30 MIZAN LAW REVIEW Vol. 7 No.1, September 2013
outcome of five years of negotiation that brought to an end the Thirty Years’
War.1 This Peace, as Derek Croxton describes it, was credited for ‘denying
altogether the religious basis of secular authority’.2 Accordingly, it ‘terminated
the Pope’s claim to universal authority and confirmed the diplomatic
independence of secular rulers’.3 However, the meaning of the secular is itself in
a continuous state of articulation and re-articulation, casting doubts also on its
attributes. Scholars continue to question what it means and its desirability for the
modern state system. For instance, constitutions of countries astutely declare the
separation of state and religion, and the prohibition of the use of the political
apparatus for religious agenda.4 Does that mean that these legal stipulations
alone make that particular country more secular than the ones which do not have
these provisions? Or is being secular an attribute of the society, the existence of
which requires something more than a legal declaration on the duality of state
and religion as such? Calls for a space for religion in a multicultural and
democratic context are on the rise, in an open acknowledgement to the changing
global dynamics where it is increasingly declared that ‘separation of state and
religion is no guarantee of free exercise of religion and belief’.5 Abdullahi an-
Na’im, a renowned scholar on Islam and human rights, was quoted as saying ‘I
need a secular state to be a Muslim. … If I don’t have the freedom to disbelieve,
I cannot believe’.6
Where the coercive tools of the state such as the criminal law, family code
and institutions by which the state controls societal behaviour are highly
dominated by religious ideals of one kind or another, references to that state as
secular are open to challenge.7 Israel’s claim to be a secular state, for example,
1 See Benjamin Straumann (2008), ‘The Peace of Westphalia as a Secular Constitution’,
Constellations, Vol. 15, No 2, pp. 173-188, at 174.
2 See Derek Croxton, (1999) ‘The Peace of Westphalia of 1648 and the Origins of
Sovereignty’, The International History Review, Vol. 21, No 3, pp. 569-591, at 571.
3 See Id., at 572.
4 According to Article 11 of the Federal Democratic Republic of Ethiopia Constitution,
‘state and religion are separate; there shall be no state religion; the state shall not
interfere in religious matters and religion shall not interfere in state affairs.’ The
Federal Republic of Nigeria’s Constitution also stipulates under its Article 10 that ‘the
government of the federation or of a state shall not adopt a state religion.’ See Federal
Democratic Republic of Ethiopia Constitution, Proclamation No 1/1995, Negarit
Gazeta, Year 1 No 1, 21 August 1995, Addis Ababa; and Constitution of the Federal
Republic of Nigeria, Decree No 24 of 1999, 5th Day of May 1999.
5 See Rosalind I.J. Hackett (2006), ‘Religious Pluralism in an Undecidedly Secular
World’, Human Rights, Vol. 33, pp 21-25, at 23.
6 See ibid.
7 The Criminal Code of the Federal Democratic Republic of Ethiopia, Proclamation No
414/2004, 9th May 2005. To examine the Ethiopian example further, its criminal law
proscribes blasphemy under its Articles 816 and 492 in varying degrees; See also the