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IV. The extension of Shari’a to criminal law in Nigeria

The governor of the northern state of Zamfara, Ahmed Sani, was the first to introduce Shari’a for criminal law, within a year of the 1999 elections which brought President Olusegun Obasanjo and new state governors to power.  The Shari’a Establishment Law was introduced in Zamfara State on October 27, 1999, and came into force on January 27, 2000.  The introduction of Shari’a in Zamfara State attracted a huge amount of attention, and Ahmed Sani became the self-appointed champion of Shari’a in Nigeria. 

The Zamfara state governor had accurately judged the mood of population. The introduction of Shari’a was initially very popular, for several reasons. Foremost among these was public disenchantment with a government and a legal system which were failing people in many respects.   There is widespread poverty across Nigeria, and the north is especially underdeveloped.  There was the expectation among the general public that Shari’a, with its emphasis on welfare and the state’s responsibility to provide for the basic needs of the population, would go some way towards alleviating their plight.  People also felt frustrated with the law enforcement agencies and the judiciary:  crime was increasing, yet the police and the courts were paralyzed by inefficiency and corruption.  Shari’a was seen as an alternative to these problems, offering a system which promised to be faster, less cumbersome, and less corrupt.  Finally, the introduction of Shari’a was no doubt attractive to many as a re-affirmation of their religious identity, especially in the context of recurring tensions between Muslims and Christians.¹⁸   

Capitalizing on the mood in Zamfara State, other state governors soon introduced their own Shari’a legislation.  By 2002, twelve states had adopted some form of Shari’a into their criminal legislation:  Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and Zamfara.  These twelve states are so far the only states in Nigeria where Shari’a courts have the jurisdiction to try criminal cases. However, some Muslims in other parts of the country, particularly in central and western states, such as Nasarawa and Kwara, where there are large Muslim populations, have been agitating for Shari’a to be introduced there; to date, these state governors have resisted the pressure. However, in the southwestern state of Oyo, it was reported that on October 31, 2002, a man was sentenced to flogging for extra-marital sex and the punishment carried out, even though Shari’a is not in force in the state.  He was sentenced not by a Shari’a court, but by an Independent Shari’a Panel.¹⁹

In all these twelve states, Shari’a applies only to Muslims.  State governments have not attempted to coerce non-Muslims into being tried by Shari’a courts.  However, non-Muslims are not prevented from accessing the Shari’a jurisdictions and may choose to take cases through the Shari’a courts if they wish.  Some have done so in the belief that their cases would be treated faster, but overall, such cases are rare.  Normally, non-Muslims accused of criminal offenses continue to be tried under the common law system by magistrates’ or High Courts, which operate in parallel with the Shari’a courts.  A third type of court, customary courts, also deal with cases of non-Muslims in the south, as well as in Kaduna State. At the level of state governments, the state attorney general is responsible for the operation of both the common law and Shari’a systems in the state; there is also a Shari’a section in each state ministry of justice. 

Most of the twelve northern states have adopted a Shari’a penal code and a Shari’a code of criminal procedure, based, in most cases, on that of Zamfara State.  Some, such as Niger State, have opted to amend existing legislation to make it comply with Shari’a and have not introduced a separate Shari’a penal code or code of criminal procedure.²⁰  There is still considerable confusion about which legislation is in force in the northern states, even among judges, academics, and other people described as Shari’a “experts.”  In any event, there is an overlap between the Penal Code for Northern Nigeria and the Shari’a laws, as the Penal Code includes elements of Islamic law and provided the basis for whole sections of the Shari’a penal codes.  However, there are some critical differences. In particular, the Shari’a codes contain provisions for death by stoning and amputations which were not included in the Penal Code.

In most cases, the Shari’a legislation was rushed through in a hurried and incomplete way. A human rights activist and lawyer told Human Rights Watch:  “Advocates of Shari’a wrote the laws in a few weeks.  The authors knew they were imperfect but rushed them through for political reasons.  Now they are gradually reviewing them […] They wanted to precipitate a fait accompli.” ²¹ The former area courts were renamed Shari’a courts and judges who only had experience in personal status law matters were suddenly expected to hear criminal cases and, in the most serious instances, to try offenses punishable with death.  They were thrown into this role with very little training or background, with the result that many judgments handed down contained serious errors of procedure.  Judgments were inconsistent and based on vastly different interpretations of the law.  Even lawyers and academic scholars who had specialized in studying Shari’a offered significantly different interpretations of the new legislation.   Not only were the new Shari’a penal codes imperfect and inconsistent, but some of them referred to prescriptions within Islam which were not codified in the new laws but were nevertheless expected to be enforced.  For example, several states’ Shari’a penal codes refer to offenses which are not specified in the Shari’a penal codes themselves but are punishable by imprisonment, flogging or fines.²²

The general population was even less well-prepared for the introduction of an entirely new legal system, and ill-informed about the procedures and about their rights.  Ordinary people have found it very difficult to challenge decisions of the Shari’a courts, especially as judicial officials, religious officials and others have often portrayed these as the decisions of God rather than the decisions of judges―a view which has discouraged many from openly questioning the outcome of trials.   Many Muslims who are in favor of Shari’a but critical of the manner in which it was introduced highlighted the failure of state government authorities to raise awareness and educate the population before introducing the system.²³ 

Following the introduction of the new Shari’a legislation, most state governments set up structures and groups to ensure the implementation of Shari’a.  These structures included Shari’a implementation committees and groups known as hisbah, whose main role was to ensure observance of Shari’a among the population and to report any breaches.  The creation of the hisbah was popular in some quarters because of a deep distrust in the Nigerian federal police force, both among the general public and among state politicians.²⁴  In several states, the hisbah have been used to carry out arrests, for example in cases of suspected adultery or fornication, consumption of alcohol and other offenses.   As described in this report, members of the hisbah have been responsible for a range of human rights abuses in the course of enforcing Shari’a, especially in the one to two years after they were set up. 

Shari’a has been applied inconsistently across the twelve states. The enthusiasm with which it has been enforced, both by the courts and by the hisbah and other implementation groups, has also varied greatly, depending on the religious make-up of the state and, to some extent, on the political whims of state governors.   At the one end of the spectrum, Zamfara State has applied it the most strictly, although even there, the fervor has eased off since it was first introduced.  At the other end of the spectrum, Kaduna State, where about half the population of the state are Christians and where the prospect of the introduction of Shari’a led to massive riots and killings in 2000,²⁵ few criminal cases have been brought before the Shari’a courts, and with one or two exceptions, harsh corporal sentences have not been passed.  A human rights activist and academic in Kaduna told Human Rights Watch in mid-2003:  “In Kaduna, the Shari’a courts are there but they are as good as not there.  There has been no serious case since the [2000 and 2002] riots.  They deal more with domestic cases.”²⁶ A lawyer in Kaduna also said: “Generally, it is as if there is no Shari’a in Kaduna.”²⁷ Kaduna is divided into “Shari’a-compliant” and “non Shari’a-compliant” areas;  residents of the former, predominantly Muslim areas, are expected to comply with the requirements of Shari’a, whereas those of the predominantly non-Muslim or mixed areas are not.  However, residents of Shari’a-compliant areas can simply cross over into a non-Shari’a compliant area, where they can buy and consume alcohol and where prostitution is common, then return to the Shari’a areas without any consequences.  In the words of a human rights activist in Kaduna:  “Shari’a in Kaduna exists in one street but not in another.” ²⁸ 

To a lesser extent, a similar situation has prevailed in Kano, at least in the state capital.  While predominantly Muslim, Kano State has a significant minority of other groups.  Alcohol has been sold openly in some areas, for example in the area known as Sabon Gari which is populated mostly by people who are neither Muslims nor northerners.  However, in May 2004, it was reported that a new law outlawing the consumption of alcohol throughout Kano State, even for Christians, had been passed by the Kano State house of assembly.   Even in states such as Zamfara, certain areas are designated as exempt from Shari’a.  These are mainly areas or institutions under the control of federal authorities, such as military compounds.  In these areas, alcohol is consumed liberally and openly, including by Muslims.  They are only liable to be arrested if caught drinking alcohol outside these specific areas.

Shari’a courts and appeal procedures

There are three types of Shari’a courts dealing with criminal cases at state level.  The lower and upper Shari’a courts (of which there are several in each state) hear cases in the first instance.  Upper Shari’a courts also have appellate jurisdiction and are able to hear appeals from cases tried in the lower Shari’a courts.  Each state then has its own Shari’a court of appeal, which hears appeals on cases tried by the upper Shari’a courts.  Only one judge sits in the lower and upper Shari’a courts—a cause for concern in the case of crimes which carry sentences such as the death penalty or amputations.  Between three and five senior judges sit at the Shari’a state court of appeal; these judges are generally more experienced than those sitting in the upper and lower courts.

After being sentenced by the upper or lower Shari’a court, the defendant is given a thirty day period in which to appeal.  In practice, a number of appeals which were filed after the thirty day period had elapsed have been accepted.

Once defendants have exhausted their avenues for appeal within the state, and if the Shari’a court of appeal has confirmed the sentence, they can then appeal to the Federal Court of Appeal, and ultimately to the Supreme Court.   These are both federal institutions and are not Shari’a courts, although they have jurisdiction to hear appeals from Shari’a courts and their appeal panels are supposed to include judges with expertise and knowledge of Shari’a.   Some advocates of Shari’a have complained about the absence of a specialized Shari’a court of appeal at the federal level, arguing that the judges of the Federal Court of Appeal and Supreme Court are not well-versed in Shari’a;  some also fear, perhaps, that these institutions are too close to the federal government, and therefore likely to be opposed to Shari’a. 

If a death sentence or amputation is confirmed by a state’s Shari’a court of appeal and the defendant chooses not to appeal to the Federal Court of Appeal, the state governor must personally authorize the execution of the punishment before it can take place, or can choose to pardon the convicted person.

At the time of writing, no death penalty cases tried under Shari’a have yet reached the Federal Court of Appeal or the Supreme Court.  Only one amputation sentence is known to have reached the level of the Federal Court of Appeal:  that of Yahaya Kakale, from Kebbi State, described in this report.   This will be a test case and, depending on the outcome of the appeal, could set an important precedent for other cases.  Lawyers are hoping that this case, and any other Shari’a case which reaches the federal level, will force consideration of the broader question of the constitutionality of Shari’a (see below).  Should the Federal Court of Appeal or the Supreme Court rule that the Shari’a court did not have the jurisdiction to hear criminal cases under the constitution, this and potentially all other cases could be thrown out, leading to the collapse of the whole basis of the Shari’a criminal system in its current form.

To date, lawyers preparing the grounds for appeals in Shari’a cases have concentrated on technical and procedural matters.  Some of these grounds have been accepted by the Shari’a state courts of appeal who have ruled in favor of the defendants on the basis of these procedural points.  Most lawyers have so far shied away from challenging the jurisdiction of the Shari’a courts and their constitutional right to try criminal cases, so no court of appeal has yet had to rule on these issues.

The role of the “ulama”

In parallel with the formal Shari’a court system, the ulama, or Islamic scholars, play a key role in some of the critical decisions in Shari’a criminal cases.  In some cases, they may have the power of life and death over the defendant.  The ulama, who play an influential role in social and political life in northern Nigeria, are consulted for advice and guidance by a number of actors, including Shari’a court judges and state governors.  In the absence of any thorough training (see Section VII of this report), Shari’a court judges often refer to the ulama for advice if they are uncertain about the appropriate course of action.  State governors also seek their advice on specific cases and expect to be guided by this advice, particularly on cases of amputation and death sentences where the ulama advise the governors on whether to confirm or commute the sentences. The advice provided by the ulama is not based on clearly formulated criteria, nor is it governed by any legislation or recognized regulatory framework.  The lack of definition of the ulama’s role and the lack of transparency about their decisions also favor corruption.  A human rights activist told Human Rights Watch:  “The role of the ulama varies.  It depends on who pays them the best.”²⁹

Choice of courts

As indicated above, three different legal systems operate in parallel in Nigeria:  the common law system (magistrates’ and High Courts), Shari’a, and customary law.  In principle, cases against Muslims are normally brought before Shari’a courts, but in practice, there is some discretion, and apparently arbitrary decisions have been made as to which courts should handle which cases.  Corruption is widespread within the judicial system, and there are often no objective or consistent reasons why certain cases are brought before a Shari’a court or a magistrates’ court.  Defendants are rarely able to challenge the choice of system, yet the consequences in terms of sentencing could be severe.   For example, Mohammed Bala, in Kano State, was accused of theft on two separate occasions, in 2002 and 2003.  He was tried on the first occasion by a Shari’a court and on the second occasion by a magistrates’ court. The Shari’a court sentenced him to amputation, while the magistrates’ court sentenced him to eighteen months’ imprisonment, or a 5,000 naira fine.  The reason for the different choice of courts was not known to the defendant.³⁰  In Birnin Kudu, Jigawa State, in around early 2002, several men accused of gang-raping a young girl were tried under the common law system. It was reported that the defendants’ relatives, who were influential in the society, had persuaded the judicial authorities not to try them in a Shari’a court, even though all the defendants were Muslims.³¹ 

A number of defendants who were sentenced to amputation have alleged that police and judicial officials were bribed or otherwise pressured to take their cases before Shari’a courts.  For example, Altine Mohammed, accused of theft in 2001 in Birnin Kebbi, Kebbi State, was initially taken to a magistrates’ court; he pleaded not guilty and was sent on remand for two weeks.  However, the grand kadi (judge), who owned the items he was accused of stealing, reportedly requested that the case be transferred to the Shari’a court.  Altine Mohammed witnessed the grand kadi’s messenger talking to a policeman from the Criminal Investigation Department at the magistrates’ court.  When he asked the policeman why his case was being transferred to a Shari’a court, the policeman said he would not tell him anything more unless he gave him 3,000 naira.  The case was transferred to the Shari’a court.  During the trial there, the grand kadi’s messenger was one of the witnesses, even though he had not seen Altine Mohammed stealing the items and told the court that he did not know him.³²  Altine Mohammed was sentenced to amputation by the Upper Shari’a Court 1, Birnin Kebbi, on July 25, 2001.

According to a lawyer in Kaduna State, the state attorney general decides which type of court should hear a case if the case is especially serious or controversial, or if it is a “capital offense.”³³  He explained that the state attorney general’s decision as to which type of court should hear a case is entirely at his own discretion.³⁴ In other cases, the decision is taken by the state commissioner of police. While Christians can refuse to be tried by a Shari’a court, Muslims cannot.  The reasons for the decisions are not always clearly articulated.  For example, while a number of murder cases involving Muslim defendants have been brought before Shari’a courts, others have been brought before magistrates’ courts.   Furthermore, as indicated in this report, the police are often susceptible to pressure and corruption, and in practice, the decision to take a case to a particular type of court is often made at the lower levels of the judiciary.

In Zamfara State, however, in October 2002, a separate law was passed removing the criminal jurisdiction of magistrates’ courts to try offenses committed by Muslims, thus confirming the absence of choice for all Muslim defendants:  “[…] magistrates courts of whatever grade shall cease to have jurisdiction to try any criminal offence where the accused or all the accused persons profess the Islamic faith.”³⁵  The law, initiated by the governor, was passed by the state house of assembly without much debate or controversy.  As a result of this law, all cases involving Muslims were transferred from the magistrates’ courts to the Shari’a courts in Zamfara State.