The general limitation clause that is found in section 45(1) relates only to some aspects of the s.38 right. I pointed out earlier that the s.38 right is made up of three freedoms. The freedom to believe and the freedom to have a conscience are absolute and no limitation can be put on what is truly a private matter.13 It is only with respect to the manifestation of the belief that the general limitation right applies to. This is also pertinent to the prohibition of secret societies which I examined above. The key requirement of the s.45 limitation is that the limitation must be by law that is reasonably justified in a democratic society. There is no clear indication of what is meant by ‘law’ in this circumstance. Presumably, it will include state and federal legislation. It should include the common law customary law and delegated legislation. Furthermore the law ‘must be reasonable justifiable in a democratic society.’ This means that it is not every law that can perform a limitation function. To determine which laws will qualify a key question is how to define the phrase. A first point should be that the 1999 Constitution is itself the cornerstone of democracy and the principle of dignity freedom and equality is at the heart of the democratic enterprise. A second point is that evidence is needed of the effect of the exercise of the s.38 right to justify its limitation by law. A third *40 point is that the purposes included in s.45 are material. Thus a law can only be reasonably justifiable in the s.45 context if it is either for the interests of defence, public safety, public order public morality or public health or for the purpose of protecting the rights and freedoms of other persons. There is little jurisprudence on what most of these limitation signposts mean. ‘Public order’ has been interpreted by the Nigerian Supreme Court in Osawe v Registrar of Trade Unions, 14 where the Supreme Court decided that the right to freedom of association is limited by any law that is reasonably justifiable in a democratic society and the then Trade Union Act, as amended15 is a law reasonably justifiable in an democratic society since the restrictions it imposed on the formation of trade unions by workers was designed to preserve public order. Of the other signposts it is ‘public morality’ that poses considerable problems given Nigeria’s multi ethnic and religious make up. The second basis for the limitation function in s. 45 is the protection of the rights and freedoms of others, and seeks to promote tolerance at least in the s. 38 context. In a multi religious but secular country such as Nigeria it is important that religious manifestations do not infringe the religious rights of other citizens. Laws that restrict religious manifestations may be justified on the grounds that they promote harmony. Fourth, the requirement of ‘reasonableness’ imports notions of proportionality which involves a balancing of the s.38 right and its limitation by law.16
III. DENIAL OF JUSTICE: PROHIBITING THE PRACTICE OF THE OCCULT AND PARANORMAL BY THE LAW
In this section I shall demonstrate that the prohibition of the practice of the occult and the paranormal leads in some cases to the denial of justice and a threat to the administration of justice system.
The prohibition of the practice of the occult and paranormal in the Criminal Code17 has a colonial origin. This is evident in the fact that the predecessor to the present Criminal Code was promulgated in 1904, and by that time there were already statutes that prohibited slave dealing and witchcraft.18 Since witch hunts and executions had ceased in Europe,19 well over two centuries before Nigeria *41 was colonized, it seemed inevitable and natural for the English to be hostile to the notion of the occult and paranormal especially witchcraft. It was also natural to react to the phenomenon the way that the English legal system had done before the repeal of the witchcraft Act in 1736 by criminalizing the Act. There is no doubt that the prohibition of the occult and paranormal by the colonial masters was designed to eradicate the belief and practice in the phenomenon. By its retention in our statute books, it can be stated that this remains the policy of the post colonial Nigerian State. This overall objective is important for a State that seeks by its criminal policy to exclusively retain the permissible power to kill20 especially in an environment where the punishment for many occultic and paranormal activities is death.21
Chapter 20 of the Criminal Code is titled Ordeal,Witchcraft, Juju and Criminal Charms. Section 210 of the Criminal Code prohibits all activities related to witchcraft criminal charms and juju. The said section provides that any person who:
(a) by his statements or actions represents himself to be a witch or to have the power of witchcraft; or (b) accuses or threatens to accuse any person with being a witch or with having the power of witchcraft; or (c) makes or sells or uses, or assists or takes part in making or selling or using, or has in his possession or represents himself to be in possession of any juju, drug or charm which is intended to be used or reported to possess the power to prevent or delay any person from doing an act which such person has a legal right to do, or to compel any person to do an act which such person has a legal right to refrain from doing, or which is alleged or reported to possess the power of causing any natural phenomenon or any disease or epidemic; or (d) directs or controls or presides at or is present at or takes part in the worship or invocation of any juju which is prohibited by an order of the State Commissioner; or (e) is in possession of or has control over any human remains which are used or are intended to be used in connection with the worship of invocation of any juju; or (f) makes or uses or assists in making or using, or has in his possession anything whatsoever the making, use or possession of which has been prohibited by an order as being or believed to be associated with human sacrifice or other unlawful practice; is guilty of a misdemeanour, and is liable to imprisonment for two years.
While section 207 of the Criminal Code prohibits trial by ordeal22 sections 208, 209 and 211 seeks to punish any chief or person who directs, controls presides or *42 is present at any trial by ordeal or invocation of any juju. Section 213 prohibits the making selling or the stocking of any fetish or charm which is pretended or reputed to protect burglars, robbers, thieves or other malefactors or assist them in the perpetration of any such crime. The Penal Code applicable in the Northern States of Nigeria has similar provisions. In addition these Northern States of Nigeria have codified a significant part of the Sharia criminal law23 and they contain provisions similar to section 206 of the Criminal Code24 except that the punishment is death in stead of fines and imprisonment. It is fitting to conclude that the serious punishment attached to this offence underscores a more determined approach to abolish the practice of the occult and paranormal in these Northern States. The definition of juju by section 405 of the Zamfara Penal Code worship and invocation of any subject or being other than Allah is problematic. According to Professor Peters:
The explanation of S. 405 which, extends the meaning of juju to the “worship or invocation of any subject or being other than Allah”, and the fact that this has been made a capital offence render the provisions dangerous, since they could be used against all religious practices that are un-Islamic. The exact purport of the section is not clear. Since the code only addresses Muslims, the provision seems to address persons who regard themselves as Muslims but nevertheless participate in the practices mentioned in these sections.25