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ALJ 1/2017 Lambert H.B. Asemota 48
tions that ”are prescribed by law and are necessary to protect public safety, order, health, or morals or
the fundamental rights and freedoms of others.” In that connection, therefore, it is helpful to briefly
examine, in practical terms, the limitations to which the manifestation of one's religion is subject.
After that, attempt shall be made to critique the implication of self-determination within the con-
text of freedom of religion which is usually relied upon by the so-called marginalised groups
when asserting their rights to practice their religion as part of culture. This obviously led to the
agitation for cultural rights, particularly, the reintroduction of both customary law and the penal
sections of Sharia law in Nigeria.
IV. Limitation prescribed by law
The ICCPR provides that the manifestation of religion must be in accordance with the provisions
of the law, and for the purpose of this analysis, the most important law in any sovereign demo-
cratic state is its constitutional law. Therefore, in a country where constitution exists, all other
forms of law (should) derive their legality from that constitution, and Nigeria is no exception.
Accordingly, under its 1999 Constitution,39 as amended (hereafter the Constitution), all authorities
and persons are bound by the provisions of the constitution, which is regarded as the supreme
source of law.40 This means that all forms of administrative practice, be it legal, political or eco-
nomic, must be in accordance with its provisions. It lays down that, ”the Federal Republic of Nigeria
shall not be governed, nor shall any persons or group of persons take control of the Government of
Nigeria or any part thereof, except in accordance with the provisions of this Constitution.”41 In order to
properly govern a sovereign state, laws must be enacted and complied with. But in enacting any
law, the designated legislative authorities must have the provisions and backing of the constitu-
tion in contemplation. Otherwise, such law could be declared unconstitutional and therefore
void.42
In most formal and informal conversations on the implication of certain provisions of the 1999
Constitution, numerous legal commentators draw various inferences from particularly section 10.
While many consider that the section implies that Nigeria is a secular state, others disagree
based on the fact that such proviso is not specifically contained in the constitution. The section
provides that ”[t]he Government of the Federation or of a State shall not adopt any religion as State
Religion.”43 This is the section that has attracted much controversy in most legal and socio-
political discourse on Nigeria. For example, Ibrahim & Lyman44 quote Auwalu Yadudu as stating
that the ”(...) Nigerian Constitution did not declare Nigeria to be a secular state and that the initiatives
of the states implementing the Shari’a cannot be said to have violated Section 10 of the Constitution
which prohibits any state from adopting any religion as a state religion.” With regard to Sharia law, in
practice, all sections of the law are based on Islamic religion. Its administrators are mainly those
39 The Constitution of the Federal Republic of Nigeria (1999).
40 See Section 1(1) of the Constitution, which stipulates that “This Constitution is supreme and its provisions shall have
binding force on the authorities and persons throughout the Federal Republic of Nigeria.”
41 Section 1(2) the constitution of Nigeria 1999.
42 Section 1(3) of the Nigerian Constitution 1999: ”If any other law is inconsistent with the provisions of this Constitu-
tion, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
43 Section 10 of the Nigerian 1999 Constitution.
44 Hauwa Ibrahim & Princeton Lyman, Reflections on the New Shari’a Law in Nigeria, COUNCIL ON FOREIGN RELAGTIONS, 6
(2004), http://www.cfr.org/content/publications/attachments/Reflections_on_the_New_Sharia_in_Nigeria.pdf (last
visited Mar. 27, 2017).
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book Austrian Law Journal, Volume 1/2017"
Austrian Law Journal
Volume 1/2017
- Title
- Austrian Law Journal
- Volume
- 1/2017
- Author
- Karl-Franzens-Universität Graz
- Editor
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Location
- Graz
- Date
- 2017
- Language
- German
- License
- CC BY 4.0
- Size
- 19.1 x 27.5 cm
- Pages
- 56
- Keywords
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Categories
- Zeitschriften Austrian Law Journal