justifications, challenges and constitutionality of the penal aspects of shariah law in nigeria

JUSTIFICATIONS, CHALLENGES AND CONSTITUTIONALITY OF THE PENAL ASPECTS OF SHARI AH LAW IN NIGERIA

E Adewale Taiwo

This articles examines the great shari ah controversy in Nigeria. It looks at the challenges and justification for the recent introduction of shari ah law in Nigeria, revealing how religion, politics and society intersect. It also examines the history of shari ah law in Nigeria, the heated debate surrounding its purpose, constitutionally, and human rights elements. The shari ah debate divides Nigerians into two groups: the retentionalists (mostly Muslims) and the abolitionalists (mostly Christians). The retentionalists argue that the authority and ideas of Muslim laws are derived directly from the Quran and should be allowed to stay. The abolitionalists argue that shari ah law should be disregarded as it violates the Nigerian Constitution and International documents on human rights. As the arguments rage on, the concern is how the rights and safety of non-Muslims residing in shari ah-compliant states in Nigeria can be guaranteed. The article finally calls on the government of Nigeria to be more concerned with how shari ah law is implemented in order to protect the interest of non-Muslims in the affected states.

Introduction In contemporary times, there is nowhere that the issue of shari’ah1 law has generated as much controversy as in Nigeria. Apart from the Arabian Peninsula, there has been no other place where Islamic law has been more pervasive than in the northern Nigeria. About 50 per cent of the Nigerian population is Muslim; 40 per cent is Christian, with various indigenous cults and the non-religious making up the remaining 10 per cent.2 This arrangement makes Nigeria a multi-religious state, which accounts for its secular nature as enshrined in section 10 of its 1999 Constitution. In January 2000, Zamfara state (one of the 36 states in Nigeria) enacted the first shari’ah penal code in the country. Other northern

Lecturer and Sub-Dean (Undergraduate), Faculty of Law, University of Ibadan, Nigeria. I

sincerely appreciate the assistance, comments and suggestions of Professor Marie A Failinger

and Linder Berglin on this work. Their comments on the manuscript were extremely helpful. I

also thank them for making available for my use relevant articles which I found greatly useful.

I also thank my friend and colleague in the faculty, Barrister Abiodun J Osuntogun for his

support, encouragement, suggestions and meaningful comments which improved the content,

quality and the title of this article. 1 Shari’ah is an Arabic word meaning ‘the right path’, which refers to traditional Islamic law,

which comes from the Quran, the sacred book of Islam. 2 US Intelligence Agency (nd).

184 GRIFFITH LAW REVIEW (2008) VOL 17 NO 1

states of Nigeria followed suit by introducing shari’ah criminal law in their respective states. They equally established shari’ah courts with jurisdiction on criminal matters. At the time of writing, no less than 12 northern states of Nigeria had introduced shari’ah criminal law in their territories.3

Muslims maintain that the introduction of shari’ah criminal law is justified on religious grounds. They argue that, in order to be a good Muslim, one has to live in an Islamic order, enforced by statute, and that the establishment of such an order is warranted under section 38 of the Constitution of the Federal Republic of Nigeria 1999, which guarantees freedom of religion. In addition, many welcome the implementation of Islamic criminal law on practical grounds. They see it as a panacea for a wide range of social evils, such as soaring crime rates and corruption. Islamic criminal law, with its harsh punishments for homicide, grievous hurt, theft, robbery and immoral behaviour, is regarded as an adequate answer.4

In line with the above, a Nigerian scholar, Professor Auwalu Yadudu, contends that shari’ah operates within the limits of the Constitution since Nigeria’s Constitution provides for freedom to profess a religion of one’s choice.5

Conversely, others (mostly Christians) argue that the introduction of shari’ah criminal law in Nigeria is unconstitutional in view of sections 10 and 38 of the same Constitution, which prohibit state religion and guarantee freedom of religion. They argue further that this violates many of the international instruments to which Nigeria is a signatory. As arguments continue on this fundamental constitutional matter, the federal government of Nigeria — perhaps for political reasons — maintains a silent position on the issue. The federal government refused to take a constitutional measure of seeking court interpretation of the affected sections of the constitution contrary to the expectation of many. However, following serious pressure from human rights organisations and international bodies, the then federal Minister of Justice and Attorney-General of the Federation sent letters to the northern states’ governors in February 2002, pointing out that the shari’ah penal codes were on many scores unconstitutional.6

Following this contention, Ruud Peters, an Islamic scholar, observed that the adoption of Draconian punishments like stoning or crucifixion for Quranic offences of fornication, theft, robbery and alcohol consumption violate several constitutional principles — for example, section 34(1) of the Nigerian Constitution.7 This section provides that every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or inhuman or degrading treatment. Thus human rights organisations based in Western countries and Nigeria have campaigned against the shari’ah

3 See Peters (2003), p 13. 4 See n 3, p 14. 5 Yadudu (2001). 6 See n 3, p 31. 7 See n 3.

TAIWO: THE PENAL ASPECTS OF SHARI AH LAW IN NIGERIA 185

penal code, attacking it for its cruel, inhumane and degrading punishments such as stoning, flogging or amputation.8

Since these new laws have not yet been challenged judicially, the arguments continue and the issue remains unsettled.

The Historical Background on Shari ah in Nigeria Shari’ah is not new in Nigeria. Its existence and practice in northern Nigeria predates the present controversy as well as the current expansion into the criminal justice system of 12 northern states. The religion of Islam had been firmly rooted in many societies in sub-Saharan Africa since the fifteenth century. Islam entered Hausa land in the early fourteenth century. About 40 Wangarawa traders brought Islam with them, and during the reign of Muhammad Rumfa between 1463 and 1499, Islam was firmly rooted in the city of Kano. When Shaikh Ali-Maghili, a famous scholar-jurist, visited Kano, he found that some Islamic learning existed, though Islamic institutions had not yet developed fully.9 So, under the government of Rumfa, Ali-Maghili helped to establish shari’ah courts, which functioned in the palace of Rumfa.

Shari’ah received a great boost after the establishment of the Sokoto Caliphate, owing to the success of the 1804 Uthman Dan-Fodio jihad. The jihad was introduced as a revivalist movement within Islam to counter the syncretic practices of previous Islamic rulers. The revival of Islamic faith, entrenched in the ideas of Uthman Dan Fodio in the early nineteenth century, strengthened shari’ah among Muslims. Earlier, in 1802, two years before Fodio moved to Gudu and prior to his eventual leadership of the Islamic revolution (popularly known as the jihad), he emphasised the importance of shari’ah to Islamic religion. In his works, Tamiyiz al-Muslimin and Siraj al- Ikhwan, Fodio argued that a true Muslim is one who not only declares his belief in Allah (God) and Muhammed as his messenger but also practises Islam as outlined in the shari’ah.10

The centralised administration under the Sokoto caliphate, the largest in West Africa, facilitated the spread of Islam and the application of shari’ah laws in the many northern Nigerian territories.

Guided by Fodio’s vision, shari’ah has regulated all aspects of Muslims’ lives, both civil and criminal, and it was applied to all the conquered territories, imposing a collective conscience based on Islamic religion. On this account, the organised and centralised political leadership of the Caliphate controlled the right to punish, a right necessary to legitimise its political power. But this control was challenged by the encroachment and eventual establishment of British political authority in the early 1900s.

By the late nineteenth century, the European scramble for Africa was in top gear. Meanwhile, the Sokoto Caliphate resisted the British because it wanted to protect the identity and culture of Muslims from the corrupting influence of

8 See Ogbe (2003). 9 Biobaku and Al-Hajj (1966). 10 Ibraheem Sulaiman (1987), p 2.


outsiders — in this case, the British. Notwithstanding that resistance, by 1900 the better-equipped and trained British army had conquered the Caliphate and brought it under British rule. Although the British recognised the existence and importance of indigenous laws, including shari’ah, it restricted them to civil matters. The British understood that the control and administration of the criminal justice system defines a legitimate state. Therefore, under the ‘indirect rule’ system of administration, the British promulgated the Native Courts Proclamation of 1900, which provided that shari’ah courts should:

administer the native law and custom prevailing in the area of Jurisdiction and might award any type of punishment recognized hereby except mutilation, torture, or any other which was repugnant to natural justice and humanity.11

This, of course, was the cornerstone of the British ‘repugnancy test’ system, whereby the natives were permitted to punish violations as long as the punishment passed the ‘repugnancy test’. Under this system, the natives were allowed to prescribe punishment for civil offences that attracted less severe punishment while the British maintained monopoly over violence as well as political power by controlling the criminal justice system, which attracted heavy punishment. Even though it seemed that the British recognised the native laws prevailing in the Muslim area, Muslims found the partial restraint on their system of justice unsatisfactory. The reason was that:

Muslim had come to associate shari’ah with the sacredness of their religion … (and) could not contemplate the idea of any form of external interference in the administration of their divine system of justice, least of all, interference by people (British) considered to be non-believers.12

Basically, the first domain of British interference was with the Shari’ah’s hadd penalties. The British abolished death by hanging or stoning for the offences of homicide and adultery, and also abolished beheading, crucifixion, stoning or amputation of a hand as punishment for theft. These changes reveal the fundamental difference between shari’ah law and British law. They also suggest that the previously existing shari’ah criminal penalties were inhumane, and that criminal law henceforth would be a public matter to be implemented by the state rather than by private or social action. So stonings, which were hitherto a communal act designed to reaffirm collective conscience, were forbidden, while those found guilty of murder were punished regardless of whether the entire community participated. Indeed, in pre-modern Nigeria, crimes that attracted hadd penalties were not just crimes against the state or individuals, but against the Earth Deity (land). The alleged harsh punishments were not intended merely to punish the offender but to cleanse the land and appease the gods, and also to deter future occurrence.

11 Keay and Richardson (1966), p 22. 12 Kukah (2003), p 21.


The period between 1950 and 1959 was an intense era marked by political agitation and struggle for independence by Nigerians. In 1954, Nigeria became a federation of four regions. Some further changes in the implementation of shari’ah occurred in the Native Ordinance of 1956, known as the Native Courts Law of Northern Nigeria, No 6 of 1956. This law provided for appeals from the shari’ah courts to courts of appeal that reflected a British perception of justice. The Ordinance provoked disagreement with the traditional emirs who objected to this limitation on shari’ah law. Furthermore, when the issue of independence of Nigeria was argued, a motion was made (and tabled) before the 1958 London Constitutional Conference, calling for the discontinuation of all criminal law systems other than the codified criminal laws in the Nigerian courts. The Criminal Procedure Code, on which delegates at the conference agreed, and which came into effect on 1 October 1960, provided that shari’ah would not have jurisdiction over criminal cases.13 At Nigeria’s independence in 1960, additional changes were made in the implementation of shari’ah. A Penal Code was established for the north of the country, and a comparable Criminal Code for the south. These codes laid out general laws, procedures and penalties for criminal acts, and hence excluded shari’ah courts and laws as well as customary courts, which were to deal only with personal laws for Muslims. At the same time, a general shari’ah Appeals Court was established in Kaduna, the centre of administration for northern Nigeria. This court had a grand khadi, an Islamic judge, a deputy and two other judges learned in Islamic law. However, the court’s jurisdiction was limited to cases governed by Muslim personal law. Muslims felt that the criminal penal code was a colonial imposition intended to suffocate Islamic law.

When the British departed in 1960, they left behind a biased and prejudiced view of shari’ah, a view inherited by non-Muslim Nigerians. The need to negotiate the relationship between shari’ah and the Western legal tradition after independence of course became crucial in preventing a potential national crisis. Muslims presumably conceded their faith for the sake of national unity and accepted the replacement of shari’ah criminal law with a secular code, thus limiting shari’ah jurisdiction to only civil cases.

The political hiatus of the early 1960s, the Nigerian Civil War (1967–70) and military rule (1966–79) seemed to stifle the shari’ah debate, but Muslims’ desire for the restoration of Islamic law continued to gather momentum. That desire was a constant source of tension and division between the predominantly Christian south and the Muslim north.14 The agitation was manifested in the recent introduction of penal aspect of shari’ah law by 12 of the northern states in Nigeria.

Shari ah Law as Customary Law Various learned writers have categorised shari’ah or Islamic law as part of customary law. In line with this, Professor AO Obilade15 notes as follows: 13 Keay and Richardson (1966), pp 71 and 74. 14 See generally Anyanwu (2006), pp 323–28; see also An-Naim (2002), pp 283 and 298. 15 Obilade (1990), p 83.


In Nigeria, customary law may be divided in terms of nature into two classes, namely, ethnic or non-Muslim customary law and Muslim law.

AEW Park16 also pointed out in respect of Islamic Law:

But tribal laws are not the only systems covered by the term ‘Customary Law’, for throughout the federation it includes Islamic Law also. This is made explicit in the North by Section 2 of the Native Courts Law, which provides that “native law and custom includes Muslim law.

Professor Anderson,17 a renowned academic scholar on Islamic law, stated on the concept of the phrase ‘native law and custom’:

the phrase covers equally the application of Islamic law in those areas of the Muslim emirates where it has in fact been accepted as the law of the locality, and of pagan customary law where this still prevails …

However, the introduction of the Islamic Criminal Code in some states of the northern part of Nigeria18 in recent times actually necessitated this inquiry into the true place of Islamic law in the legal hierarchy in Nigeria.

The Secular Nature of Nigeria and Shari ah Debates Nigeria is a state with multi-religions such as Islam, Christianity, traditional religion and other various religious sects. Thus the Constitution19 forbids the Federation or any component part (state) from adopting any religion as the state religion.

Secularism is the belief that religion and ecclesiastical affairs should not enter into the functions of the state. A secular state is one that does not base its legislation or direct its law with regard to morality, education and economics of the state to any particular religion. It does not allow any partisan religion to influence it socio-economic and legal attitude to its citizenry.20 16 Park (1963), p 130. The learned writer also said: ‘in many parts of Northern Nigeria, Islamic

Law is the predominant law of the area, and consequently comes within the statutory term,

“the native law and custom”…’ Some other authors, like Hon Justice Niki Tobi, however, hold

a contrary view. His Lordship argued: ‘The place of Islamic law in the development of

Nigerian Legal System cannot be overemphasized. Islamic law has a separate and distinct

identity from Customary Law. To equate the two or give the impression that Islamic law is

either an off-shoot of or appendage to customary law, is to say the least, an ignorant

assumption or conclusion.’ See Tobi (1996), p 151; see also Alh. Ila Alkamawa v Alh. Hassan

Bello & Anor (1998) 6 SCNJ 127 at 136. 17 See Anderson (1970), p 172. 18 Zamfara state was the first state to promulgate/enact shari’ah law in 1999. Other states are

Niger, Kano, Katsina and Sokoto. In Kaduna and Bauchi states, the attempt to introduce an

Islamic criminal code was greeted with chaos, with many lives and properties destroyed. 19 See section 10 of the Constitution of the Federal Republic of Nigeria 1999: ‘The Government

of the Federation or of a state shall not adopt any religion as state Religion.’ 20 Eso (1990), p 297.


As the Honourable Justice Kayode Eso pointed out, a secular state:

is a state that recognizes in its law, sometimes in its constitution, in bending towards a particular religion, especially, where there is diversity in the religions and beliefs of its citizens. Such state comes out in a clear prohibitive word that it shall positively not adopt any religion as a state religion that is, permitting equal tolerance to whichever religion its citizenry might practice, notwithstanding the religion of the particular lawmakers of other time. The best example of an avowed secularism is our country Nigeria, which has entrenched in its constitution, secularism.

Prior to the introduction of the Christian and Islamic religions into Nigeria, African traditional religion was the only religion in the areas that now constitute Nigeria. Islam only made its first entry into the Hausa21 land of northern Nigeria in the heydays of the Mali Empire in the fourteenth century AD and swept through the northern and western parts of Nigeria during the Fulani jihad of the nineteenth century.

Similarly, the first attempt to introduce Christianity (Catholicism) to Nigeria was made in 1486 when Dominican Fathers from Portugal came to Benin. They made little progress. Later, Irish missionaries penetrated the Niger Delta and Igbo communities of present-day eastern Nigeria. The protestant churches came with the British colonial masters in the nineteenth century. Bishop Samuel Ajayi Crowther, a Yoruba22 ex-slave and Reverend JC Taylor, son of an Igbo23 ex-slave, were in 1851 and 1880 respectively sent to England to translate the holy Bible into the Yoruba and Igbo languages. Ever since, the new waves of Pentecostal churches have joined the more traditional Christian section in the religious life of the country.

Coming with colonialism, Christianity was perceived by the Muslim-dominated community as the religion of the colonial overlords, and English laws introduced were seen as the Christian laws/canon laws. This fear was not without justification in view of the colonial approach to issues which reflected their Christian background and their negative and uncompromising approach to Islamic law. The colonial masters, with their typical missionary background, did not see anything good in Islam and Islamic law. They overtly showed their hostility in different ways.24

Abubakar Mahmud narrated the ordeal and predicament of Islam and Muslims at the material time thus:

In places where pagans were in the minority, the colonials used to pretend to be protecting their [pagan] interest, by quickly establishing customary courts, enrolling their children into mission schools where they would be taught Christianity. On the other hand, where the Muslims were the minority, their interests would never be protected, nor would

21 Hausa/Fulani is a dominant tribe in the northern part of Nigeria. 22 Yoruba is another major tribe in the western part of Nigeria. 23 Igbo is a tribe dominating eastern Nigeria. 24 Tobi (1996), p 139.


shari’ah courts be set up to administer Islamic law for them. They would not be allowed, nor encouraged to enroll their children in European schools. Their affairs would only be left in the hands of customary courts that customary law would be applied to the issues of their marriage or inheritance irrespective of its adverse effect.25

With these experiences, the Muslims and the promoters of Islam championed the course of a shari’ah system of justice at least in Muslim-dominated northern Nigeria. This was met with resistance by the colonial masters. In the same way, Muslims also resisted the dominance of English law (perceived as canon law) in northern Nigeria. A compromise had to be worked out for the smooth administration of justice and peaceful coexistence.

The compromise was to constitutionally recognise a limited form of Islamic law, with jurisdiction confined only to the areas of personal Islamic law such as marriage, divorce, inheritance and so on. This arrangement excluded all criminal matters.26 Before this compromise position was taken, several commissions and committees were set up to consider the then system of law in force in northern Nigeria and suggest a system devoid of conflict which was generally acceptable.

In the light of this situation, it became necessary for the whole structure of the legal and court systems in the north to be re-examined in order to allay the fears of minorities who were not of Muslim faith and Muslim majority vis-a-vis the Muslim law. This resulted in sending two delegations to other Muslim countries which had experienced similar types of problems. One delegation visited Libya and Pakistan, while the other visited Sudan. The terms of reference given to the delegations included matters such as the liability of a non-Muslim to proceedings in a Muslim court and evidentiary disabilities of a non-Muslim in a Muslim court.

On the home front, a commission was appointed to inquire into the fears of the minorities and the possible means of allaying them. Following the reports of the delegations to Libya, Sudan and Pakistan, the Northern Regional Government appointed a panel of jurists to consider this issue.

About the same time as the delegates that visited Libya, Sudan and Pakistan submitted their reports, the Minorities Commission also submitted its own report. The members specifically made the following recommendations with respect to Muslim law vis-a-vis non-Muslims

(i) that non-Muslims should have the option of being dealt with by non-Muslim courts;

(ii) that a Regional Service of Alkalis be instituted, to be appointed and administered by a judicial commission;

(iii) that ‘prisoners’ friends’ be permitted if administrative officers’ powers of review were reduced or removed, and in general that

25 Mahmud (1993), p 3. 26 Uzoatu (2002), pp 34–35.


steps be taken to reduce delays in hearing appeals and preparation of courts records.27

Based on the recommendations contained in the report of the delegations sent to some selected Muslim countries and the Minorities Commission’s report, the regional government appointed a panel consisting of eminent jurists learned in Islamic and English law, and of experienced administrators of long standing from the Muslim and non-Muslim areas in the region, to recommend to it a judicial system — preferably uniform in nature — that would be acceptable to the major tribes and other ethnic groups, embracing different religions and faiths. The panel consisted of Sayyid Muhammad Abu Rammat, Chief Justice of the Sudan, Mr Justice Muhammed Sheriff, Chairman of the Pakistan Law Commission, Professor JND Anderson of the School of African and Oriental Studies, who is a lawyer and an authority in Islamic law, Shettima Kashim, the Waziri of Bornu, an enlightened and progressive administrator, Mr Peter Achimugu, a Christian from the minority area and also formerly a minister of the northern region government and Mallam Musa, a renowned scholar in Muslim law and also the Chief Alkali of Bida.

The task assigned to the panel was to reorganise the region’s legal system to bring it up to date and also to try, as much as was practicable and acceptable, to fuse the various systems of law operating within the region — in particular the reconciliation and harmonisation of Muslim law with other systems.

The panel proposed that:

1 Northern Nigeria should have a uniform Penal Code Law and a Criminal Procedure Code Law, thus displacing Muslim law and other customary laws. The laws were to be drafted with necessary caution and care so as not to offend the basic tenets of Islamic law and at the same time must be of such quality as to win universal acceptance among the adherents of faiths other than Islam;

2 the personal and family law of each community was to be retained and unaffected;

3 contract cases would be governed by such law as the parties thereto intended to govern the transaction;

4 tort cases would be governed by the law applicable to the parties. It was also proposed that both the Penal Code and the Criminal Procedure

Code Laws, with suitable suggested amendments, be introduced to the High Court and the Magistrates Courts without delay. As for the Native Court, it was recommended that, for an interim period, it be guided by the Codes until its personnel were trained before becoming fully bound by them. The ‘opting out’ clause, as recommended by the Minorities Commission, was also introduced as a temporary measure.

The panel also recommended the establishment in each province of a Provincial Court to be staffed by the public servants of regional government appointed by the Judicial Service Commission. The court would consist of either an Alkali or president and two members as appropriate for the province.

27 Wali (1991), p 236.


Appeals from Grade B Native Courts and below were to be taken by the Provincial Court in both criminal and civil cases. They were also to exercise original criminal and civil jurisdictions in some appropriate cases. The Muslim Court of Appeal was to be abolished and replaced with the Shari’ah Court of Appeal, which would consist of a Grand Khadi, a Deputy Grand Khadi and two judges, and would hear appeals only in cases involving Muslim personal laws. In such cases, the decision of the Shari’ah Court of Appeal would be final.

Implementation of the Recommendations The system recommended by the panel of jurists was brought into effect from 1 October 1960, the day Nigeria became an independent and sovereign nation. This was done by a series of laws. The Native Courts (Amendment Law) 1960 (No. 10 of 1960) established the provincial court system, while the Shari’ah Court of Appeal, Native Courts Appellate Division of the High Court and the Court of Resolution were established at the same time.

In non-Muslim areas, such as Plateau, Benue and Kabba provinces, the Provincial Court consisted of a president and two members, one of whom was to be an Alkali. A Grade A Limited Native Court in major towns with mixed population, to replace the Mixed Court, was also implemented. Other recommendations of the panel which were considered vital to the administration of justice were also implemented — for example, right of automatic appeal to the High Court from decision of a Grade A Court, involving sentence of death.

By the Native Court (Amendment Law) 1963, Ilorin province was added to the provinces whose Provincial Courts were composed of a president and two other permanent members. Also, the control and supervision of Native Courts by residents and district officers were abolished and their place inspectors were appointed and assigned these responsibilities. The reviewing of the decisions of the Native Courts was vested in the appropriate appeal court on a report made by Inspector of Native Courts.

The jurisdiction conferred on the Shari’ah Court of Appeal was spelt out by section 12 of the Shari’ah Court of Appeal Law 1960 and section 52(2) and (5) of the Constitution of Northern Nigerian of 1960, covering Muslim law concerning marriage, divorce, guardianship of children, waqaf, gifts, wills, succession (or inheritance) and maintenance of infants or persons of unsound mind. In addition to these, section 12(e) of the Shari’ah Court of Appeal Law 1960 gave the court jurisdiction in matters other than Muslim personal law when both parties in the court of first instance stated in writing that they wanted the case decided according to Muslim law.28

Penal Aspects of Shari ah Law in Nigeria In the states where shari’ah law has successfully been introduced, the law is made applicable throughout the state and made applicable to people of other religions, whether Christians or traditional worshippers. They are all tri-able before shari’ah court which applies shari’ah/Islamic law, a religious law.

28 See n.27, pp 237–39.


It has been argued forcefully that the above arrangement violates the fundamental human rights and freedom of thought, conscience and religion of an individual29 who may not be a Muslim.

One other important constitutional issue about shari’ah law is that no Muslim is allowed the right to change his or her religion. This is an offence called Ziner30 under the Islamic law, and it is punishable with death by stoning. This is a clear violation of section 38(1) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, which gives an individual the right to change his or her religion or religious belief.

The shari’ah law also introduced into the Nigerian criminal justice system strange punishments such as amputation of arms and or legs for the offence of stealing, stoning to death for the offence of adultery and caning of an adult for consumption of alcohol. In line with this shari’ah law, the Upper Shari’ah Court in Gwadabawa, Sokoto State of Nigeria on 10 October 2001 sentenced a 30-year-old woman, Safiya Hussein Tunartudu, to death by stoning for adultery. Also, the Upper Shari’ah Court in Funtua, Katsina state of Nigeria in August 2002 sentenced Aminat Lawal, another 30-year-old woman, to death by stoning for having a child out of wedlock.31

It can be canvassed that the death sentence for an offence of adultery violates the rights to life as enshrined in section 33 of the Constitution. Stoning, amputation of arms or limb or caning also violate the right of a person not to be subjected to torture, inhuman or degrading treatment as provided for in section 34 of the Constitution of the Federal Republic of Nigeria.32

Sections 33 and 34of the Constitution provide:

33(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

34(1) Every individual is entitled to respect for the dignity of his person, and accordingly —

29 Section 38(1) of the Nigerian Constitution, 1999 provides: ‘Every person shall be entitled to

freedom of thought, conscience and religion, including freedom to change his religion or belief

and freedom … to manifest and propagate his religion or belief in worship, teaching, practice

and observance.’ 30 See Section 45 of the Zamfara State of Nigeria Penal Law (No 10 of 2000). 31 The two women were, however, let off the hook on appeal championed by the human rights

organisations in the country. These are just a few examples, and many unlucky individuals

without means of appeal have faced amputation for stealing in those states. See, however,

Adekoya (2002), pp 350–51; Adegbite (2002), p 378. 32 The Constitution proclaims its supremacy in section 1(1), and in section 1(3) it provides that if

any law is inconsistent with the Constitution, the Constitution shall prevail and that other law

shall to the extent of its inconsistency be void. See Momoh v Senate of the National Assembly

& Ors (1981) 1 NCLR 21; Governor of Kaduna State & Anor v The President of the Federal

Republic of Nigeria & Ors (1981) 2 NCLR 786; Attorney-General of Bendel State v Attorney-

General of the Federation & Ors (1982) 3 NCLR 1.


(a) no person shall be subjected to torture or to inhuman or degrading treatment.

Section 10 of the Constitution and Shari ah Issues Nigeria is a secular nation, as a multi-religious country.33 As a secular state, in the matter of religion, the country and its component parts are expected to be neutral. The country and its component states are to protect all religions but interfere with none. It should neither be anti-God, nor pro-God. It should also treat equally all the religions within the state. A secular nation eliminates God from matters of state and ensures that no one is discriminated against on the ground of religion. A secular state is not concerned with the relationship of man with God: this is left to the individual conscience.34 There can be no compulsion or state interference in the practice of any form of religion.35 In a secular state, no law can be passed which aids one religion or prefers one religion to the other.36

The intention of the Constitution, through section 10, is to grant sanctuary and protection to all Nigerians, Christians, Muslims, atheists and people of other religious belief from discrimination, religious intolerance and any other barrier to freedom of thought, conscience and religion.37 Section 10 of the Nigerian Constitution 1999 provides that ‘the Government of the Federation or of a state shall not adopt any religion as state religion’.

In Re Chikweche,38 the applicant, a Rastafarian,39 was approved by the Law Society for registration as a legal practitioner but the High Court declined to permit him to take the oath of loyalty and office. In an appeal to the Supreme Court, the applicant contended that the High Court’s refusal infringed his constitutional rights to freedom of conscience and religion, expression and protection from discriminatory treatment.

It was held, inter alia, that the applicant’s right to freedom of religion had been contravened and he must be allowed to take the requisite oath.

Similarly, the Nigerian case of Adamu v Attorney General, Borno State40 is very relevant here. The appellants, as the plaintiffs, claimed for declaration that the practice in Borno state whereby they paid for their children’s Christian religious knowledge while the Gwoza Local Government council paid for Islamic teachers and while the appellants’ children were compelled to learn Arabic and Islamic religion was unconstitutional.

33 See section 10 of the CFRN 1999. 34 See Downes V. Bidwell (1901) 182 US 244; United States v Balland (1944) 322 US 78. 35 See Cantwall v Connecticut (1931) 310 US 295. 36 See Everson v Board of Education (1947) 330 US 1. 37 See Agbai v Okagbue (1991) 7 NWLR 204. 38 Re Chikweche (1995) (4) BCLR 533 (25). 39 Rastafarian is a member of a religious group that started in Jamaica. The name is taken from

Ras Tafari, the title of a former Ethopian King whom the group reveres. 40 Adamu v Attorney General, Borno State (1996) 8 NWLR [pt 465] at 203.


The High Court held that the matter came under the directive principle of state policy under Chapter 2 of the 1979 Constitution and was therefore not justiciable. The Court of Appeal up-turned the decision and held that by virtue of section 6(6)(c) of the Constitution, Chapter 2 of the Constitution is not justiciable. However, where the provisions of the Constitution define a certain cause of action or enshrine certain rights, those provisions must be applied without inhibition from Chapter 2. Therefore, where a local authority, in the implementation of the fundamental objectives of state policy, adopts a system which infringes on citizens’ fundamental rights to freedom of religion or against discrimination, that breach of citizens’ rights is justiciable.

Thus Nigeria or any component part should not therefore promote one religion at the expense of others, if is to maintain a true secularism.41

It is therefore the candid view of this writer that introduction of shari’ah law as it is practised in some northern states in Nigeria is an attempt to take the country back to the pre-1960 experience of conflict, which the then government remedied by replacing the then existing Muslim criminal law and other Customary Penal Law with Penal Code Law and Criminal Procedure Code Law respectively.42 The only area left untouched concerned civil matters relating to Islamic personal law such as marriage, divorce, guardianship of children, waqaf, gifts, wills, succession, and maintenance of infants and persons of unsound mind.43

It is with respect to the foregoing that we hold the view that religious laws, be it Muslim/shari’ah laws or canon laws/biblical laws are no longer fit for this modern time. Religious laws should be separated from English laws. The belief that English law is the same as canon or Christian law is out of place because several biblical laws also could no longer stand in the light of English law.44

41 See generally Pandey (1995), pp 178–85. 42 These laws were drafted with necessary caution and care as not to offend the basic tenets of

Islamic law and at the same time of such quality as to win universal acceptance among the

adherents of other faiths other than Islam. 43 See Wali (1991), p 239. 44 Biblical law of such categories includes the followings among others: Leviticus 20:10 — ‘If a

man commits adultery with another man’s wife … both the adulterer and the adulteress must

be put to death.’ See also Leviticus 20:11–12; Deuteronomy 22:22–23. Being gay, lesbian and

homosexual is also punishable with death. Leviticus 20:13 says: ‘If a man lies with a man as

one lies with a woman, both of them have done what is detestable. They must be put to death

…’ Rudeness, curse and disrespect to parents are also punishable with death: Leviticus 20:9 —

‘If anyone curses his father or mother, he must be put to death’ Blasphemy is also punishable

with death: Leviticus 24:16 — ‘anyone who blasphemes the name of the Lord must be put to

death. The entire assembly must stone him … he must be put to death.’ Rape is also

punishable with death: Deuteronomy 22:25 says: ‘But if … a man happens to meet a girl

pledged to be married and rapes her, … the man who has done this shall die.’ Biblical Law

also recognises Haddi Lashi. Deuteronomy 25: 1–3 provides for this: ‘When men have a

dispute, they are to take it to court and the judges will decide the case, acquitting the innocent

and condemning the guilty If the guilty man deserves to be beaten, the judge shall make him

lie down and have him flogged in his presence with the number of lashes his crime deserves.

But he must not give him more than forty lashes …’ In the same vein, amputation and cutting


They are nowadays viewed by English laws as being contrary to natural justice, equity and fairness. English laws evolved with time as a generally acceptable standard of law regulating human conduct, and therefore should not be seen not as religious laws but state laws. We should see beyond religions and accept standard regulations governing human conduct without bias with any form of religion.

The Constitution recognises shari’ah law and establishes Shari’ah Courts of Appeal at both federal and state levels.45 In its wisdom, the Constitution limits the jurisdiction of these courts to civil proceedings involving questions of Islamic personal law.46

The view that section 277 of the 1999 Nigerian Constitution does not extend the jurisdiction of the Shari’ah Court of Appeal from the sphere of Islamic personal law into the realms of criminal law is supported by the cases of Alkali v Alkali47 and Maida v Modu.48 In these cases, the Court of Appeal held that under the corresponding provision of the 1979 Constitution (ie section 242), the jurisdiction of Shari’ah Courts in the Yobe and Borno states of Nigeria did not extend to disputes relating to land.

Interest of the state and its peaceful existence in view of the volatile nature of religion should be paramount.49 Its leaders should not be seen as championing the cause of one religion. The governor or president’s religion should be in abeyance, or at least be a personal issue while he holds political office.

We further contend that secular nature of Nigeria as a nation is in line with requirements of various international documents and conventions to which Nigeria is a party.50

Without begging the issue, the provisions of the shari’ah penal laws cannot stand in view of the constitutional provisions. Most of the sources of shari’ah law, apart from the Holy Quran, are largely unwritten. The Constitution clearly forbids conviction and punishment of a person for criminal offence unless that

of arms is also recognized as a form of punishment under the canon law: Deuteronomy 25:11–

12 provided for this: ‘If two men are fighting and the wife of one of them comes to rescue her

husband from his assailant, and she reaches out and seizes him by his private parts, you shall

cut off her hand. Show her no pity.’ The above passages were quoted from the New

International Version (NIV) Bible. 45 See sections 260 and 275 of the CFRN 1999. 46 See Sections 262 & 277 of the CFRN 1999. 47 Alkali v Alkali [2002] 1 NWLR (pt 748) 453. 48 Maida v Modu [2000] 4 NWLR (pt 651) 99. 49 It is interesting to point out that the head of Nigerian government when the Constitution was

promulgated into law was General Abdul-Salam Abubakar, a Muslim. 50 See Article 18 of the UDHR, 1948; Articles 2 & 18 of the International Covenant on Civil and

Political Rights. Of particular reference is Article 8 of the African Charter on Human and

Peoples’ Rights which provides: ‘Freedom of Conscience, the profession and free practice of

religion shall be guaranteed. No one may, subject to law and order, be submitted to measures

restricting the exercise of these freedoms.’


offence is defined and penalty thereof is prescribed in a written law.51 The locus classicus case on this point of law is Taiwo Aoko v Fagbemi52 where a conviction by a customary court for the unwritten customary offence of adultery was quashed on appeal as being unconstitutional.

Another area of conflict between shari’ah penal law and the Constitution is the procedural doctrine of res judicata, autrefois acquit and autrefois convict. Shari’ah law does not recognise these widely accepted constitutional principles of fair hearing.53 The Nigerian Constitution, however, provides that no one shall be tried for the same offence twice.54

Also, the punishment of haddi lashi (caning) under the shari’ah law, as well as amputation of limbs for stealing, no doubt violates section 34(1) of the Nigerian Constitution55 relating to dignity of human person. These kinds of punishment also violate Article 16 of the 1984 Convention Against Torture and Other Cruel, In-human or Degrading Treatment or Punishment.56 This article 16 mandates each state party to prevent in its territory act of cruel, inhuman or degrading treatment or punishment. Nigeria is a signatory to this Convention.

The Zamfara State Shari’ah Penal Code,57 in its Chapter VII, provides for hudud punishments (the prescribed punishments in the Quran) such as stoning to death for the offences of adultery, rape, sodomy and incest when committed by married persons,58 amputation for theft,59 cross-amputation for multiple thefts and robbery60 in which murder has been committed and property seized.61

There is no doubt that laws such as the above, which impose penalties like amputations and cross-amputations, are in obvious violation of Article 7 of the

51 See Section 36(12) of the CFRN 1999, which provides: ‘Subject as otherwise provided by this

Constitution, a person shall not be convicted of a criminal offence unless that offence is

defined and the penalty therefore is prescribed in a written law …’ 52 Taiwo Aoko v Fagbemi (1961) 1 All NLR 400. See also United States v National Dairy Prod.

Corpn (1963) US 29. 53 See Section 39 of the Zamfara state shari’ah law 2000, which says that where proceedings are

quashed and order of rehearing is made, a plea of res judicata, or autrofois acquit or autrefois

convict shall not be entertained in respect of such proceedings or any subsequent proceedings. 54 The relevant constitutional provision is section 36(9), which provides: ‘No person who shows

that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence

either convicted or acquitted shall again be tried for that offence or for a criminal offence

having the same ingredients as that offence save upon the order of a superior court.’ 55 Section 34(1)(a) of the Constitution provides: ‘Every individual is entitled to respect for the

dignity of his person, and accordingly — (a) no person shall be subjected to torture or inhuman

or degrading treatment.’ 56 See also Article 5 of the Universal Declaration of Human Rights (UDHR) 1948, which

provides: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment.’ 57 Law No. 10 of 2000. 58 Sections 127(b) (adultery), 129(b) (rape), 131(b) (Sodomy) and 133(b) (incest). 59 Section 145. 60 Section 145. 61 Section 153(d).


International Convention on Civil and Political Rights, as well as the UN Convention Against Torture and Other Cruel, Inhuman and Degrading Punishment (UNCAT) to which Nigeria is a signatory.62

Though Nigeria still recognises the death penalty,63 this is imposed only for the most serious crimes, such as murder. However, the punishment of stoning to death for a non-violent and non-serious crime such as adultery as prescribed by shari’ah laws infringes international human rights norms.

In Uzoukwu v Ezeonu,64 inhuman treatment was described by the Nigerian Court of Appeal as any barbarous or cruel act or acting without feeling for suffering of the other. No doubt, amputation and stoning to death are in this category. We therefore agree with Professor Umozuruike65 when he stated: ‘The amputation of limbs as criminal punishment would be entirely contrary to the African Charter and no argument that it is sanctioned by religious or traditional dogma will suffice.’

Under the shari’ah law, adultery attracts the death sentence by stoning, whereas under civil law adultery is a minor offence which does not attract capital punishment under the criminal and penal codes in Nigeria. It is an offence punishable by death for anyone to change his religion under the shari’ah law. But under the Nigerian Constitution,66 any person can change his religion or religious belief in exercise of his freedom of thought, conscience and religion.

Procedurally, there are aspects of shari’ah law inconsistent with a right to a fair hearing. There is a rule of Maliki law67 that prevents a person accused of highway robbery (hiraba) from defending himself. This clearly violates section 36(6)(b) and (c) of the Constitution, which provides that every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence and shall be entitled to defend himself in person or by legal practitioners of his choice.

62 See Abacha v Fawehinmi (2000) 6 NWLR (pt 660) 228, particularly at 289 where the Supreme

Court held that African Charters on Human & People’s Rights (ACHPR) possesses a greater

vigour and strength than any other domestic statute. 63 See Onuoha Kalu v The State (1998) 13 NWLR 531 at 587–88. the Nigerian Supreme Court

held: ‘Under Section 30 (1) of the constitution … the right to life, although fully guaranteed is

nevertheless subject to the execution of a death sentence of a court of law in respect of a

criminal offence of which one has been found guilty in Nigeria …’ See also Catholic

Commission for Justice & Peace in Zimbabwe v Att-Gen of Zimbabwe & Ors (1993) (4) SA

239; Baca Singh v State of Punjab (1983) (2) SCR 583 (India); Gregg v Georgia 428 US. 153

at 176–187 (1976); District Attorney for Suffolk v James Watson & Or (1980) 381 Mass 648;

Jureck v Texas 428 U.S. 1976; Woodson v North Carolina, 428 US 242 (1976) United States;

Noel Riley & Ors v Att-Gen for Jamaica (1983) 1 AC 719; Earl Pratt & Anor v Att-Gen for

Jamaica (1994) 2 AC 1 (Jamaica). Compare The State v Makwanyane & Anor (1995) (6)

BCLR 665 (Constitutional Court of South Africa). 64 Uzoukwu v Ezeonu (1991) 6 NWLR 708 at 764. 65 Umozurike (1997), p 31. 66 See section 38 of the CFRN 1999 earlier quoted. Also Article 18 of the UDHR 1948 provides,

inter alia: ‘Everyone has the right to freedom of thought, conscience and religion; this right

includes the right to change his religion or belief …’ 67 This is the Islamic system of law being practised in Nigeria.


Thus, in Jalo Guri v Hadeija Native Authority,68 the appellant was tried and convicted for the offence of highway robbery by the native tribunal which adopted the Islamic rule of procedure which prevented the accused from giving evidence in his defence, once the court has the testimony of an adequate number of eye-witnesses. The appellate court rejected this rule of procedure on the ground that it offended against the natural justice clause.

Provocation is a defence under the Criminal Code and Penal Code, and thus capable of reducing the offence of murder to manslaughter, which will attract the maximum of life imprisonment rather than death sentence. Shari’ah law makes no distinction and defence of provocation cannot be taken to reduce murder to manslaughter. Thus, in Gubba v Gwandu Native Authority,69 the appellant was convicted of murder under Islamic law in circumstances where he would only have been guilty of manslaughter under the Criminal Code. On appeal, his conviction for murder was set aside.

Constitutional Supremacy and Inconsistency Clause Section 1(1) and (3) of the Constitution of the Federal Republic of Nigeria 1999 proclaims its supremacy and declares any other law inconsistent with its provision void to the extent of its inconsistency. To the Muslims, however, shari’ah law embodies the will of Allah and as such is eternally valid, immutable and not susceptible to review by any human agency. Lateef Adegbite,70 Secretary General of the Islamic Society in Nigeria, once asserted:

To the Muslims, the constitution … can only be supreme to the extent that it does not infringe any commitment emanating from Allah’s injunctions. Therefore we must only talk of the limited supremacy of the constitution.

As early as 1986, an Islamic scholar, Sulaiman,71 declared as follows:

the only way a Muslim can show his sincerity in his belief … is to struggle wherever he is for the supremacy of the Shari’ah to the point of sacrificing his life.

Thus it is believed that shari’ah is the law of Almighty God and therefore claims superiority over all laws, so Muslims cannot accept the supremacy of the Nigerian constitution. This strong position among the fundamentalist Muslims no doubt is capable of threatening the legality of the Constitution, the existence of Nigeria as a country and may lead to the breakdown of law and order. In its

68 Gubba v Gwandu Native Authority (1959) 4 FSC 44; see also Auzinwa v Kano Native

Authority (1956) 1 FSC 27; Dzakpe v Tiv Native Authority (1958) NRN LR 135. 69 Jalo Guri v Hadeija Native Authority (1947) 12 WACA 141. 70 See Iwobi (2004), pp. 127–28. 71 Sulaiman (1986), pp 52, 53 and 57.


wisdom, however, the preamble to the Zamfara72 state Shari’ah Penal Code declares that the code is subject to the provisions of the Constitution.

Since the shari’ah law in question admits the supremacy of the Constitution, we can therefore submit that the stance of the fundamentalist Muslims on the supremacy of the shari’ah law over Constitution remains an academic exercise.

Conclusion Shari’ah is seen as a remarkable component of decolonisation and nationalism. The recent introduction of the penal aspect of shari’ah law in some northern states in Nigeria is therefore seen as an attempt by Muslims to overcome the bitter legacies of colonialism in the area of law and jurisprudence. The rise in urban crime in Nigeria has also been attributed to the failure of the imported Western legal system at the expense of shari’ah law. These arguments form an essential component of the justifications of shari’ah’s ‘harsh’ punishment. Shari’ah therefore provides a deterrent against the lowering of moral standards and crime.

Thus the current governor of Zamfara state (who incidentally was the deputy governor when shari’ah law was introduced in the state in January 2000) commented: ‘There were vices like prostitution, alcoholism, gambling and things like cheating in trading, stealing and others. They were all prohibited as a result of shari’ah … when put to use, crime in the society reduces to a very low level.’73

Conversely, it has been argued that: ‘Islamic Law, shari’ah, should be opposed for its imposition of theocracy over democracy, it abuse of human rights, its institutionalized discrimination, its denial of human dignity and individual autonomy, it punishment of alternative lifestyle choices, and for the severity of its punishments … The principles of the shari’ah are inimical to moral progress, humanity and civilized values.’74

The dominant issue in the international circle is the perceived brutality and inhumanity involved in shari’ah prescribed punishments. The argument is that the traditional criminal shari’ah penalties (such as stoning for adultery) violate human rights notions of human dignity and the right not to be subjected to torture or to inhuman and degrading treatment.

Our conclusion, however, is that a content analysis of the Nigerian Constitution, United Nations Conventions on Human Rights and the shari’ah penal codes reveals a clear violation of several constitutional principles and minimum world standard on punishment. It is hoped that the federal government of Nigeria will rise up to is responsibility to ensure that shari’ah penal codes are brought into line with Nigeria’s obligations under international human rights treaties to which it is a party.

72 This is the first state to declare shari’ah law in Nigeria; the corresponding codes of most other

states are modelled upon its law. 73 Shinkafia (2007), p A3. 74 Kamgouian et al (2003).


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justifications, challenges and constitutionality of the penal aspects of shariah law in nigeria

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