Religious Freedom Is Fundamental To Life -By Kazeem Shamsudeen

Freedom of Religion is an essential right. It is fundamental and inalienable because man is by nature ‘Homo Religiosus’ meaning that religion is part and parcel of Human Nature.

Consequently,allowing him to practice religion as freedom of religion connotes, is allowing him to be truly human. This is because,man is the only creature capable of reaching out of himself to establish a relationship with the divine. As the Grundnorm of Nigeria’s legal order,the Constitution of Nigeria guarantees this freedom. It is important for us to know that religion is an attribute of human person in his nature as such, it is not created by the state through the constitution. And it predates the making of any law from the time of the social contract upon which civil society, governance and democracy were founded. It is the ability of man to hold conscience and thoughts that gave birth to a reasoned conclusion that culminated into the making of a civil society. Therefore, Religion being a contemplative enterprise with practical manifestation is part of the trio of conceptual KOINONIA which form an internal bond within the human person. The other two are thoughts and conscience. It is on the shoulders of these three molders of human life that science, technology, knowledge advancement and modernity have been consistently anchored and advanced. It is therefore not out of place for these concepts to be classified together and given legal effects across many civilizations.

There is a consensus amongst various international legal instruments to identify this freedom and protect it. They include article 18 of the Universal Declaration of Human Rights (UDHR), article 18 of the International Covenant on Civil and Political Rights (ICCPR), article 8 of the African Charter on Human and People’s Right and article 9 of the European Convention on Human Rights. These instruments underscore the international recognition of the far reaching importance of protecting the freedom of religion in order to sustain the status of the law as the arbiter of human renaissance and the elixir of human social zenith. In Nigeria, section 38 of the Constitution recognises this freedom and protects it.

Consequent upon the recognition of the importance of protecting this freedom, it is carefully placed under chapter four and made justiciable by the operation of section 46(1) of the same constitution.

The right is guaranteed for “every person”. This is different from other fundamental rights such as right to private and family life(37), right to freedom of movement (section 41) and right to freedom from discrimination (42). That the right to freedom of religion is granted to every person in Nigeria means that it is not only for Nigerian citizens but all human beings in the country, including non-citizens. The section uses the operative word ‘shall’, which when used in the second and third person means obligation. Every other person ,physical or legal , has the duty to accord this right to a person.

The freedom of religion guaranteed under the constitution is not a solitary right to hold a religion but rather, is a compound right embracing other freedoms that define religion as involving rational process, and a social reality, which thrives in interpersonal dynamics and concrete civil presence. It is guaranteed alongside freedom of thought and conscience. This freedom does not stop there, it also includes freedom to manifest and propagate religion in Worship, teaching practice and observance.

LIMITATIONS

In spite of religion being an inherent feature of the human person, it is not a license for one’s religion to be manifested however, wherever and whenever a person desires. Its manifestation in the society has to be balanced out with other social values and interests. This is incorporated in section 45(1) of the constitution which provides; “Nothing in sections 37, 38, 39 , 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in democratic society- a) in the interest of defence, public safety, public order, public morality or public health b) for the purpose of protecting the rights and freedom of other person”

According to the provision, there are two conditions that must be precedent before freedom of religion can be validly restricted. First, the restrictions must be imposed by law. Secondly the law itself must be reasonably justifiable in a democratic society. To ensure fair and legitimate restriction of freedom of religion for public interests, certain principles must hold. First, every limitations must be prescribed and regulated by law and never be left to an arbitrary administrative decision. Secondly, such provisions or limitations must be equally applicable to all citizens and to all religious institutions. Thirdly, the limitations should never be imposed on particular confessional grounds. Finally, limitations based on emergency situation must be proportionate to the emergency itself and must disappear as soon as the crisis is over.

Therefore, the ban on Muslims in China and the banning of the public celebration of Christmas in Somalia, Brunei and Tajikistan for the interests of public safety are instances of limitations being imposed on particular confessional grounds which is unacceptable. The restrictions in France, Nigeria and around the world during Covid 19 lockdown are examples of emergency situations and should disappear as soon as the situation is over. Finally, freedom of religion shares the social, civil and political space with the legal rights and freedom of other persons. This means that all these freedoms and rights are equal and mutually limiting, thus, none is ordinarily superior and so should not unjustifiably displace any other. This is represented in the dictum One’s freedom or rights begins where those of others end.