The Nigerian Senate passed the Federal Road Safety Corps Amendment Bill, proposing a ₦50,000 fine for anyone caught preaching, trading, or hawking inside commercial transport vehicles. The Bill is purportedly aimed at reducing driver distractions and improve road safety, though it still requires Presidential assent to become law. The Lawmakers stated that the rule aims to limit noisy and physical disruptions in moving vehicles, to protect passenger safety and reduce road accidents. There had also been a call for a law to ban Muslims’ call to prayer through loudspeakers. Does this amount to interference with fundamental rights, such as freedom of thought, religion and expression? Kunle Edun, SAN; Norrison Quakers, SAN and Chris Agbiti, tease out and interrogate the issues in the proposed law
Legal Analysis of Proposed Law/ Restrictions on Religious Expression in Nigeria
Examining (1) preaching in commercial buses and (2) the Muslim call to prayer, with particular reference to fundamental rights under the 1999 Constitution (as amended)
Kunle Edun, SAN
Introduction
The controversy surrounding the restrictions on religious activities in Nigeria, raises an important constitutional question: when the State regulates conduct that is religious in character, does the regulation merely constitute a lawful restriction for public safety and public order, or does it amount to an unconstitutional interference with fundamental rights?
The two issues require separate consideration. The first is the reported restriction/proposed sanction against preaching in commercial vehicles, under the Federal Road Safety Corps (FRSC) legislative proposal. The second is the question of whether a governmental prohibition or severe restriction of the Muslim call to prayer (adhan), particularly through public loudspeakers, would interfere with constitutional religious freedom.
The analysis below treats the two issues separately, and then gives an overall conclusion on whether the proposed restrictions amount to interference with fundamental rights. It is important to state at the outset that, the current Nigerian FRSC controversy concerns preaching in commercial vehicles. I have not found reliable evidence of any current legislation, banning the Muslim call to prayer. The second issue is therefore, analysed as a constitutional hypothetical, while distinguishing it from the FRSC controversy.
It is instructive that Section 10 of the 1999 Constitution, as amended, has already prohibited the Government from adopting any religion. This constitutional provision is flagrantly disobeyed by all tiers of Government; hence, anything that touches on religion is always a sensitive issue in Nigeria. My Lord, Hon. Justice Eko (Rtd Justice of the Supreme Court) once said in the case of Reg. Trustees of Apostolic Church of Christ v Reg. Trustees of Grace Church of Christ (2021) LPELR-55340(SC) (Pp. 46-47 Paras. E)
“…I should think religion, under the Constitution is not a business or purpose any Government in Nigeria should engage itself in. Section 10 of the 1999 Constitution provides clearly and unambiguously-
10. The Government of the Federation or of a State shall not adopt any religion as State religion”.
Proposed Restriction on Preaching in Commercial Buses
The Present Legislative Controversy
The Senate has clarified that the prohibition on preaching and hawking in commercial vehicles, is not a new prohibition introduced by the 2026 amendment. According to the Senate, preaching and hawking in commercial vehicles were already offences under Section 10(4) of the Federal Road Safety Commission (Establishment) Act, 2007 and Regulation 220 of the National Road Traffic Regulations, 2012. The Senate stated that the relevant item in the Second Schedule, was merely being renumbered from Item 36 to Item 49 in the amendment process.
The Senate also stated that the Bill does not outlaw street preaching generally or religious activities in public spaces, and that the provision is directed at the safety of commuters and other road users. The distinction is legally significant: a restriction confined to preaching inside commercial vehicles is materially different from a general prohibition on evangelism, Islamic preaching, or religious practice in public spaces.
Does Religious Preaching fall within a Protected Fundamental Right?
Yes. Section 38(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees freedom of thought, conscience and religion, including freedom to manifest and propagate one’s religion or belief in worship, teaching, practice and observance.
Preaching is ordinarily an act of teaching or propagating religious belief. It therefore, falls within the scope of conduct capable of receiving protection under Section 38. The constitutional protection is not limited to private belief; it expressly includes manifestation and propagation in public or private.
The expressive character of preaching also brings Section 39(1) into consideration. Section 39 protects freedom of expression, including the right to hold opinions and to impart ideas and information. Religious preaching is therefore, capable of engaging both freedom of religion and freedom of expression. In Abdulkareem v Lagos State Government (2016) JELR 57014 (CA), the Court of Appeal, Lagos Division, considered the right of Muslim female students to wear the hijab in public schools. The case directly relates to the constitutional protection of religious manifestation, under Section 38 and discrimination under Section 42.
The State cannot interfere with a religious practice, without establishing sufficient legal justification. The fact that Government has an administrative or public-interest objective does not, by itself, remove the conduct from constitutional protection. Religious freedom must be respected, but a genuinely established public-safety interest may justify a properly limited restriction where the Constitution permits such limitation.
Section 45: Can the Right be Restricted or Derogated from?
Section 45(1) of the Constitution provides the principal general limitation relevant to Sections 38 and 39 of the Constitution. It provides that nothing in Sections 37, 38, 39, 40 and 41 shall invalidate a law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health, or for protecting the rights and freedoms of other persons.
Consequently, the existence of interference with a fundamental right, does not automatically make the law unconstitutional. The question is, whether the interference falls within the constitutional limitation.
For the bus-preaching issue, public safety is the strongest justification available to the State. If preaching in a moving commercial vehicle creates a demonstrable risk of distracting the driver, obstructing passengers, interfering with the operation of the vehicle or otherwise compromising road safety, the State has a legitimate interest in stopping it. However, a law that directly prohibits religious preaching, may carry a heavier constitutional burden than a neutral safety rule that applies to all comparable conduct.
The restriction on preaching in commercial vehicles does incur fundamental rights questions, particularly Sections 38 and 39 of the Constitution. However, it does not follow automatically, that the restriction is unconstitutional.
Therefore, the better conclusion is that the provision constitutes an interference with a constitutionally protected interest, but the interference may be constitutionally permissible if it satisfies Section 45 and is reasonably justifiable, necessary and proportionate in a reasonable society.
Proposed Ban or Restriction on the Muslim Call to Prayer (Adhan)
Is the Adhan a Religious Practice Protected by Section 38?
Yes, at least, in principle. Section 38(1) of the Constitution protects the freedom to manifest and propagate religion in worship, teaching, practice and observance. A call to prayer is plainly connected with the practice and observance of Islam.
A law that specifically prohibits Muslims from making the call to prayer because it is an Islamic religious practice would therefore, directly violate Section 38 of the Constitution. It would not merely regulate a neutral activity; it would regulate a practice because of its religious character.
The constitutional position becomes particularly strong where the law is directed specifically at Islam or Muslims, rather than at the neutral problem of excessive noise.
It is important to distinguish the Adhan itself, from the method by which it is broadcast.
The State may have a legitimate interest in regulating loudspeakers, excessive noise, public disturbance or the hours during which amplified sound may be used. A neutral noise-control law can apply to mosques, churches, political rallies, commercial announcements and other sources of amplified sound. Such a law does not necessarily prohibit religion. It regulates the manner in which sound is produced, in a shared public environment.
Conclusion
Section 42 of the Constitution which protects citizens against discrimination on the ground of religion amongst others, is relevant where a restriction singles out a person or group because of religion. Government should therefore, adopt religion-neutral rules when regulating public conduct.
For example, a rule stating that no place of worship may use an external loudspeaker above a specified decibel level, may be capable of applying equally to mosques and churches. A rule stating that mosques alone may not broadcast the Adhan, may be considered discriminatory and thus, unconstitutional.
Selective enforcement would strengthen the argument that the measure is discriminatory, and not genuinely directed at a neutral public-order or environmental objective.
Kunle Edun, SAN
Religious Freedom, Public Order and the Constitution:
A Legal Appraisal of the Proposed Ban on Preaching in Commercial Buses and Restrictions on the Muslim Call to Prayer
Norrison Quakers, SAN, FCArb
Introduction
The recent controversy surrounding the proposed prohibition of preaching in commercial buses in Nigeria has generated an important constitutional debate: how far may the State go in regulating religious expression without violating the fundamental rights guaranteed by the Constitution?
The issue has become particularly significant, because the controversy over preaching in buses has been accompanied by broader debates concerning the regulation of religious activities, including the use of loudspeakers for the Muslim Adhan, or call to prayer.
The Federal Road Safety Corps (Amendment) Bill, 2026, has attracted criticism because of a provision concerning preaching, hawking and trading in commercial vehicles. Reports initially described the provision as introducing a new ban, although the Senate subsequently stated that the prohibition had existed under the FRSC Act and the National Road Traffic Regulations since 2007, and that the current amendment merely renumbers the relevant provision.
This distinction is important. The constitutional question is not simply whether Government can regulate conduct in commercial vehicles. It plainly can. The real question is whether the particular restriction imposed upon religious preaching is constitutionally permissible, and whether a restriction directed specifically at the Muslim call to prayer would survive constitutional scrutiny.
In my view, the answer requires a careful distinction between regulation and prohibition.
A law genuinely directed at road safety, applicable equally to religious and non-religious activities capable of distracting a driver, may be constitutionally defensible. But, a blanket prohibition whose real or practical effect is to prevent the manifestation or propagation of a particular religion, or which singles out Islam or Christianity for special disability, would raise serious questions under Sections 38, 39 and 42 of the Constitution.
1. The constitutional starting point: Nigeria is a secular constitutional State
The starting point must be the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Section 10 provides that:
“The Government of the Federation or of a State shall not adopt any religion as State Religion”.
This provision does not mean that religion has no place in Nigerian public life. Rather, it means that the State must not establish or prefer a religion, as the official religion of the Federation or of a State.
The constitutional model is therefore, one of religious neutrality and equal protection, rather than hostility towards religion.
The State must neither compel religious observance, nor suppress lawful religious manifestation.
2. Section 38: the express constitutional protection of religious manifestation
Section 38(1) is central to the controversy. It guarantees every person:
“freedom of thought, conscience and religion” and expressly extends that freedom to the right, either alone or in community, and in public or private, to:
“manifest and propagate his religion or belief in worship, teaching, practice and observance.”
The language is remarkably broad.
It does not protect merely the internal belief of a person. It protects manifestation and propagation.
Consequently, freedom of religion under Section 38 has at least two dimensions:
1. the internal freedom to hold a religious belief; and
2. the external freedom to manifest and propagate that belief.
Preaching is plainly capable of falling within the second category.
The National Human Rights Commission has similarly recognised that Section 38 protects the freedom to manifest and propagate religion in worship, teaching, practice and observance.
The Supreme Court has also given considerable constitutional weight, to religious manifestation.
In Lagos State Government & Ors v Miss Asiyat Abdulkareem (Minor) & Ors (2022) LPELR-58517(SC), the Supreme Court considered the right of Muslim female students to wear the hijab in public schools, and upheld the constitutional protection of religious expression. The decision has subsequently, been recognised as an important Nigerian authority on Section 38.
The principle emerging from the decision is significant: where a practice is genuinely connected with religious belief, the State cannot simply prohibit it because it is inconvenient, unpopular or inconsistent with an administrative preference.
3. Preaching is constitutionally protected religious expression
The proposed prohibition of preaching in commercial buses therefore, raises a legitimate constitutional issue.
Preaching is not merely speech, in the ordinary sense. For a person who regards evangelism as a religious obligation, preaching may simultaneously constitute:
• religious practice;
• religious teaching;
• religious propagation;
• expression of belief; and
• communication of religious ideas.
It therefore, potentially falls within both Section 38(1) and Section 39(1) of the Constitution.
Section 39(1) guarantees freedom of expression, including:
“the freedom to hold opinions and to receive and impart ideas and information without interference”.
The Supreme Court’s decision in Lagos State Government v Abdulkareem is particularly relevant, because the Court recognised that religious manifestation is constitutionally protected, even when it takes an external form.
Accordingly, a prohibition against preaching in buses is not simply a traffic regulation. It also has a constitutional dimension, because it regulates the place and manner in which religious expression may occur.
That does not automatically make the prohibition unconstitutional.
But, it means that the law must pass the constitutional test for restricting fundamental rights.
4. Fundamental rights are not absolute
It would, however, be incorrect to argue that Section 38 makes religious conduct immune from regulation.
The Constitution itself recognises limitations.
Section 45(1) permits laws derogating from Sections 37, 38, 39, 40 and 41 where the restriction is reasonably justifiable in a democratic society in the interests of:
• defence;
• public safety;
• public order;
• public morality;
• public health; or
• protecting the rights and freedoms of other persons.
This is the constitutional basis upon which Government may regulate religious activities, that interfere with legitimate public interests.
Thus, the argument cannot simply be:
“Preaching is religious; therefore, Government cannot regulate it”.
That proposition is too broad.
The proper constitutional question is:
“Is the restriction reasonably justifiable in a democratic society, for one of the purposes recognised by Section 45?”
5. Road safety is undoubtedly a legitimate governmental objective
There can be little doubt that, road safety constitutes a legitimate governmental objective.
The State has a duty to protect the lives and safety of passengers, and other road users. If particular activities inside commercial vehicles distract drivers, Government is entitled to regulate those activities.
Indeed, the Senate has explained that the provision concerning preaching and hawking in commercial vehicles, is intended to address activities considered capable of distracting drivers and thereby endangering road users.
The difficulty, however, lies in the means adopted to achieve the objective.
A legitimate objective, does not automatically validate every legislative measure adopted in pursuit of it. There must be a rational relationship between the restriction, and the mischief sought to be prevented.
6. The proportionality question
The most important constitutional question is therefore one of proportionality.
Assuming that preaching may distract a driver, the next question should be:
Is an absolute prohibition on preaching in every commercial vehicle, reasonably necessary to protect road users?
There may be less restrictive alternatives.
For example, Government could prohibit:
• any activity that requires the driver to participate;
• conduct that obstructs the driver’s vision or movement;
• excessive noise directed at the driver;
• activities occurring while the vehicle is in motion, where the driver is required to participate;
• interference with the driver’s concentration;
• aggressive solicitation of passengers; or
• any religious or secular activity which demonstrably distracts the driver.
Such legislation would be content-neutral.
It would not prohibit Christianity.
It would not prohibit Islam.
It would regulate conduct, because of its effect on road safety.
That is constitutionally much easier to defend.
7. The danger of a blanket prohibition
A blanket prohibition, presents a more difficult constitutional problem.
Consider two situations.
A Preacher enters a bus, stands near the rear of the vehicle and quietly speaks to passengers who voluntarily listen, without engaging the driver.
Contrast that with a Preacher who stands beside the driver, uses a loudspeaker and demands the driver’s participation.
The two situations, do not present the same safety risk.
A law that treats them identically, may be vulnerable to the argument that it is over-broad.
The constitutional issue is therefore, not whether Government may regulate preaching, but whether it has adopted a restriction that goes further than reasonably necessary to achieve the legitimate objective.
This distinction is critical.
8. The Senate’s clarification does not eliminate the constitutional question
The Senate’s clarification that the prohibition already existed under the 2007 FRSC legislation and the National Road Traffic Regulations, is legally significant.
But, the fact that a restriction has existed since 2007 does not, by itself, establish its constitutionality. A law does not become constitutional, merely because it has been on the statute book for many years. If challenged, the court would still have to determine whether the restriction is consistent with the Constitution.
Section 1(3) of the Constitution establishes the supremacy of the Constitution, and provides that any law inconsistent with the Constitution is void to the extent of the inconsistency.
Thus, the appropriate question remains whether the restriction can be justified under Section 45.
9. The Muslim call to prayer raises a different, but related question
The issue of the Muslim call to prayer, or Adhan, requires a more nuanced analysis.
The Adhan is not merely a secular announcement. It is intrinsically connected with Islamic religious observance. Its purpose is, to call Muslims to prayer.
Consequently, a governmental prohibition specifically directed at the Adhan would engage Section 38.
If Government were to enact a law stating, expressly or in substance:
“Mosques shall not broadcast the Muslim call to prayer”,
the constitutional difficulty would be considerable. The State would be regulating, a specifically Islamic religious practice. The question would immediately arise, whether such a law constitutes a restriction upon the freedom to manifest and practise religion.
10. But regulation of the sound of the call to prayer, is different from banning the call to prayer
This distinction is fundamental.
There is a substantial constitutional difference between:
A. “Mosques shall not call Muslims to prayer.”
and
B. “No religious establishment shall use external loudspeakers above a prescribed decibel level, between specified hours.”
The first is religion-specific.
The second is content-neutral.
The second may be constitutionally defensible, because it regulates noise rather than religion.
Nigeria already has a regulatory framework, dealing with noise pollution. The National Environmental (Noise Standards and Control) Regulations, S.I. No. 35 of 2009, are intended to regulate noise levels, and protect tranquility and psychological well-being.
Lagos State’s environmental guidelines similarly, regulate noise from religious houses and require regulated use of speakers, while setting permissible noise levels for different environments.
Thus, there is a perfectly legitimate constitutional route for Government:
Regulate excessive religious noise, without prohibiting religious expression.
11. The principle of equality: Section 42
The constitutional problem becomes even more serious, if a restriction is imposed selectively upon Islam or Christianity.
Section 42(1) prohibits discrimination on the ground of religion. It provides that a Nigerian citizen must not, by reason of religion, be subjected to restrictions to which citizens of other religions are not subjected.
Therefore, if Government prohibits the Muslim Adhan because it is Muslim, but permits Christian religious announcements or amplified religious activities under materially identical circumstances, the provision would raise a strong Section 42 challenge.
Conversely, if Government prohibits Christian preaching in buses, but permits another religion to conduct essentially equivalent religious solicitation or preaching in those buses, the same constitutional difficulty arises.
Constitutional equality requires neutrality.
The State cannot constitutionally adopt a policy of:
“Your religion may manifest itself, but theirs may not”.
12. The constitutional test should be religion-neutrality
The appropriate test should therefore be:
Is the State regulating the harmful conduct, or is it regulating the religion?
If the law says:
“No person shall engage in an activity which distracts the driver of a commercial vehicle”,
the law is directed towards safety.
But, if it says:
“No person shall preach Christianity in a commercial vehicle”,
it is directed towards religious expression.
Likewise:
“No religious institution shall operate an external loudspeaker above 55 decibels at night”,
is fundamentally different from:
“Mosques shall not broadcast the Adhan”.
The former regulates noise.
The latter regulates religion.
This distinction should inform the interpretation of any proposed legislation.
13. The African Charter reinforces the constitutional protection
The constitutional protection is reinforced by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
Article 8 of the African Charter provides:
“Freedom of conscience, the profession and free practice of religion shall be guaranteed”.
Article 9 protects the right to receive information and to express and disseminate opinions.
Article 11 protects peaceful assembly, subject to necessary restrictions provided by law in specified circumstances, including public safety and the rights and freedoms of others.
The Supreme Court has recognised the special position of the African Charter, within Nigeria’s legal system. In Abacha v Fawehinmi, the Court recognised that the domesticated Charter forms part of Nigerian law, although it remains subordinate to the Constitution. The Charter is therefore an important interpretive instrument in assessing restrictions upon fundamental rights.
14. Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo
The Supreme Court’s decision in Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001) 7 NWLR (Pt. 711) 206; (2001) 10 WRN 1; [2001] NGSC 14 is also instructive.
The case concerned a Jehovah’s Witness Doctor’s religious belief, and the question of religious freedom in the context of medical practice.
The significance of the decision lies in the Court’s recognition that religious conviction is constitutionally protected, and that the State must take the constitutional freedom of conscience and religion seriously.
The case does not establish that religious conduct is immune from all regulation. Rather, it illustrates the principle that the State must not unnecessarily intrude into genuine religious belief and practice.
15. The Supreme Court’s decision in Lagos State Government v Abdulkareem
The most directly relevant modern authority is Lagos State Government & Ors v Miss Asiyat Abdulkareem (Minor) & Ors (2022) LPELR-58517(SC); (2022) 17 NWLR (Pt. 1859) 213.
The case concerned the prohibition of hijab in Lagos public schools.
The Supreme Court’s decision is significant, because it demonstrates that a religious practice cannot be prohibited merely because the State has adopted a competing administrative policy.
The Court upheld the religious rights of the Muslim students, and the decision has been described as an important reinforcement of Section 38.
The principle has direct relevance to the present debate:
Where a State regulation substantially interferes with a religious practice, the State must demonstrate a constitutionally permissible justification for the interference.
16. The rights of other passengers must also be protected
There is, however, another side to the constitutional equation.
A passenger in a commercial bus also has constitutional rights.
No person should be compelled to listen to religious preaching.
The right to freedom of religion includes the right not to adopt another person’s religion.
The Constitution itself recognises this principle in Section 38(2), which protects persons from being compelled to participate in religious instruction or religious ceremonies of another religion in specified educational circumstances.
More broadly, the right of one person to express a religious belief does not automatically confer a right to compel another person to receive or participate in that expression.
This is why regulation may legitimately address:
• harassment;
• intimidation;
• coercion;
• excessive noise;
• obstruction;
• interference with the driver;
• threats;
• forced financial contributions; and
• other conduct infringing the rights of passengers.
The constitutional solution, however, should ordinarily be to regulate coercive or harmful conduct, rather than to prohibit the underlying religion.
17. A distinction between voluntary participation and compelled participation
The law should distinguish between:
voluntary religious expression and compulsory religious participation.
If passengers voluntarily listen to a short prayer or sermon, there is a stronger argument for constitutional protection.
If passengers are prevented from leaving, threatened, abused or compelled to listen, the situation changes dramatically.
Likewise, if a preacher’s conduct interferes with the driver’s ability to operate the vehicle safely, government has a strong justification for intervention.
The Constitution protects religious freedom, but it does not create a constitutional right to endanger other people.
18. The danger of using public safety as a pretext
There is, however, a constitutional danger in invoking “public safety” as a generic justification for restrictions that are actually motivated by hostility towards a particular religious practice.
Courts should examine the substance and practical effect of legislation rather than merely accepting its stated purpose.
The question should therefore be:
1. What is the actual mischief?
2. Is there credible evidence that the regulated conduct causes that mischief?
3. Is the restriction rationally connected to the objective?
4. Is there a less restrictive means of achieving the objective?
5. Does the restriction apply equally to comparable conduct?
6. Does it disproportionately affect one religion?
7. Does it effectively prohibit the manifestation of a protected religious belief?
These questions provide a sound framework for constitutional adjudication.
19. The Muslim call to prayer and noise pollution
There is nothing constitutionally objectionable about regulating noise from mosques, churches or other religious institutions.
Indeed, the rights of neighbours must be protected.
Lagos State’s environmental framework already recognises that religious houses must regulate their use of speakers and operate within permissible noise levels.
The Federal Noise Standards and Control Regulations likewise provide a general framework for controlling excessive noise.
The constitutionally preferable approach is therefore:
control the volume, duration, timing and external impact—not the religious content.
If a mosque broadcasts the adhan at an excessive volume, the appropriate regulatory question should be:
Is the volume lawful?
not:
Is the message Islamic?
The same principle must apply to churches.
If a church uses loudspeakers at a volume that constitutes a nuisance, it should be regulated on the same basis.
20. Selective enforcement would be constitutionally problematic
Even a facially neutral law can become unconstitutional in its application.
Suppose a law prohibits excessive external religious sound.
If authorities enforce it rigorously against mosques but ignore comparable noise from churches, the affected Muslims could potentially challenge the discriminatory application of the law under Section 42.
Conversely, selective enforcement against Christian churches could equally raise constitutional concerns.
The constitutional obligation is therefore not merely to enact neutral legislation but to administer it neutrally.
21. Is the proposed bus-preaching prohibition unconstitutional?
The answer requires qualification.
If the prohibition is genuinely a road-safety regulation
If the law is interpreted and applied as a content-neutral prohibition against activities in commercial vehicles that interfere with the driver or compromise passenger safety, it has a strong constitutional justification under Section 45.
If it operates as an absolute prohibition on religious propagation
If, however, it prevents peaceful religious communication merely because it is preaching, regardless of whether the activity distracts the driver or endangers passengers, the constitutional challenge becomes substantially stronger.
Such a law directly affects:
• Section 38 — freedom of religion;
• Section 39 — freedom of expression;
• potentially Section 40 — freedom of association;
• and, depending on its application, Section 42 — freedom from religious discrimination.
The question would ultimately be whether the restriction is reasonably justifiable in a democratic society.
22. Is a ban on the Muslim call to prayer unconstitutional?
Here the answer is more direct.
A religion-specific prohibition on the Muslim call to prayer would, in my opinion, face a very serious constitutional challenge.
It would engage:
• Section 38 — freedom of religion;
• Section 39 — freedom of expression;
• Section 42 — freedom from discrimination on the ground of religion;
• Section 45 — which provides the permissible constitutional grounds for restriction;
• Article 8 of the African Charter — freedom of conscience and free practice of religion; and
• Article 9 of the African Charter — freedom of expression.
The position would be different if the law merely imposed generally applicable noise limits upon all religious establishments.
Such a law could be constitutionally legitimate because it would protect the rights, health and tranquillity of others without discriminating against a particular religion.
23. The constitutional principle of equal inconvenience
There is an important principle that should guide the legislature:
If religious activity creates a legitimate public problem, the State should regulate the problem in a manner that imposes equal inconvenience on comparable religions.
If the use of external loudspeakers creates excessive noise, regulate external loudspeakers.
If preaching distracts drivers, prohibit conduct that distracts drivers.
If religious solicitation harasses passengers, prohibit harassment.
If commercial activity interferes with road safety, regulate commercial activity.
But the State should not use a general public-interest objective as a vehicle for suppressing one religion’s lawful manifestation.
Conclusion
Nigeria’s constitutional democracy requires a delicate balance between religious freedom and the legitimate interests of public safety, public order, public health and the rights of others.
The proposed restriction on preaching in commercial buses cannot properly be analysed simply as an attack on religion, nor can it be automatically justified merely by invoking road safety.
The constitutional inquiry must be more exacting.
The State unquestionably has power to regulate conduct in commercial vehicles. It also has power to regulate excessive noise from churches, mosques and other institutions.
But, that regulatory power is subject to the Constitution.
Section 38 protects not merely private belief but the right to manifest and propagate religion in worship, teaching, practice and observance. Section 39 protects the expression through which religious ideas are communicated. Section 42 prohibits discrimination on the ground of religion. Section 45 permits restrictions, but only within constitutionally recognised limits.
Consequently, the better constitutional approach is not an indiscriminate prohibition of religious activity.
It is reasonable, proportionate, religion-neutral regulation.
The State may regulate the manner, volume, timing and circumstances in which religious activity occurs.
It should be much more cautious about regulating the religious message or practice itself.
Thus, a law prohibiting a preacher from distracting a driver may be constitutional.
A law prohibiting a preacher from preaching because the message is religious is much more questionable.
A law regulating excessive sound from a mosque may be constitutional.
A law prohibiting the Muslim adhan because it is an Islamic religious practice would raise a substantially stronger constitutional objection.
The distinction may be summarised in one sentence:
The Constitution permits the State to regulate the harmful effects of religious expression; it does not readily permit the State to suppress religious expression merely because it is religious.
The ultimate constitutional test should therefore be whether the legislation is necessary, reasonable, proportionate, non-discriminatory and genuinely directed at a constitutionally legitimate public interest.
That approach protects both sides of the constitutional equation: the right of the believer to practise and propagate his faith, and the right of every other citizen to safety, peace, tranquillity and freedom from coercion.
In a religiously plural society such as Nigeria, that is not merely a legal necessity. It is an essential condition for constitutional democracy and peaceful coexistence.
Note on the current legislative controversy: the Senate has publicly stated that the prohibition concerning preaching and hawking in commercial vehicles was already contained in the FRSC legal framework, and that the current amendment does not create a new prohibition. It also stated that the amendment is directed at road safety, rather than public or street preaching generally. The constitutional analysis above therefore, applies both to the existing provision and to any proposed expansion or enforcement of it.
Norrison Quakers, SAN, FCArb
The New Amendment to the FRSC Act Banning Preaching on Public Buses and the Conundrum of Religious Sensitivity
Chris Edache Agbiti
The recent legislative exercise at the Senate of the National Assembly culminating in the passage of an amendment to an existing piece of legislation (now awaiting the assent of Mr President) particularly, Section 10(4) of the FRSC Establishment Act, 2007 and Regulation 220 of the National Road Traffic Regulations, 2012, criminalising, among other infractions, the all-pervasive religious practice of preachments, particularly on commercial vehicles, has again further open up the smouldering fissures of religious sensitivity in our national life.
Scarcely had the first publication of the legislative exercise in the Hansard rolled out of the prints when the religious, nay, legal space went agog with multi-dimensional finger-pointing coming from various stake holders and interest groups, particularly, faith-based organisations and individuals, who perceive themselves as victims at the receiving ends of what has generally being coloured in conspiratorial narratives, as unjust piece of legislation with specific target to achieve the ends of muzzling expression of religious freedom against, and in favour of, certain interests.
In the determination of whether or not a piece of legislation serves the ends of justice for the people, the law itself, paradoxically, is the parameter for that evaluation. The law under reference is not just any law, but the fons et origo, the grundnorm, popularly called the Constitution, and in this context, the extant Constitution of the Federal Republic of Nigeria, 1999 (as amended), (hereinafter, called “the Constitution”) constituting the source from which all laws in Nigeria draw their legitimacy.
Any objective assessment or analysis of the justness or otherwise of the passage of the new amendment Bill on the existing Road Safety Act, can only find reasonable basis of legitimacy on the constitutional validity donated by the provisions of the extant Constitution.
The big elephant therefore, is to decipher from the Constitution such provisions as contained thereat for the preservation of citizens rights and freedom, to determine whether the amendment to the extant Federal Road Safety Act, particularly as touching the restriction on, and criminalising of, religious preachment on a public transportation facilities.
The provisions of Part (IV) of the Constitution embodying the doctrines of Fundamental Rights, provide the necessary roadmap in the determination of the legitimacy or otherwise of the hoopla around the legislative Bill amending Section 10(4) of the FRSC Establishment Act, 2007 and the subsidiary legislation. Section 38 (1) of the extant Constitution represents, or better still, sits among other provisions in the highest hierarchy of statutory provisions one can find anywhere embodying the pride of place of religious rights under the law. The said Section guarantees in clear terms, the freedom of thought, conscience and religion of every person in Nigeria, either alone or in community with others. However, pretty much like all such rights preserved in the bosom of the Constitution, there is always a restriction on the exercise of the rights in deserving situations, a restriction necessitated by the need for a balance between the individual good that the Fundamental Rights provisions seek to protect and the larger collective societal good that the law generally seeks to preserve.
It is for this reason that the very Section 38 of the Constitution under review, equally has a specific proviso in derogation, albeit in respect of religious instruction in education, under subsection (2) thereof, thus:
“(2) No person attending any place of education shall be required to receive religious instruction or 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 a religion not approved by his parent or guardian”.
When all of the above is balanced against the equally constitutional provisions protecting the right to privacy of every person in Nigeria, as guaranteed under Section 37 of the Constitution, it makes all the more compelling the need for a balancing act between the various individual goods the constitutional provisions guaranteeing individual right to his religious belief and another right to privacy equally guaranteed on the same plane of legal order. In practical terms, the right to preach on a public commercial bus consisting of a motley of religious interests, and the right to privacy of individuals on that same bus, against the invasion of, and participation in, a religious activities that are contrary to his own beliefs, inexorably, creates a discomfort and disorderliness, an expression of which may likely result in conflict, and defeating thereby, the contractual rights of peaceful enjoyment embodied in the public transportation process that Section 10(4) of the FRSC Establishment Act, 2007 and Regulation 220 of the National Road Traffic Regulations, seek to regulate in the public interests. The Supreme Court has equally espoused the law in this regard in Nwankwo v. Nwankwo (1995) LPELR-2110(SC) where the Apex Court explicitly stated that “the purpose of the law is to protect public interest.” The court affirmed that the law does not create standalone private rights, or allow individuals to claim private reliefs in matters that fundamentally concern the contravention of public laws or public rights.
The likely corollary question as to the superiority of the Constitution embodying Section 38(1) anchoring the legitimacy narratives against Section 10(4) of the FRSC Establishment Act, 2007 and Regulation 220 of the National Road Traffic Regulations, 2012, constituting the basis of some sectional angst against the amended bill, FRSC Establishment Act, 2007, is therefore answered and resolved at the doorstep of the general proviso encapsulated in the ipsissima verba of Section 45(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), thus:
“45.- (1) Nothing in Section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonable justified in a democratic society.”
Applying the above to the vexed issue in discourse, there is no gainsaying the fact that as a democratic society that Nigeria is, the Bill amending Section 10(4) of the FRSC Establishment Act, 2007 and Regulation 220 of the National Road Traffic Regulations, 2012, criminalising preachment on a public bus qualifies as a law justified to curtail or guard against likely disorderliness, chaos, religious sensitivity and protect safety of lives in a democratic society, having regard to the preamble to the said FRSC Establishment Act, 2007.
The conspiratorial narrative, therefore, that the Bill seeks to muzzle the expression of constitutionally guaranteed freedom to espouse one’s religious belief in favour of another religious group, as being bandied by the various faith-based interests groups, at best narratives in sentiments, therefore non-starters.
Chris Edache Agbiti, Partner, A. A Malik & Co, Abuja