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Islamic Law and Legal Hybridity in Nigeria

Published online by Cambridge University Press:  15 October 2014

Mamman Lawan
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Abstract

The British colonial administration created a hybrid legal system in Nigeria where English, Islamic and customary laws apply. The English system, having a written constitution, was made dominant and the other laws apply to the extent permitted by it. However, Muslims in the northern part of the country have been making efforts to reverse this dominance, including the recent re-introduction of Islamic criminal law by 12 states. This effort is seen to be revolutionary, reverting the states to the position when Islamic law applied in full, devoid of colonial influence. This article asks whether this can break the legal hybridity and answers in the negative, arguing instead that the effort accentuates the hybridity. For example, the re-introduction of Islamic criminal law is enabled by the constitution, the constitution institutionalises the hybridity and the 12 states operate, and are bound by, the constitution. The article discusses other variables depicting the hybridity and concludes that it was a conscious colonial act, nearly impossible to break.

Information

Type
Research Article
Information
Journal of African Law , Volume 58 , Issue 2 , October 2014, pp. 303 - 327
Copyright
Copyright © SOAS, University of London 2014 

INTRODUCTION

Colonialism is a rich, multi-disciplinary subject. It is said to be the most written about subject in African history.Footnote 1 One of its legacies is a plurality of laws in the legal systems of most of the former colonies. To achieve certain purposes, the colonial masters implanted the laws of their own countries in the colonies and permitted some local laws to apply as well.Footnote 2 Nigeria was among the colonies that suffered this fate. The British found Islamic law being applied in the Sokoto caliphate and customary laws in various other territories. They introduced English law and allowed the local laws to apply in truncated forms. For instance, Islamic criminal law was largely abolished and the Islamic civil justice system was also tampered with. The country therefore ended up with a hybrid legal system. Nigerian law, containing received English law, now applies in the whole country as conventional law. Limited Islamic law applies in the northern Muslim territories that largely constituted the Sokoto caliphate. Various and limited customary laws apply in the south and a few other northern territories.

The dominance of conventional law in Nigeria has not been left unchallenged. Proponents of Islamic law have been making sporadic efforts to reverse it. For instance, between 1999 and 2000, 12 northern states expanded the application of Islamic law in Nigeria by re-introducing Islamic criminal law which had been abolished by the British. Scholars have written about this effort, and in fact earlier ones.Footnote 3 Similarly, the impact of colonialism on the application of Islamic law in Nigeria has been adequately covered.Footnote 4 However, there seems to be absence of literature regarding the impact of the recent expansion on Nigeria's legal hybridity as a colonial legacy. This article attempts to fill this gap. It raises the question whether the expansion can amount to breaking the hybridity. The question is relevant because the expansion appears to be a force liberating its beneficiaries from the dreaded colonial influence. (Although the re-introduction of Islamic criminal law was achieved through codification, the article does not however touch on whether or not Islamic law can be codified and/or enforced successfully by the state.)Footnote 5

In finding an answer to this question, the article does three major things. First, it shows how the British colonial administration in Nigeria created the hybridity. Secondly, it examines the recent quest to apply Islamic law in full, through its expansion to cover criminal matters. There is particular reference to the experiences of Zamfara and Kano States because they are the two states that set the pace for the expansion project. As the third and the main issue, the article uses some constitutional and other consequential variables to argue that, not only does the expansion fall short of breaking the hybridity, it is also evidence of the hybridity.

CREATING A LEGAL HYBRIDITY

Following the jihad led by a Fulani Sheikh, Usman Danfodio, in Hausaland in 1804, an Islamic legal system was established under the Sokoto caliphate. The system was run in accordance with the Qur'an, Hadith and other sources of Islamic law and it covered all aspects of Muslim life. There was an Islamic court system that had full jurisdiction over both civil and criminal matters.Footnote 6 For instance, capital punishments [hudud] under Islamic criminal law, such as death (the penalty for the offence of adultery) and amputation of the hand (the penalty for stealing), existed in the system. The Fulani empire did not however last for more than a century. The British colonialists conquered it following the 15 March 1903 “warfare of two different ages of history”.Footnote 7 The conquerors claimed that Islamic law was inadequate to cope with the commercial activities of the new colony. They also believed that English law was the best system to serve their interests. Therefore they designed an endless and self-perpetuating process of legal domination.Footnote 8

The British introduced English law with a view to raising the colony “to a higher plane of civilisation”.Footnote 9 Yet they did not want to uproot Islamic law completely. They therefore set up a dual system of Islamic (native or Alkali) courts with jurisdiction over natives and a hierarchy of English (modern) courts with jurisdiction over non-natives.Footnote 10 They abolished capital punishment [hadd] under Islamic criminal law through the enactment of the Native Court Proclamation No 5 of 1900 which outlawed the death penalty or “inhuman” punishments such as cutting off the hand. Under the enactment, native courts were to operate subject to rules made by the high commissioner and the (British) resident was empowered inter alia to: establish courts in his province; enter and inspect the native courts; transfer a matter from one court to another; and review the findings of courts.Footnote 11

At the same time, the Protectorate Court Proclamation No 4 of 1900 established the Supreme Court, the provincial courts and the cantonment courts with varying jurisdictions over non-natives, statutory offences and civil matters governed by English law.Footnote 12 Then in 1933, a High Court for the Protectorate of Nigeria (excluding Lagos) was established with general jurisdiction, except for land and family matters over which native courts had jurisdiction.Footnote 13

It was the colonialists who determined which local civil laws applied, because some aspects of them were thought to be archaic.Footnote 14 They also assumed direct observance, interpretation and enforcement of the applicable Islamic law.Footnote 15 Thus, any provision of the law that was found to be “repugnant to natural justice, equity and good conscience” or “incompatible, either directly or by necessary implication, with any law for the time being in force” was not allowed to apply.Footnote 16 These were known as the “repugnancy test” and the “incompatibility test”. There was also the “public policy test” under section 14(3) of the colonial Evidence ActFootnote 17 to the effect that any Islamic law that was found to be contrary to public policy was also not fit for application. The tests were open-ended in order to give latitude for muzzling incongruous laws and in a number of cases they were employed to invalidate aspects of Islamic law.Footnote 18 The British therefore “created the native and the native law and custom against which its own identity and law continued to be created”.Footnote 19

Notwithstanding the colonial intervention, it has been said that Islamic law, including Islamic criminal law, was still “more widely, and in some respects more rigidly, applied in Northern Nigeria than anywhere else outside Arabia”.Footnote 20 In the run-up to independence in 1960 therefore, the British thought that more reforms were needed, particularly to Islamic criminal law, in order for Nigeria to join the comity of modern nations attracting foreign investment.Footnote 21 This resulted in what is called The Settlement of 1960, under which northern Nigerian Muslims, spearheaded by the government of Northern Region, agreed to make enactments to actualize the reform. Thus, the Penal Code and the Criminal Procedure Code were enacted as substantive criminal law and procedural criminal law respectively for the region.Footnote 22

The legislative act of enacting the Penal Code and the Criminal Procedure Code effectively abrogated Islamic criminal law in Nigeria.Footnote 23 However, some aspects of it were codified to pacify Muslims.Footnote 24 Islamic law in Nigeria after independence in 1960 therefore became limited to the law of personal status, and the northern native courts and their judges “became ever less traditionally Muslim and more Western”.Footnote 25 This led to a gradual relaxation of the qualifications required for the appointment as judges of the ShariaFootnote 26 courts, because a thorough knowledge of the fundamental sources of Sharia was no longer a pre-requisite.Footnote 27

The colonial hybridity continued up until 1979 when Nigeria had a new constitution, ushering in an elected civilian government after long years of military interregnum. The northern region had now been split into states. Nigeria's 1979 Constitution (the 1979 Constitution) continued to outlaw Islamic criminal law in a provision which prohibited the conviction of any person under an unwritten law. “Written law” was defined to mean an act of the federal legislature (the National Assembly) or a law of a state legislature (a State House of Assembly).Footnote 28 The constitution established a Sharia Court of Appeal for those states that desired itFootnote 29 with jurisdiction over Islamic personal law.Footnote 30 It also established two federal appellate courts, the Court of Appeal and the Supreme Court, with jurisdiction over matters in conventional law, Islamic law and customary law. The constitution requires that the courts shall be constituted by a mixture of justices learned in the three forms of law.Footnote 31

The Supreme Court hears appeals from the Court of Appeal, which handles appeals from the various lower courts. These lower courts are the Sharia/area courts in the north and customary courts in the south, having mainly original jurisdiction within permitted matters. Above them are the magistrates courts, the High Court of the State and the Federal High Court, the Sharia Court of Appeal and Customary Court of Appeal for the State. Appeals from Sharia / area courts on Mu'amalat [contractual] matters, though decided on the basis of Islamic principles, until recently went to the English-type High Court (Appellate Division) constituted by two justices who may not have undergone any training in Islamic law and who may not even be Muslim.Footnote 32 These hybrid courts are found in all the states of the Federation of Nigeria, including the states where Islamic law is applied.

Nigeria's 1999 Constitution (the 1999 Constitution) which ushered in yet another civilian regime did not alter the hybrid legal system.Footnote 33 Since 1960, the laws applicable throughout Nigeria have therefore been: received English law (comprising the common law, statutes of general application and doctrine of equity); Nigerian legislation (comprising acts of the federal legislature, laws of the state legislatures, military decrees and edicts forming part of existing law, and bye-laws of various local government legislative bodies); case law / judicial precedent; Islamic law; and customary law, with the last two retaining their truncated forms.

It can therefore be seen that the making of a hybrid legal system in Nigeria was a fully conscious and planned enterprise.Footnote 34 The colonized people were inhibited from applying and developing their own laws and they were forced to apply alien laws which, instead of proceeding from domination to liberation, proceed from domination to domination.Footnote 35

EXPANSION OF ISLAMIC LAW

The changes effected on Islamic law by the colonialists hardly affected the spirit of the subjects of the law. Muslims have been on a constant watch for an opportunity to reverse the trend. The transplanted English law has been sporadically challengedFootnote 36 in northern Nigeria, which largely constituted the Sokoto caliphate. Splitting the region into states by subsequent governments did not kill the spirit. This section will examine the efforts made in Nigeria to expand Islamic law to go beyond personal status. This article will classify them into two: the efforts made before the return to civil rule in 1999 and the efforts made thereafter, with an emphasis on the latter.

Pre-1999 period

One of the earliest moves to decolonize the legal system in Nigeria was in legal education. Islamic legal education was prioritized to build manpower in the area of Islamic law. A law school (now the School for Arabic Studies) was established in Kano before independence and it became a training ground for legal experts. Staffed mainly by Arabs and later by their trainees, the school produced (as it still does) manpower for the various levels of the legal system. It is alma mater to renowned legal academics, judges, lawyers, ulama [Islamic scholars] and legal administrators, whose contributions to the system and Nigeria as a whole are immeasurable.

As formal legal training in the English common law tradition increased in Nigerian universities, some northern universitiesFootnote 37 incorporated Islamic law into their curriculum, teaching it alongside the common law. This made the universities relevant to their host communities as teaching and learning institutions. Law faculties now produce law graduates grounded in both common law and Islamic law who, after their professional training at the Nigerian Law School, are qualified to practise law or work in any legal organization or unit in any part of Nigeria. There were indications that law faculties in the predominantly non-Muslim southern states would want to introduce Islamic law into their respective programmes.Footnote 38 In fact, Lagos State University began to do so. In addition to keeping the spirit of Islamic law alive, this measure has helped greatly in improving the quality of the legal system.

Nigeria has had many constitution-making fora. These have always been characterized by heated debates between proponents and opponents of Islamic law. The former insist on having a better place for the law in the constitution, while the latter resist what they see as Islamization of the country, in the face of a clear constitutional provision prohibiting the government of the Federation or of a state from adopting any religion as a state religion.Footnote 39 The issue has grown to be a highly sensitive political and religious matter that in most cases warranted government intervention.Footnote 40 At the constituent assembly which produced the 1979 Constitution, the debate centred on the creation of a Federal Sharia Court of Appeal, separate from and co-ordinate to the Court of Appeal, to hear appeals from the State Sharia Courts of Appeal. Though the purpose was not achieved, the effort succeeded in making the State Sharia Court of Appeal (hitherto a creation of regional or state law)Footnote 41 a court established by the constitution.Footnote 42

The jurisdiction of the court was made appellate and limited to “Islamic personal law” matters.Footnote 43 The jurisdiction of the area courts was wider. Besides Islamic personal matters, they entertained criminal matters (excluding capital offences) and mu'amalat including the ownership, possession or occupation of landFootnote 44 in non-urban areas.Footnote 45 So, in 1986, the Federal Government soughtFootnote 46 to expand the jurisdiction of the Sharia Court of Appeal to enable it to hear appeals from the area courts on mu'amalat as well as criminal matters.Footnote 47 Unfortunately, the decree did not change the jurisdictional items contained in section 242 of the 1979 Constitution. Thus, in the case of Alhaji Hassan Abuja v Lawan Gana Bizi,Footnote 48 the Court of Appeal held that, because of the omission to alter the relevant section, the decree could not achieve its objective. The position thus reverted to the status quo, ie Islamic law only applied to some civil matters.

Post-1999 period

The return to civil rule in 1999 brought another opportunity to break away from Nigeria's colonial heritage. Zamfara StateFootnote 49 declared that it was re-introducing the Islamic legal system in full within its domain.Footnote 50 This followed the report of an 18 member law review committee constituted by Governor Ahmed Sani barely two months after his inauguration. The report recommended that Islamic penal law could “fully” be enforced without offending any provisions of the constitution. “Full implementation of the law started on 27th January 2000.”Footnote 51 The state reorganized the judiciaryFootnote 52 and enacted the Sharia Penal Code Law and Procedure, derived purely from Islamic sources. The colonial codes, Penal Code and the Criminal Procedure Code were therefore repealed. By this action, Islamic criminal law, phased out by the British several decades ago, was restored to join the civil aspects of Islamic law which had been applying over the years. Appeals in all aspects of Islamic law (personal law, criminal law and mu'amalat) now go to the Sharia Court of Appeal from the area courts, now renamed Sharia courts.

The initiative in Zamfara State sparked local and international debates.Footnote 53 Yet there has been no judicial pronouncement on it.Footnote 54 More importantly, it alerted states in the north which have a predominantly Muslim population. Within a few months, 11 other northern statesFootnote 55 also re-introduced Islamic criminal law. Except perhaps Niger StateFootnote 56 and Katsina State,Footnote 57 the rest of these states substantially adopted the Zamfara style of enacting comprehensive Sharia penal code laws.Footnote 58 For instance, Kano StateFootnote 59 enacted the Shari'a Penal Code Law 2000, replacing the penal code originally enacted by the northern region. The law was made applicable before the Sharia courts established under the Shari'a Courts Law, 2000 and to persons who profess “the Islamic faith and/or every other person who voluntarily consents to the jurisdiction of any of the Shari'a Courts”.Footnote 60 The law essentially codified the classical Islamic penal laws contained principally in the Qur'an and Hadith, the two primary sources of Islamic law, and it was based on the Maliki School of Law.

The state also enacted the Criminal Procedure Code (Amendment) Law 2000 which repealed chapter XXXIII (covering sections 385–96) of the Criminal Procedure CodeFootnote 61 dealing with trials by Sharia courts, and substituted it with a new chapter that is Sharia-compliant. The Shari'a Courts Law 2000 repealed the Area Courts Edict 1968.Footnote 62 The area courts and upper area courts were renamed Sharia courts and upper Sharia courts respectively. By section 6(2) of the Shari'a Courts Law 2000, appeals from the upper Sharia courts in both civil and criminal matters now go to the Sharia Court of Appeal, leaving the (appellate) High Court with appeals from the magistrates courts where English-based Nigerian law applies.

Islamic criminal law started applying and, for the first time in 100 years, several suspects were tried by the Sharia courts under the new system. Notable cases include that of Mallam Buba Jangebe in Zamfara State. He was tried and convicted for stealing a cow and his right hand was consequently amputated.Footnote 63 Safiya Husaini in Sokoto State, Amina Lawal in Katsina State,Footnote 64 Ahmadu Ibrahim and Fatima Usman in Niger StateFootnote 65 were variously convicted and sentenced to death by stoning for committing adultery. Danladi Dahiru in Kano State was tried and convicted of theft and the court ordered that his right hand be amputated in accordance with section 134(1) of the Sharia Penal Code Law.Footnote 66 Similarly, the Upper Sharia Court, Yankaba in Kano State gave a death sentence in 2005 against Aminu Iliyasu and Shu'aibu Yusuf convicted under sections 121 and 142(a) of the Sharia Penal Code Law 2000 for raping to death three year old Zainab Abdul-Hameed.Footnote 67

The Sharia implementing states have taken further steps in socio-economic spheres to ensure full implementation of the law. For instance, they have enacted various laws and established a number of agencies to deal with social vices such as corruption, the manufacture and sale of liquor, gambling and prostitution.Footnote 68 Agencies such as the Shari'ah Commission, Zakkah and Hubusi Commission and Hisbah Board became common agencies in the states to facilitate the comprehensive application of the law.Footnote 69 The function of the Shari'ah Commission is mainly to promote, enhance and develop Islamic social and cultural values, and to initiate and implement policies that will sanitize business transactions and ensure orderly relationships among the general public in accordance with the dictates of Islamic law.Footnote 70 The function of the ZakkahFootnote 71 and HubusiFootnote 72 Commission is mainly to collect and distribute annual alms to the needy, and to manage endowments.Footnote 73 The Hisbah Board on the other hand employs corps members whose responsibilities include: enjoining one another to do good and to avoid evil; rendering necessary assistance to the police and other security agencies in the areas of preventing, detecting and reporting offences; reconciling civil disputes between willing parties; and assisting in traffic control and emergency relief operations.Footnote 74

Efforts to revive Islamic law are quite apparent from the foregoing. The most recent effort is seen as “a reaction against the Settlement of 1960, and an attempt to restore, as far as possible, the status quo ante”.Footnote 75 The settlement was seen as an act by “certain Muslim leaders in the past [which] had inflicted damage on the Shari'ah [and] the most sensible course of action available to Muslims in a situation like this is to try and correct the damage”.Footnote 76 Therefore both the agitation for the implementation of Islamic law in full and the encomiums which followed its declaration particularly in Zamfara State were laden with the Islam-west divide. For instance, in making a case for the expansion of Islamic law in Kebbi State, the Committee for the Implementation of Sharia in the state stated:

“[T]he background to the call for the revival and full implementation of the Sharia in Kebbi State was the dissatisfaction of both the Government and the people with poor administration of justice as well as the collapse of the social and political institutions of our society … under the very nose of the existing judicial system which is largely Western in its orientation and origin and which is so far removed from our cultural heritage and not surprisingly, it has failed to provide adequate remedy to all these evils.”Footnote 77

Similarly, a Muslim cleric from Yorubaland in the south who attended the public launch of Islamic law in Zamfara State thanked the governor and members of the State House of Assembly for making it possible “for Allah's law to be operative in [the] State instead of man-made law forced on us by our colonial masters”.Footnote 78 A legal scholar was more emphatic about the Zamfara initiative when he stated that “what Governor Sani did was a revolution hitherto unthinkable. What the colonial masters removed after intensive negotiations based on the reports of so many committees, Governor Ahmad Sani restored by a single simple declaration.”Footnote 79

Laudable as the expansion of Islamic law appears, is legal hybridity still not a permanent feature in Nigeria, including in the Sharia implementing states? Can the expansion of Islamic law amount to breaking the legal hybridity made by the colonial masters? It is to these questions that this article now turns.

CAN THE LEGAL HYBRIDITY BE BROKEN?

If the answer to these questions is in the affirmative, the story of Islamic law in Nigeria would translate to the story of the making and breaking of a legal hybridity, at least in the Sharia implementing states of the country. This article however is more inclined to an answer in the negative. It argues that, instead of breaking the legal hybridity, the application of Islamic law in Nigeria rather affirms and reinforces that hybridity. This section discusses some constitutional and other consequential variables which seek to support this argument.

Nigeria is one country under one constitution

It needs to be stated that, by re-introducing Islamic criminal law or even seeking to implement the Islamic legal system in full, none of the Sharia states in Nigeria sought to secede from Nigeria. The country has remained one as a federal republic under the 1999 Constitution, as amended. Unlike what obtained under the First Republic when regions forming Nigeria had their various constitutions in addition to the federal constitution, there are no state constitutions in Nigeria today. The oneness of the country finds expression early when the constitution declares that

“We the People of the Federal Republic of Nigeria, having firmly and solemnly resolved to live in unity and harmony as one indivisible and indissoluble sovereign nation under God dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding and to provide for a constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people do hereby make and give to ourselves the following constitution.”Footnote 80

The constitution further provides that “Nigeria is one indivisible and indissoluble sovereign state to be known by the name of Federal Republic of Nigeria.”Footnote 81 The country is a federation consisting of states and a Federal Capital Territory.Footnote 82 There are 36 states in NigeriaFootnote 83 including all the 12 states that re-introduced Islamic criminal law.Footnote 84 The constitution is currently undergoing a fourth amendment process and there has not even been a proposal to dismember any of the 12 states from Nigeria.Footnote 85

The constitution is the supreme law of Nigeria

Nigeria is a heterogeneous and amalgamated country consisting of more than 250 ethnic groups with Christianity and Islam as her two major religions.Footnote 86 The country is therefore both multi-cultural and multi-religious. Like other similar constitutions of the world, the Nigerian Constitution constitutes “articles of association” or “rules of union” binding all groups and individuals. The constitution is the “grundnorm” from which all persons or institutions derive powers and authority. Governance and running a legal system would entail the making of other laws and that explains the establishment of federal and state legislative bodies with powers to legislate for the order, peace and good governance of Nigeria.Footnote 87

Given these legislative powers and considering the heterogeneous nature of Nigeria, conflicts between one ordinary law and another, and between other laws and the constitution, cannot be ruled out. As a matter of fact, such conflicts are inevitable. Determination of which law will prevail depends on whether the conflict is between state law and a federal law or between state laws themselves.Footnote 88 However, where an ordinary law becomes inconsistent with the constitution, the constitution will always prevail. This is a principle known as “the supremacy of the constitution”.

Nigeria does not only uphold this principle, it also adds that neither the country nor any part of it shall be governed except in accordance with the constitution and that, where any other law is inconsistent with the constitution, that law shall be void to the extent of the inconsistency. The relevant passages of the constitution are as follows: “[t]his Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”Footnote 89 “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.”Footnote 90 “If any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”Footnote 91

The supremacy provision has been contained in all the constitutions under which Nigeria has operated since independenceFootnote 92 and, in several cases, the Supreme Court has given judicial backing to those provisions.Footnote 93 More recently, the court reiterated the principle in the case of Alhaji Karimu Adisa v Emmanuel Oyinwola and Others when it stated:

“It is both a fundamental and elementary principle of our law that the Constitution is the basic law of the land. It is the supreme law and its provisions have binding force on all authorities, institutions and persons throughout the country … The Constitution being the supreme law of the land, stands above other enactments, statutes or laws and its provisions cannot be made subject to any other Act or enactment except by direct and clear provisions to that effect.”Footnote 94

There are at least three implications of the supremacy provision vis à vis the application of Islamic law in Nigeria. First, the general governance of the Sharia implementing states cannot be done “except in accordance with the provisions of [the] Constitution”.Footnote 95 Thus, these states do not have any constitution(s) which would be the source of their powers and authority apart from the Nigerian Constitution. In this respect, these states are no different from other states of the federation.

Secondly, the constitution is the yardstick against which all actions of the 12 states can be measured. Expansion of the application of Islamic law to cover criminal justice and other socio-economic activities must be weighed on the scale of the constitution and not against any other law or system. For instance, since the states are within Nigeria, and Nigeria operates one constitution which is supreme, they cannot formally use the Qur'an as a yardstick, notwithstanding that the law sought to be applied is a religious law rooted in the Qur'an.

Finally, when measured against the constitution, the application of Islamic law can only be valid if it is consistent with the constitution. Put differently, in an effort to apply Islamic law, if any action is taken (such as making a state law) that goes contrary to the constitution, that action would be invalid to the extent of its inconsistency with the constitution. That was why the committee which recommended the implementation of Islamic law in full in Zamfara State was cautious when it reported that such implementation was possible “without offending any of the provisions of the Constitution”.Footnote 96 It is important however to note that the finding and declaration of such inconsistency can only be done by a court of competent jurisdiction upon an action filed seeking such finding and declaration. The opinion of persons, groups or even the government of any state or of the federation cannot be a substitute for the court. Although an attempt has been made to determine the constitutionality or otherwise of the application of Islamic law,Footnote 97 no judicial pronouncement has yet been made on this issue.

The constitution is the enabling law

The constitution is not only the supreme law, it is also the law that enabled the inclusion of Islamic penal law in Nigeria. It is the enabling law in two major respects. First, of the three arms of government in Nigeria,Footnote 98 the executive and the legislature are the dramatis personae so far as the introduction of Islamic criminal law is concerned. As noted above, legislatures had to enact laws in order for Islamic law to be expanded. At times, as happened in Zamfara State, it is the executive arm of government that initiates bills which ultimately become laws. Bills may be sponsored privately (as happened in Kano State)Footnote 99 or initiated by the legislature (such as in Yobe and some other states). In any event, they normally become laws upon assent by the chief executive of the state, ie the governor. The executive also plays a role in the establishment or building of courts and the appointment of judges.

The two institutions, the executive and the legislature, are creatures of the constitution.Footnote 100 The governor who constitutes the executive body,Footnote 101 and the members of the State Houses of Assembly are voted into their respective offices by virtue of the constitution.Footnote 102 It is the constitution which provides for their respective qualificationsFootnote 103 and tenures of officeFootnote 104 for instance. Both arms ought to discharge their respective duties as spelt out by the constitution.Footnote 105 It follows that, since the executive and the legislature are indispensable in the application of Islamic law, the constitution has enabled such application by creating and sustaining the institutions for, without them, the law would not have been applied.

The other enabling aspect of the constitution is more direct. As noted above, re-introduction of Islamic criminal law was achieved through the codification of classical Islamic offences and punishments. The legislatures did not codify out of fancy. It was in order to comply with section 36(12) of the 1999 Constitution which provides that “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law”. By definition, Islamic law in the classical sources is not a written law because the provision states further that “in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”. Thus, a state wishing to implement Islamic criminal law would first have to codify it into “a law of [the] state” through the House of Assembly.

Law-making activity is also enabled by the constitution. The House of Assembly derives its law-making powers from the following provisions of the constitution:

“The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.”Footnote 106

“The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say

  1. (a) any matter not included in the Exclusive legislative list set out in Part I of the Second Schedule to this Constitution;

  2. (b) any matter included in the Concurrent legislative list set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

  3. (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”Footnote 107

Crime as a legislative item is not included in the exclusive legislative list of the constitution; so, on this basis alone, the State Houses of Assembly can legislate on it. The Sharia implementing states relied on these provisions when they codified Islamic criminal law.

The penal laws as codified could not operate in a vacuum. Courts were needed to apply them through the trial of persons suspected to have committed the relevant offences. The constitution has already vested judicial powers in every state in the courts established for that state.Footnote 108 The State High Court and the Sharia Court of Appeal are the relevant state courts established by the constitution.Footnote 109 However, their respective jurisdictions do not cover the trial of offences under Islamic criminal law.Footnote 110 It is for this reason that the constitution included “such other courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws”Footnote 111 among the courts with vested judicial powers in the state.

The area courts already established by the Area Courts Edict 1968 could have been authorized by the Houses of Assembly to exercise original or appellate jurisdiction on Islamic criminal law as was done in states like Kaduna and Niger. However, as noted above, other states like Zamfara and Kano had to establish Sharia courts (replacing the area courts) to apply the new penal laws. Whether applied by the area courts or the Sharia courts, the point remains that it is by virtue of section 6(5)(k) of the 1999 Constitution that such courts exercise jurisdiction to apply Islamic law generally and to try criminal offences under the new Islamic penal laws in particular. In other words, the establishment of the courts through ordinary laws (statutes) is enabled by the constitution.

As stated above, states like Kano have expanded the jurisdiction of the Sharia Court of Appeal to include criminal appeals. Civil and criminal appeals go from there to the Court of Appeal and finally to the Supreme Court. The constitution requires that, out of the minimum of 49 justices of the Court of Appeal, there shall be at least three persons learned in Islamic law to hear appeals dealing with Islamic law.Footnote 112 Though no such requirement applies for the Supreme Court,Footnote 113 the system always ensures justices learned in Islamic law are appointed to hear appeals on Islamic law matters. The Sharia Court of Appeal, the Court of Appeal and the Supreme Court were established by the constitution.Footnote 114

The establishment of the Sharia Court of Appeal and the extent of its jurisdiction came under the constitution for the first time in 1979,Footnote 115 and the relevant provisions were replicated under the 1999 Constitution.Footnote 116 Admittedly, Islamic law was being applied long before it found a place in the constitution. The area courts and the Sharia Courts of Appeal applied it at trial and appeal levels respectively, as enabled by the respective laws that established them.Footnote 117 However, so far as the application of the law at appellate federal level is concerned, it can be argued that it is enabled by the constitution since the establishment, constitution and jurisdiction of the appellate courts is as laid down by the constitution.

Moreover, the constitution enables the grand kadi [judge] of a Sharia Court of Appeal to make regulations on the practice and procedure of the court.Footnote 118 For instance, the Shari'a Courts (Establishment and Territorial Jurisdiction) Order 2000, made by the grand kadi of Kano State, which specified the territorial jurisdiction of each Sharia court and made that of the upper Sharia courts unlimited, was arguably made not only pursuant to section 9 of the Shari'a Courts Law, but also pursuant to the constitution.

The constitution institutionalizes the hybridity

From this analysis, it is clear that the constitution does not only enable the application of Islamic law, it also institutionalizes the legal hybridity. The court system in the constitution shows that, at the state level, there are the conventional High Court of the State, the Sharia Court of Appeal or the Customary Court of Appeal, magistrates courts, and Sharia/area courts or customary courts. Although the constitution did not create magistrates courts, Sharia / area courts or customary courts, it recognized them under section 6(5)(k) of the 1999 Constitution. These courts are found in each state of the federation including the Sharia implementing states.

The Federal High Court also has a presence in each state. The two federal appellate courts, the Court of Appeal and the Supreme Court, are constituted by hybrid justices. They are fora where the three streams of conventional law, Islamic law and customary law meet, though “their waters do not mix”. The existence of a variety of courts is a pointer to the fact that a variety of laws (ie conventional law, Islamic law and customary law) apply in the country. By the establishment of a hybrid court system and the recognition of hybrid applicable laws, it can be said that the constitution has institutionalized a hybrid legal system.

Consequential variables

Because the constitution has enabled the application of Islamic law and at the same time institutionalized legal hybridity, certain inevitable consequences follow, which are further evidence of the hybridity. Three of these consequences are: a hybrid system of legal education; a hybrid legal practice; and an incomplete Islamic criminal law. These will be discussed next.

Hybrid legal education

The system of legal education in the country must be reflective of the hybridity. Students wishing to obtain the Bachelor of Law degree (LLB) in Nigeria must be taught conventional law, Islamic law and/or customary law in university. While conventional law is taught across the country, Islamic law and customary law are emphasized only in territories where they apply. For instance, while Bayero University Kano (located in a predominantly Muslim territory) teaches Islamic law, the University of Calabar (located in a predominantly Christian territory with customary norms) will be more concerned with customary law instead.

Legal education in Nigeria is regulated by the National Universities Commission (NUC) and the Council of Legal Education (CLE). The former focuses on university education generally, laying down criteria for the award of degrees in various fields of study. For each programme, NUC sets down minimum academic standards which universities must satisfy to be accredited. CLE is concerned exclusively with law programmes in the universities and subsequent Bar training at the Nigerian Law School, which qualifies law graduates as barristers and solicitors. The NUC criteria for a law programme are more reflective of the legal hybridity, as CLE's concern at the Law School is more of professional training based on the assumption that law graduates must have been exposed to the hybrid legal system at university.

In what it calls “Benchmark Minimum Academic Standards for Undergraduate Programmes in Nigerian Universities” (B-MAS) for the law discipline dated April 2007, NUC gives a list of 13 conventional law courses which are compulsory.Footnote 119 No Islamic law or customary law courses appear in the list of the compulsory courses. However, the content of some of them includes aspects of Islamic and customary law. For instance, the course content of “Nigerian legal system” lists sources of Nigerian law as “legislation, judicial precedent/case law, customary law, Islamic law, English common law and doctrine of equity”.Footnote 120 There are also topics on “conflict between different customary laws/Islamic laws, English law and customary law or between English law and Islamic law”.Footnote 121 Nevertheless, under the course, a student must study types and jurisdictions of courts, including all the courts created by the constitution (ie courts of record),Footnote 122 magistrates courts, customary courts and Sharia / area courts.Footnote 123 Similarly, the compulsory property law course has as a major topic “customary land law/Islamic land law”.Footnote 124

B-MAS does not stop at including Islamic law and customary law aspects within the compulsory conventional law courses; it also finds places for independent Islamic law and customary law courses on a list of 25 optional law courses. 17 of the optional law courses are conventional law courses, one is a customary law course, while six are Islamic law courses. The Islamic law courses are: introduction to Islamic law; Islamic law of crimes and tort; Islamic law of transactions; Islamic law of procedure and evidence; Islamic family law and succession; and Islamic jurisprudence.Footnote 125 It is compulsory for students to register for and pass a specified number of the optional courses in addition to the compulsory courses, because B-MAS states, as part of the graduation requirements, that “a student shall qualify for the award of a [law] degree when the student has completed and passed all the courses he registered for, including all compulsory courses and such elective / optional courses as may be specified by the university/faculty”.Footnote 126

As stated earlier, older generation federal universities in the north such as Ahmadu Bello University Zaria, Bayero University Kano, Usmanu Danfodio University Sokoto, University of Maiduguri and University of Ilorin have since introduced combined law and Sharia degree programmes where these optional Islamic law courses have been made virtually compulsory.Footnote 127 The optional Islamic law courses are now “Islamic international law” and “Islamic labour law”. Students who elect to study conventional law alone would still have to register for and pass “Introduction to Islamic law” as a course. State universities are being established and a good number of them have adopted this hybrid system of legal education. Among them are Lagos State University (in the south), Bauchi State University, Umaru Musa Yar'adua University Katsina and Yobe State University. It is expected that new private universities such as Al-Hikma University in Ilorin and Crescent University in Abeokuta will do the same.

Hybrid legal practice

With a three-way system of courts, three normative systems applying and a system of legal education reflecting this “trinity”, it should be expected that legal practice would follow the same pattern. It is obvious that legal practitioners who represent clients in court and who have a bias towards conventional law have outnumbered their colleagues with expertise in either Islamic or customary law. However the fact remains that there are a number of practitioners who are either “jacks of all trades” or who decided to specialize in Islamic or customary law advocacy.

Until the decision in Peter Uzodinmma v Commissioner of Police,Footnote 128 legal practitioners were not allowed to appear before the area courts.Footnote 129 With the constitutional provision guaranteeing to a person standing trial before a court the fundamental human right to be represented by a legal practitioner of his own choice,Footnote 130 it was decided in this case that legal practitioners cannot be barred from appearing and representing clients before any court. Because cases are decided according to the applicable law, they are reported accordingly. Published general law reports therefore report cases decided on issues of conventional law, Islamic law and customary law.Footnote 131

Appearances by legal practitioners before the conventional courts have always been conditioned upon proper professional dress. For magistrates courts, the dress is a dark suit comprising trousers, coat and a white shirt worn inside, black shoes with black socks.Footnote 132 For the State and Federal High Courts and the two federal appellate courts, the English lawyer's black gown, wig and white bibs must be added. With the establishment of the Sharia Court of Appeal and the Customary Court of Appeal in the constitution, they have also become courts of record thereby necessitating proper professional dress for legal practitioners who appear before them. In fact, judges often insist on the observance of the dress code whenever they see a barrister not fully professionally dressed.Footnote 133 To be sure, in providing a dress code, the Rules of Professional Conduct did not distinguish between types of court. The rules state: “when in court room, a lawyer shall: (a) Be attired in a proper and dignified manner and shall not wear any apparel or ornament calculated to attract attention to himself; (b) Conduct himself with decency and decorum, and observe the custom of practice at the court with respect to appearance, dress, manners and courtesy”.Footnote 134

Until recently, no formal dress has been required in practice for lawyers appearing before the area/Sharia courts and the customary courts. However, these courts are also beginning to enforce the dress code. For instance, a circular issued by the director of the Sharia Courts Department in Kano State decried the appearance of lawyers before courts in traditional attire and directed all Sharia court inspectors, judges and other judicial staff to ensure that lawyers appearing before the Sharia courts comply with the legal practitioners' dress code. The circular reads:

“This office has observed that some judges allow lawyers to appear before them without being professionally dressed, that is without the lawyers' professional dress. This attitude has led to impersonation of lawyers in courts. The attitude is against the Code of Conduct.

Therefore all staff of the judiciary, particularly judges, are called upon to watch over this attitude and that they should not give audience to any lawyer who fails to comply with the ethics of his profession.”Footnote 135

Although the circular mentioned the impersonation of lawyers, it is noteworthy that it did not cite that as a reason for seeking to ensure compliance with the dress code. Rather it is referred to as a consequence of a failure to comply. Therefore, read together with the mentioned attitude of the kadis of the Sharia Court of Appeal, it will be seen that the Islamic law sub-system does not want to be disentangled or dissociated from the conventional system. This is notwithstanding that the courts apply purely Islamic law, the language spoken in the courts is vernacular and the judges do not wear the conventional robes (they wear traditional attire). The scene in a Sharia or Customary Court of Appeal is therefore one that clearly depicts legal hybridity in action.

Partial application of Islamic criminal law

It will be recalled that what Zamfara State desired in particular was full implementation of Islamic lawFootnote 136 and the other states substantially followed Zamfara in that regard. The desire for full implementation is predicated upon the Islamic principle of a whole-hearted approach to religion.Footnote 137 Among crimes recognized under Islamic law is “apostasy” which entails leaving Islam for another religion. It is in fact categorized as a capital offence. Any state wishing to apply Islamic criminal justice in full must therefore include apostasy among the list of offences in its penal laws. This has not however been achieved in any of the 12 states that re-introduced Islamic criminal law. Apostasy as an offence is conspicuously missing from all the Sharia penal laws enacted by the states.

The complete absence of apostasy is informed by the fact that Nigeria, though heterogeneous, is one country operating one constitution as discussed above. In this constitution, certain rights have been guaranteed, including freedom of religion. The constitution provides that “[e]very person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief.”Footnote 138 This constitutional guarantee and the criminalization of apostasy are therefore mutually exclusive. In other words, they cannot co-exist as they are obviously in conflict. Because of the supremacy principle discussed earlier, the constitutional guarantee shall prevail and any criminalization of apostasy shall be void. It is for this reason that apostasy has not been criminalized by the Sharia implementing states. The governor of Zamfara State admitted that it was a concession they had to make:

“What we did in Zamfara State in 1999 with the return of Nigeria to civilian rule was to expand the scope of [the] application [of Islamic law] to cover both civil and criminal jurisdictions except for apostasy. Though a capital offence in Islam, apostasy could hardly be applied in Nigeria today, because of the provision of section 38 of the Constitution which guarantees freedom of religion, covering both freedoms to practice one's religion and change from one religion to another. This is one of the circumstantial compromises we as Muslims had to make for peaceful co-existence in our country, since Allah Subhanu Wata'AlaFootnote 139 does not place burden on any soul beyond that which it can bear as clearly stipulated in chapter 2 verse 286 and chapter 65 verse 7 of the Holy Qur'an.”Footnote 140

One could not agree more with the former governor. What this statement means is that, by virtue of the constitution which is supreme over other laws, apostasy cannot be criminalized in the Sharia states. The impossibility of its criminalization is brought to the fore not by the constitution but rather by the re-introduction of Islamic criminal law. The impossibility was practically confronted when the law was sought to be re-introduced. Thus, Islamic criminal law would remain incomplete in Nigeria so long as the country remains one under one constitution guaranteeing the right to freedom of religion.

CONCLUSION

The hybridity discussed in this article has remained a challenge to the predominantly Muslim territories of Nigeria. They have always seized opportunities to break it and revert to the previous status quo, the most recent effort being the re-introduction of Islamic criminal law by 12 northern states immediately after the return to civil rule in 1999. However, the more efforts are exerted towards breaking the hybridity, the more it becomes assertive and conspicuous. The expansion of Islamic law requires resort to the constitution as the enabling authority. Resort to the constitution further reveals that it is the overriding law; it institutionalizes the abhorred legal hybridity and it permanently truncates Islamic criminal law. Legal education and legal practice are also exposed as necessarily hybrid. The impediments to breaking the hybridity were planted during the drafting of the constitution to ensure continuity.

The hybridity is therefore nearly impossible to dislodge.Footnote 141 Islamic law can indeed be improved by the creation of parallel federal appellate courts to hear appeals exclusively on Islamic law matters for instance. This notwithstanding, advocates of full implementation of the law would have to understand and learn to live with the hybridity as long as its other variables exist and the constitution, in its present or similar nature, remains the charter of the union known as “Nigeria”.

Footnotes

1 Boahen, AAAfrican Perspective on Colonialism (1987, Johns Hopkins University Press) at vii.

2 Mamdani, MCitizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (1995, Princeton University Press).

3 Peters, RCrime and Punishment in Islamic Law: Theory, and Practice from the Sixteenth to the Twenty-first Century (2005, Cambridge University Press) at 119–25; Peters, RIslamic Criminal Law in Nigeria (2003, Spectrum Books Ltd) at 1–12; Tabi'u, M “Islamic law in Nigeria: A historical perspective on some basic issues” (1993) 19 Journal of Islamic and Comparative Law 31; Yakubu, AM et al. (eds) Understanding Shari'a in Nigeria (2001, Spectrum Books Ltd); Yusufari, MAL “The application of Islamic law in Nigeria” (1998) 4 Yearbook of Islamic and Middle Eastern Law 201.

4 Yadudu, AH “Colonialism and the transformation of Islamic law in the northern states of Nigeria” (1992) 32 Journal of Legal Pluralism 103; Tabi'u, M “The impact of the repugnancy test on the application of Islamic law in Nigeria” (1991) 18 Journal of Islamic and Comparative Law 53; Ubah, CN “Islamic legal system and the westernization process in the Nigerian emirates” (1982) 20 Journal of Legal Pluralism 69.

5 An-Na'im argues that Islamic law cannot be codified as state law. Neither can it be enforced by the state. Claiming to enforce Islamic law principles as state law, he argues, is an objective that can never be realized anywhere. See An-Na'im, AAIslam and the Secular State: Negotiating the Future of Shari'a (2008, Harvard University Press). This article considers Islamic law in Nigeria as it is (and not as it ought to be) and relates it to the legal hybridity as it exists in the country. It is a fact that codification has taken place; it is a fact that the subject of the codification is Islamic law; and it is equally a fact that legal hybridity exists. Whether technically the law will lose its “Islamic” value upon codification or whether the state can successfully enforce the law are therefore not within the purview of the article.

6 Gwandu, AA “Aspects of the administration of justice in the Sokoto caliphate and Shaykh Abdullahi Ibn Fodio's contribution to it” in Rashid, SK (ed) Islamic Law in Nigeria (1988, University of Sokoto Press) 16.

7 Johnston, HASThe Fulani Empire of Sokoto (1967, Oxford University Press) at 251–52.

8 Angie, A “Time present and time past: Globalization, international financial institutions and the Third World” 32 New York University Journal of International Law & Politics 242.

9 F Lugard's statement in Fitzpatrick, PThe Mythology of Modern Law (1992, Routledge) at 107.

10 Mamdani, MCitizen and Subject, above at note 2.

11 Peters, RCrime and Punishment in Islamic Law, above at note 3; Peters, RIslamic Criminal Law, above at note 3.

12 Elias, TOThe Nigerian Legal System (1962, Routledge & Keagan Paul) at 113; Keay, EA and Richardson, SSThe Native and Customary Courts of Nigeria (1966, Sweet & Maxwell) at 19–27.

13 Kumo, S “Application of Islamic law in Nigeria: Problems and prospects” in Rashid (ed) Islamic Law in Nigeria, above at note 6 at 45. Northern and southern protectorates had been earlier amalgamated in 1914.

14 Mamdani Citizen and Subject, above at note 2 at 115.

15 This role led to the translation of an important Arabic law book, Mukhtasar Khalil, into English. See Malik, SHA “The application of Sharia as a legal system in Nigeria” in Yakubu et al. (eds) Understanding Shari'a, above at note 3, 132.

16 Tabi'u “The impact of the repugnancy test”, above at note 4 at 53; Fitzpatrick The Mythology of Modern Law, above at note 9 at 110.

17 Chap 62, Laws of Nigeria, 1958, now chap E14, Laws of the Federation of Nigeria, 2004.

18 For example, Shehu Shayi v NA Police (1959) NNLR 9; Jalo Guri v Hadejia NA (1959) 4 FSC, 44; Maryam v Sadiku Ejo (1961) NRNLR 31; and Yunusa v Adesubokan (1971) NNLR 77.

19 Fitzpatrick The Mythology of Modern Law, above at note 9 at 110.

20 Anderson, JNDIslamic Law in Africa (1955, Frank Cass and Co Ltd) at 219, quoted in Ostien, P (ed) Sharia Implementation in Northern Nigeria 1999–2006: A Sourcebook vol 1, “Historical background” (2007, Spectrum Books Ltd) at 3.

21 Yadudu, AH “Constitution-making and the politicisation of Sharia in Nigeria” (1991) 18 Journal of Islamic and Comparative Law 23 at 24.

22 The Penal Code was originally drafted by a British lawyer, Lord Macaulay; it was made applicable to India from 1862 and “exported” later to colonial Sudan in 1899. See KS Chukkol “The Penal Code: Origins, applications and limitations” in Yakubu et al (eds) Understanding Shari'a, above at note 3, 161. Baxi lamented on this type of “exportation” in Baxi, U “The colonialist heritage” Comparative Legal Studies: Traditions and Transitions (2000, University of Cambridge) 5.

23 R Peters Crime and Punishment, above at note 3 at 119; R Peters Islamic Criminal Law, above at note 3 at 12.

24 For instance, adultery and drinking alcohol were still offences, though not in the classical sense.

25 Ostien (ed) Sharia Implementation, above at note 20 at 3.

26 “Sharia” or “Shari'ah” is an Arabic word meaning Islamic law; they are often used interchangeably.

27 Yadudu “Constitution-making”, above at note 21 at 25.

28 1979 Constitution, sec 33(12).

29 Id, sec 240(1).

30 Id, sec 242.

31 Id, sec 226(a) and (b).

32 See Yusufari “The application of Islamic law”, above at note 3; Ostien, PA Study of the Court Systems of Northern Nigeria (1999, Center for Development Studies University of Jos).

33 See for instance secs 36(12), 237(2)(b) and 277 of the 1999 Constitution.

34 Baxi, U “Global development and impoverishment” in Cane, P and Tushnet, M (ed) The Oxford Handbook of Legal Studies (2003, Oxford University Press) 455.

35 Baxi “The colonialist heritage”, above at note 22 at 2.

36 Compare with Baxi, id at 5.

37 These universities are: Ahmadu Bello University, Zaria; Bayero University, Kano; Usmanu Danfodio University, Sokoto; University of Ilorin; and the University of Maiduguri.

38 For instance, the dean of law at the University of Lagos in 1998, Prof EO Akanki, expressed this intention in a conversation with the author when the author was a postgraduate student there.

39 Sec 10 of both the 1979 and 1999 Constitutions.

40 See Ofonagoro, WI et al (eds) The Great Debate: Nigerian Viewpoints on the Draft Constitution (1977, Daily Times) at 356–88; Muhammadu, TThe Nigerian Constitution 1979, Framework for Democracy (1982, Fourth Dimension Publishers) at 29–31.

41 Sharia Court of Appeal Law, chap 122, Laws of Northern Nigeria 1963.

42 1979 Constitution, sec 240(1).

43 Such as marriage, divorce, inheritance, maintenance, custody of children and endowment. See sec 242 of the 1979 Constitution, now sec 277 of the 1999 Constitution.

44 Area Court Edict, 1968, sec 18.

45 Land Use Act 1978, secs 39 and 41.

46 Through the Constitution (Suspension and Modification) (Amendment) Decree No 26 of 1986.

47 The decree provided for the deletion of the word “personal” wherever it occurred after the words “Islamic law” in the constitution. In effect, “Islamic personal law” was intended to read “Islamic law”. The effect was to divest the High Court (Appellate Division) of all jurisdiction to hear appeals from area courts.

48 (1989) 5 NWLR (pt 119) 120; Yusufari “The application of Islamic law”, above note 3 at 207–08.

49 A state from the heart of the conquered Empire and bearing the name of a town that was important in the jihad era. The creation of states in Nigeria started in 1967. There are now 36 states plus the Federal Capital Territory, Abuja.

50 The declaration was made publicly in Gusau, the state capital, on 27 October 1999.

51 A Sani (Yeriman Bakura) “Application of Shari'a in Nigeria: Challenges and prospects” (paper presented at Bayero University Kano, on 18 May 2013).

52 Shari'ah Courts (Administration of Justice and Certain Consequential Changes) Law No 5, 1999.

53 See Ado-Kurawa, IShari'ah and the Press in Nigeria: Islam Versus Christian Western Civilization (2000, Kurawa Holdings Ltd).

54 Olisa Ogbakoba, SAN, of the Civil Liberties Organization filed a suit in Zamfara State to challenge the constitutionality of the Zamfara initiative. The suit was later withdrawn perhaps due to political pressure for fear of what the pronouncement might trigger in a country that is very sensitive to religious matters.

55 The other states are Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto and Yobe. All these states (except Borno and Yobe, which were under the Islamic Kanem-Bornu Empire established by Sheikh Al-Amin El-Kanemi) were territories under the conquered Sokoto caliphate. Together with Zamfara State, they are referred to in this article as “Sharia implementing states”.

56 Niger State did not repeal the Penal Code. It merely amended it to incorporate Islamic criminal law. See the Niger State Penal Code (Amendment) Law 2000 in (2000) 25/8Niger State of Nigeria Gazette at B29–B36.

57 Katsina State incorporated Islamic criminal law by reference as contained in the primary sources of Islamic law, that is to say the Qur'an and Hadith. See the Katsina State Islamic Penal System (Adoption) Law 2000: (2000) 11/5Katsina State of Nigeria Gazette, supp pt A, at A97–98.

58 Peters Islamic Criminal Law, above at note 3 gives some detail on the re-introduction of Islamic criminal law in Nigeria. More detail can be found in Ostien (ed) Sharia Implementation, above at note 20, vols I–V.

59 Governor Rabi'u Musa Kwankwaso publicly declared the introduction of Islamic law in the state on 21 June 2000.

60 Sharia Penal Code Law 2000, sec 3.

61 Laws of Kano State 1991, chap 37.

62 Id, chap 9.

63 Unreported no 28/CR/2002; appeal no SCA/NS/CR/408/2002. See “Political Sharia?: Human rights and Islamic law in northern Nigeria” 16/9(A) Human Rights Watch Report (September 2004) at 25.

64 The decision in the case of Safiya Husaini was later overturned by the Sharia Court of Appeal (appeal no SCA/GW/28/2001); there was much campaigning by human rights activists in favour of the convict and she was later honoured with citizenship in Rome. Case no 9/2002 regarding Amina Lawal was decided on 20 March 2002 by Shari'ah court Bakori; the decision was later overturned by the Sharia Court of Appeal (appeal no 36/SCA/2002), again after much activism by human rights organisations. These two cases attracted local and international attention and they are discussed extensively in Ostien (ed) Sharia Implementation, above note 20: vol V “Two famous cases”.

65 Upper Sharia Court, New Gawu. See “Niger Sharia court sentences two to death by stoning” (29 August 2002) The Guardian (Nigeria) at 1; and “Political Sharia?”, above at note 63.

66 Commissioner of Police v Danladi Dahiru, case no CR/171/2001 tried by Upper Sharia Court, Dambatta, Kano State. The accused was a Muslim male aged 22. He was alleged to have stolen two sewing machines and some textile materials all valued at NN23,400 from a shop in Dambatta market on 25 August, 2001. The case went on appeal to the Sharia Court of Appeal. It was numbered SCA/CR/KN/9/2002, but is unreported. The court set aside the conviction and ordered a re-trial due to procedural defects in the trial proceedings.

67 See: <http://www.dailytrust.com/news1.htm> (last accessed 2 November 2013).

68 See Ostien (ed) Sharia Implementation, above at note 20: vol III “Sanitizing society”.

69 In addition Kano State, under Mallam Ibrahim Shekarau, created a Societal Reorientation Directorate (A Daidaita Sahu) which mainly preached, in various ways, economic independence, honesty, dedication to duty, mutual help, cleanliness, discipline and, above all, fear of God.

70 See for instance the Kano State Shari'ah Commission Law 2003 which repealed the Islamic Education and Social Affairs Commission Law 2000 by virtue of which Governor Rabi'u Kwankwaso had previously established the Islamic Education and Social Affairs Commission. Its functions are as spelt out in sec 4 of the law.

71 Zakkah is the obligatory alms paid from a specified amount of wealth at a specified period.

72 Hubusi means endowment.

73 See for instance the Kano State Zakkah and Hubusi Commission Law 2003. Its functions are spelt out under sec 4 of the law.

74 See for instance the Kano State Hisbah Board Law 2003, amended later as the Kano State Hisbah Board (Amendment) Law No 6 of 2005. The responsibilities of the Hisbah are as spelt out in sec 7 of the law. The work of the Hisbah is based on verses of the Qur'an and Hadiths of Prophet Muhammad specifically asking Muslims to enjoin good and prohibit evil. See Qur'an 3:104 and “Hadith no 82” in Hajjaj, MSahih Muslim (2000, Darul Fikr Beirut) at 52.

75 Ostien (ed) Sharia Implementation, above at note 20: vol I at 3.

76 I Sulaiman “Victor takes all: The Shari'ah in secular Nigeria” in K Rashid (ed) Shari'a, Social Change & Indiscipline in Nigeria 55 at 56, in Ostien (ed) Sharia Implementation, above at note 20: vol I at 8–9.

77 See the White Paper on the Report of the Committee for the Implementation of Sharia in Kebbi State, in Ostien (ed) Sharia Implementation, above at note 20: vol II “Sharia implementation committee reports and related white papers” at 184 (emphasis added).

78 Quoted in Ostien, id, vol I at ix.

79 IN Sada “The making of the Zamfara and Kano State Sharia Penal Codes” in Ostien, id: vol IV “The Sharia Penal and Criminal Procedure Codes” 22 at 25.

80 1999 Constitution, preamble.

81 Id, sec 2(1).

82 Id, sec 2(2). The Federal Capital Territory is in Abuja; see id, sec 3(4) and pt II, first sched.

83 Id, sec 3(1). This section lists the 36 states as: Abia, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.

84 See note 55 for a list of 11 of the states. Zamfara State, which set the pace, is the 12th.

85 The first amendment brought about some electoral reforms following the recommendations of the Uwais Committee on Electoral Reform in Nigeria. See 98/2 Federal Republic of Nigeria Official Gazette: Government Notice No 6, Constitution of the Federal Republic of Nigeria (First Alteration Act) 2010. The second amendment extended time for the Independent National Electoral Commission to conduct the 2011 elections. See 98/3 Federal Republic of Nigeria Official Gazette: Government Notice No 7, Constitution of the Federal Republic of Nigeria (Second Alteration Act) 2010. The third amendment was to establish the National Industrial Court in the constitution. See 98/20 Federal Republic of Nigeria Official Gazette: Government Notice No 103, Constitution of the Federal Republic of Nigeria (Third Alteration Act) 2010. The fourth amendment is a general one and began in September 2011; it is still on-going. The National Conference inaugurated by President Goodluck Jonathan submitted its report in August 2014. Amendments to the constitution are expected as a result, though not regarding provisions dealing with Islamic law.

86 The 1914 British Amalgamation of the Northern and Southern Protectorates which gave birth to Nigeria is often called “the 1914 mistake” because, apart from the three main ethnic groups of Hausa/Fulani, Igbo and Yoruba, there are several minorities. See CP Aka “Nigeria: The need for an effective policy of ethnic reconciliation in the new century” (2000) Temple International and Comparative Law Journal, available at: <http://uk.westlaw.com/welcome/westlawinternational/default.wl?TF=1&TC> (last accessed 2 November 2013).

87 1999 Constitution, sec 4.

88 By virtue of sec 4(5) of the 1999 Constitution, when a law made by the House of Assembly becomes inconsistent with a law made by the National Assembly, the latter shall prevail and the former shall be void to the extent of the inconsistency. Where the conflict is between two state laws or two federal laws, the court has to decide considering the circumstances of the case, for example which law was enacted first.

89 Id, sec 1(1).

90 Id, sec 1(2).

91 Id, sec 1(3).

92 1960 Constitution, sec 1; 1963 Constitution, sec 1; and 1979 Constitution, secs 1(1) and (3). The 1960 and 1963 Constitutions did not mention the word “supreme”. However the supremacy could be inferred from the constitutions' clear authority over other laws (including the regional constitutions which then existed) which may be inconsistent with them. However, such supremacy was “subject to the provisions of section 4 of [the] Constitution” which meant that the constitutions' authority was subject to the over-riding power of Parliament to alter any of their provisions. The 1979 and 1999 Constitutions do not contain this “subject to” provision. Nevertheless its equivalent is contained in secs 9 of these constitutions, which recognize the power of the legislature to alter any of their provisions.

93 See for instance Doherty v Balewa (1963) 1 WLR 949 and Lakanmi and Others v Attorney-General Western State and Others (1971) 1 UILR 201.

94 (2000) 10 NWLR (pt 674) 116 at 191, para C and 193, para F.

95 See note 90.

96 See note 51.

97 See note 54.

98 The executive, the legislature and the judiciary.

99 A Bill to Establish Sharia Court to Apply Sharia Law in Kano State was sponsored privately.

100 At the state level, the governor's office is established by sec 176(1) of the 1999 Constitution, while the House of Assembly is established by sec 90.

101 He appoints commissioners and other aids by virtue of id, secs 192, 193 and 196.

102 See id, secs 177, 178 and 179 on the election of a governor, and secs 106 and 112–19 on the election of members of a House of Assembly.

103 Id, sec 177 provides: “A person shall be qualified for election to the office of governor of a State if – (a) he is a citizen of Nigeria by birth; (b) he has attained the age of thirty-five years; (c) he is a member of a political party and he is sponsored by that political party; and (d) he has been educated up to at least School Certificate level or its equivalent.” Except for the citizenship by birth qualification and age qualification (which is put here as 30 years), sec 106(1) specifies the same qualifications for election to a House of Assembly.

104 See id, sec 180 for the governor's tenure of office and sec 109 for the tenure for members of the House of Assembly.

105 See id, chap VI, pt II, containing secs 176–212 on the state executive, and chap V, pt II containing secs 90–129 on the State House of Assembly.

106 Id, sec 4(6).

107 Id, sec 4(7)(a), (b) and (c).

108 Id, sec 6(2).

109 Id, sec 6(5)(e) and (g); there is also the Customary Court of Appeal for a state under sec 6(5)(i) but this does not exist in any of the Sharia implementing states.

110 Id, sec 272 vests civil and criminal jurisdictions on the High Court of a state but this is subject to sec 251 (on the exclusive jurisdiction of the Federal High Court) and other provisions of the constitution. It appears that, with the codification of Islamic criminal law, nothing stops the State High Court from assuming jurisdiction over Islamic law offences. However, since appointment as a judge of the court does not require any qualification, experience or scholarship in Islamic law (see sec 271(3)), unlike the Sharia Court of Appeal for instance (see sec 276(3)(a), (b)(i) and (ii)), it should not be expected that the court would assume such jurisdiction. On the other hand, sec 277 makes the jurisdiction of the Sharia Court of Appeal purely appellate. Further it apparently limits it to civil matters and specifically Islamic personal law, such as issues of marriage, divorce, inheritance and custody of children.

111 Id, sec 6(5)(k).

112 Id, sec 237(2)(b); there is a similar requirement on customary law in the sub-section.

113 Id, sec 230(2).

114 Id, secs 275, 237 and 230 respectively.

115 1979 Constitution, secs 240(1) and 242.

116 1999 Constitution, secs 275 and 277.

117 The area court, now renamed the Sharia court in most of the northern states, was established by the Area Court Edict 1968. The Sharia Court of Appeal was first established under the Sharia Court of Appeal Law, chap 122, Laws of Northern Nigeria, 1963.

118 1999 Constitution, sec 279.

119 These are: legal methods; constitutional law; law of contract; criminal law; company law; commercial law; law of equity and trusts; law of evidence; jurisprudence; property law; Nigerian legal system; law of torts; and compulsory final year essay. See B-MAS at 21.

120 Id at 26.

121 Id at 27.

122 These are the Supreme Court, Court of Appeal, High Court of a state, High Court of the Federal Capital Territory Abuja, Federal High Court, National Industrial Court, Sharia Court of Appeal of a state, Sharia Court of Appeal of the Federal Capital Territory Abuja, Customary Court of Appeal of a state and Customary Court of Appeal of the Federal Capital Territory Abuja.

123 B-MAS at 27.

124 Id at 28–29.

125 Id at 22.

126 Id at 3–4.

127 In Bayero University Kano, “Arabic for legal studies” is a course every student must register for and pass.

128 (1982) NCLR 325.

129 Sec 390 of the Criminal Procedure Code, chap 30 Laws of Northern Nigeria 1963 prohibited legal practitioners from appearing before the area courts.

130 This was contained in sec 33(6)(c) of the 1979 Constitution, now replicated in sec 36(6)(c) of the 1999 Constitution.

131 See for instance the comprehensive index to Nigerian Weekly Law Reports (NWLR) 2000–01, pts 639–92. Pages 328–31 contain several cases on customary law; pages 461–64 contain cases on Islamic law; while all other pages are on various aspects of conventional law. Similarly, the comprehensive index to NWLR 2005 (vol 1), pts 906–59 has cases on customary law on pages 357–62, cases on Islamic law on page 536 and cases on conventional law on the other pages.

132 For female lawyers, the dark suit comprises a skirt, coat and a white blouse worn inside.

133 The author appears regularly before various Sharia Courts of Appeal and observes that the judges (kadis) often feel relegated when the dress code is not observed. They often say to offending barristers “you are disrespecting us, if you were appearing before the High Court you wouldn't dress in this manner”.

134 Rules of Professional Conduct for Legal Practitioners, 2007, sec 36.

135 Circular No (5) 009, DSC/CIR/27/II/163/09, dated 28 May 2009.

136 See above at note 50.

137 For instance Qur'an chap 2 verses 208 and 85 command Muslims to accept Islam wholly and not to believe some parts of the Qur'an and disbelieve other parts.

138 1999 Constitution, sec 38(1).

139 These are Arabic terms which normally follow the mention of Allah and they mean “the Most High”.

140 Sani “Application of Shari'a in Nigeria”, above at note 51 at 1.

141 Silbey, SS “Let them eat cake: Globalization, postmodern colonialism and the possibilities of justice” (1997) 31/2Law and Social Review 207.