Equal rights for all, special privileges for none – Thomas Jefferson

The Oxford Dictionary defines the noun, secular, as “not connected with spiritual or religious matters.” That noun, or its adjectival derivation, secularism, is synonymous with non-ecclesiastical, practical, pragmatic, real, temporal and worldly. Within the purview of established constitutional democracies like the United States and Germany; and emerging ones like Nigeria, secularism is strikingly pertinent upon the philosophical anchor of libertarianism -freedom of association, choice, thought – and the rule of law.

The United States Constitution (“USC”) 1787, is an excellent foundation in this treatise, because Nigeria copied its presidential system of government and federal structure from the American model. Thus, Article IV, Section 3 of the USC, establishes that “no religious test shall ever be required as a qualification to any office or public trust under the under the United States.”

Article I of the Amendment to the USC Pursuant to Article V of the original further constitution, stipulates that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These provisions therefore invoke secularism as a significant principle of American constitutionalism. A proposition reinforced by Columbia University history professor, Charles Austin Beard (1897-1948), who affirmed that the USC “does not confer upon the Federal Government any power whatever to deal with religion in any form or manner.”

The German 1949 “Grundgesetz” or “Fundamental Law” (as amended), is equally germane in this context because like Nigeria, Germany, a constitutional democracy, operates a federal system of government. The beating heart of Article 136, through sub-sections 1, 2, 3 and 4 inclusive, of the Grundgesetz, is secularism.

It provides inter alia, that: “civil and political rights shall be neither dependent upon, nor restricted by the exercise of religious freedom.”; “enjoyment of civil and political rights and eligibility for public office shall be independent of religious affiliation.”; “no person shall be required to disclose his religious convictions (affiliations).”; “no person may be compelled to perform any religious act or ceremony, to participate in religious exercises or to take a religious form of oath.”

The inference therein is that religion is a strictly personal affair which does not, and which is not calibrated to impinge upon civil and political rights, within the purview of the German constitution “Grundgesetz”.

Of course, it is non sequitur for the United States and German models of constitutional democracy to automatically apply in Nigeria given the latter’s sovereignty and unique circumstances. That uniqueness offers really interesting insights because Nigeria is a complex multi-cultural, multi-ethnic and multi-religious nation-state exceeding 220 million persons. Nevertheless, Nigeria is part of the international community, and one which seeks to consistently develop a progressive constitutional democracy and the rule of law.

Accordingly, upon the logic of clear-headed statecraft, effective nation-building, enlightened social cohesion and integration policies, the jurisprudential argumentation for secularism is unimpeachable. The rationale is conceptually apprehended because: support for one religion, necessarily imperils other belief systems and religions, which constitutes a zero sum, and therefore negates the pivotal equilibrium of responsible constitutional democracies: equality and consistent application of the rule of law!

Unsurprisingly therefore, a positive statutory codification of secularism is embedded in section 10 of the Constitution of the Federal Republic of Nigeria 1999 (the “Constitution”) thus: “The Government of the Federation or of a State shall not adopt any religion as State Religion.”

Plus, the supremacy of the Constitution, the grundnorm, established via section 1 (1) therein namely: “this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout Nigeria.”

Elegantly drafted provisions? Affirmative! Ideologically pure? Certainly! Well-intentioned? Yes! Do the words match the Nigerian reality and aspiration of secularism? No! Because, the aforementioned Nigerian constitutional provisions on secularism are routinely breached, with intentionality, as a matter of national policy. Three compelling examples illustrate the point.

First, the Nigerian government in 2024, for instance, subsidised Hajj pilgrimage to Saudi Arabia to the tune of N90 billion, approximately USD 60 million! Second, analysis undertaken by the Punch confirmed that thirteen executive state governors subsidised Christian and Muslim religious pilgrimages compromising over 4,770 persons to Israel and Saudi Arabia respectively, to the tune of N14.84 billion (approximately $ 9.9 million), through 2022 and 2023! Third, in 1986, the military regime of General Ibrahim Badamasi (1985-1993), furtively procured Nigeria’s membership, of the Organisation of Islamic Countries (OIC), which aims to “safeguard and protect the interests of the Muslim world.”

These intentional breaches of section 10 of the Nigerian Constitution (supra) as a matter of policy raise fundamental questions. Of what use is section 10, if it is honoured in its breach than in its compliance? Given Nigeria’s extremely volatile socio-economic and security challenges, does spending over N100 billion naira (circa $70 million) using taxpayers’ money on religious pilgrimages make economic sense? Is it justifiable from a social welfare and political logic angle? What is the overriding interest of the state in religion given the fact that it is a personal affair?

By funding Christian and Muslim pilgrimages to foreign lands, Nigeria, of necessity, directly discriminates against African traditional religious devotees, agnostics, atheists and even Christians and Muslims, who satisfy the onerous match funding pre-conditionalities; was this the parliamentary intention? How, if at all, and to what extent, will the National Assembly evaluate Nigeria’s membership of the OIC given its inherent jurisdiction, and legislative powers contained within section 58 (1) of the Constitution? These epic posers are addressed concurrently.

The logic of secularism is sound and entirely reasonable in Nigeria’s constitutional framework given, the country’s multi-cultural, multi-faceted, multi-religious and secularity dynamics. The United States and German constitutions are living proof that the State and religion should not conflate because it is discriminatory, illogical and retrogressive to favour one set of citizens over another set of citizens exclusively on the supine criterion of religious conviction. So, the provisions of section 10 of the Nigerian Constitution on secularism are sound and should be indeed be honoured and embedded in policy. The inference there is that the state has no business funding pilgrimages.

Second, spending over N100 billion ($70 million), or more than 21.8 per cent of the country’s 2024 N2.18 trillion education budget, of Nigeria’s taxpayers’ money on religious pilgrimages, that is, people’s personal beliefs, defies economic logic in a country where: youths (15-24) are Not in Employment, Education or Training was 13.8 per cent in q2, 2023; headline inflation increased from 22.41 per cent in May 2023 to 33.95 per cent in May 2024; the cost of borrowing evidenced by the hike of the monetary policy rate rose from 18.5 per cent to 26.25 per cent within the same period (NBS).

According to the Debt Management Office, Nigeria’s total debt portfolio as at March 31, 2024 was N121.61 trillion ($91.46 billion). Self-evidently, the opportunity cost of spending 21.8 per cent of the country’s 2024 education budget on religious pilgrimages to foreign lands is the displacement effects on vital national priorities like artificial intelligence, defence, education, healthcare, infrastructure development, research and development etcetera.

Third, although section 14 (2) (b) of Nigeria’s 1999 Constitution affirms that “the security and welfare of the people shall be the primary purpose of government”, the material argument is that welfare means social welfare and social security; which accords with the International Labour Organisation’s definition as support for the elderly, children’s maintenance, medical treatment, parental and sick leave, disability benefits, support for victims of occupational injury. Welfare, cannot, rationally mean a religious pilgrimage to foreign lands which is a personal decision and therefore a personal choice.

Fourth, it cannot be the case parliamentary draftsmen, and the parliamentary intention, when drafting the 1999 Constitution, envisaged discrimination against different categories of Nigerians on the strength of their financial capability to provide match-funding for foreign pilgrimages; on the basis of their religious beliefs; or secularism.

No, because the unintended consequence occasioned by the Federal and State governments in funding religious pilgrimages is inherently discriminatory. And, the question of Nigeria’s continued membership of the OIC, is one for the National Assembly to evaluate on the merits against the backdrop of its faulty foundational premise, which lacked democratic legitimacy ab initio. Afterall, the Nigerian people were never given a say on whether or not they wanted their country to join!

In a nutshell, anyone wishing to embark on any pilgrimage should fund it independently, or pool resources with co-operatives, voluntary donors or non-governmental agencies to do so. The existing policy of government-funded pilgrimages to foreign countries, or anywhere, at the humongous expense, of compelling social security needs, financial prudence, re-direction of taxpayers’ resources to frontline education, health and infrastructure services is wholly misplaced and therefore unsustainable.

This proposition accords with Thomas Jefferson’s aforementioned statement and the very essence of the rule of law: equity and justice!

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria, and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development.