The Legal Justification for the Creation of Sharia-based Statutes by Some States in Nigeria
By Ogu Ibrahim Ogelebe Kolu.
Sharia based statutes are various Isamic laws that guide Muslims affairs and these statutes derived it’s validity through the following laws and discussion discussed hereunder.
The 1999 Constitution of the Federal Republic of Nigeria as ammended 2011 clearly provides for the House of Assembly of States power to make Laws for peace and order of her State in respect of any matter which is not included in the Exclusive Legislative List, any matter included in the Concurrent Legislative List, and any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution (Residuary Matters). particular Section: 4(7) a,b&c of the 1999 CFRN as amended. It means the creation of Sharia-Base statutes derieved it’s foundation from our constitution.
Also, sections 260(1) and 275(1) provides for the establishment of the Sharia Courts of Appeal for the FCT and any state that so requires, while equally providing in section 288 that in appointing persons to the offices of justices of the Supreme Court and Court of Appeal, the president must ensure that among the holders of such offices are persons learned in Islamic law.
Flowing from the above, the same constitution provides for freedom of Religion at exactly Section.38. (1) as follows.
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.
A careful perusal from the above constitutional provision will unfold the reality that the creation of Sharia base Statutes derived is validity from Constitution specifically Section 38(1) 1999 CFRN (Supra).
In the case of UKEGBU V. N.B.C (2007) 14 NWLR (Pt. 1055) 551 at 578, paras. A – B (CA)Per. Rhodes-Vivour JCA. Held as follows;a
By virtue of section 38(1) of the Constitution, 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.
Th above constitutional provision and the Judicial decisions cited above clearly empowered an individual or groups of people to propagates and manifest the religion of their choice. In affirming and actualize the above exposition, the Governor of Zamfara State in the year 2000 initiated the ideas and to God be the glory, it had be manifested by Zamfara State House of Assembly by Created a Sharia base penal code as the substantive Criminal law for the Muslims of the state. The said law incorporated virtually all known Islamic offenses that were recognised by Qur’an and Sunnah of the Holy prophet Muhammad SAW.
Such offenses like Zina (Adultery and Fornication), Qadhf (False accusation of Zina), Sariqa (Theft), Rape, Sodomy, Robbery(Hirabah), and Alcoholic drinks.
Thereafter, ten (10) other States of the Northern Nigeria adopted and enacted theirs their Sharia penal code, these States are as follows; Jigawa, Kaduna, Katsina, Kano, Niger, Sokoto, Bauchi, Yobe, Kebbi And Borno.
In guaranteed the Sharia based Statutes to operate freely in Nigeria without been ousted, the grundnorm of our country expressly established for it, Courts and infused it with Jurisdiction to entertain Islamic related matters. This position has been echoed in the case of MAISHANU & ANOR. V. MANU & ANOR. (2006) LPELR-CA/J/240S/2002 Per TSAMIYA, J.C.A. (P.12, Paras.A-E) Held this;
“The jurisdiction of the Sharia court of Appeal of a state is constitutional and prescribed in section 277(2)(a-e) of the Constitution of Nigeria 1999. On a fair construction of the section, the jurisdiction of the lower court is confined to, and limited to all questions of what is termed ‘Islamic Personal Law’, which is Islamic personal status, regarding the matters prescribed in subsection 2(a-e) of section 277 of the Constitution. See Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722 at 732. This subsection relates to marriage and its dissolution, family relationship and guardianship of infants. It also includes Wakf, Gift, Will or Succession where the endowed, donor, testator or deceased person is a Muslim. Included also is, the determination of any question of Islamic Personal Law regarding a Muslim, an infant, prodigal, person of unsound mind, the maintenance or guardianship of a physically or mentally infirm Muslim, and lastly, in all other cases where the parties have requested the court of first instance to determine the case in accordance with Islamic Personal Law.”
This law, reduced the amoral of Islamic society and Muslims in particular. However, these statues doesn’t apply randomly without certain exception. One of the exception is that it only applies to a Person of Islamic faith, however no- Muslims who consent to applies it will still be accepted. In cementing and affirming the above position, Per DANIEL-KALIO, J.C.A. (Pp. 17-19, Paras. F-A) in the case of NURTW v. UPPER SHARIA COURT, ROCK ROAD, T/WADA, KADUNA &ORS (2019) LPELR-CA/K/39/2018 Held thus;
“Section 3 (1) of the Sharia Penal Code Law of Kaduna State, 2002 was very clear about those that come within it’s jurisdictional purview when it states that “every person who is a Muslim and/or every person who voluntarily consents to the exercise of the jurisdiction of any Sharia Court established under the Sharia Court Law, 2001 shall be liable to punishment under the Sharia Penal Code Law for every act or omission contrary to the provision thereof, of which he shall be guilty within the State”. The appellant being neither a Muslim nor a person that voluntarily consented to the jurisdiction of the Upper Sharia Court cannot be liable to punishment under the Sharia Penal Code Law.
Noteably, the Sharia based statues had been adopted by party of some Northern states of Nigeria, even though these codes varies slightly in some aspects. For instance Section 46(1) of the Kaduna State Shari’a Penal code Law 2002 provides that, the Minimum amount of Nisab is approximated to be #1,000 (as at 2003). To MALIKI SCHOOL OF ISLAMIC LAW, Nisab has been estimated to be three (3) Dirhams or One Quarter of the Dinar. in addition the stated amount fluctuates over time. While Section 684(2) of Niger State Shari’a Penal code Law provided for the amount of Nisab to #20,000.
CERTAIN SELECTED OFFENSES CREATED BY SHARI’A-BASED STATUTES ARE AS FOLLOWS:
1. Zina (Adultery and Fornication)
2. Theft (Hirabba)
3. Alcohol drink (Shurbal-Khamr)
4. Qadhf( False accusation of Zina)
Bellow Are The Explanation Of The Above Offenses Created By Sharia based Statutes.
i— Zina is defined variously by different Statues. According to Section 121of Kaduna State Sharia penal code Law 2002 defined it as follows;
Whoever being a man or a 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 exist as to the illegality of the act, is guilty of the offense of Zina.
Flowing from the above Sharia statutory provision will leave no one in doubt that, once a person of full capacity, age and sane voluntary insert his genital organ into the vagina of another who he believes that he has no sexual freedom or right, even though he didn’t releases his sperm on her, such person is deemed to have committed the heinous had of Zina.
Zina is a crime against Allah and is strongly forbidden. Qur’an Chp.17 vs 32 provides: “Nor come near to fornication/adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).”
Zina Can Be Established In The Following Ways:
a. It must be established that the accused had sexually intercourse with a human being.
b. That there is no fact that will create doubt as to the illegality of the act.
c. The accused must be adult of full capacity.
d. The act of the accused was voluntarily made knowing fully well that he had no sexual right with her.
Proof Of Zina
It’s pertinent to know that proof of Zina is stringent, that is the prosecutor must proof beyond reasonable doubt and where there is in place existence of doubt, it shall be resolved in favour of the accused. This position has be ironed and cemented in TASIU RABIU v. AISHATU AMADU (2002) LPELR-CA/K/123/S/92.
Under the MALIKI SCHOOL OF THOUGHT, the Zina can be Proof in three (3) Dimensions as follows:
i. Voluntary Confession of the accused
ii. Testimonies of four (4) reliable adults witnesses of high impeachable character whom have unanimously and at the same time saw the man or woman unlawfully having sexual intercourse.
III. The manifestation of pregnancy from unmarried woman.
THE PUNISHMENT FOR ZINA.
The two punishments for Zina depends on the marital status of the accused as provided for in the Holy Qur’an and Sunnah of the prophet Muhammad SAW.
Firstly, where the accused is married, he shall be stone to death (Rajam) while in a circumstances where the accused is single, he shall be flogged one hundred (100) latches with one year imprisonment as a deterrence for the prospective offenders.
I humbly wish to conclude that both the following cases ended in acquittal because the prosecution has not discharged his burden of proof to the satisfactory of the Khadis. SAFIYYATU HUSSAINI V. STATE No. USC/GW/CR/FI/10/01 & LAWAL v. C.O.P .
2– Theft is also part of Hudud offenses recognizes by Holy Qur’an and Sunnah of the prophet SAW and Sections: 139 of the Kaduna State Sharia penal code Law and 133 of the Sharia penal code Law of Kano State as follows:
The offense of theft is deemed to have been committed by a person who covertly, dishonesty and without consent takes any lawful property belonging to another, out it’s place of custody (Hirz) and value not less than the minimum stipulated value (Nisab) without any justification.
It’s important to make it clear at this point that once a person unlawful took away the property of another in it’s place where it supposed to be kept (Kirz) and the said property reached Nisab that is #1000 as at 2003 and #20,000 as enshrined in section 286(2) of the Niger State penal code Law 2002.He will be punish accordingly. In NASIRU YUSUF v. LAWALI NA UMARU AND 2 ORS CRF/34/2002. The Court punished the accused of theft base on Section 144&145 Of the ZAMFARA STATE Sharia penal code law 2000.
Note, that the accused person’s will be punish base on the numbers of Offenses committed by him as follows:
First time offender, his right hand from the wrist will be amputated.
Second time offender, amputation of his left foot from the ankle.
Thirdly, the amputation of the left hand from the joint of the wrist
Fourth, is the right foot from the ankle.
Thereafter, where the accused is guilty of theft punish by hadd, will be punish for Tazir as provided for under Section 140 of the Kaduna State Sharia penal code law 2002.
However, the following are exceptional circumstances where the person accused of theft will not be punish with Hadd but Ta’azir.
i. Where the offense is committed by ascendant to the descendant.
ii. Where the offender retracted his confession and there is no other evidence against him.
iii. Where the stolen property is return before the accused was arraigned before the court.
iv. Where the theft is between the spouses in their matrimonial home and the property is not in the control and possession of the victim.
3– Alcohol Drinking ( Shurubal-Khamr)
In Sharia, consumption of alcohol and other intoxicants is strictly prohibited. This rule is based on the Quranic verse (5:90) which states that “intoxicants and gambling, dedication of stones, and divination by arrows are an abomination of Satan’s handwork. Eschew such abomination that you may prosper.”
Muslims are expected to avoid any behavior or substance that could harm their physical and spiritual health. Alcohol consumption has been linked to various health problems, including liver damage, addiction, and mental health issues. Additionally, it can lead to social and moral problems, such as violence, accidents, and adultery.
Sharia imposes severe punishments for the consumption of alcohol, ranging from flogging and imprisonment. These penalties serve as deterrence to Muslims who may be tempted to drink despite the prohibition.
However, some Muslims argue that moderate alcohol consumption may be permissible in certain circumstances, such as medical use or as an ingredient in food or medicine. Islamic scholars have debated on this issue, and various opinions have been proposed regarding the permissibility of alcohol consumption. However, the majority of Muslim scholars and authorities agree that alcohol drinking is generally haram (forbidden) and must be avoided.
4. Qadhf (False accusation of Zina). Qadhf in Sharia refers to the act of accusing a person of committing adultery or fornication, without providing sufficient proof to back up the claims. The punishment for Qadhf is severe, as it is considered a major violation of Islamic law.
The Qur’an strictly forbids false accusations, and calls upon people to be just and truthful in their dealings with others. It is narrated that the Prophet Muhammad (PBUH) said, “Avoid Qadhf, for it is one of the worst of lies, and leads to severe punishment in the hereafter.”
In Islamic law, the burden of proof lies with the accuser, and Qadhf can only be proven through the testimonies of four trustworthy male witnesses who actually witnessed the act of intercourse. If the accused is not able to produce sufficient proof of innocence, MALIKI and HANAFI school of thought provides for 80 lashes as a punishment.
It is important to note that Qadhf can have serious consequences for both the accused and the accuser, as false accusations can lead to irreparable damage to one’s reputation and social standing. This is why Sharia places such a strong emphasis on justice, truthfulness, and fairness in all matters, particularly when it comes to accusations of major sins like adultery.
In sanction the person above, the Glorious Qurʾan (24:4– 5) provides:
And those who accuse honorable women but bring not four witnesses, beat them (with) eighty strokes and never (afterwards) accept their tes- timony—they indeed are evildoers.
About the Author
OGU IBRAHIM OGELEBE KOLU, A 300L LAW STUDENT OF ABU ZARIA.
DATED:1st SEPTEMBER, 2023
REFERENCES
1. Sections 17 v32 & 24 vs. 4-5 of the Glorious Qur’an
2. Hadith the Holy prophet Muhammad SAW
3. The 1999 Construction of the Federal Republic of Nigeria as ammended 2011.
4. Sharia penal code Law of ZAMFARA 2000, Kano 20005, Kaduna 20002,
5. UKEGBU V. N.B.C (2007) 14 NWLR (Pt. 1055) 551 at 578, paras. A – B (CA)
6. MAISHANU & ANOR. V. MANU & ANOR. (2006) LPELR- CA
7. Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722 at 732.
8. NURTW v. UPPER SHARIA COURT, ROCK ROAD, T/WADA, KADUNA &ORS (2019) LPELR-CA/K/39/2018
9. TASIU RABIU v. AISHATU AMADU (2002) LPELR-CA/K/123/S/92.
10. SAFIYYATU HUSSAINI V. STATE No. USC/GW/CR/FI/10/01
11. LAWAL v. C.O.P (2002) CA
12. NASIRU YUSUF v. LAWALI NA UMARU AND 2 ORS CRF/34/2002.
13. MALIKI SCHOOL OF THOUGHT
14. THE LAW OF CRIMES IN NIGERIA BY KHARISU SUFIYAN CHUKKOL.
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