Date Published: 08/09/09

Pre-emption or Hysterics: A critical comment on the Boko Haram bloodletting in Northern Nigeria

In the early hours of Sunday the 26 th of July, 2009; another round of religious bloodletting started in Bornu State of Northern Nigeria. According to media reports, the religious violence was the handiwork of Islamic fundamentalist/sect whose doctrine is opposed to all constituted authorities and abhors western education. The riot left over a hundred people dead and many injured victims in its wake. Within days, the violence spread across other parts of northern Nigeria into Bauchi and Kano, among others. The government of Nigeria responded with a crack down on the sect members across northern Nigeria killing the young leader of the sect, Yusuf Mohammed, and arresting many in the process.

Information regarding facts leading to and surrounding the unfortunate incident is sketchy as usual. According to some government officials, acting on security intelligence reports, security operatives commenced a crackdown on the sect in an attempt to nip its nefarious activities and teachings in the bud before it snowballed into something else. Having regard to past history of religious violence and bloodletting in that part of the country, one is tempted to say that that is a reasonable move. However, having regard to available facts, one doubts the legal propriety of the nature and manner of the preemptive attacks by security operatives. The circumstances surrounding the death of the leader of the sect are also highly suspect. The primary purpose of this short article is to assess the action and reaction of the government vis-à-vis constitutionally guaranteed right to freedom of religion among other rights guaranteed to individuals under the 1999 Constitution of the Federal Republic of Nigeria (the Constitution).

Rights implicated in the crackdown and killing of the fundamentalists by security operatives are many. They include the rights to life, freedom of religion, expression personal liberty, freedom of movement and presumption of innocence, among others. Discussion of all the rights implicated is outside the scope of this short piece. The most important and relevant of the rights in question to this discussion is the right to freedom of religion. Same will form the basis and focus of this piece.

The right to freedom of religion is guaranteed by both the international bill of rights and regional human rights instruments to which Nigeria is a party. The right to freedom of religion is guaranteed under article 18 of the Universal Declaration of Human Rights (UDHR); article 18 of the International Covenant on Civil and Political Rights (ICCPR); and article 8 of the African Charter on Human and Peoples’ Rights. The right is also protected under Nigeria’s domestic law via section 38 of the Constitution .

Right to freedom of religion rests on a tripod: freedom of thought, conscience and religion. While these legs of the right are interwoven and interrelated, they are distinct. Freedom of thought relates to the right to hold a view or idea which might be inconsistent with mainstream ideas or believe. Freedom of conscience relates to moral judgment. That is, the right to hold profound convictions on all matters. From this right arose the right of conscientious objection in the United States. The last leg of the right is the right to religious belief, simpliciter.

Additionally, right to freedom of religion has three important components or elements. The first component of the right is the right to entertain such religious beliefs as a person chooses. The Supreme Court of Nigeria affirmed this component of the right to freedom of religion in the case of MDPDT v. Okonkwo (2002) AHRLR 159 at 179 in the following words: ‘The right to freedom of thought and conscience and religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to religious belief’.

The second component of the right to freedom of religion is the right to declare religious beliefs openly without coercion, fear, hindrance, or reprisal. In the Nigerian case of Jenebu Ononje v. Aleyi Adegbudu (1983) 4 NCLR 492, the court held that a widow cannot be compelled to buy a goat for the burial sacrifice of her husband if it is contrary to or not allowed by her religious belief.

The third component of the right is the right to manifest religious belief in worship, practice, teaching and dissemination. In the United States Supreme Court decision in Cantwell v. Connecticut 84 L Ed 1213, solicitation and proselytizing were held to be part and parcel of the right to freedom of religion. A similar view was held by the Supreme Court of Nigeria in its decision in MDPDT v. Okonkwo (above).

The first and second component of the right, that is, the right to hold religious belief and the right to declare such belief openly without fear and coercion is absolute. It is not subject to derogation. According to the Human Rights Committee (the quasi-judicial body saddled with the responsibility of interpreting and enforcing the ICCPR) in its General Comment 22 paragraph 3 :

Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one's choice. These freedoms are protected unconditionally…. In accordance with articles 18.2 and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief.

Thus, it is the practice or manifestation of religious belief that is subject to legal limitations on grounds of public policy, morality, welfare, health, and security, among others. This point was affirmed by the South African Constitutional Court in the cases of Prince v. President, Cape Law Society 2002 (2) SA 757 (CC); Christian Education South Africa v. Minister of Education 2000 (4) SA 794; and the Court of Appeal of Nigeria in the case of Ojeigbe Ubani v. Federal Electoral Commission (1960) 4 ENLR 72 (CA).

That said, the practice and manifestation aspect of the right cannot be subjected to regulation resting on the whims and caprices of the government. Like all other guaranteed rights, exercise of the freedom to practice and manifest religious belief is not subject to regulation until such exercise of right constitutes an imminent threat or danger to public security, safety, health, morality or peace. Only clear and present danger to the society will suffice as a ground for regulation or interference. This view of the law was confirmed by the the United States courts in the cases of Whitney v California (1927) 274 US 357 and Thomas v Collins (1945) 323 US 516.

Having examined the scope and extent of the right to freedom of religion above, the response of security agencies to alleged danger posed by the Boko Haram sect will now be analyzed and evaluated vis-à-vis applicable laws.

From available facts, the Boko Haram sect was charged with two main wrongdoings. First, it was alleged that their doctrine is against constituted authorities. Second, it was alleged that they abhor or are against western education. It was based on these that the security forces conducted cleanup operations to flush out the sect members. They arrested some and killed some. The sect members responded by attacking police stations and generally unleashing an orgy of violence on northern populace. The security forces counter-attacked and arrested and killed some more of the sect members, conducted house to house searches and generally rooted out the sect. Finally, the leader of the sect, Mohammed Yusuf was arrested and killed.

The arrest and extermination of Mohammed Yusuf is itself shrouded in mystery. Colonel Ben Hanatu, the leader of the military team that arrested the sect leader claimed that the man gave himself up willingly, was captured alive and handed over to police authorities in Maiduguri, the Bornu State capital. Police authorities in Maiduguri, however, claimed that the man was shot and killed by the police during an exchange of gunfire at the time of his arrest. Later still, police authorities changed the story and said that Yusuf was killed during an attempted escape bid. From all indications, it would appear that, life was snuffed out of Mohammed Yusuf in police custody after his arrest. In other words, there was a case of extra-judicial killing.

Two things are clear from the foregoing. The security forces drew the first blood by a widespread attack on the sect under alleged guise of preventive/pre-emptive strike. Secondly, the leader of the sect was killed in questionable circumstances and, it would appear, without due process.

As pointed out above, the first two components of the right to freedom of religion, vis: the freedom to hold a belief and the freedom to openly proclaim such belief without fear or coercion, are absolute and non-derogable. The third component of the right: the practice or manifestation of belief is subject to interference only where there is a present and imminent threat or danger to public security, peace, morality, and health. That the religious views or doctrines are offensive, unacceptable or against mainstream ideas or doctrines is not sufficient reason for suppression or interference. A man/woman has right to abhor western education or all education for that matter. Safe that such a person cannot forcefully foist his or her views on others. Additionally, by extant laws operative in Nigeria, a parent or guardian must allow enjoyment of basic education to his/her children or wards.

As regards being against constituted authority, something more than hostility to authority must be established. Some kind of dangerous overt or covert act must be shown by the government to justify suppression.

The details of the precise teachings or doctrines of the sect are unknown. However, except the government establishes the fact that the sect has done anything or is about to do anything endangering public security, safety, peace, morality or health. The alleged pre-emptive strike by the security forces will be unjustifiable and a gross breach of the right to religious freedom of the sect. The mere fact that the sect’s doctrine frowns upon constituted authority or abhors western education is not sufficient reason for suppression of their views.

As regards the questionable killing of Mohammed Yusuf, leader of the Boko Haram sect; no doubt, section 33 (2) (b) of the Constitution permits the derogation of the right to life for the purposes of effecting a lawful arrest or for preventing the escape of a person lawfully detained. Thus, if the man was actually killed in the process of preventing his escape from custody, it does appear that his death will be legally justifiable under the afore-mentioned provision of the Constitution. Otherwise, his death would have been without legal justification and unlawful. It should however be pointed out here that an unqualified application of section 33 (2) (b) of the Constitution is out of tune with current development under comparative international human rights law. More progressive jurisdictions have done away with unqualified legal authority to use lethal force to prevent the escape of a fleeing felon. In re: S v. Walters 2002 (7) BCLR 663 (CC) for instance, the Constitutional Court of South Africa have held that lethal force is only permitted if the fleeing felon constitutes a threat to himself, law enforcement agents or the public. Thus, the mere fact that a person lawfully detained attempted or is attempting to escape is not sufficient reason to snuff life out of him/her. There must be additional and more compelling reasons for the use of lethal force.

Consequently, even if Yusuf Mohammed was killed while trying to escape from custody, his killing is not only a gross contravention of his right to religious freedom; it will run counter to current developments in comparative international law except the government is able to show more compelling reason for killing him other than his alleged attempt to escape from lawful custody. He could not, however, in my opinion be held to be escaping from lawful custody if his initial arrest is a breach of a right; in this case his right to freedom of religion. Consequently, unless a compelling reason is shown for the arrest, detention and death of Yusuf Mohammed his death in custody is a violation of his rights to the sanctity of his life, religion, fair hearing and trial, among other sundry rights and is therefore unjustifiable, illegal and unconstitutional.

It is really a pity that we are not, at this time, able to hear the other side of this messy and most unfortunate story. The public is consigned to the bin of ‘if’ and ‘when’. Information that has so far trickled down to the public is from government’s propaganda apparatus. The public has not been availed of any information or facts from members of the sect or any independent and impartial party to make any conclusive and objective evaluation or determination of the issues possible. This is most unfortunate. One can only hope that the passage of the Freedom of Information Bill currently pending before the National Assembly will ameliorate this kind of situation.

Be that as it may, on the facts available and stated above it will appear that the response and acts of the government to alleged threats posed by the sect is a bit hasty and run counter to the dictates of human rights law.

Consequently, the onus is on the government to conduct a judicial enquiry to unravel the mystery surrounding this whole mess, especially the extra-judicial killing of Mohammed Yusuf, the sect leader; and avail the public of the reports. Any public official found to have erred or broken the law must also be punished to serve as a deterrent to others and prevent impunity which is fast becoming a feature of security operations and governance in Nigeria. Finally, a reconsideration of all exceptions to the right to life contained in section 33 (2) of the Constitution is due by the legislature. Nothing short of this will suffice for a government that has made the rule of law and rights observance its official policy.

Akinola Akintayo a human rights expert is of the Faculty of Law, University of Lagos, Nigeria.