1. CONSTITUTIONAL SECULARISM AND FREEDOM OF
RELIGION IN NIGERIA; ANALYSIS OF ASIYAT
ABDULAKAREEM & Ors v. LAGOS STATE GOVERNMENT &
Ors (Unreported; Suit No. ID/151M/13)
BY
RUSSEL OSHIOKHAYAME ERAGA
FACULTY OF LAW
UNIVERSITY OF BENIN
BENIN CITY
SEPTEMBER 2015

2. 2
TABLE OF CONTENT
Title Page . . . . . . . . . . . i
Cover Page . . . . . . . . . . ii
Certification . . . . . . . . . . iii
Approval . . . . . . . . . . iv
Dedication . . . . . . . . . . v
Acknowledgement . . . . . . . . . vi
Table of Content . . . . . . . . . vii
Table of Cases . . . . . . . . . xi
Table of Statutes . . . . . . . . . xiv
Abbreviations . . . . . . . . . .
CHAPTER ONE: INTRODUCTION
1.1 Introduction . . . . . . . . . 8
1.2 Law and Religion . . . . . . . .
1.2.1 Law . . . . . . . . .
1.2.2 Religion . . . . . . . .
1.2.3 The Relationship between Law and Religion . . . .
CHAPTER TWO: CONSTITUTIONAL SECULARISM
2.1 Constitution . . . . . . . . . 22
2.2 Theocracy . . . . . . . . .

3. 3
2.3 Secularism . . . . . . . . .
2.4 States-Religion Models . . . . . . .
2.5 Comparative Analyses of Secular Constitutions . . . .
2.5.1 United States of America . . . . . .
2.5.2 France . . . . . . . . .
2.5.3 Turkey. . . . . . . . .
2.5.4 India . . . . . . . . .
2.5.5 Comment . . . . . . . .
2.6 The Nigerian State . . . . . . . .
CHAPTER THREE: CONCEPT OF RIGHTS
3.1 Fundamental Rights . . . . . . . . 61
3.2 Rights as Correlative of Duty . . . . . . .
3.3 Absolute Rights . . . . . . . .
3.4 Limitation of Rights . . . . . . . .
3.5 Proportionality of Limitation . . . . . . .
3.6 Right to Freedom of Religion . . . . . . .
3.6.1 Freedom of Religion as an Assemblage of Other Freedoms . .
3.6.2 Limiting the Freedom . . . . . . . .
3.7 Problem of Minority . . . . . . . . .
3.7.1 Accommodation of Religious Precepts . . . .

4. 4
CHAPTER FOUR: ASIYAT ABDULAKAREEM & ORS v. LAGOS STATE
GOVERNMENT & ORS
4.1 Facts . . . . . . . . . . 102
4.2 Analysis of the Ratio . . . . . . . .
4.2.1 Scope of the Right . . . . . . .
4.2.2 Proportionality . . . . . . .
4.2.3 Comments . . . . . . . .
CHAPTER FIVE: SUMMARY AND CONCLUSION
5.1 Summary . . . . . . . . . 114
5.2 Conclusion . . . . . . . . .

5. 5
TABLE OF CASES
A v. United Kingdom (1999) 27 EHRR 611
Adamu v. Attorney General, Borno State [1996]8 NWLR (pt. 465) 203
A.G. Lagos v. Hon Justice Dosunmu (1989) 3 NWLR (Pt 3) 552
Ahmad v United Kingdom (1981) 4 EHRR 126.
Asiyat Abdulakareem & ors v. Lagos State Government & ors (unreported) Suit No.
ID/151M/13
Baxter v. Laugley (1868) LJMC 15.
Bayatyan v. Armenia [2011] 23459/03
Board of Education of Kiryas Joel Village School District v. Grumet 512 U.S. 687 (1994).
Braunfeld v. Brown, 366 U.S. 59, 81 S.Ct. 1144, 6 L.Ed.2d (1961)
Buscarini and Others v. San Marino (1999) App. no. 24645/94
Cantwell v. Connecticut 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed 1213 (1940)
Church of the Lukunmi Babalu Aye Inc. v. Hialeah 508 U.S. 520 (1993)
Cole v. PC 443A [1936] 3 All ER 107
Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835
Dimitras and Others v. Greece, 2010 Application nos. 42837/06, 3237/07, 3269/07, 35793/07
and 6099/08.
Emmanuel Bijoe v. State of Kerala AIR (1987) S C 748
Everson v. Board of Education 330 U.S. 1, 67 S.Ct. 504 (1947)
Eweida & Ors v. The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and
36516/10.
Fawehinmi v Abacha [1996] 9 NWLR (pt. 475) 710
Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing,
(1999) 1 A.C. 6.
Hasan v. Bulgaria, Application no 30985/96, (2010) 24 EHRR 55.
Jakobski v. Poland [2010] 30 EHRR 417
Kalac v Turkey (1997) 27 EHRR 552.
Karaduman v Turkey (1993) 74 DR 93
Kokkinakis v. Greece, 1993 App. no. 260-A 25
Lee v. Weisman 505 U.S. 577 (1992).
Lemon v. Kurtzman 403 U.S. 602 (1971).
Lynch v. Donnelly, 465 U.S. 668 (1984)

6. 6
McCollum v. Board of Education 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed 649 (1948)
Metropolitan Church of Bessarabia v. Moldova Application no. 45701/99, (2002)
Niklnikoff v. Archbishop of Russia Orthodox Greek Church, 1422MISC 894: 225 NYS 653.
O.F. Agoreyo & ors v. C.A. Olatunji & ors Unreported, suit no. M/531/89
Ojeigbe & anor v. Ubani & anor [1961] All NLR 277
Osawe & ors v. Registrar of Trade Unions (1985) NWLR (Pt 4); (1985) 5 S.C. 343.
Paddignton v. Bates [1960] All ER 660.
Peter Obi v. INEC SC.123/2007, 3
R (S.B.) v. Governors of Denbigh High School [2007] 1 AC 100.
R v. Home Secretary, ex p Brind [1991] 1 AC 696.
R v. Jones [1986] 2 S.C.R 284
R v. Oakes (1986) 1 S.C.R. 103
R. (Williamson) v. Secretary of State for Education and Skills [2005] 2 AC 246
Refah Partisi (The Welfare Party) & ors v. Turkey, App no 41344/98
Registered Trustees of the Rosicrucian Order, Amorc (Nigeria) v. Awoniyi & ors [1994] 7
NWLR (pt. 355) 155
Reynolds v. United States 98 U.S. 145, 25 L.Ed 244 (1879)
S. v. Mambolo, 2001 (3) S.A 409(CC)
Sahin v. Turkey, Application no. 44774/98
Sherbert v. Verner 374 U.S. 398 (1963)
Sinan Isık v. Turkey, 2010 App. no. 21924/05.
Sunday Times v. United Kingdom, App. No. 6538/74, 2 EHRR 245 (1980).
Valsamis v. Greece, (1997) App. No. 21787/93
Walz v. Tax Commission 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)
Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970)
West Virginia State Board of Education v. Barnette 319 U.S. 624, 63 S.Ct 1178, 87 L.Ed
1628 (1943)
Wisconsin v. Yoder 406 U.S. 205 (1972)
Zobrest v. Catalina Hills School District 509 U.S. 1 (1993)
Zorah v. Clauson, 343 U.S., 306, 72 S.Ct. 679,96 L.Ed. 954 (1952)

7. 7
TABLE OF ABBREVIATIONS
A.C - Appeal Cases
AIR - All Indian Reporter
All E.R - All England Reports
All N.L.R - All Nigerian Law Report
C.L.R - Commonwealth Law Report
D.R - Decisions and Reports of the European Commission of
Human Rights
ECtHR - European Court of Human Rights
E.H.R.R - European Human Rights Report
K.B - King‟s Bench
L.Ed - Lawyers‟ Edition, Supreme Court Reports
LJMC - Law Journal Magistrate‟s Cases
N.W.L.R - Nigeria Weekly Law Report
S.A - South African Law Reports
S.C - Supreme Court Report (Nigeria)
S.C.R - Supreme Court Reports (Canada)
Q.B - Queen‟s Bench

8. 8
CHAPTER ONE
1.1 INTRODUCTION
The idea that humans were in general entitled to certain rights; a movement that gained
prominence after the Second World War, had its origin in the Natural Law philosophy which
drew on religious belief, and later human intellect (reason) to justify their position on these
rights.1
This position is testified to by their being contained in the constitutions and
documents of older democracies like Britain,2
United States,3
and France4
even before the
war.
After the war, and the horrors it saw, there was an increased clamour for the movement of
these entitlements from the realm of Natural law and its persuasions to the realm of Positive
law. This was to give them a sort of cast in stone character not subject to the whims of
political authorities. This was the background to the United Nations Declaration of Human
Rights adopted in Paris by the United Nations General Assembly in 1948. The Declaration5
became the first international statement recognising these rights as belonging to every human
being6
with the goal of making government meet certain standards of behaviour in treating
1.
Adaramola F., Jurisprudence ( Durban: Lexis Nexis, 2008), 20.
2.
Magna Carta 1215 and later The Bill of Rights of 1689.
3.
The Bill of Rights in the United States Constitution (1791).
4.
The French Declaration of the Rights of Man and of the Citizen of 1789.
5.
Declarations are not always legally binding. The term is deliberately chosen to indictate that the
participants did not intend to create binding obligations but merely to declare certain aspirations. See
Amos Enabulele and Bright Bazuaye, Teachings on Basic Topics in Public International Law (Benin-
City: Ambik Press, 2014), 116
6.
The Declaration is composed of 30 articles, provides for instance, „All human beings are born free and
equal in dignity and rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood‟ - Article 1 of the Universal Declaration of Human Rights.

9. 9
persons within their jurisdiction. Thereafter came their inclusion in many regional
agreements7
and the constitutions of many emerging constitutions.8
Over the past six decades, the international community has proceeded from the initial step in
the Universal Declaration of accepting a basic moral obligation to respect and promote the
observance of human rights and fundamental freedoms, through successive stages of their
codification and enumeration, to the recent efforts to provide for their implementation
mechanisms for the effective realization of these rights.9
In Nigeria, the idea that man deserved certain rights necessary for ordinary living, came as a
result of the recommendations of the Willinks Committee 1957 set up to inquire into the fear
of the minority with a view to allaying them. This saw their inclusion in the Nigerian
Independence Constitution of 1960.10
However, with the enactment of this rights came incidences of alleged encroachments and
infringement by government.11
The question then became; how far were rights protected,
were rights absolute to what extent could they be validly limited? In 21st
Century Nigeria,
7.
African Charter on Human and People‟s Right 1981, European Convention on Human Rights 1950,
American Convention on Human Rights 1961.
8.
Part III of the Indian Constitution 1949, Chapter II of Kenya Independence Constitution 1963, Chapter
III of Kuwait Constitution 1961, Chapter III of Nigeria‟s 1960 Independence constitution.
9.
The efforts of the International Criminal Court in trying world leaders accused of genocide and other
war crimes. The European Court of Human Rights (ECtHR) established by the European Convention
on Human Rights (1950) to hear applications alleging breaches of rights guaranteed under the
Convention. Protocol of the African Court on Human and People‟s Right (2004) setting up the Court to
enforce the African Charter.
10.
Sections 17-32 of the 1960 Constitution. Protected rights included; right to life (s.17), dignity of person
(s.19), freedom of conscience (s.23), freedom from discrimination (s.27).
11.
The Federal Military Government State Security (Detention of Persons) Decree No. 2, 1984, under
which anyone could be detained by the military government for an indeterminate period. Public
Officers (Protection Against False Accusation) Decree No. 4, 1984, which led to the detention of two
of Guardian Newspaper Employees for an article they wrote on the appointments to be made by the
Military government. Academic Staff Union of Universities (Proscription and Prohibition from
Participation in Trade Union Activities) Decree no.2 1988.

10. 10
these questions seem not to have been answered as many still cling to the notion of an
absolute right and the courts have not done enough in justifying the limitations that may be
constitutionally placed on rights.
This work seeks to answer these questions by addressing the justifiable limitations that are
necessarily placed on the full realisation of rights. It does this by examining the fundamental
distinction between recognising the scope of constitutional rights and their limitation.
However, the purview of this work is limited to the treatment of the fundamental right to
freedom religion.12
It would discountenance the opinion of many who seek an unrestrained
exercise of their rights.
This work is the product of legal thought ignited by the decision in Asiyat Abdulakareem &
ors v. Lagos State Government & ors13
, where the Lagos High Court upheld a uniform
regulation of the state government for public schools, thereby banning the use of head-
covering (hijab) at such schools.14
It would therefore focus on the justifiable grounds for the
limitation of the fundamental right to freedom of religion under a secular constitution,
particularly, the manifestation of religious belief. It would appeal to comparative law in other
to expose instances of justified limitations of the right and the rationale behind such
limitation to give the work the practicality it needs to be a useful discourse.
For the purpose of carrying out this task, this work would proceed in the following manner;
Chapter 2 would discourse the concept of secular constitution. It would also examine
concepts like constitution, theocracy. The chapter analyses the traits common to secular
12.
Guaranteed under s.38 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
13.
(unreported) Suit No. ID/151M/13, Lagos State High Court, Ikeja Divison.
14.
The use of hijab has caused controversies in some states: Femi Makinde, “Osun: Muslims warn CAN
against opposition to hijab,” last modified june 23, 2015, http://www.punchng.com/news/osun-
muslims-warn-can-against-opposition -to-hijab/

11. 11
countries and the effect of such secular stance on the right to freedom of religion. It would
explore the various State-religion models in practice across the globe. The chapter would also
consider those religious precepts which have been permitted despite their clash with legal
provisions.
Chapter 3 examines the concept of rights in general, strict rights. It discusses the place of
fundamental rights under different International instruments and its place under the
Constitution of the Federal Republic of Nigeria (as amended). It would review the criteria for
determining the scope of constitutional rights and what limitations may affect their full
realization. The chapter finally analyses the doctrine of Proportionality in balancing rights
and their limitations. It would adopt Aharon Barak view that proportionality does not suggest
a neutral approach towards constitutional rights, but is based on the need to protect them.15
It
would also discuss the right to freedom of religion. It would reveal that the scope of the right
covers a multitude of freedoms. It would pick one of these freedoms: manifesting religious
belief in action, and examine the justification for its limitation such as the interest of the
public and other competing interests.
As a work influenced by the decision in Abdulakareem & ors v. Lagos State Government &
ors,16
chapter 4 would critically analyse the ratio of the case with the aid of judgements from
foreign jurisdiction like that of R. (S.B.) v. Governors of Denbigh High School17
and Sahin v.
Turkey18
and propose issues that subsequent judgement have to address.
Chapter 5 would witness the conclusion of this work.
15.
Aharon Barak, Proportionality: Constitutional Rights and their Limitations ( UK: Cambridge
University Press, 2012), 4.
16.
Supra n.13.
17.
[2007] 1 AC 100.
18.
Sahin v. Turkey, Application no. 44774/98, judgement of 10 November 2005.

12. 12
In the discussions that would follow in the subsequent chapters of this work, one noticeable
strain of thought would feature; the relationship between law and religion. An examination of
this dynamic relationship is essential to this work
1.2 LAW AND RELIGION
1.2.1 LAW
Much effort has been spent towards providing a universally acceptable definition of law but
with little sign of attaining that objective.19
The reason for this may not be hard to come by.
Some have put the blame on the nature of words which make definitions no more than
approximation. Also the choices of definition is largely influenced the ideology of the
chooser. For instance, the Positivist and Natural Law scholars have been locked in arguments
on the place of morality in the content of law.20
Some have gone further to query the
necessity of definition as Ayer says „inquiry into the use of words can equally be regarded as
inquiry into the nature of the fact which they described‟.21
Despite these issues, legal scholars have not relented in proffering their idea of the law, and,
more often than not, stressing some functions of law more than others. The reason for this is
underscored by the importance of definitions; in that they serve to illuminate our
understanding. So that even where they are approximations they help in the light of the
functional exposition to provide an overall picture and emphasis certain key criteria. Lloyds
and Freeman‟s words are instructive here; definitions should be treated as „summing up of
19.
„The concept of law fulfils a central role in jurisprudence...no simple definition will satisfy us in the
absence of a clear grasp of the ramifications of the concept throughout its domain and an acceptable
criterion of adequacy.‟ P.M.S. Hacker Law, Morality and Society (ed. Hacker and Raz, 1997),5
20.
This work does not consider the controversy between the conroversy between these schools of thought.
21.
A. J. Ayer, The Problem of Knowledge (1956), 2-3, Cf Lloyd‟s Jurisprudence

13. 13
discussion than as a series of axioms from which all subsequent conclusions may be logically
inferred.‟22
Black‟s Law Dictionary defines „the regime that orders human activities and relations
through systematic application of the force of politically organised society, or through social
pressure backed by force, in such a society; the legal system.‟23
Llewellyn, in his book Bramble Bush defined law as „what official do about disputes is...the
law itself.24
Oliver Wendell Holmes defined law as „the prophecies of what the court will do... are what i
mean by law.25
Kelsen sees law as „...a coercive order, that is that law seeks to brng about a specific mode of
human conduct by attaching to the opposite mode of conduct as sanctions a coercive act
(such as), the forcible taking of life, of freedom or of economic or other value.‟
This definition identifies law as a command system prescribing acceptable conduct and also
identifies some of the ways law commands obedience. Salmond joins in agreement when he
says that law, includes any standard or pattern to which actions are or ought to be performed.
Lauterpacht on the other hand sees law as „the maximum of socially obtainable morality.‟ A
problem about this definition is that it does not take into consideration such amoral laws
(without moral content) which are found in rules of court.
Adaramola sees law as
22.
M.D.A. Freeman Lloyd‟s Introduction to Jurisprudence 8th
ed. (London: Sweet & Maxwell, 2008),37
23.
Black‟s Law Dictionary 9th
edition ed, Bryan A. Garner (New York: West Publishing Co., 2009), s.v.
“law”
24.
M.D.A. Freeman Lloyd‟s Introduction to Jurisprudence 8th
ed. (London: Sweet & Maxwell, 2008), 1
25.
Ibid no.22

14. 14
a normative psychological instrument of social management, social
motivation, social control and social change, produced from practical
social necessity by which a politically organised society influences human
conduct within its jurisdiction.26
Despite the perspective of the varied definitions, it is evident that laws procedes with the
authority and power of the law giver and related penalties for failure to comply with the law.
Also, these definitions identify some functions of law in the society. Kelsen in his General
Theory of Norms27
identified four of these functions of law. For him, law performed the
following functions:
1. Command function; to prescribe (as opposed to describe) by expressing how a certain
behaviour ought to be.
2. Permitting function: according to him, this function could be used in a negative or
positive sense. Behaviour is permitted if it is neither commanded nor forbidden. In the
negative sense, it means that no valid norm exist which forbids, positively permits or
empowers this behaviour. The behaviour here is not captured in any law.28
In the positive sense, permitting would also obtain if the validity of a norm
prohibiting a certain behaviour (i.e. commanding the omission of this behaviour) is
restricted by another, derogating norm. He gives the example of a norm commanding
one to refrain from killing and another norm restricts the validity of this norm by
making an exception for cases of self-defence. Killing in self-defence is then
permitted.29
26.
Adaramola F., Jurisprudence (Durban: Lexis Nexis, 2008), 9.
27.
General Theory of Norms (New York: Claredon Press, 1991), 96.
28.
Ibid, 98

15. 15
3. Empowering function: here law confers legal power on certain individuals to posit
and apply norms.30
4. Derogative function: this involves the repeal of the validity of a norm by another
norm. A norm does not lose its validity by the act of its derogation but because the
time for which it is to be valid has run out, or because it is no longer actually observed
and applied (ie it has lost its effectiveness, which is a condition for its validity).31
Kelsen goes on to say that all legal norms have the same structure and function and are
addressed not to the subject of the legal system but to the officials and direct them to impose
sanctions under certain conditions32
. This position Michael Hartney does not subscribe to. He
is of the opinion that legal norms do not impose legal duties on the officials to whom they
addressed but on the persons liable to the sanction.33
Joseph Raz on the other hand, holds that law performs two broad functions; normative and
social function.34
Under its normative function, law performs both determinate and indeterminate guidance.
Law brings about determinate guidance by making the performance of a certain action the
condition for an unpleasant consequence, thereby providing a reason for avoiding certain
actions. Law brings about indeterminate guidance when a law makes the performance of an
action sometimes more desirable and sometimes less desirable than it would otherwise be.
29.
Ibid, 99
30.
Ibid. 102
31.
Ibid.106
32.
Ibid. xxii
33.
Ibid. xxv
34.
Joseph Raz “On the Function of Law.” In Oxford Essays in Jurisprudence 2nd
series, ed. A.W.B.
Simpson (London, Claredon Press, 1973), 279-304.

16. 16
Raz ties the social function of the law to the extent to which laws are obeyed and applied and
on the effect of the existence of laws on human behaviours and attitudes. Under the social
function, law serves to;
a) Preventing undesirable behaviour and securing desirable behaviour
b) Providing facilities for private arrangement between individuals
c) The provision of services and the redistribution of goods
d) Settling unregulated disputes
e) Providing procedures for changing the law
f) Procedures for enforcing the law.35
For the purpose of this work Adaramola definition of law is adopted as this work focuses on
the social effects of law particularly as an instrument of social management achieved by its
normative and empowering character.
1.2.2 RELIGION
The term religion is one common to everyday life, used to refer to a person‟s belief in a
supreme being. Despite its everyday use, in all facet of society, yet it is a herculean task to
get an acceptable definition.36
One of such reasons for the absence of an acceptable definition
is identified by Andras and Renata, that a definition premised on the worship of God or the
creator which satisfies Judeo-Christian and Muslim perspective leaves out Buddhism and
Taoism.37
35.
Ibid. 298
36.
Latham C.J. in Adeliade Company of Jehovah‟s Witnesses, inc v. The Commonwealth (1943)67 CLR
116

17. 17
Etymologically, religion comes from the Latin word „relegare‟ meaning to bind what is
broken. This literal translation suggest that religion is something which is redemptive in its
healing quality,38
repairing the broken bonds between human and gods.
Oxford dictionary defines religion to mean „the belief in the existence of a god or gods, and
the activities that are connected with the worship of them.‟39
Black‟s Law dictionary defines religion as;
a system of faith and worship usually involving belief in a supreme being and
usually containing a moral or ethical code especially, such a system recognized
and practiced by a particular church, sect or denomination.40
These dictionary definitions stress two aspects of religion; faith/belief and worship. The
belief usually located in the content of what they profess, while worship is evident in their
rituals, sermons, commemoration, and meditations.
Despite the problems in defining religion, scholars have not been deterred in their efforts. A
caveat is to the effect that some of the definition are coloured by the bias of the definer.
Emmanuel Kant has taken the position that „religion is the recognition of our duties as divine
commands.‟ This definition leaves out those aspects of religion earlier mentioned: belief and
worship.
37.
Andras Sajo, Renata Utiz, “Freedom of Religion,”in The Oxford Handbook of Comparative
Constitutional Law, ed. Michel Rosenfeld and Andras Sajo (New York, Oxford University Press,2013),
909-928
38.
Li-Ann Thio, “Control,Co-Optation and Co-Operation: Managing Religious Harmony in Singapore‟s
Multi-Ethnic, Quasi-Secular State,” Hastings Constitutional Law Quarterly vol.33 no.2&3, 2006 197-
253.
39.
Oxford Advanced Learner‟s Dictionary, 8th
ed., s.v. “religion.”
40.
Black‟s Law Dictionary 9th
edition, ed. Bryan A. Garner (New York: West Publishing Co., 2009), s.v.
“religion.”

18. 18
According to Wiles J., religion;
is it not what a man honestly believes in and approves and think it is his
duty to inculcate in others whether with regard to this world or the next? It
must, i think include the principle of gratitude to an active power who can
confer blessings.41
For Callowy, religion „is a man‟s faith in a power beyond himself where he seeks to satisfy
the emotional needs and stability or success of life which he expresses in the act of worship
and service.‟42
His definition emphasis the emotive psychological effect of religion, in that it
brings a sense of security by claiming to provide answers to questions that have plague the
thoughts of man like where did man come from; what happens at death, amongst others.
Communist on the other hand questions the truth as well as the value of religion and as such
are hostile to it which they consider superstition. Their position is well represented Karl
Marx‟s famous definition of religion as „the opium of the poor and an obstacle to the growth
of a classless society.‟43
In Niklnikoff v. Archbishop of Russia Orthodox Greek Church, religion was defined as;
Man‟s relation to divinity, to reverence, worship, obedience and submission
to mandates and precepts of supernatural or superior beings. In its
broadest sense, it includes all forms of belief in the existence of volition,
imposing rules of conduct, with future rewards and punishment. Bond
41.
Baxter v. Laugley (1868) LJMC 15
42.
Obiajiaku I.O. “ Extent of the Right of the Freedom of Religion and Worship under the 1999 Nigeria
Constitution,” University of Benin: Journal of Private and Property Law 3, 2012.
43.
Ibid.

19. 19
uniting man to God and virtue whose purpose is to render God worship due
to him as a source of all beings and principle of government of things44
.
The above definitions, recognises that free will is necessary to a true religious experience. It
identifies that religion sometimes imposes some obligations on its adherents motivating
obedience through future rewards and punishment.
This work identifies with the above definition in Niklnikoff v. Archbishop of Russia Orthodox
Greek Church particularly the idea that religion obliges its adherents to observe its precepts;
for this is the source of the conflict (that not all religious precepts can be carried out in a
secular democracy) sought to be addressed in this work
1.2.3. THE RELATIONSHIP BETWEEN LAW AND RELIGION
It was once a popular opinion to hold that law had its origin in religion and both were
indistinguishable;45
the truthfulness of this is still subject to intellectual debates as very little
of the complex commercial and property law of contemporary industrial society can be tied to
religious precepts.46
However, before the religious unity of Europe was broken, it was not
uncommon to find many societies with only one religion. In such societies, the belief of the
ruler was foisted on the people47
, with the enactment of laws set to encourage and promote
unity by prescribing some orthodox form of worship.
44.
1422MISC 894: 225 NYS 653, 663. reported by Dominic Asada, “The Right to Religion in Nigeria,”
Confluence Journal of Jurisprudence and International Law, 4 no.1 (2011): 12.
45.
Dias R.M.W., Jurisprudence 4th
ed. (London: butterworths, 1976), 536.
46.
Adamson E. Hoebel, The Law of Primitive Man (Massachusetts: Harvard University Press, 1967), 257.
47.
Egyptian Pharoah Amenhotep IV (ca. 1385-1336 B.C.E.) defied the tradition of polytheism by
elevating Aten (the Sun god) to a position of supremacy over all other gods thereby imposing
monotheism. He later changed his name to Akhenaten in honour of Aten. See Gloria K. Fiero,
Landmarks in Humanities (New York: McGraw Hill 2006), 20.

20. 20
When the religious unity of Europe was broken as a consequence of the Protestant
Reformation, the authorities of many states tried to ensure religious unity through legal
means and governmental. The result was massive persecution of those with a contrary
belief.48
States were rife with religious protest49
and wars were fought along religious
divides.50
Even in states where the people willingly adhered to a sanctioned religion,
persecutions were still cared out by fanatics against fellow believers whom they denounced
as unbelievers because they did not subscribe to some of the tenets held fast by the fanatics.51
The end result was a thorn continent as many would not yield to change because religion
engages the deepest passion of the believer.
However, as enlightenment wore on; which saw the end of these conflicts, it was discovered
that, there was no political point in promoting an orthodox belief by the use of compulsion as
such form of religious intolerance always led to conflict, and that the unity could be achieved
in an atmosphere of tolerance as seen in the examples of ancient multi confessional states.52
Also, that there was little religious point in enforcing the adoption of a particular religion for
a religion can only save the man who really and sincerely accepts it, not just anyone who
48.
The killing of persons considered heretics in the Middle Ages bears testimony to this.
49.
The Suppression of Religious Houses Act 1535, which caused the dissolution of monasteries set up by
the Roman Catholic Church in England let to the 1536 Pilgrimage of Grace, a religious protest
undertaken by some 30,000 people loyal to the Catholic Church.
50.
The Holy League, an alliance between Pope Julius II, Ferdinand of Spain and the Venetians formed in
1511 to expel the French from Italy is an example of the religious alliances form after the Church lost
its hold in Europe. See Niccolo Machiavelli The Prince (New York: Bantam Book, 1981), 134.
51.
Hunwick gives example of the Kharijite Muslim Sect, who for the purpose of Jihad (which was
supposed to be cared out against unbelievers), held that Muslims who commit grave sins like adultery
or wine drinking ceased to be Muslims. Those who didn‟t share this view (the vast majority of the early
Muslims) were considered unbelievers. See J.O. Hunwick “The Nineteenth Century Jihads,” in A
Thousand Years of West African History, ed. J.F. Ade Ajayi and Ian Espie (Lagos: Thomas Nelson ltd,
1965), 267.
52.
Egypt was in peace despite its Polytheism. It returned back to polytheism after the death of Pharaoh
Amenhotep. Fiero, “Landmarks,” 20.

21. 21
pays outward obedience to it.53
From this consideration flowed religious freedom, as much
injustice is done by preventing a person from practising the religion he truly believes in.
In other that religious freedom be protected, the law became separated from religion in the
conception of Secular state. Here, the law while accommodating various religious beliefs,
does not favour nor endorse any specific religion. These conclusions have found their way
into the constitutions of many countries including Nigeria.54
Flowing from the above relationship, it becomes clear that, religious freedom is anchored on
the separation of law from religion in the conception of secular states. This separation does
not imply that religion should be stamped out as the communist would demand, or that the
law should never legislate on any subject which would agree with certain religions and
conflict with others (so long as it can be justified on a purely secular ground), but that law
should never impose an orthodoxy or adopt a religion. More on this relationship would be
said in chapter two.
53.
See J.M. Elegido, Jurisprudence (Ibadan: Spectrum Law Publishing, 1994), 368.
54.
Section 10, 1999 Constitution (as amended) provides „The Government of the Federation or of a State
shall not adopt any religon as State Religion.‟

22. 22
CHAPTER TWO
2.0 CONSTITUTONAL SECULARISM
In Chapter One, it was identified that the secular state was an off shoot of the efforts to keep
religion from the state sphere, in other that they do not taint the other. Here we take a look at
what such seperation portends for the state as well as for religious freedom. We therefore
examine what it means for a constitution to be theocratic, and secular.
2.1 CONSTITUTION
Black‟s Law Dictionary, defines Constitution as:
The fundamental and organic law of a nation or state that establishes the institutions and
apparatus of government, defines the scope of governmental sovereign powers, and
guarantees individual civil right and civil liberties. 2. The written instrument embodying this
fundamental law, together with any formal amendments.55
The definition above sees constitution from two different senses, the abstract and the
concrete. The constitution of a state in the abstract sense is the system of laws, customs and
conventions which define the composition and powers of organs of the state, and regulates
the relations of the various state organs to one another and to the private citizen. A
constitution in the concrete sense is the document in which the most important laws of the
constitution are authoritatively ordained.56
55.
Black‟s Law Dictionary 9th
edition, ed. Bryan A. Garner (USA: West publishing, 2009), s.v.
“Constitution”

23. 23
Professor K.C. Wheare defines constitution as ...the whole system of a country, the collection
of rules which establishes and regulates the government.57
The constitution of any nation has been described as its basic or fundamental law and is
sometimes (wrongly) equated to the „Grundnorm.‟58
It is a document that acts as the fountain
from which all other laws governing the relationship in the polity derive their authority,
strength and validity.59
Thomas Pine in an old definition says;
A constitution is not the act of a government, but of a people constituting a government. And
a government without a constitution is power without right... a constitution is a thing
antecedent to a government and a government is only the creature of a constitution.60
From this it can be discerned that a constitution is something which is prior or as Pine said,
antecedent to government. The Constitution gives government legitimacy, defining their
powers to act thereby regulating the powers to be exercised and the manner in which they are
exercised.
The House of Lords Committee on Constitution had this to say:
The set of laws, rules and practices that create the basic institutions of the state and its
components and related parts and stipulate the powers of those institutions and the
56.
Paul Jackson and Patricia Leopold O. Hood Phillips Constitutional and Administrative Law 8th
ed.,
(London: Sweet & Maxwell, 2001), 5.
57.
Hilaire Barnett, Constitutional and Administrative Law 9th
ed., (London: MPG Books Group, 2011), 7.
58.
According to Kelsen in his book Pure Theory of Law, the Grundnorm is not the constitution. It is an
abstract element, an initial hypothesis, a presupposition that an effective state of affairs be obeyed. See
Adaramola Folorunsho, Jurisprudence, 4th
ed., (Durban: Lexis Nexis Butterworth, 2008).
59.
Bola Ajibola, “The Federal Attorney-General: Powers, Duties and the Administration of Law.” NIALS
Law Series no.2 (1989)
60.
Barnett, Constitutional and Administrative Law, 7

24. 24
relationship between the different institutions and between those institutions and the
individual‟ is the constitution.61
It is clear that the constitution performs functions of allocating power and duties and
determining the relationship between the institutions of the state. It fulfils two functions;
those of defining and evaluation.62
The constitution will both define the manner in which the
rule in question sets a standard of behaviour which is regarded as correct and which is
expected to be adhered to by those to whom the rule is addressed. It performs the evaluative
function by providing through its normative function, a standard through which independent
acts can be judged. The Constitution as the foundation of the legal order, serves therefore to
identify organs of government, the limits of their powers, acting as a touchstone for testing
the legality of government policies and actions, and also prescribes or guarantees rights63
of
citizens and the duties they owe to the society.
2.2 THEOCRACY
Webster‟s Comprehensive Dictionary defines theocracy to mean;
1. A state, polity, or group of people that claim a deity as its ruler…
2. A government of a state by a God or by a priestly class claiming to have divine authority as
in the Papacy.64
61.
House of Lords Paper II (2001-2) Ch. 2
62.
Barnett, 7
63.
The Natural Law theorist have been consistent in claiming that constitutions or laws in general do not
give or bestow fundamental rights as they are inherent in man by nature. What the state does by
recognising them, is guaranteeing their protection. See M.D.A. Freeman, Lloyds Jurisprudence, 9th
ed.,
(UK: Sweet & Maxwell, 2009).

25. 25
Black‟s Law Dictionary aligns with the above dictionary definition when it says that
theocracy means;
Government of a state by those who are believed to be or represent that they are acting under
the immediate direction of God or some other divinity. 2. A state in which power is exercised
by ecclesiastics.65
Both definitions identify theocracy to mean a government controlled by persons exercising
religious authority i.e., by people who serve in dual capacity as religious ruler and head of
state.
A constitution is said to be theocratic not so much by the fact that it prescribes rule by
ecclesiasts, but by the fact that it picks or selects a religious belief as the foundation of the
legal system created. Such constitutions provide for a religion as the established or state
religion. For instance in Saudi Arabia, Article 1 of the Basic System (of Government),66
provides, „the kingdom of Saudi Arabia is an Arab and Islamic Sovereign State. Its religion is
Islam, and its constitution, the Holy Quran and the prophet’s Sunnah. Its Official
Language is Arabic and it‟s Capital, Riyadh.‟67
Similarly, is the provision of Article 1 of
Qatar Constitution which provides amongst others that ...its religion is Islam and Islamic
Shari ‟a Law shall be the fundamental source of its legislation. This is a succinct outline of
the state founding its identity on a particular religion.
64.
The New international Webster‟s Dictionary of The English Language 2010 ed., ( USA: Typhoon
Media Corp, 2010), s.v. “theocracy.”
65.
Black‟s Law Dictionary 9th
edition, ed. Bryan A. Garner (USA: West publishing, 2009), s.v.
“Theocracy”
66.
Decree A/90 of 28-8-1412AH (1 March, 1992). It is regarded as one of Saudi Arabia‟s constitutional
documents alongside The Provisional System and The System of the Majlis al- Shoura promulgated by
King Fahd Ibn Abdulaziz Al-Saud.
67.
Emphasis mine.

26. 26
In theocratic societies religion becomes the justification for the whole legal system.
Everything must be seen as sanctioned in the religion. There is no separation of law and
religion in those societies, but a fusion of it, sometimes in the same person. Such religions
that have often become state religion are those which are referred to as „Book Religion,‟68
which have legal systems of their own regulating ordinary life as well as religious affairs and
make very wide and overreaching claims to regulate secular rulers according to moral or
disciplinary codes of their own.69
It becomes clear that the adoption of a state religion in the constitution of the multi-religious
state portends danger for persons within that jurisdiction with a contrary belief, as such
constitution do not always provide for nor recognise the right to freedom of religion.70
Such
situations leave no room for non-conformers.
2.3 SECULARISM
The word „Secular‟ comes from the Latin word „saeculum‟ which is used to denote a great
length of time as in the phrase „saecula saeculorum‟ (forever and ever).71
This etymological
meaning is clearly different from what it has come to mean in present times.
68.
Dhokhalia, R.P. “The Human Right to Religious Freedom: Problems of Definition and
Effective Enjoyment.” The Calabar Law Journal 1, no. 1 (1986): 91-128.
69.
Herbert Stroup, “Church and State in Confrontation” (1967)136-152, op. cit Dhokhalia, Human Right
to Religious Freedom
70.
Iran provides a curious example here. After providing in Article 1 and 12 of the 1979 Constitution (as
amended), the recognition of Islam and Quranic justice as the basis of its form of government, it
recognises in Article 13, the existence of Zoroastrian, Jewish and Christian Iranians are the only
recognised religious minorities, who within the limits of the law are free to perform their religious rites
and ceremonies, and to act according their own canon in matters of personal affairs and religious
education. What is not clear is how the State would greet new religious minorities.
71.
Michael Hill, A Sociology of Religion,(London: Heinemann Educational Books, 1973), 229.

27. 27
Secularization has been given defined as „a process whereby religious thinking, practise and
institutions lose social significance.‟72
By this is meant, that previously accepted symbols,
doctrines and institutions lose their prestige and influence, and the end point of such a process
would be religion-less society.
Larry Shiner identifies six uses of the word secularization, but of significance is its use to
denote „the disengagement of society from religion or to the differentiation of religious ideas
and institutions from other parts of the social structure.‟ Here, instead of religions function
being that of the whole society, it becomes increasingly a matter of private choice,73
restricted
to the sphere of religiously interested participants. Religion loses its public role and as a
corollary, society looks elsewhere for the source of its authority.
Secular [adjective] is defined by Black‟s Law Dictionary as, „worldly, as distinguished from
spiritual.‟74
When used to describe a constitution it simply refers to a constitution whose
validity is not predicated on any religion. Here, the constitution protects the freedom of
religion by not establishing or enthroning a state religion. Such constitutions prohibit the
recognition of any religious organisation. The constitution maintains this non recognition not
because it is oblivious to the existence of religious organisations but because it is necessary to
maintaining its neutrality as recognition, even without establishment leads to the creation of a
privileged position for the religion so recognised. A ready example of this kind of
constitution is that of the United States of America, where the First Amendment provides that
„Congress shall make no law respecting an establishment of religion or prohibiting the free
72
Bryan Wilson, op cit, Michael, A Sociology of religion, 229.
73.
„The Privatization of Religious Beliefs and Actions,‟ B.B. Hallahmi, “The return of Martyrdom:
Honour Death and Immortality,” in Religious Fundamentalism and Political Extremism, ed. Leonard
Weinberg and Ami Pedahzur (London: Frank Cass, 2004).
74.
Black‟s Law Dictionary 9th
edition, ed. Bryan A. Garner (USA: West publishing, 2009), s.v. “secular.”

28. 28
exercise thereof...‟75
(emphasis mine). Similarly, is Article 1 of Constitution of France 1958
(as amended), which provides; „France is an indivisible Secular, democratic and social
republic, it assures the equality of all citizens before the law without distinction of origin,
race or religion. It respects all beliefs.‟
What these constitutions seek to provide is to remove government intervention in religious
affairs so as not to corrupt religious teachings and also to prevent government powers from
being used to further religious and sectarian interest.
Secularism is not atheism. Atheism is a lack of belief in gods. Though, atheists have an
obvious interest in supporting secularism, secularism itself does not seek to challenge the
tenets of any particular religion or belief, neither does it seek to impose atheism on anyone.
Secularism simply provides a framework for a democratic society, for ensuring equality
throughout society- in politics, education, the law and elsewhere, for believers and non-
believers alike.
The origin of secularism is founded on liberalism76
and equality. In a time of conflict in
many countries between law and religion, liberalism presented itself as a third way of
organising society.77
Liberalism has three central premises:
1. Belief in the intrinsic and ultimate worth of the human individual;
2. A view of the state‟s role as maximising human dignity, self-fulfilment and autonomy,
while minimising interference with individual moral choice; and
75.
Also, Article VI of the American Constitution goes further to prohibit religious test from being required
as qualification to any office or public trust.
76
Nadia Merhi, “Unveiling the Basis of Human Rights” University College London Review no. 12
(2005): 127-143.
77
Laborde C., “On Republican Toleration” (2002) 9(2) Constellation 167

29. 29
3. The belief that the state and the law should be neutral as to particular conceptions of the
good life.
Due to the neutrality of the state under the liberal model towards the competing and
conflicting conception of the good life, the state needed to guarantee that individuals would
be free to formulate and seek their own conception of life.
States which are beset by ethnic or religious conflicts face the challenge of danger to their
very political existence if they do not consolidate the unity of the society around the nation
principle, hence their adoption of the secular constitutions. Religion was also to gain from
this secular stance as without proper separation, the state will divert religious organisations
and its tenets for its own purposes. It will not respect freedom of opinion and state power will
become factional and divisive. Thus, separation from the state unburdens religion.78
Despite the arguments above, not every state accepts the secular philosophy as some may
claim it weakens or destroys its traditional religions which govern the life and culture of a
predominant proportion of its population. Brennan J. does not accept this, for he has
explained that if the secular state helps religion, then it is in danger of corrupting the sacred;
the secular powers capture the sacred.79
When the state political process favour one religion
over another or gives tax support to religion, the state creates political insiders and outsiders,
and bitter resentment of one religion against another or against civil government, which leads
to passionate intolerance, fanatical reactions and even to a breakdown of civil government.
78.
Andras Sajo and Renata Utiz, “Freedom of Religion,” in The Oxford Handbook of Comparative
Constitutional Law, ed. Michael Rosenfeld and Andras Sajo, (New York: Oxford University press,
2013), 924
79.
Lynch v. Donnelly, 465 U.S. 668 (1984) (Brennan J dissenting)

30. 30
The secular state is also founded on equality.80
Freedom of religion in any society can exist
only on the premise of the equality in the enjoyment of this freedom. Any reason to treat
different religions differently imports all kinds of invidious distinctions. Any discrimination
in a multi-religious society corresponding to the differences raises issues of reasonableness
and justice. Permissible discrimination is a reverse side of the notion of equality before the
Law.81
In the secular state the law permits the freedom to speak out what one believes in, or
to preach, practise and worship as one chooses, and the social and legal system guarantees
similar freedom to all without any distinction and up to the limit that no crime of sedition or
blasphemy or the tort of slander is committed. Only in a secular state does one truly enjoy the
right to religious freedom.
Under the secular state, the law does not concern itself with the individual‟s beliefs or
disbeliefs unless that person propagates his views in circumstances likely to give rise to a
breach of peace, or in a place to which he is denied lawful access. Justice therefore, demands
that the freedom of an individual could be curtailed for securing the equal freedom of others,
because of the affirmation of the principle equality amounts to asserting the universal
possession of human dignity.
In a multi-religious society, various normative systems compete for the allegiance of society.
When the society is secular; its law takes precedence over the dictates of religion, morality or
community mores, and it may allow some scope for deviation in recognition of varieties of
religious belief. While secular law may assert pre-eminence to guarantee equality to all
80.
Dhokhalia, R.P. “The Human Right to Religious Freedom: Problems of Definition and Effective
Enjoyment.” The Calabar Law Journal 1, no. 1 (1986): 9.
81.
Ibid.

31. 31
religion, the right to freedom of religion cannot be enjoyed in a pluralistic society without a
limiting some forms of religious expression.82
2.4 STATES-RELIGION MODELS
This necessarily brings up the question of relationship between a social and legal system and
religion in general, or one religious system in particular, in the event of its dominance. Whilst
the relationship between a legal system and religion in earlier societies had been a fused one,
the relationship during the course of history has ranged from being fused, infused, coordinate,
subordinate and tolerated, to supressed. For example Christianity, has over the course of ages
enjoyed the status of established or state religion to privileged religion, to a tolerated religion
along with others, and finally to that of forbidden or discriminated against religion.83
Considering the constitutional provision as guidelines, States according to Dhokhalia may be
grouped into the following categories:84
a. Formal and Functional Theocracy: under this category, are found states which have an
official religion, sometimes provided in their constitutional documents and where there exist
no dividing line between secular and religious prescriptions to all aspects of life. In such
states there is hardly the provision of the right to exercise a contrary religion. This kind of
states are characterised in the carrying out of religious rites by the state, recognition of the
82.
Ibid.
83.
Article 44(1) of Eire‟s Constitution 1937, (now abrogated), provides for special position of the Holy
Catholic Apostolic and Roman Church as the guardian of the Faith professed by the majority of
citizens. In England, the Protestant Church is the Official Church of England.
84.
Dhokhalia, R.P. “The Human Right to Religious Freedom: Problems of Definition and Effective
Enjoyment.” The Calabar Law Journal 1, no. 1 (1986): 91. He here identifies six state-religion model
adopted in this work.

32. 32
head of state as the protector of the religion as well as the allocation of state offices
exclusively to holders of religious positions. Saudi Arabia provides an example of this kind
of state, where Islam is adopted as state religion and the state acts as the protector of the
Islamic creed, carries out its Sharia and undertakes its duty towards the Islamic call.85
b. Formally Theocratic but Functionally Secular: these states formally recognise a state
religion, or even reserve the office of the head of state for the adherents of the recognised
religion. But in practise, they guarantee freedom of religion to the followers of other faith or
denominations and do not discriminate between the followers of different religions in public
affairs. England provides a good example of this type of state where the Crown is the
supreme head and patron of the clergy,86
where Christian doctrine has seized to be the basis
for laws and every person has the freedom of conscience and profession of his own religion.87
c. Formally Secular but Functionally Theocratic: In these states, there is no provision for an
official state religion, but owing to historical reasons, ties with certain religious organisations
have continued to be maintained. Though these states permit religious freedom and impose
no handicaps on the basis of religion, religious organisations mount influence and assert
traditional personal laws based on religious doctrines. They control educational institution
and in some other places, political parties, as well as operating as pressure groups for the
allotment of seats in legislatures and cabinet. An example is to be found in India in which
even with its secular stance, religion continues to determine which personal law applies
person.
85.
Article 23 the Basic System (of Government) Decree A/90 28-8-1412AH (1st
March, 1992).
86.
The English Act of Settlement 1700 provides that the Crown must swear to maintain the Churches of
England and Scotland, thereby disqualifying from succession Roman Catholics and those who marry
Roman Catholics.
87.
Article 13 English Human Rights Act 1998 provides for the right of freedom of thought, conscience
and religion. The English Dissenters‟ Relief Act 1779, relieved dissenters from subscribing to the
Thirty-Nine Articles of the Doctrines of the Church of England.

33. 33
d. Formally as well as Functionally Secular: under this type of state-religion model, there is
a separation of law from religion such that one is completely disassociated from the other.
Here, there is an entrenched entitlement to religious freedom and a ban on religious
qualification for ascension to a public office. The United States of American provides a good
example of this kind of state where, as a result of the First Amendment to its Constitution, the
state is not to adopt or participate in establishing any religion and not to prevent the free
exercise of religious liberty. The attitude of the US Supreme Court on the type of neutrality
required by the provision of the First Amendment has been that of „benevolent neutrality.‟88
e. Egalitarian and Protective Secularism: this type of state has no established religion, and
in some cases, the constitution prohibits the adoption of a state religion. However, the state is
neither neutral nor hostile to religion, but offers protection and aid to all religions on the basis
of equality and on its policy that religion embodies the moral, as well as other higher noble
values of life to be cultivated by the people individually and collectively.89
Nigeria provides a
good example of this kind of state where it is constitutionally prohibited from adopting a state
religion.90
It stays clear of the two extremes of adopting theism or atheism91
and its
secularism enables it to be committed to tolerance of all religions in line with the
constitutional mandate to guarantee freedom of religion.92
The prohibition against adopting a
state religion has been interpreted limitedly by government to only apply to a formal
declaration by a federal or state government of the direct enthronement of a religion, thereby
88.
Per Burger CJ in Walz v. Tax Commission 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)
89.
Dhokhalia, “Human Right,” 114.
90.
S.10 Constitution of Federal Republic of Nigeria 1999 (as amended).
91.
Dhokhalia, “Human Right,” 115.
92.
S.40 CFRN1999

34. 34
permitting the state to sponsor religious pilgrimages as well as set aside funds for the building
of places of worship and schools for religious organisations.93
f. Ideologically Indoctrinated Mobilizing State:94
under this state, laws are the instrument for
the realisation of ideological goals. This type of state is hostile to religion and so patronises
anti religion propaganda. It denounces the religious faith and institutions as altogether
unrealistic in a rational planning of social institutions. Fascist and communist states are
examples of this category as they aim toward total mobilization of all resources, human and
material, subordinating the considerations of conscience and individuals rights in favour of
the larger and higher ideological goal. The former U.S.S.R., provides a good example of this
kind of state where even with the Helsinki Accord and the guarantee of religious freedom,
reference were been made to the Soviet Code on Marriage and the Family particularly Article
52 of the Code as being used for the sinister purpose of depriving religious parents of their
children.95
From the above, it is clear that states all over the world fall within the ambit of one or more
of this classification. For instance, Nigeria which Dhokhalia grouped as Egalitarian and
protective secular exhibits characteristic of a formally secular but functionally theocratic
state, shown in the privileges it has accorded over the years to two religious groups- Islam
and Christianity, and its excessive entanglement with aiding them despite the presence of
other religious groups and the secular stance of the Constitution.
93.
The national mosque as well as the national ecumenical centre in Abuja, was sponsored by funds
disbursed from the Federation account.
94.
Dhokhalia does not group this model of state with other states as part of the of the state-religion model,
maybe because religion has no place in such society, and so not a model.
95.
Article 52 provides that; „parents shall educate their children in the spirit of the moral code of the
builders of communism.‟

35. 35
The models above also show that state relationship falls within the a spectrum as identified
above. For instance, the secularisation process which started in the 16th
and 17th
century96
has
not been carried through in all European countries with the same pace and strictness.97
We
see in Europe a huge variety of relationships between state and religion. Many countries still
have an established church. Greece, Denmark and Norway may serve as examples. In
England, the Queen is the highest official in the Anglican Church and she appoints Anglican
bishops, on nomination by the Prime Minister. The Italian Constitution separates church and
state by giving a special status to the Catholic Church: the state and the Catholic Church are
each within their ambit independent and sovereign. In Germany, the situation is different.
While the Constitution itself states that there is no established church, the preamble of the
Constitution opens with a reference to the responsibility of the German people to God (and
men).98
This reference is interpreted as recognition of the importance of freedom of religion.
As can be seen from above, there is not a single standard as far as the relationship between
state and religion is concerned. All that can be added is that whatever the model adopted has
great implication for the equal exercise of the freedom of religion.
2.5 COMPARATIVE ANALYSIS OF SECULAR CONSTITUTIONS
96.
The Treaty of Augsburg, 1555, one of the earliest treaties on religious freedom, sought to ensure
equality between Catholics and Protestants and to promote living quietly and peacefully together. Also
is the Treaty of Westphalia1648, which permitted citizen to practise religions other than those of their
rulers.
97.
Aernout Nieuwenhuis “European Court of Human Rights State and Religion, Schools and Scarves, An
Analysis of the Margin of Appreciation as Used in the Case of Leyla Sahin v. Turkey, Decision of 29
June 2004 Application Number 44774/98,” in European Constitutional Law Review, 1: (2005) 495
-510.
Available at http://internationalhumanrightslaw.net/wp-content/uploads/2011/01/ European
-Court-of-Human-Rights-State-and-Religion-Schools-and-Scarves-An-Analysis-of-the-Margin-of
-Appreciation-as-Used-in-the-Case-of-Leyla-Sahi-v-
Turkey.pdf&sa=U&ved=0CAgQFjAAahUKEwigy7HihYrIAhVLXBQKHbX4AZo&usg=AFQjCNH
H8CK6TCHoHiLKmY8TQUKp94DHhg
98.
Preamble to the Basic Law for the Federal Republic of Germany 1949

36. 36
Secularism as a global phenomenon, has taken different shapes in societies in the political
and legal scheme implemented by states as part of their policy to manage and control
religion. Indeed it is important to note that, although secularization seems to have touched in
one way or the other every corner of the world, the way it has been received and implemented
as a state policy, has been largely influenced by specific historical and political experience of
countries.99
Some countries becoming secular upon their creation, others, upon its adoption.
2.5.1 UNITED STATES OF AMERICA
After the American Revolution, there was a separation church and state in the national
government through the First Amendment, but leaving the possibility of establishment to the
states which has since been extended to states in the case of Everson v. Board of
Education100
. In the original Constitution, religion was only mentioned once101
in Article VI
which requires that „no religious test shall ever be required as a qualification to any office or
public trust under the United States.‟ Protection of religious freedom was embodied in the
First Amendment prohibition that, „Congress shall make no law respecting an establishment
of religion or prohibiting the free exercise thereof...‟
The prohibitions surrounding the First Amendment are phrased in an absolute terms but
experience has shown that they are seldom enforced as such. The tension surrounding the
realization of First Amendment guarantees is particularly acute for the amendment contains
two distinct prohibitions which often appear to directly contradict another. Both the
Establishment and the Free Exercise Clause were intended to provide the greatest latitude in
99.
Using Rights to Re-invent Secularism in France and Turkey Amelie Barras
100.
330 U.S. 1, 67 S.Ct. 504 (1947)
101.
H.W. Chase and C.R. Ducat Constitutional Interpretation 2nd
edition (US: West Publishing Co., 1979)

37. 37
religious freedom. Yet a governmental policy which is helpful to one man in the exercise of
the exercise of his religious belief is the actualization of the establishment prohibition to one
person is, for another individual, the impairment of a right to worship.
2.5.1.1 The Establishment of Religion
The First Amendment forbids the establishment of religion. But, what constitutes the
establishment of religion? Historically, the Establishment clause has received two different
views as to its interpretation.102
One view of this prohibition holds that the word
“establishment” should be interpreted narrowly to mean that it prohibits the kind of
establishment which existed in Europe prior to the American Revolution. For them, Congress
is prohibited from instituting an official, publicly supported church, something comparable to
the Church of England.
A second view which has consistently been espoused by the Supreme Court, demands that, in
the words of Justice Black, „a wall of separation between church and state.‟103
For this view,
government is barred from supporting or becoming involved with religion in any manner.
Yet, decisions in some cases appear contradictory as government have sometimes done things
in aid of religion. For example, in Walz v. Tax Commission,104
the petitioner challenged the
constitutionality of property tax exemption given to religious institutions. The court while
upholding the constitutionality of this exemption held that the constitutional relationship
between church and state was that of „benevolent neutrality.‟105
102.
Harold W. Chase and Craig R. Ducat, Constitutional Interpretation, 2nd
ed.,
(US: West publishing Co., 1979), 1383
103.
Everson v. Board of Education 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed 711 (1947)
104.
397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)
105.
Per Chief Justice Burger

38. 38
Decisions under the Establishment clause have been mainly based on public financial aid to
church related institutions and religious practises in public schools. A few of these would
illustrate:
In Everson v. Board of Education,106
the statute at issue contained a very controversial
provision permitting school boards to reimburse parents of both public and parochial school
students for transportation cost incurred to and from school on the public transportation
system. Everson contended that the reimbursement to schools owned by religious
organisations was the establishment of religion. The Supreme Court, while interpreting the
Establishment clause to apply to both the federal and state government, prohibiting them
from openly or secretly participating in the affairs of any religious organisation or group and
vice versa, held that the statute in question was saved because it provided benefits to the
pupils and not the school. In this way, the court regarded the statute as a general public
welfare legislation, thus to deny parents of students in parochial schools such reimbursement,
was tantamount to denying them welfare benefit on the basis of religious faith- an act which
would have clergy led to a breach of the free exercise clause.
In McCollum v. Board of Education,107
the court held that a Champaign, Illinois public
school released time program violated the establishment clause. In that case privately
employed teachers held weekly classes, on public school premises, in their respective religion
for student whose parents signed request cards, while non-attending students pursued secular
studies in other parts of the building. Black J. opined, „Here, not only are the state‟s tax
supported public school building used for the dissemination of religious doctrine. The state
106.
330 U.S. 1, 67 S.Ct. 504, 91 L.Ed 71 (1947)
107.
333 U.S. 203, 68 S.Ct. 461, 92 L.Ed 649

39. 39
also affords sectarian groups an invaluable aid in that it helps to provide pupils for their
religious classes through the use of state‟s compulsory school machinery.‟108
In a bid to present a test for neutrality in the establishment of religion, the Supreme Court, in
Lemon v. Kurtzman,109
designed a three pronged test: (1) whether the program has a secular
purpose, (2) if the primary effect is neither to advance nor inhibit religion (3) whether the
programme fosters an excessive government entanglement with religion. Where the program
failed the test above, it was struck down. Thus, in Lee v. Weisman,110
the Supreme Court
found an establishment clause violation in a clergy-led non-sectarian prayer in a public
school setting. This programme clearly did not have a secular purpose. Similarly, in Board of
Education of Kiryas Joel Village School District v. Grumet,111
a state law creating a separate
school district on behalf of a village with only one religious sect was held to be in violation of
the neutrality expected under the Establishment clause. However, in Zobrest v. Catalina Hills
School District,112
a state program which provided a sign language interpreter for a deaf
student attending a religiously affiliated school was held to be religiously neutral.
2.5.1.2 The Free Exercise of Religious Belief
In what appears to be equally absolute terms, the First Amendment also prohibits government
from limiting the free exercise of religious belief. As we have already seen from the cases on
establishment, there is an inevitable clash between the interest protected by that clause and
108.
In Zorah v. Clauson, 343 U.S., 306, 72 S.Ct. 679,96 L.Ed. 954 (1952), a case with similar facts, the
court held that there was no establishment because the religious instruction were held at church
buildings. „The program involves neither religious instruction in public school classrooms nor the
expenditure of public funds. All cost including the application blanks are paid by the religious
organisation...therefore unlike McCollum.‟ Per Douglas J
109.
403 U.S. 602 (1971)
110.
505 U.S. 577 (1992) (opinion, Kennedy, J)
111.
512 U.S. 687 (1994) (opinion, Souter, J)
112.
509 U.S. 1 (1993) (opinion, Rehnquist, CJ)

40. 40
those subsumed under this. The problems raised in attempting to guarantee the free exercise
of religious belief, however transcend the observation that they bear an awkward relationship
to the solution of establishment problems. Equally as significant as the conflict between the
two religion clauses, is the collision between the free exercise clause and the concept of equal
obligation under law. In sum, the vindication of conscience, as an exemption from duties
which all owe under the law, may create a specially-privileged group.113
The most common problem of whether there has been a denial of free exercise of religion
arises when a government regulation whose purpose is secular, either makes illegal, or
otherwise burdens conduct that is dictated by some religious belief, or requires or otherwise
encourages conduct that is forbidden by some religious belief. This is exemplified in
Reynolds v. United States;114
the court upheld a federal law making polygamy illegal to a
Mormon whose religious duty was to practise polygamy: “Congress was deprived of all
legislative power over mere opinion, but was left free to reach actions which were in
violation of social duties or subversive of good order.” In Cantwell v. Connecticut,115
the
Supreme Court reemphasised the distinction between religious opinion or belief, on the one
hand, and action taken because of religion, on the other.
The constitution forestalls compulsion by the law of the acceptance of any creed or the
practise of any form of worship. Freedom of conscience and freedom to adhere to such
113.
In Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), the interpretation of
s.6(j) of the Universal Military Training and Service Act, which exempted from combat any person
“who, by reason of religious training and belief, is conscientiously opposed to participation in war in
any form.” The question to be desired was whether persons objecting on personal philosophical
grounds other than religion were covered by this exemption. It was held that the exclusion of those
persons with essentially political, sociological or philosophical views or a merely personal moral code
should not be read to exclude those who hold strong belief about the domestic and foreign affairs or
even those whose conscientious objection to participation in all wars is founded to a substantial
extent upon considerations of public policy.
114.
98 U.S. 145, 25 L.Ed 244 (1879)
115.
310 U.S. 296, 60 S.Ct. 900, 84 L.Ed 1213 (1940)

41. 41
religious organisation or form of worship as the individual may choose cannot be restricted
by law. Free exercise embraces two concepts, -freedom to believe and freedom to act. The
first is absolute but, in the nature of things, the second cannot be.116
However in some cases the courts have invalidated application of state law to conduct
undertaken pursuant to religious beliefs. Thus in West Virginia State Board of Education v.
Barnette,117
the Supreme Court held that children of the Seventh - day Adventist whose
religion forbade them to salute the flag and recite the pledge of allegiance could not be
required by state law to engage in these activities in public schools violated the first
amendment. Similarly in Wisconsin v. Yoder,118
it was held that the Amish, members of a
religious sect, should be relieved of compulsory public education for their children after the
eighth grade, so that they could be able to fulfil the requirement of their religion to learn
skills in their community through working.
2.5.2 FRANCE
Article 1 0f 1958 constitution of France provides;
France is an indivisible secular, democratic and social republic. It assures the equality of all
citizens before the law, without distinction of origin, race or religion. It respects all beliefs.
France has in clear terms shown itself to be a secular democracy. French secularism is
represented in the term laicite. Laicite appeared quite late in the French language.119
And
116.
Ibid, per Owen Robert J
117.
319 U.S. 624, 63 S.Ct 1178, 87 L.Ed 1628 (1943)
118.
406 U.S. 205 (1972)
119.
Amelie Barras, “Using Rights to Reinvent Secularism in France and Turkey,” EUI Working Papers
RSCAS 2008/20

42. 42
since it has never been clearly defined, it has become one of those terms like democracy that
is easily invested with a multitude of meanings. Laicite means a clear acknowledgement of
the lack of competence in the religious domain by the public authorities, exactly as a civil
court declares itself not competent under penal law.120
The Council d‟Etat121
(the highest judicial organ France) sees the law of 1905 as central in
defining and providing a legal framework to them. This law, often referred to as the Law of
Separation, regulates the status of religion in France by preventing the state from subsidizing
or extending special recognition to any religion.122
Laicite implies the neutrality of the state
with regard to religion, which should not favour or discriminate against any type of religion.
In short, this neutrality is a form of public order that should allow for religious pluralism to
flourish in the republic. The practises of this neutrality requires that state representatives are
not to represent publicly any religion, for instance by wearing visible religious symbols, or
engage in proselytizing activities.
French commitment to secularism and relegation of religion can best be understood only
through reference to history. The concept of laicite is traced to the French revolution. The
lengthy process of freeing government from the grasp of the Catholic Church was a catalyst
for the commitment to the disestablishment of the church and to the enshrinement of
neutrality in the law. The Law of Separation of 1905 expressly recognised state neutrality by
asserting that „the State neither recognises nor subsidises any religion.‟123
Thus, religious
120.
Raphael Liogier “Laicite on the Edge in France: Between the Theory of Church-state Separation and
the Praxis of State-church Confusion” Macquarie Law Journal (2009) 9. 25-46
121.
The Conseil d‟État is in charge of determining who and what are eligible for the status of an
association for religious activities („association cultuelle‟) and who and what is not.
122.
Merhi, “Unveiling the Basis of Human Rights.”
123.
Article 2, Law of Separation 1905

43. 43
organisations operate as private entities recognised by private law, without any financial
support of the state and without public function.
Laborde124
identifies three stands of laicite to be neutrality, autonomy and community. On
neutrality, Laborde says that the 1905 law is largely forbids all form of government
assistance to any religion. The principle of neutrality is seen as the only way for the state to
treat all citizens equally, and to deny the privileges once held by members of the Catholic
Church. It is thought that by making the state neutral as to competing conceptions of the good
life, by privatising religious matters, inclusiveness in society would be guaranteed. Laicite on
the score of autonomy is deeply intertwined with the process of disestablishing religion as a
dominant force in society, and emancipating the citizen from religious dogma. It is thought
that only through the promotion of autonomy by education could the citizen adequately
become enlightened, hence the crucial autonomy promoting function of state education.
Laicite in its final component with Laborde calls community serves to foster a civic sense of
loyalty to a particular historical community.‟125
A new civic bond, national French identity
was to be formed. It was thought that if a secularised national identity came into existence
then the function of religion in the public sphere would be diminished and fully relegated to
the private. Under this conception the public domain was to be transformed into a
homogenous and autonomous area which transcended particular loyalties, identities and
groups to as to avoid the conflict associated with public pluralism.
As a result of the strict secularization of the society, education became the primary tool by
which to inculcate the values of secularism and civic identity into society. The preamble of
the Constitution of 1958 stipulates that the government takes care of education with a secular
character. Furthermore, a strict secular starting point forbids the funding of schools with a
124.
C. Laborde, “On Republican Toleration” (2002) 9(2) Constellations 167.
125.
Ibid.

44. 44
religious character. This strict regime was somewhat mitigated by the Loi Debré in 1959
which provided that schools with a religious character now can get government funds when
meeting certain conditions. However, teachers in state schools have to keep from wearing all
distinguishing marks of a philosophical, religious or political nature. Such a ban actually
holds for all civil servants, but is maintained more strictly for state schoolteachers, because
they are more or less considered to be representatives of the secular state.
It is not therefore surprising that in March 2004, the French senate gave the approval for a
Act prohibiting the wearing of conspicuous religious symbols in public schools (it does not
ban the wearing of those items in universities, or in private schools)126
however recent
attempts have since 2010 to extend such ban to other public areas.127
2.5.3 TURKEY
The Turkish Republic was established as a secular state by Ataturk in 1923. Its attachment to
secularism stated in the Preamble is reiterated in Article 2 of Turkey‟s current constitution:128
126.
Law no. 2004- 228 of March 2004. It implements one of the recommendations of a special commission
on religion in France appointed by the government and headed by Bernard Stasi, a former member of
the European Parliament. This law has received condemnation from any quarters. See Anneliese
Blackwood “The Privatisation of Religion.”
127.
Anthony Gray “Religious Freedom and Section 116 of the Australian Constitution: Would a Banning
of the Hijab or Burqa Be Constitutionally Valid?” available at
http://www.google.nl/url?q=http://forumonpublicpolicy.com/vol2011.no2/archivevol2011.no2/gray.
pdf&sa=U&ved=0CAgQFjAAahUKEwjW5pubkIrIAhUB7xQKHZmMDsA&usg=AFQjCNHPWuao
4WcfVAzUZqN_XCO8M4wHBQ
128.
1982 Constitution. As a product of military rule, it was characterised by severe restrictions on the
fundamental rights and freedom, less trust in national will, and a strengthened presidency and `
national security council. Although largely criticised, the Grand Assembly of Turkey did not attempt
to replace it by a totally new constitution. Instead, it was subjected to several minor rather than
comprehensive amendments starting from the opening of democratic politics in turkey since 1987. See
Omer F.G. “Politics of Constitutional Amendment in Turkey, 1987-2002 in Constitutions of the
Countries of the World edited by Gisbert H. Flanz, (New York: Oceana publications Inc. 2003).

45. 45
In the determination that no activity can be protected contrary to Turkish national interests,
the principle of the indivisibility of the existence of Turkey with its state and territory,
Turkish historical and moral values or the nationalism, principles, reforms and modernization
of Ataturk and that as required by the principle of laicism, sacred religious feelings can in no
way be permitted to interfere with state affairs and politics.129
The Republic of Turkey is a democratic, secular and social state based on the rule of law,
respectful of human rights in a spirit of social peace, national solidarity and justice, adhering
to nationalism of Ataturk and resting on the fundamental principles set out in the Preamble.130
The creation of this new secular republic came with other reforms to separate the public and
religious sphere. Worthy of such reforms include the abolishment of the Caliphate in 1923,
the retraction in the constitution of the provision declaring Islam a state religion, the closing
of religious courts, and the banning of the traditional Turkish Fez131
for men. All this moves
were inspired by the evolution of the nature of society in the nineteenth century and sought
first and foremost to create a religion free zone in which all citizens were guaranteed equality
without distinction on the grounds of religion or denomination.
The constitution also guarantees the right to freedom of religion. Article 24 It provides:
Everyone has the freedom of conscience, religious belief and conviction. Acts of worship,
religious rites and ceremonies shall be conducted freely, as long as they do not violate the
provisions of Article 14. No one shall be compelled to worship, or to participate in religious
rites and ceremonies, or to reveal religious beliefs and convictions, or be blamed or accused
because of his religious beliefs and convictions.
129.
Sixth paragraph preamble
130.
Article 2
131.
A cylindrical hat made of red felt with a tassel attached to the top. It remains illegal to wear this item of
clothing in Turkey as part of its dressing regulations.

46. 46
Religious and moral education and instruction shall be conducted under state supervision and
control. Instruction in religious culture and morals shall be one of the compulsory lessons in
the curricula of primary and secondary schools. Other religious education and instruction
shall be subject to the individual‟s own desire, and in the case of minors, to the request of
their legal representatives.
No one shall be allowed to exploit or abuse religion or religious feelings, or things held
sacred by religion, in any manner whatsoever, for the purpose of personal or political interest
or influence, or for even partially basing the fundamental, social, economic, political, and
legal order of the State on religious tenets.
In Turkey, the Constitutional Court has maintained that, within a secular state, religious
feeling simply cannot be associated with politics, public affairs and legislative provisions.
Those are not matters to which religious requirement and thought apply. Thus, the neutral
state is prevented
From manifesting a preference for a particular religion or belief and constituted the
foundation of the freedom of conscience and equality between citizens before the law.
Intervention by the state to preserve the secular nature of the political regime had to be
considered in a democratic society.132
Also, recognising the importance of education in building minds of the young, public
authorities have strived to preserve this state neutrality as well as prevent discrimination in
public schools by making regulations banning the wearing of religious items within the
school environment. An example is found in the case of Leyla Sahin v. Turkey.133
In that
132.
Refah Partisi (The Welfare Party) & ors v. Turkey, App no 41344/98, judgement of 13 February 2003
paragraph 25
133.
Decision of 29 June 2004, Application Number 44774/98.

47. 47
case, the applicant, enrolled at the University of Istanbul and on 23rd
February 1998, the
Vice-Chancellor issued a circular with the following stipulation:
By virtue of the Constitution, the law and regulations, and in accordance with the
Case-law of the Supreme Administrative Court and the European Commission of
Human Rights and the resolutions adopted by the University Administrative
Boards, students whose „heads are covered‟ (wearing the Islamic headscarf) and
Students (including overseas students) with beards must not be admitted to lectures, courses
or tutorials.
Thereafter the applicant, who refused to take off her scarf, was denied access to written
examinations and lectures. She started a procedure to have set aside the circular of February
1998. The Istanbul Administrative Court dismissed her application and the Supreme
Administrative Court her appeal. The case then came before the European Court of Human
Rights. The Court therefore had to consider whether the interference was „prescribed by law‟,
pursued a legitimate aim and was „necessary in a democratic society‟ within the meaning of
Article 9(2) of the European Convention on Human Right.
The law was „accessible and sufficiently precise in its terms to satisfy the requirement of
foreseeability‟. From 23 February 1998 onward, it could have been clear to the applicant that
she was liable to be refused access to lectures if she continued to wear the headscarf.134
Having regard to the circumstances of the case and the terms of the domestic courts‟
134.
Ibid, paragraph 81.

48. 48
decisions, the Court found that the impugned measure primarily pursued the legitimate aims
of protecting the rights and freedoms of others and of protecting public order.135
To assess the necessity of the interference, the Court started with some general considerations
concerning the possibility of restrictions of freedom of religion in a pluralist society:
The Court notes that, in the decisions of Karaduman v. Turkey (no. 16278/90, Commission
decision of 3 May 1993, DR 74, p. 93) and Dahlab v. Switzerland (no. 42393/98, ECHR
2001-V), the Convention institutions found that in a democratic society the State was entitled
to place restrictions on the wearing of the Islamic headscarf if it was incompatible with the
pursued aim of protecting the rights and freedoms of others, public order and public safety. In
the Dahlab case cited above, in which the applicant was a schoolteacher in charge of a class
of small children, it stressed among other matters the impact that the „powerful external
symbol‟ conveyed by her wearing a headscarf could have and questioned whether it might
have some kind of proselytising effect...136
The Court noted that the interference was based on two principles which reinforce and
complement each other: secularism and equality.137
Finally, the Court unanimously held that
there has been no violation of Article 9 of the Convention.
2.5.4 INDIA
India is a multi-religious state, with the belief that religion supplies morality which society
should imbibe. It has not been truly neutral toward religious matters as is seen in the inability
to develop a single civil code138
to apply to everyone and not personal religious laws.
135.
Ibid, paragraph 84.
136.
Ibid paragraph 98
137.
Ibid paragraph 104

49. 49
The constitution provides:
We the people of India, having solemnly resolved to constitute India into a [Sovereign
Socialist Secular Democratic Republic] and to secure to all its citizens; justice, social,
economic and political; liberty of thought, expression, belief, faith and worship; equality of
status and of opportunity; and to promote among them all fraternity assuring the dignity of
the individual and the [unity and integrity of the Nation].139
There also is the protection of the right to freedom of religion in the constitution. This is
embodied in Article 25 which provides that;
(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise
and propagate religion.
It is important to note that this provision even before defining the right goes on to identify
grounds for its limitation. The ambit of this protection was raised in Emmanuel Bijoe v. State
of Kerala140
the issue of right to freedom of conscience and freely to practise and propagate
religion- national anthem- children standing up respectfully but not joining in singing because
of their religious faith – whether expulsion from school for not joining in singing violative of
the fundamental right. The Supreme Court has held that:
There is no provision of law which obliges anyone to sing the National Anthem nor is it
disrespectful to the National Anthem if a person who stands up respectfully when the
National Anthem is sung does not join the singing. It is true that Article 51-A (a) of the
138.
Article 44 of the Indian constitution provides that; „The state shall endeavour to secure for the citizens
a uniform civil code throughout the territory of India.‟
139.
The bracketed words have been substituted by the Constitution (Forty Second Amendment) Act, 1976,
section 2 for „Sovereign Democratic Republic‟ and „unity of the Nation.‟
140.
AIR 1987 Supreme Court 748.

50. 50
Constitution enjoins a duty on every citizen of India “to abide by the Constitution and
respect its ideals and institutions, the National Flag and the National Anthem.” Proper
respect is shown to the National Anthem by standing up when National Anthem is sung. It
will not be right to say that disrespect is shown by not joining in the singing.
Whenever the Fundamental right to freedom of conscience and to profess, practise and
propagate religion is invoked, the act complained of as offending the Fundamental right must
be examined to discover whether such act is to protect public order, morality and health,
whether it is to give effect to the other provisions of Part III of the Constitution or whether it
is authorised by a law made to regulate or restrict any economic, financial, political or secular
activity which may be associated religious practice or to provide for social welfare and
reform. It is the duty and function of the Court so to do. Here again as mentioned in
connection with Article 19(2) to (6), it must be a law having the force of a statute and not a
mere executive or a departmental instruction.
The two circulars on which the department has placed reliance in the present case have no
statutory basis and are mere departmental instructions. They cannot, therefore, form the
foundation of any action aimed at denying to citizens the Fundamental Rights under Article
19(1) (a). Further it is not possible to hold that the two circulars were issued “in the interest
of the sovereignty and integrity of India, the security of the state, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of Court,
defamation or incitement to an offence and if not so issued, they cannot again be invoked to
deny a citizen‟s Fundamental Right under Article 19 (1) (a). If the two circulars are to be
interpreted as to compel each and every pupil to join in the singing of the National Anthem
despite his genuine, conscientious religious objection, then such compulsion would clearly
contravene the rights guaranteed by Article 19 (1)(a) and Article 25 (1).

51. 51
In the present case, the expulsion of the three children from the school for the reason that
because of their conscientiously held religious faith, they do not join in the singing of the
National Anthem in the morning assembly though they do stand-up when the Anthem is
sung, is a violation of their fundamental right to freedom of conscience and freely to profess,
practise and propagate religion.
2.5.5 Comment
As identified above in the state-religion model, states are at different levels secularisation;
however, secular states share some three traits by which they are identified. These are;
1. The prohibition of the adoption of a state religion;
2. The guarantee of freedom of religion;
3. The general provisions which aim at separation of the religion from the sphere of the
State (though in varying degrees) in acts like the prohibition of discrimination on
grounds of religion and imposition of religious test for qualifying to a public office.
What these countries intend by providing for a secular constitution, is to ensure equality and
respect of the citizen as a rational, intellectual being, little wonder the freedom of religion is
guaranteed alongside the freedom of conscience.141
Also, to ensure equality of exercise of the
right to freedom of religion, secular government have found it necessary on placing
restriction on the full realisation of the scope of the right. The reasons for this are to protect
the rights of others as well as promote national security. These limitations are as a result of
being in democratic society. This point was made by Owen J. in Cantwell v. Connecticut,142
141.
Section 38(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
142.
Supra, n57

52. 52
when he said „Free exercise embraces two concepts, -freedom to believe and freedom to act.
The first is absolute but, in the nature of things, the second cannot be.‟
On other scores, some states share other similarities. It is noteworthy to indicate that there
exist close similarity between the French and Turkish secularism. The French Conseil d‟État
is in charge of determining who and what is eligible for the status of an association for
religious activities („association cultuelle‟) and who and what is not. Similar to this is the
Turkish state‟s open and public control of Islam through its State Directorate of Religious
Affairs under the supervision of the Prime minister, which is responsible for nominating
Imams and regulating Islamic education and training in schools.143
This, on comparative
analysis with other states, is at best odd as this supervision somehow questions government‟s
neutrality.144
They have also maintained their similarity in the area of creating a public sphere
free of religious symbols.
2.6 THE NIGERIAN STATE.
Nigeria as a state exists with pluralities, both ethnic and religious. Nigeria is indeed a multi-
religious country with religious groups like Christians, Muslims, African Traditional Religion
followers, Jehovah‟s Witness, Amorc (Rosicrucian Order), Grail Movement, amongst others.
From the models of state and religion, we have seen that where there exist two or three
dominant religions, forming nearly equal proportions of a state‟s population it has before it
either of the following choices: opting positively for secularism of giving no formal
recognition to any religion; or adopting an anti-religious posture; or making the divisive
143.
Paragraph 4, Article 24 of Turkish Constitution, provides that; „Education and instruction in religion
and ethics are conducted under state supervision and control...‟
144.
The supervision by the French and Turkish is stems from their historical experience with religious
groups and the problems of religious fundamentalism presently plaguing both countries.

53. 53
choice of one religion over another as an official religion. The Nigerian Constitution has
chosen the first option and without mincing words prohibits the federal and state government
from adopting any religion. It provides that „the government of the Federation or of a state
shall not adopt any religion as state religion.‟145
In an effort to deepen religious tolerance, the constitution guarantees religious freedom in the
following manner;
Every person shall be entitled to freedom of thought, conscience and religion, including
freedom to change his religion or belief, and 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.146
To accommodate more successfully the freedom of religion, the constitution also guarantees
the positive freedom of manifesting, transmitting to others and acting upon ones beliefs and
the protection from being coerced in religious matters. It provides;
No person attending any place of education shall be required to receive religious instruction
or to take part in or attend any religious ceremony or observance if such instruction ceremony
or observance relates to a religion other than his own, or religion not approved by his parent
or guardian.147
No religious community or denomination shall be prevented from providing religious
instruction for pupils of that community or denomination in any place of education
maintained wholly by that community or denomination.148
145.
Section 10 CFRN 1999 (as amended).
146.
S. 38(1) CFRN 1999
147.
Ibid, S. 38(2)

54. 54
All this goes to show how committed the Constitution is in avoiding religious domination and
its desire to foster religion in a positive way. However, these seeming absolute guarantees of
the manifestation of religious freedom are not without limitations imposed lawfully in the
interest of public safety, defence, order, health and morality as well as to protect the rights
and freedom of other persons.149
Also, the freedom of conscience and religion does not
include the freedom to form or take part in the activities of secret cults.150
Compared with the negative limitations in the US Constitution, that guard against an
establishment or government interference with religious liberty, Nigeria via the subsections
above151
places restraints that appear to favour religious choice. The first prevents an
education system from impacting unwanted religious instruction, while the second subsection
prohibits education systems from preventing the provision of religious instruction for pupils
of that community or denomination in any place of education maintained wholly by that
community or denomination. The freedom to receive religious instruction of one‟s choice
was tested in Adamu v. Attorney General, Borno State.152
In that case, the appellant, a
Christian, had two children who were attending primary school at Gwoza Local Government
Area of Borno State alongside other Muslim pupils. He claimed that he was paying for the
teaching of the religious instruction of his children, while the local government paid for the
instruction of the Muslim pupils. He further pleaded that despite the payments made, his
children were still being taught Islamic religion and Arabic language against their wishes.
148.
Ibid, S. 38(3)
149.
Ibid, S. 45
150.
Ibid, S. 38(4). See S. 318 (1) CFRN for the definition of secret cult
151.
Section 38(2) and (3) 1999 constitution
152.
[1996]8 NWLR (pt. 465) 203