished human and fundamental right, is not absolute. Therefore, one’s right ends where another’s begins.
It is because of the foregoing reasons and many more others that our Constitution provides for an avenue for the control of religious preaching and activities 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.
Thus, the law finds constitutional anchorage under the above provisions. The law is not seeking to abolish, stop or derogate 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 my view that the law has passed the test of constitutionality under the above provisions.
In the case of Erasmus Osigwe & 2 Others v. Registrar of Trade Unions (1985) LPELR–2792 (SC), Oputa, JSC (of blessed memory) held at page 28, paragraphs B-G as follows:
“One has to bear in mind that the rights guaranteed under Sections 34, 35, 37 and 38 of the 1979 Constitution are “qualified rights”. They are not absolute rights. They are subject to 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 of other people…That freedom exists within and not outside all existing and relevant laws.”
It is worthy of note that sections 34, 35, 37 and 38 of the 1979 Constitution have now been replicated as sections 38, 39, 40 and 41 of the 1999 Constitution.
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 U.S. 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.
In the United Kingdom, especially in London, license must be obtained from the Councils before a Church, Mosque or any other religious place can operate. Always there are laws enacted that place restrictions on the use of loud speakers.
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 law will pass the test of constitutionality will depend on other constitutional variables. And only the court can determine that.
Aside from the fact that the Law is constitutional, it is important to also add that the Law merely regulates only preaching. This means that the Law does not derogate on the right to worship, teach, practice and observe one’s religion. Therefore, the provision of section 38 (1) is not affected by the law.
In the whole, I am of the humble view that the law has passed the constitutionality test; and to that extent it is therefore constitutional, both in the process of its passage and in its content.
James Kanyip is deputy chief of staff to the deputy governor of Kaduna State.