The Shari'ah Altercation: The moral and the legal questions (Part 1)

Assalaamu Alaykum,

Bro. Dahiru Moyi.  Thanks for your call for me to contribute to the Shari'ah
debate.  Please fine below the first part of an article I have sent to
Odili.com)for possible publication on NigeriaWeb. I have tried earlier to
send it the NMN mail list but it keeps bouncing back. I hope that it will
get through now.  I will paste the second and final part soonest.  Thanks a
lot and may Allah assist all those who endeavour sincerely in His cause. The
article follows below.

Sincerely yours,

Mashood.
____________________________


The SharÓ'ah Altercation: The moral and the legal questions. (Part 1)

In his book titled Nigeria and SharÓ'ah: Aspirations and Apprehensions,
[Leicester: The Islamic Foundation, 1994] derived from his doctoral research
on the Nigerian SharÓ'ah Debate of 1977-79 and the Nigerian OIC debate of
1986, Ghazali Basri reached two notable conclusions that "it is evident that
the SharÓ'ah issue will continue to dominate the thoughts of the Muslim
populace in Nigeria" and that "(i)t is clear that Muslims and Christians
will continue to be in opposing camps as long as the SharÓ'ah issue is
unresolved". The recent Zamfara State SharÓ'ah initiative and the consequent
responses by most Nigerians confirm both of Ghazali's conclusions. In the
past few weeks I have received calls and messages from colleagues and
friends asking me to contribute to the debate. I have followed the arguments
on this issue with great interest and I humbly observe that many wrong
questions and answers have been raised about the SharÓ'ah issue in Nigeria.
There have been some accurate point of views as well. Although Nigeria is a
polarised country that often calls for peculiar approaches in solving its
problems, be it economical, legal, political or religious, the truth is that
we can only find the right solutions by asking the right questions.  The
SharÓ'ah issue in Nigeria raises both moral and legal questions. It is my
humble submission that the moral questions we should be asking ourselves as
Nigerians are twofold. (1) Why can Nigerian Muslims (or at least some of
them) not leave the SharÓ'ah issue to rest in peace? (2) Why are Nigerian
non-Muslims (or at least some of them) ever on alert to oppose every
SharÓ'ah initiative?  An objective dialogue on these moral questions would
provide the mutual understanding essential for what I call a justicial
approach to the main question about the legality of the application of
SharÓ'ah in Nigeria. When issues about rights and duties are in controversy,
morality and reciprocity are essential factors that aid legality.

Many contributors to the present debate allude that the SharÓ'ah is often
manipulated by Nigerian politicians to bamboozle the Muslim masses of
Nigeria. While there could be truth in such allusion, the enabling agent
must be that the SharÓ'ah means so much to Nigerian Muslims to be so
hoodwinked with it by politicians. The SharÓ'ah does mean a lot to all
Muslims and they have a lot of aspirations in its application. A major
inspirational influence of the SharÓ'ah to Muslims, is their belief in its
ultimate goal of ensuring substantial justice and welfare (Maslahah) of
humanity. This factor was noted by the Pakistan Supreme Court in the case of
Akbar Ali v. Secretary, Ministry of Defence (1991 SCMR, 2114) that "Since
the introduction of Islamic law and jurisprudence in our (i.e. Pakistan's)
Constitutional set-upÖ the emphasis on real substantial justice has
increased manifold." Please save your steam! I remember that we are here
dealing with Nigeria and its peculiar nature. I intend only to substantiate
my earlier point that the SharÓ'ah means so much to Muslims be they Northern
or Southern Nigerians, Pakistanis, Britons or Americans.  In fact, Schacht,
a renowned non-Muslim Islamic legal scholar rightly identified that the
SharÓ'ah is the "epitome of Islamic thought Ö the core and kernel of Islam
itself". [Schacht, J., An Introduction to Islamic Law, (Oxford: OUP, 1964)
1]. Many contributors have however misrepresented the SharÓ'ah in this
debate as an evil and oppressive system, and failed to distinguish between
its sources and methods.

The SharÓ'ah is often defined as "path to be followed" by Muslims.  It is
all encompassing and its main sources are the Qur'an and the Sunnah. The
first is divine while the second is "quasi-divine". The Qur'an, as is well
known, is believed by Muslims to be the exact word of God revealed to the
Prophet Muhammad (Peace and Blessings Upon Him) for the guidance of humanity
in both spiritual and temporal aspects of life. The Sunnah consists of the
reported lifetime sayings, deeds and tacit approvals of the Prophet Muhammad
(PBUH), which developed from the need for elucidation, by the Prophet, of
some Qur'anic verses and provision of supplementary rules on some aspects of
life not expressly covered by Qur'anic texts. To Muslims, the words of the
Qur'an are immutable and they serve as the principal source of every
Muslim's conception of morality and legality. Thus in every affair of
Muslims the Qur'an is the "grundnorm" or the "ultimate rule of recognition"
as Kelsen and Hart would respectively categorise it in their pure
conceptions of law. It is important to appreciate that the belief of Muslims
in the Qur'an as a divine revelation is absolute and non-compromisable, and
they often strive to live by it. Muslims must also abide by the authentic
Sunnah of the Prophet that fulfils certain conscientious and critical
techniques of authenticity under Islamic law.  In the strict legal sense
therefore, the SharÓ'ah as a "path to be followed" by Muslims refers to the
corpus of the revealed law as contained in the Qur'an and in the authentic
Sunnah of the Prophet. It is this paradigmatic and resolute belief in the
sources of the Islamic faith that make it impossible for Muslims to live
without the SharÓ'ah. Where it is beyond their ability to apply it as public
law, Muslims do endeavour to adhere to the SharÓ'ah in their private lives
as far as circumstances permit. Muslims are, of course, entitled to and must
be respected for their resoluteness of faith in their SharÓ'ah, which they,
on the other hand, may not also force upon non-Muslims who choose not to
believe in it. Thus, on the basis of the modern advocate of "right to
freedom of religion and faith", which the Qur'an had also established
earlier by its provision that "Let there be no compulsion in religion" (Q2:
256), the belief of Muslims in the SharÓ'ah as a supreme source of law may
not be morally questioned or attacked by non-Muslims. Muslims wherever they
dwell, whether in minority or majority, have both a moral and legal
right/duty to adhere to the SharÓ'ah, except where they are denied the
freedom or ability to do so by powers or circumstances beyond their control.
  In which case they maintain their belief in the SharÓ'ah but feel
extenuated from its application by the doctrine of necessity. That explains
why whenever the need for change is felt, Muslims always opt for the
SharÓ'ah due to their belief in its ultimate goal of substantive justice and
welfarism for humanity.


The apprehension of non-Muslims however seems to be principally in respect
of the application of the SharÓ'ah. This is evident from references to the
Islamic law punishments of amputation, flogging, stoning and "beheading" in
many of the contributions to the ongoing debate. Due to the emphasis on
"beheading" by critics of SharÓ'ah, it is important to point out that
although the SharÓ'ah prescribes capital punishment for murder and related
offences (as does most legal systems of the modern world), the method of
execution is a matter of choice left to the discretion of the State. While
it is true that Islamic criminal punishments are severe and harsh, Islamic
legalists justify them on the basis of their deterrent nature, the strict
and narrow definitions of the offences that attract them and the difficult
nature of proof thereof. [See e.g. Mourad, F.A., & Al-Sa'aty, H., "Impact of
Islamic Penal Law on Crime Situation in Saudi Arabia: Findings of A Research
Study" in Mahmood, T., ed. Criminal Law in Islam and the Muslim World, (New
Delhi: Institute of Objective Studies, 1996) 340-366; Al-Rasheed, M.A., &
Al-Hewesh, M.I., "Administration of Criminal Justice in Saudi Arabia: A
Brief Account" in Mahmood, T., ibid. 367-374]; and Al-Afti, A.A.,
"Punishment in Islamic Criminal Law" in Bassiouni, M.C., ed. The Islamic
Criminal Justice System, (New York: Oceana Publications, 1982) 227-236].
Non-Muslims do reasonably fear the imposition of these punishments upon
them, and they do not believe in the divine weight behind the sanctions. The
fact that Christians particularly feel uncomfortable, to be governed by
Islamic laws in Nigeria is obvious from the reactions of the Christian
Association of Nigeria (CAN) to the SharÓ'ah question.  Morally, Nigerian
non-Muslims may not question the faith of Muslims in the SharÓ'ah, but they
are entitled to have their own fears allayed about the application of the
SharÓ'ah to them in their country. While the source of the SharÓ'ah is
believed by Muslims to be divine, its application is absolutely human, and
that is why there is need for absolute certainty of its proper application
in a country like Nigeria to prevent a boomerang effect even upon Muslims.

Apart from its sources the application of the SharÓ'ah is regulated by
methods that fall within the realms of Fiqh otherwise called Islamic
Jurisprudence through which the legal rules of interpretation, extension and
application of the SharÓ'ah were laid down by the classical Islamic jurists.
Within these rules of Islamic jurisprudence are legal principles, doctrines
and methods that guide the application of the SharÓ'ah in a manner that
fulfils its ultimate goal of substantive justice and welfare of humanity.
The method of the SharÓ'ah is meant to be dynamic and sensitive to
circumstances of time and place. Therefore its application is not arbitrary
or haphazard.  Although the dynamism in the method of SharÓ'ah was stagnated
at some point in the development of Islamic law, whereby its sensitivity to
circumstances of time became otiose, Islamic legal scholarship and juridical
practice has resuscitated it, and continues to invigorate it in many parts
of the Muslim world where the SharÓ'ah is applied. An example may be cited
of the Nigerian case of Tela Rijiyan Dorawa v. Hassan Daudu [ (1975)
Northern Nigerian Law Report 87], in which a Sokoto High Court in
consultation with the then Grand Kadi of Sokoto State, modified on appeal,
the traditional rule of non-admissibility of the evidence of non-Muslims
under Islamic law. The Court's departure from the traditional rule was based
on the justification that in "the condition of Nigeria today being a country
with large Muslims, Christians and animist communities living side by side
and transacting business with each other" that rule will be against the
ultimate objective of substantive justice aimed by SharÓ'ah.  This
demonstrates that in the application of the SharÓ'ah the ultimate objective
of substantive rather than technical justice must always be put into
consideration. This approach is being encouraged in most parts of the Muslim
world, and many Islamic scholars and legalists have also advocated for the
re-codification of the methods of Islamic law to reflect the substantive
justice and welfare (Maslahah) approach in the contemporary sense.

Under the methods of application non-Muslims are absolutely exempted from
the application of SharÓ'ah to their personal/civil matters unless they
voluntarily subject themselves to its jurisdiction. Doi correctly states
that even in an Islamic State,  "Önon-Muslims will not be forced to be
governed by the SharÓ'ah law.  All their cases will be decided in accordance
with the personal law of their own choice. Ö If eating pork, drinking of
wine or marriages regardless of consanguinity e.t.c. are permitted by their
religious or customary law, they will not be prohibited from them by the
SharÓ'ah." [Doi, A.R., Non-Muslims Under SharÓ'ah (Islamic Law) (Brentwood:
International Graphics, 1979) 51; and al-Qaradawi, Y., Non-Muslims in the
Islamic Society, (Indiana: American Trust, 1985]. However, non-Muslims must
conform to the public laws of SharÓ'ah in an Islamic State. One thing that
most Nigerians agree upon in this debate is that Nigeria is neither an
Islamic State nor a Christian State. Although Section 38(1) of the current
Nigerian Constitution guarantees freedom of thought, conscience and
religion, Section 10 provides that  "The Government of the Federation or of
a State shall not adopt any religion as State Religion".  Going by the
extremely close interaction that exists between the communities of Muslims
and non-Muslims in all spheres of life in Nigeria as correctly observed by
the Court in the Dorawa case cited earlier, it is essential in the
application of the SharÓ'ah in Nigeria to clearly specify the implementation
of those aspects relating to the maintenance of public law and order to
prevent an encroachment upon the rights of non-Muslims by zealous enforcers
of public morality. No one person, group or institution may be allowed to
combine the role of prosecutor, judge and executor of public order and
morality. In the Nigerian SharÓ'ah debates of the past and the current one,
Muslims have continuously given assurances that the SharÓ'ah would be
applicable only to Muslims and that what they demand is only part of their
right to freedom of religion. Considering that the application of Islamic
law in Nigeria is as old as Islam itself in Nigeria, without a violation of
this rule of its non-applicability to non-Muslims except those who
voluntarily submit to its jurisdiction, and that Muslims are intended to
maintain that rule, then there seem to be no cause for alarm if not for the
lack of confidence in our ability to respect our differences.

Our history confirms that Islam came to some of the areas which today
constitute the Federal Republic of Nigeria as early as the 11th century
bringing along with it the SharÓ'ah. The machinery for the administration of
the SharÓ'ah was first established in the Borno Caliphate and later in the
Hausa States such as Kano and Katsina.  Long before the 19th century, the
principal law administered by the courts in most parts of the territory now
constituting the Northern part of Nigeria was Islamic law of the Maliki
school. [See Obilade, O.A., The Nigerian Legal System, London: Sweet and
Maxwell, (1979) 17]. Although the general belief is that the SharÓ'ah has
never applied beyond the northern part of Nigeria, Doi informs us that in
1913 there was a SharÓ'ah court officially established in Ede, a Yoruba town
in the present Oshun State of Nigeria. The first judge (Q‚dÓ) of the court
was one Sindiqu (SiddÓq) who was said to be very proficient in Arabic
language and even recorded the court proceedings in Arabic. [See Doi, A.I.,
Islam in Nigeria, Zaria: Gaskiya Press, (1984) 213]. Keay and Richardson
confirmed that by 1914 when Northern and Southern Nigeria were amalgamated,
a native court system had been established in the North which (in the Muslim
Areas at least) worked satisfactorily and handled most of the litigation to
general satisfaction. Thus Lord Lugard found a system of Islamic law fully
operating in the North when the Protectorate government was imposed in
Northern Nigeria. [See Keay, E.A., & Richardson, S.S., The Native Courts and
Customary Courts of Nigeria, London: Sweet and Maxwell, (1966) 27 and 231].
It was after colonisation that the British introduced English Law which
however did not completely abrogate the existing legal systems.  SharÓ'ah
continued to operate subject to what became known in law as the  "repugnancy
test" of  "natural justice, equity and good conscience" as interpreted by
the colonial government. [See e.g. Park, A.E.W., The Sources of Nigerian
Law, Lagos: AUP, (1963), also Obilade, O.A., supra, and Keay & Richardson,
supra]. Subject to the "repugnancy test", the "received" English laws were
also made applicable within the jurisdiction so far only as local
circumstances permitted.  Thenceforth the "repugnancy test" exempted the
punishments of amputation and stoning in the application of SharÓ'ah in
Nigeria, on grounds that they were repugnant to "natural justice, equity and
good conscience". Canning and capital punishment were still legal.  SharÓ'ah
was enforced within those limits in Nigeria up to 1956 under the umbrella of
"native law and custom". Referring to this in a dissenting judgement in the
then West African Court of Appeal, Ames, J., observed in Bornu N.A. v
Abatcha Maguda (1946), [Unreported See Anderson, J.N.A., Islamic Law in
Africa, (London: (1955) 198.], that Islamic law prevails where it does
prevail (in Nigeria) because it is there the local law and custom." The
Northern Region Native Courts Law of 1956 also provided that native law and
custom included Muslim law as applied in the then Northern region.

In 1956 the Muslim Court of Appeal was established to hear and determine
appeals in respect of regional matters involving questions regarding Muslim
personal law from any native court in the region. The jurisdiction
substantially covered were questions regarding Islamic marriages and its
dissolution, family relationships, foundling, guardianship of infants,
Islamic trusts, gifts, succession, maintenance and such related matters.
Traces of recognition of some Islamic offences can also be found in the
Northern Nigerian Penal Code passed into law on 1st October 1960, such as
adultery and being found drunk in public places. The Islamic law criminal
punishments do not however apply to those offences under the Penal Code
except the legality of canning and the death penalty for certain offences
under the Code.

A SharÓ'ah Court of Appeal was established under the SharÓ'ah Court of
Appeal Law of 1960 to repeal and replace the Muslim Court of Appeal of 1956
with jurisdiction "to hear and determine appeals in respect of regional
matters in cases involving questions regarding Muslim personal law from the
decision of the native and Provincial courts of the then Northern Region of
Nigeria. When the former Northern Region was broken into a number of states
in 1967, each of the states created its own SharÓ'ah Court of Appeal but
without a final Federal SharÓ'ah Court of Appeal for all those states that
applied SharÓ'ah.  The non-creation of a final Federal SharÓ'ah Court of
Appeal between the state SharÓ'ah Courts was perhaps to remove any notion of
the continued political existence of the former Northern Region. [See
Laitin, D.D., "The SharÓ'a Debate and the Origins of Nigeria's Second
Republic", The Journal of Modern African Studies 20/3 (1982) 411]. The
demand for a Federal SharÓ'ah Court of Appeal was however raised during the
constitutional drafting process of the Second Republic, subsequent to which
the 1976 Constitutional Drafting Committee on the recommendation of the
Sub-Committee on the Judicial System included a section in the 1976
Draft-Constitution providing that: "There shall be a Federal SharÓ'ah Court
of Appeal which shall be an immediate court of appeal between the state
SharÓ'ah Courts of Appeal and the Supreme Court of Nigeria." A great debate
ensued against that provision in the consideration of the proposal by the
then Constituent Assembly which eventually ended in the deletion of the
Federal SharÓ'ah Court of Appeal provision from the Draft Constitution. [See
Basri, G., supra, 42-49]. 93 Muslim members, including the late Chief M.K.O.
Abiola, Alhaji Babatunde Jose and Chief J.O.A. Shittu among others, withdrew
from the Constituent Assembly in protest to demonstrate the support of
Muslims from the South for the SharÓ'ah issue then. To save another round of
heated arguments on the SharÓ'ah during the 1986 Constituent Assembly, the
item was exempted from the Assemblies terms of reference by the ruling
military regime under Babangida.  Subsequently however, a National SharÓ'ah
Committee was established under the chairmanship of late Chief M.K.O. Abiola
with its headquarters in Lagos, which continued to advocate for the
establishment of SharÓ'ah Courts even in the Southern states of Nigeria to
cater for the Islamic law interests of Muslims of Southern Nigeria. Other
Organisations such as the Federation of Muslim Women Organisations of
Nigeria (FOMWAN), National Council of Muslim Youth Organisations (NACOMYO),
Muslim Students Organisation (MSS) and the Muslim Lawyers Association (MLA)
continued to advocate for the establishment of SharÓ'ah Courts in all the
States where there are Muslims to cater for their Islamic law interests.

The main moral argument of SharÓ'ah advocates in Nigeria has all along been
that, in the states in which Muslims are in majority it is within the sphere
of justice and fairness that the aspirations of the majority be respected
since the SharÓ'ah will still guarantee the legitimate rights and interest
of non-Muslims in those states. They also claim that in the states where
Muslims are in the minority, they at least deserve the moral right to have
their Islamic personal matters such as marriages and its dissolution,
legitimacy, succession, etc decided by Islamic courts instead of the
customary courts presided over by customary judges who have no knowledge of
the Islamic laws that govern those transactions.  The main argument, against
the Muslims' SharÓ'ah aspiration has been that Nigeria is a secular state.
The Christians especially, consider the SharÓ'ah issue as an attempt to
dominate, assert the authority of Islam and to turn Nigeria into an Islamic
State and thus a violation of the Constitution of the Federal Republic of
Nigeria. In an interview of Archbishop Okogie on the current debate he is
reported to have stated that "It is wrong for anyone to be ruled by laws
that are at variance with his or her religious and moral belief". In the
view of the secretary-general of the Nigerian Supreme Council of Islamic
Affairs, Dr. Adegbite, that seems to express the exact feeling of Nigerian
Muslims that "it is wrong for Muslims to be ruled by laws that are at
variance with Islamic religious and moral belief" and so Muslims should be
allowed to implement the SharÓ'ah while if Nigerian Christians want to have
Christian Canon laws they could also have it. Can that be accepted as a
reasonable moral settlement? I will leave the moral answer to you and move
to the consequential legal question concerning the extent of legality or
illegality of the adoption/application of religious laws generally (not only
the SharÓ'ah) under the Nigerian Constitution. This will be examined in the
second part of this article to be available soonest.

Mashood A. BADERIN.
llxmab2@lln1.nottingham.ac.uk
Mashooduk@hotmail.com

The author of this article is a qualified Nigerian lawyer with a degree in
English Law and SharÓ'ah, a higher degree in Public International Law, and
presently a PhD Research Candidate in Comparative Human Rights Law in
England.