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VI. Absence of legal representation

In the majority of the death sentence, amputation, and flogging cases documented by Human Rights Watch, defendants did not have legal representation before or during their trial in the court of first instance (lower or upper Shari’a courts).  The judges did not inform the defendants of their right to seek legal advice or ask them if they wished or needed legal assistance.  Many of the defendants did not seek legal advice themselves, either because they were not aware of their right to do so, or because they did not have the money to hire a lawyer.   The absence of legal representation is generally not viewed as a problem in terms of public perception in northern Nigeria, in large part because people are not informed about their rights, and have been misled into believing that Shari’a does not allow the presence of lawyers in court.

The right to a fair hearing, including the right for a defendant to “defend himself in person or by legal practitioners of his own choice” is guaranteed in section 36 of the Nigerian Constitution, as well as in the Shari’a legislation introduced by northern states since 2000.   For example the Zamfara State Shari’a Criminal Procedure Code states: “A legal practitioner shall have the right to practice in the Shari’ah court in accordance with the provisions of the Legal Practitioners Act, 1990.”¹⁸⁵  

The Nigerian state has an obligation to provide legal assistance to defendants who cannot afford to pay for a lawyer.  The Legal Aid Council, a parastatal body, was created by the federal government in 1976 with the mandate of providing free legal assistance and advice to Nigerian citizens who could not afford the services of a private lawyer.¹⁸⁶   However, like many other bodies set up by the government, the Legal Aid Council is seriously underfunded and unable to provide services in all but a small number of cases. In theory, the Legal Aid Council has an office in thirty-four of Nigeria’s thirty-six states, but in practice, the capacity of these offices is extremely limited, and in 2003, there was only one Legal Aid Council lawyer in each state.¹⁸⁷  By the end of 2003, the Legal Aid Council had not yet provided lawyers to any of the defendants tried by Shari’a courts and sentenced to death or amputation. 

There is a belief voiced by some of the more conservative advocates of Shari’a that Shari’a does not allow legal representation for defendants and that Shari’a courts do not recognize defense lawyers. For example, the Secretary General of the Supreme Council for Shari’a in Nigeria— himself a lawyer by training—told Human Rights Watch:  “The right to legal representation is unacceptable to me.  Lawyers will just subvert the Islamic principles of justice.  They are not informed by the fear of God.”¹⁸⁸  This attitude has filtered down to the population; a lawyer in Kano told Human Rights Watch that most Muslims believed they could not appeal a Shari’a judgment.¹⁸⁹  However, none of the Shari’a laws introduced in Nigeria prohibits legal representation for defendants and some of them, as indicated above, explicitly provide for it. 

A lawyer in Zamfara State told Human Rights Watch that there had been occasions when Shari’a court judges had tried to prevent lawyers from appearing in court and told them that their presence was foreign to Shari’a.  He described scenes where other people in the courtroom had  shouted the lawyer down, and one occasion when he himself had been forced to leave.¹⁹⁰  In one case, on January 30, 2003, the Upper Shari’a court in Kaura Namoda, Zamfara State, denied four defendants the right to legal representation.  The four men, Labaran Magayaki, Kwari, Shaibu, and Kabiru, who were accused of criminal trespass, asked the judge for more time to bring their defense counsel to court.  The judge refused, proceeded with the trial, and convicted them; they were fined and ordered to pay compensation to the complainant, who was the chairman of the ANPP (the ruling party in Zamfara State) in Kaura Namoda local government.  A lawyer assisted them in appealing to the Shari’a court of appeal; one of the main grounds for appeal was the denial of the right to legal representation and lack of time to prepare their defense.  In July 2003, the case was still pending at the court of appeal.¹⁹¹

In the majority of death sentence and amputation cases documented by Human Rights Watch, lawyers have only been able to intervene at the appeal stage.  Even then, their efforts have concentrated mostly on the high profile cases, such as those of Safiya Husseini and Amina Lawal.   Defendants in less publicized cases have struggled to find lawyers to represent them and have been largely dependent on their families to find lawyers for them. In some cases,  human rights and women’s organizations have intervened to assign lawyers to specific cases,¹⁹² but the choice of cases has been haphazard, as not all cases are systematically brought to the attention of such organizations, and many are not even reported in the media.  Additionally, the resources at the disposal of defendants, their families and nongovernmental organizations have been limited.   Even when lawyers have been assigned to assist with appeals, these lawyers have not always played an active role, nor have they always kept their client informed of the progress of the case.  Many private lawyers have not been able to continue working on the cases without some form of payment, and correspondingly their interest and involvement in specific cases may have decreased, sometimes to the point of neglect.   One of the main consequences of this situation is that in some cases, communication between lawyers and the clients they were supposed to be defending or advising has been poor, and the quality of advice erratic.  Several prisoners sentenced to amputation in Zamfara and Kebbi States who were interviewed by Human Rights Watch were not even aware that a lawyer had been assigned to their case or that appeals had been filed on their behalf.¹⁹³  

Some lawyers have expressed a reluctance or an unwillingness to take on Shari’a cases. This reluctance has been motivated in part by the public outrage generated by the crime of which the defendant was accused—for example in cases of sexual abuse of children, or murder—and in part by a broader fear that their role in assisting a defendant in a Shari’a case could be perceived as a criticism or challenge of Shari’a, and by extension of Islam as a whole.¹⁹⁴  In a typical example, a man who had assisted the defense counsel in the case of Amina Lawal said that when he came out of the courtroom, he was surrounded by youths who accused him of not wanting Shari’a to be applied, because they had seen him assisting Amina Lawal’s defense team.¹⁹⁵

The lack of legal representation for defendants tried in Shari’a courts, especially in death penalty and amputation cases, has been one of the main issues of concern which Human Rights Watch has raised in discussions with Nigerian federal and state government officials, including the federal Attorney General and Minister of Justice, and the state attorney generals and other officials of several northern states.  All these officials agreed that defendants have the right to legal representation and that Shari’a does not forbid it.  The Kano State Director of Public Prosecutions and the Kano State deputy governor confirmed that the accused were allowed to be represented by a lawyer in the Shari’a courts and told Human Rights Watch that in those cases where the accused could not afford it, the Legal Aid Council provided a lawyer;¹⁹⁶  however, this is not known to have happened in any case so far.  The Zamfara State Governor also agreed that Shari’a allows defense lawyers and said he believed lawyers should be compulsory in every hadd case,¹⁹⁷ but once again, this statement is at complete odds with the practice.

In discussions with Human Rights Watch, several state government officials said they would ensure that judges always informed defendants of their right to have a defense lawyer.  The Kebbi State Attorney General claimed that in their training, Shari’a court judges were taught to tell the accused that they could employ legal counsel and trial proceedings should be adjourned if necessary to allow the defendant to consult a lawyer.  He also said that judges should not accept confessions made under torture or duress and should always ensure that the defendant has made the statement voluntarily.  He told Human Rights Watch that the Kebbi state ministry of justice wanted to establish its own human rights department, which would provide lawyers for defendants with state government funds.¹⁹⁸