By Musbahu Yahaya Rabiu

According to Ese Malemi in his book The Nigerian Constitutional Law, the constitution is the fundamental and supreme law in Nigeria. It is the highest law in Nigeria and it is the foundation law on which evey other law in Nigeria rests. The constitution is the embodiment of the rule of law. It is therefore supreme and its provisions bind all authorities and persons in Nigeria. The action of any authority or person which contravenes the constitution is unconstitutional, null and void and of no effect whatsoever, and such act is liable to be set aside by court. Malemi’s statement is similar, though different in words, with the provisions of section 1(1)&(3) of the 1999 Constitution of Nigeria.

Apostasy is an act of renouncing one’s religious belief with intention to subscribe for another belief or just for the purpose of being in a state of irreligiousness. Islam and Christianity, the dominated religions in Nigeria, prohibited such an act of conversion from one faith to another, criminalised it and prescribed death penalty for whoever willfully steps down his belief. One the other hand, The 1999 Constitution of Nigeria (as amended), under section 38 provides and, simultaneously, guarantees every person a right to religion, which includes right to practice any religion of one’s choice in teaching, practice and observance, and in private or in public with others. This fundamental right does not stop there, it also covers the right to change the religion at any time without being threatened. The constitution gives everyone right to be in a religion of his choice. And, at the same time, protect whoever wants change his religion, provided the person has reached age of majority.

While every person is given a right to move freely from one religion to another without hindrance in Nigeria, Islam and Christianity say a capital NO, with capital punishment, to whoever tries to enjoy such a right guaranteed by the constitution. In Christianity, it is provided in Exodus 22:20 that “Whoever sacrifices to any god, except the Lord alone, is to be set apart for destruction.” Similarly, it is provided in Deuteronomy 13:10 that “Stone them to death, because they tried to turn you away from the Lord, your God, who brought you out of Egypt, out of the land of slavery.” On the other hand, in Islam, jurists are unanimous that apostasy is a capital offence. And they heavily relied on the tradition of The Prophet Muhammad, which is one of the primary sources of the Islamic law. It was reported by Bukhari in Hadith No. 6922, that Ibn Abbas narrated that the Messenger of Allah, peace be upon him, said: “whoever changes his religion kill him.”

It is apparent that the above provisions of both religious laws are in serious conflict with the provisions of section 38 of the 1999 constitution of Nigeria. And it’s a settled law in Nigeria, by virtue of the provisions of section 1 (1)&(3) of the 1999 Constitution of Nigeria, that the constitution is supreme and above all other laws, and whenever any law is in conflict with the constitution or any of its provisions the constitution prevails and the other law shall be null and void to the extent of its inconsistency. Law of apostasy in this regard contravenes the provision of section 38 of the 1999 Constitution of Nigeria and it is, therefore unconstitutional, null and void and has no effect whatsoever, in Nigeria, to the extent of its inconsistency with the provisions of the constitution. This position of the law has been severally blessed and affirmed by the apex court of country.

Supreme court of Nigeria, in the case Attorney General Lagos State v. Attorney General Federation [2004] 18 NWLR (Pt. 904) 1 SC, held that withholding the federal allocation to Lagos state was of nullity because it contravened the provisions of section 162(5) of the 1999 Constitution of Nigeria. Similarly, Justice Niki Tobi in the case of INAKOJU v. ADELEKE (2007) SC 272 declared the act of removing a Governor from his office by the State House of Assembly of Oyo state unconstitutional, null and void for noncompliance with the procedures prescribed under section 188 of the 1999 Constitution of Nigeria. In all these and many more cases, Nigerian courts side with the constitution and set aside any law that contravenes the provisions of the constitution.

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In their wisdom, the framers of the constitution, have reasoned that conflict among religions and their laws is inevitable. Thus, some standard values to dichotomise the thin line between being in a religion and common hostility to another are needed for batter living in a plural country like Nigeria. Such crises have been foresighted and their panacea has therefore been clearly provided to the extent that capital punishment is specifically made triable only by some specific courts. And in places where criminal enactments were promulgated such as Zamfara, Kano, Kaduna and some other northern states of the country that have domesticated Islamic Penal Code, law of apostasy is nowhere to be found in such laws. Because the laws came into existence under the watch of whose fundamental work is protecting the provisions of the constitution and upholding its spirit, i.e. state Houses of Assembly.

Written by:

Musbahu Yahaya Rabiu

A Level IV Law Student

Bayero University, Kano

[email protected]

08107882404