The introduction of Islamic Penal Codes by a few states in Northern Nigeria is one of the many controversies confronting the present dispensation and threatening our fledgling democracy. Since its inception, Sharia law (as it is widely known) has been criticized as being unconstitutional. The political stage has witnessed varying passionate arguments for and against its continued existence in a multi - cultural and diverse nation like ours. The inability of our leaders to tactfully resolve this issue has led to many violent clashes between adherents of rival religions. Thousands of lives have been lost as a result, and property worth millions of dollars have been destroyed. Against this back drop, many have continued to ask the same questions -- questions whose answers have proved elusive. Is there any legal or constitutional foundation for the enactment of sharia law in Nigeria? Does the House of Assembly of any state in the federation have the legislative competence to make such a law? And if the answer to the latter is no, then what ought to become of a law so passed? It is answers to these questions that will be the focus of this paper. I will argue that the sharia codes in enacted in these northern states are unconstitutional and should, by their very nature, be null and void.
So much has been debated on the constitutional justification for the legal enforcement of the Islamic Legal code in parts of the country. On the one hand, proponents of the Sharia (such as Governor Yerima of Zamfara State, the first state to pass the Sharia Code) claim that the 1999 Constitution of the Federal Republic of Nigeria ( hereinafter simply referred to as "the constitution" ) provides the legal foundation for its introduction. They aver that such inference complies with the wordings of Section 38 (1) & Section 275 (1) regarding the right and freedom to "manifest and propagate one's religious beliefs, teachings, practices, and observances." They further argue that these sections of the constitution grant any state of the federation exclusive discretion in establishing a Sharia Court of Appeal. Most of their critics strongly disagree, albeit with little recourse to the constitution, the grund norm of our legal system.
The failure of past discussants in finding answers to the above questions, arguably the greatest legal challenge facing our generation, is likely to complicate an already difficult discourse. Emotions have often skewed the debates into further complexities, forcing members on either side of the aisles to reject astute legal reasoning and rely solely on subjective, sometimes religiously biased reasoning. For instance, while some proponents of the Sharia refer to the constitution in justifying their position, they are quick to reject the same constitution where the meanings of certain sections in the constitution run contrary to the provisions supporting their earlier claims. Whereas, the sections being overlooked, when read together with the other sections, readily dispel the false inference a layman would necessarily draw with respect to the actual intent of the Constitution.
The reasoning of opponents of the Sharia, just like that of their counterparts, is shallow; they often engage in what legal logicians call inductive reasoning. Their arguments are often based on spurious assertions, often generalised, with no cogent premise supporting their claims. Such arguments are not deductively valid; nevertheless, it is improbable that their conclusions are false. These are arguments based on selective reasoning which may be logical but false.
I beg to keep a safe distance from both sides of the debate. By steering a middle course, I hope to make up for the inherent prejudices and deficiencies of the two contending groups. I will use the Constitution as a guide in my attempt to accomplish this feat.
Because this issue borders on the legitimacy of a law passed by the House of Assembly of a state, it is important that we explore the subject of the supremacy of the Constitution, the document from which all 36 states of the Federation get their powers. Section 1(1) of the Constitution declares the supremacy of the 1999 Federal Constitution, stating, in no equivocal terms, that its supremacy is over and above all persons and authorities. In subsection (3) of the same section, the Constitution emphasizes the effect of any law found to be inconsistent with the provisions of the Constitution, warning that: "...that other law shall, to the extent of the inconsistency, be void." Therefore, the joint effect of Section 1(1) and Section 1(3) is to render void, and of no legal effect, any law that contradicts the spirit and intent of the Constitution. But when, and how can a law like the Sharia code which was passed by a competent legislature, be annulled to keep with the spirit of the constitution?
A law can be ultra vi res (literally, beyond the law) and also a nullity by virtue of either its content or by the procedure of its passage. In the case of the former, it is called substantive ultra vi res while in the latter case, it is procedural ultra vi res. Procedural ultra vi res occurs when a bill being deliberated by the National Assembly or by the House of Assembly of a state is declared null and void by the court because the procedure stipulated for the successful passage of the bill is ignored. The court could also take such actions even after the bill has been passed into law and the court is satisfied that the procedure of its passage is not in accordance with the law. In the same vain, a bill already passed into law may be impugned based on its content, in which case the court, after finding that such a law is in pari materia with relevant provisions of the Constitution or other enabling law, declares it null and void (substantive ultra vi res). It therefore behooves the legislative arm, which under a democratic milieu is responsible for making laws, to discharge that function with the utmost diligence and care without recourse to any ancillary considerations.
On the question of the constitutionality of the Sharia, it should be pointed out that Sharia is given some recognition in the Constitution. Section 6 which defines judicial powers also establishes Sharia Courts of Appeal among other courts of the federation. By this provision, it bares mention that there cannot be a Sharia Court of Appeal ( an appellate court ) without Sharia courts at the state level from which appeals might rise to the former. Following this logic, therefore, it is safe to say that the Constitution, by creating the Sharia Court of Appeal, has, though not explicitly, reserved a discretion for states to create their own Sharia courts since the appellate court lacks original jurisdiction to hear most of the cases to be brought before it, and also because the cases are of such a nature that they cannot be entertained in a regular court (Magistrate or High Courts). Thus on the face, the Constitution upholds the application of the Islamic Legal Code. But to what extent? This we shall explore further.
Section 6(5)(f) & (g)(replicated in sections 260, 275, 262, and 277) state in clear and unambiguous terms the jurisdiction of the Sharia Court of Appeal, which by implication applies to all state Sharia courts.
A close study of Section 277(2) (a) - (e) reveals that Sharia courts shall be competent to decide only questions of Islamic personal law which cases were extensively enumerated in paragraphs (a) through (e) to include, among other things, marriage, guardianship of infants and persons of unsound mind, foundling, wakf, gift, will, and succession. However, Section 277 (2) (e) requires that for that provision to apply, the parties must be Muslims and they must have requested the court at first instance to determine their case in accordance with Islamic personal law. The inference to be drawn from this is that the ultimate question of jurisdiction and application rests with the parties who must first determine whether or not they intend their trial to be by Sharia. Interestingly, nothing in the above section or the accompanying subsections suggests that members of other faiths are mandated to appear before a Sharia court (the only exception is when such a party, in spite of his religious beliefs, voluntarily opts to be tried under Sharia law), neither is a Muslim so obligated if he or she indicated to the contrary.
Further more, the constitution provides for the creation of a Customary Court of Appeal for any state that so desires (the definition of "states" here also includes the Federal Capital Territory ). The effect of this is to equate Sharia Courts of Appeal with Customary Courts of Appeal. Since the jurisdiction of the Sharia Court of Appeal is limited to Islamic personal law - religious and moral laws which guide the social relations of Muslims - it becomes clear that Sharia courts are to Muslims what Customary courts are to non-Muslims, their jurisdictions are limited to civil matters, to the social and customary aspects of the lives of the disputing parties.
It is contestable, therefore, for the House of Assembly of a state to ascribe criminal jurisdictions to its Sharia courts. This is a clear act of affront on the Federal Constitution and can not even be justified by the opening words of Section 277 (1): "The 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 procedures ..." It is submitted that it is false to assert that the constitution empowers the states to expand the jurisdiction of their respective Sharia courts ( beyond and above that ascribed to them in civil matters ) to include criminal matters; it also bares mention that the "other jurisdiction" to be so conferred must be such that could be exercised in proceedings regarding Islamic personal law ( which the court is competent to adjudicate in the first place in accordance with subsection (2) of Section 277. Evidently, subsection (1) does not extend the jurisdiction of the Sharia courts beyond the limits of subsection (2). The wording of Section 277 is clear, unequivocal, and ought to be given a literal interpretation. An important rule of constitutional interpretation states that wherever particular words are accompanied by general words, the general words (in this case " in addition to ") must be limited to the same kind as the particular (or enumerated ) words. The legal maxim for this principle is ejusdem jeneris (of the same kind or nature). Thus when the constitution says: "...in addition to such other jurisdiction," it refers to the particular, original jurisdiction conferred on the Sharia courts in matters enumerated in subsection (2). Since all the enumerated cases are civil in nature, by implication Sharia courts are exempt from criminal proceedings and incompetent to hear any criminal suit.
The legality of Sharia courts to participate in criminal proceedings could also be evaluated from the stand-point of the principle of federalism. Federalism is a system that upholds and recognizes the legislative supremacy of the National Assembly over the Houses of Assembly of the respective states, ensuring the smooth running of the various governments in the polity and also preventing conflicts that may arise between federal and state legislatures. The latter is achieved through the provision of two legislative lists known under the constitution as the exclusive and concurrent legislative lists. The position of the constitution on a law that may be the subject of conflict between the two legislative bodies is very clear. Section 4(5) provides: "If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly,the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void. "Such a law therefore, will have the same effect as one made contrary to Section 4 (7) (c), that is to say matters with respect to which a House of Assembly is not empowered to legislate in accordance with the provisions of the constitution.
Additionally, under federalism, legislative practice is guided by the doctrine of covering the field. Under this doctrine, where the federal legislature makes a law whose wording is so wide as to be construed as covering an entire subject, it should be understood that the legislative body intends to " cover the whole field, " that is extending its power to all matters incidental and supplemental to the subject in question, and this precludes any state House of Assembly from legislating on the same subject. It is thus important to note that where this is breached, Section 4(5) will apply, rendering such a law null and void. However, if the law by a state House of Assembly is merely repeating the provision of an earlier law passed by the National Assembly, the former shall be suspended and will cease to be of any legal effect as both laws can not operate concurrently.
In the states that the Sharia Code is being enforced today, there appears to be an obvious conflict between the Penal Code and the Sharia Penal code. Since the Sharia Code acknowledges the free will of non-Muslim parties to resent the application of Sharia in the course of their trial, it goes without saying that the Penal Code, which was in operation long before the Sharia came into force, is still applicable. As a result, there are two separate sets of laws for the residents of those states. While it is applauded that non-Muslims can exercise their free will in this regard, it would be better appreciated if the same right is extended to Muslims who are, by virtue of their religious affiliations, compelled to trials by Sharia. This obvious discrimination runs contrary to both the intent and spirit of the constitution and certainly in contradistinction with a major tenet of federalism - equality before the law.
Additionally, many have argued that Section 38 (1) which provides for freedom of thought, conscience, and religion clearly justifies the enactment of the Sharia penal code. According to those supporting this claim, since the constitution gives some latitude to an individual to freely practice his religion, it is right for the same individual to elect to be guided by the Sharia code because true Islamic virtues can only be attained through the Sharia. This reasoning has led them to criticize Section 10 which they say contradicts Section 38 (1). The present writer humbly disagrees with this view.
Section (10) which prohibits state religion is designed to prevent the imposition of one religion or religious belief on the adherents of other religions; a breach of this section would necessarily deny the spirit and intent of Section 38(1). Additionally, Section 38 (1) seeks to promote freedom of worship, and this includes the freedom to change one's religion or belief, either alone or in community with others. This is the true meaning of Section 38 (1) and no contradiction should be read into Section 10 as a result.
Based on its inconsistency with relevant sections of the 1999 Constitution, and considering its glaring incompatibility with basic rules of constitutional interpretation, it is safe to conclude that the Sharia'a legal code is null and void. In addition, the basic principles of federalism dispels any doubt that when it comes to criminal trials, residents in states in which Shari'a is upheld to be the law of the land can not be bound by it - and yes, this includes Muslims.
So much has been debated on the constitutional justification for the legal enforcement of the Islamic Legal code in parts of the country. On the one hand, proponents of the Sharia (such as Governor Yerima of Zamfara State, the first state to pass the Sharia Code) claim that the 1999 Constitution of the Federal Republic of Nigeria ( hereinafter simply referred to as "the constitution" ) provides the legal foundation for its introduction. They aver that such inference complies with the wordings of Section 38 (1) & Section 275 (1) regarding the right and freedom to "manifest and propagate one's religious beliefs, teachings, practices, and observances." They further argue that these sections of the constitution grant any state of the federation exclusive discretion in establishing a Sharia Court of Appeal. Most of their critics strongly disagree, albeit with little recourse to the constitution, the grund norm of our legal system.
The failure of past discussants in finding answers to the above questions, arguably the greatest legal challenge facing our generation, is likely to complicate an already difficult discourse. Emotions have often skewed the debates into further complexities, forcing members on either side of the aisles to reject astute legal reasoning and rely solely on subjective, sometimes religiously biased reasoning. For instance, while some proponents of the Sharia refer to the constitution in justifying their position, they are quick to reject the same constitution where the meanings of certain sections in the constitution run contrary to the provisions supporting their earlier claims. Whereas, the sections being overlooked, when read together with the other sections, readily dispel the false inference a layman would necessarily draw with respect to the actual intent of the Constitution.
The reasoning of opponents of the Sharia, just like that of their counterparts, is shallow; they often engage in what legal logicians call inductive reasoning. Their arguments are often based on spurious assertions, often generalised, with no cogent premise supporting their claims. Such arguments are not deductively valid; nevertheless, it is improbable that their conclusions are false. These are arguments based on selective reasoning which may be logical but false.
I beg to keep a safe distance from both sides of the debate. By steering a middle course, I hope to make up for the inherent prejudices and deficiencies of the two contending groups. I will use the Constitution as a guide in my attempt to accomplish this feat.
Because this issue borders on the legitimacy of a law passed by the House of Assembly of a state, it is important that we explore the subject of the supremacy of the Constitution, the document from which all 36 states of the Federation get their powers. Section 1(1) of the Constitution declares the supremacy of the 1999 Federal Constitution, stating, in no equivocal terms, that its supremacy is over and above all persons and authorities. In subsection (3) of the same section, the Constitution emphasizes the effect of any law found to be inconsistent with the provisions of the Constitution, warning that: "...that other law shall, to the extent of the inconsistency, be void." Therefore, the joint effect of Section 1(1) and Section 1(3) is to render void, and of no legal effect, any law that contradicts the spirit and intent of the Constitution. But when, and how can a law like the Sharia code which was passed by a competent legislature, be annulled to keep with the spirit of the constitution?
A law can be ultra vi res (literally, beyond the law) and also a nullity by virtue of either its content or by the procedure of its passage. In the case of the former, it is called substantive ultra vi res while in the latter case, it is procedural ultra vi res. Procedural ultra vi res occurs when a bill being deliberated by the National Assembly or by the House of Assembly of a state is declared null and void by the court because the procedure stipulated for the successful passage of the bill is ignored. The court could also take such actions even after the bill has been passed into law and the court is satisfied that the procedure of its passage is not in accordance with the law. In the same vain, a bill already passed into law may be impugned based on its content, in which case the court, after finding that such a law is in pari materia with relevant provisions of the Constitution or other enabling law, declares it null and void (substantive ultra vi res). It therefore behooves the legislative arm, which under a democratic milieu is responsible for making laws, to discharge that function with the utmost diligence and care without recourse to any ancillary considerations.
On the question of the constitutionality of the Sharia, it should be pointed out that Sharia is given some recognition in the Constitution. Section 6 which defines judicial powers also establishes Sharia Courts of Appeal among other courts of the federation. By this provision, it bares mention that there cannot be a Sharia Court of Appeal ( an appellate court ) without Sharia courts at the state level from which appeals might rise to the former. Following this logic, therefore, it is safe to say that the Constitution, by creating the Sharia Court of Appeal, has, though not explicitly, reserved a discretion for states to create their own Sharia courts since the appellate court lacks original jurisdiction to hear most of the cases to be brought before it, and also because the cases are of such a nature that they cannot be entertained in a regular court (Magistrate or High Courts). Thus on the face, the Constitution upholds the application of the Islamic Legal Code. But to what extent? This we shall explore further.
Section 6(5)(f) & (g)(replicated in sections 260, 275, 262, and 277) state in clear and unambiguous terms the jurisdiction of the Sharia Court of Appeal, which by implication applies to all state Sharia courts.
A close study of Section 277(2) (a) - (e) reveals that Sharia courts shall be competent to decide only questions of Islamic personal law which cases were extensively enumerated in paragraphs (a) through (e) to include, among other things, marriage, guardianship of infants and persons of unsound mind, foundling, wakf, gift, will, and succession. However, Section 277 (2) (e) requires that for that provision to apply, the parties must be Muslims and they must have requested the court at first instance to determine their case in accordance with Islamic personal law. The inference to be drawn from this is that the ultimate question of jurisdiction and application rests with the parties who must first determine whether or not they intend their trial to be by Sharia. Interestingly, nothing in the above section or the accompanying subsections suggests that members of other faiths are mandated to appear before a Sharia court (the only exception is when such a party, in spite of his religious beliefs, voluntarily opts to be tried under Sharia law), neither is a Muslim so obligated if he or she indicated to the contrary.
Further more, the constitution provides for the creation of a Customary Court of Appeal for any state that so desires (the definition of "states" here also includes the Federal Capital Territory ). The effect of this is to equate Sharia Courts of Appeal with Customary Courts of Appeal. Since the jurisdiction of the Sharia Court of Appeal is limited to Islamic personal law - religious and moral laws which guide the social relations of Muslims - it becomes clear that Sharia courts are to Muslims what Customary courts are to non-Muslims, their jurisdictions are limited to civil matters, to the social and customary aspects of the lives of the disputing parties.
It is contestable, therefore, for the House of Assembly of a state to ascribe criminal jurisdictions to its Sharia courts. This is a clear act of affront on the Federal Constitution and can not even be justified by the opening words of Section 277 (1): "The 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 procedures ..." It is submitted that it is false to assert that the constitution empowers the states to expand the jurisdiction of their respective Sharia courts ( beyond and above that ascribed to them in civil matters ) to include criminal matters; it also bares mention that the "other jurisdiction" to be so conferred must be such that could be exercised in proceedings regarding Islamic personal law ( which the court is competent to adjudicate in the first place in accordance with subsection (2) of Section 277. Evidently, subsection (1) does not extend the jurisdiction of the Sharia courts beyond the limits of subsection (2). The wording of Section 277 is clear, unequivocal, and ought to be given a literal interpretation. An important rule of constitutional interpretation states that wherever particular words are accompanied by general words, the general words (in this case " in addition to ") must be limited to the same kind as the particular (or enumerated ) words. The legal maxim for this principle is ejusdem jeneris (of the same kind or nature). Thus when the constitution says: "...in addition to such other jurisdiction," it refers to the particular, original jurisdiction conferred on the Sharia courts in matters enumerated in subsection (2). Since all the enumerated cases are civil in nature, by implication Sharia courts are exempt from criminal proceedings and incompetent to hear any criminal suit.
The legality of Sharia courts to participate in criminal proceedings could also be evaluated from the stand-point of the principle of federalism. Federalism is a system that upholds and recognizes the legislative supremacy of the National Assembly over the Houses of Assembly of the respective states, ensuring the smooth running of the various governments in the polity and also preventing conflicts that may arise between federal and state legislatures. The latter is achieved through the provision of two legislative lists known under the constitution as the exclusive and concurrent legislative lists. The position of the constitution on a law that may be the subject of conflict between the two legislative bodies is very clear. Section 4(5) provides: "If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly,the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void. "Such a law therefore, will have the same effect as one made contrary to Section 4 (7) (c), that is to say matters with respect to which a House of Assembly is not empowered to legislate in accordance with the provisions of the constitution.
Additionally, under federalism, legislative practice is guided by the doctrine of covering the field. Under this doctrine, where the federal legislature makes a law whose wording is so wide as to be construed as covering an entire subject, it should be understood that the legislative body intends to " cover the whole field, " that is extending its power to all matters incidental and supplemental to the subject in question, and this precludes any state House of Assembly from legislating on the same subject. It is thus important to note that where this is breached, Section 4(5) will apply, rendering such a law null and void. However, if the law by a state House of Assembly is merely repeating the provision of an earlier law passed by the National Assembly, the former shall be suspended and will cease to be of any legal effect as both laws can not operate concurrently.
In the states that the Sharia Code is being enforced today, there appears to be an obvious conflict between the Penal Code and the Sharia Penal code. Since the Sharia Code acknowledges the free will of non-Muslim parties to resent the application of Sharia in the course of their trial, it goes without saying that the Penal Code, which was in operation long before the Sharia came into force, is still applicable. As a result, there are two separate sets of laws for the residents of those states. While it is applauded that non-Muslims can exercise their free will in this regard, it would be better appreciated if the same right is extended to Muslims who are, by virtue of their religious affiliations, compelled to trials by Sharia. This obvious discrimination runs contrary to both the intent and spirit of the constitution and certainly in contradistinction with a major tenet of federalism - equality before the law.
Additionally, many have argued that Section 38 (1) which provides for freedom of thought, conscience, and religion clearly justifies the enactment of the Sharia penal code. According to those supporting this claim, since the constitution gives some latitude to an individual to freely practice his religion, it is right for the same individual to elect to be guided by the Sharia code because true Islamic virtues can only be attained through the Sharia. This reasoning has led them to criticize Section 10 which they say contradicts Section 38 (1). The present writer humbly disagrees with this view.
Section (10) which prohibits state religion is designed to prevent the imposition of one religion or religious belief on the adherents of other religions; a breach of this section would necessarily deny the spirit and intent of Section 38(1). Additionally, Section 38 (1) seeks to promote freedom of worship, and this includes the freedom to change one's religion or belief, either alone or in community with others. This is the true meaning of Section 38 (1) and no contradiction should be read into Section 10 as a result.
Based on its inconsistency with relevant sections of the 1999 Constitution, and considering its glaring incompatibility with basic rules of constitutional interpretation, it is safe to conclude that the Sharia'a legal code is null and void. In addition, the basic principles of federalism dispels any doubt that when it comes to criminal trials, residents in states in which Shari'a is upheld to be the law of the land can not be bound by it - and yes, this includes Muslims.
you are definitely in your own league... I like the deliberate logic and insightful knowledge of our constitution...
ReplyDeleteI can say quite truthfully that you do know your subject matter
u are a genius
ReplyDeletethank you guys, I'm glad you appreciate the reasoning in the essay!
ReplyDeleteWonderful murna
ReplyDeleteI like ur work Murna wonderful(cookie)
Wonderful
ReplyDeleteMurna I really like ur nice work good job:)(cookie;))