Right to Freedom of Thought, Conscience, and Religion
This right is entrenched in Article 18 of the UDHR, Article 1 of the ICCPR and Article 8 of the African Charter on Human and People’s rights.
S. 38(1) of the 1999 constitution provides:
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.
The right to conscientious objection came to the fore in the United States during the course of the Vietnam War. In Welsh v United States, the Supreme Court held that objection to participation in the armed forces based on non-theistic, philosophical, sociological and historical grounds is legitimate, the central consideration here being whether the belief plays the role of, and functions as religion in the life of the objector.
See the case of Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo where the court held that:
The right to freedom of thought, conscience and religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in.
In the above case, the deceased and her husband refused blood transfusion based on religious belief and as a result of which she eventually died. The court held that the right of an adult patient to refuse transfusion based on religious belief outweighs any duty that may be imposed on the medical practitioner to act to the contrary or discharge after letting her know the consequences of her actions.
The right to freedom of thought, conscience and religion also contains the freedom to change one’s religion. This right is however not generally recognized in the Islamic world because according to Sharia law, any Muslim who repudiates his faith in Islam is guilty of a Capital Offence punishable by death. This obviously offends against this constitutional right.
There is also the right to manifest and propagate religion. Propagation here must be proper and without coercion. In the case of Kokkinakis v Greece as such, the court held that non-criminal proselytization remains the main expression of freedom to propagate religion and the attempt to make converts is not itself an attack on the freedom and belief of others when not coercive. As a strategy in upholding this right to manifest and propagate religion, S.10 of the Constitution states that:
The Government of the Federation or of a State shall not adopt any religion as State Religion.
In the light of this, the introduction of Sharia law as state law in some of the northern states of Nigeria under the Fourth Republic cannot in any way be justified.
The provisions of S. 38(2) and (3) also reinforce this right by stating that:
(2) 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.
(3) 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.
Finally, S. 38(4) provides:
Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.
In the case of AMORC V Awoniyi, the court declared that the appellant organization was a secret society within the meaning of this section and thus, could not use the right to freedom of thought and conscience as a defence. It is said that the courts decide against secret societies based on public policy.