There Is Still an Effective Constitutional Protection of Religious Liberty and Free Speech in Nigeria: The Electoral Act Does Not Abridge Those Inviolable Rights -By Deji Jayeoba

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I have read the statement of Mr. Jiti Ogunye titled Courting Electoral Crime in the Name of God and made available to and as widely reported by the social and print media in their Saturday, July 24, 2022 editions. Mr. Ogunye is a respected human rights advocate whose legal activism and campaigns have enriched our country. But I think his take, which I addressed below is wrong this time around. Dutifully for me, there is thus an urgent need to point out this wrong pontification by Mr. Ogunye to the general public. This is necessary as Mr. Ogunye had deservedly acquired some degree of a credible megaphone status these past years. So, not debunking the obvious error in the misinterpretation of Mr. Ogunye might sway many towards the fallacious argument of this popular human rights crusader.

 

 

In that statement, Mr.  Ogunye harassed a cleric and attempted to send the fear of a criminal prosecution down the spine of the clergy! And what had the preacher done than to be true to his calling by admonishing his flock to desist from heading to hell. Mr. Ogunye had quoted the cleric’s preachment as follows:

“This is a clear instruction, when it is time to vote, vote only in the favour of the Church and not for your party. Any believer that sells out his faith in the name of his party is heading for hell.”

Mr. Ogunye believes that the cleric’s statement above violates Section 97(1)(a) of the Electoral Act 2022. For ease of reference, the Section is reproduced here:

“97 (1) A candidate, person or association that engages in campaigning or broadcasting based on religious, tribal, or sectional reason for the purpose of promoting or opposing a particular political party or the election of a particular candidate, commits an offence under this Act and is liable on conviction (a) to a maximum fine of N1,000,000 or imprisonment for a term of 12 months or both.”

First point to note about this provision is that the lawmaker recognises the preeminence and inviolability of the liberty to form and propagate opinion and its twin freedom of holding a religious belief and propagating same. The lawmaker did not express any intention to abrogate those liberties in the section quoted above. Obviously, the human rights activist does not wish to outlaw same through his statement. And indeed, no lawmaker can do that in a piece of legislation. Not even by a constitutional amendment, some scholars have argued. They argued that by the Basic Structure Doctrine, the National Assembly does not have the power to amend the Constitution to abridge these sacred freedoms. (See a 2016 paper written by Ekokoi Solomon at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3051480 on this doctrine.)

 

Bearing the reality of the stark and inelastic limit to its power to curtail free speech and religious liberty, the drafters of the 2022 Electoral Act clearly refrained from blanketly punishing the sharing with voters of opinions that favour a religion. The exception is where the broadcast of that opinion or that campaign is “for the purpose of promoting or opposing a particular political party or the election of a particular candidate.” It is only in the circumstances that the campaign or broadcast is “for the purpose of promoting or opposing a particular political party or the election of a particular candidate” that a violation of Section 97(1)(a) may be well founded. Every prosecutor knows that you cannot discount this phrase as a condition of the crime in that Section and proceed to file a charge based on that Section, not to mention securing a conviction. As a basic principle, every element of a crime must be present before you can sustain a charge or prove it beyond reasonable doubt against a defendant.

 

It is clear from the cleric’s statement that he did not advocate for or oppose any particular political party or candidate. The law does not allow anyone to prove a crime by insinuation or assumption. The intent must be patently clear and not permissible of having more than one possibility. That is what a proof beyond reasonable doubt means!

One may be tempted to assume that the statement is opposing the candidacy of a leading presidential candidate or his political party. However, when one carefully considers the phrase “vote only in the favour of the Church and not for your party” one would readily realise that the cleric’s admonition does not in anyway target any political party or candidate. Each (or at least each of the leading) political parties participating in the 2023 general elections in Nigeria would field a mixture of candidates professing different faiths or even those professing none. Coming up in 2023 are presidential, governorship, National and Houses of Assembly elections for which political parties have fielded thousands of candidates of different faiths.The cleric did not refer to any particular candidate or a particular election. The cleric has simply asked his congregants not to consider any political party; all that should matter to them is that they vote for candidates of their faith whichever party they or the candidates belong. Isn’t it clear therefore that the cleric had no candidate or a political party in mind either to oppose or to support?

 

It has also been argued somewhere that the cleric’s quoted speech also offends Section 92 of the Electoral Act 2022. The provision of Section 92 most likely proximate to the quoted speech is subsection (3) which is reproduced as follows:

“Places designated for religious worship, police stations, and public offices shall not be used— (a) for political campaigns, rallies and processions; or (b) to promote, propagate or attack political parties, candidates or their programmes or ideologies.”

Again, one wonders what makes the statement a political campaign. What political party or candidate did the cleric’s statement oppose or support?

It is important to examine or interrogate this critically. Can one have a right to hold and propagate a religious belief without a corollary right to campaign within the bounds of the law for a political leadership that would respect and protect that right? Or put differently, what value is in a right to hold and propagate a religious belief if one cannot, again, within the bounds of the law, canvass fellow believers to vote following a pattern it is thought would protect that right? Every right includes a further right to protect that right. At least, this much has been made explicit by the doctrine of self-defence: the right to life also means a right to protect one’s life.

The inviolability of fundamental freedoms has made it wrong to want to use the criminal law to limit these liberties. The liberties are not given by the State and they cannot therefore be taken away or be degraded by the State. It would then be obviously wrong to attempt to use the Electoral Act to chill free speech or downgrade religious liberty, especially where the lawmaker does not remotely express any such intention.

The cleric’s statement was also labelled as “verbal or written threats to life or defamatory statements,” not protected by the right to freedom of expression and the press. Again, this cannot be right. Nigeria is a democracy. It is likely more of intolerance of opposing views rather than patriotism and loyalty to the Constitution to attempt to bring the cleric’s statement near the region of threat or defamation. Pray, who is being defamed here and what is defamatory in the statement? The offence of threatening or its civil counterpart will only be established when the recipient of the threat reasonably believes that the maker of the threat is capable of carrying out the threat. So, who believes that the cleric is the registrar of hell, saddled with the duty of compiling names of hell goers? This claim of threats and defamation is capable of bringing the law into disrepute. We surely do not want a legal regime whereby a Pastor or an Imam will be too afraid to preach that sinners or that those who betray their faith will go to hell. The truth or otherwise of this statement is what religious liberty has taken away from political moderation. Humanity was once at that point. It is progress that the human race has moved beyond that style of governance.

The heart of this write-up is to make it abundantly clear that the Electoral Act 2022 has annulled neither free speech and religious liberty nor the right to do everything within the law to canvass the protection of these fundamental rights. However, such rights must be exercised with abundant caution, respect for the rights and religions of others and a duty to promote peace and harmony.

 

Dejijayeoba writes via jayeobadeji@yahoo.com.



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