Thursday, 5 May 2016

Kaduna’s anti-preaching law: A regulatory misstep

Kaduna governor: Nasir El-Rufai
Written by Sam Amadi

Two things stand out for me about the law. Yes, there is a reason to venture to regulate the exercise of religion in Kaduna State. The perennial incidence of religious violence and the recent violent clampdown on members of the Shiites provide a background of security anxiety. The second point is that, that law is a poor and presumptive response to an eminent, but in no way unique, social problem. All said and done, the promoters of that law either do not understand the essence of freedom of religion or are in pursuit of mischief. I will believe the former for I don’t think a wise administrator would play such dangerous gambit. This must be a result of some form of shortsightedness. The proposed law is plain error that should be reversed as soon as possible.

The rest of this piece will show that the proposed law violates the freedom of religion in clear and fundamental ways that no reasonable administrator or court should accept it as a legitimate regulation of the exercise of the freedom of religion. It is an unreasonable and illegal attempt to regulate the exercise of freedom of religion.

Disproportionate Response: The main purpose of the law is to regulate religion in Kaduna State by requiring strict licensing of all forms of religious preaching. Bear in mind that religious preaching is a form of religious speech. The law makes it a criminal offence for any person to preach without a licence. Such an offender could be imprisoned for two years or fined N200,000. The law does not prohibit certain kinds of religious preaching (as would be expected if the problem is some kind of violent preaching) but generally requires that only those licensed to preach are authorised to speak. The prescribed licence is granted by an inter-faith committee composed almost entirely by nominees of the Governor of Kaduna State. The Governor’s committee reviews the recommendation of another committee of either the Christian Association of Nigeria (CAN) or the Jama’atuNasril Isam (JNI) for Christians and Muslims respectively.

The primary problem with this response is that it is an unreasonable response to any possible risks that religious expression may pose. A fundamental principle of regulation, whether it is finance, toxics or religion, is that response must be proportionate to the perceived risks. Now what are the possible risks associated with religious expression in Kaduna State? They are evident in the history of the state. The main risk is religious violence arising from hateful and inciting religious speeches and sacrilegious practices. The proposed law could have targeted its intervention by focusing on those forms of preaching that clearly pose threat to peace and security. As I will argue later, such targeting needs further to be secular in purpose to pass the constitutional muster of legality. If a regulatory intervention is overbroad to the extent that it over-regulates a whole sphere of activity without necessary discrimination, it becomes unreasonable and, therefore, subject to nullification by the court. A regulator ought to exercise its powers to effect a public good or deter a public bad narrowly. Therefore, the proportionality of action to threat is fundamental to intelligent regulation.

Obviously, the Kaduna law wants the government to determine the entire sphere of religious preaching. On what basis should the government be responsible to determine who enjoys the right of religious speech and who does not, when such speech does not pose any threat to security in the state? It is totally unreasonable to believe or assume that every form of religious preaching -religious speech – threatens the peace or would threaten the peace. Therefore, it is totally unreasonable to attempt to regulate the entire gamut of religious preaching.

Where there is no harm there should be no prohibition. Where there is harm, prohibition should be targeted to the extent of the harm such that the regulatory action is justified by credible threat or risk. The U.S. Supreme Court laid the clear principle of proportionality in the case of Sherhert v. Verner 374 U.S. 398(193). The court laid the rule that a law that interferes with the enjoyment of freedom of religion can only be justified if the state has a compelling interest in its application and such interest cannot be achieved by any other means except by enacting the law. What is that compelling interest that the Kaduna State government has that cannot be achieved except every preacher obtains an approval from the inter-faith committee? Clearly, every such interest, especially the interest of securing peace and order in the state, can be attained without this draconian law. We don’t need to require preachers to have licence to control inciting preaching or violent action of religious groups.

The Principle of Secular Purpose:
Section 10 of the Constitution begins the protection of the freedom of religion by providing that neither the Federal Government not the government of the state in Nigeria can establish any state religion. This is the so-called principle of secularity. Many Nigerian religious and legal theorists debate whether this section made Nigeria a secular state in the proper sense of secularism. The non-secularists argue that Section 10 simply restrained the Nigerian state from projecting one religion as the official religion of the state but does not intend that the Nigerian state should be completely agnostic of religious values and practices. The secularists argue that the constitution makes Nigeria a secular state that should have no place for religion. It builds an inseparable wall between the church (mosque) and the state.

This debate seems interminable and I don’t intend to settle it in this piece. But what is clear is that the non-establishment clause of the constitution (that is Section 10) has an irreducible minimum. Whether we interpret it to mean strict secularism or religious neutrality, that section places an obligation on the government not to intervene deeply in religious affairs. The wording of Section 10 of our Constitution is similar to the non-establishment clause in the U.S. Constitution that states “Congress shall make no law respecting the establishment of religion….”

The courts have interpreted the Non-Establishment Clause to have three important implications. First, any intervention that affects exercise of religion must have a secular purpose. The government should not make law aimed at regulating religion per se. The wall of separation should operate such that neither government nor religion should interfere in each other’s domain. Secondly, where in pursuit of secular purpose the law affects freedom of religion there must be a compelling government interest. And thirdly, such interests must be such that could not be realised without such interference. That is, the law should not be too burdensome on religious belief and practice.

Unfortunately, the Nigerian Supreme Court has not had the opportunity to fully adjudicate the full implication of Section 10. But the U.S. Supreme Court has done so. In Allegheny County v, Greater Pittsburgh ACLU 109 U.S. 493 (1988), Justice Blackmun, writing for the court, reviewed previous decisions in such cases like Everson v. Board of Education and Lemon v. Kurtzman, and opined that “Under the lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose, it must neither advance or inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.” This is the three-pronged test for Section 10 compliance, irrespective of the theory of non-establishment we accept.

The proposed Kaduna law is not focused on a secular purpose. It is aimed at regulating the two religions. It does not pretend that its only purpose is to regulate Christianity and Islam in the state. Section 10 of the constitution that prohibits the government from establishing any religion discourages government from dabbling into religion beliefs and practices. Providing for how religious people should engage in one of the critical forms of religious expression – preaching – is a prohibited headlong plunging into the waters of religion. If the law addressed a secular purpose like the level of noise permitted in a neighbourhood and consequently affected religious worship, it would have been a pursuit of secular purpose and the only question would have been whether the law laid excessive burden on religious belief and practice. In this case the proposed law directly regulates religious practice. It is not a reasonable response to a social problem. It is a wholesale regulation of religion. This contradicts Section 10 of the Constitution.

Free exercise of religion:
The proposed law does not pay serious consideration to the real essence of freedom of religion, which is the right of free exercise. The freedom of religion has now become customary international law. This means that the obligation to protect and guarantee to everyone the freedom of religion cannot be validly excused by national laws. Nigeria, like other countries, has recognised the freedom of religion in its Constitution, clearing any hurdle to its enforcement by courts. Section 38 of the Constitution guarantees the freedom of religion of every citizen and resident of Nigeria in the terms of “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 or observance”.

The history of the struggles for freedom of religion enlightens us on what the ‘free exercise clause’ means. The fight between the dogmatist Christians and enlightenment thinkers lies at the heart of the modern democratic state. The enlightenment tradition which is the basis of Westphalian state replaces religious feud with tolerance. The doctrine of religious tolerance championed by philosophers like John Locke and Jean Jacques Rousseau and statesmen like James Madison and Thomas Jefferson established the link between conscience, thought and religion as the fundamental fact that the proper religion of every man or woman should be left “to conviction and conscience of every man.” Every man or woman should also be allowed to determine the appropriate form to practise that religious form.

Free exercise of religion requires that the state does not put any obstacle or impediment in the exercise of the freedom of religion. The state does not need to facilitate freedom of religion but it must not impede it. The doctrine of free exercise, therefore, guarantees to every person the right to determine what beliefs he or she holds and liberty to hold such beliefs and practise them in company of other believers. The trend of judicial articulation of the free exercise has always prioritised freedom of thought and conscience over religious practices. The argument here has been that the freedom of thought and conscience does not entertain any derogation. It is the most fundamental of component of freedom of religion. Practices can be regulated as long as the government pursues secular purpose and does not unduly restrain the practice of religion. As the U.S. Supreme Court puts it in Cantwell v. Connecticut 310 U.S 296 (1940), the free exercise clause “embraces two concepts, – freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society… In every case the power to regulate must be so exercised as not … unduly to infringe the protected freedom”.

...To be continued.
• Dr. Amadi is a lawyer and policy and development strategist.

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