Canon/Ecclesiastical Law And The Nigerian Constitution
By HON JUSTICE C.E. KALAJINE ANIGBOGU (RTD), KSP, FTTC.
There has been growing concern in some Christian circles over the seeming marginalisation of the Christian Faith in the Nigerian Constitution. The introduction of the Sharia Court of Appeal and the elaborate provisions for the enforcement or application of Muslim or Islamic Personal Law in the Constitution without any single reference or provision for the application of or enforcement of “Christian values or laws”, right from the 1979 Constitution, has been a source of worry for many Christian communities and organisations in Nigeria.
Christian norms and usages are ordinarily referred to as Ecclesiastical law which is the law established by a church or religious denomination and administered in its courts. Ecclesiastical Law, also referred to as Canon law is the law, whether of ecclesiastical or civil origin, usually codified, applying to and governing a particular church.
The erstwhile Federal Military Government of Nigeria, on the 5th of May, 1999, by Section 1 of the Constitution of the Federal Republic of Nigeria (Promulgation) Decree No. 24 of 1999 promulgated the 1999 Constitution purporting it to be the collective resolve of all the peoples of Nigeria,
“to live in unity and harmony as one indivisible and indissoluble Sovereign Nation under God…”.
Section 10 of the said Constitution also provides that
“The Government of the Federation or of a State shall not adopt any religion as a State Religion”.
Chapter VII, Pt IE in Sections 260 – 264 and Pt IIB Sections 275 – 279 of the Constitution provide for the establishment of the Sharia Court of Appeal at the Federal and State levels respectively. Sections 262 and 277 confer jurisdiction on the respective Sharia Courts of Appeal to;
- In addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly (or Law of a State), exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law;
- Any question of Islamic Personal Law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or guardianship of an infant;
- Where all the parties to the proceedings are Muslims, any question of Islamic Personal Law regarding a marriage including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant;
- Any question of Islamic Personal Law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim;
- Any question of Islamic Personal Law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm; or
- Where all the parties to the proceedings, being Muslims, have requested the court that hears the case in the first instance to determine that case in accordance with Islamic Personal Law, any other question.
These constitutional provisions for the implementation and enforcement of Islamic law, at the appellate level, which presuppose that there must of necessity be in existence courts of original jurisdiction/first instance in Islamic Personal Law matters at the State level, have been viewed as forming the basis or background for the adoption and propagation of Islamic law and usages as a religion in some States and indeed in the Federation hence the agitation for the entrenchment of Christian values and norms in the Constitution in order to strike a balance and ensure a measure of equality and equity.
Why was it necessary to build in the provisions for the Islamic courts in the Constitution in the first place? There was the growing feeling among the Muslim community or adherents that the Nigerian Constitution and indeed the body of laws as received from the Colonial masters was Christian in orientation. This notion was based on the fact that Nigeria received her independence from Great Britain, a Christian Country, and as such, to the average Muslim, therefore, all the laws and the Constitution were Christian in nature and did not meet the needs and aspirations of the Muslim population in Nigeria.
It would appear, however, that the framers of the Constitution, in attempting to strike a balance, made equivalent and elaborate provisions for the Customary Court of Appeal for any States that desired it. Chapter VII Pt. IF and Pt. IIC of the Constitution in Sections 265 – 269 and 275 – 279 provide for the establishment of the said Courts at Federal and States levels respectively. At the Federal level, S. 267 provides that the Court shall;
“in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law”.
For the States, S. 282 (1) & (2) provide that;
“A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law”.
Some Christian analysts and critics of the Constitution have argued, and quite rightly too, that the Customary Court of Appeal is not the Christian equivalent of the Sharia Court of Appeal and that the jurisdiction conferred on it by the Constitution has no bearing with Christian norms and usages.
The relationship between Christianity, the law and the Constitution as we have it today is basically that the law, as it operates in the ‘Common Law World’, deals with issues of the Christian or citizen’s relationship with his neighbour and the State. The Ten Commandments, as spelt out in Exodus 20: 1-17 and the subsequent Divine Decrees in Leviticus and Deuteronomy prescribe the modalities for relationship between Man and God on the one hand and the relationship between Man and Man on the other. These groups of Divine Laws were classified into two main parts by our Lord Jesus Christ in Mark 12: 29 – 31 thus:-
“The first of all the commandments is, Hear, O Israel; the Lord our God is one Lord: and thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind, and with all thy strength: this is the first commandment. And the second is like, namely this, Thou shalt love thy neighbour as thyself: There is none other commandment greater than these”. In Matthew 22.39 He concluded, “On these two commandments hang all the law and the prophets”.
The first commandment in the summary above covers Exodus 20: 1 – 11 while the second covers Exodus 20: 12 – 17. In the Anglican Catechism the candidate for Confirmation is taught to appreciate these two segments of the Ten Commandments as ‘my duty towards God’ and ‘my duty towards my neighbour’ respectively. (The Book of Common Prayer, P.197). It is worthy of note that in ancient England, the State legislated on these two aspects of the Ten Commandments. Offences and liabilities arising there from were enquired into by both the civil courts and the ecclesiastical courts as the case may be. It is believed that the State adopted that line of action in order to protect the Church of England to which the monarchy belonged from the influence of the Church of Rome. As at the death of King Edward VI, there was an Act for the Uniformity of Common Prayer, and Service in the Church, and Administration of Sacraments, which was abolished by Queen Mary and re-enacted by Queen Elizabeth I in 1557 which is the foundation for the Book of Common Prayer used in the Anglican Church in Nigeria prior to the introduction of the Church of Nigeria (Anglican Communion) Book of Common Prayer. (The Book of Common Prayer, Pp 4– 8).
An example of the State legislation for the Church in Nigeria is the case of St. Saviour’s Colonial Church, Tafawa Balewa Square, Lagos, now known as Our Saviour’s Church, TBS, Lagos. The Church was set up by an Act of Parliament of the British Government. Between 1909 and 1957 when it was under the control of the colonial masters, whatever decision or action concerning the church was to pass through the British Parliament. The Church which started on the 23rd of December, 1909 and later relocated on the 24th of December, 1911 was re-named and given a new status by the St. Saviour’s Church Council (Incorporated) Act No. 2 of 1923, Cap 35 Laws of the Federation of Nigeria. This was the pattern of church and state administration as it existed in England and was not extended to other churches and Christian Denominations in Nigeria and so could not have been given a place in the successive constitutions of the Country. Christian norms and usages, therefore, which can only be regulated by Canon/Ecclesiastical law and enforced in Ecclesiastical Courts were not entrenched in the Constitution.
The difference between Christian values and norms and Islamic values and norms is that the State does not now legislate for the Church here. The Church or Churches have their Canon Laws as separate from municipal law whereas in Islam the adherents have no customary or other personal law apart from Islamic law. Islamic law governs both the relationship between the Muslim and Allah and the Muslim and his fellow Muslim. So, what could be regarded as the canon law for the Muslim encompasses his entire religious worship and daily civil life and as far as he is concerned, the Nigerian Constitution is Christian in concept and he must of necessity have his own religion and life protected.
For the Muslim, there will be no compromise but for the Christian, he has to find means to articulate his own code in a way that will be acceptable for introduction into the Constitution.
In the Catholic World, the Vatican promulgates the Code of Canon Law for the Catholic Church worldwide. The current Code of 1752 Canons, issued under the Hand of His Holiness Pope John Paul II in the Apostolic Constitution of 25th January, 1983, is a revision of the earlier Code of 1917 and applies to the whole Catholic World. (Pope John Paul II, Apostolic Constitution, Sacrae Disciplinae Leges, 25th January, 1983.). The Catholic Church has ONE Code of Canon Law.
In the Anglican Church, the situation is different.
“The Anglican Church still awaits a definitive treatment of the canon law of its member churches. Unlike the Roman Catholic Church, which has its Code of Canon Law 1983 containing ‘universal law’ applicable to the Latin Church throughout the world, the Anglican Communion has neither a central legislative body competent to legislate for all member churches nor, consequently, a body of globally binding law. Each church in the Communion is autonomous, with its own constitution, its own corpus of canons and other regulatory instruments”.
(Canon Law in the Anglican Communion; A Worldwide Perspective. Norman Doe. Clarendon Press. Oxford. 2003. P. xi.).
The Reverend Wayne Hankey wrote in an essay in 1988; “the diversity of Canon law and attitude toward it in the Anglican Churches is overwhelming… Strict legal uniformity is not to be expected in the Anglican Communion nor can it be found. But there are common legal traditions and patterns. The Communion has a unity in fundamental canon law, although it cannot be doubted that this unity is at risk.”
(W. Hankey, ‘Canon Law’ in S. W. Sykes and J. Booty (eds), The Study of Anglicanism (London, 19880, 200 at 206, 213).
The situation in the Anglican Church is the same as in other Churches, Methodist, Presbyterian, etc. As at today, there are over 120,000 registered independent churches in Nigeria, each with its own peculiar constitution and canons.
The question that begs for answer, here, is this;
‘With this multiplicity of churches, with their peculiar constitutions and canons, can principles of Ecclesiastical Law and usages find a place in the Nigerian Constitution to balance up the presence of Islamic law and practice?’
The Christian Church has to think fast and deep.
The results of the interactions between the National Christian Elders Forum and the different Blocs in the Christian Association of Nigeria have to be given serious consideration and the Action Plan as articulated deeply considered and proactively pursued so as to achieve the desired unity that will empower the Nigerian Church to push for constitutional reforms to protect the Church. First of all, the Church should accept and believe that the common law worldwide and our constitution minus the provision for Islamic practices are all hinged on the second Commandment of Our Lord and Saviour Jesus Christ, – ‘Thou shalt love thy neighbour as thyself’.
The unity which we preach in the Elders Forum must be pursued with Christian zeal and vigour so that the prayers of our Lord Jesus Christ in John 17; 20 – 26 ‘ ut omnes unum sint’ ‘that one all may be’ will not be in vain. It is only Church Unity that can guarantee a proper place for ecclesiastical norms and principles in the Nigerian Constitution. The Customary Court of Appeal is neither Christian nor Christian oriented and is also not the Christian equivalent of the Sharia Court of Appeal.
The Church’s one Foundation is Jesus Christ THE Lord.