Justice in Multi-Religious Society: State of Osun as a Case Study.

Abstract

The Constitution no doubt recognises the Sharia to the extent that section 6(3)(5) recognises the Sharia Court of Appeal as a court of superior record in Nigeria, but the constitution did not elevate Sharia to a State religion.

The Sharia has been operational in some parts of Northern Nigeria even in the colonial days. It was then known as Alkali courts now Area Courts. Under this system, the Islamic law is employed only in civil and specifically personal matters. Besides, the ruling of Sharia Court of Appeal were only binding on Muslims who choose to go to such courts. In other words the Sharia was voluntary to both Muslims and non-Muslims. With the adoption of the Sharia, all Muslims who choose to go to such courts. In other words the Sharia was voluntary to both Muslims and non-Muslims. With the adoption of the Sharia, all Muslims in the state have to abide by the Sharia provisions in both civil and personal matters as well as criminal matters. It is submitted that the Governors of the concerned States failed/neglected to understand the import of sections 275 and 277 of the Constitution (derived from section 6(3)(5) of the Constitution) which allows for the establishment of Sharia Courts of Appeal as being totally different from the adoption of Sharia as a legal system or the establishment of Sharia High Courts or Sharia Magistrate Courts to try both civil and criminal matters. For the avoidance of doubt, Section 275 provides:

"There shall be for any State that requires it a Sharia Court of Appeal for that State."

While section 277 of the Constitution provides:

(1) Sharia Court of Appeal of a State shall in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving the questions of Islamic personal law which the court is competent to decide in accordance with the provision of subsection of this section;

(2) For the purpose of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide;

(a) any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant;

(b) where all the parties to the proceedings are Muslims, any question of Islamic personal law regarding a marriage including the validity or dissolution of that marriage, or regarding family relationship, a founding the guardianship of an infant;

(c) any question of Islamic personal law regarding a Wakf, gift, will or succession where the endower, donor, testator, or deceased person is a Muslim;

(d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm; or

(e) where all the parties to the proceedings, being Muslims, have requested the court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question."

The provisions of section 275 and 277 shows that whereas section 275 deals with the establishment of a Sharia Court of Appeal of a State, it does not provide for the establishment of a Sharia Magistrate Court or Sharia High Court. An understanding of this section means that for a case to be taken to the Sharia Court of Appeal. it has to be tried first by a competent court of record. The constitution does not provide for Sharia Magistrate Court. At the same time it has not given the Governor the power to establish such courts. So the declaration by the Governor of Zamfara State establishing the Sharia Court, Higher Sharia Court, and Upper Sharia Court to operate along the conventional courts has no constitutional backing and is void to the extent of its inconsistency with the supreme law of the land. From the above, one can conclude that the actions of the Zamfara State government and that of other states planning to adopt Sharia goes contrary to the provisions of the constitution. It is also valid to conclude that their actions are capable of undermining the peace and security of the country. If one should go by what Governor Sani told us about the superiority of Sharia over the constitution, one may not be wrong in saying that we are sitting on a keg of gun power that is bound to explode any minute.

Introduction

Nigeria and Malaysia have a lot in common. Both are multi-religious and multi cultural; both were colonized by Britain; and both have committed Muslims willing to live and be guided by the teachings of Islam as contained in the Shari’ah, the Islamic Law. But, whereas Article 3(1) of the Malaysian constitution states: “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”, the question of whether or not Nigeria is a secular or Multi-religious society has been a subject of debates which predates its independence.

Thus, the two countries, Nigeria and Malaysia, provide an ideal environment for the study of the feasibility of finding harmony between Shari’ah and Civil law, since both have a Muslim majority, alongside followers of other faiths, and the latter has, while the former has not, declared Islam as the state religion. The former gives an opportunity for an insight into the possibility of coexistence of both systems of law in a Federal system that does not recognise Islam as the official religion while the latter presents the situation where the state has adopted Islam as its religion, but at the same time cherishes and upholds other faiths.

This paper discusses the problems, challenges and methodology of harmonizing the two systems of law in our contemporary society taking Nigeria as a case study. First it presents the historical background and the various stages Shari'ah went through in the Nigerian constitution before finally reaching the present status in the constitution, mentioning some of the important factors which led to its re-introduction.

Secondly, some prominent cases of Shari’ah application are cited to give insight into the actual application. Next, an analysis of some of the perceived ‘conflicts’ between the Federal system and the one adopted by these individual states is given, showing the obstacles that have to be overcome and the challenges facing the co-existence of Shari’ah and Civil Law. Finally some practical approaches towards removing these conflicts and making harmony between the two systems are identified, concluding with recommendations and advices that could serve as a framework for this harmonization.

Nigeria: Pre-Colonial Era

Nigeria, situated in the West African region, operates the Federal system of government with three-tier structure: Federal, State, and Local Government Administrations and governance through the sharing of powers, revenue and responsibilities between the three tiers of government. Nigeria has a leading role in African affairs and is currently the leader of the Economic Community of West African States (ECOWAS), playing decisive and mediatory roles in regional and continental conflicts most recent of which were in Liberia, Sierra Leone and Togo[1].

Its population is over 120 million and Islam has the highest followers among the citizens, followed by Christianity, and Traditional religions[2]. English is the official language, and Hausa, Igbo and Yoruba are the three main Indigenous languages in addition to well over 200 other minor tribes speaking various languages. Together, the first three account for around 65 percent of the country as a whole, have produced most of its leading politicians, and served as the basis for all the political parties during the independence struggle and the three republics[3].

The Hausa-Fulani, who live in the north and are mostly orthodox Muslims, can be traced back more than a thousand years. They were part of an elaborate trading network in the early nineteenth century their political power was centralized by Usman Dan Fodio after establishing caliphate under Islamic law (Shari’ah) transforming the old Hausa city-states into emirates[4],[5]. The Yoruba and the Igbo developed different but equally sophisticated political systems, with the former based on kingdoms founded by Oduduwa, covering south-western regions of Nigeria and virtually the entire country of Benin while the latter, in the south east of the Niger, had clearly defined separate policy-making, administrative, judicial, and military roles in a decentralized, merit-based, autonomous, community based system. Before independence, unlike the Hausa-Fulani, most of the Igbo and some Yoruba have converted to Christianity[6].

The Jihad of Usman Dan Fodio and the Coming of Shari’ah to the North

Although the North was predominantly Muslim, their practice was infused with traditional beliefs. This gave rise to the Jihad of Usman Dan Fodio, starting in the later part of the eighteenth century with a group of young scholars who were rightly worried about the level of ignorance as well as injustices in their society and whose immediate objective was to disseminate the knowledge of the religion clearly and widely. By the beginning of the nineteenth century, persecutions from the Hausa tyrannical and corrupt rulers, forced the movement to call for massive Hijra(exodus), take up arms and subsequently engage in confrontations and jihad. In 1810, after several wars and many battles, the Sokoto Caliphate became established, covering most of northern Nigeria and Niger Republic, leading to the establishment of the Islamic system of government, under which Shari’ah was the legal codes in practice at the Emirs’ Palaces and Alkali courts, with unlimited jurisdictions, guided only by the dictates of the Qur’an and the Sunnah of the Prophet (SAW), and exercising powers over the entire citizenry[7].

Nigeria Under British Colonization

The abolition of slave trade, the industrial revolution and the rise of capitalism, and the “scramble for Africa” brought Britain to the shores of Nigeria, and from their headquarters in Lagos, they took over the (south) western region and subsequently south eastern Nigeria with the beginning of the twentieth century. At almost the same time, British forces destroyed the remnants of the Sokoto Caliphate and established total British authority in the north and thus, emerged Nigeria of today.

But, the two geographical regions were ruled via two entirely different systems. Indirect rule was used in Muslim north. The existing system of courts, rulers and judges was retained, courts ruled by the Shari’ah with unlimited jurisdictions and local leaders acted as proxies for the colonial masters. On the other hand a colonial regime was run in the south with expatriate British officials governing directly, but heavily relying on local officials due to limited foreign personnel[8].

Shari’ah in the History of Present day Nigeria

The following section attempts to present the different stages that the application of Shari’ah underwent till its full application was restored by Zamfara state.

After ousting the 100-year old caliphate of Sheikh Usman Danfodio, in March of 1902, the British entered into a kind of a ‘truce’ with the leaders of the Sokoto caliphate by which they undertook not to interfere with the Muslim's freedom of worship, and to retain the Shari’ah courts, with their unlimited jurisdiction, run at the Emir and Alkali courts respectively. But, with time, they reneged on this, curtailing and gradually uprooting the application of Shari’ah to Muslims[9].

The colonial government used gradual steps in achieving this, first, by making the Shari’ah courts subject to the District Officers’ supervision, despite their lack of judicial competence; second, by establishing common law courts with superior powers; third by categorizing Shari’ah among local customs, to be struck down whenever found in conflict with the English common Law; four by the introduction of the infamous “repugnancy test”, forcing the Shari’ah courts to conform with the doctrines of the common law; and finally, at independence, by “persuading” (or coercing) the Northern Region to accept the Sudanese Penal codes, taking away criminal  jurisdictions from Shari’ah. This therrefore became the status quo.

But, the Shari’ah was not limited to the North. Because, undoubtedly, the south-west (Yorubaland) is predominantly Muslim, and: 

“According to history, before the colonialists eradicated Shari’ah in Yorubaland, there were Shari’ah courts in Iwo in 1906 during the reign of Oba Mohammed Lamuye, in Ede in 1913 during the reign of Oba Abeeb Lagunju, and in Ikirun during the reign of Oba Aliyu Oyewole in 1912. Epe and Ibadan were also noted for establishing Shari’ah courts in the pre-colonial period.[10]”

Thus, on coming into office, His Excellency, Alhaji Ahmed Sani, the elected governor of Zamfara state, announced the full restoration of the Shari’ah code including the criminal aspect, in a convention attended by hundreds of million of Muslims from withing and outside Nigeria, he was followed, almost immediately by the Niger state governor. Since then, many more states of the North have had to adopt the full application of Shari’ah, though with varying degrees of commitment and a wide range of approaches towards its restoration.

It is noteworthy that, of recent, the Muslims of Oyo state started personal application of Shari’ah, after all efforts to get the government respond to their yearnings hit the rocks, giving the lie to those who see the clamour for Shari’ah as a Northern Agenda. In fact,  

“the clamour for the official reintroduction of Shari’ah law in Yorubaland is not a new phenomenon. The first move in that direction was said to have been made in 1923 when the Lagos Muslim community petitioned the colonial administrations for the creation of Shari’ah courts following the non-consideration of Islamic divorce rules by a colonial court which heard a divorce case between one Hawawu Thomas and her husband[11].

“The Ijebu-ode and Oyo Muslim communities were also said to have demanded the reintroduction of Shari’ah from the colonial masters in 1940 and 1944 respectively. Lately in a petition signed by 29 Imams and Muslim leaders in Oyo state, the Muslim community there had requested the former military governor of the state to establish Shari’ah courts in the state.[12]”

Debates on the Constitutionality of the Shari’ah

Since the beginning of the ongoing clamour for the full implementation of Shari’ah in Nigeria, several learned gentlemen have voiced their view on whether or not the 1999 constitution of Nigeria, as it is, gives room for extending the Jurisdictions of the Shari’ah codes to include criminal offences and even capital punishments. Without going into the politics involved, nor the learned arguments and counter arguments, interpretations and deductions invoked to prove the constitutionality or otherwise of the Shari’ah, let’s have a brief look at the history of this crucial debate[13].

The British promulgated the Richards (1946), the MacPherson (1951) and finally the Lyttleton (1954) constitutions, allowing each region to elect its own representatives and draft its own laws, gave them equal representation in the national legislature, and established a federal structure, leading to the final draft, on the eve of independence in October, 1960; for which the British Government placed the NPC, ruling party, under pressure from other political parties by making the achievement of independence conditional on introducing the legal and judicial changes meant at replacing the Shari’ah with the penal code and limiting it to personal matters[14].

Since then, the Nigerian Constitution has undergone several revisions and amendments, with debates, conferences and legal discourses preceding (and, often, following) major revisions. The latest constitution is that of 1999 and currently, the National Conference on Political Reforms is going on, from which major amendments to the Constitution may arise.  

Shari’ah, naturally, took a prominent status in these debates. International Human Rights Law Group observes,    

“During the 1978 Constituent Assembly, the most contentious debates that occurred were centred around (sic) the issue of the Shari’ah. Specifically, Christian and Muslim members differed over a proposal for the establishment of a Shari’ah Court of Appeal. Many Christians saw the suggestion as the first step towards the establishment of an Islamic state in the country. Muslims on the other hand argued that the establishment of the Appeal Court was a logical extension of the existence of inferior Shari’ah courts which Muslims had been demanding for, for a long time. In the compromise that emerged, the Shari’ah Court of appeal was established but its appellate jurisdiction was limited to civil law… Similar debates occurred during the 1989 and 1995 Constitutional Conferences[15]”

What then has been the debate about? Prof. Yadudu submits that the Shari’ah debate is centred around the following issues: One, establishing a Shari’ah Court structure up to the Supreme Court level, but with limited jurisdiction, side by sides with the English common law types of courts; Two, whether the Shari’ah, a religious law, should receive any mention in the constitution; Three, is Nigeria multi-religious or secular, and more recently, the Zamfara initiative, reintroducing full application of Shari’ah[16].

Now what has been the reaction of the Muslims throughout this? According to Dr. Tabiu,

“Nigerian Muslims have never openly or silently accepted the triumph of colonial policy in undermining the Shari’ah and subordinating its judicial system…

The recent efforts in Zamfara and other states, supported overwhelmingly by the Muslim umma all over the country, are but further, and in this case more productive, manifestation of the Muslim struggle[17].

Application of Shari’ah: The Cases

Since the re-introduction of Shari’ah in 1999, many cases have been tried under it and a lot of controversies have arisen there from. Here a glimpse of some of the most popular cases will be given, referring to the news media where they were reported[18].

1. March 22, 2000 – Zamfara -  Mallam Buba Jangebe, hand   severed for stealing a cow[19]
2. July 2000 – Zamfara - Nigerian official sentenced to receive 80 lashes for falsely accusing his wife of adultery.[20]
3. September, 2000  -  Ms Bariya Ibrahim Magazu, sentenced  to lashes for pre-marital sex and bringing false charges against men with whom she allegedly had sex.  Sentence carried out in January 19, 2001[21].
4. August, 2001 – Sokoto –  The director of the Sokoto National Orientation Agency, Mohammed Jobi, and the agency's accountant, Issa Abdullahi, were given forty lashes each, fined ninety dollars and made to pay back the money they stole.  The two federal government employees found guilty of stealing the cash gratuity meant for a man who was about to retire[22].
5. November, 2001 – Zamfara - the Deputy Speaker of State House of Assembly, Alhaji Abdulsalami Ahmed Asha,   arraigned before a Sharia court in Samaru, Gusau, for selling his official Peugeot car at the cost of N2.1 million[23].  
6. January 3, 2002 -  “Sani Yakubu Rodi, aged about 21, convicted in Katsina and hanged in Kaduna Prison. Rodi was “found….guilty of the murder of a woman and her two children: a four-year-old boy and a three-month-old girl. The victims were stabbed to death in their home. Sani Yakubu Rodi was reportedly caught at the scene of the murder and immediately arrested by the police…  In the initial hearing on 5 July, he pleaded not guilty. However, in a subsequent hearing on 4 September, he changed to a guilty plea. The court sentenced him to death on 5 November. He did not take up the opportunity to appeal, and his death sentence was subsequently confirmed and his execution authorized by the Governor of Katsina State.[24]”
7. January 23, 2002 – Sokoto -  18-year-old, Hafsatu Abubakar  acquitted after accusation of having sex outside marriage. She and the baby had been held in prison pending the trial[25].
8. Tuesday, August 19, 2003 – Dutse, Jigawa State - Islamic court of appeal quashes death sentence by stoning: Salimu Mohammed Baranda, a man who plead guilty to committing rape in Nigeria recently had his death by stoning set aside after his lawyers plead insanity. Salimu Mohammed Baranda admitted that he committed the rape of a nine year old girl and apparently refused to defend himself against the charges. According to the BBC, though, family members convinced him to appeal the death sentence and his lawyers claimed that he was insane at the time he committed the crime. An Islamic court of appeal in Nigeria overturned the conviction and ordered the man committed to an asylum for evaluation[26]. A Shari’ah court in Dutse had sentenced 50-year-old Sarimu Muhammad to death by stoning for raping a nine-year-old girl. Muhammad, who hails from Baranda village in Dutse Local Government Area, was charged with raping a minor, contrary to Section 129 of the Sharia Act. At the sitting of the court on April 25, the convict had admitted to committing the offence even after the judge had cautioned him on the implication and nature of the penalty. In his judgement, Alhaji Isa Gantsa said he was satisfied with the voluntary confession of the accused and found him guilty as charged. He, however, gave Muhammad 30 days within which to appeal against the ruling if he so wished.
9. Kazaure, Jigawa State - traditional ruler, Alhaji Abba Ajiya of Kazaure,   sentenced to one year imprisonment and 40 strokes of the cane, for "camping" a housewife, Faiza Bala[27].
10. Friday, September 14, 2001 - Birnin Kebbi,  Kebbi State - 35-year-old man, Attahiru Umar, was sentenced to death by stoning, for sodomising a seven year-old boy[28].
11. Monday,  June 3, 2002 - Bakori, Katsina State - Shari’ah court frees Nigerian mum pending stoning appeal[29]: An Islamic court today freed a young mother facing death by stoning to allow her to care for her child, raising hopes she would be cleared on appeal. Amina Lawal, aged 30, was sentenced on 22 March to stoning-to-death for adultery by a Sharia court at Bakori, Katsina State. She allegedly confessed at her first trial to having had a child while divorced. On 19 August the Sharia Court of Appeal in Funtua, Katsina State, upheld the death sentence. Amina Lawal's appeal against the sentence to the Upper Sharia Court of Appeal of Katsina was still pending at the end of the year (2003)”[30].
12. March 25, 2003 – Sokoto - the Sharia Court of Appeal of Sokoto State ordered the acquittal of Safiya Yakubu Hussaini, who was facing death by stoning for adultery[31]. Heard on November 27, 2001 - Safiya Hussaini Tungar Tudu’ case was suspended following appeal. The 35-year-old housewife was allegedly  raped by one  Yakubu Abubakar and  sentenced to death by stoning on October  9, while Abubakar was freed for lack of evidence[32].

From the preceding, it is clear that Shari’ah implementation in the field of Hudud is fully operational in most of the states. Similarly, this clearly refutes many of the false claims made against Shari’ah implementation, such as the accusation that it is biased against women and minors in addition to an affirmation of the willingness of the people to submit to the dictates of the Islamic Law, no matter the consequences.

Legal Problems of Shari’ah Implementation

Several legal ‘conflicts’ – real or perceived – have arisen from the application of Shari’ah and here we will look briefly at them.

A.       Constitutionality of Shari’ah: this is the most fundamental problem area in the Nigerian case. This is emphasized by the fact that whereas late Prof Bola Ige (SAN), the late Attorney General of the Federation did say that "…none of the states, which have passed what they call Shari’ah law have violated any part of the Nigerian constitution…"[33], Kanu Agabi (SAN), also Attorney-General and Minister for Justice, in his infamous letter to the Governors of the Shari’ah implementing states only fell short of claiming its unconstitutionality. In addition, the President, the Senate and several learned gentlemen have delved into and discussed the issue at length, with each discourse raising more questions than answers. Harmonization will necessitate finding clear stand of the constitution vis-à-vis the Shari’ah.

B.         Restrictions to the Shari’ah (?): The next major stumbling block is the issue of to what extent should the Shari’ah be implemented. In Nigeria, for the example, the Muslims are calling for its full implementation, including criminal law, with only one possible limitation, the rule on apostasy, to be in consonance with the freedom of religion enshrined in the Federal constitution, under which the Shari’ah was restored. On the other hand, opponents of the Shari’ah argue that it should be limited to personal matters, and are quick to add that the penal code has adequately taken care of that.

C.        Repugnancy Test: This is yet another clause that has to be resolved if the harmony aimed at is to be achieved. A situation where the Shari’ah can be struck down whenever found in conflict with the English common law is not only abhorred by the Muslims but totally unacceptable. The case of Yinusa Vs Adesubokun, 1970 where the Islamic law of inheritance was nullified by the Supreme Court of the Federal Republic of Nigeria because of its incompatibility with the received English Wills Act of 1837 is a clear example of the consequences of such a clause.[34].

D.        Reluctance in allowing the Practice of Shari’ah: another problem comes  from  a reluctance of state governments – especially in the South – to allow the establishment of Shari’ah courts, even with the limited jurisdictions provided by the penal code. For years, calls for the establishment of such courts had always been met with contempt or fallen on deaf ears. Thus, with everybody (Muslim and Christian) acceding to the fact that the constitution provides for Shari’ah, at least in civil cases, there is no reason why a Muslim of Ijebu-ode, in the sout-west, or Agbede in the Edo (South-South) should be taken to a customary court to decide on an issue concerning his Muslim family.

E.        Reliance of the Shari’ah on State legislations: is another legal pit-fall as decisions are subject to the appeals in the federal courts, curtailing the powers of the state courts to interpret and apply Shari’ah especially where learned Qadi’s are not allowed to sit and participate in the High Court while trying cases of Islamic Law[35].

F.        Lack of knowledgeable and Qualified Qadi’s: The success of Shari’ah is solidly based on a thorough understanding of the Islamic Law and an ability to make decisions within the framework of the Federal constitution. Thus, one of the major challenges is that of unqualified judges. This could be one of the reasons why, in almost all the appeal cases cited above, the superior Shari’ah court, with more qualified and competent judges, the judgement was repealed, within the framework of the Shari’ah. [See the cases of Safiya and Baranda, above, for example.]

Harmonization: A Practical Approach

Having traced the history of Shari’ah in Nigeria and the current situation on the debate about its full restoration in some states, some of the Shari’ah cases and the various legal challenges and pit falls let us now propose some recommendations and suggestions on tackling them in order to achieve harmony between the two systems.

It is my belief that harmonization can only be achieved based on a multi-directional approach, involving all sectors of the government and the populace, including non-governmental organisations (NGO’s). Following is a bottom-up discussion of the  roles each of  these sectors  could play towards realization of this goal.

A.        Muslim Citizens: since Islamic Law is believed by all Muslims to be an obligatory part of their religion, it is their ultimate readiness to take their cases to the Shari’ah courts and willingness to abide by its rulings that will ensure the success of the system.

a.   Here, it is pleasing to note that, despite the opportunity to appeal against the Shari’ah court ruling in a Federal High Court, to date, none of the accused has done so, preferring rather to appeal to the Shari’ah Court of Appeal. This has definitely saved the legal problems which would have arisen as a result.

b.   Similarly, in multi-religious societies, to try and force non-Muslims to succumb to the dictates of the Shari’ah, against their wills, will be to invite unnecessary problems, except in rulings where the entire interest of the society will be jeopardized otherwise.

c.   Efforts should be made by the Muslims to use the existing legal and political framework to achieve their goals, without going to extremes or been unjust to followers of other faiths.

B.        Non-Muslim Citizens: in countries with Muslim majorities, whether Islam is the official religion, like Malaysia, or it isn’t, like Nigeria, it is important that,

a.   The non-Muslims understand and appreciate the Muslims’ stand vis-à-vis the implementation of Shari’ah and avoid unnecessarily antagonising them. 

b.   Indeed, if every non-Muslim realises that succumbing to Shari’ah, nay following any religion, is a matter of personal choice and conviction, it will do good to all and a lot of controversies could be avoided.

c.   Any grievances – real or perceived - should be channelled through proper legal means.

C.       Shari’ah Implementing States: In countries where only certain states operate the Shari’ah law, it is imperative upon the governments to have full cooperation between themselves and take adequate measures to  eliminate all obstacles to the Shari’ah implementation through:

a.   Eliminating any lacunae which may be existent in their codes.

b.   Harmonizing the codes between their states so as to come up with a unified code that can be resorted to by any state

c.   Educating and Training courses should be organised for new and serving judges to make them conversant with the civil and criminal aspects of the Shari’ah codes to ensure their competency and minimize appeals.

d.   Since certain aspects of the criminal law are left to the discretion of the judge (in the form of Ta’azir) it is imperative to either canonize these punishments or at least lay down clear guidelines on what the range of  alternatives a judge may resort to in passing such judgements. Otherwise, a lot of discrepancies will remain and harmonization will become a mirage.

e.   Efforts should be made to enact laws covering other aspects of life, from the Shari’ah point of view, not just the judiciary system, as this will minimize conflicts and pave the way to easy settlements between differing parties in any contract.

f.     There should be continuous revisions of codes and constant supervisions of the proceedings of the lower courts to ensure strict compliance with guidelines and highest forms of ethics.

g.   Also, efforts must be made to make customary and magistrate courts, available along sides the Shari’ah courts, in areas where there are non-Muslim minorities, to allow them the choice of either going to the Shari’ah courts or any other court of their choice. 

D.       States with Muslim Minorities: similarly, it is imperative for states with Muslim minorities, where the Shari’ah is not being implemented in full, to:

a.   Reconsider the situation and allow the application of at least the aspect of the penal codes provided for by the Constitution in order to be fair to the Muslims in the state. Of course it is grossly unfair to force a Muslim marriage to be dissolved or decided by a customary court.  

b.   Provisions should also be made for Muslims going to such Shari’ah courts to make appeals at Shari’ah higher courts, even if not in the same state. This way, purely Islamic Law cases can be heard and decided at all levels by competent judges irrespective of their shortage in some states.

E.        Federal Governments: the ultimate burden lies upon the shoulders of the Federal Governments, whether Islam is the official religion or not, hence the following suggestions:

a.   Countries like Malaysia, where Islam is the official religion, the status of the Shari’ah court with each state having its own enactment/act that control the procedure of appeal should be coordinated by elevating it to the status of federal court[36].

b.   Similarly, such countries should also make more efforts to remove all Constitutional obstacles hindering the effective application of the Islamic Law or subsequent appeals.

c.   Other countries, where Shari’ah is implemented, at the  state not the Federal level, like Nigeria, should make provisions for Constitutional amendments to fully accommodate the requirements of a full application of the Shari’ah without unnecessarily causing legal conflicts or allowing the civil law and Shari’ah to constantly be put to test via appeals and counter appeals.

d.   In general, strictly following the proper channels of law to arrive at decisive solutions to monumental problems is the only guarantee for peaceful coexistence and abidance to the rule of law by all. Situations where the authorities concerned used their powers to force decisions/opinions on the courts will only lead to chaos and is a clear disregard of the rule of law.

F.        Non-Governmental Organizations (NGO’s): the role of the NGO’s in Muslim countries especially vis-à-vis the Shari’ah needs to be revisited. These organizations should,

a.   Contribute towards peaceful coexistence among all the citizens of the countries in which they operate, irrespective of who signs their bills. But, a situation such as the one which ensued after the Shari’ah re-introduction in Nigeria has really been counter productive. Interestingly enough, in all ‘infamous’ cases popularised by the NGOs, it is the accused who opted to be tried at the Shari’ah court, and even where appeals were made, it is through Islamic Law that a way out was found for the victim. This, despite the fact that there is constitutional provision for the appeal to be made elsewhere. Thus, this proves the fact that, though the specific ruling in a particular case may not be acceptable, the Shariah Law is preferred by even these persons and they are willing to look for redress in it.

b.   Thus, accusing Shari’ah and Islamic Law and libelling them will neither help in improving matters nor be in the best interest of all. Rather than criticizing the Shari’ah implementation and accusing it of perceived dangers, it will be insightful if the NGO’s especially those calling for ‘women and ‘minors’ ’ freedom to view things differently. The cases cited in this paper, and many others like them, show that there is no (intended) bias against any part of the society, and that, as is normally the case, as many (or even more) men have been convicted and/or executed/punished as/than women, under the Shari’ah. So why the accusations and continuous agitations against Shari’ah? Of course this is not to say that where the Shariah code is genuinely seen to have deficiencies should not be addressed. But, as long as the code has not been amended, it is pointless, nay contemptuous, to accused any court of law of been ‘gender biased’ etc simply for abiding by the provisions of the codes.

c.   Also, words of wisdom, such as those of late Prof Bola Ige, Attorney General of the Federal Republic of Nigeria should be kept in mind by all such NGO’s, so as not to create smoke without fire. He said:

“The second thing I would like to say in regard to Sharia is that, no known Muslim in Nigeria has complained that the application of Sharia in those states, which say that they have adopted Sharia violated his rights, not one. Now, not one Muslim has also complained. As a matter of fact, both Jangebe and Bariya, the pregnant young lady, over whom I have received almost 10,000 protests from within and without Nigeria, have not complained. The lady has not complained that her rights have being violated. Now, how then would the Attorney-General of Nigeria say he has a locus standi, which is the most important thing in the courts. As the Yorubas would say, how can you know Osho more than Osho's mother? No Muslim, no Christian has complained that his rights have being violated. "Now it is true that civil rights organisations and many of us may have our own views about the implementation of what I call political Sharia, but until someone comes forward and says my rights have been violated, I am sorry there is nothing I can do…”[37]

G.       The International Community: Yes indeed the world is a small village now and the collective interest of all should be kept in sight. But,

a.   There should be respect for the sovereignty of each country and people and their rights to deal with and handle their problems in the most appropriate manner possible, within the framework of their political systems.

b.   It is rather unfortunate, for example, that the EU should pre-empt the due process of law, and send a letter to the President of the Federal Republic of Nigeria urging him to intervene in a case that was in front of a duly constituted court of Law, pre-empting its judgement.

c.   The statement of John Corrie MEP (EU Co-President) condemning “… in particular the northern Nigerian Islamic court's selective justice that sentenced Ms Safiya Husseini Tungar-Tudu to death by stoning after finding her guilty of adultery, while the male adulterer was acquitted…"[38] This particular stand of the EU, and the West in general, is in clear disregard to the feelings of the 1.2 billion Muslims who believe and cherish these laws as divine injunctions which must be obeyed by all. What did Mr Corrie and the EU want? Should the court acquit her “after finding her guilty of adultery” – probably because she is a lady - to appease the West? Or should the accused partner (note, Mr Corrie called him adulterer above, despite being judged otherwise!) be sentenced even though there was lack of evidence as clearly stated in the case?

d.   That, though it is true that “International Standards of Human Rights” should be respected, the EU (and the West in general) should remember that these standards are mostly derived from Anglo-American societies and cultures, irrespective of the rest of the international communities and their values. Hence, certain aspects of Shari’ah law, such as caning an alcoholic or stoning an adulterer may easily be termed as barbaric, but, the same “International Standards of Human Rights” will look at sodomy, or more recently, same-sex marriage, as an expression of individual rights!

e.   More specifically, what  practical steps were taken vis-à-vis the ever increasing vicious cycle of prisoner abuse, gang raping of male and female detainees, illegal detentions without charges and killings of Muslim youth at the slightest provocation, happening today under the auspices of many Western and Asian governments? Are these not inhuman, barbaric and cruel enough to touch the hearts of Europeans as “The tragic case of Ms Tungar-Tudu and her baby has touched the hearts of people across Europe…. To be stoned to death is an inhuman, barbaric and cruel punishment”[39] (in the words of Mr Corrie)?

f.     That death penalty and many of the punishments prescribed by the Shariah may be banned by modern governments, but the achievements of the Shari’ah implementing states in saving innocent lives and minimizing cases of homicide and murder, adultery and illicit sexual affairs are never looked at in the light of the West and its ever complex, crime-ridden, fear over-taken, sexually perverted, individualistic and selfish societies. These double standards must be changed if any meaningful progress and real harmony are to be achieved between the two systems of law.

Conclusion

 the lackadaisical attitude of Muslim ummmah of today which has led us to the negligence of our responsibilities of calling people to the path of Allah has enjoined upon us in the holy Quran. Unfortunately rather than focusing on the problems facing this ummah, we are wasting our resources on the unnecessary issues as showcased recently by the declaration of Isese day by the state Government of Osun in which people have been criticizing the leadership of Ogbeni Rauf Adesoji Aregbeola being idol worshiper but the truth is that the governor being a Muslim doesn't mean that the current government is Islamic. Hence, it is responsibility of government to provide and allow all and sundry in the state to practice their religion according to the constitution of the federal public of Nigeria. We therefore call on all Muslims in the state that it is time for us to request for our right as citizen of this state which are;

1) Allowing all female students to use hijab in both government and private schools in the states.
2) Establishment of Islamic court of law (i.e Shariah Law).
3) Recognition of all Arabic schools as part of government establishment by paying their workers salaries and provision of employment opportunities for our brothers and sister graduating from these schools.
4) Also, creation of employment opportunities for our sisters in hijab since there is no provision for them in OYES.
5) Declaration of Friday as public holiday since Sunday is only meant for Christians.
Finally, Allah says in the holy Qur'an that …verily never will Allah change the condition of a people until They change it themselves (with their own souls). (Q13 Vs 11)

Both Nigeria and Malaysia are ideal for a critical analysis of ways to bring about harmony between the two systems of law. The former having recent experience in the use of Shari’ah with unlimited jurisdiction, and the latter being a country whose official religion is Islam, but has a combination of both Shari’ah and Civil law in operation. This paper critically analysed Shari’ah implementation in Nigeria, because Shari’ah has been part of the life of Nigerian Muslims and its restoration was informed by the popular wish of the people expressed through democracy.

We have presented some of the legal challenges that are facing the implementation of Shariah, including its Constitutionality, restrictions imposed on it, repugnancy test, and reluctance to allow Muslims to practice Shariah even in the limited sense. Practical means of harmonizing the two systems of law suggest that there is the need for collective efforts at different levels and some suggestions on that were presented. 

In conclusion, it is our belief that, if all Muslims will try to abide by Shari’ah in its comprehensive form, that will go a long way in displaying the beauty of Islam and reputing many misconceptions about its teachings.

Our final declaration is praise is due to Allah the Lord of the worlds, at the beginning and in the end, may His peace and blessings be with the noble prophet, his family and companions.

References

1.       Charles Hauss, Comparative Politics - Domestic Responses to Global Challenges, 
http://www.wadsworth.com/politics/hausss00/nigeria.htm

2.     Usman Bugaje, The Impact of Usman Dan Fodio’s Jihad beyond the Sokoto Caliphate:  http://www.webstar.co.uk/~ubugaje/beyond.html

3.       Professor Auwalu H. Yadudu, Sharia Implementation in a Democratic Nigeria: Between Deference to Popular Will and Libertarian Challenges, “Islam and Political Participation: ideals, actors and process”, 3rd Annual Conference  of the Center for the Study of Islam and Democracy, Arlington, Virginia, USA, April 6 - 7, 2002

4.       Dr Muhammed Tabiu, Sharia, Federalism and Nigerian Constitution, International Conference on Sharia, Nigerian Muslim Forum, London, United Kingdom, 14th April, 2001

5.       Dr David Asonye Ihenacho, Professor Auwalu H. Yadudu’s Sharia Apology: A Response, New York, USA.

6.       Jibrin Ibrahim Human Rights Law Group, Democracy and Minority Rights in Nigeria: Religion, Shari’a and the 1999 Constitution,Conference on “Globalisation, State Capacity and Self-Determination in Muslim Contexts”, Center for Global, International and Regional Studies, University of California-Santa Cruz, Santa Cruz, 7th to 10th March 2002

7.     Mobolaji Aluko, “The Unfizzled Sharia Vector in the Nigerian State”

8.     Kano State Shari’ah Commission Position Paper On The Jos International Conference On Comparative Perspectives On The Shari’ah Implementation In Nigeria. www.dawodu.com/aluko5.htm

9.       Syed Mohd Azmi bin Syed, “Appeals in Civil Cases: A Comparative Study of Islamic law and Malaysian Law”, Masters Thesis submitted to AIKOL, IIUM, Kuala Lumpur, Malaysia, 1999.

10.  Justice in Multi-Religious Society: State of Osun as a Case Study: http://facebook.com/jamaatutaawunilmuslimeen

11.  Practical Approach to Harmonisation of Shari'ah and Civil Law: A Critical Analysis of the Nigerian Experience By Basheer Adamu Aliyu Birnin Kudu

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[1] CIA – World fact book Nigeria www.cia/cia/publications/factbook/geos/ni.html

[2] http://odili.net/profile.html, http://mapquest.com and www.Dawodu.com

[3] http://odili.net/profile.html

[4] Comparative Politics by Hauss, chapter on Nigeria:  http://www.wadsworth.com/politics/hausss00/nigeria.htm

[5] http://www.bbc.co.uk/worldservice/africa/features/storyofafrica/4chapter5.shtml

[6] Comparative Politics by Hauss, chapter on Nigeria:  http://www.wadsworth.com/politics/hausss00/nigeria.htm

[7] Usmam Bugaje, the Impact of Usman Dan Fodio’s Jihad beyond the Sokoto Caliphate:  http://www.webstar.co.uk/~ubugaje/beyond.html

[8] Comparative Politics by Hauss, chapter on Nigeria:  http://www.wadsworth.com/politics/hausss00/nigeria.htm

[9] Professor Auwalu H. Yadudu, Sharia Implementation in a Democratic Nigeria: Between Deference to Popular Will and Libertarian Challenges

[10] Clamour for Sharia Law in Yorubaland Deepens [South West Nigeria]

http://allafrica.com/stories/200205200626.html

[11] Clamour for Sharia Law in Yorubaland Deepens [South West Nigeria]

http://allafrica.com/stories/200205200626.html

[12] Clamour for Sharia Law in Yorubaland Deepens [South West Nigeria]

http://allafrica.com/stories/200205200626.html

[13] For detailed learned discussions on the Constitutionality or otherwise, the reader should refer to the full texts of papers written by Drs David Ihenacho, Muhammed Tabiu and Auwalu Yadudu, among others.

[14] Dr Muhammad Tabiu,  Sharia, Federalism and Nigerian Constitution

[15] Human Rights Law Group - Democracy and Minority Rights in Nigeria: Religion, Shari’a and the 1999 Constitution.

[16] Professor Auwalu H. Yadudu, Sharia Implementation in a Democratic Nigeria: Between Deference to Popular Will and Libertarian Challenges

[17] Dr Muhammad Tabiu, Sharia, Federalism and Nigerian Constitution

[18] See Mobolaji Aluko’s “The Unfizzled Sharia Vector in the Nigerian State”

[19] http://www.rufarm.kabissa.org/pressrelease/howitbegan.htm

[20] http://news.bbc.co.uk/hi/english/world/africa/newsid_1131000/1131189.stm

[21] http://news.bbc.co.uk/hi/english/world/africa/newsid_1131000/1131096.stm

[22] http://news.bbc.co.uk/hi/english/world/africa/newsid_1493000/1493182.stm

[23] http://news.bbc.co.uk/hi/english/world/africa/newsid_639000/639454.stm

[24] http://www.hrw.org/reports/2004/nigeria0904/5.htm

[25] http://news.bbc.co.uk/hi/english/world/africa/newsid_1778000/1778614.stm

[26] http://news.bbc.co.uk/2/hi/africa/3164303.stm

[27] http://allafrica.com/stories/200111180041.html

[28] http://news.bbc.co.uk/1/hi/world/africa/1544580.stm

[29] http://www.theage.com.au/breaking/2002/06/04/FFXE88M8Z1D.html

[30] http://www.amnesty.org.nz/web/chogm.nsf/0/dbeeff305f6203b0cc256deb0008643f?OpenDocument

[31] http://www.amnesty.org.nz/web/chogm.nsf/0/dbeeff305f6203b0cc256deb0008643f?OpenDocument

[32] http://www.vanguardngr.com/news/articles/2001/October/25102001/n1251001.htm

[33] Thisday Newspaper, Sunday, March 04, 2001

[34] Kano State Shar’ah Commission Position Paper On The Jos International Conference On Comparative Perspectives On The Shari’ah Implementation In Nigeria

[35] ibid.

[36] See: Syed Mohd Azmi bin Syed, “Appeals in Civil Cases: A Comparative Study of Islamic law and Malaysia Law”, Masters Thesis submitted to AIKOL, IIUM, 1999.

[37] “Sharia is constitutional, says Ige” ThisDay Newspaper, March 04, 2001.

[38] EU Parliamentarians Appeal to Obasanjo on Sharia Execution, http://www.khilafah.com/home/lographics/category.php?DocumentID=3089&TagID=2

[39] ibid

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