Three Papers presented at the International Conference on Sharia, held at the Commonwealth Institute, London, 14 April 2001, organised by the Nigerian Muslim Forum UK
- The History of Sharia in Nigeria and Dynamics of its Restoration Ibraheem Sulaiman
- Sharia, Federalism and Nigerian Constitution Dr Muhammed Tabiu, MFR
- Benefits of sharia and the Challenges of Reclaiming a Heritage Prof. Auwalu Hamisu Yadudu
The History of Sharia in Nigeria and Dynamics of its Restoration
Paper delivered by Dr. Ibraheem Sulaiman at the International Conference on Sharia, held at the Commonwealth Institute, London, 14 April 2001, organised by the Nigerian Muslim Forum UK
Northern Nigeria was viewed by the British Colonial Empire as belonging to “peculiar circumstances.” The term betrayed a profound sense of consternation and frustration felt by the colonial power in its policies towards Sharia. The colonial power had to contend with two realities. First of all, there was nowhere in the world, outside Arabia, where the Sharia was more extensively applied than in northern Nigeria. Secondly, in spite of six decades of colonial administration and in a striking contrast to the general expectations that secularization process would definitely and conclusively seal the fate of Sharia, forcing it to wither away, there prevailed everywhere in Northern Nigeria, throughout the colonial era, a zeal for the restoration of the Sharia to its full extent.
These “peculiar circumstances” may be viewed in the context of this presentation, from two perspectives. On the one hand, they bear a clear testimony to the tremendous efforts done and sacrifices made by various generations of Muslims in the course of more than one thousand years from the time of the Sharia made its presence as a state policy to the last moments before Nigeria’s independence in 1960. Those efforts and sacrifices have together made the Muslim Ummah a going concern, and the Sharia a living reality. On the other hand, the sense of failure felt by the colonial power at the end of its career in northern Nigeria did not in actual fact indicate a desire to surrender; it merely reinforced the resolve of the departing power to intensify its war on the Sharia and ensure the eventual ascendancy of secularization in Nigeria, at all costs. The insistence by the colonial power on the abrogation of hudud in the criminal justice system of Northern Nigeria as a condition for independence is indeed a sign of that resolve; likewise, the assassination of Northern Nigerian leaders in 1966 which cleared the ground in a most definitive way for the unchallenged secularization of Nigeria.
Four decades after independence, Nigeria is having yet again to contend with another set of peculiar circumstances. In a move, so stunning and unexpected, the Sharia emerged on the scene, defying all odds, throwing the whole nation into disarray, turning the political equation upside down, and laying to waste the decades of endeavours aimed at its containment and eventual death. The Sharia is being restored in Nigeria in circumstances that are both challenging and foreboding. The challenge is whether the government, the ulama and the institutions involved in the restoration of the Sharia have the capacity, the willingness and the good sense to meet the expectations of the great masses of the people who have, in total unity and consensus, given their absolute and unconditional loyalty to the Sharia. People nurse the hope that the restoration of the Sharia would bring about the right atmosphere for life, property and honour, a sustained improvement and a steady development of the human character, a sustained increase in prosperity and well-being, an utmost respect for and enforcement of rights, and a more diligent observance of due respect and care for womanhood. People expect Islam to grow in strength and influence and frontiers. Above all, they expect to see an environment that fosters goodness, even to whatsoever, whether of psychological, moral or emotional nature, but may obey and reconcile themselves with their Creator with utmost ease. In short, people have given their support in anticipation of a better society, a better human being and the good life.
The cost of failure in meeting these expectations would indeed be extremely high. Hence the sense of foreboding. While the sense of optimism must be sustained in order to keep the spirit high, there must be at the same time a realistic appreciation of the enormity of the task ahead and the problems that are bound to be encountered. The Sharia is here with us today not by mere accident but by the efforts of our forbearers. They toiled and laboured and made sacrifices. When occasion demanded, they laid down their lives. It may not be totally out of place to argue that the present generation of Muslims are merely reaping the fruits of the labours of others. The great scholars of yester years who denied themselves the comfort of this life in order to raise a community worthy of Islam; the rulers who toiled relentlessly to create the proper environments for Islam and ensured the ascendancy of Islam and the millions of ordinary men and women who answered the call of Islam with their sweat and blood. Together, they built the Muslim Ummah. It is really hard to say to what extent we can claim to be their worthy successor. It is even harder to imagine to what extent we are in a position to bear the trust of Islam.
But even where the will to succeed does exist, the prevailing realities of the Nigerian State do pose a problem. To start with, the track record of the Muslim Ummah tends to suggest a recurrent failure of nerves in the face of strong opposition or severe hardship as well as a general lack of stamina, resilience and consistency in the pursuit of set goals and objectives. Strategy and a sense of the future are never part of its being. But inertia is. Can Sharia process be sustained? The real cause for worry, however, stems from the structure of the Nigerian State itself. Nigeria is a shared environment. Communities, which together constitute Nigeria do each claim equal stake. In such an uncoordinated convergence of interest hardly can a consensus be achieved regarding direction or goals. Moreover, Nigeria today suffers from serious, if not fatal constraints of economic nature, even to the extent that its economic sovereignty is often shared with such organisations as International Monetary Fund and the World Bank. Where economic sovereignty is compromised, the well-being of the people is invariably devalued. This may perhaps explain the terrible distortions in the life of the Nigerian people: in the midst of extreme affluence, poverty remains pervasive and consolidated.
The Muslim Ummah is the immediate and natural constituency of the Sharia. Whether the on-going process of Sharia restoration succeeds or fails will ultimately depends on the Muslims. There is perhaps no doubt about the strength of the Muslim Ummah in Nigeria. Its Islamic credentials are solid and impeccable, being the outcome of an experience of a whole millennium. The Sharia has been implemented before, by states and empires consciously created by this Ummah for that purpose, not once, not twice, but several times over. The Ummah is usually credited as being patient and calculating, flexible and accommodating. Its political credentials are often considered to be impressive. And, above all, its loyalty to Islam has remained firm and unshakeable. But this Ummah has its weaknesses. Some of these weaknesses are quite profound and may affect the eventual outcome of the Sharia process. For instance, to the average Muslim his vote is casual, almost cynical, possession with only a transient value, unrelated to the integrity of his faith and his destiny, therefore, it can be dispensed anyhow, for good or for evil, as it suits his fancy. Yet until democracy is taken seriously by the entire Muslim Ummah and every vote is considered as a vital number in the building blocks of the collective Muslim destiny, only then can there be an assurance that Sharia process has come to stay.
But the heart of the predicament of the Muslim Ummah is its near total absence in the realm of knowledge. Put starkly, the Muslim Ummah in Nigeria is engulfed by ignorance. As a result, the Ummah lags behind in virtually every field of human endeavour. Consigned to the fringes of life, it is, of all sections of Nigeria, the most vulnerable to poverty and oppression. The worst form of poverty is the poverty of knowledge. The worst form of oppression is ignorance. It is really amazing that after centuries of Islam, illiteracy and ignorance not only persist but also are pervasive. But as long as the community remains poor in knowledge, it will continue to be marginalized in the general scheme of things and unable to take care of itself. No society can conquer poverty unless it first conquers ignorance, and there can be no forward movement for a society as long as it denies itself the benefits of knowledge.
The evolution of learned society is, therefore, imperative. It is the only environment in which the Sharia can flourish; it is the only environment that can foster prosperity. Islam presupposes that every Muslim is literate, able to “read” the Qur’an as Allah has commanded in His first revelation to His Messenger. Literacy is thus the only reliable access to the Qur’an. The Sharia implies the knowledge of Allah’s revelation, the knowledge of Allah’s Creation, the knowledge of Allah’s will and how that will can be translated into a system of law, a system of government and a way of life. Nowhere in the entire scheme of Islam is ignorance countenanced as a feature of Muslim existence. It becomes necessary to remind the governments in the so-called Sharia states of the task before them in this regard. Illiteracy must be eliminated in the shortest possible time. Education must be compulsory for every child. Access to knowledge must be available and affordable to all, irrespective of age. The cost of evolving and nurturing a learned society is, admittedly, quite enormous, if not prohibitive. But is there any alternative?
The Subject Matter
This presentation has so far highlighted some of the problems that are likely to be encountered in the Sharia process. In particular, attention is focused on two problems which are likely to undermine the process from the root. Nigeria’s weak control over its economy – apart from the decaying state of the economy itself – represents a clear danger to the realisation of the one of the fundamental objectives of the Sharia, the good life. The other danger is far more profound. It relates to the internal weakness of the Muslim Ummah as the poorest in terms of knowledge. The Ummah’s weakness in scientific and technical skills and competence has rendered it incapable of competing with the others in the race for control and supremacy. Worst of all, it has made it vulnerable even to the worst kind of blackmail. The proponents of the ongoing agitation for resource control argue that oil is the only precious resource Nigeria did and can ever possess. Nigeria, according to this logic, is oil. There are unfortunately, indications to suggest that some influential Muslims are beginning to succumb to this blackmail. They lament the lack of oil in the North and are overcome by self-pity and despair. They live in a world of fiction and illusion, for oil is never a critical factor in the economic or scientific development of nations nor in their prosperity. The only critical factor is the human intellect. Human resource is what counts ultimately in the determination of a nation’s wellbeing and its place in the world. It is the intellect that turns oil into a valuable asset, converts sun’s light into useable energy, identifies and produces the food that can nourish life, creates facilities for the convenience of life and sustains the world as a whole. This is what the Muslim Ummah possesses absolute abundance, over and above all other sections of Nigeria – teeming millions of human beings, millions upon millions of human intellect. The tragedy of the Muslim Ummah is that it has refused and failed to develop its huge resource of intellect and thereby restricts itself to the periphery of human existence.
Attention must be focused on those two problems, along with the others mentioned in the presentation, as efforts continue to implement the Sharia in Nigeria. But the key to success lies in how ultimately the Sharia itself is nurtured and applied. What is being done so far is a mere restoration of the corpus of laws and regulations developed several centuries ago. Law, to be effective and relevant, must be a continuous evolution. Therefore, mere restoration of Sharia is not enough, and will never serve any purpose. A process of construction of any system of law similar to the one undertaken by the founders of the early schools of law is the least that can be expected of the Ummah. Any attempt to evade this responsibility by hiding behind the schools of law will fail. This is a different age, a different society and a different world. A different legal process responsive to the peculiarities and unique characteristics of this age, this society and this strange world is an absolute and inescapable necessity. The founders of the schools were merely performing their duties to their society. They never intended to solve the problems of generations yet to come, of which they know nothing, neither did they ever claim that the results of their output were valid for all time. We have to do our duty to our society and our time. While we build on their legacy there must be a recognition that the eventual outcome of our work may almost amount to a new invention, not a replica.
The process of construction should take several factors into consideration. First of all, it should recognise that the thrust of the Sharia is to facilitate life and not to create hardship; to forgive and not to punish; to pull people together by persuasion and conviction for self-development and purification and not to scare by coercion and force; and to appreciate and accommodate man’s moral weakness and not to ignore it. Secondly, sources of Islamic Law, as formulated by the early scholars must be expanded to include the cumulative scientific knowledge acquired over the ages. Science must be a source of Islamic Law. Thirdly, the totality of human experience in the fields of government, economy, human management and legal process must be taken into account. There is no need to reinvent the wheel. There can be no doubt that a lot of progress has been recorded in several areas of governance and human management in other parts of the world. Accountability and transparency in government, a system of checks and balances in governance, efficiency and order in human management, system of social security and general human welfare, the care and compassion for the weak and vulnerable, health services delivery, independence of the judiciary, observance and enforcement of human rights, and sanctity of the electoral process, are some aspects of progress which can be incorporated as essential components of the Sharia. Finally, there must be a recognition of the fact that the Sharia is first and foremost an idea, even before it is law. The Sharia is a scholarly and intellectual process, liable to continuous growth and evolution. The scholarly and intellectual dimension of the Sharia requires a much greater effort than the drive for its implementation.
Sharia, Federalism and Nigerian Constitution
Paper delivered by Dr Muhammed Tabiu, MFR, at the International Conference on Sharia, London, 14 April 2001
I thank the Nigeria Muslim Forum UK for inviting me, and commend their foresight in organizing this Conference on Sharia, choosing a theme that is so apt and timely: Restoration of Sharia in Nigeria: Challenges and Benefits.
Nowadays, discussion on the Sharia among Muslims in Nigeria often takes two divergent and not very fruitful trends. It is either euphoria in celebrating what has been achieved or lamentation over the failure to produce all the desired results. I think there is need for an occasion to look at the situation more soberly, with the following purposes in mind:
a. To define more clearly the goals being pursued;
b. To objectively assess what has been achieved;
c. To look realistically at the opportunities and challenges ahead, and reflect on what more to do.
I am convinced from the theme of this conference that these are the purposes that brought us here.
The Organisers have asked me to speak on Sharia, Federalism and the Nigerian constitution. In order to align my presentation to the objectives I have outlined above, I want to focus on the growth and flourishing of the Sharia, by taking up the question of how far federalism under the Nigerian constitution provides a suitable framework for the Sharia to grow and flourish. The importance of this question lies in what I understand to be the goals and aspirations of Nigerian Muslims regarding the Sharia.
Goals of Sharia Reforms
Starting with the initiative of Zamfara State, under the leadership of Governor Alhaji Ahmed Sani, Yariman Bakura, some Muslim states in the country have embarked on a transformation of their legal system in conformity with the Sharia. They have revised their penal laws to introduce hudud and qisas provisions, which apply more stern punishments for major crimes. They have reorganized their judiciaries to create purely Sharia courts. They have also declared other policies aimed at expanding the role of Sharia in cleansing society and establishing social justice, such as organizing Zakah collection and distribution, banning begging, rehabilitating the destitute and prostitutes, and improving education.
By committing themselves to undertake reforms to enhance the Sharia, the Muslim leaders in these states are not engaged in a mere political exercise for its own sake. Rather they are pursuing some significant religious and social goals that are the collective aspiration of Nigerian Muslims.
Through the implementation of Sharia, Muslims in these states want to discharge their religious obligation as true believers by enabling the law of God to govern their lives. They want to enjoy the goodwill, peace and progress that obedience to God engenders. They want to rehabilitate their society from its present state of corruption, widespread crime and social neglect. They want to do away with the resultant inefficiency, backwardness and social dislocation.
To achieve this social reform they have begun a process of reinstating the Sharia to its pristine status as the law of Muslim lands, which it enjoyed in this part of the world before the British conquest and the imposition of British colonial rule at the beginning of the 20th Century. They want the Sharia to be once again self-sufficient, assertive and autonomous, giving leadership and guidance in transforming a degenerate society in the modern times as it did in the past in Hausaland of the 19th Century. The Muslim society wants to enjoy yet again the morally edifying values of the Sharia, which act as a bulwark against corruption, crime and social inequity.
Now for Muslims to achieve these goals there must be a suitable and conducive political framework. There must be a political arrangement that allows opportunity for the Sharia to take root, grow and flourish. Our question is: do the current political arrangements, based on a federal constitution, provide this opportunity?
2. The Federal Principle
As a principle of organizing government federalism seems to provide an ideal arrangement for the kind of unity in diversity, and local autonomy within a framework of national cohesion, which Muslims need in order to realize their religious and social aspirations. Federalism provides a constitutional arrangement which shares power and resources among different levels of government, that is the central and regional governments, enabling each government to exist separately and free from interference by the other, and to operate directly on persons and property within its territory. Federal arrangements give the central government authority over matters of common concern such as defence, foreign affairs, currency and major roads, while regional or state governments take care of matters of local concern, and the two levels of government concurrently administer matters of both national and local importance.
According to Professor B. O. Nwabueze, modern federalism, which originated in the constitution of the United States, is recognized as an ideal method of organizing government in a country that has extensive land size and a population of diverse nationalities, such as Nigeria. Through federalism, ‘the differing interests and circumstances of the component groups are accommodated while at the same time securing the peace and stability of the country and its survival against the forces of division and conflict inherent in the heterogeneous nature of the society.’
Federalism therefore allows scope for each of the constituent groups to retain and enhance its institutions, traditions and practices and to pursue its local interests and aspiration within the national framework, while at the same time participating with the other component groups in matters of common interest and concern.
Muslim identity in Nigeria
By religion, history and culture, and on account of holding a set of common aspirations, Muslims in Nigeria form a distinct group. Although in Nigeria individuals claim a variety of concurrent identities, ethnic, religious and regional, for most Muslims the Islamic identity is paramount. This is of course in line with the demand of the Islamic faith that believers constitute a single umma, subsuming and standing above all divisions.
The assertion of Islamic identity is however more pronounced among Muslims in the North, essentially because the religious identity is supported and consolidated by common geographical location, political background and historical experience.
Islam, and by extension the Sharia, is one of the dominant elements which have woven themselves together to constitute the North’s distinct identity. In taking the decision in the 1950s to introduce the Federal system as solution to the problem of coexistence among Nigerian groups an important consideration of the British colonial government was the need to avoid conflict and friction by allowing sufficient autonomy to the constituent political units to pursue their various local interests. For Muslims in the North sustaining the Islamic cultural identity was an important reason for choosing federalism. The opportunity to organize their local affairs in accordance with the teachings of the Sharia was in the forefront of considerations for subscribing to federalism. For two reasons the Sharia occupies a prime position as a collective concern of Nigerian Muslims.
The first is the well-known fact that implementing the Sharia to realise its inherent benefits is the dominant aspiration of all true believers. Described as ‘the core and kernel of Islam’, the Sharia is at one and the same time a legal system, code of ethics, a symbol of national identity and a unifying ideal. It is essentially God’s law, offering guidance to humanity in all aspects of life, embodying rules of personal ethics and morality, a scheme of political organization, a programme of social justice, and guidelines for spiritual advancement. In its various roles, the Sharia occupies a central position in Muslim life, religion and culture.
The second reason is the important place that the Sharia occupies in the Nigerian Muslims’ historical experience. Let me explain this point more clearly.
3. Sharia in Nigerian History
The Sharia as a methodology of positive social change, and the way in which it was subverted by colonialism, are facts deeply embedded in the Nigerian Muslims’ historical memory. In the North up to the end of the 19th century, when the British imposed their colonial rule, the Sharia was entrenched as the dominant legal and political order. The Sharia came to occupy this position through its proven efficacy as in social transformation and promotion of social justice, which it achieved through the Sokoto Jihad.
When the British conquered their lands at the beginning of the 20th Century and imposed colonial rule, the Muslims naturally entertained considerable apprehensions about the dangers to which their religion and way of life were exposed. Their determination to preserve Islam and the Sharia motivated to a large measure the resistance to British colonial rule, in the various manifestations of this resistance.
The British colonial rulers were fully aware of the religious concerns which motivated resistance, and the extent and level of Muslim conviction in the Sharia and its institutions. They easily recognized what a serious obstacle this was to their colonial designs, which were not limited to physical conquest but extended to bringing the conquered people under their cultural hegemony. Towards the Sharia they at first pursued a cautious policy of accommodation, reassuring Muslims of their commitment to preserve Islamic religious institutions. Lord Fredrick Lugard, the first British High Commissioner of Northern Nigeria, pledged the commitment of the colonial government not to interfere with Islam, and undertook to ‘uphold the power of the native courts to deal with native cases according to the law and custom of the country.’ The Muslims understood this undertaking to include the retention and preservation of the Islamic judicial system. They have interpreted all subsequent interferences with the Sharia as a breach of the British pledge.
Meanwhile, the system of indirect rule, which Lord Fredrick Lugard introduced in the early years of British colonialism, went along way in dousing agitations motivated by Muslim religious concerns. Muslim political institutions were at least symbolically retained in the form of the Emirs and their councils. The judicial aspect of indirect rule reorganised and preserved the pre-existing system of indigenous courts, made up mainly of Emirs’ courts and Alkali courts, along with customary tribunals. The Emir and Alkali courts administered the Sharia, subject to the restriction imposed by colonial legislation that they could not apply punishments involving mutilation or torture or which the British considered to be ‘repugnant to natural justice and humanity’. These indigenous courts worked parallel with the superimposed British courts system consisting of the Supreme Court and Provincial Courts.
Lugard found the Alkalai to be men of considerable learning and experience. Their courts competed favourably with the British courts and were preferred by the local population. The colonial reports extolled their incorruptibility and efficient handing of cases.
The Sharia was largely preserved in its judicial institutions, and acknowledged as a symbol of Muslim cultural identity. It was an obstacle to the European cultural hegemony. The British, fully aware of this role of the Sharia, were keen on its control and subjugation. But a frontal attack on the Sharia and its institutions would be ill-advised. British policy therefore resorted to a gradual process of transformation and subjugation. A cardinal arm of this policy was the subordination and secularisation of Sharia courts, for which two strategies appear to have been employed.
First colonial designs on the Sharia worked on the Sharia courts: the Emir and Alkali courts. The colonial rulers aimed to convert these courts into secular colonial courts by weaning them over from the application of Islamic law, secularising their personnel, laws and procedures, and removing their Islamic identity. Sharia courts were expected to gradually imbibe, adopt and assimilate the colonial laws and procedures based on the English law. Through the supervision and tutoring of colonial officers, English law and legal methods were expected to replace Islamic law in these courts.
Secondly, colonial policy aimed to place the administration of the Sharia firmly under the control and supervision of the British colonial courts. The process started cautiously in 1933, and gradually took a more open and determined trend.
This two-pronged policy against the Sharia was devastating in its success. It achieved its two aimed results. The measures taken undermined the prestige, efficiency and credibility that the Sharia courts hitherto enjoyed. The Alkali courts were debased and demoralized to the extent that at a certain stage many learned and respectable persons avoided being appointed judges. The level of demoralization may be assessed by the fact that while in the earlier years the Emirs and Alkalai insisted on preserving the purity of Sharia courts and stood resolutely against the intrusion of English law into their courts, by the end of colonial rule that resistance had been fully broken. When the Penal Code and Criminal Procedure Codes were introduced to replace the Islamic criminal law, Emirs and Alkalai were readily recruited and trained to provide the principal manpower for enforcing these codes. It was not long afterwards that the British colonial policy, which survived independence, reached its ultimate success when in 1977, discredited for their partisan political and corrupt roles, the Emirs’ courts were abolished and the Alkali courts were transformed into Area courts.
Furthermore colonial policy achieved the total subordination of the Sharia to the appellate and supervisory powers of the British-type courts. Judges of these courts assumed power as the final arbiters on all questions of Islamic law. They have become the ultimate judge not only of where, when and to whom Islamic law applies, but also how to interpret its rules. Instances abound to show how avidly these powers have been misused to whittle down the jurisdiction of Sharia courts, to constrain the application of the Sharia, and even quite often to distort its rules.
Muslim Struggle for Sharia
Nigerian Muslims have never openly or silently accepted the triumph of colonial policy in undermining the Sharia and subordinating its judicial system.
The changes introduced at independence in 1960 to displace a substantial part of Islamic law were not with the free consent of the Muslim umma. The British colonial masters placed the political leaders of the North under great political pressure to accept the Penal and Criminal Procedure codes, which replaced Islamic criminal law. It was borne on the political leaders that the proposed reform of the legal system was necessary ‘if the self-governing region was to fulfil its role in the federation of Nigeria and command respect among the nations of the world’, and that refusal to carry out the changes ‘was bound to jeopardize the region’s commercial and industrial interests financed by capital from abroad’. Furthermore the British Government placed the NPC ruling party under pressure from other political parties by making the achievement of independence conditional on introducing the legal and judicial changes.
In all subsequent occasions of drafting or approving a constitution for the country Muslims have voiced their aspirations to see the Sharia reinstated in the areas from which it was displaced. This was the case in the 1977/78 debates that preceded the 1979 Constitution and subsequently. This shows the persistent struggle of Muslims to reverse the success of the colonial policy and to remove restrictions that impede the meaningful administration of the Sharia.
The recent efforts in Zamfara and other states, supported overwhelmingly by the Muslim umma all over the country, are but further, and in this case more productive, manifestation of the Muslim struggle.
It is the principle of federalism under the 1999 Constitution that Zamfara and other states have pleaded in justification of their action. But the opponents of the Sharia reforms, consisting principally of the Christian establishment and the Southwest press, who mounted a huge campaign against the Sharia, have strenuously argued that the Sharia reforms violate the 1999 Constitution.
4. The Sharia Under the 1999 Federal Constitution
We have observed earlier the kind of opportunity for local initiatives and accommodation of local peculiarities that federalism as a universal principle offers, and noted how favourable and conducive that is to Muslim aspirations on the implementation of the Sharia. In assessing how far our federalism accommodates the Sharia we now need to get down to examining federalism as it is provided for and operates in Nigeria. Let us do that by asking the following questions:
a. Does federalism as entrenched in the 1999 Constitution accommodate the current changes that Zamfara and other States have introduced in favour of the Sharia?
b. Supposing it does, is our federalism sufficiently flexible to provide the enabling environment for the Sharia to take full root, grow and flourish in the society?
In arguing that the Sharia reforms violated the 1999 Constitution, the opponents of the Sharia reforms have relied on the following arguments.
i. They question the constitutional power of Zamfara and other stated to enact the laws that introduce Sharia criminal laws and created Sharia courts;
ii. They argue that the constitution limits the Sharia to personal status and expanding it to criminal law violates the constitution;
iii. They claim that Nigeria is a secular state and enacting laws based on religion by the States in question violated section 10 of the constitution on which they say our secular status is founded.
Let us examine their arguments.
(i) State Legislative Power to Enact Sharia laws
The first issue goes directly to the nature of our federal arrangement. Does the legislative power of the states under the 1999 constitution allow them to enact these criminal laws based on the Sharia and establish Sharia courts to administer them?
Justice Muhammed Bello, retired Chief Justice of Nigeria, has given a direct and conclusive answer to this question:
‘When the clamour for Sharia began last year, some people rushed to the opinion that a state government lacks the constitutional power to enact Sharia laws in its territory. Let us briefly examine the 1999 constitution of the Federal Republic to see what the legal situation is.
‘Section 4 of the constitution has divided the legislative powers of government between the federation and the states. In its second schedule, it specifies the exclusive legislative list, on which only the federation may make laws, and also the concurrent legislative list, on which both the federation and the states may make laws. In addition it empowers the states to make laws on any other matter not included in the two lists. Sharia falls within the residue and, consequently, a state has the constitutional power to make laws relating to the Sharia.
‘Furthermore, section 6 of the constitution empowers a state to establish courts to exercise jurisdiction on matters with respect to which the House of Assembly of a state may make laws. It is axiomatic, therefore, that a state may establish a Sharia court of first instance. Section 275 specifically empowers any state that requires it to establish its Sharia Court of Appeal to hear appeals from its lower courts.’
This lucid exposition by the learned retired Chief Justice of Nigeria is sufficient to settle the issue and convince any doubting Thomas of the constitutionality of what the States have done.
The opponents of Sharia seem to have been unduly carried away by the fact that the contents of the laws in question originated from the Sharia. But laws sourced from the Sharia as well as laws sourced from Christianity have always formed part of Nigerian legislation, and no one ever said those laws violated the constitution. For example, the Penal Code contains provisions sourced from the Sharia, and the Marriage Act was entirely sourced from Christianity. Both have been part of Nigerian law, applied by Nigerian courts, for the last forty years in the case of the Penal Code and for nearly a hundred years in the case of the Marriage Act.
In granting power of legislation to the federation and the states the constitution does not direct them as to where to source the contents of their laws. The constitution has left the legislature, acting according to the democratic process, to source its laws as its members and the people they represent see fit. To say that Muslim states cannot enact laws sourced from the principles and values of their faith is to contradict all that the power of legislation under a democratic and federal system stands for.
(ii) Alleged Restriction of Sharia to Matters of Personal Status
Those who argue that the Sharia is restricted to the matters of personal status enumerated in section 277 of the Constitution are obviously ignorant of how Islamic law and customary law are administered in Nigeria. Day to day reality in the administration of justice in the country contradicts what they say. The Nigerian courts, from the lowest courts to the Supreme Court, have been administering Islamic laws without any restriction to the items of personal status enumerated in the constitution. From the beginning of British rule to date in Nigeria there has never been a time when the power of courts to apply Islamic law was limited to the so-called items of personal status enumerated in the constitution.
The fact is that the constitution did not enumerate those items in order to set limit to the matters on which Sharia is to apply. The purpose of Section 277 is to define the jurisdiction of the Sharia Court of Appeal. When it was established in 1960 the Sharia Court of Appeal was not meant to take appeals on all cases of Islamic law, and provisions were made for other appeals to go to the High Court. It is the same arrangement that has been retained by the 1999 Constitution. After all it is well known that in our legal system it is not the constitution that directs what laws to apply in particular situations. Rather it is the laws of the federation and the states that do that, each within its competence. In the case of Islamic law it is the High Court laws and the Area Courts laws that define the circumstances and limits of its application in civil matters, while the penal code and now the Sharia penal codes deal with criminal matters.
Opponents of the Sharia laws of Zamfara and the other States claim that these laws violate the secular status of the country under Section 10 of the constitution. What does that Section say? It says: ‘The Government of the Federation or a State shall not adopt any religion as State Religion’.
We can see that the section does not establish their claim that the constitution describes Nigeria as a secular state. In fact the constitution does not use the word secularism or any of its derivatives at all. How then can they build an argument, alleging violation of the constitution, merely on their personal interpretation of such a word of varied and controversial meaning, which is not even in the constitution?
Secondly, if we examine Section 10 in the context of the whole constitution we are forced to conclude that the prohibition of adopting a state religion in that section could by no stretch of imagination have been intended to embrace the setting up of Sharia courts to enforce Sharia laws. This is because the constitution itself does set up such courts. The constitution establishes, for each state that requires it, a Sharia Courts of Appeal and grants the court jurisdiction to hear appeals on Islamic personal law, expressly declaring that this jurisdiction is ‘in addition to such other jurisdiction as may be conferred upon it by the law of the state’. It also empowers the states to establish the lower courts from which appeals will go to the Sharia Courts on Appeal. So how can any one say that setting up a judicial institution, which the Constitution itself does and makes it a duty of the state to do, is a violation of Section 10 of the Constitution? Certainly any one who argues like that must be reading Section 10 wrongly.
5. Creating an Environment for the Growth and Flourishing of Sharia
Federalism under the 1999 Constitution, as seen, accommodates all the legislative reforms that have been introduced to improve the administration of the Sharia. Credit goes to the valiant Muslim men and women who masterminded these reforms, which have enhanced the application of the Sharia. But Muslim aspirations do not stop at introducing these legal reforms which accommodate the Sharia. Muslims wish to see the Sharia take full root, grow and flourish in their society.
Do the current federal constitutional arrangements create the conducive atmosphere and the appropriate framework that will enable Muslims to realize their common aspiration of seeing the Sharia thrive and flourish?
I venture to say that the answer is no. The following two reasons are largely responsible:
a. Our current federal arrangement is overly restrictive and constraining not only on the Sharia issue but also on all issues of local autonomy.
b. The tendency to deny Islam any relevance and to often treat it with hostility at the federal level;
a) Over Restrictive Federalism
An important aspect of the problem of Nigerian federalism lies squarely in the overwhelming dominance of the federal government and the imbalance in the division of powers resulting in the lack of autonomy and scope of action that allows diversity of cultures to flourish and local initiatives to be taken and pursued without unnecessary friction.
In a paper he presented last year, Prof. B.O. Nwabueze, identified the predominance of the federal government as one of the main distortions in our federal arrangement. He said this imbalance contradicted the cardinal principles of federalism ‘which require that the arrangement should not place such predominance of power and resources in the hands of either the national or the regional government as to make it so powerful that it is able to bend the will of the other to its own’.
We can trace the phenomenon of federal dominance to the shift from a federal constitution to what was virtually a unitary constitution that took place under the military. When the Military handed over power they bequeathed us the same overwhelming powers of the federal government and a considerable amount of their Military style in using them.
Prof. Nwabueze listed five areas of alteration in the allocation of power evidencing this shift from the position under the 1960/63 constitutions to that under the 1999 constitution:
1. 16 matters hitherto concurrent to both the federal and regional governments (50% of that concurrent list) are now made exclusive to the federal government;
2. Some of the matters now on the concurrent list are to a large extent in reality exclusive to the federal government;
3. The federal power over taxation of the income and profit of individuals is no longer limited to any defined purposes, while the federal government now enjoys exclusive power over all kinds of trade and commerce;
4. Federal power now extends to certain matters previously exclusive to the regions, such as minimum standard of primary and secondary education, election of stated governors and members of Houses of Assembly, title to land and a considerable aspect of local government;
5. The federal government’s new source of power by the provision authorizing the National Assembly to establish and regulate authorities to promote and enforce observance throughout the country of fundamental objectives and directive principles enshrined in the constitution.
The imbalance engendered by the shift of so much power to the federation has a debilitating effect on the federal system. But for our purpose here it is the adverse effects on the capacity of Muslims to organize their society according to their faith and to enable the Sharia to grow and flourish that is our main concern. These adverse effects arise in the following ways:
(i) Overly Restricted scope of state power: Under the current arrangement, as shown, the overwhelming legislative and executive authority of the Federal government has confined the states to narrow limits. The result of this is first that the Sharia, which relies on state legislation, is constitutionally excluded from many areas of societal life especially in the area of economic policy. Secondly the exclusive legislative power of the federation over some vital areas of administration of justice like the law of evidence means that even where the Sharia applies as the substantive law it may be subjected to adjectival rules that prevent realizing its potential.
(ii) Lack of independent sate judicial system: Our federal constitution is anomalous among federal constitutions in its failure to grant autonomous judicial powers to the states. In the event there is no issue on which state judicial power is autonomous. All decisions of state courts on all matters are subject to appeal to the federal courts. The result of course is that the Sharia courts, which operate only at state level, lack independent power to interpret and apply Islamic law. All their decisions are subject to appeal to federal courts. I have explained above how this situation was deliberately brought about in order to control and direct how to interpret and apply Islamic law. In our present arrangement the Sharia is still subject to this limitation. Is it possible for the Sharia to grow and flourish under an arrangement whereby the final decisions on its application are done in a forum where English legal concepts, legal methods and legal procedures dominate?
(iii) Lack of autonomous power of enforcement: Another anomaly in our federal arrangement is the states’ lack of a police force under their independent control to enforce their laws. Federalism assumes that each government has the power and apparatus to enforce its independent will within its exclusive sphere so as to exercise its authority over persons and territory under its control. But in Nigeria the states lack this power and apparatus. There is only one Police Force recognized by the constitution and that is under the exclusive power of the President. Although a state may enact Sharia or any other laws within its competence, it has to rely on the federal government, which controls the Nigeria Police Force, to enforce its laws. There are a number of problems with this arrangement. First, the federal government has openly shown its opposition to the Sharia laws. How far can its Police Force be relied upon to enforce them? Secondly, How equipped and prepared is the Nigeria Police Force to enforce Sharia laws? Remember the police force is a federal body manned by people of various faiths and backgrounds. Remember that some of the offences under the Sharia Penal Codes had been offences under the Penal Code but were rarely if ever enforced.
(iv) Fragility of state autonomy: the normal arrangement in a federation is that each state has its own constitution, which deals with the organization of its own government. It has exclusive power to make alterations in that constitution affecting the organization of its government. But in Nigeria we have a single constitution. The organization, main institutions and procedures of government for both the federation and the states are defined in that constitution. The result is that a state on its own cannot make any changes in the organs and basic procedure of its own government which are defined in the constitution without resort to the cumbersome procedures of federal constitutional amendment. Muslim states that wish to see their state apparatus organized in conformity with their faith may from time to time come against this obstacle. Furthermore, a state may actually have the organization of its government altered without its consent. With our present federation of 36 states, the requirement of support of 2/3rd majority of state Houses of Assembly for constitutional amendment means that such an amendment may be accomplished against the protest of up to 12 states.
b) Federal Hostility to Islam and Sharia
The recent enhancement of the status of the Sharia, particularly in Zamfara State, drew the ire and adverse reaction of the federal government. This should be a matter of great concern. Top officials of the federal government for instance have spoken adversely on the Sharia issue. Some of the newspapers have reported discussions within the federal government about declaring a state of emergency in Zamfara State and illegally imposing federal rule to suppress the Sharia. In fact the federal government went to the extent of abandoning all pretensions of democracy and constitutionalism by turning the Council of State into a sort of Supreme Military Council whose head could issue orders to state governments directing them to reverse laws which had been duly passed by their Houses of Assembly.
This attitude of the federal government should be of concern to Muslims because of what it portrays of the foundations on which the federation is built. Our federation was built on the colonial dream of hammering out a ‘modern’ secular Western-model nation out of the disparate ethnic groupings that constituted Nigeria. It was a dream that envisaged no role for Islam except that of being the private religious concern of individual Muslims, and no role for the Sharia other than being the law of personal status of Muslims. Our federation was created on this foundation of hostility to Islamic values. That was the colonial dream.
But Muslims today are supposed to be free and equal partners with everybody else in this federation. It is unlikely that they will continue to accept objectives of federal coexistence that are hostile to the fundamentals of their religion.
Muslims therefore would welcome the opportunity for rethinking and reformulating the terms of co-existence –the so-called national question. Certainly an important term of co-existence must be the acceptance of Islam at the national level as no less an equal partner with any other religion and philosophy of life in shaping the collective conscience of our nation.
If Muslims need to make any concessions for national co-existence let it be determined through an open process and let them know clearly the terms of that concession. Let them know what they are conceding and what they are receiving in return. Rebuilding the Nigerian federation on clear terms agreed upon by its constituent units should strengthen rather than weaken our federation and make our unity meaningful and more enduring.
6. Proposal for Constitutional Reform
For the Sharia to grow and flourish we need to reform our federal arrangements in the following ways:
a. Roll back the federal might by cutting down to size the powers of the federal government. We should do this by going back to the legislative lists of the 1963 constitution to restore the disrupted equilibrium. This should go hand in hand with commensurate changes in the manner of distributing revenue from the federation account that would take cognisance of the increase in state power and responsibility.
b. Enabling each state government to have its own constitution, separate from the federal constitution, which provides for the organization of its government according to its peculiar needs.
c. The constitution should define and distinguish the judicial powers of the states in accordance with the legislative lists, and grant autonomy, within these powers to each state in the administration of justice. This means confining the appellate powers of the federal courts to federal matters and important constitutional issues. If Sharia appeals need to go to the federal level, then the constitution should create proper Sharia courts at that level.
d. The constitution should empower the states with the autonomous capacity to enforce their own laws. It should either allow the states to set up their own police forces, or amend the provisions which determine control over the Nigeria Police Force so as to make the states real co-ordinate partners with the federal government.
e. Resolving the latent hostility of the federal government towards Islam and the Sharia through a reformulation of the terms of national coexistence.
The issues I have raised and discussed relate almost exclusively to the provision of a suitable and conducive constitutional framework for the Sharia to take root, grow and flourish in Nigeria. Incidentally they are also necessary conditions for building the federation on an enduring foundation. But there is a lot also that the states need to do, which they have all the powers to do, within the existing constitutional framework to enhance the establishment, nurturing and flourishing of the Sharia. Among these are:
a. Ensuring the efficiency and credibility of the judicial system,
b. Reforming the laws governing the administration of the Sharia in the non-criminal area;
c. Improving the quality and orientation of Islamic legal education to produce efficient and well-educated manpower for implementation of the Sharia,
d. Taking advantage of available knowledge, expertise and accumulated experience in relevant areas of law and administration of justice when enacting and implementing Sharia laws, and
e. Defusing the focus on purely legal issues by giving attention to the connection between the various legal, moral and social concerns that the Sharia as a comprehensive system embraces.
I am sure including these in the scope of discussions will also help in achieving the objectives of the conference. Finally, I again thank Nigeria Muslim Forum, U.K. for inviting me.
Benefits of sharia and the Challenges of Reclaiming a Heritage
Paper delivered by Prof. Auwalu Hamisu Yadudu at the International Conference on Sharia, London, 14 April 2001
Zamfara was one of the six States created in 1996 to bring the total states making the Nigerian federation to 36. Being in the backwaters of the North and excised from the more notable Sokoto State, Zamfara is not only the last on the alphabetical list of these States, it was not known for anything spectacular. Alhaji Ahmad Sani, Yariman Bakura, its first Executive Governor, changed all that. He put Zamfara on the world stage in a grand style. By a momentous event in October 1999, barely four months after assuming the mantle of the leadership of the State, Governor Sani declared his intention to implement the sharia in the State. The crowd which gave him unqualified support was mammoth, never witnessed before in that part of the North and unprecedented in size, diversity (for they came from as far east as Dikwa and as far south-east as Gembu). Encouraged by such a warm and enthusiastic reception of his declaration, he made good his pledge by adopting a penal code that has enshrined Islamic law norms, precepts and injunctions. He reorganized the State judiciary by establishing sharia Courts, in the place of the hitherto anglicized Area Courts, which are clothed with jurisdiction over penal matters. In March 2000, the full brunt of an aspect of Islamic penal law pertaining to theft was brought to bear on a confessed thief of a cow with the amputation of his arm. He has done many other things sanctioned by the sharia in the sphere of social justice, crime prevention and control, education etc.. Many other States in the North have followed his suit with varying degrees of zeal, reach and intensity.
Now that the sharia implementation, adoption or restoration has survived the orders from Abuja for “… a reversion to status quo’, which was in any case largely ignored or derided, even disputed; as more and more States in the North have embraced one version or another of a return to the sharia and; it has been over one year since Zamfara flagged it all off, the organizers of this conference, as indeed many Muslims in Nigeria have begun to, are more than justified to review what challenges have faced the implementing States and the Nigerian Muslims generally and what benefits might have or are likely to accrue to them. It is my job in this address to offer what I consider to be such challenges and benefits. In discharging this role, I intend to discuss what political, constitutional, judicial and psychological challenges Muslims have faced. I shall conclude by highlighting what I consider to be the benefits accruing to them.
Definition of Terms
In order to clear the obvious confusion that has beclouded discourse about what has been happening to the sharia in Nigeria, I would like to clarify terms which I shall use extensively in the essay. In the course of espousing the cause of a return to the sharia over the past one and a half years, Chief Executives of States, individual Muslims and other commentators have used various terms to describe what is happening or what they seek to achieve. As if some form of the sharia legal system had hitherto not been in operation in the North, some Governors established sharia “Implementation” Committees to assist with the attainment of their declared intention. Others, perhaps working under and guided by the same illusions, went even further to declare their intention to “adopt” the sharia in their domain. Yet others, perhaps satisfied that what, hitherto, had passed for sharia on our Statute Books is its caricature, vowed to “restore” the sharia in its pristine purity shorn of all the baggage it has acquired over a century of contact with the English Common Law system and thorough colonial intervention. A few others used such milder terms to characterize the enterprise as the “review” or “reform” of the sharia, but not without a severe rebuke from the Muslim followers who consider that to be, at best, revisionist in character or, what is worse, an attempt to meddle with Allah’s injunctions.
As a practical matter, the struggle to restore or adopt or implement or reform the sharia amounts to a jumble of things. Principally it involves extending its jurisdiction to regulate criminal as well as civil matters. This is accompanied by the restructuring of existing Area Courts with a change of nomenclature. Certain aspects of the social dimension of the sharia, which have long been abandoned or neglected such as state participation in the collection and distribution of Zakat or regulating commercial practices to conform to the ideals of the sharia, are revived or reinvigorated. Community participation in crime detection and prevention are encouraged. And the believers are mobilized, through public enlightenment programmes and Friday Sermons, to lead a life that is truly sharia inspired and compliant.
What then are we really talking about? Owing to divergent conditions obtaining on the ground and the political clout and commitment of the actors, each term has its special meaning and appeal in the given context it has been coined. In some States the espousal of the sharia cause is total and uncompromising. In others it is reformist. In yet others it is indescribable by any measure of certitude but, on the face of it, whatever steps had been taken in that direction appeared to be accompanied by bouts of reluctance and flashes of zeal. However, two things are for sure: (a) it has become politically incorrect for any leader, in office or aspiring to be, to ignore the unceasingly loud clamour for the sharia and (b) practices differ from State to State, though there is a common thread binding them all:- an unquenchable desire and determination to submit to the Will of Allah in private as well as in political spheres. When I discuss the challenges facing the Muslims vis-à-vis the restoration of sharia and the benefits derivable therefrom, I have in my contemplation all the forgoing shades of opinion without regard to the degree of commitment to the ideal or the extent of the reach of the practices put in place to attain it.
A dictionary definition of “challenge” in its noun form paraphrases it to mean an act expressive of strong or reasoned opposition or a behaviour intentionally provocative and taunting another to do something bold or rash. In its verb form, it has been defined to mean to confront boldly or courageously. Another dictionary meaning defines the word “benefits”, in its noun form, to mean something that contributes to or increases one’s well-being. In its verb form, it means, among other things, to derive advantage. Without picking any single strand of meaning ascribable to the terms identified above, my discussion of the challenges to sharia implementation and the benefits accruable to Muslims will be animated by their spirit and general tenor.
Next, I move to a discussion of the challenges. Before I do that it will perhaps not be out of place to give a brief account of what the sharia debate in Nigeria has been about before and after the Zamfara initiative.
What the debate is about
From 1976, when the 1979 Constitution was in draft form and was being subjected to public debate, to late 1998, when the draft of the current constitution was being debated for adoption, the Sharia debate has, as far as one can make any sense out of it, been about the following cluster of issues:
(i) a proposal to establish a Sharia Court structure to exist at par with the English common law types of courts up to the Supreme Court level but with limited jurisdiction;
(ii) with above issue settled somehow, attention was next focused on whether the Sharia, a religious law, should receive any mention in the constitution;
(iii) section 10, which prohibits either the federal or state government from adopting any religion as the official state religion, was inserted in the constitution but not without controversy in view of its ambiguity and lack of historical or cultural antecedence or context to locate it within;
(iv) the OIC debate rekindled interest in the Sharia debate with Christians insisting that the recognition of Sharia, a religious law, in the constitution violates the secular polity envisaged by section 10 and the Muslims pointing out that the English common law, which is the foundation of Nigerian legal system, embodies Christian norms, morals and ideals and that the Nigerian state was already Christian owing to some identified practices which it sponsors;
(v) the Sharia debate may well become both a campaign issue within the current democratic dispensation and about the reassertion of group identity.
However, the Zamfara initiative has further reduced the issues of contention. Many a non-Muslim would concede that, yes, the constitution does recognize the Sharia but with limited jurisdiction which cannot be exercised or extended to contaminate the secular purity of the polity. The Muslims, on the other hand, insist that there is sufficient constitutional support for allowing a Muslim to profess his religion to the fullest, empowering a state to expand the jurisdiction of the Sharia Courts and/or establish additional courts if it so desires.
An early political challenge that the Governor of Zamfara faced in seeking to extend the jurisdiction of the sharia to criminal matters as well as overhaul the judicial system was how to justify his action within the current democratic dispensation. He, as well as other governors who followed his suit, had to mobilize the political class and masses to support it. He followed this with cultivating the sorely-needed support and co-operation of the House of Assembly to ensure a safe passage of the Bill for the implementation of the sharia. These were a genre of political challenges he had probably foreseen and prepared for.
An attendant challenge which Governor Ahmed Sani of Zamfara faced at the initial stage was how to mediate between the high expectations and demands of the Muslim electorates and the imperative of acting within legal and constitutional bounds in a federal set up. This challenge confronted even more critically his fellow Governors in other States who, perceived by the public as being hesitant or resisting the drive, had to succumb to public pressure and clamour for the implementation of sharia in their domains. It was a classic case of the followers taking the charge leaving the governors to react. An enthusiastic public, motivated by the massive support extended to the Zamfara Governor and certainly impelled by deep religious commitment, would present the Governor in their State with a demand for the total and unadulterated adoption of the sharia to replace the English Common law. Caught unprepared or not knowing what the political process would permit, many a Governor would either spurn the attempt or parry the inquisitors. Mediating what was politically feasible within legal bounds, as best as they understood it, and satisfying the irresistible demand of the Muslim faithful was a challenge that many Governors, especially those who failed to seize the initiative to act first, were unable to manage well. They have continued to grapple with them.
Of all the political challenges faced by governors who attempted to implement the sharia none was more threatening and, as it seemed then, more real than the menace of the federal might and political party pressure. It may be recalled that Kaduna erupted with inter-ethnic and inter-religious violence which resulted in a devastating carnage and massive losses of lives and property. Allegedly, this was on the ostensible pretext of an initiative set in motion by the State House of Assembly to consider the case for and against the adoption of the sharia in the State. This provided the federal authorities in Abuja with a basis to embark on an arm twisting campaign to halt the restoration of the sharia. The most brazen manifestation of this resulted in the issuance of the infamous and widely unpopular order for a halt to the adoption of the sharia and a return to the Penal Code. The matter was further compounded by the reprisal killings of citizens of northern extractions, mostly Hausa Muslims, in the Eastern part of the country. It is a matter of history that, although the arm twisting onslaught resulted in one Governor announcing publicly that he was complying with the order from Abuja to revert back to the Penal Code, the challenge was largely ignored and lampooned in some cases.
As for partisan political pressure, the challenge it posed quickly melted away. The allegation that it was APP Governors who were hell-bent on spoiling the PDP party by playing the sharia card was soon enough disproved, when Governors in PDP-controlled States succumbed to the internal pressure for the adoption of the sharia. Similarly even the AD, none of whose governors showed any keen or positive interest in the sharia cause despite a substantial Muslim followership in States such as Lagos, Oyo, Osun and Ogun, soon discovered that it smacked of political insensitivity to fight the sharia cause which battle might cost it dearly at the next electoral outing. However, unlike the APP and PDP, the AD chose to sit on the fence, preferring to fuel from behind the scene, the anti-sharia tirade in the Press which its members dominate.
A more sinister political challenge which Muslims had to contend with for championing the adoption of sharia to regulate their entire life were incessant acts of harassment and threats of one form of reprisal and political intimidation or another from their brethren in the south. If it was not in the form of an order barked at National Youth Service Corps members from these areas to boycott serving in States adopting the sharia, it would be in the form of a threat or an appeal to the Federal government to withhold the distribution of the Value Added Tax centrally collected to these sharia compliant States. Other forms of political harassment included the threat of imposing the State of Emergency in any State which adopts the sharia. By way of a threat of economic blockade and boycott, the political leadership in the South-eastern part of the country ordered its kith and kin, who dominate commercial and trading activities in North and under the pretext of a show of concern for their safety, to massively migrate from the sharia States.
The Western, predominantly Christian, do-gooders, serving as the Guardian Angels of the promotion and protection of human rights, offered not a trifling assistance to their Nigerian counterpart by mounting political pressure on Muslims to abandon the sharia cause. In a brazen breach of all diplomatic protocol, Germany and Canada reportedly petitioned Governors of some States for adopting the sharia and carrying out sentences passed in accordance with Islamic law. Similarly, but without leaving its trace, the UK government probably extended more than the normal consular courtesies by assisting with the organization of a conference on the implementation of sharia in Nigeria under the auspices of the School of Oriental and African Studies (SOAS). In the view of many Muslims, this was seen as an attempt to influence events on the ground. The VOA did also organize a similar and widely-publicized conference perhaps with the same objective in mind. All these political manoeuvres at home and from abroad were designed to pose a challenge to Muslims in Nigeria for adopting one version of sharia or another.
The Nigerian NGOs specializing in human rights advocacy were, not surprisingly, no less intrusive and meddlesome in the matter of the adoption of the sharia. To prove their thesis that the sharia is discriminatory against women and non-Muslims, a consortium of NGOs undertook a fact-finding mission, in February 2000 or thereabout, to Gusau, Zamfara State in the heat of the debate about that State’s adoption of the sharia. Their report, which was the subject of some controversy even amongst their ranks, was replete with stories of a Bishop whose wife had abandoned, beer flowing aplenty and freely in the army barracks of Gusau and such other tantalizing accounts of Muslim women afraid to talk to them or dare to take a ride on the ubiquitous “Express” motorcycles. The aim was to throw off balance the “Mullahs” in Zamfara and paint a gloomy picture of every manner of oppressive practices perpetrated in that State under the guise of the implementation of the sharia. It was all part of the political challenge daring the Muslims.
As a matter of fact the NGOs were in the vanguard of posing the initial political challenge to the adoption of sharia in Zamfara State. When it became clear that Gov. Ahmed Sani of Zamfara was unwavering in his resolve to declare the adoption of the sharia in October 1999, a lawyer belonging to a human rights NGO, went to court in Lagos seeking an injunction to stop him. With that attempt failed, my good friend, Olisa Agbakoba, SAN and the Christian Association of Nigeria (CAN), mounted another political challenge in the form of series of suits they had filed seeking to nullify the enabling Laws which the House of Assembly in Zamfara had passed to adopt the sharia. Although one does not know what had become of all the other suits filed or if Mr Agbakoba and CAN are still willing to proceed with them, one is aware that the High Court in Zamfara had thrown out the one filed before it by Mr Agbakoba for want of locus standi.
In concluding this section of the paper, it will be pertinent to query whether, given the determination of Muslims to press ahead with the implementation of sharia and a desire to submit both their private and public affairs to be regulated by religious norms and religiously-inspired positive laws, the political process will be freed from its bias against permitting religion to influence, if not determine, the direction of the polity at local and national levels. If so, to what extent ? This is a challenge which the sharia adoption phenomenon poses to democratic governance and political process in Nigeria.
Having been anchored on and rationalized by reference to several constitutional provisions and being played out in a democratic setting, the adoption or implementation of the sharia had to face constitutional challenges.
By virtue of section 1 of the 1999 constitution, which provides for its supremacy over all other laws and subjects them to the litmus test of its validity, the implementation of the sharia through a Law or Laws enacted by a House of Assembly will of necessity expose these Laws to the risk of being challenged as being constitutional or unconstitutional. At the level of rhetoric, the southern legal establishment has outrightly dismissed the entire implementation exercises as being unconstitutional. Others, including myself, have argued about the constitutionality of the exercises. It remains to be seen who has got it all wrong.
At the theoretical level, the constitutional challenges have been voiced in respect of the following matters. Does a House of Assembly of a State have legislative competence to enact purely religious norms and ideals into positive law and/or create courts to enforce these ? Does the implementation of sharia, by whatever name or means employed, not violate the provision of section 10 of the 1999 constitution which, as claimed by proponents of this position, declares Nigeria to be a secular state ? How far can penalties provided for in the penal codes adopted by the sharia implementing States stand the test of constitutional validity vis-à-vis some specific provisions in Chapter IV of the 1999 constitution?
By way of an anticipated rebuttal or response to the foregoing challenges, I wish to repeat what I have argued to be the constitutional basis for any State which desires to extend the jurisdiction of sharia Courts to criminal matters or otherwise restructure their judicial system.
Basis of the Sharia
I have no doubt in my mind that one could find constitutional support for the actions taken by both Zamfara and all the others who followed its suit and those contemplated by others. The case could be built on the following constitutional anchors:-
Firstly, section 38 of the 1999 constitution guarantees freedom of religion. A Muslim firmly believes that his submission to the Will of Allah is inchoate if he were to choose or be made to follow some part of His, Allah’s, injunctions, the personal law, and abandon others, the penal system. The Sharia, defined as the Path which embodies the totality of Islamic guidance, seeks to govern every aspect of a believer’s life. Islam, being a complete way of life for the believers, knows not the dichotomy so much flaunted by non-Muslims, especially Christians, that religion is a private affair of the individual. To the best of his belief, therefore, a Muslim conceives of his faith as demanding a total submission to the Sharia. To a Muslim, freedom of conscience and to profess a religion of his choice alone or in company of others amounts to not much if a pre-condition, which by the way may be perfectly acceptable to followers of other religions, is stipulated for him.
Secondly, it is not in doubt that States do have legislative competence under, among others, sections 4, 6, 277 and the Second Schedule to the 1999 constitution to establish Sharia courts, in addition to existing ones, expand their jurisdiction and enact laws drawing inspiration from religious and non-religious norms. The provision of section 277 is not couched in an exhaustive term to preclude the expansion of the jurisdiction of the Sharia courts. So long as Islamic penal system is enacted in a written law and punishments prescribed therein, that piece of legislation, it is submitted, is not any less acceptable or constitutional than another piece of penal law passed by, for instance Ebonyi State, which borrows from the Confucian norms. The test of the constitutionality of any given legislation is not hinged on the mere act, without more, of borrowing from a religious tradition but whether it complies with any constitutional prescriptions. In any event, this argument and its counter are debatable and only a judicial pronouncement can settle the matter and not the loud and pious but self-serving declarations of the so-called legal luminaries who mask their Christian or atheistic biases and preferences.
Thirdly, the assertion has been made that Zamfara and all the other States which have adopted the sharia are contaminating the secular polity of Nigeria by their actions. Where does the constitution declare Nigeria to be secular and whose version of secularism have we adopted? Is it the English, where the Anglican Church is the official religion that must be professed by the Crown? Or the Indian, where Hindu is all but the official religion of the state despite the clear words of the constitution? Or the American, where judicial attitude is still divided as to whether the First Amendment mandates a tight wall of separation between Church and State or a non-discriminative treatment of all religions ?
I would make bold to assert that none of the initiatives of the States implementing the sharia can be said to have violated section 10 of the constitution which prohibits any State from adopting any religion as a State Religion. I have not as yet seen the plausible case made squarely equating what Zamfara has done with the adoption of an official religion. True, each has legislated borrowing from a religious code. However, by no stretch of imagination can either be said to have adopted Islam as its official religion. On the contrary, the two Governors of Zamfara and Niger, who started it all, have made it categorically clear that they are not adopting any official religion and remain faithful to the oath of office which they have subscribed to.
Fourthly, I have no hesitation in anchoring the basis of the adoption of the Sharia on the democratic process in vogue. By proposing for the expanded application of the Sharia, the two governors are at once fulfilling a campaign promise and meeting the yearnings and aspiration of the electorate. Similarly, the legislatures are responding to the demands of their constituencies. In both states the enactments were passed after following all due political and legislative process of open and unhindered debate at public level and deliberation by the legislatures. What both arms of government have done in these states is surely in accord with the democratic process.
When the press or individuals, who are not entirely disinterested, howl at the President for not clamping a State of Emergency on Zamfara or withholding the release of their statutory allocation of revenue accruing from the federation account on the pretext of their adoption of the Sharia, it amazes me. I begin to question the democratic credentials of all such persons who are literally urging the President or the National Assembly to “annul” or void a law duly passed by a competent body by means which are themselves unconstitutional and manifestly undemocratic. Would they not trust the judiciary to discharge its constitutional mandate of making the appropriate pronouncement as to the constitutionality or otherwise of the pieces of laws passed? Who gives the President or any other person the mandate to seek to deny the electorate the right to approve of the actions of both the legislature and the executive arms or reject them at the next poll?
Judicial or legal challenges
The constitutional challenges I pointed out above could be viewed at both abstract and concrete levels. When a dispute arises in connection with any of the constitutional issues highlighted above, it assumes the character of judicial or legal challenge which can be laid before a competent court for adjudication. Such challenges could be posed externally, as where a litigant questions the constitutionality of a given piece of legislation, or internally, when you consider the quality and efficacy of such a legislation. The judicial challenges I shall consider in this section belong to both categories.
One internal challenge has been the genuine concern expressed by Muslims who, eager and ready to submit totally to the dictates of the sharia, have queried whether there exist competent courts with qualified, upright and competent personnel to adjudicate disputes should they arise in accordance with the sharia. Many such Muslims have voiced the apprehensions that, having lost faith in the corrupt Area Court system which are often presided over by inept and equally corrupt personnel, the sharia cause risks being contaminated and derailed by this internal challenge. Whether the judicial restructuring undertaken by such States to accompany the adoption of the sharia has or can address this challenge remains to be seen. It is a challenge, however, which can make or mar the implementation of sharia depending on how seriously and genuinely it has been tackled.
Another challenge of an internal nature, which has faced the restoration of sharia in Nigeria, pertains to the very critical question as to whether the content of all the positive Laws enacted by the legislative Houses can meet the needs of the Muslim Ummah. In other words, do these legal instruments possess, in practical terms, the capacity to address the complex needs and challenges of the existing condition of the Ummah?
Related to the above internal challenge is the obvious lack or absence of a mechanism for the orderly and timely development and regeneration of the sharia principles and norms which have been crystallized into positive law. Let us not forget that such a mechanism, the well-known device and method of developing the sharia through ijtihad, is either not available to the judicial personnel entrusted with duty to adjudicate matters in accordance with the sharia or few are qualified to engage in it to arrive at a meaningful or acceptable result. Working within the Nigerian judicial hierarchy and guided still by the predominant English common law tradition, one is not sure if ijtihad is available for a judicial officer, both at the court of first instance or at appellate level, to resort to in applying a Law embodying rules of Islamic law and passed by the legislature. Of course it is still a matter of some controversy among the Muslim communities throughout the world whether the Door of Ijtihad is still open or remains closed. Until Muslims in Nigeria address this internal challenge squarely we risk freezing and fossilizing the dynamic sharia norms into the hard and fast texture of a legislative enactment with all the attendant consequences.
I did point out somewhere in this address that various parameters which dictate conditions on the ground such as the disposition of the Chief Executive towards and the amount of pressure brought to bear by advocates of the cause of sharia implementation all are factors that have influenced the timing, quantum and reach of what is being implemented. This has necessarily resulted in a diversity of approach between States, the enactment of equally diverse and multiple enabling laws to implement the sharia and a general lack of harmony or co-ordination in the struggle for the restoration of the sharia across the land. This is another internal challenge which, though inevitable, ought to be managed better.
I have devoted quite some time in highlighting above what internal challenges of a legal and judicial nature which Muslims continue to face in their quest to restore the sharia. However, there are similar challenges of external nature. I wish to illustrate just two of them.
While discussing the constitutional challenges above, I alluded to the legal suits filed by some individuals and organizations against the implementation of sharia in Zamfara. Although one such challenge has suffered a temporary setback and there appears to be a lack of interest or diligence in prosecuting the others, it will be foolhardy to suppose that this external challenge of a judicial nature has melted away or is no longer available. The possibility of a litigation to challenge any Law passed to implement the sharia persists for as long as the law remains operative. With this possibility exists a real threat of appellate meddling and inquiry into the legality and constitutionality of the legislative enactments which are susceptible of being reversed, modified or upheld upon a successful challenge. The combined effect of sections 1 and 6 of the 1999 constitution clothes courts, both state and federal, with authority to review any legislative as well as judicial actions. Section 6 specifically empowers courts to determine any questions as to rights and obligations of persons. These provisions are pregnant with possibilities of legal challenges. They also have empowered the judiciary with jurisdiction and capacity to intervene, halt, slow down or otherwise interfere with the restoration of the sharia.
With Germany and Canada reportedly and, I am reliably informed, many other Western countries, launching petitions against certain sharia practices and with the local NGO always eager and open for business to do their bidding, there exists not too remote a probability of external judicial or quasi-judicial intervention. Although not much mileage may be gained by petitioning Governor Ahmed Sani to the African Commission on Human and Peoples Rights in Banjul or the UN Human Rights Commission in Geneva on account of his alleged violation of international obligations assumed by Nigeria, these fora offer a handy opportunity to create political embarrassment and file up more pressure on Governors and Houses of Assembly implementing the sharia. Of course, a mock judicial verdict castigating the Governor and his sharia Laws is not far-fetched from these agencies and organs should the Western powers choose to put in the necessary pressure.
Muslims, but especially their leadership and those amongst them who patronize the print media published at home and abroad, had to contend with challenges of a psychological nature. There were insinuations as the sincerity of their motive for “playing the sharia card”. Allegations were made charging that the implementation was politically-motivated. There was of course the fear of the unknown, particularly on the other side. Indeed there was a widespread triumphant, call it feel-good, feelings amongst the Muslim which may lead to complacency.
In discussing the challenges of a psychological nature, I shall also crave the indulgence of the audience to quote from an essay I had written as it portrays and aptly captures these psychological challenges. At the commencement of the implementation of the sharia, the following charges were freely made, perhaps to wage a psychological warfare against its protagonists of the sharia.
That the core Muslim North is a bad political loser who cannot live with the reality of power shift which it has dominated since independence. To even the score, proponents of this view allege, that the North has pulled out of its bag of dirty tricks the Sharia card and are determined to give a Southern Christian President a tough time by making the nation, or at least the North, ungovernable.
That by embarking on the full implementation of the Sharia, Muslims in the north are manipulating religion to achieve political ends. These antagonists of the Sharia have similarly questioned the motive of the core Muslim North for resuscitating the Sharia debate now and not under the previous civilian and military regimes headed by northerners. Some commentators even have the audacity to question the motive why Alhaji Shehu Shagari and General Buhari, two former national leaders from the north, should have expressed the opinion they had on what actually transpired at the meeting of the National Council of State which deliberated, or did it?, on the Sharia at the peak of controversy in March last year. Although, arguably, Gen. Abdulsalam Abubakar presided over a PRC which reduced the potency of the Sharia, a distinguished Christian clergy accused him of manipulating the 1999 constitution to fuel the Sharia controversy after leaving office.
Initially, when Governor Ahmed Sani of Zamfara fired the first salvo in the current Sharia debate way back in October 1999, some ascribed ulterior motives to an APP administration playing dirty politics with the opposition at home and the national level. Some uncharitable commentators even went as far as to suggest that Gov. Sani had some skeletons in his cupboard which he desired to pull the rug over by playing the Sharia bogey. As of today the actions of PDP Governors such as Kwankwaso of Kano, Yar’adua of Katsina, Kure of Niger, Muazu of Bauchi and, yes, even Makarfi of Kaduna, all of whom have espoused the Sharia cause, albeit in differing degrees, must have put the lie to such insinuations. Other APP Governors in Sokoto, Borno, Gombe and Yobe have since joined the bandwagon.
At the height of the Sharia controversy, an unidentified official source who was speaking for the federal government leaked a story to the anti-Sharia press alleging that some disgruntled elements belonging to old military regimes had been identified to be at work. The disinformation ploy even threatened that such persons were under surveillance and would be exposed at the appropriate time. Commenting on my chairmanship of a technical committee set up by Gov. Kwankwaso to review a Private Member’s Bill which sought to implement the Sharia in the state and was being considered by the Kano State House of Assembly, another less charitable Abacha basher and antagonist of the Sharia saw Abacha’s “evil” and invisible hands guiding the clamour for the implementation of the Sharia from the grave!
Responding to a question, way back in October 1999, from a curious journalist in Boston, USA, about his views on the then raging Sharia debate in the wake of its momentous adoption in Gusau, Zamfara State, President Obasanjo was quoted as stating that the adoption of the Sharia by that State was unconstitutional but that it would “fizzle” out. Asked again only recently about the Sharia implementation “fag” which is being espoused by virtually all the northern Muslim governors, President Obasanjo revised his earlier prophesy by tersely asserting that while the “real Sharia” will endure the “political Sharia” will vanish or wither away. How he thought this would occur, he did not elaborate.
That by implementing the Sharia, all those states in the core Muslim North have contaminated the secular purity of the Nigerian polity by becoming a theocracy which action, by the logic of reciprocity, entitles:-
(I) the South-East to opt for confederacy if not revive the Biafran ambition with the Bakassi boys as its new vanguard;
(II) the South-South to declare absolute sovereignty over its mineral resources with the Niger Delta youths as its protectors;
(III) the South-West to feel vindicated over its incessant call for the convening of a Sovereign National Conference to discuss the terms of our association and for the said geopolitical zone to restate its desire for an Oduduwa Republic with the OPC and Afenifere as its military and political wings respectively;
(IV) the Middle Belt to seek to redefine its identity within the North.
To press home their thesis as to the political nature of the Sharia agitation, some uncharitable commentators have insinuated that Governors Sani and Kwankwaso of Zamfara and Kano States were induced to adopt Sharia by a promise of financial and other material rewards from Saudi Arabia and Libya respectively. Both have since refuted such baseless allegations.
Chief FRA Williams, the doyen of the legal profession in the country, has been widely quoted as claiming that the clamour for the expanded application of the Sharia is a negation of a consensus and compromise reached with and by both the Northern leadership in the First Republic, who adopted the Penal Code, and those of the Second Republic, who subscribed to the 1979 Constitution. The Chief has been reported as being of the view that the uninformed young breed politicians at the helms of affairs in these Sharia states are reneging on the consensus and compromise earlier reached. With all due respect, it is debatable if there was any consensus reached at both times and, if at all, with whom?
Benefits: The Sharia as democracy dividends to Nigerian Muslims
It is perhaps too early to do an impact study regarding the issue of the adoption of sharia to determine what benefits, if any, have accrued to Muslims since October 1999 when the implementation commenced. Being a matter of faith, it is arguably difficult, if not Herculean, to quantify such benefits. Be that as it may, I have heard it mentioned, not once and by many Muslims, that although Nigerians are eagerly awaiting democracy dividends in the form of improved economic and social well-being, Muslims are busy enjoying the restoration of the sharia as one such unquantifiable dividend. If any value could be placed on these dividends, what are they?
Firstly and very significantly, Muslims have been able to take their destiny in their own hands. With that, they have not only reasserted their identity, they can also determine their priorities. They are content to submit totally to the Will of Allah on earth by living a life in accordance with the dictates of the sharia which they have enthroned.
Secondly, of all the tangible benefits accruing to Muslims on account of the restoration of the sharia, none has been more potent and liberating than the reclamation and reassertion of people’s power and say in their governance and influence over public affairs. If the truth must be told, none of the Governors of the North implementing one version or another of the sharia, with the exception of those of Zamfara and Niger, took the first initiative or played a visible leadership role in the cause. Virtually all the others had to succumb to one form of public pressure or another. In some States, the Bill for the adoption of the sharia was through private initiatives. In others, the Chief Executives had to eat their words to go along with the Muslims, who proved unrelenting in their clamour for the adoption of the sharia, to embrace the cause. In yet others, the dilly-dallying on the part of the Chief Executive knows no bounds and the public pressure is correspondingly unrelenting. This benefit of the restoration of the sharia amounts to the triumph of peoples’ power over executive and legislative inertia.
A spin-off dividend from the foregoing is, thirdly, the triumph of peoples’ power over elite dominance. I am a student of the history of the struggle for expanding the jurisdiction of sharia. All that was accomplished by proponents of this cause did not go beyond the provisions of 281 of the 1995 draft constitution, a replica of section 252 of the1989 draft, by which Muslim members in the Constitution Review Committee of 1987/88 and the Constituent Assembly of 1988/89 extended the jurisdiction of the sharia Court of Appeal of a State to “other civil matters where all the parties are Muslim.” Extending it to criminal matters was, if entertained all, far-fetched. By what posterity may judge as a masterstroke move, the Governor of Zamfara, urged and sustained by the teeming millions, extended the application of the sharia far beyond the pale of civil matters to adopting it as the predominant legal system in his State.
A fourth benefit is the concerted effort being put by Muslims to fight all manner of social evils afflicting them through the instrumentality of a legal order they cherish, identify with and, nay, have internalized. Linked to this is the windfall of community participation in law enforcement. Although detractors of the Hisba system equate it with vigilante justice, and it has the potential to degenerate into that if not controlled and managed well, community participation, thorough its instrumentality, in the detection of crimes, apprehension of criminals and the cause of the administration of justice is greatly helped with its revival and utilization.
A fifth benefit is, without doubt, the enthronement of a legal and judicial system which the community happily identifies with, is accessible and affordable. It is one shorn of benumbing technicalities, incomprehensible forms and endless delays. The new legal order has the potential to help eradicate judicial corruption and bring sanity in the administration of justice.
Sixthly, a condusive environment is being cultivated for Islamic systems of social and economic justice to be revived and to thrive when re-established. One has in mind the current efforts in all the States which have adopted the sharia to re-invigorate the institution of Zakat, modernize its collection and distribution and otherwise create wealth in a halal way for the well-being of the members of the Ummah. Wholesome commercial and trading practices recognized and endorsed by the sharia are being promoted while sharp and corrupt practices are being fought. I was very tentative while opening my discussion on what benefits could be said to have accrued to Muslims courtesy of the restoration of the sharia in Nigeria. Perhaps the ones I managed to cough out above are very debatable or not so tangible. I will be more than happy if all I have succeeded in doing is to instigate debate over them and the very many other issues I have raised in this address.