Kaduna’s anti-preaching law: A regulatory misstep – Part 3
Continued from yesterday
If you consider the requirement that every would-be preacher of Islamic or Christian religion must seek and obtain a licence from the state government, then it becomes clear that the proposed Kaduna law “infringes the protected freedom.” It limits the exercise of freedom of religion to the extent that anyone who does not secure a licence commits an offence. The requirement of licensing is an actual censorship of belief which violates the inviolable freedom of conscience and thought. On what basis would a preacher be deprived of licence to preach except that his beliefs are considered unpopular or unconscionable? When the freedom of religion is so constrained by the view of the majority or the imprimatur of the ecclesiastic or secular authority, then the inviolable freedom of belief, thought and conscience has been violated.
Worst case, the proposed law does not provide any intelligible principles for its fanciful inter-faith committee to scrutinise and approve applications for preaching licence. This makes the grant of licence arbitrary. Such arbitrariness is damaging to the free exercise of religion.
The proposed law violates the guarantee of equal treatment for religious believers. Another important principle of freedom of religion deriving from both the non-establishment and free exercise clauses is the prohibition against privileged or unfavourable treatment of some religious believers. If we treat religious believers differently on the same issues, we are violating the freedom of religion. By the proposed Kaduna law, members of the CAN and JNI committees that will make recommendation, and the inter-faith committee, are adherents of some religious beliefs. To ask them to determine whether a person who shares different religious beliefs should be granted licence to exercise his or her religious beliefs is to privilege the religious beliefs of members of the committees and disfavour the religion of the applicants.
Perhaps, the promoters of this law could not see this problem because they think of religious beliefs in terms of two monolithic religions – Christianity and Islam. But the fact is that the freedom of thought, conscience and religion is not guaranteed to adherents of mainstream or fringe Christianity or Islam. It is guaranteed to every person and for every religious belief, no matter how heretical. It is guaranteed to the mainstream believer as well as the fringe or nutty believer. Unless the adherents of such religion act in a manner that violates a ‘secular and significant government interest’, there is no reason to place restriction on their exercise of freedom of religion. Conceivably, there are many Christian groups that may not recognise CAN because their core values diverge fundamentally from those of members of CAN. If it falls on a CAN committee to determine whether members of these groups can practise their religion, then the law has discriminated against them. Discrimination against religions may not be expressed in the law but actual in its administration.
The Kaduna law also discriminates against religious groups by singling out Christian and Islamic religions for regulation. This could be interpreted in one or two ways. It could be that whereas adherents of other religions need not apply for licence to preach, members of the Christian and Islamic religions would need to be licensed to preach. Or it could be understood to mean that only adherents of Christian and Islamic religions are recognised in Kaduna State, such that all other forms of religions are otherwise outlawed. This second reading will be totally abhorrent. So, we could take it that the promoters of the preaching law intended to have adherents of Christian and Islamic religions subjected to licensing before they can practise their religion. This is discriminatory as it places additional burden on adherents of Christianity and Islam which is not placed on adherents of other religions. The second reading would be much more problematic.
The major error of the Kaduna law is to presume that CAN and JNI capture the entire gamut of religious beliefs. There is just no reason to ask a committee of CAN and JNI to recommend who should be licensed to preach. Recognising that preaching is the essence of religious belief and practice, it amounts to toll-gating access to freedom of religion.
Freedom of Speech:
Freedom of religion is akin to freedom of speech. Expression of religious beliefs is a kind of speech. Section 38 of the Nigerian Constitution guarantees every person “the freedom of expression, including freedom to hold opinions and to receive and import ideas and information without interference.” It is not acceptable to constrain or hinder exercise of speech except there is an overwhelming threat to other rights. And when such threat exists, the government usually resorts to criminal laws that address secular criminal offences like defamation, riot or criminal assault. The government does not address such threat by proscribing free speech. If there are instances of violence arising from inciting preaching the government could criminalise incitement to violence through religious preaching and other forms of speech. Enough laws exist in the statute books to deal with this. And the new administration with its developmental zeal could prosecute inciters. If new and more effective laws are needed they can enact such laws in line with the principle of generality, secularity and proportionality. Inhibiting religious preaching in the manner that the law proposes contradicts freedom of speech and expression.
Basically, there is no reason to enact the proposed Kaduna State Religious Preaching Law. It does not address any significant threat that cannot be addressed by utilising laws that pursue secular aims like the penal code. In fact, ironically, if the Kaduna government is anxious about security situation, then the law has not addressed it. That law misses the point on this score. Apart from illegally restricting the playing of religious cassettes and CDs, it does not advance security and peace in Kaduna State. But it shreds freedom of religion and unwittingly creates a nursery bed for religious crisis.
The law should be pulled off the table.
Dr. Amadi is a lawyer and policy and development strategist
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