By Mazi, Chinedu C. Udoakundu, Esq
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Nigeria is a diverse country with varieties of religious beliefs and practices which includes Christianity, Islam, African Traditional Religion (ATR) and others like Judaism, etc,. The recent prosecution of ATR practitioners and faithfuls in Anambra State by the Order of the Governor of the State banning certain ATR practices considered to be against the public/societal order, policy, safety and morality of Anambrarians. This work contributes to the legal discourse sparked by the prosecution of the affected individuals.
The practice of ATR involves the worship of deities, ancestors, and nature spirits, and is carried out through rituals (otherwise referred to as witchcraft/juju practices), ceremonies, and festivals. However, it is important to note that these practices are not limited to Nigeria, but are also prevalent in other African countries such as Ghana, Kenya, and South Africa.
LEGAL ANALYSIS:. In Nigeria, the right to freedom of religion is enshrined in the constitution, allowing individuals to practice their chosen religion in private or public, alone or in association of persons. This includes the practice of ATR which is protected under the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), as follows:
According to Section 38 of the constitution;
“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.”
According to Section 40 of the constitution;[1]
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.”
And, Section 41 of the constitution[2] provides thus;
“Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit there from.”
Also, the courts have affirmed the right of individuals to practice their preferred religion, including ATR in any part of the country, as seen in the cases of Abdulkareem V. Lagos State Government[3] and Incorp. Trustees, CAN V. Kwara State Government[4]. This means that citizens of Nigeria have the liberty to practice their religion, including ATR, at any time and place, without fear of discrimination or persecution.
However, this right is not without limits. In the case of Esabunor V. Faweya,[5] the court stated, inter alia,
“…The limit of these freedoms in all cases are where they impinge on the rights of others or where they put the welfare of society or public health in jeopardy. The sum total of the right of privacy and of freedom of thought, conscience or religion which an individual has, is that an individual should be left alone to choose a course of his life, unless a clear and compelling overriding state interest justifies the contrary.[6]
Emphasizing on “… WHERE THEY PUT THE WELFARE OF SOCIETY OR PUBLIC HEALTH IN JEOPARDY… AN INDIVIDUAL SHOULD BE LEFT ALONE TO CHOOSE A COURSE OF HIS LIFE, UNLESS A CLEAR AND COMPELLING OVERRIDING STATE INTEREST JUSTIFIES THE CONTRARY”, What then constitutes offences against public health and welfare of the society in this regard?
To this end, the relevant sections of the Criminal Code Act[7] which is also applicable in Anambra State becomes pertinent to be highlighted. Section 245 of the Criminal Code Act[8] provides thus,
“Any person who corrupts or fouls the water of any spring, stream, well, tank, reservoir, or place, so as to render it less fit for the purpose of which it is ordinarily used, is guilty of a misdemeanor and is liable to imprisonment for six months.”
By S. 247 of the Act,[9]
“Any person who-
- Vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way; or
- Does any act which is, and which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to life, whether human or animal,
Is guilty of a misdemeanor and is liable to imprisonment for six months.”
Additionally, those involved in the preparation and use of criminal charms can face up to three years of imprisonment under Section 213[10]. Furthermore, aiding and abetting these crimes can also lead to punishment, as seen in Sections 7 and 10[11].
Also, criminalized under Section 419 of the Act[12] is the offence of obtaining by false pretense, whereby a witch doctor professed to his victim that he can prepare a certain charm (e.g, teleporting charm) if paid to do so knowing that he cannot prepare such a charm, his victim relied on his representation and gave him money and the witch doctor received the money. Handed the supposed charm, and his victim could not teleport at the risk of being caught for a crime. And he was eventually apprehended, and the witch doctor was implicated under investigation/investigation.
Clearly, any reasonable man[13] agrees that it is against public health for individuals to be pouring blood, decomposed matters, etc. on daily basis in water bodies ordinarily serving as the source of potable water for a community; and that it is against the welfare of the society when men/women with mystic powers continue preparing charms to serve as bullet proofs, teleporting devices, or objects of conviction, manipulation, confusion, hallucination aimed at aiding the user of the charm to perpetrate whatsoever endeavor of his in the society and escape justice. The negative societal impact of the combined activities herein mentioned is visible in the discouragement of hard work and promotion of dangerous love for money in the likes of “Ego Mbute”, “Oke-ite” and Yahoo Plus, to advance easy life, giving rise to armed robbery, serial killing, kidnapping, ritual killings of humans, “one chance” activities, etc.
There are numerous amateur selfie live on-scene videos in the internet made by the participants of these activities and police video documentaries of neutralized kidnappers, ritual killers, armed robbers, serial killers, etc, disclosing that they were majorly encouraged to offend the law by their possession of these witchcraft/juju charms. Hence, any society suffering from rampant unregulated mystical activities is sitting on gunpowder and the law must envisage and prevent such crimes by implementing measures of crime deterrence. According to J.Bentham;
“The principal end of punishment is to prevent like offences. What is past is but one act: the future is infinite. The Offence already committed concerns only a single individual; similar offences may affect all. In many cases it is impossible to redress the evil that is done; but it is always possible to take away the will to repeat it; for however great may be the advantage of the offence, the evil of the punishment may be always made to out-weight it”[14]
Based on this need to keep the society safe without infringing the universal human right to freedom of religion, Section 210 (c) & (d) of the act[15] empowered the Governor of a State to order the ban of certain witchcraft/juju practices in his/her state in the overriding interest of the State and anyone convicted for practicing unauthorized witchcraft or Juju shall be sentenced to two years imprisonment.
His Excellency, Prof Chukwuma C. Soludo, the Executive Governor of Anambra State, has by an executive order banned and taken measures to enforce the ban on certain practices of witchcraft and Juju in the State. These practices have been identified as promoters of immoral behavior and have contributed to the rise of crimes such as kidnapping, robbery and serial killings in the State. As the chief executive of the state, the governor has a constitutional mandate to protect the lives and properties of the citizens of Anambra. The State through its Attorney General can prosecute offenders.[16]
Again, it is pertinent to mention that just like the government, private persons are also empowered to protect public health, welfare, lives and properties of citizens/society against criminal elements. For this, the law imposed a duty on everyone to assist in the discovery of criminals[17] and the Supreme Court of Nigeria in, COPW V. NNPC[18], stated thus:
“The Criminal Code and the Criminal Procedure Law, in so far as prevention of crime and punishment of those committing crimes are concerned, have made all Nigerians his brother’s keeper. Accordingly, every person, including non-governmental organisations, who bona fide seek in the law court the due performance of statutory functions or enforcement of statutory provisions or public laws, especially laws designed to protect human lives, public health and environment, should be regarded as proper persons clothed with standing in law to request adjudication on such issues of public nuisance that are injurious to human lives, public health and environment.”
Meanwhile, it is reiterated that everyone must be allowed to practice his or her own religion as guaranteed by the Constitution.[19] And witch doctors that were not found wanting in any of these crimes after being detained beyond “a reasonable time” as provided by the Constitution[20] may enforce their rights against the government.
In this circumstance, an innocent ATR practitioner facing enough acts by the Anambra State Government, aimed essentially and unequivocally towards the contravention of his fundamental rights should enforce his rights, rather than when the rights are actually infringed.[21] And shall be awarded damages (monetary compensation) where he succeeds.[22]
The steps taken by the government of Anambra State to curb such practices and ensure the safety and well-being of its citizens are necessary and within the bounds of the law which could as well be taken by any legitimate community authority. And in a harmonized movement, the Government of Anambra State implements the said order in a joint public/private taskforce. An adequate display of legitimacy.
RECOMMENDATION/CONCLUSION:
Government is commended for taking both proactive, reactive, curative & preventive measures towards protecting her citizens and society from the harmful activities of ATR faithfuls. However, the government should carefully raid native doctors on whom there exists significant evidence of their involvement in these crimes. Otherwise, it may expose itself to meritorious lawsuits.
Anambra State is no longer the heavens serving as the witchcraft/juju hub for ritual tourists who may visit the State for as much as their right to practice African Traditional Religion is deeply rooted in Nigeria’s culture and heritage, they do not have the license to engage in banned practices in Anambra State. Also, it is envisaged that other Governors will similarly ban obtaining by false pretense, “arrangee miracle” and encouraging murder for and on behalf of an “almighty” god that lacks the power to take human life by itself and for itself.
MAZI, CHINEDU C. UDOAKUNDU, ESQ., PAHSECT LAW FIRM 08020887826, (WhatsApp only: 08187780666) pahsectattorneys@gmail.com (22/02/2025)
[1] See: Governing Board RUGIPOLY, Ondo State V. Ola (2016) 16 NWLR (Pt.1537)1, CA.
[2] See: Mitin V. C.O.P, Bayelsa State (2023) 12 NWLR (Pt.1898)259, SC.
[3] 2016) 15 NWLR (Pt.1535) 177, CA.
[4] (2020) 13 NWLR (Pt.1740) 99, CA.
[5] (2008) 12 NWLR (Pt. 1102) 724,
[6] See also, MDPDT V. Okonkwo (2007) 7 NWLR (Pt.711) 206.
[7] Cap C38, LFN 2004.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid, see also; State v. Osler (1991) 6 NWLR (Pt. 199) 576
[13] Defined in Pam v. Mohammed (2008) 16 NWLR (Pt. 1112) 1, SC, as “A reasonable person is a fair, proper and just and unbiased person.”
[14] The Theory of Legislation, quoted by (Bombay: N.M. Tripathi Private Ltd, 1995). p.167.
[15] Ibid
[16] Emeakayi v. C.O.P (2004) 4 NWLR (Pt. 862) 158
[17] Ogbodu v. S.S.A.U.T.H.R.I.A.I. (2013) 3 NWLR (Pt. 1341) 261
[18] (2019)5 NWLR (Pt.1666)518. See also, Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797
[19] Awoniyi v. Reg. Trustees of AMORC (1990) 6 NWLR (Pt. 154) 43
[20] S.35 of the Constitution of the Federal Republic of Nigeria, 1999, As Amended.
[21] Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635
[22] F.B.N. Plc v. A.-G., Fed. (2018) 7 NWLR (Pt. 1617) 121
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