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Category: Politics
Date of Article: 11/15/2000
Topic: Religion,Ethnicity and the Politics of Constitutionalism in Africa

Author: Rev Father Matthew Hassan Kukah
Full Text of Article:
Rev Father Matthew Hassan Kukah is the Secretary of the Oputa-led Human
Rights Commission. In this lecture he delivered at the Ohio University,
Athens, Ohio, USA, Kukah attempts to espouse the ethnic, religious and
political dimensions of constitutionalism in Africa.

THE renewed interest in the process of Constitution making is indeed a
welcome development across the African continent. If for nothing else, it
seeks to reposition Africa and may thus prepare the ground for the
establishment of a truly democratic system across the continent. This
process tagged, Constitutionalism, is a new idea and is a departure from the
seemingly static and traditional system that was characterised by dry
legalism that characterised law making. The struggle for a new Africa in a
globalised world has now thrown up new challenges that have made a paradigm
shift a basic precondition for the new democracies in Africa. The
development is welcome because it is a laudable attempt to elevate the level
of discourse beyond the superfluous assumptions that constitutions are
technical devises that can be designed by a mythical clique at the top, to
be handed down to the ordinary people. Of course, this may be why
constitutions have assumed the characteristics of state totems to be revered
by the people. As such, rather than being seen as the basis of their every
day social intercourse, constitutions have been turned into a golden calf to
be worshipped. The result is that making a constitution has come to evoke
some magical, super human aura, mystery and even superstition. Of course all
this is actually a continuation of some of the contradictions that have come
to give governance in Africa a toga of mysticism, shamanism and cultism. In
Nigeria, this process is often propelled by a tiny clique who is paraded as
icons to be revered and held in awe.

Although the concept of constitutionalism now possess a chic resonance and
is making us all very excited, I believe that there are some very
fundamental questions that we must seriously address our minds to if the
idea is not to become another passing fad. The real problems we need to
address are many and they include the following: How do we ensure that the
process escapes the manipulation of the ruling elite in Africa? Secondly, is
it merely a theoretical, academic exercise or will it gain ground and take a
life of its own? In order words, who propels the new constitutionalism, is
it the political elite or the academic community? What and how do the people
fit in especially when the process takes place in a language that naturally
excludes them? Is it possible that there is a fear that a people driven
constitution lead to a mobocracy while what the ruling classes and elites
want is a democracy? What is more, how do we escape the tangled, chicken and
egg scenario that will naturally dog our discourse; namely, can the new
constitutionalism be built on the structures of the existing order, or
should the proponents secure their own platform first? I have no need to
bother myself because this conference has managed to assemble some of the
best minds in the field. My paper will try to address what is largely
hitherto, a neglected theme, namely, the role and place of religion in
politics in general, an oversight that has now been admitted even by the
ideologues of the world's leading democracy. Beyond its historical
significance, religion was never really considered to have any serious role
to play in politics. This fallacy has moved on to the realm of constitution
making without seriously coming to grips with the dynamics of the
environment. The result is that the religious question has seemingly rather
silently crept into the forte and is now the single greatest threat to the
existence of the Nigerian state. It was to alert that nation of its
consequences that Fr. Iheanyi Enwerem warned of what he called a Dangerous
Awakening. I will try to argue in this paper that the issues, which now face
our nation, are the result of the failure of scholarship and ideology on the
one hand, and part of the contradictions of the crisis of legitimacy in
governance in Nigeria. Also, constitutionalism does not occur in space. It
is a product of the quest for a legitimate space for the establishment of
the Nation-state. Constitutionalism therefore is only relevant in relation
to the processes of hammering out an acceptable basis for coexistence in a
plural polity. Against this background, religion and ethnicity are only two
components of these identities, but they are a basis for organisation and
allegiance. To that extent, they do pose serious challenges in the
formulation of the requisite constitutional frameworks for their
preservation. As such, most of the discussions in this paper will primarily
address constitutionalism in relation to the Nation-State as we understand
it devoid of its ideological colourations. This paper will be divided into
five sections.

Section One will look very briefly at the way Islam, Christianity and
African Religions view the role of Religion in a Constitution. Section Two
will trace the experiences of Nigeria with religion using the experiences
garnered while designing the 1979, 1988, 1999 Draft Constitutions. Section
Three will look more critically at the status of religion in the Nigerian
Constitution making process, focusing on the debate over what have come to
be known as the Secular debate. Section Four will address itself to the
practical implications and experiences of the adoption of state religion as
a strategy for legitimation in Africa. By way of conclusion, Section Five
will try to address its mind to the future of religion in the politics of
constitutionalism in Africa.

2:1: Three Views of Religion and Constitutionalism in Africa:
The tensions around the role of religion and politics are largely based on
the conflicting perspectives of world religions. In plural societies such as
we have in Africa, these tensions are literally inevitable. Given the
ethno-cultural diversities and the contending claims of universal religions,
the responsibility of governance is largely based on how best to manage
these conflicting worldviews within the polity. Let us now briefly look at
these views as expressed in three prevailing religions in Nigeria which
predominate Nigeria in particular and Africa at large.

2:1:1: Perspective from African Traditional Religion and the State:
The combined forces of the universal religions with colonialism have managed
to give African Traditional Religion a bad name. Whereas it played host to
both religions and the agents of the colonial state, it has come under
severe attack from them both. However, as the processes of modernisation
were set in motion, it became the first casualty. To be considered modern,
progressive or to be part of the elite, one needed to move away from one's
traditional religious allegiance. With the zero sum game approach of the
universal religions, African Traditional Religion was relegated to the
backwaters of so called modern African society. The universal religions are
however not totally to be blamed for the limited role that traditional
Religion has played in African political life. However, the inability of
African Traditional Religion to impact on African politics is largely
informed by its own circumscribed worldview. For example, to the extent that
it does not canvass for support beyond its immediate horizons, to the extent
that it can not proselytise or seek adherents beyond its spiritual universe,
to that extent, its effect and impact does not go beyond the tribe. It is
what defines your membership of the community, a membership that is not
transferable. Recourse to African Traditional Religion in political
competition in Africa is largely at the level of seeking its potency so as
to gain advantage over opponents or to ward off evil through the application
of charms, amulets and other medicines. In this regards, the role of African
Traditional Religious priests in the social, economic and political life of
the African Traditional Religious priests in the social, economic and
political life of the African elite are much deeper than may be immediately
acknowledged since those who patronise them do so in secret for fear of
being found out to the hobnobbing with people considered to be agents of
darkness and retrogression. Here, like the Biblical Nicodemus, they go at
night in search of their salvation that their prestige will not allow them
to be openly associated with. So, despite swearing with their Bibles and
wielding their prayer heads, you are more likely to find the influence,
potency and power of Traditional Religion under the official's tables and
the thrones of the political elites across the African continent.
In moments of great national stress and legitimacy crisis, there have always
been appeals to Traditional religion. Despite being a Catholic for example,
and priding himself as being the first African to receive Holy Communion
from the Pope, late President Mobutu died on the sea because it was said
that a native doctor advised him not to let his cancer infested colon touch
the ground! Faced with imminent fall from his office, President Soglo, the
World Bank technocrat did not turn to Milton Keynes but to Voodoo. He
declared a National Voodoo day in his country. Whatever may be its potency,
the point being made here is that traditional religion does not have the
capacity to cause problems beyond its immediate confines. As such, in
assessing its role in politics in Africa, it must be recognised that it does
not possess the conflictual dynamics of other universal religions on the
public arena. In the main, the point must be made that among the various
African communities, the imperative of the religion of the king is the
religion of his people holds true. Thus, the king always combined both
traditional and religious powers. But as I have noted, the development of
the nation-state has stretched the boundaries of claims to the point that
political boundaries have now subordinated ethnic boundaries, and
politicians have overshadowed the traditional institutions and those who
oversee them. Thus, empires and emperors of old have now been reduced and
constricted to whatever the political space the politicians can allow. It is
here that the ambitions of the traditional rulers as custodians of their
people's commoweal begin to masquerade as interests of the ethnic group.
This is the nearest that ethnicity comes to having a role in Constitution
making across Africa. Everywhere, traditional rulers are asking for a
constitutionally assigned role and a place on the polity. Some times, these
roles and other economic interest intersect and interpenetrate the
religious, political and economic strata of society. The case of the Zulu
King breaking away from the political umbrella of the Inkatha Freedom Party
shows that in the main, traditional allegiance will always sway in favour of
whoever has the knife and the meant. The trials and travails of Kabaka of
Buganda or the Sultan of Sokoto under the colonialists or the agents of the
modern state (politicians and soldiers), reflect these deep contradictions
regarding traditional loyalties and political expediency. These royal
fathers thrive in moments of social tensions when freedoms are suspended as
was the case with the colonialists and subsequently, the military across
Africa. With emerging democracies, traditional rulers have to contest for
the heart and allegiance of their constituencies with the new political
elite as to known who is the real representative of the people. The nature
of this conflict has been the object of scholarship.

2:1:2: Perspectives from Islam:
The politics of State and Religion in Islam is rather superfluous in the
eyes of many a muslim. This is because the general belief is that one
reinforces the other. However, in practice, there are variations in the
thematic systematisation of these beliefs. Although many Muslims loosely
argue that there is only one Islam, the fact of the matter is that this is
just not true. There are many reasons why this is so. If we were to look at
even the contradictory views and ideologies of the Brotherhoods, we shall
realise that the claims of one Islam with a cohesive doctrinal set of rules
and regulations in everything is not sustainable. There are some times
diametrically conflicting world views between the Sunni and the Shiites in
many respects as a closer examination would show. For example, whereas the
Sunnis regulate their lives within the context of the four sources of
Islamic law, the Shiites on the other hand focus more on the idea of the
Imamate.

Essentially, the world, according to Islam is divided into two: the domain
of believers known as (dar-Islam) and the domain of infidels/unbelievers
(dar-arhab). Theoretically, the two seem to exist in permanent conflict for
obvious reasons. However, the nature of the ideals outlined in what has come
to be known as the Constitution of Mecca, clearly shows that the prophet of
Islam was unequivocal as to the roles of religion as the basis for survival
and identity on the new polity. The document delineated the relationship
between the members of the Muslim Ummah and the unbelievers, and conferred
so called unbelievers the status of Dhimmi, which consigns them to
subordinate status in social, economic and state relations. It is here that
many scholars derive the theory of the inseparable link between religion and
politics, with the later meant to reinforce the former. There are however,
some Islamic scholars who argue that the idea that there is no separation of
religion from politics in Islam is indeed a ruling class ruse. Said Fazlur
Rahman: The slogan that in Islam religion and politics are inseparable is
employed to dupe the common man into accepting that, instead of politics or
the state serving the long range objectives of Islam, Islam should come to
serve immediate and myopic objectives of party politics.
In nowhere is the conflict and tension between Islam and the challenges of
pluralism more pronounced today than in the quest for its relevance in the
construction of the so called nation-state. As students of Africa know very
well, there are very strong and persuasive arguments to the effect that the
idea of the National-State, with its contradictions, and coming in the heels
of colonialism is itself under siege and now largely considered a curse not
a blessing. As I noted above, the capacity of traditional institutions and
existing polities to resist both colonialism and the universal religions
were restricted due to their ethno-cultural limitations as cultural of
political expressions of their domination and conquests of existing ethnic
polities. These are the stories of the Benin, Buganda, Ghana, Mali, Oyo,
Songhai, Shona or Zulu empires that preceded colonialism. Islam, with its
universal claims of establishing polities that merge faith and politics,
found the idea of the Nation-State not only alien, but also destructive of
the basis of its beliefs, culture, politics and economics. This is because
in its experience, the destruction of its polities from Algeria, Nigeria or
the Sudan was a precondition for the establishment of foreign domination
whose survival was considered an affront to Islam.

>From the history of the encounter between colonialism and the traditional
kingdoms or Islamic states across Africa, we can see that the relationships
were initially cordial as long as Islam saw that it could use these foreign
relations to improve and consolidate its state. Nowhere was this drama
better expressed than the relationships between the Kingdoms of Uganda or
the Sokoto Caliphate. In the case of Uganda, the interplay between the
Kabaka and the various missionary groups and later on the various colonial
interests provides a fascinating expression of these dynamics. As it became
clear, it was the final overthrow of the Kabaka that created the favourable
environment that led to the establishment of the British empire across
Uganda. Perhaps this was why the British then relied on Lord Lugard, the
architect of the colonisation of Uganda to effect the subsequent conquest of
the Sokoto Caliphate as a prelude to the colonisation what is now Nigeria.
In all cases, relationships between the foreign religions or powers were
always preceded by high level intrigues, dubious terms of trade, treaties,
defense pacts and then finally conquest leading to the establishment of
foreign domination. However, it was only when colonialism shifted from trade
to occupation and the subsequent establishment of colonialism that the
relationships deteriorated to war in many polities. The processes of finding
accommodation between the conquerors and the conquered arose only when it
was clear that there was need for live and let live between the parties.
The impact of these contradictions and reorganisation of African polities
still persists up till today and it affects the way many polities are
organised and their attendant tensions. The net effect of these relations on
the Nigerian polity from the colonial period, through independence till date
have been well covered in my work, Religion and politics in Northern
Nigeria. All over the world, the contest between Islam and the Nation-State
remains one of the greatest challenges today. Indeed, in a post communist
world, the best argument to date has been advanced by Professor Samuel
Huntington who believes that the future of the so called new world order
depends on the outcome of what he calls the clash of civilisations. To be
sure, the controversy surrounding this thesis will not occupy our attention.
But the thesis challenges Islam and the Nation-State in many respects and
the reactions between Islamic ideologues and other secular scholars of
liberal democracy, have been predictable. Among Muslims, there is a school
of thought, which holds that indeed the fall of communism means that Islam
has only one more enemy to conquer: Western civilisation (erroneously
equated by the Mazrui school with Christianity). Many of the proponents of
this position are largely the youths and a sprinkling of intellectuals who
live in Europe and America, far from home. They believe that it is only a
matter of time before Islam overruns the rest of the world. They point at
the advantages, which secular Europe now offers with its relaxed immigration
laws. They also believe that at the social levels, with Islam allowing four
wives at least, the re-population of Europe and America will be undertaken
by Islam whose population is rising at a time when family life in Europe is
challenged by such social mores as contraception and the Gay movement.
However, others think differently. Moderates like president Muhammad Khatami
of Iran who believe that what the need not be conflictual, but that what the
world faces in future will be best resolved by engaging in a dialogue of
civilisations.

Whatever may be the conclusions, the reality is that it is against this
backdrop that politics is being contested across Africa and elsewhere
instates where there are Muslim populations. The tensions persist whether
they are in predominantly Muslim countries like Algeria, The Gambia,
Senegal, or the Sudan, or where the Muslims constitute a minority, as in a
Zambia, South Africa or Kenya. In each of these constituencies, Islam is
contesting for power against the backdrop of the Nation-State. This conflict
is occurring either within its own internal formations, or with those it
considers secularists. However, what is interesting is that Islam seeks to
use the very things it rejects, namely, the secular space, to advance its
own non-secular goals as we have seen in Algeria, Sudan or even Nigeria.
This is at the heart of Constitutional reforms in these and many other
counties. The Nigerian situation possesses its own dynamics and it is so
explosive because unlike other places in the world, it has an almost equal
number of claimants of both faiths. There is no other nation that faces this
problem. This is why the debate is much more acrimonious and some times
bloody. But we shall come back to this. For now, we can end with the words
of James Piscatori who has best captured the nature of the dynamics of the
forces that are at play. He argued that in this contest between Islam and
the Nation-State:.. Some have wanted primarily to avoid a blind return to
the past and have accepted the need for change; others have wanted primarily
to purify Islam and the innovations and deviations which westerners and,
worse, westernised Muslims introduced; others have come to see many more
contradictions between Islam and the demands of modern politics and have
opted for the restriction of Islam to the individual's private life; still
others have held a variety of opinions in between.

2:1:3: Perspective from Christianity:
The issue of the role and place of religion in politics has always been very
contentious within Christianity right from the beginning. Indeed, because
Jesus came at a time of very serious social, religious, economic and
political upheavals, the claims He made about everything abi-initio, helped
to introduce the serious friction that developed among both His followers
and the entire society around which He lived. By calling Himself a Messiah,
talking about establishing a kingdom, rebuilding the Temple in three days,
all these struck a very strong nerve in the lives of the people of his time.
Here were the Jewish people, living in exile, searching for Land which they
knew had been taken away from them by unbelievers because their ancestors
had disobeyed the will of God, here were the Jewish people, living under the
servitude of a Roman empire which had over-run them. The Jews were still
very strong in the belief that the kingdom would be restored to them, they
believed that a Messiah would come and that he would over run the Romans and
turn back the hands of time in their favour. They dreamt about worshipping
in their temple in Jerusalem etc. This is why people like Judas, die hard
ideologues of the suicidal use of force to overthrow the existing order
became so frustrated that he was ready to sell a man he had followed for
thirty silver pieces. Jesus had failed to meet up with the standards of man
who would conquer the Romans when He began to say things like; if you are
slapped on one check, turn the other, or those who take up the sword shall
die by the sword. This was not the stuff of conquerors and so, he and a host
of others considered that getting Jesus out of the way would help restore
their sense of expectation and determination to take on the Roman empire.
Judas would have more than applauded the Ariel Sharons of today.
Nowhere is this confusion of the role of the Christian more pronounced than
we see when direct political choice is mentioned. When those who still had
faith in Jesus confronted Him about the choice between allegiance to the
kingdom of Caesar and the kingdom of God, their intention was to clarify
their minds as to how best to find a balance between this world (Caesar) and
the next (God). They did not want to lose eternal life by making the wrong
choices! Yet, in answer, Jesus told them to render to Caesar what is
Caesar's and to God what is God's. This text has now become the classic text
adopted by most observers the connection between religion and politics to
argue that Jesus meant that there should be no relationship whatsoever
between the two. Any attempt would be like mixing oil with water! However, a
much closer examination of the details of this text conveys a very different
idea contrary to what have become the most popular interpretations of today.
It will be recalled that before Jesus made this comment, He asked to be
given a coin. He then asked his listeners whose face was on the coin, and
they answered that the face on the coin was Caesar's face. Now this meant
that the coin, being a symbol of Caesar's authority could mean nothing else
other than the fact that all those who wished to do business and recognise
in the kingdom of Caesar, must subordinate themselves to the authority of
Caesar and play by his rules. God could not come down to compete for
authority with Caesar. After all, the only reason why Caesar's face was on
the coin was because he had established his authority. The next question
which Jesus implied though did not articulate would naturally be, well,
whose face does Caesar carry, whose image? If that question were to be
asked, the answer naturally would have to be found on the basis of the Book
of Genesis, which says that God created man in His image and likeness of
Himself. In which case, all of us including Caesar carry the image of God.
In the final analysis, if Caesar, who owns the coin belongs to God, it
follows that in the end, both Caesar and his coin are God's since God
created Caesar and his kingdom! If we follow the logic, then, politics
becomes an act of offering to God by the children of this world. As such,
contrary to the confusion which has been implied in the belief that the text
conveys the idea that religion and politics are separate. Rather, both
should be taken as an offering to God who owns them all!
In the politics of the Nation-State, Christianity his not escaped the
contradictions of Islam after it. From the period of Constantine when the
Church and the state became merged into one and one was at the service of
the other, Christianity suffered all the distortions associated with this
political marriage of convenience. The French and the Bolshevik revolutions
and other subsequent developments across Europe altered this may completely
and pushed Christianity to the back burner of politics. Today, it is only
the Anglican Church, the Church of England that still holds on to the
vestiges of an established church. But even there, developments in the last
twenty years have thrown up new contradictions and it is becoming clear that
the Church of England would have to face the fact that destablishment is a
better option for the Gospel of Jesus Christ, who rode into Jerusalem on a
donkey, a symbol of humility. It is enough to say that historically,
Christianity in Nigeria functioned even during the colonial period across
Africa, at the level of separation of church and state. However, those
countries in Africa which were colonised by the British or the Belgians and
to some extent Portuguese had to face the problems of the assumption that
church and state are one or at least not openly considered hostile. It is
more likely though that this seeming collapse of interests had more to do
with race than anything else since Africans did not always receive the same
recognition. The result explains the nature of the locations of early
Anglican Churches and official colonial government lodges in some parts of
Africa. We shall come back to examine the nature of the conflict between
religion and the Nation-State much later on, but for now, let us turn to
other themes:

ON its own, Ethnicity has hardly been a Constitutional issue, given that the
essence of a Constitution is to secure a tent of protection and security for
the rights, hopes and aspirations of its peoples. On the religious front, it
is Islam really that has presented many nations with Constitutional problems
regarding the role and place of religion. The story of this involvement is
as old as the history of the intervention of the British in the lives of the
communities in the various African states. In many African states, the
British overthrew Islamic states which had become notorious for its
infringements of the rights of citizens over whom they governed. The nature
of these infringements included abduction, slavery, forced conversions and
so on. The victims of these excesses included the poor segments of the
Islamic society and that is how the concept of the Talakawa, the wretched of
the earth, became for many, even with the Muslim community in the caliphate
as a source of liberation. The North had always functioned as an independent
cultural, social, political and even largely religious unit. It will be
recalled that, as we have noted, after the conquest of the Sokoto caliphate,
the major concession which the Muslim elite pleaded for was that the British
should ensure that the interests of Islam be adequately protected. The
British had these demands on two fronts: first of all, they pledged the
policy of non interference which was meant to restrict the movement of
missionaries and the spread of Christianity into areas considered to be
Muslim lands, secondly, through indirect rule, the powers of the Emirs were
enhanced and they were co-opted as junior partners in the power game that
subsisted in the region. The non Muslim population in Northern Nigeria
remained largely on the periphery of national life. Evidence of their
disillusionment with Islam would later manifest itself in various ways as
the communities embarked on various forms of the expression of self
determination, some times violently. Indeed, the persistence of this
violence as a basis for negotiation has become widespread with the spiral of
violence precipitated by ethnic militias.
It can be argued that the pursuit of the policy of the colonial policy of
Non interference led to the deepening of suspicions and tensions on both
ethnic and religious lines. First of all, the Muslims referred to
non-Muslims as Kafir, a derogatory term that caused a lot of disaffection
among the various indigenous peoples. Secondly, the local Christian
population felt alientated as missionaries were denied freedom of movement
while their faith was being given secondary status. The result is that by
the time political formations began to emerge, non Muslims in the Northern
region saw this as a chance to assert their Otherness and their new
identity. Thus, the first attempt at political organisation by these
communities found expression even in the platforms they sought to use. The
first political formation was aptly called, the Non Muslim League (NML). It
was later on changed to Middle Zone League (MZL) as the political space
opened up. Much later on, the same movement metamorphosed into what was
known as the United Middle Belt Congress (UMBC).

As independence drew near, it became clear to the British that there were
many problems that still needed to be properly addressed. The most prominent
expressions of dissatisfaction came from the so-called Minority ethnic
groups whose individual numerical weaknesses subordinated them to the
seeming tyranny of the three main ethnic blocs. The regional governments
which the British had created had been coterminous with the boundaries of
power of the three main ethnic groups: East (Igbo), North (Hausa) and West
(Yoruba). Minority agitation across the country was based on the feelings
that the departure of the British would deny these ethnic groups the
umbrella of protection. It was therefore felt that a Constitutional solution
would have to be found to guarantee and protect their interests. Varied as
these interests were, the British still believed they were serious enough to
warrant their setting up what has now come to be known as the Commission Set
Up to Enquire into the Fears of Minorities and how to allay them.
Reactions to the Minority Commission ranged from charges of ethnic
discrimination among the ethnic minorities in Southern Nigeria and religious
discrimination among the minority ethnic groups in the Middle Belt. The
grudges of the non-Muslim minorities centred around the following issues:
. Allegations of Religious Discrimination:
The pursuit of the policy of non interference had concretised the wall of
distrust that grew amongst the various peoples of the Northern region.
Islam, the dominant religion had gone beyond being an expression of faith.
Non Muslims in the North felt that religion was playing too dominant a role
in their political and socio-economic fortunes. Perceptions of
discrimination against Christianity and Christians began to find full
expression in Christians being denied places of worship in many Northern
towns and cities. The turning point for these tensions and fears was in the
early and mid 60s when the Premier of the Northern Region, Alhaji Ahmadu
Bello began to embark on his Conversion campaigns. This development found
the Premier traversing many non Muslim communities across the region, not to
win political support, but to spread the banner of Islam. This reaction to
the development and spread of Christianity was intended by the Premier to
keep the North united under a religious flag. Its consequences are still
largely responsible for the fears, tensions and suspicions that still dog
relations in the non-Muslim ethnic groups in Northern Nigeria and the
predominant Muslim population. In the area of Common Law, non-Muslims
remained embittered by the fact that it was mainly Islamic law that was
applied in the Area Courts which were all manned by Muslim judges (Alkalis).
Ordinary non Muslims found them to be a source of oppression and injustice.

. Allegations of Political Discrimination:
Many non Muslims believed that being a Muslim was a basic precondition for
the occupation of certain positions in the region. Before the Commission,
non Muslims testified to harassment of political opponents by the
predominantly Muslim political and ruling party of the time, the Northern
Peoples' Congress. To be sure, there were sprinklings of non Muslims. As we
pointed out above, the nature of the political party formations in the
Middle Belt had already demonstrated that the non Muslims in the area
preferred to run their lives. Despite the ethnic differences in the Middle
Belt, ethnicity and religion converged in the protest against Islam. Again,
these anxieties still persist and they have often manifested themselves in
the various Constitutional debates right through the last twenty or so
years.
In reaction to these anxieties, the colonial government responded by merely
stating that time and political engineering would sort things out in the
regions especially after independence. At this time, the sticky religious
question revolved around the status of Islamic Law in a new independent
Nigeria. Over the years, that rather indiscriminate and political
application of Islamic law across the various parts of the Northern region
had further alienated many non Muslims. The colonial government was anxious
that new political developments (independence for a united Nigeria) meant
that the nation had to operate under a legal system that was acceptable to
all segments of the society. And it can be argued that this really is where
the issue of religion began to manifest itself in the Constitutional
development of our nation. It is to this that we shall now turn our
attention.

. Consecrating the Political Space: The Politics of a Secular State:
In addressing this issue, again, much attention will be devoted to Nigeria
because although these problems persist in other African countries, the
experiences are not as sharp as we have them in Nigeria. Sudan for example
had not even been able to secure the political space to seriously address
the issue of Constitutionalism precisely because of the very sharp
convergence between the contending religious formations of Islams and
Christianity. Since these differences have been frozen and have now become
the basis of war, we have seen that nation falter from the madness of the
Numeri period to the El Bashir pretensions at creating democratic space. The
experience of Algeria in he last ten or so years has created its own
problems for that nation. When the Muslim fundamentalists sought to use the
structures of democracy to consecrate the political space, what followed was
disaster. That nation's tragic experience in the last ten or so years is a
manifestation of these contradictions. Constitutional monarchies like
Morocco have their own peculiar system and just like other nations where
Islam is dominant, non Muslims are consigned to what in the eyes of many is
a second class status. We shall therefore examine Nigeria's peculiar
problems to show the nation's experience with the dynamics at play in the
pursuit of a secular, Constitutional democracy.
By 1956, it had become clear to the British that the agitations for
independence from the educated elite in Southern Nigeria, meant that
independence would have to be granted sooner than later, they decided to
start finding the best ways for containing the problems of how best to
guarantee the relevance of Islamic law for a new Nigeria. To resolve this
problem, the colonial government decided in 1958 to send delegations to
travel to Sudan, Libya, and Pakistan. The idea was to find out the processes
for the integration of Muslim law into a modern Democratic state. The
reports of these Committees formed the basis for the establishment of the
Sharia Court of Appeal in Kaduna, the regional headquarters of Northern
Nigeria. The new legal Code was known as the Penal Code. This Code existed
in Nigeria right through to the late 70s. As an educated and politically
more conscious Muslim elite emerged in Northern Nigeria, the agitations for
a more aggressive assertive and prominent role for Islamic law became more
strident. Although for many observers, the climax came in the debate over
the 1976 Draft Constitution in 1977, the fact of the matter is that these
agitations had been going on. The unitary nature of military rule, its
suspension of the Constitution as a basis for governance and legitimacy
meant that there was no platform for the expressions of the accumulated
emotions that had grown over the years in Northern Nigeria over the status
of Islamic law.
As we have already noted above, the issue of the place of Islamic Law in the
politics of Nigeria remained seemimgly dormant until the circulation of the
Draft Constitution in 1976 as a prelude for Nigeria's return to civil rule.
The debates around the Constitutional provision have centred around Section
10 of the 1979 Constitution which provides that, No State shall adopt any
religion as a state religion. The details of the debate have been covered
elsewhere. The contents of that debate are well known and in any case, they
have now been overtaken by events to which we shall soon turn our attention.
The so called sharia debates have been about what exactly the word adopting
any religion as a state religion really means.

FOR the proponents of the Sharia, this is a call to Secularism, an
aberration and an anti religious position that is unacceptable to any
believer. To the non Muslim and the largely Christian elite, the clause
means that the State should, in their words, hands off religion and
religious affairs. The details and the context around which this debate
takes place falls outside the context of this paper.
The nature of the shifts in the positions adopted by the Muslim elite in
using the Sharia as a strategy for political negotiations have been examined
and their implications analysed elsewhere by the author. The tensions
surrounding the various Sharia debates were manifold but they also managed
to show Nigerians how little they knew about themselves and their various
cultural, ethnic, religious baggage. For many a Southern intellectual, the
Sharia was an irritant, an attempt to take modern Nigeria back to the dark
ages as some argued. However, for many Muslim elites, the Sharia issue had
become so important that they were ready to risk the survival of both
democracy and the nation itself rather than sacrifice their platform. It
might be important for us to ask why the Sharia debate has often generated
so much passion. To this, we need to come to terms with the essential
ingredients of the debates and how they impinge of Constitutionalism and the
evolution of the Nation-State in Nigeria.
It is possible to argue that there have been four periods in the Sharia
discourse in Nigeria. Most of this has already been mentioned in the main
body of this paper. Each period has often coincided with the need to lay a
firm and solid foundation for a so called new order. Briefly, these periods
to my mind, can be classified as follows.

The Colonial Period: This coincided with the collapse of the Sokoto
caliphate and agitation among the Muslim elite was to secure the freedom to
practice their faith unencumbered. As we have noted, the very first
concession which the defeated caliphate sought to extract from the British
colonialists were, among other things, the spiritual space to practice their
faith unhindered both by the colonial structures and Christian missionary
activities which were portrayed as disruptive. Here, the protection of
Sharia law by the colonialists was seen as a necessary step in the quest for
laying the foundation for a colonial state. The legitimacy or otherwise of
this state is not the issue.

The pre-independence period: In the colonial period, agitation's against the
excesses of Islamic law were dominant within the Muslim community where the
poor oppressed often revolted against the dubious application of Islamic law
for political ends. Outside the Muslim constituency, it must be remembered
that among other things, Muslims genuinely feared the subordination of
Islamic law and the decline of Islamic mores in a new democratic Nigeria.
Given that the new state as being constructed on the debris of a moribund
Islamic state, there were fears that a new democratic Nigeria could
undermine Islam seriously and merely consolidate colonial or western values
at the expense of Islam. As we noted, the solution was found in what the
British presented as the Penal Code.

The Military and Post Military Period: The intervention of the military in
Nigeria politics had all the characteristics of a colonial force. Perhaps
the only serious differences lie in the fact that the colonialists were our
own sons and daughters. The plunder of the nation's resources, the arbitrary
application of the instruments of terror against the people, the
subordination of the Constitution to the whims of the illegitimate
government, the threats to democracy, remain the trade marks of military
rule. Perhaps, tragically, one invidious thing might be that whereas the
British stole our wealth and used it to develop their country, our thieving
elites, have still continued to channel our stolen resources to the vaults
of the same European metropolis! Here, each attempt by the military to find
the exit route and lay the foundation for democracy has always been followed
by an attempt at providing a Constitutional basis on which to hoist the flag
of the legitimacy of the new political order. Each time the nation embarks
on the path of finding a Constitutional framework for a new state, the issue
of the status of the Sharia has always been the most controversial part of
the Constitutional debate. In 1988, the Babangida government, anxious to
both play and move the goal posts at the same time, went as far as declaring
the Sharia clause a no go area in the Constitutional Assembly debates of
1998. These phases manifested themselves in 1977, 1988, and 1995.
The political period: It is possible to argue that most of the so-called
debates about the status of Islamic law have largely been debates about how
best to secure and protect the interests of the Islamic ruling classes whose
oxygen of survival is supplied by Islam. In the preceding years, what we
have always had, have been cases in which this elite uses the Sharia debate
as a bait to secure a platform. As we noted in the case of Algeria and
Sudan, excesses in extending the frontiers of application of Sharia law even
in predominantly Islamic states that seek democracy and pluralism, have
always taken the nations backwards. However, the younger generation of
Muslim leaders has been prone to taking these suicidal risks. Although the
sentiments surrounding this quest for an Islamic state derive from a rather
poor reading of history, the fact is that the Islamic revolution in Iran in
1979 and the subsequent collapse of Communism put these challenges in
perspective. Young Muslims especially those ironically living in the
comforts of western societies, which they pretend to despise, believe that
the destruction of the nation-state is a precondition for the emergence of
Islamic as opposed to Muslim states. Echoing these sentiments, Dr. Dalim
Siddique, delivering the Second Annual Khomeni Memorial Lecture argued that:
Demolition of the colonial legacy and the nation-State and the
neutralisation of the armed forces, are the indispensable prerequisites for
the emergence of an Islamic state. The surgical operation of the Islamic
Revolution must cut through and remove all the contaminated tissues in order
to eliminate every chance of secondary infection... When another part of the
Islamic movement succeeds in converting another geographical area of the
Ummah into the Islamic state, the Islamic movement will be correspondingly
strengthened. Then there will be two Islamic states in the global movement.
And then there will be three, four, five... how many, we do not know. But
the number of Islamic States will certainly be fewer than the number of
Muslim states. Subsequent developments and Iran's inability to export its
revolution or the reluctance of other Muslim states to import the revolution
have shown that there is a distinction between the perceptions of the
Islamic revolution from the warm embrace of western capitals and the cities
of Qum, Iran. These were the sentiments that led to the declaration and
adoption of Sharia Law across many states in Northern Nigeria. It can be
argued that beyond the political mileage, only time will tell whether these
states are on the way of transforming themselves from Muslims to Islamic
states within the Nigerian nation-state. By way of conclusion, let us pose a
few more questions by attempting some projections.

Future Challenges for Constitutionalism in Africa:
The convulsions across Africa are often seen as major threats to
Constitutionalism and Democracy. As wars, hunger and poverty stalk the
continent, many observers believe that Africa's soil is no fertile ground
for the seeds of democracy. Yet, democracy, like child birth is bound to be
both a labour intensive and bloody business. Africa has watched its dreams
fail, the people have watched its elite eat up the seeds of a greater
tomorrow. When the winds of Communism blew, we all responded in Africa. The
result was staggering: 250 parties in Zaire, 100 in Congo, 68 in Cameroon,
30 in Senegal, 25 in Burkina Faso, 17 in Benin and 16 in Guinea. In the 70s,
Africa's fortunes did indeed look very bright. In such countries like
Nigeria, the Universities had become the epicentre of international
scholarship. Military rule ravaged all that and lay the country to waste.
The 80s found them pretending to seek legitimacy trying to use democracy as
a fig leaf to cover their nakedness. The contradictions were exposed by the
observation of such thinkers like Claude Ake who noted: Military rule is not
so much the aberration we often call it as the negation of what is uniquely
human in the way we relate. The military can never engender democracy
because it is the antithesis of democracies regards to its norms, values,
purposes and culture. The military addresses the extreme and the
extraordinary while democracy addresses the routine, the military values
discipline and hierarchy while democracy freedom and equality, the military
is oriented to law and order, democracy to diversity. This partly explains
why our so called nascent democracy, conceived and midwifed by the military,
started to overheat even before we commenced the real journey in the search
for freedom and equality.
It is therefore possible to argue that contrary to what has become popular
mantra in the discourse about Africa, the convulsions are not an impediment
to democracy or democratisation. They are not the cause of Africa's
inability to democratise, they are rather the symptoms of the failure of the
African corrupt elite who have shown no serious commitment in seeking new
directions for Africa's future. Hence, as we move into a renewed attempt at
extending the frontiers of democracy, we must still remain vigilant.
Constitutional transitions of the past got caught up in their own
contradictions for many reasons. Professor Julius Ihonbvre has warned that
there are many different kinds of Constitutional initiatives, which have
been prevalent in Africa. He identified various initiatives at
Constitutionalism across the continent. However, most of these initiatives
have been at best been mine fields marked by various detonators planted to
secure and protect the interests of the old order that tends to respond to
the transition to democracy mantra while their heart are elsewhere. Among
these initiatives at achieving Constitutionalism are the following:

. Constitutional conferences with Sovereign powers
Constitutional conference packed with state agents and men and women with
dubious characters, largely anti democrats.
. Constitutional conferences designed by the state to achieve desired ends.
. Constitutional conferences designed to deal with certain specific
problems; ethnic, religious or class.
. Constitutional conferences aimed mainly to tinker with the old order but
achieving no concrete results etc.
The real issue is how do we find the right one and how do we avoid falling
into the same pitfalls? The seeming failure of constitutionalism is not
unconnected with the nature of the politics of transitions to democracy.
Transitions from dictatorships always carry with them certain contradictions
that are largely inherent: the contentious resistance by an old order and
the determination of the new order to break forth. The old order never
wishes to give away its privileges because the continuation of these
privileges has always been the basis of the oppression. To throw off the
yoke of oppression therefore implies a loss of privileges by those who are
the beneficiaries. As a result, there is always something tentative and
uncertain about transitions. Constitutionalism is one device for ensuring
some degree of certainty. Unfortunately, there are no fool-proof measures to
be taken. We can only try to learn from the experience of others by looking
at their experiences.
The issue of how and where religion and ethnicity fits into all this is
problematic because both are neglected themes in African politics. Despite
its seeming rigour, the left read the writing wrongly when it came to the
role and place of both religion and ethnicity. Both were condemned as being
obstacles to genuine national cohesion and other categories of relations
such as class where invented.

BUT, the reality has turned out to be a bit more complicated than this.
Unfortunately, both ethnicity and religion have come back to haunt many new
democracies in Africa in the most negative forms as we see in Rwanda,
Algeria or Nigeria. It is against this background that our discussion must
address the issues raised by O'Donnell and Guillermo who warned that the
success of transitions lie in the ability of the middle class to decide
which side they want to align with. He argues that: The middle class lends a
distinctive weight to claims from civil society, they provide some
respectability and authority to the discourse of the opposition ... by
crossing over to the opposition, middle class elements later help prevent a
right wing back lash against any regime that may come to power. We must also
realise that there are no certainties in transitions. A lot could happen and
we must not be blind to the fact that old orders do not merely concede
defeat as if it is an act of charity. Indeed, it is possible to argue that
the old order some times merely could wish to the instruments of democracy
to install and consolidate itself in power by merely using different faces,
but retaining the same objectives. And that is why, Dr Tunji Olagunji et al,
argue that: We should not study transitions as if their outcomes are given;
as if all that is required is a programme of activities and a time table to
be pursued with mere missionary commitment and clock work precisions.
It we focus our discussion on Nigeria, it will not be difficult to see where
our attempted Constitutional reforms in Nigeria fit into any why they have
tended to always fail. Their failure therefore has to be situated within the
larger context of the contending interests on the African continent. In
seeking to show case South Africa's Constitutionalism as an ideal, we must
place it in proper context. Transitions occur as a result of any of three or
more factors: a movement wins an outright war of liberation and draw up a
Constitution that meets their ideological raison detre, two contending
parties decide that none can win an all our war and they decide to
negotiate. The constitution that emerges here is an amalgamation of these
assorted interests and it is the result of bargains and trade- offs. With
time, if the winning stronger side does not manage power properly and
returns to the ways of the past, renewed tensions arise as in the case of
Zimbabwe. The third situation which is not totally dissimilar to the
previous one arises when for example, a ruling class realises that the tide
is changing the political environment is no longer profitable for business
and the survival of its interests (as in the case of military and civilian
dictatorships in Algeria, Nigeria, Kenya or even South Africa under
apartheid). The result, therefore, is that contestation becomes a necessary
component of transitions and indeed transitions to a just order become an
unfinished agenda!

Finally, the emergence of the trappings of democracy across many countries
in Africa in themselves do not necessarily mean that a new dawn has arrived.
The rise of ethnic militias in Nigeria in the wake democracy, the rise in
the curve of ethnic and religious violence are all disturbing, but they are
largely an expression of the stress and tensions of transition from an old
order to a yet unborn new order. The fact that even the best of both our
intellectual and political class still remain ambivalent in condemning the
excesses of these militias should tells us a thing or two as to how far we
still have to travel on the path of national cohesion across ethnic or
religious lines. The tensions which the Sharia crisis triggered across the
country, all these are indicators of the fact that our nation still has not
managed to exorcise the dark demons of ethno-religious bigotry. They also
demonstrate that on anvil of a fialed state, where there are no laws, where
those who hold power do not as yet possess the moral authority to command
loyalty, any weapon will ,and can be hammered into existence.
It is ,therefore, pertinent to raise the question as to whether
consitutionalism is a way out and if so, what instruments should we apply?
To seek answers to these questions, we even need to ask more questions. For
example, what are the limits of Constitutions in governance in Africa? To
what extent are the lives of those in power and those of ordinary citizens
in Africa regulated by Constitutions? In other words, there is serious need
for us to understand the cultural, social, political and economic taboos
that still regulate the lives of our people and the extent to which they
still impinge on the polity. It is clear to any observer that in most
African countries, the informal sectors have overthrown the formal sectors.
And this is true from the economy to politics. This is why corruption is so
rife in Africa. African leaders, be they military or civilians have always
fallen back on traditional systems as a basis of legitimising their hold on
power. We have already referred to some of these examples. However, it is
evident that a telephone call at an unholy hour of the night can decide the
fortunes of our nation. A phone call from a traditional ruler in a far away
corner of an African capital can decide whether an election will be accepted
or not, it can decide whether X or Y will become the Vice Chancellor or not,
it can decide whether A or B will become the Governor of the Central Bank,
the Chief Executive of the National Oil, Gas, Diamond, Gold or Coal board.
All these still happen despite the fact that African leaders hold Executive
Council Meetings, Meetings of Councils of State, the existence of Senates or
Houses of Representatives and State Assemblies. These are the stark
realities that stare us in the face. When the leaders get irritated by the
prying eyes of the Media or when such organs of civil society like labour or
the Human Rights community, they resort to claiming that we are Africans, we
must have home grown democracies, we must return to our cultures, the white
man can not tell us what or do or how to run our lives, after all, we ran
kingdoms and empires before the white man came. They never confront the fact
that their predecessors at least had sanctions that empowered their subjects
to oust them! The new constitutionalism must confront the stress and pull
that come with these challenges and decide whether indeed, we need a need a
transition from or merger with the old order. There are no quick answers,
but we must probe for them.

This brings us to a very important point: what manner of foot soldiers do we
need to fight for a new order for Africa? What is clear is that when we talk
of a people based Constitution, we tend to focus on the need of the people
to have a say. Yet, as we have noted, the idea of the people is still
problematic in Africa due to the problems of so called tradition and this is
a large measure of why oppression, victimisation and violence persist
through the application and deployment of gender, tribe, region, religions,
ancestry as instruments of violence. Some times, what passes for a people
based Constitution based on a broad based consultative initiative may indeed
be nothing more than people presenting a wish list or shopping basket of
needs, wants and ambitions. In the case of South Africa's much acclaimed
consitutionalism, the 1.7m submissions received finally were whittled down
to a mere 11,000. The Commission held over 26 public sittings, with over 2oo
Constituent Assembly members and 20,649 people in attendance, and a
staggering 717 organisations represented.

Thirdly, it is important for us to understand that no Constitution offers
all the cures nor is it a one size fits all. Beyond being a mere declaration
of intentions, it is a blind document which can not see into the future. As
a result, what is really needed is a process that can help install
institutions, ideas and ideals around which civil society can be firmly
built as a stepping stone to the emergence of people power. Even in its
purest form, People power has its own serious ideological contradictions.
Some times, it is nothing more than a platform for the channeling of
discontent against the existing order. Consequently, people power can be
propelled by a common enemy (the existing order) and yet lack a common
vision. It is easy for people to believe that they see what the are united
against, but what they are united for can be a will-o'-the-wisp.
Raise questions about the nature of the characters who got into power and
the time frame within which interests were really allowed the conflate. A
shot gun transition will always tend to lend itself to amnesia and the haste
to get the old order out. South Africa's transition created the right
environment for the explosions and implosions of internally and externally
propelled contradictions regarding race, ethnicity, and class, the three
contending forces in the system. In the case of Nigeria, there was no time
for even a dialogue with the old order. Nigerians were said to be yearning
for Democracy and thoroughly fed up with the military. With too many
pretenders to the throne of Democracy, we mistook the wood for the trees.
These are some of the contradictions which continue to dog the process. Be
that as it may, it would seem to me that there is hope at the end of it all.
If only government develops the sophistication and acquires the necessary
tools to deal with the social problems created by unemployment and moves
fast to fill in the perceived power vacuum, it can at least attempt to
occupy the moral high ground. The tensions generated by ethnic militias will
persist until the President demonstrates that it has won the legitimate
right to occupy the moral high ground.

In the case of South Africa and Nigeria, the idea of Truth Commissions has
been adopted, but not without its own problems. From the revelations, there
are many who would suggest that a collective amnesia would have been a
better alternative. Whatever may be the limitations of these investigations,
many argue that they should not be exercises in witch hunting. Yet, I
believe that if indeed we have witches, hunting them is very important. Not
all witch as long as it is not caught. In the process, its double- faced
life is what constitutes the problem. If a witch can be made to repent, at
least that will set it on the path of personal liberation as a basis for
national liberation. Yet, there is the witch in each and every one of us.
So, beyond the theatricals of those who have been caught, a new Africa will
never emerge until we all confess and seek renewal in whatever shape or
form.
The future of Africa depends substantially on how well Nigeria and South
Africa reposition themselves. While a false picture of competition is being
painted, both nations must realise their peculiarities. Whatever happens to
South Africa, it is not about to become the focal point of all black people
the world over. Only Nigeria has the capacity to play that role. If Nigeria
fails in that role, it will never be forgiven. As we trudge on in the valley
of tears while the rest of the world moves on the fast track, Africa's
choices seem to be encapsulated in what Friedman meant calls the Lexus and
the Olive Tree. It is a delicate choice that does not have to sacrifice one
value for the other. He captured the essence of this choice thus:
Any society that wants to thrive economically today must constantly be
trying to build a better Lexus and driving it our into the world. But no one
should have any illusions that merely participating in the global economy
will make a country healthy. If participation comes at the price of a
country's identity, individuals will feel their olive tree roots crushed, or
washed out by this global system, those olive tree roots will rebel. They
will rise up and strangle the process ... A country without healthy olive
trees will never feel rooted or secure enough to open up fully to the world
and reach out to it. But a country that is only olive trees, that has only
roots, and has no Lexus, will never go, or grow very far. Keeping the two in
balance is a constant struggle. Finding that balance is what has enabled
many famous acrobats to dance on a tight rope while throwing up six eggs in
the air. Perhaps Africa needs more and more acrobats as we walk into the new
millennium. May God give us the grace and show us the way.
Concluded

Rev. Fr Kukah is consultant to the Pontifical Council on Inter-religious
Dialogue at the Vatican City, Rome.

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