In the discourse on governance in Nigeria, too much has been trivialized in the name of political correctness. Yet, the gravest challenge to constitutionalism in this country is not merely corruption or incompetence, but the deliberate fusion of religion with state power.
The Supremacy of the Constitution
Section 1(1) of the 1999 Constitution (as amended) declares:
“This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
By this supremacy clause, no authority — federal, state, or local — may act in violation of the Constitution. Section 10 further reinforces this by mandating:
“The Government of the Federation or of a State shall not adopt any religion as State Religion.”
The implication is clear: Nigeria is a secular state. Any action by government — whether by executive fiat, legislative enactment, or judicial enforcement — that privileges, funds, or institutionalizes a religion is unconstitutional, null, and void.
Unconstitutional Religious Patronage
Despite this clarity, successive governments have flagrantly violated Section 10. Taxpayers’ funds are used to build mosques and churches, sponsor pilgrimages, and provide religious infrastructure in public institutions. Governors and ministers openly deploy state machinery for religious festivals.
Let it be said unequivocally: these are unconstitutional expenditures. Government has no business underwriting religious obligations. Whether Islam requires five daily prayers or Christianity requires vigils and pilgrimages is wholly immaterial to the State. To spend public funds on such activities is not governance; it is illegality, abuse of office, and a violation of the public trust.
The Sharia Question: A Constitutional Aberration
Most offensive to the Constitution is the establishment of Sharia regimes with criminal jurisdiction in some Northern states.
Under Nigerian law, the only recognition of Sharia is within the realm of personal law — marriage, divorce, succession, and guardianship. This is why Sections 260–264 and 275–279 of the Constitution establish Sharia Courts of Appeal limited strictly to civil proceedings involving questions of Islamic personal law.
Nowhere in the Constitution is any State empowered to legislate criminal Sharia law. Indeed, by purporting to extend Sharia into criminal jurisdiction, those States have erected parallel legal systems that directly undermine the constitutional order. Such laws are unconstitutional ab initio, void ab initio, and of no legal effect. They are not merely aberrations; they are constitutional frauds.
To quote the Supreme Court in A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1:
“No State government has the power to act outside the clear provisions of the Constitution. Where it does, such act is unconstitutional, null, and void.”
By parity of reasoning, every declaration of Sharia with criminal jurisdiction falls flat against Section 1(3):
“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.”
The Hisbah Question: Sharia Police as Unconstitutional Militias
In addition to unconstitutional Sharia courts exercising criminal jurisdiction, several Northern States have gone further to establish Hisbah — Islamic or Sharia police. These state-funded religious police forces routinely engage in activities such as closing down beer parlors, confiscating alcoholic drinks, enforcing dress codes, and harassing citizens for engaging in conduct deemed “un-Islamic.”
This development is doubly unconstitutional.
- First, the Constitution in Section 214(1) is categorical:
“There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.”
The establishment of Hisbah as parallel police is therefore unconstitutional, null and void. It amounts to the creation of an illegal security apparatus outside the contemplation of the Constitution. - Second, the substantive powers they exercise — shutting down beer parlors, restricting sale of alcohol, and policing social behavior — are in direct violation of Nigerian law. Drinking alcohol is not a crime under any federal statute. Indeed, by the provisions of the Criminal Code, the Penal Code (outside Sharia amendments), and other extant laws, consumption and sale of alcohol is lawful. By criminalizing what the Constitution and federal law do not criminalize, Hisbah forces are acting outside the law, usurping federal legislative competence under Section 4(2), and violating Section 36(12), which states:
“A person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law.”
Hisbah enforcement against alcohol and other personal freedoms is therefore not just unconstitutional but a flagrant violation of the right to personal liberty (Section 35), the right to privacy (Section 37), and the right to freedom of thought, conscience, and religion (Section 38). - Third, the existence of Hisbah violates the federal principle. Security and policing are matters on the Exclusive Legislative List (Item 45, Part I, Second Schedule). States cannot establish parallel police forces, let alone religious militias, under any guise.
By their very existence, therefore, Hisbah corps constitute an unlawful theocratic militia, undermining the Nigeria Police Force, fragmenting the constitutional order, and threatening national unity.
Religion as Custom, Not Law
In truth, Islam in Nigerian jurisprudence ought to operate like any other customary system — Yoruba customary law, Igbo customary law, Tiv or Birom customs. These apply only to voluntary adherents and only in personal/family matters. To elevate Islam beyond custom into a parallel legal system — with its own criminal code and its own police — is to usurp the supremacy of the Constitution. It is an affront to national sovereignty and a violation of democratic governance.
The Path of Constitutional Sanity
If Nigeria must endure as a federation governed by law rather than clerics, then decisive constitutional measures must be taken:
- Criminalize State Religious Patronage — any public officer who deploys public resources for religious purposes should be liable for breach of oath under the Code of Conduct and criminal law.
- Dismantle Unconstitutional Sharia Regimes — the National Assembly and judiciary must declare all criminal Sharia provisions null and void.
- Disband Hisbah and Other Religious Militias — by the force of Section 214(1), Hisbah must be declared unconstitutional and disbanded. Security belongs exclusively to the Nigeria Police Force.
- Enforce Secularism in Public Institutions — government buildings, schools, ministries, and agencies must be purged of religious patronage.
- Strengthen Judicial Review — Nigerian courts must stop evading this issue and boldly pronounce against unconstitutional religious practices.
Conclusion
The Nigerian Constitution is the grundnorm. It knows no mosque, it knows no church. It recognizes no Sharia criminal code, no ecclesiastical law, no religious police. It binds all Nigerians equally, irrespective of creed.
Every mosque or church built with public funds is unconstitutional. Every declaration of Sharia with criminal jurisdiction is unconstitutional. Every attempt to establish Hisbah as parallel religious police is unconstitutional. Every attempt to fuse religion with state power is unconstitutional.
The Constitution is supreme. Religion is personal. Government must remain neutral. To do otherwise is to invite anarchy.
As Section 14(2)(a) reminds us: “Sovereignty belongs to the people of Nigeria, from whom government through this Constitution derives all its powers and authority.”
Nigeria cannot belong to one faith, one sect, or one region. Nigeria belongs to its people — under the authority of the Constitution. That is the only oath that public officers swore to uphold, and it is the only order that can preserve this fragile federation.
By: Melah Ibrahim Yusuf Maimuruchi
