Reflections on theNew Shari’a Law in Nigeria

Prepared in cooperation with the Africa Policy Studies Program at the Council on Foreign Relations

Hauwa IbrahimHumphrey Fellow, American University Washington College of Law

Princeton N. LymanDirector of Africa Policy Studies, Council on Foreign Relations

June 2004

CONTENTS

Foreword ii

Background and Context 1

The Nigerian Legal System 2

The Shari’a Penal Code Law “SPCL” (Adopted by twelve states since 1999) 3

Two Illustrative Cases 8

The Amina Lawal Case 8

The Case of Ahmadu Ibrahim and Fatima Usman (The Couple) vs The State 15

The Need for Legal Reform 19

Nigeria’s Human Rights Obligations 27

Strategy for Legal Review and Reform 30

Conclusion 34

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FOREWORD

Beginning in 1999, twelve states within the Federal Republic of Nigeria adopted Shari’a penal

law codes in addition to their longstanding systems of Shari’a personal law. The spread of

Shari’a penal law in Nigeria attracted international attention. Nigeria is Africa’s most populous

country, with as many as 130 million people. There are as many Muslims in Nigeria, around

sixty-six million, as in Egypt. The introduction of Shari’a penal law in a country that had not

done so throughout its independence since 1960 raises questions about the role of Islamic

“fundamentalism,” anti-Western attitudes, and stability not only in Nigeria but in West Africa as

a whole.

Within Nigeria, there were mixed reactions: the decision to adopt Shari’a penal law

appeared tremendously popular among Muslims in those states, who responded to both deeply

held religious views and popular frustration with growing crime and other aspects of social and

economic decline. On the other hand, Nigerian Christians living in those states were alarmed,

fearing their rights would be restricted and that they would even be driven out of the area.

Christians in the south viewed the decision as a growing threat to Nigeria’s largely secular

government. The imposition of Shari’a penal law aggravated historic Muslim-Christian tensions

in the country, with instances of riots and related religiously based violence in the northern cities

of Kano and Kaduna and later, though for different reasons, in Jos.

There were concerns about the human rights implications of the penal codes in Nigeria

and around the world. Several cases, in which women were sentenced to death for adultery,

attracted international attention.

Hauwa Ibrahim is a Nigerian lawyer and a student of Nigerian and international law. She

worked as a defender in some of the most widely followed Shari’a cases. In 2003–2004 Ms.

Ibrahim was a Humphrey Scholar at the American University School of Law; during the spring

of 2004 she and I undertook a study to understand the structure of Shari’a law in Nigeria, its

relationship to Nigerian federal law, and how it was applied to two of Ms. Ibrahim’s prominent

cases. The following account provides special insight into the legal battles, the contending legal

concepts, and the issues at stake in Nigeria’s struggle with deeply contending views of how to

organize a multiethnic, multireligious society. Ms. Ibrahim’s sensitivity and respect for the

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Quran and the principles of Islamic tradition are especially important parts of this account,

specifically regarding how the issues of legal reform, within that tradition, can be advanced.

The report goes into considerable detail on two prominent cases: that of Amina Lawal

and that of Ahmadu Ibrahim and Fatima Usman. There is also a detailed discussion of Nigerian

federal law. This may be more than the general reader may wish, but the thrust of the arguments

are clear. The details are important for legal scholars. At the end of the report Ms. Ibrahim lays

out an agenda of legal reforms that she and her colleagues in Nigeria will be pursuing in the

coming years. She provides valuable advice for donors and the international community on how

to support such reforms within the context of Nigerian sensitivities and realities. This is an

important guide concerning the questions of religion and state, and the ways in which Muslim

and non-Muslim societies can relate effectively with mutual respect.

Princeton N. Lyman

Ralph Bunche Senior Fellow and

Director of Africa Policy Studies

Council on Foreign Relations

1

BACKGROUND AND CONTEXT

Nigeria today has a population of 132 million people. It is a country of great diversity having

many ethnic, linguistic, and religious groups living within its borders. Even today, after many

years with a single political border, Nigeria claims between 250 and 400 ethnic groups

(depending on how they are defined), speaking approximately 400 languages. Of these, the

Hausa are the dominant group in the northern area, followed by the Kanuri; the Nupe and Tiv are

predominately in the middle region; the southern area is fragmented, but the major groups are the

Yoruba, concentrated in the southwest, and the Igbo in the southeast. In 1990, 80 percent of

Nigeria’s population lived in villages.1

Nigerian society has had a history of tolerating religious pluralism. The far northern areas

of Nigeria traditionally have been predominately Muslim, but the middle region is a mixture of

Muslim and Christian. The south has had a long-standing Christian presence, featuring Protestant

and Africanized churches such as the Aladura movement among the Yoruba and Roman Catholic

among the Igbo. It also has a sizeable Muslim population. Especially in rural areas, traditional

and indigenous religious practices exist, characterized by worship of primordial spirits, dead

ancestors, and spirits of places.2

Notwithstanding the colonial rule of this large geographic area and the efforts to create a

modern nation-state,3 the north and the south have distinct characteristics and the regions

continue to encourage their unique identities and characteristics. North and south Nigeria

developed under colonial constitutions that were adopted in 1946, 1951, and 1959, but Nigeria

became an independent nation in 1960 when Great Britain granted it its independence. The first

republic is generally believed to have begun with this grant of independence, but the nation did

not technically become a republic until October 1, 1963.4

1 Library of Congress: Supra.2 Supra.3 Nigerian Political History: http://www.onlinenigeria.com/politicalHistory.asp4 Library of Congress Country Study: Nigeria:http://lcweb2.loc.gov/cgibin/query/r?frd/cstudy:@field(DOCID+ng0011

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THE NIGERIAN LEGAL SYSTEM

The Nigerian legal system has been greatly influenced by English law. Absent a body of law of

its own creation, Nigeria inherited the British Common Law and applied it until 1999. However,

the Nigerian legal system is somewhat complex and has several sub-systems. At the national

level, the federal legal system is applicable throughout the country. At the state level, each state

has its own legal system. In some states, Shari’a and customary laws are the applicable laws.5

The Federal Constitution establishes the norm for the Nigerian legal system. Other

subsidiary laws include the criminal law, administrative law, and revenue law, etc. The sources

of Nigerian law include Nigerian legislation, consisting of the adopted English law, the common

law, the doctrines of equity, statutes of general application in force in England on January 1,

1900, and statutes of subsidiary legislation on specified matters.

Nigerian legislation also includes statutes enacted by the legislature (laws enacted by

both the federal and state legislatures),6 and also ordinances which derive from other legislation

that constitutes customary law (customs that people in a certain community hold as being

binding and recognized as law by them). There are two ways of establishing customary laws

before the courts: by raising it to the court and by judicial notice of obvious facts that do not

need to be proven.7

The Nigerian judicial structure has numerous original jurisdiction and appellate courts.

The highest court is the Supreme Court. It has original jurisdiction in any dispute between the

federation and a state or between states if and in so far as that dispute involves any question

(whether of law or fact) on which the existence or extent of a legal right depends….”8 It can hear

appeals from the court of appeal.

The court of appeal has exclusive jurisdiction to hear and determine appeals from the

federal high court, the High Court of the Federation Capital Territory (Abuja), high court of a

state (Shari’a), Court of Appeal of the Federal Capital Territory (Abuja), Shari’a court of appeal

of a state, and customary court of appeal of a state. Appeals can also be brought from decisions

of court martial or other tribunals as may be prescribed by an act of the National Assembly.

5 Motherland Nigeria: http://www.motherlandnigeria.com/legal.html.6 The schedule to the 1999 constitution indicates clearly the areas each of them could legislate.7 Supra.8 Section 232. (1) Nigerian Constitution.

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The high court of a state has jurisdiction to hear and determine any civil proceedings in

which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation,

or claim is an issue or to hear and determine any criminal proceedings involving or relating to

any penalty, forfeiture, punishment, or other liability in respect of an offence committed by any

person.

Shari’a courts of appeal shall, in addition to such other jurisdiction as may be conferred

upon it by the law of the state, exercise such appellate and supervisory jurisdiction in civil

proceedings involving questions of Islamic personal law which the court is competent to decide

in accordance with the provisions of subsection (2) of the Nigerian Constitution, which states,

“The Shari’a Court of Appeal shall be competent to decide—any question of Islamic personal

law regarding a marriage… relating to family relationship or the guardianship of an infant;…any

question of Islamic personal law regarding a wakf, gift, will or succession where the endower,

donor, testator or deceased person is a Muslim;…where all the parties to the proceedings, being

Muslims, have requested the court that hears the case in the first instance to determine that case

in accordance with Islamic personal law, any other question.”9

There are a host of other courts, such as the customary court of appeal, magistrate court,

district court, customary and area court, juvenile court, specialized courts for particular matters,

and the military tribunals.

THE SHARI’A PENAL CODE LAW “SPCL”

(Adopted by twelve states since 1999)

Twelve states, primarily in the north, have adopted the new Shari’a legal system: Zamfara,

Jigawa, Bauchi, Gombe, Kaduna, Katsina, Yobe, Niger, Kano, Sokoto, Kebbi, and Borno. The

Shari’a courts in these states have jurisdiction over several new offences beyond personal law,

including theft, unlawful sexual intercourse, robbery, defamation, and drinking alcohol. The

Shari’a courts may impose punishments, pursuant to the provisions of the Shari’a Penal Code

Law (SPCL), that include death; forfeiture and destruction of property; imprisonment; detention

in a reformatory; fine; caning (flogging); amputation; retaliation; blood money; restitution;

9 Section 277 of the 1999, Nigerian Constitution.

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reprimand; public disclosure; boycott; exhortation; compensation; closure of premises; and

warning, among others.

The adoption of the SPCL attracted international attention as well as controversy within

Nigeria. One concern is that the SPCL violates basic human rights, and human dignity,

especially regarding equality before the law, equal protection of the law, torture, or degrading

and inhuman punishment. Within the Nigerian legal system, the SPCL raises questions about

certainty of law, supremacy of law, separation of state and religion, and strict standards of

evidence and proof.

Many different reasons have been advanced for the interest in and implementation of

Shari’a in northern Nigeria. One explanation is that the Nigerian federation is becoming more

decentralized, and part of the decentralization is taking the form of cultural self-determination.

Another explanation for the rise of Shari’a “militancy” is to regard it as a political bargaining

chip. Since 1999, northern Nigeria has seen a decline in its share of national office, senior

military positions, and, in some respects, the economy. As the north loses political influence in

the Nigerian federation, it is asserting new forms of autonomy to challenge the federal

government and to prepare for a national debate over the allocation of power and resources. A

third quite different interpretation is that the rise of Shari’a militancy is a consequence of

globalization. One of the repercussions of globalization is its arousal of cultural insecurity and

uncertainty about identities worldwide. Indeed, the paradox of globalization is that it

simultaneously promotes enlargement on an economic scale and stimulates fragmentation on an

ethnic and cultural scale.10

Finally, the introduction of the new Shari’a in the Nigerian legal system has been

attributed to the rising influence of “fundamentalist” groups.11 The awakening of stronger

Islamist tendencies in northern Nigeria is closely linked to the successful revolution of the

Iranian people against the Pahlavi dynasty over two decades ago. The emergence of an Islamic

government under the leadership of the Ayatollah Khomeini provided inspiration to Muslims

across the globe and in particular the youth, who now saw in Islam a viable alternative to the bi-

10 Ali A. Mazrui, Shariacracy and Federal Models in the Era of Globalization: Nigeria in Comparative Perspective:Written for presentation at the International Conference on “Restoration of Shariah in Nigeria: Challenges andBenefits,” sponsored by the Nigeria Muslim Forum, and held in London, England, on April 14, 2001. The first halfof this paper has borrowed from Mazrui’s previous writings on the Sharia in Africa.11 Sanusi Lamido Sanusi: Fundamentalist Groups And The Nigerian Legal System: Some Reflections:http://www.whrnet.org/fundamentalisms/docs/doc-wsf-sanusi-nigeria-0311.rtf.

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polar system of capitalism or communism. Various groups in different parts of the world shouted

the slogans of the Iranian revolution, including “neither east nor west, Islam only.” In the

heartlands of Sunni Islam, a new rhetoric soon emerged aimed at counteracting the Shiite threat

posed by Iran but which, incidentally, created a new corpus of Sunni fundamentalists who were

determined to reproduce an Islamic revolution, but one based on the Sunni tradition of keeping to

the path of the pious forebears (salaf as-salih).12

The “Muslim Brothers in Nigeria” (also known as the “Muslim Brothers”), which had

earlier started as a Sunni Islamic sect, were inflamed by the success of the Iranian people and

many joined Ibrahim El-Zakzaky, an economics student at a northern Nigeria university, in his

struggle for an Islamic State in Nigeria. The Muslim Brothers’ close association with Iran, and

the fact that several of their members were given “scholarships” by the Iranian government to

study at the city of Qom, led inevitably to greater influence from Shiite doctrines. The leader, El-

Zakzaky, was, himself, soon to be seen as a Shiite, a fact that led to rebellion and fragmentation

in the movement. As a result, a splinter group was formed, led by some of El-Zakzaky’s most

loyal supporters, including Abubakar Mujahid (in Zaria), Aminu Aliyu Gusau (in Zamfara) and

Ahmad Shuaibu (in Kano). This group maintained that its disagreement with Zakzaky was purely

doctrinal in that they rejected Shiite theology. They remained committed, however, to the

revolutionary process of Islamization while remaining faithful to Sunni orthodoxy.13

Ibrahim Suleiman,14 an advocate of the SPCL, suggested that beyond the “change of

guards” after Nigerian independence in 1960, nothing had really changed. Muslims, he argued,

are yet to be free from an imposed British legal system and there is hostility towards anything

Islamic. The Muslims’ demand for the Shari’a, according to Suleiman, has been adamantly and

shamelessly refused and Islam, its adherents and institutions, are daily objects of ridicule by the

mass media and are the focus of surveillance by security agencies. He further opined, “What we

have today is not the great nation that government officials tell us about on official occasions but

a group of people of diverse worldviews and cultures lacking any serious cohesion; an irksome

and arrogant Christian minority; an alienated and discontented but unyielding Muslim majority; a

few secularized elite filling vacancies created by colonialism; all living in a colony whose

12 Supra.13 Supra.14 Ibraheem Sulaiman: “The Islamic Political System and the Political Future of Nigeria.” A paper presented to theNational Conference on the Political Future of Nigeria organized by the Muslim Forum, Ahmadu Bello Universityfrom August 1-3, 1986 at Kongo Conference Centre, Zaria.

6

economy is wholly controlled by western imperialism.”15 He suggested the importance of the

struggle was a need for “independence to live according to our conviction, values and culture;

the independence to operate, the socio-economic, legal educational and political systems we

believe in, understand and respect; the independence to associate with who we wish, how we

wish and when we wish.”16

Professor Auwalu Yadudu,17 a Harvard trained lawyer and an advocate of the SPCL,

opined that Section 38 of the 1999 Constitution guarantees freedom of religion. He explained

that “a Muslim firmly believes that his submission to the Will of Allah is inchoate if he were to

choose or be made to follow some part of His, Allah’s, injunctions, the personal law, and

abandon others, the penal system. The Shari’a, defined as the Path which embodies the totality of

Islamic guidance, seeks to govern every aspect of a believer’s life. Islam, being a complete way

of life for the believers, knows not the dichotomy so much flaunted by non-Muslims, especially

Christians, that religion is a private affair of the individual. To the best of his belief, therefore, a

Muslim conceives of his faith as demanding a total submission to the Shari’a. To a Muslim,

freedom of conscience and to profess a religion of his choice alone or in company of others

amounts to not much if a pre-condition, which by the way may be perfectly acceptable to

followers of other religions, is stipulated for him.”18

Professor Yadudu further argues that Sections 4, 6, 277, and the Second Schedule to the

1999 Constitution, establish the right for new Shari’a courts, in addition to existing ones, and

expand their jurisdiction and the right to enact laws that draw inspiration from religious and non-

religious norms. In conformance with these provisions, the SPCL represents an Islamic penal

system, enacted in a written law and with specific punishments prescribed. He argued further that

the Nigerian Constitution did not declare Nigeria to be a secular state and that the initiatives of

the states implementing the Shari’a cannot be said to have violated Section 10 of the Constitution

which prohibits any state from adopting any religion as a state religion. Furthermore, by

proposing an expanded application of the Shari’a, the governors are fulfilling a campaign

promise and also meeting the yearnings and aspiration of the electorate. Professor Yadudu,

15 Supra.16 Supra.17 Professor Auwalu Hamisu Yadudu, Benefits of Shariah and Challenges of Reclaiming a Heritage, The NigerianMuslim Forum, UK Holding at: Commonwealth Conference Centre, Commonwealth Institute, Kensington HighStreet, London, April 14, 2001 (20th Muharram 1422 A.H.)18 Supra.

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contended that to suggest “review” or “reform” of the Shari’a will attract a severe rebuke from

the Muslim followers who will see the effort as, at best, revisionist in character or, at worst, an

attempt to meddle with Allah’s injunctions.

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TWO ILLUSTATIVE CASES

THE AMINA LAWAL CASE

A Nigerian woman, Amina Lawal gave birth to a child out of wedlock and was charged and

convicted of zina (adultery), under the Shari’a Penal Code Law (SPCL) of Katsina State. The

lower Shari’a court found Ms. Lawal guilty as charged and sentenced her to death by stoning.

According to SPCL, Section 41, zina includes adultery and fornication. Chapter VIII,

Section 126, defines zina as, “Whoever, being a man or woman fully responsible, has sexual

intercourse through the genital of a person over whom he has no sexual rights and in

circumstances in which no doubt exists as to the illegality of the act, is guilty of the offense of

Zina.” Section 127 provides for the punishment of zina: “Whoever commits the offense of Zina

shall be punished as with Caning of one hundred lashes if unmarried, and shall also be liable to

imprisonment for a term of one year; or (b) if married, with stoning to death.” The trial court in

this case ruled that Ms. Lawal’s conviction was based on her confession and the fact that she was

pregnant out of wedlock. These are two of the grounds on which adultery can be proven in

Shari’a law, provided the procedures for establishing the validity of the grounds are properly

adhered to. The principal question presented was: What procedural due process rights are

available to an accused person under the SPCL?

Arguments in the Amina Lawal Case

Ms. Amina Lawal was convicted by the Shari’a trial court at Bakori in Katsina State (Ms.

Lawal’s home state) on March 20, 2002. The only evidence was an alleged confession and the

fact that she was pregnant out of wedlock. Shari’a law accepts these two facts as proof of

adultery. The lower Shari’a court sentenced Ms. Lawal to death by stoning based solely on this

evidence.

The SPCL of Katsina State, permits appeals to an upper Shari’a court. The lower court’s

judgment was appealed to the Funtua Upper Shari’a Court, but the appeal was denied. On appeal

to the Shari’a court of appeal in Katsina, however, judgment was rendered in favor of Ms. Lawal.

The principal arguments focused on procedural rights of the accused under the Shari’a

Penal Code Law. Ms. Lawal had no legal representation at her trial. Legal representation is

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provided for under the provision of the Shari’a Penal code law as well as under Section 36 (1) of

the Nigerian Constitution. Second, a defendant charged with zina must be tried before a panel of

three judges, as provided for by the Shari’a Court law of Katsina, Section 4 (1). In this case, a

single judge heard the case and rendered judgment. Third, the law under which Ms. Lawal was

being tried was not in effect at the time the alleged zina was committed. The trial court record

indicated that Ms. Lawal was arraigned on January 18, 2002, that her baby was nine days old on

the date of arraignment, and that the baby was born out of wedlock. The SPCL of Katsina State

was promulgated on June 20, 2002, nearly five months after the arraignment. Assuming no

evidence to the contrary and a normal pregnancy of a nine-month gestation period, Ms. Lawal

could not have committed the alleged offense because there was no law of zina in the state when

the alleged zina occurred.

In the Funtua Upper Shari’a Court, counsel for Ms. Lawal argued that the charge was

vague and that pregnancy of an unmarried woman can not be conclusive proof of zina. Counsel

argued other procedural due process issues, for example, that the word zina (an arabic word) was

not explained to Ms. Lawal in the language she understood; that Ms. Lawal was not given the

opportunity to call witnesses; that under Islamic law in such cases of zina, where there is doubt,

it should be settled in favor of the accused; that the trial of Ms. Lawal was not conducted in

accordance with the law; and that the police do not have authority to arrest and prosecute a

person charged with zina.

Ms. Lawal’s counsel invoked the Nigerian federal constitutional guarantee of a fair trial,

argued that the alleged confession was given under duress, and that the burden of proof in capital

offenses is on the prosecution.

Counsel for the state countered all the arguments and asked that the judgment of the

upper Shari’a court be upheld. However, the state counsel added that Shari’a is for justice and

that if the court had any doubt about the evidence or procedure, then the court should resolve the

case in favor of Ms. Lawal.

On September 25, 2003, the Shari’a Court of Appeal of Katsina State, rendered its

opinion and a judgment that settled a number of fundamental issues. The Honorable Khadi of the

court, reading the concurrent judgment of three others, ruled that the police should not have

charged Ms. Lawal with the offense of zina because it was not within their constitutional

responsibility. The court also decided:

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1.) That, for an offence of zina to be proved, both accused persons must be seen performing

the act of zina openly by at least four responsible male adults;

2.) That discharging the man accused of being with Ms. Lawal without establishing that four

witnesses had seen the act of zina, was an error and cannot be sustained before the

court;

3.) That since Ms. Lawal (first accused) was not the wife of Yahaya Mohammed (the second

accused) at the trial, under the Shari’a Law, she cannot be charged with adultery;

4.) That anyone who accuses another of zina and cannot prove it should be flogged forty

times;

5.) That where four witnesses have not been established, the accused must be discharged and

acquitted;

6.) That it was an abuse of the Shari’a Penal Court Law for a judge to sit alone at the trial

when the law provided for a three judge panel;

7.) That the confession of the appellant was not valid;

8.) That the trial court failed to give Ms. Lawal the opportunity to withdraw or recant her

confession at least four times;

9.) That where one accused person allegedly confessed and the second accused refused to

confess, then that cannot be zina;

10.) That the trial court record concerning Ms. Lawal’s confession was unclear, and where

such a doubt existed, doubt must be resolved in the favor of the accused person. The

court recounted the entire story of Ma’is (a person that allegedly committed zina) to

buttress this point;

11.) That the burden of proof of zina is borne by the prosecutor and not the accused. Ms.

Lawal’s pregnancy and childbirth could have been the product of the former husband;

12.) That an accused can withdraw a confession at any time before judgment and the trial

court must accept this; and

13.) That withdrawing or recanting a confession is not punishable.

The Shari’a appeal court stated that Islam and Shari’a provide for freedom, protection

and justice, and for all the reasons presented above, the court dismissed all the charges against

Ms. Lawal.

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Defense Strategy

This case was successfully tried entirely under Shari’a law before Shari’a courts. It is important

for counsel representing an accused under Shari’a to understand the dynamics of the Shari’a

legal system itself, the court procedures, the judges’ understanding and perceptions of the issues,

and the lawyers’ attitude and understanding of the people, the culture, the traditions and values.

Since “new” Shari’a (SPCL) was a law that had just been adopted in some northern states of

Nigeria at the time of this proceeding, jurisdictional issues and lack of procedural rules presented

unique challenges to counsel.

Section 277 of the Nigerian Constitution of 1999, which provides for the jurisdiction of

the Shari’a court of appeal, appears to limit the jurisdiction of that court. It states that the “The

Shari’a Court of Appeal of a State shall in addition to such other jurisdiction as may be conferred

upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil

proceedings involving the question of Islamic personal Law which the Court is competent to

decide in accordance with the provisions of subsection (2) of this section.” (Emphasis added.)

Subsection 2 defines issues of Islamic personal law as including gifts, successions, wills,

donations, and issues regarding infants and guardianship of a Muslim who is physically or

mentally deformed.

The absence of clear, constitutionally adequate procedural rules for the Shari’a courts

with regard to penal law posed a serious challenge. The Shari’a (area courts) had functioned for

over four decades with jurisdiction on civil matters (Islamic personal law). Given the nature of

the punishment, however, applying civil law procedure for arguing this case would not have been

appropriate. (These are, therefore, issues of law that legislators should address in the near future.

It may have to be one of the issues lawyers in emerging application of new laws will have to

learn more about also.)

It is a recognized principle that international law can be applied to national laws,

particularly in the context of protecting human rights. Within this general framework, remedies

exist under the Shari’a law respecting the rights of the victims, respect for the rule of law and

due process. Nigeria is a signatory to a number of relevant international instruments,

conventions, treaties and protocols, including the Universal Declaration of Human Rights;

International Covenant on Economic, Social and Cultural Rights; International Covenant on

Civil and Political Rights; and the Optional Protocol to the International Covenant on Civil and

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Political Rights. Others are: United Nations Declaration on the Elimination of All Forms of

Racial Discrimination; International Convention on the Elimination of All Forms of Racial

Discrimination; Declaration on the Elimination of All Forms of Discrimination against Women;

Convention on the Elimination of Discrimination against Women; Declaration on the

Elimination of Violence against Women; Convention on the Political Rights of Women; and the

Optional Protocol to the Convention on the Elimination of Discrimination Against Women,

among others, all of which may be tools to create positive change for humanity in our

communities.

By the same token, the top priority in this case was saving a human life through the law.

Counsel’s successful defense relied on learning and working within the framework of the Shari’a

law while also applying principles of human rights, laws of the Federal Constitution, and

International law. It was thus essential also to rely on local custom and tradition. The Holy Quran

and Islamic authoritative sources like the Hadith and the Sunnah of the Holy Prophet (SAW),

Ijmah, Qiyas, Ijtihad and A-Urf were essential resources. The provisions of the Nigerian

Constitution governing fundamental human rights and fair trials were also introduced to ensure

that the rule of law existed also under the SPCL. The strategy was intentionally non-

confrontational to garner the trust, respect, and confidence of the judges.

Although the culture, tradition, and values do not accept a woman having a child out of

wedlock, the lawyers concentrated on protecting and promoting respect for the rule of law and

due process of law. The temptation was always high to join issue with those who accuse defense

lawyers of disrespecting values, culture and tradition. But the temptation was resisted to the

benefit of the defendant.

Importance of This Case

This case was a victory for law, human rights, human dignity, and freedom. It also established

numerous important precedents that will help ensure procedural and substantive due process

rights to persons accused of crimes under the law of Shari’a.

The case established that all judicial proceedings, including the proceedings before the

Shari’a courts, must comply with the principles of the Constitution of Nigeria. The court defined

the role of police as maintaining law and order, and limited their authority of arbitrarily search

and arrest of individuals who may have committed adultery. The court concluded that the

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prosecutor always bears the burden of proof, not the accused, a fundamental tenet of justice and

the rule of law.

Beyond the courtroom, the considerable national and international attention to the case

had several positive effects. Through the media, the international community became aware of

the process and the potential for injustice. The case and in particular the final decision

encouraged human rights movements within Nigeria and beyond. It sensitized lawyers and

judges and helped to clarify how the new Shari’a legal system related to the United Nations,

other Africans, and international human rights laws. It also provided a model for using existing

tools and laws to advance human rights within national societies. The case highlighted the need

to develop regional and international coalitions to advance issues of equality and non-

discrimination before the law. It enhanced the role of Nigerian nongovernmental organizations

(NGOs) in promoting human rights and increased their access to national and international

human rights institutions and processes, while increasing their accountability and transparency.

The case called attention to massive and urgent human rights issues, in particular discrimination

against women, and gave greater focus and attention to issues of economic, social, and cultural

rights as they relate to vulnerability, poverty, illiteracy, powerlessness and voicelessness of these

women.

Remaining Questions

The Amina Lawal case raised, but did not decide defintively, a number of issues relating to the

supremacy of law, including questions about certainty of law; separation of powers; respect for

human rights and human dignity; Shari’a as state legislation and its application as criminal law;

the separation of state and religion; cruel, inhumane, or degrading punishment; equality and non-

discrimination before the law; and the plurality of legal systems.

Other questions raised include: What happens when the international spotlight is off of

Nigeria in such matters? Will the rule of law prevail? What effect did the national and

international media have in this case? Did the media and other national and international pressure

encourage the courts to be responsive to procedural and due process issues? The media coverage

in this case had a positive impact, but it also had negative aspects. International attention was

perceived in some Nigerian quarters as bringing outside pressure on Nigerian religious and legal

14

traditions, exacerbating the controversy and drawing attention away from the strictly legal issues.

What is the right balance?

Looking Ahead

There is a tremendous opportunity in using the Amina Lawal judgment of the Shari’a court in

Katsina to reform the Nigerian legal system in ways that will ensure equality and non-

discrimination for all before the law. To this end, there is a need to provide a greater

understanding of how international instruments, treaties, conventions, and protocols protect the

rights of individuals and apply under national law. Nigerian lawyers and judges will need

continuing education to improve the administration of the criminal justice system. This judgment

of the court provides a powerful tool for positive change.

Lawyers and judges, as well as court supporting staffs involved in litigation and

adjudication should be sensitized to the application of the Shari’a legal system as well as

understanding the usefulness of international human rights laws as a tool to advance human

rights within national societies. Efforts should be made to educate local groups and lawyers

about widespread and deeply entrenched discrimination against women and how this violates

human rights law.

The coalition of credible NGOs, community based organizations (CBOs), and persons of

like minds could help accelerate this process by helping to review and propose reforms of some

of the provisions of the new legal system to ensure equality before the law. Such groups will

need to enlist allies among opinion leaders, especially religious and traditional leaders, and state

and federal legislators.

On the other hand, cases such as that of Amina Lawal, which had the temporary focus of

the world press, could lose much of their substance if taken over by issues that are not related to

the struggle for saving a human life or ensuring fairness, justice, and upholding fundamental

human rights and human dignity. In the courtroom, there is danger of losing a clear sense of

direction, particularly if a local supportive group changes focus in response to a well-meaning

(or even a not well-meaning) donor who may have other issues to advance. This is particularly

important when dealing with sensitive issues of religion, local tradition, and community values.

The international diplomatic community in Nigeria should familiarize itself with local conditions

15

and non-confrontational intervention in the interest of judicial reform and adherence to equality

under the law.

There is also the danger, when so much international attention has been generated, that

resources will not be used well or wisely. Donors, NGOs, CBOs, and individuals can provide

substantial resources to advance the rights of individuals. NGOs and CBOs should become

involved in the promotion of human rights, have access to courts (where necessary), and become

more accountable, and transparent. Any such entity willing to give resources, however, should

insist and demand transparent and honest accountability.

THE CASE OF AHMADU IBRAHIM AND FATIMA USMAN (THE COUPLE) VS. THE STATE

Reflections of the Defense Counsel19

One day, Ahmadu Ibrahim, a poor villager and a security guard in the village market, saw a

woman called Fatima Usman. Fatima was a divorcee who had gone to the village market to buy

some items. She lived with her parents. (It is customary for divorced women to return to their

parents’ home or the home of any male relative upon divorce.) Ahmadu and Fatima fell in love;

Fatima became pregnant and gave birth to a baby girl in 1999. Pregnancy out of wedlock is

considered unacceptable in the Muslim dominated northern Nigeria. In fact, a story was told,

many years ago, about a similar incident that occurred in another village. The village elders came

together and advised the girl and her parents to move out of the village and community, which

they did.

Ahmadu and Fatima had brought distress, disgrace, disrepute, and disrespect to the

village. Something had to be done. The village elders and the religious and opinion leaders had a

meeting to address this tragedy, which affected the entire village. Ahmadu and Fatima’s fathers

were invited to the meeting. After days of deliberation, Ahmadu admitted that he was Fatima’s

lover and that they had a child by accident. He apologized to the members of the meeting and,

through them, to the village. He stated that because he already had a wife and was unable to

support another (he is entitled by the culture/religion to have up to four wives), he would rather

19 Hauwa Ibrahim, Defense Counsel for Amina Lawal Humphrey Fellow, American University Washington Collegeof Law, 2003-2004 and Intern at the Council on Foreign Relations, Washington DC.

16

not marry Fatima. Ahmadu did promise to support her and the baby, by getting them wood from

the mountain, giving them food from his farm and, when he could afford it, some money (about

$6 monthly).

Pausiya, the baby of this union, became very sick. Mr. Usman, Fatima’s father and the

family’s breadwinner, was not able to buy the necessary medication. As a result, Mr. Usman

demanded that Ahmadu give him the promised money so that he could buy medication and food

for both his daughter and his granddaughter. Ahmadu repeatedly told Mr. Usman that he could

not give him the money because he did not have it. Mr. Usman and Ahmadu exchanged unkind

words. Mr. Usman decided to seek legal advice and subsequently sued Ahmadu in court for

defaulting on his promise of monetary support as well as for defiling his daughter in the first

place. During this process, Fatima married someone else and Pausiya, who had never regained

her health, died. Ahmadu is still married to his wife. The court, which found Ahmadu and Fatima

guilty, first sentenced them to prison and a fine, but then vacated that sentence to replace it with

a sentence of death by stoning.

The trial court record of Upper Area Court of New Gawu, Gurara Local Government of

Niger State, indicated that the case commenced on May 23, 2002. Ahmadu and Fatima (accused)

were charged under S. 387 and S. 388 of the Penal Code Law of northern Nigeria which

provided for the offence of adultery and prescribed the sentenced of two years imprisonment or

fine upon conviction. They were convicted and sentenced on August 5, 2002, to either five years

imprisonment or a fine of N15, 000 (about $100). Shortly thereafter, however, the court vacated

the original sentence and sentenced them both to death by stoning. Both of the accused served

three months in prison and, while the case is on appeal, they are now out on bail. Defense

counsel appealed this judgment to the Shari’a Court of Appeal of Minna, in Niger State. The

grounds for the appeal included:

1.) That the trial judge erred in law and in fact by convicting and sentencing the appellants

first to five years imprisonment or an option of N15, 000 fine and thereafter to the

punishment of stoning to death, giving two conflicting judgments in respect of one and

the same offence, a judgment ultra-vice his jurisdiction;

2.) That there was violation of due process in ignoring the initial judgment passed;

3.) That the initial complaint by the complainant, the plaintiff, Usman Umaru, was seeking

17

for a compensation of N150, 000 (about $1,000);

4.) That the trial judge erred in law and in fact by convicting and sentencing the appellants to

an offense that was not in existence when the alleged offence was committed and before

the promulgation and commencement of the Shari’a law in Niger State;

5.) That the court convicted the appellants to death by stoning when at that time they were

both legally married to other persons;

6.) That the accused persons had no legal representation and were not advised as to their

rights to counsel of their choice; and

7.) That the judge sat alone to pass the judgment of hudud (capital punishment), then the

court sat and reversed itself acting functus officio (out of its official responsibility).

Provisions of the Shari’a Law Under Which the Couple Were Convicted

The offense of adultery is addressed in Sections 378 and 388 of the Penal Code Law of northern

Nigeria, which provides for two years imprisonment or an option of a fine and states: “Whoever

being a man subject to any native law and custom in which extra-marital sexual intercourse is

recognized as criminal offence has sexual intercourse with a person who is not and whom he

knows or has reason to believe is not his wife, such sexual intercourse not amounting to the

offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment

which may extend to two years or with fine or with both.” Section 388 provides thus: “Whoever

being a Woman subject to any native law and custom in which extra-marital sexual intercourse is

recognized as criminal offence has sexual intercourse with a person who is not and whom she

knows or has reason to believe is not her husband is guilty of the offence of adultery and shall be

punished with imprisonment for a term which may extend to two years or with fine or with

both.”

Disregarding the initial complaint of Mr.Usman Umaru is curious. However, the situation

has not been any clearer because the court had no legal authority to change the complaint. The

court record indicates that the police in charging the couple suggested to them that “…you

Ahmadu committed adultery with Fatima and she became pregnant and gave birth to this baby

and if this is true then as a Muslim you have committed an offence, in your position as a Muslim

following the Shari’a. Islamic Shari’a which Allah through his prophet Mohammed (SAW) gave

18

to us.”20 Furthermore, throughout the entire proceedings, the defendant’s religion, Islam, and the

Devil were used in such a way as to coerce admission. For instance, in one example from the

court record, Mr.Ahmadu was asked: “…did you follow the rules of Islam or the Devil…if

someone impregnates your daughter will you be happy?” Turning to Fatima the court stated,

“…you have heard the complaint of the police against you and Ahmadu that you committed

adultery, and gave birth to this child without ‘benefit’ of marriage; you are not his wife and he is

not your husband.” On further prompting to admit guilt the court asked the couple “…why did

you do this,” and in reply they said…“it is the devil that brought this on us, it is temptation.”

In a second hearing, the court asked the couple if they were ever mad, and went further to

find out from the couple if they knew the punishment of adultery. The court went on to say

“…before this court you have admitted three times that you committed the offence of adultery…

you Ahmadu being married have cheated your wife….” More unclear is how some pages of the

record of the court seem to have been “mutilated” and that has not been helpful either. It is

unbelievable that a court that has had a case and passed judgment and sent the accused persons to

jail now sits suo proprio moto and reversed itself on the ground that since Niger State has now

adopted the SPCL, it is reversing its judgment and sentencing the couple in abstentia to stoning

to death. In the meantime, both at the initial trial and the second reversal, the couple had no legal

representation. The record of the court indicated that they confessed to having had sexual

relations, which amounts to an offense of zina (adultery).

The case of Ahmadu and Fatima remains on appeal.

20 Author’s translation from Hausa (a Nigerian language).

19

THE NEED FOR LEGAL REFORM

The Rule of Law and Due Process

How could cases such as these pay attention to law, its rules, and its processes? What is rule of

law? Or is it rule by the law? Whose law? What law? What is due process and what is its

application?

The rule of law is a concept incorporating several principles that govern the intricate

working of a legal order, the provision of equality before the law, and effectiveness of legal

principles. The rule of law envisages stability, maintenance of law, public order, and security.

The alternative is instability at best and anarchy at worst. Casper Gemhard21 has suggested that,

there is a proposition of “rule of law and rule of the law. ” He further argues that law is universal

in nature. Universal law has three major strands: divine law, natural law, and public law. In

contradiction to these universalist views, however, the modern world has been focused on

particularistic law. “Sovereign” nations constitute largely autonomous legal systems. The

autonomous system of different countries may also reflect historic legal traditions such as

Roman law in civil law countries or the French Code of Civil Law, German Civil Code, or the

Swiss Civil Code.22

Due process, on the other hand, is tied to customs, which can vary even among regions or

localities within a nation. Customs are the regular habits and non-religious rituals of a local

people. Customs along with folk ways (proverbs and symbols) and norms (guides for behavior)

make up the sociological definition of culture. The extent of due process among the customs of a

people is the hallmark of a civilized or decent society. Due process generally refers to the

regularity, fairness, equality, and degree of justice in both procedures and outcomes. Due process

guarantees the:

1.) Right to a fair and public trial conducted in a competent manner;

2.) Right to be present at the trial;

3.) Right to an impartial jury;

21 Casper Gernhard: “Rule of Law? Whose Law?,” Keynote address at the 2003 CEELI Award ceremony andluncheon of the American Bar Association. San Francisco, California. August 9, 2003.22 Anders Fogelklou, “Principles of Rule of Law and Legal Development” in Per Sevastik, ed., Legal Assistance toDeveloping Countries: Swedish Perspectives on the Rule of Law (Kluwer Law International. 1997) pp: 32-60.

20

4.) Right to be heard in one’s own defense; and

5.) Right to laws that are written so that a reasonable person can define and understand

criminal behavior.

How Do These Principles Relate to Shari’a?

Under Shari’a, the victim of a criminal act or his kinsman was personally responsible for

presenting a claim against the accused before the court. This included notice of the claim, the

right for the defendant to remain silent, and a presumption of innocence in a fair and public trial

before an impartial judge. There were no juries. Both parties in the case had the right to have a

lawyer present, but the individual bringing the claim and the defendant usually presented their

own cases.

At trial, under Shari’a law, the judge questioned the defendant about the claim made

against him. If the defendant denied the claim, the judge then asked the accuser, who had the

burden of proof, to present his evidence. Evidence almost always took the form of the direct

testimony of two male witnesses of good character (four in cases of adultery). Circumstantial

evidence and documents were usually inadmissible. Female witnesses were not allowed except

in cases where they held special knowledge, such as childbirth. In such cases, two female

witnesses were needed for every male witness. After the accuser finished with his witnesses, the

defendant could present his own. In the above case study, the accused persons were both denied

due process under the common law and the Shari’a.

Legal Reform of Some Sections of the Shari’a Penal Code Law

The introduction of the Shari’a Penal Code Law in the twelve states of northern Nigeria has

raised much concern because of the size of the country and its population of over 132 million

people,23 its influence in the West Africa and Africa as a whole, as well as its sizable Muslim

population, which is more than the entire Middle East’s Muslim population combined.24

The introduction of the SPCL has a very high symbolic value and, as has been suggested

by many leaders in northern Nigeria, may be “irreversible.” Therefore, outside pressure to annul

the SPCL will likely be ineffective and may lead to antagonism and a defensive attitude. A

23 World Bank Report, 2003.24 U.S. State Department Report.

21

serious problem exists, however, because the SPCL may, in some cases, conflict with the

Nigerian Federal Constitution. Almost all the penal codes promulgated thus far by these twelve

northern states were hastily drafted with many incorrect cross-references, incorrect and defective

wording, omissions and contradictions.25

Because of the way in which the Shari’a law was introduced, the new legal regime and

legal order lack the legal certainty and facility to recruit the judges that could administer it.

Judges, lawyers, court staffs and the police need to be oriented and trained. There is a very high

degree of lack of awareness by the populations as to the provisions of this new legal order.

Among all the defendants in the forty-seven Shari’a cases in which this author has been

involved, most of defendants were not aware of the provisions of the SPCL before they were

brought to court. Generally speaking, reform should address issues of strict standards of proof

and evidence in all offences, especially the offences carrying the death penalty. Second, offences

and their punishment must be founded in written law and not the discretion of the judge (as

suggested in some of the provisions of the SPCL). Third, there should be separation of powers

between the executive and the judiciary to respect the independence of the judiciary and allow it

to serve justice. Fourth, the laws should be certain and respect the principle of fundamental

human rights and human dignity. Fifth, the law should not be repugnant to natural justice, equity,

and good consciousness. Sixth, in the quest for dispensing quick justice, the law should have a

clear and written procedural process.

Other important provisions include “nulla poena sine lege” principles (a person shall not

be convicted of a criminal offence unless that offence is defined and the penalty therefore is

prescribed in a written law),26 equality before the law, no violation of the freedom of religion,

and no violation of the basic rights of children. (The author was involved in about seven cases

where those convicted and sentenced to have their limbs amputated were under the age of

eighteen years.)

Sections 275–279 of the Nigerian Federal Constitution dealing with establishment of the

Shari’a court of appeal of a state and its jurisdiction have raised new and complicated challenges.

They provide that, “The Shari’a Court of Appeal of a State shall, in addition to such other

jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and

25 Professor Ruud Peters: The Reintroduction of Islamic Criminal Law in Northern Nigeria. Lagos, Nigeria 2001.26 Ruud Peters: Supra.

22

supervisory jurisdiction in civil proceedings involving questions of Islamic personal Law…any

question of Islamic personal Law regarding a marriage…and relating to family relationship or

the guardianship of an infant; any question of Islamic personal Law regarding a wakf, gift, will or

succession…”

This restricts the jurisdiction of the Shari’a court of appeal to civil jurisdiction. In light of

that, the cases handled by the author have involved appearing before a court that did not have the

jurisdiction to impose a criminal sentence, and could not argue that the exercise of the court’s

jurisdiction was contrary to the law, contrary to professional ethic, abusive of court process, and

against the provisions of rule of law and due process. It was, however, a process and challenge

we had to undertake in the circumstances of the moment to save a life.

Section 93 of the SPCL of Zamfara enumerates the punishments and compensation that

are allowed under the code, but it does not list death by stoning or crucifixion. Such punishment

is set forth in Sections 127 (b) and 153 (d). The code is thus inconsistent and uncertain.

Similarly, Sections 136 (1) of the Kano State SPCL, Section 137, 149-159, of the

Zamfara State SPCL, and Section 68A (2) (e) dealing with rules regarding the Quranic offences

of “hudud” (offences with capital punishment, including the drinking of alcohol) of the Niger

State SPCL are inconsistent with respect to the elements of the offences, the punishment to be

applied, and the procedures for carrying out the punishment. In the case of Amina Lawal, who

was sentenced to death by stoning, there was no law indicating how, by whom, in what way or

by what means and where such a sentence could be executed. It gave room to so much

speculation and uncertainty that it was inherently contrary to due process.

Sections 125 of Kano’s SPCL, Section 127 of Zamfara’ SPCL, and Sections 68 (2) (c) of

Niger’s SPCL are not specific on the use of which drug(s) and which false accusation with

regard to unlawful sexual intercourse will receive punishment by lashing. The sections also do

not stipulate the punishment. The three codes are inconsistent on that.

One form of proof of zina under both the SPCLs for Kano and Niger are confessions

from four male witnesses, but Zamfara’s SPCL is silent on that.27

Classical Maliki doctrine (the Islamic school of thought applied to the states that adopted

the Shari’a legal system) provides that the pregnancy of an unmarried woman is proof of zina.

27 See Sections 127 of the Kano SPCL; Sections 68A (3) (b) of the Niger SPCL; and Section 130-31 of the ZamfaraSPCL.

23

This rule was applied in the cases the author was involved with, for example, Bariya Ibrahim

Magazu, charged, convicted, and punished by flogging (100 lashes). Safiya Hussaini, Amina

Lawal and many more victims have all mentioned alleged rape, yet without proof beyond a

reasonable doubt, and they were all convicted at trial.

With respect to rape, Sections 126-127 of the Kano SPCL and Sections 128-129 the

Zamfara SPCL, state that the perpetrator should pay compensation. On the other hand, rape has

been assimilated into zina. This is shown by the fact that the prosecution in some cases has used

the fact that the woman has a child out of wedlock to be proof of adultery.

Other inconsistent provisions include Section 134 of the Kano SPCL and Section 145 of

the Zamfara SPCL dealing with theft and amputation of limb(s). Definitions of the offences vary.

Kano and Zamfara define the offence of theft as “covertly, dishonestly and without consent takes

any lawful movable property belonging to another…without justification,” but that definition

differs from the Maliki Law (the school of thought adopted by the twelve ‘Shari’a States”),

which defines theft from a monetary value perspective. The definition above differs also from

Niger State Section 68A (2) (a), which does not adopt any definition, but refers to the northern

Nigeria Penal Code Law for the definition of theft.

Section 137 of the Kano SPCL and Section 147 of the Zamfara SPCL provide for eight

defenses of theft under Maliki, i.e., where the offence was committed by ascendant against

descendant; where the offence was committed between spouses within their matrimonial

home…; where the offence is committed under circumstances of necessity…where the offender

believes in good faith he has a share…; where the offender retracts his confession before

execution….it will reduce the offence and punishment of an offense of theft”.28 The definition of

theft is not consistent in the codes. While theft is defined as “covertly, dishonestly and without

consent taking,” in other codes it is defined by the amount of money involved.

Other sections to be looked into for review and reform include: Sections 147 and 259 of

the Zamfara SPCL and Section 134 (b) of the Kano SPCL dealing with embezzlement; Sections

229, 231, 227, and 229 of the Bauchi State SPCL; Section 228 and 230 of the Kebbi State SPCL;

Sections 229 and 231 of the Jigawa State SPCL; Sections 229 and 231 of the Yobe State SPCL.

Section 156 of Bauchi’s SPCL refers to “death by impalement (Crucifixion),” but does

not define what is meant by the term impalement. Other SPCL sections in need of review are

28 Zamfara Sharia Penal Code Law 2000.

24

Section 139 for Kano and 152 for Zamfara, which refer to homicide and hurt and derive their

wording from the Northern Nigerian Penal Code Law. The new penal code is in English, the

language of the court is Hausa, the language of the victims is Hausa, and this has caused untold

hardship in ensuring the administration of justice, especially where no clear definitions of a term

exist. Sections 142 of the Kano SPCL and 68A (20) (f) of the Niger SPCL on intentional

homicide and retaliation are ambiguous. Sections 59 of the Zamfara SPCL and 143 (c) of the

Kano SPCL; dealing with treacherous homicide, retaliation, blood money and imprisonment

among others are not the same provisions in all these codes despite the fact that all the provisions

are supposed to be applied to the same Muslims in the same country. The list is endless, but the

point is that for these laws to apply justice to all Muslims and provide peace and harmony, the

need for reform cannot be over emphasized.

Shari’a and the Nigerian Constitution

The Nigerian Constitution is the “ground norm” of Nigeria as a country. Indeed, all the members

of the National and States Executive, as well as members of the National and States Assemblies

and the judiciary, have pledged oaths of allegiance to the Constitution. They swear or affirm that

they will be faithful and bear true allegiance to the Federal Republic of Nigeria and to preserve,

protect and defend the Constitution of the Federal Republic of Nigeria. The president

“swears/affirms that he will be faithful and bear true allegiance to the Federal Republic of

Nigeria…to discharge his duties…faithfully…, always in the interest of the sovereignty,

integrity, solidarity, well-being and prosperity of Nigeria….”29

Similarly, the governor of all the states in Nigeria, including the ones that have adopted

the Shari’a, have pledged to solemnly “swear/affirm that they will be faithful and bear true

allegiance to the Federal Republic of Nigeria; that they will discharge their duties, faithfully and

in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always

in the interest of the sovereignty, integrity, solidarity…they will preserve, protect and defend the

Constitution of the Federal Republic of Nigeria.” Also members of the National Assembly and

that of a State House of Assembly “solemnly swear/affirm that they will be faithful and bear true

allegiance to the Federal Republic of Nigeria…they will preserve, protect and defend the

Constitution of the Federal Republic of Nigeria. In the same manner, members of the judiciary

29 Nigerian 1999 Constitution: Seventh Schedule; Oaths.

25

solemnly swear/affirm to bear true allegiance to the Federal Republic of Nigeria…preserve,

protect and defend the Constitution of the Federal Republic of Nigeria. They all should respect

and abide by their oaths of office and respect the supremacy of the Constitution and not do

anything by acts or omission to promulgate law contrary to the provisions of the Constitution and

rule of law.

Some sections of the Constitution need to be studied and understood with regard to the

SPCLs. The Nigerian Constitution provides for its supremacy;30 “the Constitution is supreme and

its provisions shall have binding force on the authorities and persons throughout the Federal

Republic of Nigeria…. If any other law is inconsistent with the provisions of this Constitution,

this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be

void.” The Constitution further provides that, “The Government of the Federation or of a State

shall not adopt any religion as State Religion.”31 While, Section 277 provides that “The Shari’a

Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon

it by the law of the State, exercise such appellate and supervisory jurisdiction in civil

proceedings involving questions of Islamic personal Law.”

Under Legislative Powers, Part 1, of the Exclusive Legislative list of the schedule in the

Nigerian Constitution, certain items are the exclusive preserve of the Federal legislatures and

State legislatures and members of the executive cannot interfere. One of those provisions

involves the promulgation of the rules of evidence and interfering with the police and other

government security services.

Other sections which need to be closely studied with respect to the new SPCLs include:

Sections 4 (1) (2) (3) (4) (5) (6) (7) (8) (9); 34 (1); 36 (12); 38 (1); 42 (1); 244 (1); 275 (1); 277

(1); and 277 (2). These sections deal with legislative powers at the Federal and States levels; non

discrimination; and establishment, appointment and jurisdiction of Shari’a courts.

Legal Reform as a Basic Principle of Justice

Legal reform is necessary to promote respect for human rights and human dignity; to encourage

good governance, the rule of law, and due process; and to create a stable and predictable legal

system, that will provide the proper climate for investment. It will enhance good legal order, and

30 Section 1 (3) Nigerian Constitution 1999.31 Section 10 Nigerian Constitution 1999.

26

legal institutions; it will reduce delay in rendering justice; it will reduce congestion in cases

before the courts and those in prisons awaiting trials; and it will encourage legal education of

judges, lawyers, and court officials. It will help in documenting the legal opinions of the courts

and will encourage good record keeping as well as publication of the laws and reporting of

judicial decisions. It is necessary for enacting procedural laws, and addressing the issues of

inadequate facilities by the courts, as well as issues of court budgets and independence. It is

necessary to address the issues of access to justice for the poor, illiterate, voiceless, powerless,

and vulnerable members of society. It is necessary to create an impartial system, without

corruption or sentiment to provide undue influence on the outcome of a case.

Legal reform is necessary for stability and predictability. It is important that people in

any given society feel and know that they are treated equally under a system of law that respects

human dignity and recognizes the need for protection under the law. Transparent legislation, fair

laws, predictable enforcement, an accountable legal system, and the promotion of the rule of law

is what citizens yearn for. A legal and judicial system that meets these standards is both an end in

itself as well as a means to facilitate and leverage the achievement of long-term development

objectives, opportunities, and security. Legal reform is important for legitimacy, freedom of

speech, constant attention to due process, autonomy, equity, and effectiveness.

Legal reform is an ongoing and incremental process that involves the executive and

legislative branches, law reform commissions, nongovernmental organizations, and the public.

For most countries, legal reform addresses new international standards, responds to social and

economic issues, expands access to justice, or improves court operations. Effective and coherent

legal reform requires a comprehensive and sustainable approach that avoids importing “models”

inconsistent with national legal and socioeconomic norms. Effective legal reform also promotes

opportunity, security, and empowerment for the world’s poor.32 Law reform seeks to ensure that

laws are drafted by experts, taking into account best practice principles and international

standards, in consultation with interested stakeholders. Transplanted laws from abroad may be

appealing, but usually are not sustainable unless grounded in the local context. Fostering public

understanding and ownership of proposed laws ensures that they are suitable for the economic,

social, and legal environment, and facilitate understanding by the public at large. A stable

equitable and just legal system is a panacea for good society.

32 Legal and Judicial Reform: http://www4.worldbank.org/legal/leglr/leglregorm.html.

27

The concept of the rule of law could be viewed as the need simply to follow the law as

set down by constituted authorities. But what law should apply? Has that law been validly

written? Is the law internally consistent and equally applicable to all? The law should be neutral

and apply equally to all in its substantive content. Suggested values should include fairness,

transparency, accountability, and consistency, predictability, binding adjudicatory mechanism, as

well as equality of access to all, and equality of treatment to all.

NIGERIA’S HUMAN RIGHTS OBLIGATION

Legal reform can be carried forward in Nigeria drawing upon the existing instruments of the

Nigerian constitution and international instruments to which Nigeria has given formal

ratification.

The Constitution

The provisions of the Nigerian Constitution dealing with protection of fundamental human rights

and ensuring the due process right of a fair hearing are incorporated in Chapter IV. It provides:

“Every person has a right to life,33 and no one shall be deprived intentionally of his life, save in

execution of the sentence of a court in respect of a criminal offence of which he has been found

guilty in Nigeria. Every individual is entitled to respect for the dignity of his person,34 and

accordingly—no person shall be subject to torture or to inhuman or degrading treatment;35 every

person shall be entitled to his personal liberty and no person shall be deprived of such liberty.”36

Every person should be entitled to a fair hearing within a reasonable time by a court or

other tribunal established by law and constituted in such manner as to secure its independence

and impartiality. Whenever any person is charged with a criminal offence, the person charged

shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable

time by a court or tribunal.37

33 Section 33 (1).34 Section 34 (1).35 Section 34 (1) (b).36 Section 34 (1).37 Section 36 (1) (4).

28

Every person who is charged with a criminal offence shall be presumed to be innocent

until that person is proven guilty; every person who is charged with a criminal offence shall be

entitled to be informed promptly in the language that the person understands and in detail of the

nature of the offence; be given adequate time and facilities for the preparation of his defense;

defend himself/herself in person or by legal practitioners of his/her own choice. Furthermore, the

accused is entitled to examine, in person or by his/her legal practitioners, the witnesses called by

the prosecution before any court or tribunal and obtain the attendance and carry out the

examination of witnesses to testify on his behalf before the court or tribunal on the same

conditions as those applying to the witnesses called by the prosecution; and have, without

payment, the assistance of an interpreter if he cannot understand the language used at the trial of

the offence.38

No person shall be held to be guilty of a criminal offence on account of any act or

omission that did not, at the time it took place, constitute such an offence, and no penalty shall be

imposed for any criminal offence heavier than the penalty in force at the time the offence was

committed.39 No person who is tried for a criminal offence shall be compelled to give evidence

at the trial.40

The privacy of citizens, their homes, correspondence, telephone conversations, and

telegraphic communications, is guaranteed and protected.41 Every person shall be entitled to

freedom of thought, conscience, and religion, including freedom to change his religion or belief,

and freedom (either alone or in community with others, and in public or in private) to manifest

and propagate his religion or belief in worship, teaching, practice, and observance.42 Every

person shall be entitled to assemble freely and associate with other persons, and in particular he

may form or belong to any political party, trade union or any other association for the protection

of his interests.43

Section 244 provides that an appeal shall lie from decisions of a Shari’a court of appeal to

the aourt of appeal as of right in any civil proceedings before the Shari’a court with respect to

any question of personal law which the Shari’a court of appeal is competent to decide. While

38 Section 36 (5) & (6.)39 Section 36 (80).40 Section 36 (11).41 Section 37.42 Section 38.43 Section 39.

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Section 275 provides that there shall be for any state that requires it, a Shari’a court of appeal for

that state.

The Shari’a court of appeal of a state shall,44 in addition to such other jurisdiction as may

be conferred upon it by the law of the state, exercise such appellate and supervisory jurisdiction

in civil proceedings involving questions of Islamic personal law which the court is competent to

decide. The Shari’a court of appeal shall be competent to decide any question of Islamic personal

law regarding a marriage concluded in accordance with that law, including a question relating to

the validity or dissolution of such a marriage, when a question that depends on such a marriage

and relating to family relationship or the guardianship of an infant; where all the parties to the

proceedings are Muslims, any question of Islamic personal law regarding a marriage, including

the validity or dissolution of that marriage, or regarding family relationship, a founding or the

guarding of an infant.45

International Instruments

The Universal Islamic Declaration also observes that human dignity is sacred and inviolable and

every effort shall be made to protect it. Additionally, the Quran itself places great importance

upon human dignity. It declares that dignity, in the broadest possible language, is the natural

right of every human being. The quranic diction that, “We bestowed dignity on the progeny of

Adam,” (al-Isra’ 17:70) clearly transcends all the racial, social, or religious barriers that divide

humanity.

By accepting the conventions, treaties, protocols, and optional protocols, States commit

themselves to undertake a series of measures to end problems that are linked closely to gender,

cultural, religious, and other equality related problems like poverty, illiteracy, and traditional

dogma. Incorporating the principle of equality of men and women in their legal system, they are

to abolish all discriminatory measures, and laws that violate human rights and human dignity.

This means establishing tribunals and other public institutions to ensure the effective protection

of fundamental human rights and to ensure elimination of all acts of discrimination on the bases

of ethnicity, race, religion, class, and caste. The current configuration of Shari’a law fails to

conform with all these provisions.

44 Section 277, Constitution of the Federal Republic of Nigeria.45 Supra.

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STRATEGY FOR LEGAL REVIEW AND REFORM

Those of us in Nigeria dedicated to legal reform will conduct research on other various key

issues, especially promotion and protection of rights under the new Shari’a legal system. We

plan to document this research, thereby creating a knowledge center for advocates.

Implementation will also include:

1.) Seeking a constructive approach to legislative reforms and systematic reviews of laws

and writing the laws when the laws are deficient or non-existent;

2.) Encouraging domestic initiatives to promote change in national polices and regular

functioning of the judiciary and working with the legislative branch of government,

through legislative hearing and fact-finding investigations, to seek the reforms;

3.) Devising principles and mechanisms to guide multilateral or unilateral humanitarian

intervention to prevent or stop massive violations of human rights and methods to

disseminate human rights ideas and documentation, and to ensure access by individuals

to national and international institutions to redress violations;

4.) Encouraging and engaging in dialogue, fruitful discussion, and developing

collabrorations with NGOs and other organizations representing civil society;

5.) Studying and understanding the dynamic of the new religious laws and the

complementarily between the Nigerian constitution and international instruments

signed by Nigeria;

6.) Encouraging communication and debate in the media on issues of Shari’a with some

countries practicing “moderate” Shari’a to foster understanding;

7.) Encouraging and engaging in discussion of other religious and cultural practices with

similar issues and of how some of their difficulties were overcome. For example,

recognising similar cultural practices that correspond to similar legislation could be

instructive in the 1989 case of G. Ato del Avellani Vs. Peru,46 a case dealing with the

status of women and its similarity with another culture in Nigeria, as well as the 1987

46 Report of Human Rights Committee UN Doc. A/YY/40 (1989).

31

case of Mrs. Brocks Vs. Netherlands,47 a case dealing with the right of equality and

giving the sense that the struggle is universal;

8.) Promoting research and discussion on issues of Islam in areas such as marriage,

divorce, modesty, submission, physical abuse, security, etc.;

9.) Encouraging creative thinking, using drama and radio talk shows to enhance positive

traditional values;

10.) Addressing gender, political, economic, social, and cultural issues in the legislative

reform efforts;

11.) Establishing equal rules and regulations governing nationality legislation, especially in

states where there are no procedural codes in trying these Shari’a cases ;

12.) Enabling women to pass their nationality to their children;

13.) Encouraging laws to prevent emotional and physical abuse on women by their spouses;

14.) Establishing quota systems for women for positions in parliament, diplomatic posts,

decision making and other governmental positions, should also be considered;.

15.) Advocating for the equitable distribution of wealth, right to education, right to

healthcare, right to vote, right to be elected, the right to work, the right to liberty, the

right to security, and the right to equality before the law;

16.) A bottom-up approach that will be conceived as a long term plan, measuring short-term

results, using flexible methodology and paying attention to details;

17.) Understanding the value, cultural and traditional system, having organizational and

analytical skills as well as creative intelligence and strategic thinking;

18.) Coordinating and cooperating with donors, working with political leadership, and

having a coalition building strategy to encourage alternative dispute resolution that goes

back in ancient time and is just and acceptable and, above all, provides for justice; and

19.) Giving the people the tools to ask questions and encouraging a greater measure of

political freedom and activism, letting them realize the essence of the rule of law and

not rule by law; encourage knowledge sharing; harmonize laws and regulations,

encourage capacity building, and encourage law reporting and reviews from time to

time as well as building partnerships with local organizations.

47 Protocol Vol. 2, 17-32 UN Doc. CCPR/C/OP/2 (1990) Communication No: 173/1987.

32

The strategy for implementing these reforms will be to focus exclusively on human rights

fundamentals, human dignity, and precedents in order to develop greater local expertise and to

address these highlighted sections and issues of rights more effectively.

We will build extensive legal coalitions with both governmental and nongovernmental

organizations to create awareness about the inconsistencies, uncertainties, incorrect cross

references, defective wording, omissions and contradictions contained in the Shari’a penal laws

adopted by the twelve states. We will build partnerships with international donors, such as

organizations within the United Nations interested in our objectives, the World Bank, and other

international governmental and nongovernmental organizations.

The American Bar Association African Initiative and Lawyers without Borders (Paris,

France and Quebec, Canada) are planning to undertake projects in northern Nigeria with the

objective of assisting local attorneys to provide legal and professional services to indigent

victims who are either in prison or unable to afford legal service and sharing knowledge and

skills with local attorneys while helping them understand the new legal system, Nigerian

legislation, and how these relate to international instruments to which Nigeria is a state party. All

of these initiatives will encourage the objective delivery of justice. In collaboration with local

lawyers, the Bar Association, and civil societies, research will be undertaken on the new Shari’a

law, its rules of procedure, and evidence requirements, and work will be conducted toward

reviewing and reforming these laws where and when necessary. Special emphasis will be placed

on creating awareness and adhesion to professional ethics.

Mass media can raise awareness among young people and the society at large concerning

the new legal system. Community-based organizations and nongovernmental organizations

should be directly involved in addressing issues of equality, justice and the rights and dignity of

individuals. It is also important to make the school curricula relevant to social realities and to

teach children how to deal with these new realities.

We hope to persuade government that human rights are an appropriate and legitimate

concern of national foreign policy, especially support for human freedom and dignity. We will

emphasize that it is in Nigeria’s pragmatic, long-term national interest to acquire the respect and

friendship of other nations and, along with others, to build a world in which people can live

securely and in peace.

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CONCLUSION

In Nigeria, the rule of Shari’a law has violated legal due process and the basic human rights of

many. The legal reforms we propose will rely upon Nigerian constitutional law as well as

international human rights standards (to which Nigeria is a signatory) as the basis for legal

reform. Furthermore, we hope to encourage the legislatures in other “moderate” Islamic

countries to follow the rule of law and due process.

Though some of the international human rights instruments are not directly binding in a

legal sense, they establish broadly recognized standards and are frequently invoked in connection

with human rights issues. The easiest and most effective way to implement human rights is

through action within each country’s own legal system. If domestic law provides an effective

system of remedies for violations of international human rights obligations, the authority of a

nation’s own legal system can be mobilized to support compliance with international norms.

Most human rights treaties require that parties incorporate relevant obligations into their

domestic law and that they provide appropriate local remedies. This in turn provides the rationale

for the common requirement that domestic remedies be exhausted before an international body

will investigate a complaint of human rights violations.48

The Universal Islamic Declaration observes that “human dignity is sacred and inviolable

and every effort shall be made to protect it. ”49Additionally, the Quran itself places great

importance upon human dignity. It “declares that dignity, in the broadest possible language, is

the natural right of every human being.” The quranic diction that, “We bestowed dignity on the

progeny of Adam” (al-Isra' 17:70) clearly transcends all the racial, social, or religious barriers

that divide humanity.

By accepting the conventions, treaties, protocols and optional protocols, states commit

themselves to undertake a series of measures to end problems that are linked closely to gender,

cultural, religious, and other equality related problems like poverty, illiteracy, and traditional

dogma. By incorporating the principle of equality of men and women in their legal systems, they

48 Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations madeupon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations underarticle 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994).49 Universal Islamic Declaration of Human Rights: 21 Dhul Qaidah 1401 19 September 1981http://www.alhewar.com/ISLAMDECL.html.

34

will abolish discriminatory measures and laws that do not respect human rights and human

dignity. To achieve this, it is necessary to encourage and promote legal reform. In a world that is

fast becoming a global village and with the dimunition of distance brought about by the internet

and other satellite devices, it is important to ensure the effective protection of fundamental

human rights and to ensure elimination of all acts of discrimination on the basis of ethnicity,

race, religion, class, and caste.50

The United Nations Declaration on the Elimination of All Forms of Intolerance and of

Discrimination Based on Religion or Belief51 provides, among other things, that dignity and

equality are inherent in all human beings and that all member states have pledged themselves to

take joint and separate action in cooperation with the UN to promote and encourage universal

respect for the observance of human rights and fundamental freedoms for all, without distinction

as to race, sex, language, or religion. member state’s pledged to uphold the principles of non-

discrimination and equality before the law and the right to freedom of thought, conscience,

religion and belief. They further committed themselves to consider discrimination between

human beings on the basis of religion or belief an affront to human dignity and a disavowal of

the principles of the Charter of the United Nations, and that it shall be condemned as a violation

of the human rights and fundamental freedoms proclaimed in the Universal Declaration on

Human Rights and enunciated in detail in the International Covenants on Human Rights, and as

an obstacle to friendly and peaceful relations between nations.

The application of provisions of international conventions within domestic laws, such as

provisions of the Universal Declaration of Human Rights, would recognize the inherent dignity

and the equality and inalienable rights of all members of the human family as the foundation of

freedom, justice, and peace in the world. Disregard for human rights often results in barbarous

acts which outrage the conscience of mankind, and deny freedom of speech and belief, and

freedom from fear, which have been proclaimed as the highest aspiration of the common people.

Regardless of the customs, religion, traditions, and unique history of a nation, human standards

and respect for human dignity and the worth of a person are universal aspirations.

50 International Instruments: A selection of the key United Nations Covenants or Conventions on Human Rights,http://www.hrc.co.nz/index.php?p=450.51 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or BeliefProclaimed by General Assembly resolution 36/55 of 25 November 1981,http://www.unhchr.ch/html/menu3/b/d_intole.htm.

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Those of us dedicated to reform will focus on bringing together people to consider

theoretical concepts and practical realities. We will develop innovative ways to litigate cases and

increase public awareness. We will work within the governmental structure to positively

influence decision makers on issues of gender, culture, religion, and human rights, and in this

process, will involve vocational leaders, opinion leaders, traditional leaders, and religious

leaders, among others. Individual communities will be encouraged to recognize their plight and

take action. The future will depend upon advocacy, positive engagement, lobbying, and creating

awareness.

Legal reform is an ongoing process that involves all aspects of government and the

public. Legal reform in our context will address new international standards, and respond to

social and economic issues. Legal and judicial reform will involve the collaboration of

governments, judges, lawyers, scholars, civil society representatives, media, public, and other

organizations to build better legal institutions and judicial systems. Effective and coherent legal

reform will require a comprehensive and sustainable approach that avoids importing “models”

inconsistent with national legal and socioeconomic norms. Effective legal reform will promote

opportunity, security, and empowerment for the world’s poor, voiceless, powerless, illiterate, and

vulnerable.52

52 The World Bank Group: Legal and Judicial Reform: http://www4.worldbank.org/legal/leglr/.