PART II
Having struck out the Atheist Society of Nigeria’s (ASN) case on grounds of locus standi (standing), Chief Justice Godwln Abraham’s job was done (however imperfectly). He had concluded, in his own words, “the court lacks jurisdiction to hear the case”. But that did not deter him from hearing the case anyway!
Did he do a better job teasing apart the evidence and the constitutional issues than he did with the issue of standing? Let’s see.
ASN sought the court’s ruling on two questions:
Question #1: Whether Sections 10 and 38 of the Nigerian Constitution mean that “Nigeria is a secular state warranting the separation of the state from religion influences”?
Question #2: Whether the government’s activities in relation to the International Worship Centre were beyond its powers and, therefore, unconstitutional?
Question #1: Is Nigeria a secular state?
ASN’s lawyers referred the court to Sections 10 and 38 of the Federal Constitution.
Section 10 of the Constitution says, “The Government of the Federation or of a State shall not adopt any religion as State Religion.”
Section 38 is longer and deals with freedom of religion and freedom from religion. It gives citizens the freedoms of thought, conscience and religion, including the freedom to change their beliefs, the freedom to practice their religion and to have their children taught religion as they see fit. It’s not necessary to reproduce this section in full here.
What does secular mean?
We should start by defining what “secular” means. Several dictionaries I consulted all gave the same meaning, “not connected with religious or spiritual matters”.
The Chief Justice decided to define it in his own unique way, “The term ‘secular’ connotes lack of religion. It is a doctrine that rejects religion and religious considerations.”
That is fundamentally wrong, secular does not entail rejection of religion, it means not connected with religion. The Chief Justice went on, “The Nigerian constitution does not reject religion. Instead, it allows religious practice.” Since secular does not mean rejecting religion, this point is irrelevant—there is no need for a secular state to reject religion among the people. The USA is famously a secular state yet it fiercely defends religious freedom.
The Chief Justice continued, “Nigeria is therefore … a religious state. Not just a religious state, but a multi-religious state. Everyone is free to practice his religion within the limits of the law.”
Abraham’s mistake here is to conflate the people of Nigeria with the governance of Nigeria. The people of Nigeria are free to adopt a religion and practice it within the limits of the law, absolutely. But the Constitution places a religious constraint on the federal and state governments of Nigeria—a government must not adopt a religion.
What does “adopt a state religion” mean?
The crucial question here is what does it mean for a state to adopt a religion? Abraham answers that question like this, “There is however a separation between the state and religion in the sense that no religion will be declared a state religion.” Note here the word “declared” is the judge’s insertion—the Constitution neither uses the word nor implies it, and this is important.
Abraham overlooks the fact that a government could de facto adopt a state religion without a formal declaration. Consider some examples:
1. A Christian leader of a state declares himself the spiritual leader of the state. Would this imply Christianity is the state religion? See Udom Emmanuel is the spiritual leader of the state.
2. A state government holds regular prayer meetings at Government House and the Christian Governor leads Christian prayers but never invites a Muslim, a Hindu, an atheist or a representative of any other religion to lead services. Would this imply Christianity is the state religion? See Akwa Ibom governor leads Christian prayers.
3. A state courthouse displays a banner proclaiming the authority of God. Would this imply Christianity is the state religion? See Justice or Bigotry Part 1.
4. The state promotes and contributes to a state-wide Christian Crusade. State employees are given a half-days leave so they may attend. The Governor and Deputy Governor are in attendance as are other senior figures from the government, including the Chief Justice, Godwin Abraham. See Akwa Ibom’s Christian crusade.
5. An avowedly Christian state governor promotes the building of a huge worship centre, contributes land and state resources to the project, and attends the foundation-stone ceremony assisting a nationally famous Christian pastor who leads prayers. Would this imply Christianity is the state religion?
At some point, as such exclusively pro-Christian activities accumulate with no counterbalancing Muslim, Hindu or atheist activities, an honest and independent observer would conclude that the state acts in a way that is indistinguishable from a Christian state. We would have a de facto Christian state whether or not there has been an official declaration to that effect.
So adopting a state religion does not entail a formal declaration. The constitution does not require it and logic refutes it. Whether a government has adopted a state religion must be judged according to the actions it takes.
To remain truly faithful to the Constitution, governments are left with two options. They can engage in religious activities whilst embracing all the religions of its citizens (including non-religious citizens) by giving them all equal attention and resources, or they can remain scrupulously neutral to all religions and avoid any activities that would favor one, or some religions, over others.
In practice, the former option is impossibly difficult to manage because of its sheer complexity, especially in a state with freedom of religion so people can freely change their religion and new religions could appear at any time. The problem cannot be avoided by noting that, say, 99% of the citizens share the same religion. If the state promoted the leading religion 99% of the time, that religion would become, de facto, the state religion which is prohibited by the Constitution. It has to be equal treatment for every religion!
This is why the only practicable way for governments to comply with the Constitution is to remain independent of, and neutral towards, all religions—governments should avoid being connected to any religion and focus on their secular responsibilities. This is precisely what is meant by the term secular state. A secular government does not reject religion–it simply takes no sides.
Why the Judge would allow religious observance by the government
The Chief Justice gave two reasons why governments should be permitted religious observance:
1. Abraham said, “There cannot be a water-tight separation, however, between the state and religion in the true sense of the word. Those who operate government are human beings and are often religious persons. Christians, for example, do not cease to be one just because he is a governor or a president of the Nation.”
The Constitution, S38.(1), guarantees every citizen, including state governors, the “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.”
But this freedom must be exercised within the law. Wiccans would not be permitted naked mid-summer dancing in the streets and state governors cannot worship a religion in their official capacity as governors although they are free to worship privately and publicly when not acting in their official capacity.
2. Abraham said, “The constitution recognizes Sharia Law and makes provision for Sharia courts. Sharia is a religious concept.”
It is true that the Constitution allows for Sharia courts to decide matters relating to marriage and consequential family matters, including the guardianship of children, provided all the parties are Muslims. But this is simply an additional religious freedom conferred upon Muslims and has no relevance to how the government conducts its statutory duties. Of course, a Muslim Governor would be free to use a Sharia court to determine the dissolution of his own marriage but this would not affect his duties and obligations as Governor in any way.
Question #1: The judge’s conclusion
The Chief Justice concludes his consideration of Question #1 with the words, “There is nothing in sections 10 & 38 of the Constitution of the Federal Republic of Nigeria as amended or any other provision of the Constitution that declares that Nigeria is a secular state. Such imputation cannot be made with regard to the Constitution.”
Abraham arrives at this conclusion by using an incorrect definition of the word “secular”, by claiming a state can only adopt a state religion by openly declaring the same, by ignoring the fact that by favoring one religion, a state is, de facto, adopting that religion, and by confusing restrictions imposed upon governments with freedoms granted to citizens–a comprehensive catalog of errors.
Without these errors, Abraham would be forced by logic to a different conclusion—we can impute that governments have only one practicable way to avoid the risk of appearing to adopt a state religion and that is to distance themselves from all religions and to be scrupulously careful to act neutrally between religions. This means governments must act in a secular manner.
Abraham made a final point on Question #1. He said, “This matter is simple. Government, whether of the Federation or the State shall not impose any religion on the citizens. Such imposition would be unconstitutional.”
Again Abraham introduces his own word which is not found in the Constitution, he concludes “the State shall not IMPOSE a religion on its citizens” [my emphasis]. The Constitution does not say that, it says “the State shall not ADOPT a state religion”. These are two very different things. It would be unconstitutional to impose a religion on citizens BECAUSE it is unconstitutional for a government to adopt a state religion whether by declaration or by stealth. But if a government were to adopt a state religion unconstitutionally it could do so by supporting and favoring that religion whilst taking no steps to impose it upon citizens.
The Chief Justice got Question #1 completely wrong. To comply with the constitution, the government of Akwa Ibom state must act in a secular manner, which means acting strictly impartially between all religions, because this is the only practicable way avoid the risk of favoring one religion and, hence, being seen to adopt that religion.
Question #2: Did the government exceed its powers?
Question #2 asked whether the government’s activities in relation to the International Worship Centre were beyond its powers and, therefore, unconstitutional?
To answer this question, the Chief Justice had to evaluate the evidence offered by ASN to prove exactly what actions the government had taken. As a matter of law, it was for ASN to prove their case. We will review the questions and the evidence below.
Did the government actively promote the worship center?
ASN referred the court to an article published on the government’s official website on 19 February 2018 at 12:48 pm by “Ndifreke P. Akpan (Govt House)”. The article began,
All is now set for the commencement of the long anticipated central worship center for the Akwa Ibom people in Uyo, the state capital.
The foundation laying ceremony of the 8,500 capacity international worship centre which holds Sunday, January 21, 2018, will be conducted by Pastor Enoch Adeboye, the General Overseer of the Redeemed Christian Church of God.
It is the first of its kind of a standard worship centre for Akwa Ibom State, the only state in the world named after God, 30 years after its creation.
The state has over this period moved from playgrounds to stadia and even uncompleted buildings in search of a conducive non-denominational place to worship, pray and sing praises to God.
To punctuate this trend, the Governor, who is also the Spiritual Leader of the state, Mr Udom Emmanuel pulled all stops and went in search of funds to bring to fruition, the dream of erecting for God, a befitting place of worship.
Later in the article, the governor is quoted, “He said Akwa Ibom State is a Christian State that will continue to look up to God for his guidance and blessings.”
This official article clearly shows the governor’s support for the project and the claims that the governor is the spiritual leader of the state and that Akwa Ibom is a Christian State. Furthermore, inviting a leading Christian Pastor, Enoch Adeboye, to officiate the foundation stone laying ceremony, and no other religious leaders, underlines the Christian nature of the project.
Once the government received ASN’s summons, this page was removed from the website. However, counsel provided a screen print of the original, and links to independent news sites that relayed the page and are still available online.
Official government web page promoting the worship center pt 1
Official government web page promoting the worship center pt 2
The government denied the existence of this page.
The Chief Justice overlooked all this evidence and accepted the government’s denials. He said, “The claimant said that they found the declaration in a feature story written by one, Ndifreke P. Akpan This in my view cannot be the proper reference for a declaration of a Christian religion. This is like hearsay. The declaration of state religion is not a small matter. In my view, it takes a strongly [worded] proclamation to declare a state religion. Such a declaration would seek to compel anyone in the state to submit to the doctrines of the religion. It may come with sanctions on those who would not submit to the doctrines of the religion.”
Ndifreke P. Akpan has written more than a dozen articles reporting on the governor’s activities on the official government website and she has written many more similar articles across Nigerian news sites and social media channels. She always signs her name as “Ndifreke P. Akpan (Govt House)”. There is little doubt that she is a member of the government’s PR team.
It is perverse that Abraham refused to acknowledge this article from the official government website and bizarre that he should hold, not just the wrongheaded view that there can be no adoption of a state religion until it is officially announced, but that he should invent his own rules out of thin air as to what such an announcement should contain. For the avoidance of doubt, a government seeking to adopt a state religion could (and almost certainly would) seek to do so without a public announcement, since such would be undeniably unconstitutional!
Furthermore, a government wishing to adopt a state religion would be extremely foolish to announce measures to compel citizens to adopt that religion since that would directly contravene Section 38, Subsection (1) of the Federal Constitution. Adoption of a state religion by stealth is the only option that would have any chance of success for such a government. And that is exactly the route taken by the government of Akwa Ibom state.
This logic reeks of a judge searching for reasons to dismiss a lawsuit even if he has to make them up. Here we are witnessing the corruption of justice. And there is more of this to come.
Did the government contribute public funds?
Throughout, the government maintained it had made “a negligible contribution by way of donation” to the building of the worship center. However, the government has refused to divulge how much they have donated. Before the issue of the summons, ASN’s lawyers made a formal request under Nigeria’s Freedom of Information Act for a breakdown of financial and other support. The government did not provide any information despite a legal obligation to do so.
During the hearings, the government continued to obfuscate its financial involvement and rely on the “negligible contribution” wording. However, an independent journalist was able to show that the government still held title to the 5,000 hectares of prime commercial land on which the worship center is being built. Furthermore, the same journalist showed the government had budgeted 10 billion Niara for the project (~$28 million USD).
Despite not knowing the total cost of the project nor how much the government had actually contributed, the Chief Justice concluded, “The overwhelming evidence before me in this matter is that the international worship center is to be constructed by Christian organizations and private individuals within and outside Akwo Ibom state.”
This is another perverse conclusion. No logic can take a person to this conclusion from the evidence available.
Question #2: The Judge’s Conclusion
Abraham went on to consider whether it is unconstitutional for a government to make even the “negligible contribution” admitted by the defense. He said, “If governments can donate to projects embarked upon by a social club what stops the government from making such provision for a religious project?”
You might think the answer to that question is obvious—the Constitution places no constraints on how governments may support, say, traditional dancing clubs, but it imposes explicit constraints on supporting religions (which have been discussed at length above). Abraham was inexplicably blind to this crucial distinction. I am reminded of the old saying, “A man won’t find what he is not looking for.”
Having found no distinction between social clubs and religions, Abraham went on to conclude, “The defendants have not done anything with regard to the construction of the worship center that is contrary to Sections 1, 10, 14, 15, 38 or 42 or any other provision of the Constitution of the Federal Republic of Nigeria 1999 as Amended.”
Leaving a litter-trail of illogic and fantasy behind him, the Chief Justice was able to dismiss ASN’s case. He wrongly concluded that a government can only be guilty of adopting a state religion if it formally declares such; he invented criteria for such a declaration which cannot be found in any law and are contrary to logic; he unreasonably denied all evidence that implicated the governor in promoting both Christianity and the worship center; he concluded that the government’s financial contribution to the worship centre was negligible despite the only available evidence showing that it was substantial; and he failed to see the clear constitutional distinction between supporting social clubs and supporting religions.
A final kick in the teeth
There is a custom in Nigerian courts that applies to cases that seek to clarify the law rather than seek redress from an individual or organization for some alleged wrong. Because clarifying the law gives benefits to all, judges traditionally award no costs against the losing side or award nominal costs. But Chief Justice Abraham chose to overlook this convention and imposed hefty costs of 500,000 Naira against the Atheist Society of Nigeria. This is far beyond the society’s means and will lead to bankruptcy and disbanding the organization unless it can raise the money by appealing to supporters.
It’s not possible to look at this case and conclude the mistakes were caused by legal complexity or weakness of evidence. The missteps made show the hallmarks of intentionality. From the leeway given to the defense to the inequitable allocation of travel expenses; from the denial of good evidence to the fabrication of legal criteria, the judge leaned heavily towards the defense. This looks like a case the Christian establishment did not want to lose and they made sure they didn’t.
At the outset, I asked the question, have we seen justice or bigotry? I think we have now answered that question.
Next steps
Religious beliefs can raise passions in many of us and this can lead to violence and even war. This is why those who drafted the Constitution of the Federal Republic of Nigeria wisely conferred explicit religious freedoms on the people and constrained governments’ ability to become involved in religion. These principles are worth fighting for. This is why the Atheist Society of Nigeria brought this case and this is why they will not rest now.
Subject to legal advice, ASN will seek to appeal this bad decision in the expectation that a higher court will put the law, and the welfare of the Nigerian people, above the parochial interests of the Christian clique currently calling the shots in Akwa Ibom state.
Bill Flavell
Disclaimer: This article is my personal view of events and is not necessarily the view of the Atheist Society of Nigeria or its lawyers.
