By Sonnie Ekwowusi

The bill emanating from the Senate seeking to create a National Council to regulate the practice of Christianity in Nigeria, setting standards and modalities for the practice of Christianity in Nigeria, as well as creating curricula for the practice of Christianity in Nigeria is, with the greatest respect to the sponsors and financial backers of the bill, a violation of sections 34, 35, 37, 38, 39, 40, 41, and 42 of our 1999 Constitution and Articles 2, 8, 9, 17, 18, 27, 28, and 29 of the African Charter on Human & Peoples’ Rights (Ratification Enforcement) Act.

Titled “A Bill to Establish the National Council for Christian Education for the Purpose of Regulating and Setting Standards and for Related Matters, 2023,” the bill is sponsored by Senator Binos Dauda Yaroe, representing the Adamawa South Senatorial District, and it has already scaled Second Reading in the Senate. I pray that Senator Yaroe and the Senate announce the date for the Public Hearing of the bill to give the public the opportunity to clearly state the demerits of the bill.

A copy of the 9-page bill is right in front of me for review. Essentially, this bill seeks to establish the National Council, to be funded by the Federal Government, whose main responsibility shall be “to develop, regulate, collate data on Christian education syllabuses at all levels of education and certify Christian Religious Education instructors at all basic and secondary school levels; approve the content of all Christian Religious Education in schools across the country; accredit programs of Christian Theological Institutions of Learning and train, retain, and recertify Christian Religious Instructors in schools.”

In other words, if passed into law and signed by the President, the import and purpose of the bill is that the syllabuses of all Christian primary schools, secondary schools, and universities such as Redeemer’s University, Ede, Lagos, Covenant University, Ota, Madonna University, Okija, Babcock University, Ilishan-Remo, Ogun State, Augustine University, Epe, Lagos, Caritas University, Amorji-Nike, Enugu, and so forth shall be formulated, approved, and regulated by the Council. Similarly, the syllabuses of all Christian seminaries such as Bigard Memorial Seminary, Enugu, SS. Peter & Paul, Bodija, Ibadan, All Harrows Seminary, Onitsha, Baptist Theological Seminary Kaduna, Bethel Institute of Theology and Biblical Research, Harvesters International Theological Seminary, International Institute of Divinity and Theological Seminary, Bible Life University of Theology, and so forth shall be formulated, approved, and regulated by the Council.

More importantly, if Senator Yaroe’s bill is passed into law, the mode of Christian worship in all Christian churches in Nigeria, such as the Catholic Church, Anglican Church, Baptist Church, Methodist Church, Redeemed Christian Church of God, Christ Embassy Church, Mountain of Fire and Miracles Ministries, Winners Chapel and so forth, shall be formulated, approved, and regulated by the Council. Additionally, the training, licensing, certification, and posting of Catholic priests, Anglican priests, Methodist pastors, Protestant pastors, Pentecostal pastors, and so forth shall be the responsibility of the Council.

As I have stated earlier, this bill is a great violation of religious freedom, the right to freedom of religious worship, and the secularity (in contrast to secularism) of the Nigerian State as enshrined in our 1999 Constitution. The bill is also incompatible with cherished human values enshrined in many African and international human rights instruments subscribed to by Nigeria. Consequently, the bill lacks merit and public consideration and should therefore be dismissed by the Senate.

Apparently foreseeing that the bill would provoke national outrage, the sponsor of the bill and his backers organized a public Zoom meeting on the bill last week. Eighty percent of us who attended that Zoom meeting clearly made it known to the bill sponsor and his backers that the bill lacked merit and would neither sail in the Senate nor in the House of Representatives, let alone in the public. I imagine that by now, the bill sponsor Senator Yaroe has withdrawn the bill to avoid further embarrassment and failure, for which he would be forced to do so sooner or later.

It is preposterous that in a multi-religious and secular state such as Nigeria, a Senator of the Federal Republic of Nigeria, who ought to know better, is fanning the embers of toxic religious inflammation and religious war by sponsoring a bill that infringes on the citizens’ right to freedom of thought, conscience, and religion, as well as unjustified intrusion of the State into the practice of the Christian religion. Our Supreme Court, in the case of Medical and Dental Practitioners Disciplinary Tribunal v Dr. John Emewulu Nicholas Okonkwo (2002), held that the import of the fundamental human rights to privacy (section 37) and the right to freedom of thought, religion, and conscience (section 38) as enshrined in our 199 Constitution is that the State is forbidden from setting standards or modalities for the practice of the Christian religion, questioning or setting standards on the courses of the citizens’ religious life, or interfering with the ways in which the citizens have fashioned out to practice their religion.

It is noteworthy that Nigeria has since ratified and domesticated the African Charter on Human Rights. Consequently, the articles of the African Charter apply in Nigeria. The African Charter contains political and civil rights, as well as the right to work, freedom of association, the right to representation in public office, the right to religious education, the right to health, the right of equal access to public property, and the rights of women and children recognized in all international conventions and treaties. See the case of Attorney-General of Ondo v Attorney-General of the Federation, where the Supreme Court held that the Fundamental Objectives and Directive Principles of State policy, which include the right to religious education, apply to all organs of government, authorities, and persons exercising legislative, executive, and judicial powers, and that the Fundamental Objectives do not distinguish between federal, state, and local governments. Also, see the case of Archbishop Anthony Olubunmi Okogie [Trustee of Roman-Catholic School v. Attorney-General of Lagos State, where the government of Lagos State enacted an Education law under which it closed privately owned and religious schools, including schools owned by the Catholic Archdiocese of Lagos. Archbishop Okogie took the Lagos State government to court and successfully obtained a declaration that the action of the Lagos State government offended the constitutional right of the Lagos Catholic Archdiocese to own schools and operate them under the tenets and teachings of the Roman Catholic Church

It must be pointed out that Senator Yaroe’s Bill flagrantly violates the Christians’ right to freedom from discrimination on the grounds of religion as enshrined in section 42 of the 1999 Constitution. Nigeria is a multi-religious, multi-lingual, and multi-ethnic society with many religions. Why should Senator Yaroe and his backers single out the Christian religion for regulation, control, intimidation, manipulation, and asphyxiation? Certainly, Senator Yaroe’s Bill is an exercise in religious bigotry and religious intolerance. Life is live and let live. We are all members of the same human family. Therefore, waging an insidious war against the Christian religion for no reason is a betrayal of our humanity.

By sponsoring a bill to regulate Christianity or set standards for the practice of Christianity, Senator Yaroe failed to understand the separation of the state and church, also known as the separation of religion and government in a presidential democracy and secular state such as ours. He doesn’t understand that the functions and responsibilities of the state and the church should be kept separate and that the government should not promote or favor any particular religion or religious institution, let alone delve into prescribing syllabuses and modes of worship for any particular religion.

One of the earliest significant events in this process of separating the state from the church was the Edict of Milan, which was issued in 313 AD by the Roman Emperor Constantine I. The Edict granted tolerance to Christians throughout the Roman Empire, effectively ending the persecution of Christians and allowing them to practice their religion freely. However, prior to the Edict of Milan, Christianity had been a persecuted minority religion in the Roman Empire. The Emperor Nero had blamed Christians for the great fire of Rome in 64 AD, and subsequent emperors continued to persecute Christians for their refusal to worship the Roman gods.

However, in the early 4th century, Constantine I became the first Roman Emperor to convert to Christianity. He issued the Edict of Milan as a way to grant freedom of worship to Christians and end their persecution. While the Edict of Milan was a significant step towards religious tolerance, it did not necessarily represent a complete separation of state and church. In fact, Constantine himself continued to use his power and influence to promote Christianity and shape the Christian church. He called the Council of Nicaea in 325 AD, which was a gathering of Christian bishops that established the basic tenets of Christian doctrine and affirmed the divinity of Jesus Christ.

Over the centuries that followed, the relationship between the state and the church continued to evolve. In Europe, the Catholic Church played a significant role in the political and social order. This led to tensions between the church and the state, as well as periods of conflict such as the Investiture Controversy in the 11th and 12th centuries. Happily, in the modern era, the idea of the separation of church and state has become enshrined in many legal systems around the world. In the United States, the First Amendment to the Constitution guarantees freedom of religion and prohibits the government from establishing a state religion. The US Constitution’s First Amendment includes a clause known as the Establishment Clause, which prohibits the government from establishing an official state religion or giving preference to any particular religious group or prescribing syllabuses for Christian schools in the U.S. Similarly, many European countries have established constitutional protections for freedom of religion and the separation of church and state. India is home to a diverse range of religions, and its constitution establishes a secular state that does not promote or favor any particular religion. It guarantees freedom of religion and the right to worship for all citizens. The same applies to Nigeria. By virtue of section 10 of the 1999 Constitution, Nigeria is a secular state, and the government is forbidden from dictating to any religion in Nigeria the manner and ways in which it should be practiced or dictating to any religion the manner in which it should fashion out its religious education in its schools.

One of the regrets of the United States and other countries about the outgoing Buhari government is the continued escalating ethno-religious killings, religious conquest, killing, and persecution of Christians under the government. At one time, the United States stated that the religious persecution and human rights abuse in Nigeria amounted to nothing but genocide. Aside from the killing and persecution of Christians under the Buhari government, Christian churches, Christian places of worship, and Nigerian Christians, in general, continue to be targeted by several draconian, totalitarian, and repressive policies of the government. For example, under the pretext of getting CSOs and NGOs in Nigeria to fulfill their main objectives and become transparent and accountable in their operations, Late Hon. Umar Buba Jibril, State: APC, Kogi State, sponsored a toxic NGO regulation Bill which, in actual fact, aimed at controlling, blackmailing, intimidating, manipulating, and asphyxiating Christian NGOs, which included churches, universities, and other public institutions. The Bill made it mandatory for NGOs to seek collaboration and approval from respective government ministries in order to propose and carry out social services. These requirements would not only introduce an administrative bottleneck but stymie social sector spontaneity in project execution, with the attendant corruption associated with the public sector bureaucracy in Nigeria.

Furthermore, under the proposed bill, operations by nonprofits are premised on certification by the proposed regulatory commission, and such certification is temporary, lasting for two years at most, and subject to renewal at the expiration of the period. This entails an extraordinary administrative or bureaucratic burden for nonprofits. It also places NGOs under the unbridled control of government officials, especially by making NGOs absolutely subject to the decision of a Minister, the ministry of which is not even specified. Moreover, in cases of denial of renewal of operational licenses, the bill makes no provision for nonprofits to recourse to a court of law to seek redress against government ministries, in spite of the fact that registered nonprofits are, de facto, juridical persons. Anyway, the Bill was defeated by the people. On the day of the Public Hearing of the Bill at the National Assembly, the sponsor of the Bill, Late Hon. Umar Buba Jibril, took to his heels as he saw the battle-ready the members of civil society furiously marching to the National Assembly to stop the Bill.

The signing of the Companies and Allied Matters Act, 2020 (“CAMA, 2020”) into law by President Muhammadu Buhari on the 7th of August 2020, following the repeal of CAMA 2004, was seen as a revolutionary legislation that would change the general outlook of doing business in Nigeria. In fact, it was expected to ease the nature and way of doing business in Nigeria, particularly for micro, small, and medium-scale enterprises. Unfortunately, sections 839, 842, 843, 844, 845, 846, 847, 848, and 851 of CAMA 2020 infringed on the right to privacy (section 37 of the Constitution) and the right to freedom of thought, conscience, and religion (section 38 of the 1999 Constitution).

For instance, section 839 of CAMA 2020 authorizes the Corporate Affairs Commission (CAC), Abuja to suspend the trustees of church NGOs or any other incorporated trustees for various reasons. The CAC could interfere with the bank accounts of church NGOs or any other incorporated trustees and suspend the accounts for certain reasons, as stated in section 842 of CAMA 2020. Lawyers and the business committee have raised concerns about these offensive sections of CAMA 2020.

Fortunately, in April 2023, the Federal High Court nullified the aforementioned offensive sections of CAMA 2020 in the case of Emmanuel Ekpenyong V National Assembly, Corporate Affairs Commission (CAC), and the Attorney-General for the Federation (AGF). The court ruled that these sections infringed on the fundamental human rights of Nigerian citizens, specifically their right to privacy, right to thought, conscience, and religion, and right to freedom of peaceful assembly and association, as enshrined in Section 40 of the 1999 Constitution.

It is now evident that we are under a totalitarian democracy, where a government official can wake up any morning and issue a decree on anything without the backing of any law. For example, last year, the Honorable Minister of Interior, Ogbeni Rauf Aregbesola, flagrantly violated section 7(5) of the 1999 Constitution of Nigeria and sections 6(1)(2), 21, 24, 30, 36, 37, and 38 of the Marriage Act by issuing a directive imposing marriage taxes or licenses on Christian couples, Christian churches, and Christian worship centers.

The Minister has decreed that henceforth, married couples, worship centers, and churches would be required to pay a sum of N51,000 (N21,000 for a marriage certificate and N30,000 for the licensing of a place of worship) as taxes and licenses before performing statutory marriages in Nigeria. It was evident that the Minister was targeting Christian churches, places of worship, and couples. In contrast, Muslims conduct their marriages under Islamic Customary law, which is unregulated by the Ministry of Interior. Therefore, the discrimination against churches is unjustified.

This is why the Catholic Church, the Anglican Church, Christian Association of Nigeria (CAN), Pentecostal Fellowship of Nigeria (PFN), and other churches demanded that Ogbeni Rauf Aregbesola’s directive be rescinded. Specifically, the Primate of Nigeria (Anglican Communion), Revd. Nicholas Okoh, stated at that time that the taxation of Christian marriages by the Ministry of Interior was in bad taste. He was right. Nigeria is a secular and multi-religious society, and what is applicable to one religion should be applicable to all. If marriages conducted under Islamic law are recognized by the government without being subjected to taxation, then marriages conducted by churches should also be exempt from taxation.

We must begin to move away from the statist mentality that portrays the state as our “Lord Almighty” and “owner” of everybody. Once the state enacts laws, all our human problems will be solved. In principle, functional bureaucracies, democratic institutions, and laws are good, but not every obligation that augurs well for the proper ordering of society can be democratized, bureaucratized, let alone legislated upon or codified in positive law. Civil society, churches, and mosques predate the state. In fact, the state or the government was created to serve civil society, not to strangulate it. Civil society, churches, and mosques are not appendages to the government; rather, they have priority over the state because it is in civil society that the government finds its origin and justification. In line with the principle of subsidiarity, the government should begin to see churches, mosques, NGOs, and multiple organizations and bodies within civil society as partners in progress, not as competitors that must be crushed at all costs. In this modern era, churches, mosques, and other institutions in civil society have become veritable and viable safety nets or even mini-governments, acting as bulwarks against societal injustices, providing health services and life insurance schemes for their financial members, and tackling poverty.

The value of democracy stands or falls with the fundamental values that it embodies and promotes. A democratic government ought to conduct its activities in line with the will and aspirations of the people. Any democracy that violates the inalienable human rights of citizens is despotism par excellence, even though it externally wears the toga of democracy. If we want peace in Nigeria, we must begin to sow the seed of peace because any peace whose seed is not sown cannot germinate, let alone sprout and grow. It is paradoxical for the government to say that the unity of Nigeria is not negotiable while the same government is busy fanning the embers of religious bigotry or making policies and issuing directives capable of tearing the country apart.

By Chidi Anselm Odinkalu

On 17 August 1980, the 6^th Commonwealth Law Conference convened in Lagos, then capital of Nigeria. After the arrival courtesies were dispensed with, it fell upon Shehu Shagari, civilian president of Nigeria then in office for ten and a half months, to declare the conference open. The keynote speaker was Jeremiah Obafemi Awolowo, Senior Advocate of Nigeria (SAN) and leader of the opposition Unity Party of Nigeria (UPN), who had run President Shagari desperately close in the contest for Nigeria’s presidency only one year before.

That contest ended up being decided by the Supreme Court of Nigeria in a judgment memorably described as being “a compromise between law and political expediency.” At the head of the bench that decided the case was Atanda Fatayi-Williams, at the time the Chief Justice of Nigeria. As famous as this judgment would become, the antecedents arguably proved to be more lasting in their influence on Nigeria’s politics and institutions.

The relevant part of the story begins on 16 August 1979, when the Federal Electoral Commission, (FEDECO) headed by Michael Ani, announced Shehu Shagari of the National Party of Nigeria (NPN) as the winning candidate in the elections to return Nigeria to civil rule. Three of the five presidential candidates in the contest repudiated the result, setting up what would become an epic election dispute. Obafemi was one of the three.

The Electoral Act of 1979 under which the vote took place anticipated that there could be a dispute and conferred on the Supreme Court the jurisdiction for final decision-making on disputes concerning the presidential election. The panel to hear the disputes were to be led by the Chief Justice of Nigeria but the then incumbent, Sir Darnley Alexander, was due to retire on 24 August 1979, a mere eight days after the announcement of the result and well before the Supreme Court was due to begin hearing the presidential election dispute.

Three days before the retirement date of Chief Justice Darnley Alexander, on 21 August 1979, then military Head of State, Olusegun Obasanjo, an army general, requested to meet Atanda Fatayi-Williams, then a Justice of the Supreme Court, at the seat of power in the Dodan Barracks in Lagos. At the meeting, Obasanjo offered Fatayi-Williams the office of Chief Justice in succession to Sir Darnley.

In his memoirs, Faces, Cases, and Places published in 1983, Fatayi-Williams claimed that this offer “was totally unexpected, and, for the first time in my life, I was at a loss for words”, adding that Obasanjo “watched my discomfiture with relish and delight.”

Some of his peers on the Supreme Court were not so sure. Fatayi-Williams was admitted to the Bar of the Middle Temple in London in 1948, one year after Chukwunweike Idigbe and three years later than Dr. Egbert Udo Udoma, both of whom were his peers in the Supreme Court. Fatayi-Williams was from Lagos; Idigbe came from the then Mid-West; while Udo Udoma came from the then South Eastern State. Idigbe became a judge in 1961, before being appointed to the Supreme Court in 1964. His service on the Supreme Court was, however, fractured by the Nigerian Civil War.

Udo Udoma, who also became a judge in 1961, had enjoyed a career as a lawyer, minorities rights activist, campaigner, politician, and federal legislator before being appointed a judge in 1961. Two years later, in 1963, he became Chief Justice of Uganda with the understanding that upon the end of his tenure in Uganda, he would return to a position on Nigeria’s Supreme Court. This came to pass in 1968 when General Yakubu Gowon appointed him Justice of the Supreme Court. Atanda Fatayi-Williams arrived the Court in 1969 as a junior to Udo Udoma and, strictly speaking, to Idigbe.

In his memoirs, The Eagle in Flight, Udo Udoma recalls that upon the retirement of Chief Justice Adetokunbo Ademola in 1972, the then-ruling Supreme Military Council considered five names for appointment to replace him, namely: Professor Taslim Elias, who was then the Attorney-General of the Federation; John Idowu Conrad Taylor, then Chief Justice of Lagos (as the office was then known); Dr. George Baptist Ayodola Coker, Justice of the Supreme Court; Rotimi Frederik Alade Williams, a senior lawyer in private practice; and Udo Udoma himself. Fatayi-Williams was notably not in the running. In the event, the military preferred Taslim Elias, who had served them well as Attorney-General.

When a new military regime relieved Elias of the position in July 1975, they settled on Sir Darnley Alexander, until then a little-known Chief Judge of the South Eastern State, whom Udo Udoma had recommended for that office.

In 1979, the stakes in the appointment of Chief Justice were very high: the presidency of Nigeria could depend on it. Udo Udoma, who lived with medically induced disabilities, writes in his memoirs that “Justice Fatayi-Williams, then also a Justice of the Supreme Court, registered a solemn protest on the ground that he saw no reason why I (Udo Udoma) should be given such a high post as the Chief Justice of Nigeria despite the fact that I was an amputee. He felt strongly that the SMC under the leadership of a Yoruba man like himself would not be justified to ignore him who then had no handicap. He then contacted several Yoruba men, including Chief S.L. Edu, to contact General Olusegun Obasanjo as Head of State to plead his case.”

Continuing, Udo Udoma records that these “intrigues succeeded and he was preferred to me because, in his representation, he was able to convince General Olusegun Obasanjo that since Alhaji Shehu Shagari as a Hausa-Fulani, was contesting the office of President of Nigeria and had chosen Dr. Ekwueme, an Igbo man, as his running mate as Vice-President, both of whom were likely to win, then the office of Chief Justice of Nigeria ought to be filled by himself, a Yoruba man, especially as Chief Obafemi Awolowo was sure to lose the election.”

Udo Udoma published these lines in 2008, 28 years after Obafemi Awolowo’s keynote to the Commonwealth Law Conference in 1980. In that address, Chief Awolowo alleged that the appointment of Fatayi-Williams to the office of Chief Justice in 1979 came with an implicit bargain concerning the determination of the election petition of that year. He also claimed that days before the Supreme Court announced the decision on 26 September 1979, Chief Justice Atanda Fatayi-Williams leaked the decision of the Court to General Obasanjo who desired to be reassured that he could proceed with the inauguration date of 1 October 1979 as planned.

Nearly all the protagonists involved in this story are no longer alive and their stories are hidden away in books, whose existence most Nigerians do not know about. The only one alive, General Obasanjo, an otherwise prolific author, has not held forth on these issues. The full facts of what transpired may never be known publicly.

In 2008 and in 2019, judges who sat on controversial presidential election petitions in election years enjoyed quick judicial elevation from the parties in whose favour they decided. Also in 2019, a Chief Justice was sacked ostensibly because he could not be trusted to determine presidential election petitions in a predictable way in the manner that his would-be successor could. What seems clear is that since 1979, judicial appointments and decision-making in election petitions have always enjoyed a relationship underpinned by a whiff of quid pro quo.

Those interested in following the fate of the presidential election petitions whose consideration is ongoing in Abuja, Nigeria’s Federal Capital, may wish to remember that there are currently only thirteen serving Justices of the Supreme Court, which leaves the court with eight vacancies to be filled by a new government.

Politicians have learnt to turn election dispute resolution into auditions for the shifting of judicial deck chairs. First, they rig elections in order to get the opportunity to rig the courts with judges ready to help them to validate rigged elections. That is the legacy of the unspoken antecedents of Awolowo v. Shagari.

A lawyer and a teacher, Odinkalu can be reached at [email protected]