<<previous  |  index  |  next>>

XV. Failure to conform to international human rights standards

As explained in this report, Human Rights Watch takes no position on the adoption of Shari’a or any other legal system as such.  However, there are several aspects of Shari’a which contravene international and regional human rights standards, which the Nigerian government has ratified and which both federal and state governments are obliged to uphold.  As stated above, some of the current practices carried out in the name of Shari’a also violate principles of Shari’a itself, as well as provisions within the Nigerian constitution.

Advocates of Shari’a in Nigeria, particularly some state government officials and Islamic leaders, as well as some Shari’a court judges, have dismissed these obligations, arguing that Islamic law has supremacy over both the Nigerian constitution and international standards, and that they are bound by neither.  Some have voiced strong objections to attempts to hold them accountable to international standards, which they equate with secularity and Western values, and have sought to exploit the argument of cultural difference.  They have described criticisms from the West as attacks against Islam and part of a campaign to impose Western values.  For example, Nafiu Baba Ahmed, Secretary General of the Supreme Council for Shari’a in Nigeria, stated:  “There is no universal value system.  There are problems and misunderstandings because people are looking at it from a Western secular viewpoint. […]  Why should secular values be imposed?  The rise of Islam today is challenging the universal system.  There is no universal system […] The introduction of Shari’a shows the yearning of the people.  They are not happy with having a foreign system imposed on them.”²⁹³  A hisbah leader in Kano told Human Rights Watch:  “We have our own value system and religion.  Just because the West doesn’t agree, it doesn’t mean it’s wrong.”²⁹⁴

On the other hand, several human rights organizations, activists, and academics in Nigeria have attempted to show that in fact, the human rights values enshrined in international conventions are compatible with Shari’a, and indeed overlap to a great extent.  Debates and conferences have been organized and many papers written on these issues.  As mentioned above, these points have also been integrated into some of the training for Shari’a court judges and others.  At the time of writing, active debates are still ongoing.²⁹⁵

Whatever personal beliefs may prevail in different social and religious circles in Nigeria, the Nigerian government—both at federal and state level—remains bound by international obligations and conventions.  These are not conventions imposed by Western, Christian, or secular countries, but international and regional instruments which have been willingly ratified by Nigeria as well as other countries with large Muslim populations.   The international conventions include the International Covenant on Civil and Political Rights (ICCPR), to which Nigeria has been a state party since 1993; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which Nigeria ratified on June 28, 2001; the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),  which Nigeria ratified on July 13, 1985; and the Convention on the Rights of the Child (CRC), which Nigeria ratified on April 19, 1991. The regional conventions include the African Charter on Human and Peoples’ Rights (African Charter), which Nigeria ratified in 1983 and has incorporated into domestic law; its Protocol on the Rights of Women in Africa, which Nigeria signed on December 16, 2003, but has not yet ratified; and the African Charter on the Rights and Welfare of the Child (ACRWC), which Nigeria ratified on July 23, 2001.

The manner in which Shari’a has been applied in northern Nigeria so far has violated provisions of all these conventions, in particular on the right to life, the right to a fair hearing, the right to be free from torture and cruel, inhuman or degrading treatment, the right not to be discriminated against on the grounds of sex and religion, and the right to privacy.

The right to life

Article 6 (1) of the ICCPR states that “every human being has the inherent right to life.  This right shall be protected by law.  No one shall be arbitrarily deprived of his life.”  Article 4 of the African Charter also states:  “Human beings are inviolable.  Every human being shall be entitled to respect for his life and the integrity of his person.  No one may be arbitrarily deprived of this right.”

In addition, Article 6 (2) of the ICCPR states: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime […] This penalty can only be carried out pursuant to a final judgement rendered by a competent court.” 

The use of the death penalty under Shari’a has violated these provisions.  In particular,  consensual sexual relations between adults, for which people have been sentenced to death in Nigeria, cannot reasonably be considered as one of “the most serious crimes” referred to by the ICCPR. 

The right to a fair hearing

Article 14 of the ICCPR states: “All persons shall be equal before the courts and tribunals […] everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”  It states that everyone shall be entitled to minimum guarantees including “(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; […] (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; […] (g) not to be compelled to testify against himself or to confess guilt.”  Article 7 of the African Charter states that “every individual shall have the right to have his cause heard” including “the right to defence, including the right to be defended by counsel of his choice.”

Children’s right to legal representation is specifically guaranteed in Article 37 (d) of the CRC and in Article 17 of the ACRWC. 

The conduct of criminal trials in Shari’a courts, as indicated in this report, has violated these provisions in many respects, particularly regarding the right to legal representation, the right to be heard by a competent court, and the right of the accused not to be compelled to confess.

The right to be free from torture and cruel, inhuman or degrading treatment or punishment

The right to be free from torture and cruel, inhuman or degrading treatment is provided for in the ICCPR (Article 7), CAT, and the African Charter (Article 5). 

In cases which have come before the Shari’a courts, these provisions have been violated in two respects.  The systematic torture of suspects by the police to extract confessions clearly violates this right.  In addition, punishments provided for in the Shari’a legislation, notably the death penalty, amputations, and floggings, constitute torture and cruel, inhuman or degrading treatment and fall within the definition of torture laid out in Article 1 of the CAT as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”  

Article 2 of CAT requires each state party to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” – measures which state governments and the federal government in Nigeria have failed to take by allowing punishments such as amputations to be provided for in law and in practice.

With regard to corporal punishments, the U.N. Special Rapporteur on Torture has taken the view that “corporal punishment is inconsistent with the prohibition of torture and other cruel, inhuman and degrading treatment or punishment enshrined, inter alia, in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”  Specifically in relation to corporal punishments contained in laws derived from religion, such as Shari’a, he stated:  “As there is no exception envisaged in international human rights or humanitarian law for torturous acts that may be part of a scheme of corporal punishment, the Special Rapporteur must consider that those States applying religious law are bound to do so in such a way as to avoid the application of pain-inducing acts of corporal punishment in practice.”²⁹⁶ 

The Convention on the Rights of the Child (Article 37) specifically states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.”  Section 17.3 of the U.N.Standard Minimum Rules for the Administration of Juvenile Justice state that “juveniles shall not be subject to corporal punishment.”  Article 17 of the African Charter on the Rights and Welfare of the Child requires state parties to “ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment.”  Yet several defendants sentenced to amputation or flogging by Shari’a courts in Nigeria have been under the age of eighteen. 

The participation of doctors in amputations—as in the case of  Jangebe in Zamfara State—goes against principles and guidelines set out by the U.N. and by international bodies representing the medical profession.  The participation of doctors and other medical personnel in acts of torture or other cruel, inhuman or degrading treatment or punishment is prohibited by the Principles of Medical Ethics relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, adopted by the U.N.General Assembly on December 18, 1982.   Principle 2  states: “It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment of punishment.”  

Several international bodies representing medical professionals have also established guidelines and ethical principles against the participation of doctors in practices amounting to torture and cruel, inhuman or degrading treatment or punishment.  The Declaration of Tokyo, adopted by the 29^th Assembly of the World Medical Association in 1975, states: “The doctor shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedure is suspected, accused or guilty […] The doctor shall not provide any premises, instruments, substances or knowledge to facilitate the practice of torture or other forms of cruel, inhuman or degrading treatment […] The doctor shall not be present during any procedure during which torture or other forms of cruel, inhuman or degrading treatment are used or threatened.”²⁹⁷

The right to equality before the law

The ICCPR states that men and women should enjoy equal access to all the civil and political rights set forth in the covenant.  In particular, Article 26 states: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”   Article 3 of the African Charter states that “every individual shall be equal before the law” and “every individual shall be entitled to equal protection of the law.”

Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) commits state parties to pursue a policy of eliminating discrimination against women and ensuring equality of men and women in several ways, notably through adoption or amendment of legislation.  In particular, Article 2 (f) commits state parties to taking “all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”  Article 15 of CEDAW requires all state parties to “accord to women equality with men before the law.”   Article 5 (a) also requires state parties “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”

Article 18 of the African Charter requires states to “ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.”   The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which was adopted in 2003, contains more detailed measures for protecting women’s rights, including the elimination of discrimination against women in law and in practice (Article 2) and access to justice and equal protection before the law (Article 8) which requires state parties to ensure, among other things, “reform of existing discriminatory laws and practices in order to promote and protect the rights of women.”

Contrary to all these provisions, the Shari’a legislation in force in Nigeria is explicitly discriminatory on the grounds of religion—only Muslims are subjected to Shari’a and the harsh punishments contained in its legislation—and on the grounds of sex, with women facing serious disadvantages both in law and in practice, as illustrated in this report.

The right to privacy

The harassment of men and especially women in the context of private relationships, as well as public gatherings, has violated the right to privacy, as have attempts by the hisbah to catch people suspected of breaking the law or violating certain practices by entering their homes or prying on their activities.   Article 17 of the ICCPR states:  “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence […]  Everyone has the right to the protect of the law against such interference or attacks.”