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beyond
challenge in the courts on the ground of unconstitutionality. Some
elements of the Sharia incorporated in the Penal Code may well thus
be open to challenge for inconsistency with section 10 of the
Constitution if their connection with the Moslem religion is so
clearly manifest as to indicate that the legislative power of the
state has been used to aid, advance, foster, promote or sponsor that
religion.
In any
case, the prohibition of certain conducts as criminal offences by the
Penal Code derives its legal force from the code, and not from the
Sharia, which serves only as a source. The adoption of Sharia
as a form of law (as distinct from its use as a source) by which legal
force is given directly to the prohibition of certain conducts as criminal
offences, is a different matter altogether.
Thirdly, Sharia
is the legal prescriptions of the religion of Islam as laid down in the
Qu’ran, the Sunnah and other sources. It is thus an integral part of the
Moslem religion. It covers within its limitless ambit both the civil and
criminal aspects of social life.
Fourthly, the
distinction between civil and criminal law has a crucial bearing
upon the application of Section 10 of the Constitution. In civil law, the
state, through its judicial arm, the courts, merely interposes its
machinery as an impartial, disinterested arbiter between parties in a
dispute; it lacks the power to initiate the process of adjudication, and
must wait until it is moved by one of the disputants. So the enforcement,
through the courts, of civil aspects of Sharia does not involve the
support, promotion or sponsorship by the state of the Moslem religion in
preference to other religions.
As
respects the criminal law, however, the position is entirely different.
The state invokes its coercive power to arrest and detain an alleged
offender, to initiate a criminal charge against him in court, and to see
to the effective prosecution of the charge. Thus, as the complainant,
initiator of the criminal process and prosecutor, the state is an
interested party. Accordingly, the enforcement by the state of the
criminal aspects of Sharia involves the use of its machinery to
aid, support and sponsor the Moslem religion in preference to other
religions.
Fifthly,
no one questions or denies the freedom constitutionally guaranteed to a
Moslem, as well as to other Nigerian citizens, to “manifest, and propagate
his religion of worship, teaching, practice and observance” “either alone
or in a community with others, and in public or in private” (Section 8 of
the Constitution). What is in issue is whether the State’s legislative,
executive and judicial powers can be used to enact or codify the criminal
aspects of the Sharia, to arrest, detain and prosecute offenders.
The
question, then, is whether the state can conformably with section 10 of
the Constitution, get so involved on the side of one religion? The actual
words of Section 10 are that “The Government of the Federation or of a
state shall not adopt any religion as State religion”.
Interpreting the provision in the Constitution of the United States
enjoining the State to “make no law respecting the establishment of
religion”, which is less precise than the provision in our own
Constitution, the highest court in the country has said that the provision
has a “secular reach far more penetrating in the conduct of government
than merely to forbid an ‘established church’, and that it implies,
additionally, the equality of all religions in relation to the government.
Not only must the government not establish or adopt a particular religion
as state religion, it must also treat all religions equally, showing no
favouritism or preference of any kind for one against the others by way of
special promotion of, or protection for, its institutions, doctrines and
observances or any kind of state sponsorship.
Short of formal establishment of a particular religion as the state
religion, favouritism or preference exists if a state action is intended
to, or does in its practical effects, advance, foster, encourage or
inhibit any religion. “The basic purpose”, said the court, “is to ensure
that no religion be sponsored or favoured, none commanded and none
inhibited”. Any state action having as its purpose or practical effect the
advancement, encouragement or inhibition of any particular religion, while
it does not formally establish the favoured religion as the state
religion, is clearly derogatory of the equality of all religions
vis-à-vis the state, as where the injunctions of one religion are
enforced through the machinery of the state; this is so even where no
coercion is used to achieve the purpose, e.g, where instructions or
practices based on the doctrines and observance of a particular religion
are given in public schools, The U.S Supreme Court has gone further to lay
it down that the constitutional prohibition obliges the state not to get
involved at all in religious matters as by providing aid to religion, even
on the basis that religious sects are treated equally.
There is no doubt that in a multi-religious country, the maintenance of
equality between the different religions and the neutrality of the state
in matters of religion is of far greater practical importance than the
religious form of the state. The object of the state’s neutrality, said
the court, is to prevent “Government common to all from becoming
embroiled, however innocently, in destructive religious conflicts. We have
staked the very existence of our country on the faith that complete
separation is best for the state and best for religion.”
The
demand to bestow constitutional recognition on Sharia in its
entirety generated a stalemate during the making of the 1979 Constitution.
The Moslem members of the Constituent Assembly from the North walked out en masse from its meetings, but were later prevailed upon,
following intervention by the then Head of State, General (as he then was)
Olusegun Obasanjo, to return. With good sense and good faith on both sides
of the religious divide, a compromise was struck. The compromise, of which
I was one of the principal architects, bestowed constitutional recognition
on Sharia, counter-balanced by a like recognition of customary law,
but only to the extent of establishing for “any State that requires it,”
a Sharia Court of Appeal or (as the case may be) a Customary Court
of Appeal (Sections 240 and 245).
The
jurisdiction of Sharia Court of Appeal is delimited partly by its
designation as a court of appeal (and not a court of first instance) and
partly the clear specification of section 242, which, for easy
understanding, must be quoted in full:
1.
The Sharia 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 which the court is
competent to decide in accordance with the provisions of subsection
(2) of this section.
2.
For the purposes of subsection (10 of this section of this section, the
Sharia Court of Appeal shall be competent to decide:
(a)
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 and relating to family relationship or the
guardianship of an infant;
(b)
where all the parties to the proceedings are Moslems, any questions of
Islamic personal law regarding a marriage, or regarding family
relationship, a founding or the guardianship of an infant;
(c)
any question of islamic personal law regarding a wakf, gift, will
or succession where the endower, donor, testator or deceased person is a
Moslem;
(d)
any question of Islamic personal law regarding an infant, prodigal or
person of unsound mind who is a Moslem or the maintenance or guardianship
of a Moslem who is physically or mentally infirm; or
(e)
where all the parties to the proceedings (whether or not they are Moslems)
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.” (section 277 of the 1999 Constitution is in exactly the same
terms)
It
is needless to state that the words “in addition to such other
jurisdiction as may be conferred upon it by law of the state” in
subsection (1) above are controlled not only by the designation of the
court as a court of appeal, but also by the words in subsection (2) to the
effect that “for the purpose of subsection (1) of this section, the
Sharia Court of Appeal shall be competent to decide….” Any other view
of the matter would do violence to the letter as well as the spirit of the
provision. It would also render virtually nugatory the prohibition in
section 10. The farthest those words can be stretched in the context of
section 242 (section 277 of the 1999 Constitution) is to say that they
enable appellate or supervisory jurisdiction to be conferred on the Court
in other civil matters outside the field of Islamic personal law as
defined in the section, but certainly not original/or appellate
jurisdiction in criminal matters under Sharia law.
The
fact that the jurisdiction of the Sharia Court of Appeal is
restricted only to matters involving Islamic personal law as set out in
section 242 of the 1979 Constitution (or section 277 of the 1999
Constitution) does not of course mean that other aspects of Sharia
civil law are denied constitutional recognition; as earlier noted, the
continued application of such other aspects as part of existing laws is
recognised but the recognition is subject to their not being inconsistent
with any provision of the Constitution (section 315(3)).
With Sharia criminal law, the position is completely different. I agree
with the Honourable Mohammed Bello, the retired Chief Justice of Nigeria
that without codification by law enacted by the National Assembly or of a
State House of Assembly, the application of Sharia criminal law by
virtue of authority derived directly from the Qur’an or the Sunnah will be
inconsistent with section 36(12) which prohibits the conviction of a
person of criminal offence “unless that offence is defined and the penalty
thereof is prescribed” in a law enacted by the National Assembly or State
House of Assembly. Sharia also runs foul of the Constitution where
punishment under it e.g amputation of the hand or haddi lashing,
involves torture, is inhuman or degrading or is otherwise derogatory of
human dignity (section 34(1)); or where change if religion is guaranteed
by section 38(1), is prohibited and made punishable by death.
But
with the greatest respect to the retired CJN, the matter goes far beyond
the non-codification of Sharia criminal law by an enactment of the
National Assembly or a State House of Assembly. The question is whether
the power of the federal or state government can, conformably with the
prohibition in section 10 of the Constitution, be employed to codify
Sharia criminal law in all its plenitude as ordained by the Qu’ran,
the Sunnah and other Islamic holy books, and to enforce it against Moslem
and non-Moslem offenders alike by arrest, detention, prosecution, trial,
conviction and punishment? To restrict the application of such a code to
Moslems alone will lay bare its character as the law, albeit in a modified
form, of the religion of Islam, and expose it as a state sponsorship of
that religion. The conclusion is thus inescapable that the prohibition in
section 10 of the Constitution stamps with an indelible taint of
unconstitutionality, the Sharia criminal law, whether in its
original form as contained in the Qu’ran and the Sunnah or in a codified
form to be enacted by the National Assembly or a State House of Assembly.
I am
increasingly sceptical of the wisdom or desirability of embroiling our
courts in the destructive conflict of religious politics, or the use of
federal might to force the states in the North to obey the command of
section 10 of the Constitution. Dialogue seems to me a better way of
trying to resolve the issue. If the states in the North are bent on
adopting Sharia criminal law, and refuse to drop the idea, they
must be taken to have opted for a confederal arrangement or a complete
break-up of the association. It is better to pull apart than fight over
the issue.
* Being
excerpts from a paper delivered by Professor Ben Nwabueze,
constitutional lawyer, at a symposium in Owerri, Imo State of Nigeria
organised by the Knights of St. Christopher. Text was cuklled from “The
Guardian” (Nigeria)
of Monday, 3rd July 2000.
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