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III. Background⁷

Nigeria has an estimated population of more than 130 million and more than 250 ethnic groups.  Up to date statistics are not available, but it is estimated that around half the population are Muslims, while just under half are Christians.  A smaller minority observe traditional religions.  The northern part of the country is predominantly Muslim, with the Hausa and Fulani the majority ethnic groups;  the south is predominantly Christian.  However, the constant movement of populations, particularly in the context of trade, has meant that both Muslim and Christian communities are found in most parts of the country, with sizeable Christian minorities in some northern states and sizeable Muslim minorities in the south.  Muslims and Christians are distributed more evenly in the central parts of Nigeria known as the Middle Belt, as well as in parts of the southwest, where the dominant ethnic group, the Yoruba, is made up of both Muslims and Christians.

Nigeria is a federation of thirty-six states.  Each state has its own government and its own state house of assembly.   State governors are granted considerable autonomy in many respects and, in practice, the federal government rarely intervenes to challenge their decisions or policies.  About half of Nigeria’s states are considered to be part of what is commonly referred to as the north, although there is no recognized boundary between north and south, and the regional and cultural identity of some states is the subject of much dispute. 

Partly as a result of its greater ethnic and religious homogeneity, the northern part of Nigeria has been treated as a distinct entity since the early part of the twentieth century, including during the British colonial era when it was known as the Northern Region.  From 1914, when the state of Nigeria was first created until the 1950s, Nigeria was administered as two separate halves.  Even the legislation applied in the north was different; up until today, a separate Penal Code of Northern Nigeria⁸ remains in force, while the rest of the country has its own Criminal Code.⁹  Politics became regionalized early on in Nigeria’s history, with the emergence of three main blocs:  the north, the south-west, and the south-east.¹⁰  There have been longstanding political tensions and rivalries between the predominantly Hausa population of the north, and a multitude of other ethnic groups in the south and other parts of the country, partly as a result of the domination of northerners in military and political positions during the long periods of military rule.  Most of the constitutional changes which led to the full federalization of the country were brought in during the 1950s, leading up to the country’s independence in 1960.  However, even since the end of military rule in 1999, many southerners still resent what they perceive as the continued domination of northerners in the political and military elite.  This historical competition between north and south, aggravated by the religious dimension which has been brought to the fore in more recent years, is central to many of the tensions still prevailing in Nigeria.  In this context, Shari’a has increasingly assumed a symbolic importance in terms of regional as well as religious interests.

Shari’a

Shari’a is a system of Islamic law based on four main sources: the Qur’an (God’s revelation to the Prophet Muhammed); the Sunna, or actions of the Prophet, described in the Hadith; the Qiyas or process of analogical reasoning based on understanding of the principles of the Qur’an or the Hadith; and the Ijma, or consensus of opinion among Islamic scholars.

Shari’a has been applied in many different countries with large Muslim populations to both criminal and civil law.  For many Muslims, it is also a philosophy and entire set of rules and guidelines which extends well beyond the Western concept of law and governs day to day conduct in terms of social relations, private life, and ethical codes.  There are certain guiding principles within Shari’a upon which most Muslims agree, but, as with all religions, there are differences in interpretation.  In particular, there have been significant differences in interpretation of the Qur’an and the Hadith, and therefore different understandings of aspects of Shari’a among religious leaders, scholars, and others.  The majority of Muslims in Nigeria are Sunni.  Within Sunni Islam, the four main schools of thought―Maliki, Hanafi, Hanbali and Shafi―have each developed slightly different beliefs and observe different traditions; they have also formulated different prescriptions.  The form of Shari’a applied in Nigeria is based in most part on the Maliki school of thought, which is dominant among Muslims in west and north Africa.¹¹

In terms of criminal law, there are three main categories of offenses and punishments under Shari’a.  The first are the hudud (or hadd, in the singular) punishments laid out in the Qur’an and the Hadith; because they are specified by God, they are regarded as fixed and cannot be changed.  They include theft (punishable by amputation), armed robbery (punishable by death or amputation), extra-marital sex (punishable by death or flogging), false accusation of extra-marital sex (punishable by flogging), consumption of alcohol (punishable by flogging), and apostasy or renunciation of Islam (punishable by death).   However, even these offenses, despite their fixed nature, have been interpreted differently by different schools of thought, and in different countries.  For example in Nigeria, apostasy is not included as an offense in the Shari’a penal codes, presumably in recognition of the diversity of faiths in the country, even in the north, and the right to freedom of religion. 

The second category are qisas and diya punishments.  Qisas, applicable for murder or injury, is based on the notion of retaliation: it involves inflicting the same punishment on the defendant as she or he inflicted on the victim, in some cases using the same methods (for example, a murderer should be killed with the same type of weapon as she or he used to commit the murder).  Diya, or the payment of blood money, requires financial or material compensation for the crime in cases where the family of the victim does not demand qisas. The third category are ta’zir punishments, where judges can exercise discretion and choose from a range of punishments, as the state is not bound by the wishes of the victim’s relatives. 

In terms of criminal law, according to Shari’a, the accused should always be given the benefit of the doubt.  Considerable latitude is provided to Shari’a court judges who are expected to exercise great caution before sentencing, even in the case of hudud, where fixed punishments are specified.  For certain crimes, the standard of evidence required for conviction is deliberately set so high as to be almost unattainable, meaning that the law is intended more as a deterrent than a real prospect of punishment. 

Even if the accused confesses to the crime, Shari’a allows them several opportunities to withdraw the confession.  The confession should be made willingly and the accused should fully understand the implications of confessing.  Judges should always look for mitigating circumstances―for example the poverty of the accused, in cases of theft―and the mental sanity of the defendant should always be taken into account when determining the sentence.  The Zamfara State governor (one of the keenest advocates of Shari’a in Nigeria) told Human Rights Watch: “If someone’s basic needs are met but he still goes to steal, the requirement for amputation has been met.  But if the person is needy, they can’t even be punished under Shari’a.  Or they will be given a light sentence, for example one or two months.”¹²  The Kebbi State Attorney General also claimed that Shari’a court judges were taught to ask the defendants, first, whether they committed the offense, and secondly, why, and that if they said they had stolen because they were hungry, they should not be convicted.¹³  In addition, to be convicted of theft, a person must have removed an object which is not his/her own from its usual place of custody; if the object is in a different place or has been left out negligently, the person should not be convicted.

The accused should also be given several chances, including the chance to escape punishment completely. A Muslim human rights activist explained to Human Rights Watch: “Under Shari’a, if a convicted person runs away from the authorities, the case is over.  They can’t pursue him.  The emphasis is on repentance.”¹⁴  Judges should also satisfy themselves that the accused fully understand and appreciate their offense and the consequences in terms of sentences they may occur. However, in practice, Shari’a courts have failed to observe all these requirements.¹⁵ 

Islam has been practiced in Nigeria since around the eleventh century, and Shari’a has been applied in the northern part of the country before, during and since the colonial period.¹⁶ It has been in force at least since the Islamic jihad led by Shehu Uthman Dan Fodio and the establishment of the Sokoto Caliphate in 1804.  However, some scholars have argued that it was established even earlier in Kanem Borno (in present day northeastern Nigeria and southern Chad).¹⁷

When northern Nigeria was colonized by the British in the late nineteenth century, colonial laws continued to recognize Shari’a, but certain aspects of it were modified or restricted.  Shari’a courts―then known as area courts―had jurisdiction only over matters of personal status law, such as divorce, inheritance, and domestic disputes.  Criminal matters were dealt with under the Penal Code for Northern Nigeria; although strongly influenced by the British legal system, the Penal Code included many components of Shari’a.  However, the British colonial administration excluded the harsher penalties such as death by stoning and amputations on the basis that they were “repugnant to natural justice, equity and good conscience;” floggings continued to be carried out. 

Many northerners interviewed by Human Rights Watch in the course of our research stressed that Shari’a was not new in Nigeria. They explained that what was new, or what was being revived, was its extension to criminal law, and downplayed the overall significance of the new legislation brought in since 2000.   However, the extension to criminal law has had wide-ranging consequences and has opened up complex political and religious debates.  It has also raised fundamental human rights issues, particularly with regard to the introduction of hudud punishments, which include death by stoning for adultery, amputation for theft, and flogging for consumption of alcohol.