African human rights law journal

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(2014) 14 AHRLJ 78-92

Religion and the republican state in Africa: The need for a distanced relationship

Kofi Quashigah*

Faculty of Law, University of Ghana


This article argues for a separation of religions from governance in the republican states. In this era of expansion of the concept of sovereignty and the generalisation of human rights, the influence of dominant religions on legislation and governance cannot be justified. Religion, if it is to be true to itself, should not allow its use for political gain and neither should it seek to usurp political power to advance its goals. To do otherwise will set the stage for the abuse of the rights of sections of citizens. The majority of African states are republican and it is argued that, having regard to the diverse nature of these states, it will be better for national cohesion if religions are excluded from the political and legal systems.
1 Introduction: A secularist proposal
The republican state is inherently a democratic one in which the equality of all should constitute a fundamental tenet. A state is republican because it is the citizens that are sovereign1 and each is

equal in all respects, including thought and conscience. Certainly, it would be a contradiction to think of a republican state that imposes a dominant religious belief either expressly or insidiously on all its citizens.

A denial of religious liberty is perhaps the most invidious means available for those that contrive to dehumanise other fellow human


* LLB (Ghana), LLM, PhD (Nigeria);

1 Art 4(1) of the 1992 Constitution of Ghana, eg, proclaims that ‘[t]he sovereign state of Ghana is a unitary republic’, while art 1(1) declares that ‘[t]he sovereignty of Ghana resides in the people of Ghana’. See also art 3 of the Constitution of the Republic of Benin.

beings, and the most devastating weapon that can be deployed for that purpose is the law operating, as it does, through the instrumentality of the state. The use of law and state for such purposes can be brazen and open, whereby the state proclaims open support for a particular religion, while others are tolerated or prohibited outright. An example can be found in the Constitution of Mauritania, which proclaims Islam not only as the state religion, but also says that a citizen can only aspire to be head of state if Muslim. Similarly, the Preamble of the Constitution of Malawi declares Christianity to be the state religion, but without expressly limiting the presidency to Christians.

Apart from outright proclamation of a state religion, there can also be the more subtle subjection of sections of a population to the obedience of laws and policies that are inherently the tenets of one religion. Minorities, in fact, become disadvantaged in conscience, because they feel inhibited from challenging the religious beliefs of the majority of the dominant group, while the latter takes it for granted that by the mere fact of their dominant position, whatever agrees with their conscience should constitute the law for all.

Conceptually, it is possible, like the human rights law theorist, Louis Henkin, following the steps of other theologians, philosophers and academics, does, to endeavour to distinguish between ‘religion’ and

‘religions2 according to which distinction religion’ becomes general

and abstracted as compared to religions, which is a reference to

particular ‘concrete historical communities with members, practices and boundaries’.3 This article is not against the right to ‘religion’ being guaranteed by the state. Rather, what it seeks to argue against

is any open or subtle legislation in support of ‘religions’ in African countries. This position follows from the strong belief that the socio- economic and political circumstances of Africa do not favour a marriage between the state and religions and that any such relationship is subject to exploitation and could be dangerous for the image of the particular religions and for the cohesion and stability of the state. This is especially the case in a republican state that is built on the principles of equality.

This article calls for secularism, but not secularism as conceived as

‘the disappearance of religion altogether’.4 According to legal scholar

Pimor, secularism is capable of having many meanings for, as she observes:5

2 L Henkin ‘Religion, religions and human rights’ (1998) 26 Journal of Religious Ethics


3 As above.

4 A Pimor ‘A collection of states or a state of mind: The religious and spiritual dimensions of European citizenship’ in N Doe & R Sandberg (eds) Law and religion: New horizons (2010) 212.

5 As above.

Secularism can refer to the institutional separation between state and church; to the disappearance of religion altogether; or to the displacement of religion in the public sphere. It can indicate a state of neutrality between religion and the state, and between religions within states, and it can also place itself as the rival of religion.
This idea of a separation of the state and religion has exercised the minds of great philosophers of yore. John Locke advanced a number of reasons why the civil ruler should not get involved with the spiritual

aspect of the individual’s life, the chief one being6

because the care of souls is not committed to the civil magistrate, any more than to other men. It is not committed unto him, I say, by God; because it appears not that God has ever given any such authority to one man over another as to compel anyone to his religion. Nor can any such power be vested in the magistrate by the consent of the people, because no man can so far abandon the care of his own salvation as blindly to leave to the choice of any other, whether prince or subject, to prescribe to him what faith or worship he shall embrace.
Similarly, Durham and Scharffs describe the view of the modern political philosopher, John Rawls, as being based in the notion that7
in a liberal constitutional democracy, when citizens or officials seek publicity to justify their policies, they should rely only on reasoning accessible to all rational citizens, and should refrain from invoking reasons, such as religious justifications, that are not cogent to all rational people.
A state that imposes the tenets of one religion either directly or indirectly on others is nothing but bankrupt of spirituality, and that state has no common soul upon which to build its democratic essence. It is possible to give recognition to the spirituality of a group of people without requiring of them some particular religious belief. Moreover, if the relationship between religions and the political authority is left unchecked, politically-hungry individuals or groups can manipulate religion to serve their political ends. There is always the possibility that secularism itself could be viewed as ‘a kind of substitute religious conviction and an ideology in the service of power

politics.8 But in the circumstances of Africa, secularism would be a

better political ideology than religion.
2 Religion and human rights
The right to religious freedom is a fundamental prerequisite for every other right, both physical and conceptual, and the worst form of abuse and discrimination that can happen to any human being is to

6 J Locke A letter concerning toleration trans W Popple (1796), quoted in WC Durham Jr & BG Scharffs (eds) Law and religion: National, international and comparative perspectives (2010) 15.

7 Durham & Scharffs (n 6 above) 551.

8 Pimor (n 4 above) 212, quoting T Halik ‘The public role of religion in a united

Europe: A Central-European perspective (2006) 7 Political Theology 361.

be persecuted for the reason of how one conceives and practically relates to God. A person whose physical liberty is restrained is very much alive if his or her religious conviction remains strong, but that person who has been denuded of his or her faith is dead. This is the reason why the laws of the land should not impose one religious tenet on every citizen and use state infrastructure to compel conformance. It is for this reason that international human rights instruments and the constitutions of a number of African states guarantee the right to

freedom of thought, conscience and belief in addition to religion.9

Admittedly, this republicanist or secular approach carries the danger of various religious groups challenging seemingly innocent legislation of the state directed at one national issue or the other. Legislation to control the use of certain drugs have become subject to religious challenge. Examples of these exist in a number of American judicial decisions, as well as African jurisdictions, in which attempts have been made to balance the secularity of the state against that of the right to religious manifestation of individuals or groups. In the

Ghanaian case of Nyameneba & Others v The State,10 for instance, the

appellants were members of a religious sect charged with possessing

Indian hemp, a banned herb. According to evidence that was freely

given by the appellants, they had been cultivating the herb and using

it as incense for invocation at their worship, making soup out of it,

boiling and using it as medicine for all kinds of ailment with success.

They called it the herb of life’. Indeed, it is not disputed that the

appellants were honestly ignorant of the fact that the herbs in

question were Indian hemp. The Supreme Court reversed their

conviction on the principle that, although ignorance of the law is no

defence, ignorance of facts is a complete defence. Without expressly

stating so, the Court avoided what could have been a clash between

religious inclination and a secular legislation by resort to principle of

ignorance of facts as a defence. The Court thereby established a

balance between the law and the genuine belief of the appellants;

although it is obvious that the appellants could no longer claim

ignorance of fact for any future use of the herb. Similarly, in the

United States case of Smith v Board of School Commissioners of Mobile County,11 the Court refused to accede to a request that a number of school textbooks be withdrawn from the school system because they

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