Reflections on theNew Sharia 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 Sharia 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

Nigerias Human Rights Obligations 27

Strategy for Legal Review and Reform 30

Conclusion 34

ii

FOREWORD

Beginning in 1999, twelve states within the Federal Republic of Nigeria adopted Sharia penal

law codes in addition to their longstanding systems of Sharia personal law. The spread of

Sharia penal law in Nigeria attracted international attention. Nigeria is Africas 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 Sharia 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 Sharia 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 Nigerias largely secular

government. The imposition of Sharia 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 Sharia cases. In 20032004 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 Sharia law in Nigeria, its

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

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

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

organize a multiethnic, multireligious society. Ms. Ibrahims 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

Nigerias 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

2

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, Sharia 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 (Sharia), Court of Appeal of the Federal Capital Territory (Abuja), Sharia 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.

3

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,