Focus On Shari’ah Sentence Controversy

UN Integrated Regional Information Networks, Aug. 29, 2002
http://allafrica.com/stories/200208300017.html

This report does not necessarily reflect the views of the United Nations

Harsh sentences imposed by Islamic courts in northern Nigeria since a dozen states adopted the Shari’ah legal code over the past two and a half years have drawn consistently strong criticism from President Olusegun Obasanjo’s federal government.

However, analysts say the sentence of death by stoning which stands over 30-year-old mother, Amina Lawal, and which was recently confirmed by an appeal court in Katsina State, may provide the platform for a conclusive legal battle between supporters and opponents of Shari’ah.

In his first comment on a sentence which has sparked widespread international outrage, Obasanjo on Saturday expressed his expectation that the Lawal case would progress from the Katsina State judiciary to the federal judiciary, and would be overturned.

“I do sincerely hope that we will get through it, that Amina will not die,” he said. “But if for any reason she is killed… I will weep for Amina and her family, I will weep for myself, and I will weep for Nigeria.”

Minister of Justice and Attorney-General Kanu Agabi was more pointed in expressing the government’s readiness to challenge the death sentence for adultery.

“The death sentence on Amina… raised substantial issues of law and fact worthy of the attention of the court of appeal,” he told reporters. “We must appeal against the judgement.”

Meanwhile, Lawal faces the prospect of being buried up to the neck and stoned to death, as required by Shari’ah law, should her appeal fail.

Critics have bemoaned what they see as the weakness of the government’s case-by-case approach to the Shari’ah judgements.

“This approach of taking each case as it comes up is certainly not good enough,” human rights lawyer Onoja Ocheje told IRIN. “The Shari’ah sentences represent a fundamental challenge to the constitution, which Obasanjo and his government have sworn to defend.”

Not only does the Nigerian constitution forbid torture, inhuman and degrading treatment but the country is a signatory to international conventions that are in direct opposition to such practices, Ocheje said.

Besides, he added, the Nigeria constitution states that where any law (whether passed by local or regional governments) come into conflict with the constitution, then such laws become void.

Curiously, the Nigerian state governments that have introduced Shari’ah law defend their right to do so on the constitutional guarantee on the freedom of religion. Shari’ah, they have repeatedly argued, is inseparable from the practice of Islam.

Before the advent of British colonial rule in Nigeria, parts of the north controlled by the Sokoto Caliphate (Islamic leadership) – which emerged after a jihad, or ‘holy war’, waged by Muslim cleric Uthma dan Fodio in the early years of the 19th century – came under Shari’ah law.

After the British defeated the Sokoto in the early 20th century, aspects of the religious legal code which were considered harsh and unacceptable were abrogated.

On the eve of Nigeria’s independence in 1960, a revised penal code, based on the legal system operating in Sudan, was adopted for northern Nigeria. It limited the application of Shari’ah to civil matters, especially issues of marriage, divorce and inheritance. Criminal matters were to be dealt with by secular courts, and punishments such as stoning to death, flogging and the amputation of limbs were ruled out.

Shari’ah courts in the north had their equivalents in the south and other non-Muslim areas in the form of customary courts operating alongside secular courts. Limitations were imposed on customary courts, like their Shari’ah counterparts, and they could not, for instance, impose sentences of trial by ordeal as had been practised in many traditional societies in the pre-colonial era.

Nigeria’s legal system has, then, developed in a manner that sought to accommodate the country’s varied heritage – including the Islamic, the traditional and Christian – alongside western concepts of justice.

In the mainly Muslim north of the country, state Shari’ah courts of appeal were set up to handle cases not satisfactorily resolved in the lower courts. At the federal level, every court of appeal was required to have at least three judges specialised in Islamic law.

The constitution also requires that the process of making appointments to the Supreme Court should take cognisance of the need to deal with Shari’ah cases. Of the 15 judges in the supreme court, six are Muslims; since only five judges need sit at any given time, there are enough qualified to hear a Shari’ah case.

Obasanjo has resisted demands to seek a Supreme Court resolution of the Shari’ah crisis in Nigeria on the grounds that it could lead to the polarisation of the country along religious lines. But if the Lawal case makes its way to the highest court, some analysts fear the outcome will be the same.

“For a cut-and-dried constitutional matter, the religious composition of the Supreme Court panel would not have mattered,” Chima Nwokoye, a constitutional law expert, told IRIN.

“But as a Shari’ah appeal, the case would be very much in the hands of the Muslim judges of the court. And what if they uphold a stoning sentence?”

There is also the danger now that the first execution by stoning under the auspices of Shari’ah law may take place before the adultery cases that have been making headlines can be considered by the federal appellate courts.

This is because a 54 year-old man, Ado Baranda, sentenced in Jigawa State for raping a nine-year-old girl, has refused to appeal. The state governor, Ibrahim Turaki, has said the sentence will be carried out, though no date has yet been set.

So will the Nigerian government forcibly stop Baranda’s execution?

Some analysts consider that it has left the Shari’ah issue to fester for so long that things may have got out of control.

“Obasanjo’s government had – before now – fought shy of taking the Shari’ah bull by the horns,” Ocheje told IRIN.

“We are now seeing signs that the battle lines have been drawn and – sooner or later – will be crossed, with all the consequences.”

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This post was last updated: Thursday, November 21, 2013 at 8:48 PM, Central European Time (CET)