Kazeem, O. OLANIYAN, Ph.D,

Department of Jurisprudence and International Law, University of Ibadan, Nigeria.

Visiting Professor, College of Law, Fountain University, Osogbo, Nigeria.

Department of Jurisprudence and International Law, University of Ibadan, Nigeria.

ILN Nigeria Fellow


It is believed that freedom of religion should be one of the basic rights and which should be guaranteed by all democratic government as a sine-qua-non for the peaceful co-existence of the citizens in all multi-religious society. This article interrogates the role of states in their duty of upholding religious liberty in the multi-religious democratic state like Nigeria.. In doing this the article critically compared the situation in the united states of America through cases  that have been pronounced upon by the US judiciary,  and the situation in Nigeria especially on the decision of the Court in the case of Sheikh Salaudeen Ade Olayiwola & 3 others v Governor of Osun State and 9 others. The article, examine the very noble role that have been played by the courts both in the United State and the Nigeria, and therefore conclude that in Nigeria the court should stand up to its avowed responsibility of compelling the State to always ensure that the constitutionally guaranteed right to religious liberty is adequately protected The article submits that in order for the citizen’s religious liberty to be adequately protected in a multi-religious society like Nigeria, a very strong, fearless and independent judiciary is very important  



The Nigerian constitution, by its section 38 (1) states 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.

The Constitution goes further in Subsection 2 of section 38 cited above that….

No person attending any place of education shall be required to receive religious instructions or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance relates to religion other than his own or religion not approved by his parent or guardian.

Similarly subsection 3 of the section also states….

 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.

The constitutional provisions on religious liberty in Nigeria can be compared with the provisions of the constitution of the United State of American for the protection of religious liberty. Thus, the first amendment to the United States of American Constitution states that….

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress


It is obvious from the quoted provisions of the constitutions of the two democratic States above, that the major role of the State in upholding religious liberty is the protection of the spirit and the letters of the constitution using all the apparatus of the state, the executive the legislature as well as the judiciary



Since the congressional adoption of these limitations imposed by the first amendment, there has been plethora of court cases where the Supreme Court in the U. S. has been called upon to make pronouncements on the extent and the limitations of the powers of the congress as well as the limitation on the powers and authorities of the executive and the judiciary. In one of the cases where the couching of the first amendment, on becoming part of the constitution, sets, not only to limit the powers of the congress but also the powers on the executive and that of the judiciary. Thus, the case of Torcaso V Watkins (1961) is a case in point where the Supreme Court in the United States of America overruled the assertion of a Federal Court disallowing a witness who is an avowed atheist from standing as a witness as a result of the fact that the witness professes atheism – that is, he does not believe in God. The U.S Supreme Court was of the opinion that, from the couching of the first amendment, the believe that there is no God is a religious liberties validly held by the witness and as such the witness could not be made to suffer any deprivation of this religious liberties.

Recently, however, the court has taken a more libertarian approach requiring the state to persuade the court that the value which it seeks to protect is weightier. In the language of most of the decisions, the state must establish that there is a compelling state interest that justifies infringement of the citizen’s rights to the free exercise of his religion. If it fails to do so its law or action will be adjudged unconstitutional.



The liberal way of application of the rule discussed above was taken in Nigeria in most of the cases bordering on religious freedoms. A case in point is the case of Sheikh Salaudeen Ade Olayiwola & 3 others V Governor of Osun State and 9 others, in Suit No. HOS/M/17/2013. In that case, the court held inter alia that, “It is hereby declared that the use of Islamically prescribed head cover called Hijab by the Muslim female students in all public primary and secondary schools in Osun State forms part of their fundamental rights to freedom of religion, conscience and thought as contained in Section 38 of the Constitution of the Federal Republic of Nigeria (as amended).

The presiding judge, Hon. Justice S. O. Falola hinged his judgement on the above case on the earlier judgement of the court of Appeal in the case of the Provost, College of Education, Ilorin & 2Ors V. Bashirat Saliu & Ors delivered by the court of Appeal Ilorin division in Suit No. CA/IL/49/2006.

Thus, in the US case of Everton V Board of Education (1947) the court stated that under the establishment clause, government cannot force a person to go to Church or profess a belief in any religion. Again in latter decision, the court has applied a “three – pronged purpose-effect entanglement test” as a standard of constitutionality under the establishment clause. thus in the case of Committee for Public Education and Religious Liberty V Nuguist (1973) for example, that a challenged statute must have a primary effect that neither advances nor inhibits religions and must avoid government entanglement with religion.

It is the opinion of this writer that most of the courts decisions in the arena of conflicts between government concerns and individual claims to religious liberty have always been considered in relations to the provisions to the constitution of the country in question. This assertion can be explained from the decision of the cases mentioned above both in the United States and Nigeria.



It is very clear from the above that religious freedom is guaranteed by every multi-religious societies of the world being inalienable to all human. It is also very clear and obvious that in America, the Supreme Court’s decisions in the area of conflicts between government concerns and individual claims to religion liberty are always considered in relations to the four categories suggested by the preamble to the constitution i. e. National defense, domestic tranquility, the establishment of justice and general welfare. In resolving the issues before it, the court has spoken in terms of clear and present danger, balancing of competing interests or determination of compelling government interests.

Again in Nigeria, freedom of religion or religious liberty is intimately linked with the rights to freedom of expression. For example, the enforcement of laws on blasphemy and injury to religious feelings may conflict with the rights to freedom of expression. It is also noted that these types of laws can be used to suppress the expression of religious beliefs or opinions on religious issues that are perceived to be incorrect by or are unpopular with adherent of other religious groups particularly the majority or dominant group. This should not be tolerated in any way.

As with the freedom to manifest religion or faith, the State should uphold the religious liberty with the constitutional restriction. These restrictions on the religious liberties may be imposed only as prescribed by law where necessary “in the interest of National Security or Public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others.

It is probably in this vein that the court in the case of Sheikh Salaudeen Ade Olayiwola & 3 others V Governor of Osun State and 9 others, granted all the reliefs which the applicant in that case asked for against the state.

By way of conclusion it is very obvious from the analysis above on how states have been able to cope with conflict arising from its role of protecting the guaranteed religious liberty using the apparatus of the state machinery especially the state. It is therefore evidently clear that although the rights to freedom of religious and expressions are not only guaranteed by the organic laws of every States because they are the cornerstone of any democratic governance, they are nonetheless absolute. The permissible restrictions may be in accordance with any law that is reasonably justifiable and prevalent in the concerned society.

There is also the need to empower the judiciary to be able to sustain the critical role in championing the protection of the rights of citizens and the watchdog of the constitution and apparatus of governance. The courts have the important role of seeing to it that every arm of the government confine itself within its operational ambit as provided for by the constitution through which the executive and legislative lawlessness are effectively checked.