THE RIGHT TO FREEDOM OF RELIGION AND THE SEARCH FOR JUSTICE THROUGH THE OCCULT AND PARANORMAL IN NIGERIA
| Date | 01 March 2008 |
| Pages | 35-55 |
| DOI | 10.3366/E0954889008000054 |
| Published date | 01 March 2008 |
| Author | E. S. NWAUCHE |
The widespread belief
Many scholars attribute the widespread belief in the occult and paranormal to social instability. See for example J. Harnischfeger “State Decline and the Return of Occult Powers: The Case of Prophet Eddy in Nigeria”, 1
The fact that witchcraft is used primarily for evil is not conclusive and it is contended that witchcraft can be deployed for good uses. See O.K Mutungi
In Nigeria for example the success of the popular vigilante group known as the “Bakassi Boys” in South Eastern Nigeria is attributed to their use of “juju” powers. See J.C McCall “Juju and Justice at the Movies: Vigilantes in Nigerian Popular Videos” 47
I shall demonstrate in this paper that the Nigerian legal system is contradictory in its treatment of the occult and the paranormal because of a lack of understanding and application of the content of the right to freedom of thought conscience and religion. On one hand the practice of the occult and paranormal is criminalized. On the other hand the belief in the efficacy of and use of certain aspects of the occult and paranormal such as juju and oracles is recognized by the Nigerian judiciary as forming the fulcrum of some forms of customary arbitration that rely on oath taking. In the next section I examine the freedom of thought conscience and religion protected by section 38 of the 1999 Constitution. Thereafter in part three, I explore the criminal prohibition of the occult and paranormal. In part four I examine oath taking as customary arbitration and then examine the possibilities of the occult and paranormal improving an empirically based Nigerian legal system. I then make concluding remarks.
In this section I shall undertake a basic overview of the right to freedom of thought conscience and religion to provide a context for the discussions in the ensuing sections.
The basic structure of the right to freedom of thought conscience and religion like most human rights contained in chapter four of the 1999 Constitution is the grant of individual entitlements limited by individual and group considerations. Thus while section 38(1) of the 1999 Constitution which grants the individual entitlement provides that “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,” section 45 of the same constitution provides that section 38 and other sections shall not invalidate “any law that is reasonably justified in a democratic society – (a) for the interests of defence, public safety, public order public morality or public health; or (b) for the purpose of protecting the rights and freedoms of other persons.” The s.38 right is therefore a limited right. It is not only limited by the general limitation clause in section 45(1), it also has an internal limitation clause in s. 38(4) which prohibits secret societies and denies the protection of the right to any member of a secret society. I shall examine what the s.38 right entails. First, s.38 provides for three different freedoms which are the freedom to think and to believe, the freedom to have a conscience and the freedom to profess any religion including changing a religion. While these freedoms may seem related it is important to note that they are different but equal.
See Para 1 of the
As we noted earlier there are internal and external limitations to the s. 38 right. The internal limitation found in s. 38(4) is the prohibition of organized propagation and manifestation of a belief, thought or religion that amounts to secret society activity. It is therefore important to understand what is meant by “secret society” because of the distinct possibility that some of the paranormal phenomena are regarded as within its compass. Section 318 of the 1999 Constitution defines a “Secret society” as including
any society, association, group or body of persons (whether registered or not) (a) that uses secret signs, oaths, rites or symbols and which is formed to promote a cause, the purpose or part of the purpose of which is to foster the interest of its members and to aid one another under any circumstances without due regard to merit, fair play or justice to the detriment of the legitimate interest of those who are not members; (b) the membership of which is incompatible with the function or dignity of any public office under this Constitution and whose members are sworn to observe oaths of secrecy; or (c) the activities of which are not known to the public at large, the names of whose members are kept secret and whose meetings and other activities are held in secret.
Section 35(4) of the 1979 Constitution is similar to section 318 of the 1999 Constitution and provides that a secret society means a society or association, not being a solely cultural or religious body that uses secret signs, oaths, rites or symbols-(a) whose meetings are held in secret; and (b) whose members are under oath, obligation or other threat to promote the interest of its members or to aid one another under all circumstances without due regard to merit, fair play or...
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