On the 5th of April, 2022 at exactly 6:55pm, while suffing through the internet for latest breaking news as my custom is, I stumbled across the unconstitutional and arbitrary decision of the Kano State High Court 4, delivered by Hon. Justice Farouk Lawan sentencing a Kano born atheist, Mubarak Bala to a term of 24 years behind bars. There was only one question that befuddled my widest imagination after I read the news and the decision of the Court, the question was, is Kano State no longer part of the Federal Republic of Nigeria?
To put the horse before the cart, permit me to paint a clear picture of the scenerio that transpired into the said decision of the Kano State High Court 4.
Mr Bala, who is the president of the Humanist Association of Nigeria, was arrested at his home in Kaduna state on 28th April 2020 and taken to Kano, where complaints of blasphemy and incitement were lodged against him. At this juncture one may be tempted to ask, why try him in Kano, why not Kaduna? This however is a question for another day and not the focal point of our discuss for now.
It is intereeting to note that, he had earlier posted comments critical of Islam, Allah and Prophet Muhammad on Facebook, causing outrage among Muslims. There has been campaign for his release or trial, with activists saying he was out of touch with his wife and lawyer.
But appearing before Justice Farouk Lawan of Kano High Court 4, Audu Bako Secretariat on Tuesday, Mr Bala pleaded guilty to all the charges. When the judge asked him whether he knows the consequences of his guilty plea, Mr Bala insisted not to change his initial plea. Mr Bala’s lawyer, James Ibor, had earlier tried to persuade his client to change his plea, but he insisted that he was guilty of the charges. The lawyer however cited frustration and fear as reasons for his client’s guilty plea, saying his client had been in prison for two years. But Mr Bala raised his hand and told the court that he was guilty as charged.
To cut the long story short, in his plea of leniency, Mr Bala however said the intent of his social media posts was not to cause violence. He therefore promised not to repeat the blasphemous posts in future. The judge however sentenced Mubarak Bala to 24 years imprisonment after pleading guilty to all the 18-count charges bordering on incitement and breach of public peace leveled against him.
Suffice it to say without any fear of contradiction that at this jucture, the following questions beg for answers:
- Is Nigeria no longer a secular state in view of the unambiguous provision of section 10 of the 1999 Constitution as amended?
- Is the Nigeria’s Constitutional still the grudnorm and the supreme law of the land in view of the provisions of section 1(1)-(3) of the Constitution?
- Is Kano State no longer part of the Federal Republic of Nigeria and subject to the Provisions of the constitution in view of the provisions of section 1(1) and Part 1 of the first schedule to the Constitution?
- Is any State law or other subsidiary legislations under which Mubarak Bala was tried and convicted not subject to the overriding provisions of the Constitution? Etc.
These and many more are the salient questions that should pop up in the mind of any right thinking person.
Axiomatically, section 10 of the 1999 Constitution is explicit and devoid of ambiguity, the said section provides that, “The Government of the Federation or of a State SHALL not adopt any religion as State Religion”(Emphasis mine). On the Legal import of the adoption of the word “Shall” in Statutes and Legislations, there are floodgates of Judicial authorities where the court had held that, the word “SHALL” connotes a mandatory obligation.
The Supreme Court laid down this immortal principle in the case of Onochie v. Odogwu(2006) LPELR-SC.179/2001, where it held that, “In Longman Dictionary of the English Language, it is stated that “shall” is used to express a command or exhortation or what is legally mandatory. See also the case of Amokeodo v. Inspector-General of Police & 2 Ors. (1999) 5 SCNJ 71 at 81 – 82; (1999) 6 NWLR (Pt. 607) 467.” Per Ogbuagu, J.S.C. (P.25, Paras.C-E)
Toeing the same footrpints, the court of Appeal in the case of ALADETAN V. OGUNYEMI & ORS. (2010) LPELR-CA/B/EPT/313/08 has this to say on the meaning of the word “Shall” , “It is trite that where the provisions of a statute is garbed with the word “shall” as in the instant provisions, it connotes that it is imperative for the provisions to be obeyed. I refer to the case of: Kalamu v. Gunrim (2003) 16 NWLR (Pt. 847) p. 517; where it was held that: It is no longer in doubt that the word ‘shall’ when used in a statute or rule of court, makes it mandatory that the rule must be obeyed. In other words, generally, the term ‘shall’ is a word of command and denotes obligation and this gives no direction, it imposes a duty.” PER OMOLEYE, J.C.A(P.24, paras. C-E).
See also the case of YAKUBU v. IBRAHIM & ORS (2016) LPELR-CA/A/535/2011, where the court held thus, “The word “shall” used in both Paragraphs 3(a) and (d) denotes obligation and gives no room for discretion – Agbih Vs Nigeria Navy (2011) 2 SCNJ 1 at 5. See Amokeodo Vs IGP (1999) 6 NWLR (part 607) 457 and Katto Vs CBN (1991) 9 NWLR (part 214) 126 at 147.” Per HASSAN, J.C.A. (P. 38, Paras. C-D).
Furthermore, the right to Freedom of thought, conscience and religion is guaranteed under the Constitution. See Section 38(1). The section provides that, “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.”
The Court also alluded to the above Provision in the case of Ukegbu v. N.B.C (2007) 14 NWLR (Pt. 1055) 551 at 578, paras. A – B (CA), where it held that, “By virtue of section 38(1) of the Constitution, 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 obserance.” Per. Rhodes-Vivour JCA.
While there remains no justification for the blasphemy of Islamic religion by the defendant under any guise, there is also no justification under the law for his unwarranted and unlawful incarceration for expressing and exercising his right to freedom of thought, conscience and religion. Although, it is truism, that, “your right ends where another man’s right begin”, but what was the yard stick adopted to determine if his words were blasphemous in the real sense of the word?, Is he still an adherent of the Islamic religion? Does our Constitution recognize Blasphemy? When did being an atheist become a Crime in Nigeria?. Only one logical conclusion can be arrived at, which is that, Mubarak Bala was tried under Islamic law and such trial no matter how well conducted was inconsistent with the Provisions of the Constitution.
In a nutshell, it is conceded that the decision of the Court in the case of Mubarak Bala remains unconstitutional and same should be appealed. Every citizen of Nigeria has a right to freedom of thought, conscience and religion. Mubarak Bala is not an exception.
