By Rabiat Akande

The secularism debate remains the most vexed issue in Nigeria’s constitutional discourse. This debate centers on the question: Is Nigeria a ‘secular’ state? The first position in the debate, the ‘secularist’ position, answers the question in the positive. “Yes,” this position affirms, Nigeria is a ‘secular’ state. In the view of the coalition that maintains this position, Nigeria’s secularism calls for its opposition to the recognition or adoption of any religion. Therefore, this coalition understands secularism, to mean separation of the state from religion also known as anti-establishment. In this view of secularism, anti-establishment trumps other claims, including religious freedom. In response, therefore, to the enactment of Sharia penal codes by several states of Northern Nigeria as well as the persistent advocacy for Sharīʿa penal courts, the secularist coalition has insisted that the state’s secularism precludes the institutionalization of the Sharīʿa. Indeed, in the context of the political and social struggles that have plagued independent Nigeria, the Sharīʿa cause has come to be framed as the antithesis of the secularism advocated by this coalition. The coalition, therefore, sees itself not only as the secularist group, but also as the anti-Sharīʿa group. In its view, the constitutional right to religious freedom (invoked in support of the Sharīʿa project) does not trump the state’s primary fidelity to anti-establishment.

Given the framing of the first position, it is not surprising that the second position in the debate is tagged the ‘Sharīʿa’ position. This position perceives itself as opposed to the advancement of secularism. Like the secularist position, the Sharīʿa coalition understands secularism as hinging on anti-establishment. Based on this understanding, it contends that Nigeria is not secular. Rather, it conceives of Nigeria as a multi-religious state that exalts the constitutional liberty of religious freedom, which in its view, permits the institutionalization of the sharīʿa and its application on willing persons. According to this camp, religious freedom and its free exercise, therefore, trumps anti-establishment. To the extent that a minority of persons in this camp concedes Nigeria’s secularism, this sub-group asserts that Nigerian secularism has to be defined as being consistent with the constitutional requirements of religious freedom, which sanctions the Sharīʿa project. In this formulation, therefore, Nigerian secularism is consistent with the Sharīʿa agenda because the religious freedom component of secularism trumps the anti-establishment element.

Although there are significant exceptions, varied Christian organizations champion the secularist/anti-Sharīʿa position and a medley of Muslim groups are the vanguards of the Sharīʿa/anti-secular position. The overwhelming majority of Nigerians identify as Muslim or Christian and the most recent and highly disputed 2010 survey of religious affiliation conducted by Pew estimated the country to have 49.3% Christians and 48.8% Muslims.

Nigeria’s Constitution does not explicitly assert the state’s secularism. However, it provides for the three key principles of secularism commonly highlighted in liberal political and constitutional theory: anti-establishment, religious freedom and equality. In these models, anti-establishment is the crux of secularism, and it is this core element that yields two promises: religious freedom and equality. Like these models, the major positions in Nigeria’s constitutional discourse consider anti-establishment as the core of secularism and base their alignment or opposition to secularism on this principle. Yet, Nigeria’s constitutional discourse hardly maps on to the classic liberal model of secularism. Hence, the secularist camp considers free exercise of religion as secondary to anti-establishment, not necessarily integral to it. The anti-secular/Sharīʿa camp, on the other hand, hold up religious freedom as the ultimate principle and reject anti-establishment. Save for a sub-group within the coalition, the group pays no heed to religious freedom’s connections with secularism and, in fact, experience their invocation of religious freedom as being external to secularism.

Related to their fundamental disagreement over anti-establishment, both positions disagree over the third element of secularism in analytical liberal models: equality. For secularist camp, equality demands that all religions be excluded from the public sphere. It is this stripping of the public sphere of all elements of the ‘sacred’ that leaves it naked, to be inhabited by the secular. For the anti-secular camp, equality demands that the religious freedom of Muslims to ‘live under the Sharīʿa’ be upheld. This camp considers its demand for equality as a call for Islam to be given the same status already given to Christianity in Nigeria’s legal order. To this group, Nigeria’s legal system, based on the common law, is inherently Christian. Hence, this camp views the assertions of anti-establishment by the secularist camp as being merely a pretentious, self-serving ignorance of the place of religion (Christianity) in Nigeria’s legal system.

The Supreme Court has taken great care to avoid weighing in on this debate. The debate has therefore remained largely within the political sphere, surfacing at intense moments of political contestations most notably during constitution-making conferences. Although in none of these sites has the question been firmly resolved, this non-resolution is a mark of the weight of the question rather than its insignificance. The debate has not only spawned violence, it has also threatened Nigeria’s continued existence.

The assertions about the place of secularism in the state as made by both the secularism and the sharīʿa camps are not merely assertions about the present; they are, fundamentally, claims about the past. When the secularist camp asserts that Nigeria is secular, it is invoking an interpretation of Nigeria’s colonial past. According to this account, secularism, which was absent in the colonial state, was empire’s gift to Nigeria at independence. This gift was borne of a long history of struggles against the disempowerment of non-Muslims in Northern Nigeria—a product of the colonial state’s indirect rule of the territory through ‘native’ Muslim chiefs and Islamic institutions. In response to national and international missionary advocacy against this repression, the colonial state was forced to dis-establish Islam at independence. When this group asserts the state’s secularism and resists attempts to reintroduce the Sharīʿa into public institutions, it is defending what it perceives as a gift received at independence and forestalling a reversion to what it recalls as colonial Muslim sub-imperialism and disempowerment of religious minorities.

Like the secularist coalition, the Sharīʿa camp’s stance is also an assertion about Nigeria’s colonial past. To the Sharīʿacamp, the independence deal, particularly the abolition of Islamic criminal law, merely concluded the gradual violation of the British Empire’s 1903 guarantee to Muslim elites that it would not interfere with Islam. In the opinion of this group, contrary to the pro-secularists’ claims that colonial rule took the form of imperialism through Islamic institutions, the colonial state subjugated Islam and deprived Muslims of religious freedom. The independence package, particularly the elimination of Islamic criminal law, was the final step in this process of displacement of Islamic law and institutions and the subordination of Muslims. The postcolonial Sharīʿa agenda is therefore a project to reverse this effect of the colonial experience, whose indignities continued into the postcolonial state. By wielding claims of religious freedom to champion the Sharīʿa project against claims of the state’s secularism, this group rejects the independence deal and, with it, the colonial project.

For both sides, therefore, the memory of the colonial experience is that of disempowerment. However, because each side’s memory is rooted in different interpretations of the colonial state’s relationship with religions, both groups exclude the experience of the other. These opposed interpretations culminate into different reactions to the constitution deal at independence. While today’s secularists argue that the independence deal heralded secularism, thereby liberating religious minorities, the Sharīʿa camp argues that this independence deal perpetuated the infringement of the religious liberties of Muslims in the colonial years. The anti-establishment that is so reified by the non-Muslims as the gift of the independence deal becomes for the Muslim camp, its greatest defect.

Although this postcolonial constitutional debate heavily invokes the colonial past, it is, in fact, blind to the complexities of the colonial history of the struggles over religion-state relations. Far from the oppositional two-sided debate that is featured in constitutional discourse today, the story of political and religious power in colonial Northern Nigeria, was, in fact, one of sustained entanglement. My recently published article in The Law and History Review, “Secularizing Islam: The Colonial Encounter and the Making of a British Colonial Islamic Criminal Law in Northern Nigeria, 1903-58” is situated within a broader book project that disentangles these complex struggles over religion-state relations in colonial Northern Nigeria.