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XIII. Shari’a and the Nigerian constitution

One of the most hotly debated, and so far unresolved, questions in relation to Shari’a has been whether Shari’a courts have the jurisdiction to try criminal cases under the Nigerian constitution.  To date, the federal government has avoided taking a clear position on the matter and it has been left to lawyers, academics and nongovernmental organizations to debate the issue.  Meanwhile, criminal cases have continued to be brought before the Shari’a courts, and people have continued to be sentenced.

The controversy has centered around several sections of the constitution.278  Firstly, Section 10 of the constitution specifies: “The Government of the Federation or of a State shall not adopt any religion as State Religion.”  Many Nigerians have described the adoption of Shari’a as the equivalent of adopting a state religion in the northern states.  Northern state governors, however, have argued that this is not the case, as Shari’a applies only to Muslims, not to Nigerians of other faiths. 

In the debates around Shari’a, Section 10 of the constitution has often been juxtaposed with Section 38, on freedom of religion, which has been interpreted differently by different parties. Section 38 (1) of the constitution states:  “Every person shall be entitled to freedom of thought, conscience and religion […] and freedom […] to manifest and propagate his religion or belief in worship, teaching, practice and observance.”   Non-Muslims have argued that the imposition of Shari’a violates the right to freedom of religion and affects non-Muslims, even though they are supposed to be exempt from the law.   Advocates of Shari’a have referred to the same provision to justify the application of Shari’a as an integral part of Islam.  Some have described attempts to stop or curb the implementation of Shari’a as a violation of their own right to freedom of religion as Muslims. 

There has also been an intense argument over whether state governors have the powers to extend the jurisdiction of Shari’a courts to criminal law or to create new courts.  The constitution mentions Shari’a state courts of appeal (sections 275 to 279) but refers to their jurisdiction only in the area of “civil proceedings involving questions of Islamic personal law” and does not mention that they have powers to try criminal cases.  Critics of Shari’a have therefore argued that it is unconstitutional for Shari’a courts to try criminal cases.  Northern state governors, however, have insisted that they have the powers to do so.  The legislative power of the government in Nigeria is divided between the federal and state governments, as specified in Section 4 of the constitution.  Section 6 of the constitution empowers states to establish courts “to exercise jurisdiction at first instance or on appeal on matters with respect to which a [state] House of Assembly may make laws;”  and Section 4 (7) gives state houses of assembly the power to “make laws for the peace, order and good government of the State” for any matters not included in the Exclusive Legislative List, any matter included in the Concurrent Legislative List,279 and “any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.” State governments have argued that these provisions give them the right to introduce Shari’a legislation, and to create courts, on the grounds that these are intended for good governance of their states.

A further argument advanced by critics of Shari’a is that Shari’a discriminates against Muslims.  Section 42 (1) of the constitution guarantees the right to freedom from discrimination:  “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such as person – a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject.”  Since the introduction of Shari’a, Muslims have no choice as to which jurisdiction will try them, whereas non-Muslims do.  Furthermore, Muslims are likely to be affected negatively by some of the significant differences between the Shari’a and the common law systems.  Some of the punishments provided for by the Shari’a legislation, for example death by stoning or amputation, are much harsher than those provided for in the Criminal Code.  There are also certain acts, such as adultery, which are capital offenses under Shari’a but are not considered crimes under the Criminal Code applied in the rest of the country.  As described above, several provisions of Shari’a also discriminate against women.  The consequences of all these differences in terms of sentencing could be severe.

Separately from arguments about the limits of jurisdiction of the Shari’a courts, it is clear that punishments provided for by Shari’a, such as death by stoning, amputations, and floggings, are violating the right to dignity of the human person, enshrined in Section 34 of the constitution, which explicitly prohibits torture and inhuman or degrading treatment.  Likewise, the failure of Shari’a court judges to observe due process during trials has violated the right to a fair hearing, provided for in Section 36 of the constitution.  The inequality between men and women under Shari’a violates the right to freedom from discrimination, provided for in Section 42 of the constitution.

There has also been a more fundamental argument about the scope of the constitution and the extent to which it is binding across the country—even though the very first provision of the constitution states clearly that it is.  Section 1 (1) states: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons through the Federal Republic of Nigeria,” and Section 1 (3) states: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.” Some state government officials and judges in Shari’a courts have disregarded these provisions; they have argued that Shari’a has supremacy over the Nigerian constitution, because it has its source in religion, and have therefore claimed that they are not bound by constitutional requirements.  

[278]  All sections quoted in this report are from the Constitution of the Federal Republic of Nigeria 1999.  There were even more heated debates on the place of Shari’a in the constitution  in previous years, in particular around the enactment of the 1979 and 1989 versions of the constitution; much of the debate then focused on whether the constitution should provide for a Shari’a court of appeal at the federal level.  The 1979 constitution forms the basis for the 1999 constitution currently in force.   For details, see “An opportunity missed by Nigeria’s Christians,” by Philip Ostien, Faculty of Law, University of Jos, presented at a conference on “The Shari’a debate and the shaping of Muslim and Christian identities in Northern Nigeria,” University of Bayreuth, 11-12 July, 2003.  A range of views on Shari’a and the Nigerian constitution can also be found in “Shari’a and the 1999 Constitution:  Proceedings of a three-day conference on the controversial introduction of Shari’a legal system by some northern states in Nigeria and the implications for 1999 Constitution, March 29-April 1, 2001,” Civil Rights Congress (Kaduna), 2001.

[279]  Only the federal government can legislate on matters in the Exclusive Legislative List.  For matters on the Concurrent Legislative List, laws can be enacted either by the federal or state governments.   (Both lists are contained in the Second Schedule to the Constitution.)  States have the powers to legislate in all remaining matters which are not contained in either of these two lists.   For further discussion of the power of states in relation to Shari’a and the Nigerian Constitution, see Prof. Dr. Ruud Peters, “The Reintroduction of Islamic Criminal Law in Northern Nigeria,” a study conducted on behalf of the European Commission, September 2001.

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