First, I wish to clarify one aspect of Bishop Chane's op-ed to the Washington Post. The United Nations Universal Declaration on Human Rights (UDHR, 1948) is not binding, as there are no signatories. It is not a treaty or convention in any traditional sense -- it is simply a statement of purpose on the part of the United Nations to direct attention to the need for protection against potential human rights violations, and Nigeria is under no obligation to follow it. Here are Articles 18-20 of the UDHR, just for reference (I don't think anyone's actually quoted these yet -- nor do I think that anyone will fundamentally disagree with the spirit of these provisions, as they apply to both Akinola and his Nigerian detractors):
These are non-controversial -- they're like a Unitarian sermon; no reasonable person could disagree. In a post-WWII and Cold War-dominated world, this declaration was critical to developing a much needed sense of political "right" and "wrong." They also enumerate international rights that are consonant with our own American sense of what is and isn't acceptable in a civil society.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
- Everyone has the right to freedom of peaceful assembly and association.
- No one may be compelled to belong to an association.
As I said above, the UDHR is non-binding -- but the International Covenant on Civil and Political Rights (CCPR, 1976) is, and Nigeria joined the Covenant on July 29, 1993. However, while the CCPR establishes a similarly worded, and even expanded, set of rights, as listed here in Articles 18-22 (sorry for the length, but it's worth reading), it lacks teeth. Specifically, as I've highlighted (bold) below, it protects a nation's right to limit certain enumerated rights "to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." In other words, a nation may deem the rights of a group to be null if that group's activities endanger public morals. On the other hand, nations are further permitted to limit the rights of certain groups if the actions of those groups are perceived to endanger of the "fundamental rights and freedoms" of others. I don't know the history of the "public morals" clause and why it was included, and I don't know any of the legal opinion on how these two competing demands, but this qualification is ultimately a disappointment for those seeking unequivocal protection of all forms of speech, assembly, and otherwise, from the UN. I'll let you decide:
What of the Nigerian Constitution? I've talked about the 1st Amendment of the US constitution in other posts, but that's ultimately irrelevant to Nigerian law, as many have pointed out. But Sections 38-40 of the Nigerian Constitution enumerate the same protections as our 1st Amendment with no mention of the need occasionally abridge those rights to protect "public morals":
- Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
- No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
- The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
- For respect of the rights or reputations of others;
- For the protection of national security or of public order (ordre public), or of public health or morals.
- Any propaganda for war shall be prohibited by law.
- Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
- Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
- No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
- Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.
This is the constitutional law in Nigeria as it stands.
- 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.
- No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian.
- No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.
- Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.
- Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
- Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions: Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.
- Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society:
- for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or
- imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.
Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.
According to the Nigerian Same Sex Marriage (Prohibition) Act 2006 (pdf), the following would become illegal:
- Same sex marriage (well, homosexual intercourse is already illegal, so the whole purpose of this legislation appears clouded, until I read the following set of prohibitions)...
- The performance of private same-sex marriages in any place of worship, no matter the denomination.
- The public or private establishment of gay organizations (Spokesman Popoola said that the law does not prevent private clubs -- he was factually incorrect).
- Advocacy in print and electronic media.
The Ethics and Morals I'll leave to you, but I would hope, at least, that most would state unequivocally that the rights of disagreeing parties to advocate their respective positions must not be abridged, especially with a prison sentence. It is that protection that allows to have this debate in the first place -- we must allow that debate to occur freely elsewhere, lest we make a mockery of our own principles.