FUNDAMENTAL RIGHTS

It is obvious that these provisions—and especially section 403— introduce a distinction between citizens on grounds of the religious or customary law to which they are subject. The question, therefore, seems bound to arise, sooner or later, whether they are compatible with the ‘fundamental rights’ guaranteed in the Federal Constitution.

‘A citizen of Nigeria of a particular community, tribe, place of origin, religion or political opinion shall not, by reason only that he is such a person—

(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative

¹ Sect. 403. ² Sects. 387 and 388.

³ As, also, for offences under articles 392-393 (defamation) and 401-402 (drunkenness).

action of the Government of the Federation or the Government of a Region to disabilities or restrictions to which citizens of Nigeria of other communities, tribes, places of origin, religions or political opinions are not made subject; or

(3) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action any privilege or advantage that is not conferred on citizens of Nigeria of other communities, tribes, places of origin, religions or political opinions.’

But ‘Nothing in this section shall invalidate any law by reason only that the law imposes any disability or restriction or accords any privilege or advantage that, having regard to its nature and to special circumstances pertaining to the persons to whom it applies, is reason­ably justifiable in a democratic society’.

As one might expect, this dilemma is not without parallels—or partial parallels—elsewhere. One of the most interesting is provided by an unreported case from Cyrenaica (Faraj AH Sherif Dinali v The Public Prosecution of Libya) which I have had the opportunity to read in typescript.

‘Libyans shall be equal before the law. They shall enjoy equal civil and political rights, shall have the same opportunities and be subject to the same public duties and obligations, without distinction of religion, belief, race, language, wealth, kinship or political or social opinions.’^[XXXIX]

‘Personal liberty shall be guaranteed and everyone shall be entitled to equal protection of the laws.’²

The Court of Appeal referred this constitutional question in 1955 to the Federal Supreme Court, which delivered a lengthy judgment in 1957. This referred, by way of comparison, to Pakistan, India and the United States of America. It observed that in Pakistan the Con­stitution of 1956 had guaranteed equality before the law for all citizens, yet the ‘prohibition of the possession or consumption of liquor by a Muslim’ had never been called in question. Under the Indian Con­stitution, again, the fundamental rights of equality before the law, equal protection of the laws, the absence of discrimination on grounds only of religion or race and equality of opportunity in employment are guaranteed, but ‘reasonable restrictions’ are permitted, and legislation such as the Bombay Prohibition Act, 1949 (which includes special exceptions in favour of military and naval messes and canteens) has been upheld by the Supreme Court.¹ In the United States of America, moreover, all such questions turn on the formula regarding ‘due process of law’, and the Supreme Court has ruled that ‘state law forbidding possession of liquor was within the police power of the state, and that the right to hold intoxicating liquor for personal use was not one of those fundamental privileges of a citizen of the United States of America which no state could abridge’.¹

The Court then summarized the issue in the following terms:

‘Whereas the Constitution of Libya guarantees to all persons in Libya the rights of legal equality, personal liberty, private property, and religious liberty; and a statute of the Province of Cyrenaica prohibits any person from selling intoxicating liquor to a Muslim; and Muslims comprise nearly the total population of Cyrenaica; and whereas Muslims are prohibited by their Islamic religion from drinking intoxicating liquor; and the Islamic religion is the official state religion of Libya; Therefore, are the constitutional rights of a liquor dealer in Cyrenaica unreasonably interfered with by the statute prohibiting him from selling liquor to a Muslim?’

This question was firmly answered in the negative, for in the light of the fact that Cyrenaica was almost solidly Muslim, that it was well known that the law of Islam forbids alcohol, and that Islam was the official religion of the state, the Court concluded that the prohibition of the sale of liquor to Muslims was not unreasonable as an exercise of ‘police power’. On the contrary, they regarded the fact that such sales were permitted to non-Muslims as a broad-minded concession to minority opinion.

There are, of course, a number of factors which distinguish this case from the sort of argument to which the clauses in the Penal Code of Northern Nigeria which we are now considering might give rise.

* State of Bombay v Balsara (1951), Sup. Ct. Rep.

² (1918), 245 U.S. 304.

The appellant in Cyrenaica was convicted of selling alcohol to a Muslim, under legislation which might conceivably be regarded as primarily a matter of licence control, rather than of himself drinking alcohol, contrary to an article in the Penal Code which makes this an offence for Muslims only. Again, the inhabitants of Cyrenaica are almost solidly Muslim, and Islam has been proclaimed as the official religion of the state; but this is not true of Northern Nigeria, rigidly Muslim though the Hausa-Fulani rulers traditionally are, for the non­Muslim minority there amounts to at least one-third.

If and when, therefore, this question is brought before the courts, the issue will turn on whether it can be regarded as ‘reasonably justifiable in a democratic society’ to penalize Muslims, alone, for flouting the dictates of their religion by drinking alcohol. That Article 27 of the Constitution of Nigeria does not exclude all differentia­tion between citizens on grounds of religion is sufficiently obvious from the fact that the law of marriage, divorce and inheritance to which individuals are subject depends entirely on the religion they profess or on the customary law of their community. This principle has been amply recognized in India, where the courts have reiterated that Article 15 of the Indian Constitution (which prohibits the state from discriminating against any citizen on grounds only of religion, caste, sex or place of birth) does not preclude the application of the personal law of the parties in such matters or, indeed, ‘classification based on reasonable grounds for specified objects’¹—and this even extends to the criminal law in so far as bigamy is concerned.

Perhaps I might here be permitted an aside. I am reliably informed that there is now a new drink—or at least a new name for a drink—

* Cf. Srinivasa v SaraswatAi, I.L.R. 1953 Mad. 78. This case arose out of the Madras Hindu Bigamy (Prevention and Divorce) Act, 1949, which made bigamy an offence for Hindus, but not for Muslims.

in places of refreshment in Northern Nigeria. The customer merely demands a ‘Krola Penal Code’, and he is given a Krola (a local product rather like coca-cola) suitably ‘laced’ with brandy or gin, the colour of the latter being adequately disguised by the former!

Incidentally, it is interesting to observe that the penalties for illicit sex-relations, defamation or drinking alcohol, including the ‘haddi lashing’, can now be imposed after much less stringent rules of evidence have been observed than was previously incumbent in any case involv­ing the ‘prescribed offences’ of the Shari'a law. In cases of illicit sex­relations the Shari'a insists either on a confession or the testimony of four legally competent witnesses to the very act, and in default of this almost impossible standard of evidence imposes the prescribed penalty for slander on the accuser, while defamation or wine-drinking must be proved by a similar confession or by the testimony of two competent witnesses.¹ Under the new statute law, on the other hand, these offences may be proved in all the ordinary ways. This represents an amalgamation of the traditional with the modem in a manner which seems to be of questionable propriety,¹ while the combination of a prescribed and discretionary punishment, for one and the same offence, is totally contrary to principle.