THE ROLE OF ISLAMIC LAW AS A SEPARATE AND DISTINCT IDENTITY IN THE DEVELOPMENT OF THE NIGERIAN LEGAL SYSTEM
Abstract
Islam Law constitute one of the key indices in the current Nigerian constitutionalism and democracy project. Although it has made a considerable inroad into the nation’s grundnorm, Islamic law still seeks to extend the prongs of its justice system beyond the jurisdictional scope granted it by the 1999 constitution. The effect is that criminal and other aspects of the legal regime have been adopted by most states in Northern Nigeria but not without an affront to the secularity principle that should undergird national affairs. This paper examines the socio-economic and political implications of the extended sharia on human rights of Muslim and non-Muslim citizens. It also seeks to juxtapose the adoption of Islamic criminal law with the role a religion and its laws should play for national integration and social cohesion. The study equally suggests ways by which Nigerian Islamic law and religion would be made to join in winding the wheel of progress of Nigerian democracy. The methodology employed is largely structural-functional and jurisprudential.
CHAPTER ONE
1.0 INTRODUCTION
The relationship between Islam and democracy in the contemporary world is quite complex. This is because the Muslim world is by no means ideologically a monolith. Various Islamic adherents and groups exhibit varied attitudes to popular and modern notions of democracy and its tenets. Esposito & Voll (2001: n.p.) observe that studies present “a broad spectrum of perspectives varying from the extremes of those who deny a connection between Islam and democracy to those who argue that Islam requires a democratic system”. In between the extremes is a position of those who hold that “Islam is a support for democracy even though their particular political system is not explicitly defined as Islamic” (Esposito & Voll, 2001: n.p.).
Islamic law came with the Islamic religion, which penetrated, into Kanem-Bornu and Sokoto Caliphates in the 8th and 11th Centuries respectively. Islamic law thought divides into two broad divisions, the Sunni and the Shia. Among the Sunni, there are four schools (Madhahib, singular, Madhab) of jurisprudence – the Hanafi, Hanbali, Maliki and Shafi’i schools named after their respective founders. Maliki law is dominant and official school of Islamic law (madhab) in Nigeria. It has been so since the *17th century. Prior to colonialism, Islamic law had become the institutionalised law in a large part of the northern part of the country. Since the 15th Century until the advent of colonialism, Qadis administering Islamic law have been continuously appointed in the northern part of the country. The revivalism movements of Uthman dan Fodio which culminated in the Sokoto Caliphate and others in the much older Kanem-Bornu empire ensured a well-organised system of administering Islamic law in the north. There has also been since that period, a strong supporting traditional Islamic law education. Many centres of learning in the area that is now northern Nigeria attained worldwide fame. During this period Islamic law was administered by courts manned by highly trained professional alkalai (judges). These judges were generally men of great respectability and considerable learning. They were literate and they based their judgements on written sources. The Emir’s courts served as the last appellate court.
Islamic law was so much in enforced in Northern Nigeria that at the advent of British occupation of the north, it ranked as one of those places in the British Empire where Islamic law was enforced to the fullest. Nonetheless, local customs are still relevant in two major ways. First, there were and still are pockets of tribes in the north who are not Muslims. In consonance with the Islamic principle of freedom of religion and judicial autonomy for non-Muslims, customary law applied and still applies to such peoples. Secondly, local customs (‘urf) to some extent influence practices of Muslims particularly in the area of family law.
The advent of colonialism assured the dominancy of common law in the Nigerian legal system at the expense of Islamic law and customary law. Indirect rule system.
Various writers have complained about the “step motherly treatment” given to the Islamic law by the colonial masters. The position of the Sharia Court of Appeal compared with that of the High Court reflects too well, the inferior position in which the colonial masters placed Islamic law vis-à-vis the common law in the Nigerian legal system.
Since independence in 1960, State law have influenced the Sharia Court of Appeal both positively and negatively. 1999. Since it’s established the Sharia Court of Appeal has been the centre of many controversies.
1.1 STATEMENT OF THE PROBLEM
The Sharia Court of Appeal is supposedly an Islamic law court administering Islamic law. But, it is also a court within the Nigerian legal system which system is based on common law and which courts are patterned after the English courts. The court is therefore one created, defined and controlled by state law and to some extent, influenced by the common law. Again, as the Sharia Court of Appeal it is supposed to be is a superior Islamic law court, one with coordinate jurisdiction with the High Court, it is logical to expect it to have an exclusive jurisdiction when it comes to Islamic law. Yet again, this is not the case – it has had to contest the Islamic law jurisdiction with the High Court in some matters. Further still, unlike the other courts in the country which are perceived simply as ‘law courts’, the Sharia Court of Appeal is also seen by some as a ‘religious’ court. In this context, the court has been subject of many religion-centered controversies which has to some extent influenced the fortunes of the court. This study investigates the extent to which the Sharia Court of Appeal has been influenced by these three factors.
1.2 SIGNIFICANCE OF THE STUDY
“The current insecurity challenge in Nigeria is at an alarming rate that calls for a greater concern. This emanate from low level civil disorder, large scale violence, even armed insurgency…” (Alna, et al., 2014:37).
With the level of insecurity challenges in Nigeria, there is need to avoid policies that would depict the country into national catastrophe. The mixture of ethnic religion with state politics by favoring Islam as a religion worthy of inclusion in the 1999 Nigerian Constitution has opened door for unavoidable critics, because of its implications in the future national polity. With “Islamic law still seeking to extend the prongs of its justice system beyond the jurisdictional scope granted it by the 1999 constitution;….”(Oraegbunam, 2000:1), the Nigerian public perceives the sharia law movement as a vehicle for mobilization of radical Muslims to covert the rest of the states to Islamic faith under Sharia law, thereby, impose Sharia upon the country when the principles of the Sharia is solidified. The practice of Sharia in Nigeria is still at its rudimentary stage from 1999 till 2015 which is nearly seven years. This study seeks the general opinions through survey about people’s perceptions of the Sharia in Nigeria. This research anticipates the reactions of the general public if Sharia has to extend beyond its jurisdictional boundaries granted by the Nigerian Constitution.
1.3 RESEARCH QUESTIONS IN THIS STUDY
- In what ways have State Law and the Common Law influenced the administration of Islamic law by the Sharia Court of Appeal? And what are the conflicts that have emerged between Islamic law and these two other laws in the Sharia Court of Appeal?
- How have the Sharia Courts of Appeal reacted to the conflicts between Islamic law on one hand and State law and the common law on the other? And how has the contest between Islamic law on the one hand and State law, other State courts and common law played out?
- How has religious politics influenced the fortunes of the Sharia Court of Appeal?
- In these contexts, in what ways can the administration of Islamic law in the Sharia Court of Appeal be improved?
1.4 OBJECTIVES OF THE STUDY
The objectives of the proposed research are as follows:
- To describe the status, jurisdiction and working of the Sharia Court of Appeal within the Nigerian legal system
- To identify the areas of conflict between Islamic law and other laws (particularly state law and common law) as expressed in the court and to analyze how these have played out in the court.
- To suggest ways by which the Sharia Court of Appeal would be more effective as court administering Islamic law in Nigeria.
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THE ROLE OF ISLAMIC LAW AS A SEPARATE AND DISTINCT IDENTITY IN THE DEVELOPMENT OF THE NIGERIAN LEGAL SYSTEM
