RE: KADUNA PREACHING REGULATION LAW UNCONSTITUTIONAL, DUPLICITOUS & IN CONTEMPT OF COURT



On 11/06/2019, my Sister Gloria Ballason, wrote a piece on the above title. The piece was reported by one, Unini Chioma, on the online page of The Nigeria Lawyer: thenigerialawyer.com

What I want to do here is to respond to the salient issues Ballason raised therein.

Ballason began by saying that a Kaduna State High Court presided by Hon. Justice Hajaratu Gwadah had issued an order restraining the Kaduna State House of Assembly from acting in any manner on the Bill pending the final determination of the case; and that the House and Governor were in contempt for seeking to sign the Kaduna State Religious Preaching (Religious) Bill, 2019 into Law.

The constitutionality or otherwise of a Law cannot be determined on the basis of failure of a party to an action challenging the validity of the Law to obey a restraining order made lis pendis. The criterion for the determination of the constitutional validity of a Law is provided by the Constitution itself. And, this is simply whether or not the Law or any of its provisions violates any provision or provisions of the Constitution.

Where a party to an action disobeys any restraining order made lis pendis, the remedy open to the other party is to institute contempt of court proceedings against that party. Simple!

Ballason further queried  that if the Law seeks to regulate preaching by issuing license to preachers, who then empowers a political authority to determine who is competent to preach?

The Law does not seek to determine who is or who is not competent to preach; neither does the Law empower any "political authority" to do so. The Law merely empowers the State Inter-Faith Regulatory Council to issue licence to already competent preachers in the State. I think only incompetent preachers should be afraid of the Law. A preacher who knows he is competent to preach need not fear anything. "Competence" here also means that the preacher will do his work in accordance with the law of the land. The license is to ensure he does that. Sections 4 and 5 of the Law are clear on this.

Ballason also argued that the argument by the State Government that the law was to prevent religious crises, hate preaching, prevent noise pollution, or obstruction of roads did not hold water as these acts had already been taken care of by existing laws in the State. To her, the Penal Code, for instance, had a whole chapter devoted to offences related to religion and there are laws against environmental disturbances as well as other infractions that fall under Law of Torts.

I agree with her to an extent. However, let me differ by saying that the Penal Code Law and the Law of Torts cited by her are general Laws that do not derogate on special Laws enacted for specific purposes. The Kaduna State Religious Preaching (Regulation) Law, 2019 is a special Law enacted for specific purpose as the name implies.

Let me ask Ballason some questions here: why do we have the Child's Rights Act, 2003 when Chapter IV of the Constitution already contains and guarantees almost all the rights contained in the Act? Why do we have the Violence Against Persons (Prohibition) Act when almost all the offenses therein are already contained in the Penal Code? Why do we have the EFCC and ICPC Acts when almost all the offences therein are contained in the Penal Code Law? Why do we have special Laws against kidnapping, rape, human trafficking, armed robbery, etc when all the offences under these Laws are already contained in the Penal Code Law?

If all these Laws and many others are okay as special Laws, why should Ballason isolate the Kaduna State Religious Preaching (Regulation) Law as an exception?

Ballason further stated that
the application of the Law was likely to violate the right to freedom of association and the right to freedom of thought conscience and religion.

On this issue, I expected Ballason to juxtapose
the right to freedom of association and the right to freedom of thought conscience and religion as guaranteed under sections 37 and 38 of the Constitution on the one hand, and the provisions of section 45 (1) (a) thereof on the other. For purposes of emphasis, section 45(1) (a) provides as follows:

"Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-
(a) in the interest of defence, public safety, public order, public morality
or public health; or
(b) for the purpose of protecting the rights and freedom or other persons."

I also expected her to supply us with a superior authority in contrast to the Supreme Court decison in the case of Erasmus Osigwe & 2 Others v. Registrar of Trade Unions (1985) LPELR–2792 (SC) where Oputa, JSC (of blessed memory) held at page 28, paragraphs B-G as follows:

"One has to bear in mind that the rights guaranteed under Sections 34, 35, 37 and 38 of the 1979 Constitution are "qualified rights". They are not absolute rights. They are subject to any law that is reasonably justifiable in a democratic society: (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other people…That freedom exists within and not outside all existing and relevant laws."

By merely making a sweeping statement that the Law was likely to violate the right to freedom of association and the right to freedom of thought conscience and religion without pin-pointing the provisions of the Law that violate those rights, her statement lacks legal potency.

Ballason concluded by saying that the Law was high handed as it prescribed a punishment of imprisonment of 2 years, or a fine of N200,000 or both for any person found guilty.

My short response here is that no punishment is meant to be pleasing or soothing to the convict. Punishment is meant to be punitive so as to act as deterrent to the convict and others. Let me ask Ballason this simple converse question: would a compensation of N200,000 be adequate to a victim of religious violence incited as a result of hate preaching?

To me, the validilty of the Kaduna State Religious Preaching (Regulation) Law, 2019 can only be determined within the precinct of constitutionality; not sentimentality.

JKanyip
13/06/2019.

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