There is constitutional protection of religious freedom, freedom of speech in Nigeria

I have read Mr. Jiti Ogunye’s statement titled Courting Electoral Crime in the Name of God and made available and widely reported by social media and print media in their editions of Saturday July 24, 2022. Mr. Ogunye is a respected human rights defender whose legal activism and campaigns have enriched our country. But I think his view, which I’ve discussed below, is wrong this time around. Conscientiously for me, it is therefore urgent to bring this false pontification of Mr. Ogunye to the attention of the general public. This is necessary as Mr. Ogunye had rightly acquired a degree of credible bullhorn status in recent years. Thus, failing to debunk the obvious fallacy in Mr. Ogunye’s misinterpretation could sway many towards the fallacious argument of this popular human rights crusader. In this statement, Mr. Ogunye harassed a clergyman and attempted to send the fear of criminal prosecution behind the backs of the clergy! And what had the preacher done if not to be faithful to his calling by urging his flock to abstain from going to hell. Mr. Ogunye had quoted the preaching of the cleric as follows: “It is a clear instruction, when it is time to vote, vote only for the Church and not for your party. Any believer who sells his faith in the name of his party is headed for hell.

Mr. Ogunye believes that the above cleric’s statement violates section 97(1)(a) of the Elections Act 2022. For convenience, the article is reproduced here: “97(1) A candidate, person or association that engages in campaigning or dissemination based on religious, tribal or sectoral reasons for the purpose of promoting or opposing a particular political party or the election of a candidate particular, commits an offense under this Act and is liable on conviction (a) to a fine not exceeding N1,000,000 or imprisonment for 12 months or both. purpose of this provision is that the legislator recognizes the pre-eminence and inviolability of the freedom to form and propagate an opinion and its twin freedom to hold a religious belief and to propagate it. The legislator has expressed no intention of abrogate these freedoms in the article quoted above. the human rights activist does not wish to outlaw him by his statement. And indeed, no legislator can do that in a legislative text. Not even by constitutional amendment, some scholars have argued. They argued that under the basic structure doctrine, the National Assembly does not have the power to amend the Constitution to restrict these sacred freedoms. (See a 2016 article by Ekokoi Solomon at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3051480 on this doctrine.)

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Mindful of the strict and inelastic limit on its power to restrict free speech and religious freedom, the framers of the 2022 Elections Act clearly refrained from broadly punishing the sharing with voters of views favorable to a religion. The exception is when the dissemination of that opinion or campaign is “for the purpose of promoting or opposing a particular political party or the election of a particular candidate”. It is only in circumstances where the campaign or broadcast is “for the purpose of promoting or opposing a particular political party or the election of a particular candidate” that a violation of Article 97(1)(a) may be justified. Every prosecutor knows that you cannot dismiss this sentence as a condition of the crime in this section and proceed to file a charge based on this section, let alone get a conviction. As a rule of thumb, every element of a crime must be present before you can sustain a charge or prove it beyond a reasonable doubt against an accused.

It is clear from the cleric’s statement that he did not defend or oppose any particular political party or candidate. The law does not allow anyone to prove a crime by insinuation or supposition. The intention must be demonstrably clear and more than one possibility is not permitted. That’s what proof beyond a reasonable doubt means! One might be tempted to assume that the statement opposes the candidacy of one of the main presidential candidates or their political party. However, if one carefully considers the phrase “vote only for the Church and not for your party,” one would easily realize that the cleric’s warning is in no way aimed at any political party or candidate. Each (or at least each of the major political parties) contesting the 2023 general elections in Nigeria would field a mix of candidates professing different faiths or even those professing none. Coming in 2023 are presidential, gubernatorial, national and house of assembly elections for which political parties have fielded thousands of candidates of different faiths. The cleric did not refer to any particular candidate or any particular election. The clergyman simply asked his followers not to consider any political party; all they should care about is that they vote for candidates of their faith, no matter what party they or the candidates belong to. Isn’t it clear then that the clergyman had no candidate or political party in mind to oppose or support?

It has also been argued somewhere that the quoted speech of the cleric also violates section 92 of the Elections Act 2022. The provision of section 92 closest to the quoted speech is paragraph (3) which is reproduced as follows: “Places designated for religious worship, police stations and public offices shall not be used: (a) for political campaigns, rallies and processions; or (b) to promote, propagate or attack political parties, candidates or their programs or ideologies. Again, one wonders what makes the declaration a political campaign. Which political party or candidate does the clergyman’s statement oppose or support? It is important to examine or interrogate this critically. Can one have the right to hold and propagate a religious belief without a corollary right to campaign within the bounds of the law for a political leadership that would respect and protect that right?

In other words, what is the value of a right to hold and propagate a religious belief if one cannot, again, within the limits of the law, solicit other believers to vote according to a model that is believed to protect this right? Every right includes another right to protect that right. At least that is what the doctrine of self-defence has made explicit: the right to life also means the right to protect one’s life.

The inviolability of fundamental freedoms makes it abusive to want to use criminal law to limit these freedoms. Freedoms are not given by the state and therefore cannot be taken away or degraded by the state. It would then obviously be wrong to attempt to use electoral law to chill freedom of expression or degrade religious freedom, especially when the legislator does not remotely express such an intention.

The cleric’s statement was also characterized as “verbal or written threats to life or defamatory statements”, not protected by the right to freedom of expression and of the press. Again, this cannot be true. Nigeria is a democracy. It is probably more intolerance of opposing viewpoints than patriotism and loyalty to the Constitution to try to make the cleric’s statement feel like a threat or defamation. Pray, who is defamed here and what is defamatory in the statement? The offense of threat or its civil equivalent will only be established where the recipient of the threat reasonably believes that the maker of the threat is capable of carrying out the threat. So who believes that the cleric is the clerk of hell, charged with the duty of compiling the names of hell lovers? This allegation of threats and defamation is likely to discredit the law. We certainly don’t want a legal regime where a pastor or imam is too afraid to preach that sinners or those who betray their faith will go to hell. The truth or otherwise of this assertion is what religious freedom has taken away from political moderation. Humanity was once at this point. It is progress that the human race has moved beyond this style of governance.

The heart of this article is to make it very clear that the Elections Act 2022 did not nullify freedom of speech and religious freedom, nor the right to do anything within the law to defend the protection of these fundamental rights. However, these rights must be exercised with great caution, respect for the rights and religions of others and the duty to promote peace and harmony.

• Jayeoba writes via jayeobadeji@yahoo.com.