The management of the Covenant University, Ota, Ogun State has suspended about 200 undergraduates of the faith-based institution for missing an Easter ‘Youth Alive’ program. The school had earlier organized the four days Easter retreat for the students and had also made attendance mandatory. However, while some of the students were fed up – for various reasons – of going for church services in the morning and evening for the four uninterrupted days, they couldn’t just but miss some days out of the retreat. Surprisingly and unfortunately to them, they have been punished through suspension by the school management for simply missing the compulsory Easter program. Some were suspended for a year.

Suspension is a very serious punishment. As serious as it is, however, there are instances where it will and must necessarily be applicable on erring students. Yet, the means by which students are suspended from school must be reasonable and must be carried out within the confines of our laws.

This case of the Covenant University suspending about 200 of its students for not attending an Easter program is a prima facie case of unconstitutional suspension of university students.

Before continuing with this piece, there is need to state clearly that if there is any enacted law in the university that have made attending religious functions compulsory, such law is void and of no effect whatsoever. I am quite sure that the school would have relied on a particular written law of the institution before the suspension since “nulla poena sine lege” – there can be no punishment or penalty without law. And if such law exists in the school, the law is clearly against the provisions of the Constitution; the sacred book where all other laws derive their validity. And if not, that will amount to the height of total unconstitutionality because there ought to be no punishment without law. See Section 36(12) of the 1999 Constitution.

Interestingly, the school itself is a creation of law and the law is above the school authority or laws – the Constitution is supreme and all other laws derive their validity from it. The implication of this is that its (the school’s) actions must be within the provisions of our laws, particularly the Constitution. By virtue of Section 1(1) of the 1999 Constitution, the Constitution is supreme and its provisions shall have binding force on all authorities (including Covenant University authority) and persons throughout Nigeria. See MADU v. ONUAGULUCHI (1985) 6 NCLR 365.

Therefore, any law made by the institution that is inconsistent with the provisions of the constitution shall be declared void and unconstitutional. Section 1(3) of the Constitution goes further to provides very clearly that “if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.” See ABACHA v. FAWEHINMI (2000) 6 NWLR (Pt. 660) 228; F.R. N. v. IFEGWU (2003) 15 NWLR (Pt. 842) 113; A.G ABIA STATE v. A.G. FEDERATION (2002) 6 NWLR (Pt. 763) 264.

First, the students’ right to freedom of thought, conscience and religion guaranteed under section 38(1) of the 1999 Constitution has been breached. The section provides thus “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, in public or private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.”

The implication of this section is that even though the school is established by a church, it will be quite unapt to deny students the right to freedom of religion. Even when, for example, all the students are Christians, the constitution has granted them the right to change their religion or belief without notifying anyone. The constitution has also granted the students the freedom to manifest their beliefs either alone or in public and this can infact justify their sitting in their hostels instead of joining the congregation.

If based on personal conviction – brought about by deep thought ( a constitutional right) – the students suspended has changed their religion, should that lead them out of the school? Should exercising the constitutional right to change religion amount to automatic carry overs and extra-years? Frankly, making attendance of students compulsory and mandatory at a ‘Youth Alive’ Easter program is a breach of this fundamental right.

Section 38(2) of the Constitution goes further by providing thus: “No person attending any place of education SHALL BE REQUIRED TO RECEIVE RELIGIOUS INSTRUCTION OR TO TAKE PART IN OR ATTEND ANY RELIGIOUS CEREMONY OR OBSERVANCE, if such instruction, ceremony or observance relates to a RELIGION OTHER THAN HIS OWN or religion not approved by his parent or guardian.” (Emphasis supplied by me).

The above provision has expressly precluded any institution from imposing religious instructions on students for any reason whatsoever. However, there are two main clauses that need to be clarified.
They are:
(1) Where the religious instruction relate to a religion other than his own OR (not AND)
(2) Where the religion is not approved by his parent or guardian.

Thus, if the school religion is approved by the parent of the students, it will amount to a lawful instruction. And where the instruction is in consonance with the plaintiff’s religion, it is legally binding.

After all said however, in my humble view, the former relates to where the person relying on the provision is an adult and is deemed fit under law to make decisions of his own without any interference from anybody including the parent or guardian. And the latter will be applicable where the person relying on the section is still an infant under the law and is incapable of making some decisions without the parents’ or guardians’ consent. And that’s why the drafters of the Constitution were careful in making use of OR instead of AND. You either fall within a category. I stand to be corrected!

There is need to categorically state that an adult does not necessarily need the approval of parents for the religion he wishes to practice. More importantly, the students, presumed to be adults, have been granted the right under section 38(1) of the constitution to change their beliefs and religion without the approval of or from anyone. Thus, where some of the students have exercised their constitutional right to change their beliefs, it will be unconstitutional and very violating to force the students of the institution to attend religious functions other than theirs. For the constitution has provided in clear terms that no student shall be compelled to attend religious function or ceremony where such instruction or ceremony relates to a religion other than his own. And since most of them are adults, the alternative (2) of “parents’ religion or consent” can be do away with and inapplicable to this very serious matter.

Since it has been established that the student has the right to freedom of thought, conscience and religious, it will also be very unlawful for an institution to compel students to be in the midst of others for religious purpose. Apart from the fact that section 38(1) has vested on the students the right worship alone or in the midst of others, making it an imperative for the student to be in attendance has also violated the students’ right to peaceful assembly guaranteed under section 40 of the 1999 Constitution. It provides (in part) thus: “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 interest”. See the celebrated case of AGBAI v. OKAGBUE (1991) 7 N.W.L.R. (Pt. 204) 391 and the provision of Article 10 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

Additionally, one of the students was reported by Punch to have said this: “They stopped me from sitting for a paper last week because I did not go for a service and I don’t know if I will be allowed in today either.” This statement has the effect that the student was not infact aware of his suspension until he got to the exam hall. Since the students appear not to have been summoned before suspended, it is therefore safe to submit that the place of fair hearing is missing!

Fair hearing is a very sacrosanct provision of the Constitution that relates to administration of justice. Section 36(1) of the 1999 Constitution provided for the right to fair hearing or trial. Since the students are not summoned and interrogated formally before suspension, it will be trite to submit that this fundamental right has also been violated. It is a cardinal principle of Natural Justice that “nemo judex in causa sua”; no one must be a judge in his own cause. But here, the management of the Covenant University has assumed the role of the complainant and the judge which is against the above principle. The school authority has also failed to hear from the other side before meting out punishment since it is the law that “audi alteram partem” – both sides must be heard in determining cases.

Commenting on the sacrosanct nature of fair hearing, in OMOKHODION V. FEDERAL REPUBLIC OF NIGERIA AND 6 OTHERS (2006) All FWLR 1, the court observed that a hearing can only be fair when all of the parties involved are heard. And so, without fair hearing or trial, the principles of Natural Justice, highlighted above, are out rightly abandoned and violated. See GARBA V. UNIVERSITY OF MAIDUDURI (1986) 1 NWLR (Pt 18) 550, OTAPO V. SUNMONU (1987) 2 NWLR (Pt. 58) 587, KOTOYE V. CENTRAL BANK OF NIGERIA AND OTHERS (1989) 1 NWLR (Pt. 98) 419

Having established the grave violations of the authority of the said school, it will be instructive to assert that the school should as a matter of urgency withdraw the suspension in order to promote rule of law in this country. For the truth is that suspension as punishment in this kind of situation is too harsh a decision. Saying it is the height of cruelty and illegality is an understatement.

Relying on the above legal authorities and provisions, the school is therefore enjoined to recall the students and reinstate them and thereafter offer them public apology with immediate effect. Unconstitutionality shouldn’t be celebrated and overlooked in this country. We have laws in Nigeria which are above all of us and as such all citizens and authorities must abide by it, whatever the state of our temper.

Remember, this piece is not written to promote insubordination or indiscipline but to ensure justice is done to the poor students.

God bless Nigeria.

Festus Ogun (This email address is being protected from spambots. You need JavaScript enabled to view it.) is a Civil Rights activist and Law undergraduate of Olabisi Onabanjo University.