The management of the Covenant University, Ota, Ogun State
has suspended about 200 undergraduates of the faith-based institution for
missing an Easter ‘Youth Alive’ program. The school had earlier organized the
four days Easter retreat for the students and had also made attendance
mandatory. However, while some of the students were fed up – for various
reasons – of going for church services in the morning and evening for the four
uninterrupted days, they couldn’t just but miss some days out of the retreat.
Surprisingly and unfortunately to them, they have been punished through
suspension by the school management for simply missing the compulsory Easter
program. Some were suspended for a year.
Suspension is a very serious punishment. As serious as it
is, however, there are instances where it will and must necessarily be
applicable on erring students. Yet, the means by which students are suspended
from school must be reasonable and must be carried out within the confines of
our laws.
This case of the Covenant University suspending about 200 of
its students for not attending an Easter program is a prima facie case of
unconstitutional suspension of university students.
Before continuing with this piece, there is need to state
clearly that if there is any enacted law in the university that have made
attending religious functions compulsory, such law is void and of no effect
whatsoever. I am quite sure that the school would have relied on a particular
written law of the institution before the suspension since “nulla poena sine
lege” – there can be no punishment or penalty without law. And if such law
exists in the school, the law is clearly against the provisions of the
Constitution; the sacred book where all other laws derive their validity. And
if not, that will amount to the height of total unconstitutionality because
there ought to be no punishment without law. See Section 36(12) of the 1999
Constitution.
Interestingly, the school itself is a creation of law and
the law is above the school authority or laws – the Constitution is supreme and
all other laws derive their validity from it. The implication of this is that
its (the school’s) actions must be within the provisions of our laws,
particularly the Constitution. By virtue of Section 1(1) of the 1999
Constitution, the Constitution is supreme and its provisions shall have binding
force on all authorities (including Covenant University authority) and persons
throughout Nigeria. See MADU v. ONUAGULUCHI (1985) 6 NCLR 365.
Therefore, any law made by the institution that is
inconsistent with the provisions of the constitution shall be declared void and
unconstitutional. Section 1(3) of the Constitution goes further to provides
very clearly that “if any other law is inconsistent with the provisions of this
constitution, this constitution shall prevail, and that other law shall to the
extent of the inconsistency be void.” See ABACHA v. FAWEHINMI (2000) 6 NWLR
(Pt. 660) 228; F.R. N. v. IFEGWU (2003) 15 NWLR (Pt. 842) 113; A.G ABIA STATE
v. A.G. FEDERATION (2002) 6 NWLR (Pt. 763) 264.
First, the students’ right to freedom of thought, conscience
and religion guaranteed under section 38(1) of the 1999 Constitution has been
breached. The section provides thus “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, in public or
private) to manifest and propagate his religion or belief in worship, teaching,
practice and observance.”
The implication of this section is that even though the
school is established by a church, it will be quite unapt to deny students the
right to freedom of religion. Even when, for example, all the students are
Christians, the constitution has granted them the right to change their
religion or belief without notifying anyone. The constitution has also granted
the students the freedom to manifest their beliefs either alone or in public
and this can infact justify their sitting in their hostels instead of joining
the congregation.
If based on personal conviction – brought about by deep
thought ( a constitutional right) – the students suspended has changed their
religion, should that lead them out of the school? Should exercising the constitutional
right to change religion amount to automatic carry overs and extra-years?
Frankly, making attendance of students compulsory and mandatory at a ‘Youth
Alive’ Easter program is a breach of this fundamental right.
Section 38(2) of the Constitution goes further by providing
thus: “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.”
(Emphasis supplied by me).
The above provision has expressly precluded any institution
from imposing religious instructions on students for any reason whatsoever.
However, there are two main clauses that need to be clarified.
They are:
(1) Where the religious instruction relate to a religion
other than his own OR (not AND)
(2) Where the religion is not approved by his parent or
guardian.
Thus, if the school religion is approved by the parent of
the students, it will amount to a lawful instruction. And where the instruction
is in consonance with the plaintiff’s religion, it is legally binding.
After all said however, in my humble view, the former
relates to where the person relying on the provision is an adult and is deemed
fit under law to make decisions of his own without any interference from
anybody including the parent or guardian. And the latter will be applicable
where the person relying on the section is still an infant under the law and is
incapable of making some decisions without the parents’ or guardians’ consent.
And that’s why the drafters of the Constitution were careful in making use of
OR instead of AND. You either fall within a category. I stand to be corrected!
There is need to categorically state that an adult does not
necessarily need the approval of parents for the religion he wishes to
practice. More importantly, the students, presumed to be adults, have been
granted the right under section 38(1) of the constitution to change their
beliefs and religion without the approval of or from anyone. Thus, where some
of the students have exercised their constitutional right to change their
beliefs, it will be unconstitutional and very violating to force the students of
the institution to attend religious functions other than theirs. For the
constitution has provided in clear terms that no student shall be compelled to
attend religious function or ceremony where such instruction or ceremony
relates to a religion other than his own. And since most of them are adults,
the alternative (2) of “parents’ religion or consent” can be do away with and
inapplicable to this very serious matter.
Since it has been established that the student has the right
to freedom of thought, conscience and religious, it will also be very unlawful
for an institution to compel students to be in the midst of others for
religious purpose. Apart from the fact that section 38(1) has vested on the
students the right worship alone or in the midst of others, making it an
imperative for the student to be in attendance has also violated the students’
right to peaceful assembly guaranteed under section 40 of the 1999
Constitution. It provides (in part) thus: “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 interest”. See the celebrated case of AGBAI v. OKAGBUE (1991)
7 N.W.L.R. (Pt. 204) 391 and the provision of Article 10 of the African Charter
on Human and Peoples’ Rights (Ratification and Enforcement) Act.
Additionally, one of the students was reported by Punch to
have said this: “They stopped me from sitting for a paper last week because I
did not go for a service and I don’t know if I will be allowed in today
either.” This statement has the effect that the student was not infact aware of
his suspension until he got to the exam hall. Since the students appear not to
have been summoned before suspended, it is therefore safe to submit that the
place of fair hearing is missing!
Fair hearing is a very sacrosanct provision of the
Constitution that relates to administration of justice. Section 36(1) of the
1999 Constitution provided for the right to fair hearing or trial. Since the
students are not summoned and interrogated formally before suspension, it will
be trite to submit that this fundamental right has also been violated. It is a
cardinal principle of Natural Justice that “nemo judex in causa sua”; no one
must be a judge in his own cause. But here, the management of the Covenant
University has assumed the role of the complainant and the judge which is
against the above principle. The school authority has also failed to hear from
the other side before meting out punishment since it is the law that “audi
alteram partem” – both sides must be heard in determining cases.
Commenting on the sacrosanct nature of fair hearing, in
OMOKHODION V. FEDERAL REPUBLIC OF NIGERIA AND 6 OTHERS (2006) All FWLR 1, the
court observed that a hearing can only be fair when all of the parties involved
are heard. And so, without fair hearing or trial, the principles of Natural
Justice, highlighted above, are out rightly abandoned and violated. See GARBA
V. UNIVERSITY OF MAIDUDURI (1986) 1 NWLR (Pt 18) 550, OTAPO V. SUNMONU (1987) 2
NWLR (Pt. 58) 587, KOTOYE V. CENTRAL BANK OF NIGERIA AND OTHERS (1989) 1 NWLR
(Pt. 98) 419
Having established the grave violations of the authority of
the said school, it will be instructive to assert that the school should as a
matter of urgency withdraw the suspension in order to promote rule of law in
this country. For the truth is that suspension as punishment in this kind of
situation is too harsh a decision. Saying it is the height of cruelty and
illegality is an understatement.
Relying on the above legal authorities and provisions, the
school is therefore enjoined to recall the students and reinstate them and
thereafter offer them public apology with immediate effect. Unconstitutionality
shouldn’t be celebrated and overlooked in this country. We have laws in Nigeria
which are above all of us and as such all citizens and authorities must abide
by it, whatever the state of our temper.
Remember, this piece is not written to promote
insubordination or indiscipline but to ensure justice is done to the poor
students.
God bless Nigeria.
Festus Ogun (festusoguntv@gmail.com) is a Civil Rights activist
and Law undergraduate of Olabisi Onabanjo University.
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