ECOWAS Court orders Nigeria to amend or repeal blasphemy laws

The ECOWAS Court of Justice has ruled that the blasphemy laws in Nigeria violate freedom of expression protections guaranteed under regional and international human rights instruments.

A press release from the court on Friday said the court, in a landmark judgement delivered on 9 April (Wednesday), ruled that the existence of such laws is against Nigeria’s international human rights commitments.

Ruling on a case filed by a civil society organisation, the Expression Now Human Rights Initiative, specifically challenging Kano State’s version of the law, the court declared that section 210 of the state’s Penal Code and section 382(b) of its Sharia Penal Code Law (2000) criminalising blasphemy are incompatible with Nigeria’s obligations to protect freedom of expression.

The court’s three-member bench led by Rcardo Cláudio Monteiro Gonçalves struck down the two legal provisions in the Kano State laws, and ordered the Federal Republic of Nigeria to repeal or amend the identified legal provisions and similar laws in Nigeria to align with Article 9(2) of the African Charter.

The Nigeria’s federal government, sued as the sole defendant in the suit, does not have a role in the lawmaking process in states under Nigeria’s federal system, but can only push for necessary legal reforms at that level of government through political solutions.

The two other members of the panel of judges are Sengu Mohamed Koroma (member) and Dupe Atoki, the judge rapporteur, who delivered the court’s unanimous decision.

Blasphemy laws in Nigeria

The judgement highlights concerns over the violation of human rights in blasphemy cases in Nigeria, referencing international conventions and the Nigerian constitution, which guarantees freedom of religion and expression.

Blasphemy laws are deeply entrenched religious issues with social and political contexts in many of the states of the conservative northern Nigeria.

The laws are in force in at least 12 of the 19 northern states.

In Kano, like other states, the law criminalises words or expression, written or verbal, by means of gesture, which show or demonstrate any form of contempt or abuse against the Holy Qur’an or any Prophet shall.

Critics have said the laws pose a significant risk to religious freedom for Nigerians and those who express unpopular or dissenting beliefs, worldviews, or religious interpretations in the states where the laws are in place.

On many occasions, some people have been mobbed to death under vigilante justice for making blasphemous comments.

In 2022, Deborah Samuel, a student of Shehu Shagari College of Education, Sokoto State, was roasted alive by her fellow students on campus for making comments purported to be blasphemous in a class WhatsApp platform.

Others have been sentenced to death or are facing trials on blasphemy charges.

Yahaya Sharif-Aminu, a singer in his 20s, was sentenced to death by hanging by an Upper Sharia Court in Kano State in August 2020 for allegedly making derogatory remarks about Prophet Muhammad in a song.

But on appeal instituted by the convict, the Kano State High Court in January 2021 quashed his conviction and sentence because his trial at the Sharia court was characterised by procedural irregularities. On that basis, the court ordered his retrial.

Similarly, in August 2022, the Court of Appeal in Kano upheld the decision of the Kano State High Court by quashing Mr Sharif-Aminu’s conviction and ordering his retrial.

The case is currently pending before Nigeria’s Supreme Court, with Mr Sharif-Aminu still in detention under reportedly deteriorating health conditions.

Proponents of the blasphemy laws have argued that they prevent actions or speech that could incite religious tensions or violence and safeguard the dignity and sanctity of religious beliefs, ensuring that followers of various faiths feel respected and protected, thereby maintaining peace in a multi-religious society like Nigeria.

Although blasphemy laws are not enforced nationwide but only in specific states that have enacted them, Nigerian courts have on different occasions affirmed that these laws are consistent with the Nigerian constitution.

The Court of Appeal and the Supreme Court have validated the conviction of some blasphemy convicts on the legal basis that making of law for the maintenance of law and order is the joint responsibility of both the National and the State Houses of Assembly.

Recently, the Kano Division of the Court of Appeal affirmed the conviction of Abdulazeed Dauda by the Shariah Court, Rijiyar Lemo, Kano, for use of blasphemous words against Prophet Muhammad and inciting an uprising and arson.

However, the arguments in favour of blasphemy laws are often countered by concerns about freedom of expression guaranteed by the Nigerian constitution and international conventions and the potential misuse of such laws.

In February, the European Parliament passed a resolution calling on Nigerian authorities to immediately release Yahaya Sharif-Aminu, a musician sentenced to death for blasphemy in Kano State.

EU Parliament also demanded that the government repeal blasphemy laws that contradict the country’s constitutional and international human rights obligations.

Lead-up to ECOWAS Court judgement

The incorporated trustees of Expression Now Human Rights Initiative, a civil society group, filed its public interest case challenging blasphemy laws that have led to serious human rights concerns in Nigeria.

The organisation documented cases where individuals faced arbitrary arrest, detention, and death sentences merely for alleged blasphemous expression.

The application also highlighted incidents of vigilante justice, where accused persons were killed by mobs with apparent impunity.

The organisation contended that Nigeria failed in its obligation to protect citizens’ fundamental rights to life, religious freedom, and freedom of expression by maintaining these laws and failing to prevent related violence.

Why ECOWAS Court strikes down Kano blasphemy laws

Deciding on the case on merit, the ECOWAS Court struck down two key blasphemy provisions in Kano State law as violations of international human rights standards.

The Court specifically identified Section 210 of the Kano State Penal Code as vague, failing to provide clear guidance on what constitutes religious insult and therefore lacking the legal precision required under international human rights standards.

The Court further declared Section 382(b) of the Kano State Sharia Penal Code Law (2000), which imposes the death penalty for insulting the Prophet Muhammad, as “excessive and disproportionate” in a democratic society.

Though recognising states’ legitimate interest in maintaining public order and respecting religious beliefs, the court determined that these laws fail the established human rights tests of legality, necessity, and proportionality under both Article 9(2) of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

Regarding allegations of state failure to prevent blasphemy-related mob violence, the court found insufficient evidence to support these claims, noting that media reports without additional corroboration did not meet the required standard of proof.

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Earlier in its ruling on the preliminary objection against the suit by the Nigerian government, the ECOWAS Court confirmed its jurisdiction to hear the case under its established mandate in Article 9(4) of its Protocol to address human rights violations within member states.

While accepting jurisdiction, the court narrowed the scope of the challenge, permitting only the freedom of expression claims to proceed.

Claims regarding rights to life and religious freedom were deemed inadmissible as private rights that cannot be pursued through public interest litigation.