The 1999 Constitution of the Federal Republic of Nigeria is the grundnorm of the Nigerian Legal System. SECTION 1 (1), without a shred of doubt, expressly states that the Constitution is supreme which is binding on all persons and authorities throughout the nation. (3) goes further to say that any other law inconsistent with it is null and void to the extent of its inconsistency. In simple terms, the Constitution rules above everything and everyone in Nigeria.
Going forward, Section 6 establishes the Judiciary as the machinery to interpret law [the Constitution especially] and adjudicate disputes. Hence, the Courts, from the inferior ones such as Magistrate Courts up to the apex of judicial jurisprudence i.e. the Supreme Court play very important roles in seeing that the letters of the Constitution transcend from mere drafting and enactment into proper understanding and interpretation. Thus, it would be grave if a Court of law misinterprets a provision of any law.
The legal profession has its unique mode of dressing. Section 45,Rules of Professional Conduct 2007 provides that lawyers are to appear in the High Courts, Courts of Appeal, and Supreme Court] in their “Barrister’s robe or Senior Advocate’s robe” which is known as the “wig and gown”. This has been our identity and separates us from the crowd. Anything else is an affront and disrespect to the Court and profession as a whole.
A backtrack to the Constitution; Section 10 recognizes Nigeria to be a secular state and there will not be an adoption of a State Religion. Regardless of this, Section 38 still guarantees the freedom of Thoughts, Conscience and Religion for everyone. As we know, no right is absolute; it can be derogated and restricted in certain circumstances.
On the 17th day of June, 2022, the Supreme Court in the decision of Suit No: SC/910/16; Lagos State Government & Others v. Asiyat Abdulkareem, held that pursuant to the provisions of Section 38, 1999 Constitution, female Muslim students in public secondary schools have the right to use Hijabs over their school uniforms. All seemed normal until the 23rd day of June 2022, when a Human Rights lawyer, Mr. Malcolm Omirhobo, went to the Supreme Court, dressed in a traditional worshipper’s regalia while still wearing the Barrister’s robe. He wore the usual white shirt commonly worn by lawyers, a makeshift necklace with a small gourd as the pendant, tied a red wrapper around his waist, inserted 2 feathers at the sides of his wig, tied cowries round his two legs [as anklets] and marked a part of his face with white chalk Mr. Omirhobo claimed to be a worshipper of Olokun, the goddess of the Sea in Delta State. He hinged his strange and funny mode of appearance on the interpretation of the Judgement that if Muslim students can wear their religious attires [in the name of propagating and enjoying their faith] in an institution that has a formal and general dress-code, then the same should be extended to lawyers [who also have the right to several religious beliefs] whilst appearing in the Courtrooms.
Picture Credit: waploaded.com
Of course, it is a funny and ridiculous sight to see, but the learned fellow is acting pursuant to the interpretation of the decision delivered by the highest Court of the land.
Now the burning question, what is the logicality or appropriateness of his actions in reconciliation with the Supreme Court’s Judgement?
The Constitution is supreme. No right is to be enjoyed absolutely. In as much as there is the right to religion, there are instances where it can be restricted. In formal institutions where there is a uniformity in dressing, religion has to take a bow and will be side stepped. Never in the Nigerian history do we see a female soldier or personnel adorn the Hijab. It is no secret that Nigerian policemen and military officers do not keep beards. This is funny because many of the top ranking officers are Northerners who are Muslims, and it is an Islamic culture to keep beards. If religion can be restricted here, why not for other institutions like schools and the judiciary? Even one of the Justices of the Supreme Court who sat on that matter, Kudirat M. Kekere – Ekun is a Muslim and has never been seen putting on the hijab while sitting on any matter in Court. Same goes for a former female Chief Justice of Nigeria, Aloma Mariam Mukhtar. These noble lords understand that Law and Religion might at times run on parallel lines; they should not intertwine themselves in certain scenarios.
Lawyers and laymen are split over this. While some believe that wearing the Hijab whether in Court or school is harmless because it goes to the identity of a Muslim woman, others believe that by implication, lawyers too of other religious faiths can wear their religious attires too. Imagine the scene where a Catholic lawyer goes to the High Court with white flowing gown. Well, there is no need to imagine it. Mr. Omirhobo has fed our eyes well enough!
Consequences
The Supreme Court, unintended has left the legal profession in a confused state. Because, while it did not foresee the actions of Mr. Omirhobo and probably others in future, it has set rolling in motion, balls of debates and controversies. Yes, the Rules of Professional Conduct is strict and firm on the dress-code for lawyers appearing in Courts, the Judgement has by implication overridden the provisions of the latter. The Judgement, let us not forget was birthed in the labour room of Constitutional Interpretation. Taking a look at that, the Constitution guarantees the Right to Religion and also establishes Nigeria to be a secular state. So, what are the instances where the right to religion will be restricted or derogated?
Clearly, the Supreme Court did not take these into account while delivering one of the most controversial and heavily talked judgement of all time.
Way Forward
An adage of the South Western Yoruba region of Nigeria, the Yoruba people to be precise goes:
“if we do not know where we are going, we should know where we are coming from”.
In order to prevent the lingering uncertainty and drama ongoing, the Supreme Court has to overrule itself [which would be in another case entirely], or revert to the status quo. Let things be as they used to be which has been the accepted custom and practice of the Nigerian Bar. Religion has an important place in societal development and legal jurisprudence; Laws and Religion often are interwoven and the rights must be safeguarded. However, a statute is superior to any religious doctrine and not the other way around.
The Supreme Court in a race against time to issue clarity on its recent pronouncement. We need to be certain of what the law is at the moment so that there can be Justice and decorum in the profession, because while lawyers are hungry for harmony in the interpretation of the Judgement, all we have for now is chaos for breakfast.
TEAM VERNIA 52B, Adeyemo Akapo Street,Omole Phase I Estate, Off Agidingbi Road, Ikeja, Lagos. +234 813 830 6975 [email protected]
On the 12th day of May 2022, Nigeria was thrown into a frenzy when social media platforms carried posts of a video recording showing the lynching, burning to be exact, of one Ms. Deborah Samuel Yakubu, by a mob on the allegation that she insulted the Prophet Muhammed. The late Deborah was a student of Shehu Shagari Secondary School, situate in Sokoto State, in the Northern region of the country where Sharia [Islamic] law is the basis of the State’s criminal legislation. Of course, different think pieces from different schools of thought begun to flow uncontrollably; some supporting the actions of the mob on the grounds of disregard for religious beliefs while others condemned the action as a flagrant violation of the Constitution.
Law and Religion have always been two distinct fabrics yet inevitably interwoven in both societal development and legal jurisprudence. The Constitution in Section 33 guarantees the Right to life for every person and no one shall be deprived of this right except in the execution of a Court’s sentence after which he has been found guilty of a criminal offence. Section 38 on the other side of the coin says that everyone one has a Right to Thoughts, Conscience and Religion. The Law recognizes and seeks to enforce this right. For instance, Section 124, Criminal Law, Lagos State 2015, criminalizes the act of insulting the religion of another and punishes it with a prison sentence of 2 years or a N50,000 fine. At the same time, everyone is also entitled to the Right to Fair Hearing. Section 36(5) of the Constitution provides that everyone is presumed innocent until pronounced guilty by a competent Court of Law.
Whether or not blasphemy is a criminal offence in the North is irrelevant, Deborah ought to have been charged to Court first where her criminal liability or innocence would be determined. Deborah being a Christian also had the right to consent or not to the jurisdiction of the Sharia High Courts in Sokoto State. Therefore, the provisions of the Sharia Law did not automatically apply to her.
Section 6 of the Constitution establishes the Judiciary as the machinery of government responsible for interpreting the Law and adjudicating disputes. It was advocated in Federal Civil Service Commission v. Laoye [1987] 2 Nwlr [Part 106] Page 652 that men should drop their arms and carry their causes to the Courts. The lynching of Deborah is without a shred of doubt a homicide. The young woman was murdered. This reminds us of the 5th day ofOctober2012 where four (4) male students of the University of Port Harcourt [The ALUU Four] were lynched by a mob on a false accusation of theft.
Now, having attracted national and international attention, the Sokoto State Governor, Aminu Tambuwal ordered the arrest and prosecution of the killers. Both laymen and learned fellows alike expected the charges would be hinged on murder, but to our disdain and chagrin, two of the killers, Biliyaminu Aliyu and Aminu Hukunchi, who were caught and arrested, were charged with conspiracy and inciting public disturbance; both charges carry a minimum of 2 years’ jail sentence. What a slap to Justice and disregard for the Law!
As gleaned from the facts above, the offences are homicidal in nature. The prosecution of the accused persons should be founded on such grounds. Anything less is a waste of tax payers’ money and a disappointing job.
Common Intention
Going further into the criminality of the accused persons’ actions, it is irrelevant if one of them raises a defence that killing Deborah was not part of his intention. The Supreme Court in the most recent decision of State v. Chukwu [2022] 6 Nwlr [Part 1825] Page 105 affirming the law that if two or more persons agree to prosecute an unlawful purpose, and in the process, another offence was committed which is a probable consequence of the initial purpose, the law is that both parties are deemed to have committed the offence. In simple terms, if A and B conspire to rob C and in the process of doing so, C was injured while resisting or trying to fight back, B cannot say that his intention was to steal from C and not injure him; because the injury C suffered was a probable or likely consequence of him being robbed. According to the words of Ajim, J.S.C @ Pages 153 -154, Paras H – C:
“It does not require that each participant in the prosecution of the unlawful purpose must have had the intention to commit the crime that was committed in the joint prosecution of the unlawful purpose before such participant can be convicted for the said crime. What the section clearly requires is that offence committed in the joint execution of the unlawful probable purpose must be of such nature that its commission was a probable consequence of the prosecution of such purpose.”
Juxtaposing both statutory and judicial authorities with the matter currently at hand, everyone who was involved in the process of lynching Deborah Samuel Yakubu, whether directly or indirectly should be charged with murder. It is shameful and disgraceful for the Sokoto State Government to turn a blind eye to injustice by bringing such worthless charges against murderers. Yes, it is worthless because a life has been lost; so how can conspiracy and public nuisance serve as a deterrent to other people like Messrs. Aliyu and Hukunchi?
The Right to Life is the first right a person enjoys by virtue of his birth, no one qualifies for it. It is a gift of nature and protected by the Constitution. The celebrated decision of Nosiru Bello v. Attorney General, Oyo State [1986] 5 Nwlr [part45] Page 828 says that even a person sentenced to death still has this right until the due procedure for execution of Judgement has been followed. How much more someone who is yet to be arrested, charged and convicted by a competent Court of Law?
Deborah’s case paints a picture of so many dark colors. There are a lot of elements and several issues. The provisions of Constitution have been jettisoned and casted aside. A life has been gruesomely taken. The Right to Fair Hearing has been wantonly breached; it is now sentencing before trial. The final nail on the coffin is that a State Government chooses to indirectly aid injustice by failing to prosecute killers for the exact offences committed.
Though, Religion and Law tread on separate paths, they often cross themselves on several occasions. The Law recognizes the Right to Religion and at the same time preserves the Right to Life. The Right to Life ranks prior to any other right possessed by a person and it must be guarded with the highest instrumentality of the Law.
It is ironic that the victim bears names [“Deborah” and “Samuel”] which in the Holy Bible, were names of some of the Judges who ruled the Israelites. The Courts in modern dispensation are presided by Magistrates, Judges or Justices [on appeal] and they are the appropriate forum to lodge complaints which will eventually determine the innocence or guilt of a person. The Constitution mandates that a person is deemed innocent until proven otherwise. It is therefore sad and pathetic that Deborah was judged and sentenced by a mob even before she stepped into the halls of a Courtroom. If we were to add to the Ten Commandments said to be handed by God to Moses, we can safely include “Thou Shalt Not Judge”!
TEAM VERNIA 52B, Adeyemo Akapo Street,Omole Phase I Estate, Off Agidingbi Road, Ikeja, Lagos. +234 813 830 6975 [email protected]
