Sharia Criminal Courts and Nigeria’s Constitution
Ellen Richardson Thursday, 6 May 2010
In 2001, Sufiyatu Huseini, a 35-year-old woman from the northern Nigerian state of Sokoto, became the subject of international media attention and scholarly debate when sentenced to death in a sharia criminal court as punishment for adultery.[1] According to the Quran, adultery can be proven only if four male witnesses testify, but Ms. Huseini's case was evaluated under the strictest interpretations of sharia law, with her infant child serving as evidence of her crime.[2] She was eventually acquitted in 2003, but many Nigerians have been sentenced to lashings and amputations for comparable criminal offenses.[3]
Cases like these demonstrate the effects of a version of sharia law that includes oversight of criminal offenses. Ten years after criminal sharia was adopted, the authority of the Nigerian state continues to erode because the implementation of sharia law contradicts the penal code of the secular federal system. Legal pluralism under sharia has threatened the legitimacy of the Nigerian constitution and exacerbated existing hostility and divisions between Christians and Muslims. In order to avoid total state failure, citizens, religious leaders, and the international community must continue to demand a limited purview for sharia as one way to strengthen the federal state and unify the Nigerian people.
The Nigerian Legal System
The Nigerian legal system was established under British colonialism in the late 19th century. It was modeled on English common law and divided the country into northern Lagos and southern Nigeria. After north and south reunited in 1914, English law was still part of the Nigerian legal system.[4] In an attempt to meld the pre-colonial system of regional governance and un-codified laws of the people with the English legal system, Islamic and customary law was reenacted under local administration. Islamic law presided over the mostly Muslim northern states, and customary law governed the Christian south. The Islamic and customary laws of a century ago held limited authority over cultural and civic matters such as marriage and succession. They were enforced upon consenting members of the community by local religious and regional leaders, not through the criminal court system. After Nigeria's independence in 1960, customary and Islamic law remained under the jurisdiction of the Nigerian Federal system, and a secular constitutional legal system was formed in the "spirit of mutual coexistence."[5]
After a shift from military rule in 1997 and the election of President Olusegun Obasanjo in 1999, federal control began to loosen resulting from a new emphasis on democratic freedom.[6] Governor Ahmed Sani was the first to declare his state (Zamfara) a sharia state on 25 October 1999, and by 2000, a third of Nigeria's states had adopted sharia law. Capitalizing on the time of transition, politicians created loopholes and extended sharia law to include criminal rulings. Politicians used Islamic law to appeal to large Muslim populations in the north, and they pressured Muslim voters who didn't support sharia by portraying them as anti-Islamic.[7] Many voters supported sharia because they desired a just government that would put an end to corruption and poverty. Unfortunately, sharia law as implemented is inconsistent with broader Islamic values, and it has done little to bring justice to the people. Instead, sharia has degraded rule of law in Nigeria and encouraged harsh and unfair criminal punishments.
Sharia in a Secular State
The alteration of sharia to include criminal statutes undermined the legitimacy of the Nigerian constitution and weakened the federal state. The Nigerian constitution explicitly states that neither "the Government of the Federation nor of a state shall adopt any religion as State Religion," but political leaders in sharia states manipulated the language of the constitution, pointing out that Section 10 does not contain the exact phrase "secular state."[8] But it is clear that the implementation of sharia has trampled upon the secular intentions of the constitution, which also states, "neither the legislative power nor the executive power may in any way be used to aid, advance, foster, promote or sponsor religion."[9] State-sponsored implementation of sharia criminal law violates this constitutional commitment to fair treatment of religion. Muslims are subject to torturous punishments under sharia, but non-Muslims charged with the same crimes face much less severe punishments.[10] Under Nigeria's constitutional principles, just as it is improper for the southern states to dictate criminal punishments based on customary laws, sharia should only be exercised by consenting parties in civil matters and should not be entangled in criminal affairs under the jurisdiction of the federal courts.
In addition to encouraging religious discrimination and overstepping its constitutional bounds, sharia law contradicts the protections against torture and degrading treatment prescribed to by the Nigerian constitution.[11] In Sokoto State, one man had his hands amputated after stealing kitchen utensils valued at about eight dollars.[12]
Although the sharia criminal system only has jurisdiction over Muslims, many non-Muslim business owners have been targeted by sharia activists and forced to flee south.[13] After the wave of riots in Jos in January and March of 2010, thousands of people were displaced.[14] Wole Soyinka, an influential Nigerian author, called sharia a destabilizing force, and northern states' implementation of sharia "an act of breaking up the nation."[15] Corruption, competition for resources, and ethnic tensions have been divisive patterns of Nigerian identity for generations, and sharia has exacerbated the conflict by diminishing the constitutional rule of law and its religious protections. While there are many factors responsible for Nigeria's continued instability, violence between Christians and Muslims has spiked since sharia implementation, taking an estimated 15,000 lives since 1999.[16]
A Public Outcry against Sharia's Impact
Contrary to campaign promises of restoring Islamic principles, many have pointed out that criminal sharia does not reflect an accurate interpretation of Islamic law and are advocating for change. Public protest groups, religious leaders, and even state officials have advocated for a softer and more authentic interpretation of sharia. First, Christian and Muslim religious leaders scorned the contravention of constitutionality by sharia law, and are demanding stable governance to end the violence. The Archbishop of Abuja, John Olorunfemi Onaiyekan, said, "The application of sharia is unconstitutional and we must not tolerate it further."[17] Even Muslim leaders who initially supported sharia implementation have realized its detrimental effects on society. Imam and former Kano State government Sharia Board member Abba Adam Koki regrets sharia's negative impact. "People are disillusioned with the insincerity, deception, and hypocrisy which characterize the implementation of sharia."[18]
Second, some state leaders are listening to the pleas of their Nigerian constituents to oppose sharia's criminal proceedings. At the commencement of the 2010/2011 legal year, Attorney-General and Commissioner for Justice Alhaji Saka Isau announced that his state of Kwara would not implement sharia in an effort to foster religious harmony.[19] This statement shows renewed commitment to the constitutional motto of "unity, faith, peace and progress" as outlined by Article 15.2 which commands, "national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited."[20] Other state leaders would be wise to follow the Kwara example and focus on strengthening federal constitutionality by limiting sharia to civil matters.
Sharia as a Positive Social Force
To be sure, abolishing Islamic law entirely from the Nigerian legal system is not the best solution to the sharia problem. While tensions have erupted around fault lines of religious intolerance, these tensions have been encouraged by political manipulation and deterioration of the rule of law. Indeed, sharia and other forms of customary law have valuable resources that could contribute to greater stability. Some leaders have realized this and have begun working to nurture the positive capacities of sharia. One civil servant, Bala Abdullahi, has called for a "practical" interpretation of sharia that incorporates a Western view of human rights with Islamic values. Muzammil Sani Hanga, an expert of the law and member of Kano State's Sharia Commission explained, "sharia is not only about the cutting off of wrists; it is a complete way of life." This is the softer approach that early sharia proponents had hoped for a decade ago. Sharia based on social justice rather than criminal justice supports both tenets of Islamic law and Nigerian society—emphasizing values like education, women's rights, cleanliness, and charity.[21]
Conclusion
After ten years of criminal sharia law, the constitutional provisions for secularism and federal authority have been undermined, human rights have been violated, and the degradation of rule of law has divided and de-stabilized the Nigerian state. Recognizing the pluralist nature of the Nigerian population, it is vital that that Nigerian secularism as expressed by the constitution is upheld in order that citizens wishing to practice their religion are able to do so safely. Especially in a time of crisis and division, Nigerian leaders must rein in misinterpretations and manipulators of sharia in order to ensure the protection of religious freedom and physical protection of the people. While the adoption of sharia law as it pertained to civic matters was justifiable by the constitution, the criminal sentences issued by sharia courts are not. The jurisdiction of the sharia court should continue to remain beneath the federal court system, and it should be limited to Islamic personal law referring to civil matters. Only under an interpretation of sharia that emphasizes human rights, religious equality before the law and social cohesion will Nigerian constitutionality be able to exist alongside religious law.
[1] "Nigerian Woman Condemned to Death by Stoning Is Acquitted," The New York Times, 26 March 2002, sec. World. http://www.nytimes.com/2002/03/26/world/nigerian-woman-condemned-to-death-by-stoning-is-acquitted.html?pagewanted=1 (accessed 20 February 2010). See also: Dan Isaacs, "Living on Nigeria's death row," BBC News, 5 December 2001. http://news.bbc.co.uk/2/hi/africa/1694027.stm (accessed 17 February 2010).
[2] Ogbu U. Kalu, "Safiyya and Adamah: Punishing Adultery with Sharia Stones in Twenty-first Century Nigeria," African Affairs 102 (2003): 389-409, 396.
[3] Richard Dowden, "Death by Stoning," The New York Times Magazine, 27 January 2002. http://www.nytimes.com/2002/01/27/magazine/death-by-stoning.html?pagewanted=1 (accessed 18 February 2010).
[4] Vincent O. Nmehielle, "Sharia Law in the Northern States of Nigeria: To Implement or Not to Implement, the Constitutionality is the Question," Human Rights Quarterly 26 (2004): 730-759, 734.
[5] Isawa Elaigwu and Habu Galadima, "The Shadow of Sharia over Nigerian Federalism," The State of American Federalism 33, no. 3 (2002): 123-144, 126.
[6] "Court Upholds Stoning for Nigerian Mother," The New York Times, 20 August 2002, sec. World. http://www.nytimes.com/2002/08/20/world/court-upholds-stoning-for-nigerian-mother.html (accessed 20 February 2010).
[7] The New York Times,"Court Upholds Stoning for Nigerian Mother."
[8] Nmehielle, "Sharia Law," 741.
[9] Nmehielle, "Sharia Law," 742.
[10] Abdulmumini A. Oba, "The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction," The American Journal of Comparative Law 52, no. 4 (2004): 859-900, 859. http://www.jstor.org/stable/4144468 (accessed 20 February 2010).
[11] Nhemielle, "Sharia Law," 741-744. See also: Constitution of the Federal Republic of Nigeria, 1999. Available from: http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm#Chapter_2
[12] Dowden, "Death by Stoning."
[13] Kalu, "Safiyya and Adamah," 396.
[14] "Attack on Nigerian town kills hundreds," CNN, 9 March 2010. http://www.cnn.com/2010/WORLD/africa/03/08/nigeria.violence/index.html
[15] "Head to Head: Nigeria's Sharia Law," BBC News, 20 August 2002. http://news.bbc.co.uk/2/low/africa/2205295.stm (accessed 17 February 2010).
[16] Dan Isaacs, "Analysis: Behind Nigeria's Violence," BBC News, 5 May 2004. http://news.bbc.co.uk/2/hi/africa/1630089.stm (accessed 18 February 2010).
[17] The New York Times, "Court Upholds Stoning for Nigerian Mother."
[18] Aminu Abubakar, "A Decade of Sharia law in north Nigeria breeds frustration," AFP, 5 November 2010. http://www.google.com/hostednews/afp/article/ALeqM5gUYXE72TL9HXkJETz2-7JCwtKRPA (accessed 23 March 2010).
[19] Demola Akinyemi, "Nigeria: Kwara Won't Implement Shariah - A-G," AllAfrica Global Media, 18 February 2010. http://allafrica.com/stories/printable/201002180892.html (accessed 18 February 2010).
[20] Constitution of the Federal Republic of Nigeria, 1999.
[21] Lydia Polgreen, "Nigeria Turns From Harsher Side of Islamic Law," The New York Times, 1 December 2007, sec. Africa. http://www.nytimes.com/2007/12/01/world/africa/01shariah.html?_r=1 (accessed 20 February 2010). Karin Brulliard, "In Nigeria, Sharia Fails to Deliver Vows of Accountability, Equity Under Moderate Islamic Law Are Unmet," The Washington Post, 12 August 2009. http://www.washingtonpost.com/wp-dyn/content/story/2009/08/11/ST2009081103484.html?sid=ST2009081103484 (accessed 20 February 2010).