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1.
Introduction
In the early hours of
Sunday the 26th of July, 2009;
another round of religious bloodletting
started in Bornu State of Northern
Nigeria. According to media reports,
the religious violence was the handiwork
of Islamic fundamentalist/sect whose
doctrine is opposed to all constituted
authorities and abhors western
education. The riot left over a hundred
people dead and many injured victims in
its wake. Within days, the violence
spread across other parts of northern
Nigeria into Bauchi and Kano, among
others. The government of
Nigeria
responded with a crack down on the sect
members across northern Nigeria killing
the young leader of the sect, Yusuf
Mohammed, and arresting many in the
process.
Information regarding facts leading to
and surrounding the unfortunate incident
is sketchy as usual. According to some
government officials, acting on security
intelligence reports, security
operatives commenced a crackdown on the
sect in an attempt to nip its nefarious
activities and teachings in the bud
before it snowballed into something
else. Having regard to past history of
religious violence and bloodletting in
that part of the country, one is
tempted to say that that is a reasonable
move. However, having regard to
available facts, one doubts the legal
propriety of the nature and manner of
the preemptive attacks by security
operatives. The circumstances
surrounding the death of the leader of
the sect are also highly suspect. The
primary purpose of this short article is
to assess the action and reaction of the
government vis-à-vis constitutionally
guaranteed right to freedom of religion
among other rights guaranteed to
individuals under the 1999 Constitution
of the Federal Republic of Nigeria (the
Constitution).
2.
Scope and extent of rights implicated
Rights implicated in the crackdown and
killing of the fundamentalists by
security operatives are many. They
include the rights to life, freedom of
religion, expression personal liberty,
freedom of movement and presumption of
innocence, among others. Discussion of
all the rights implicated is outside the
scope of this short piece. The most
important and relevant of the rights in
question to this discussion is the right
to freedom of religion. Same will form
the basis and focus of this piece.
The right to freedom of religion is
guaranteed by both the international
bill of rights and regional human rights
instruments to which
Nigeria is a party. The right to freedom
of religion is guaranteed under article
18 of the Universal Declaration of Human
Rights (UDHR); article 18 of the
International Covenant on Civil and
Political Rights (ICCPR); and article 8
of the African Charter on Human and
Peoples’ Rights. The right is also
protected under Nigeria’s domestic law
via section 38 of the Constitution .
Right to freedom of religion rests on a
tripod: freedom of thought, conscience
and religion. While these legs of the
right are interwoven and interrelated,
they are distinct. Freedom of thought
relates to the right to hold a view or
idea which might be inconsistent with
mainstream ideas or believe. Freedom of
conscience relates to moral judgment.
That is, the right to hold profound
convictions on all matters. From this
right arose the right of conscientious
objection in the United States. The last
leg of the right is the right to
religious belief, simpliciter.
Additionally, right to freedom of
religion has three important components
or elements.
The first component of the right is
the right to entertain such religious
beliefs as a person chooses. The Supreme
Court of Nigeria affirmed this component
of the right to freedom of religion in
the case of MDPDT v. Okonkwo
(2002) AHRLR 159 at 179 in the following
words: ‘The right to freedom of
thought and conscience and religion
implies a right not to be prevented,
without lawful justification, from
choosing the course of one’s life,
fashioned on what one believes in, and a
right not to be coerced into acting
contrary to religious belief’.
The second component of the right to
freedom of religion is the right to
declare religious beliefs openly without
coercion, fear, hindrance, or reprisal.
In the Nigerian case of Jenebu Ononje
v. Aleyi Adegbudu (1983) 4 NCLR 492,
the court held that a widow cannot be
compelled to buy a goat for the burial
sacrifice of her husband if it is
contrary to or not allowed by her
religious belief.
The third component of the right is the
right to manifest religious belief in
worship, practice, teaching and
dissemination. In the United States
Supreme Court decision in Cantwell v.
Connecticut 84 L Ed 1213,
solicitation and proselytizing were held
to be part and parcel of the right to
freedom of religion. A similar view was
held by the Supreme Court of Nigeria in
its decision in MDPDT v. Okonkwo
(above).
The first and second component of the
right, that is, the right to hold
religious belief and the right to
declare such belief openly without fear
and coercion is absolute. It is not
subject to derogation. According to the
Human Rights Committee (the
quasi-judicial body saddled with the
responsibility of interpreting and
enforcing the ICCPR) in its General
Comment 22 paragraph 3 :
Article 18 distinguishes the freedom of
thought, conscience, religion or belief
from the freedom to manifest religion or
belief. It does not permit any
limitations whatsoever on the freedom of
thought and conscience or on the freedom
to have or adopt a religion or belief of
one's choice. These freedoms are
protected unconditionally…. In
accordance with articles 18.2 and 17, no
one can be compelled to reveal his
thoughts or adherence to a religion or
belief.
Thus, it is the practice or
manifestation of religious belief that
is subject to legal limitations on
grounds of public policy, morality,
welfare, health, and security, among
others. This point was affirmed by the
South African Constitutional Court in
the cases of Prince v. President,
Cape Law Society 2002 (2) SA 757
(CC); Christian Education South
Africa v. Minister of Education 2000
(4) SA 794; and the Court of Appeal of
Nigeria in the case of Ojeigbe Ubani
v. Federal Electoral Commission
(1960) 4 ENLR 72 (CA).
That said, the practice and
manifestation aspect of the right cannot
be subjected to regulation resting on
the whims and caprices of the
government. Like all other guaranteed
rights, exercise of the freedom to
practice and manifest religious belief
is not subject to regulation until such
exercise of right constitutes an
imminent threat or danger to public
security, safety, health, morality or
peace. Only clear and present danger to
the society will suffice as a ground for
regulation or interference. This view of
the law was confirmed by the the United
States courts in the cases of Whitney
v California (1927) 274 US 357 and
Thomas v Collins (1945) 323 US
516.
3.
Pre-emption or hysterics?: A human
rights assessment
Having examined the scope and extent of
the right to freedom of religion above,
the response of security agencies to
alleged danger posed by the Boko Haram
sect will now be analyzed and evaluated
vis-à-vis applicable laws.
From available facts, the Boko Haram
sect was charged with two main
wrongdoings. First, it was alleged that
their doctrine is against constituted
authorities. Second, it was alleged
that they abhor or are against western
education. It was based on these that
the security forces conducted cleanup
operations to flush out the sect
members. They arrested some and killed
some. The sect members responded by
attacking police stations and generally
unleashing an orgy of violence on
northern populace. The security forces
counter-attacked and arrested and killed
some more of the sect members, conducted
house to house searches and generally
rooted out the sect. Finally, the leader
of the sect, Mohammed Yusuf was arrested
and killed.
The arrest and extermination of Mohammed
Yusuf is itself shrouded in mystery.
Colonel Ben Hanatu, the leader of the
military team that arrested the sect
leader claimed that the man gave himself
up willingly, was captured alive and
handed over to police authorities in
Maiduguri, the Bornu State capital.
Police authorities in
Maiduguri,
however, claimed that the man was shot
and killed by the police during an
exchange of gunfire at the time of his
arrest. Later still, police authorities
changed the story and said that Yusuf
was killed during an attempted escape
bid. From all indications, it would
appear that, life was snuffed out of
Mohammed Yusuf in police custody after
his arrest. In other words, there was a
case of extra-judicial killing.
Two things are clear from the foregoing.
The security forces drew the first blood
by a widespread attack on the sect under
alleged guise of preventive/pre-emptive
strike. Secondly, the leader of the sect
was killed in questionable circumstances
and, it would appear, without due
process.
As pointed out above, the first two
components of the right to freedom of
religion, vis: the freedom to
hold a belief and the freedom to openly
proclaim such belief without fear or
coercion, are absolute and non-derogable.
The third component of the right: the
practice or manifestation of belief is
subject to interference only where there
is a present and imminent threat or
danger to public security, peace,
morality, and health. That the religious
views or doctrines are offensive,
unacceptable or against mainstream ideas
or doctrines is not sufficient reason
for suppression or interference. A
man/woman has right to abhor western
education or all education for that
matter. Safe that such a person cannot
forcefully foist his or her views on
others. Additionally, by extant laws
operative in
Nigeria,
a parent or guardian must allow
enjoyment of basic education to his/her
children or wards.
As regards being against constituted
authority, something more than hostility
to authority must be established. Some
kind of dangerous overt or covert act
must be shown by the government to
justify suppression.
The details of the precise teachings or
doctrines of the sect are unknown.
However, except the government
establishes the fact that the sect has
done anything or is about to do anything
endangering public security, safety,
peace, morality or health. The alleged
pre-emptive strike by the security
forces will be unjustifiable and a gross
breach of the right to religious freedom
of the sect. The mere fact that the
sect’s doctrine frowns upon constituted
authority or abhors western education is
not sufficient reason for suppression of
their views.
As regards the questionable killing of
Mohammed Yusuf, leader of the Boko Haram
sect; no doubt, section 33 (2) (b) of
the Constitution permits the derogation
of the right to life for the purposes of
effecting a lawful arrest or for
preventing the escape of a person
lawfully detained. Thus, if the man was
actually killed in the process of
preventing his escape from custody, it
does appear that his death will be
legally justifiable under the
afore-mentioned provision of the
Constitution. Otherwise, his death would
have been without legal justification
and unlawful. It should however be
pointed out here that an unqualified
application of section 33 (2) (b) of the
Constitution is out of tune with current
development under comparative
international human rights law. More
progressive jurisdictions have done away
with unqualified legal authority to use
lethal force to prevent the escape of a
fleeing felon. In re: S v. Walters
2002 (7) BCLR 663 (CC) for instance,
the Constitutional Court of South Africa
have held that lethal force is only
permitted if the fleeing felon
constitutes a threat to himself, law
enforcement agents or the public. Thus,
the mere fact that a person lawfully
detained attempted or is attempting to
escape is not sufficient reason to snuff
life out of him/her. There must be
additional and more compelling reasons
for the use of lethal force.
Consequently, even if Yusuf Mohammed was
killed while trying to escape from
custody, his killing is not only a gross
contravention of his right to religious
freedom; it will run counter to current
developments in comparative
international law except the government
is able to show more compelling reason
for killing him other than his alleged
attempt to escape from lawful custody.
He could not, however, in my opinion be
held to be escaping from lawful custody
if his initial arrest is a breach of a
right; in this case his right to freedom
of religion. Consequently, unless a
compelling reason is shown for the
arrest, detention and death of Yusuf
Mohammed his death in custody is a
violation of his rights to the sanctity
of his life, religion, fair hearing and
trial, among other sundry rights and is
therefore unjustifiable, illegal and
unconstitutional.
4.
Conclusion
It is really a pity that we are not, at
this time, able to hear the other side
of this messy and most unfortunate
story. The public is consigned to the
bin of ‘if’ and ‘when’. Information that
has so far trickled down to the public
is from government’s propaganda
apparatus. The public has not been
availed of any information or facts from
members of the sect or any independent
and impartial party to make any
conclusive and objective evaluation or
determination of the issues possible.
This is most unfortunate. One can only
hope that the passage of the Freedom of
Information Bill currently pending
before the National Assembly will
ameliorate this kind of situation.
Be that as it may, on the facts
available and stated above it will
appear that the response and acts of the
government to alleged threats posed by
the sect is a bit hasty and run counter
to the dictates of human rights law.
Consequently, the onus is on the
government to conduct a judicial enquiry
to unravel the mystery surrounding this
whole mess, especially the
extra-judicial killing of Mohammed Yusuf,
the sect leader; and avail the public of
the reports. Any public official found
to have erred or broken the law must
also be punished to serve as a deterrent
to others and prevent impunity which is
fast becoming a feature of security
operations and governance in Nigeria.
Finally, a reconsideration of all
exceptions to the right to life
contained in section 33 (2) of the
Constitution is due by the legislature.
Nothing short of this will suffice for a
government that has made the rule of law
and rights observance its official
policy.
Akinola Akintayo a human rights expert
is of the Faculty of Law, University of
Lagos,
Nigeria.
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