UN/lorin shari'ah journal

PERIPHERALISATION OF SHARIATUL- ISLAM (ISLAMIC LA W ) IN NIGERIA AND ITS ADVERSE EFFECTS ON MUSLIMS

Nigeria is said to be the most popullous black African Countryl with more than 240 tribes.2 Though, there is no reliable statistics3, it is often said that the bulk of the population in the Northern part4 of Nigeria consists.o[ muslims. In the southern part5, Christians and followers of indigenous African traditional religion constitute the majority while in the Western6 part (of the Country), Christians, muslims and followers of indigenous African traditional religion co­

exist to the population.
MEANING OF SHARIATUL- ISLAM

Though Islam is a religion, in both scope and perspective, it goes beyond religion. It is an all embracing and encompassing religion which permeates the social, political, legal and economic life of the muslims. By the special nature of the religion, all its adherents are mandatorily required to completely submit themselves, their lives and properties to divine will and laws 7.

Therefore, in its technical sense, Shariatul-Islam means "the path to Allah's commandments."g That is, it is 'the divine law from Allah handed down to mankind through the holy Prophet Muhammand (P.B.U.H) to be followed and obeyed tenaciously by all muslims.

The Quran says:­ Let the people of the Gospel judge by that which Allah hath revealed therein. Whoso

The degreee of success recorded then, compelled Clapperton, when he visited that part of the country during the reign of late Sultan Muhmmandu Bello to remark thus;

Sharia gave to the Sokoto Caliphate what no human law could ever confer Security, prosperity, integration of society, economic

self-sufficiency and . a woman could travel

with a casket of gold upon her head from one edge of Fellaha (dominion) to the other without any molestation12.

UN/LORIN SHARI'AH JOURNAL SHARIATUL-ISLAM IN POST COLONIAL NIGERIA.

The advent of colonialism in Nigeria reduced the application /jurisdiction of Shariatul-Islam in the coutry's legal system and secular positive law was accorded a wider jurisdiction. This was most pronounced in the Penal and Civil laws.13 To further compound the issue, some civil aspects of shariatul-Islam have to satisfy the validity tests of the English Common Law before they become applicable as in the case of MARlY AMA Vs. SIDIKU EJOI4. In this case, the judgement for custody of a child (who was given birth to within eight months of divorce) to the responderit

was set aside on the grounds that it was against the principle of natural justice, equity and good conscience. This decision is howeter contrary to Shariatul-Islam hence a divorced women is mandatorily required to observe three, months of waiting period (iddah)15 to ascertain that she is not pregnant for the former husband. ,

ADVERSE EFFECTS OF PERIPHERALISATION OF SHARIATUL -ISLAM ON MUSLIMS IN NIGERIA.

In the modem day Nigeria, the effects arising from peripheralisation of Shariatul-Islam on muslims scattered all over the country cannot be over emphasized and quantified. This is because it permeates all facets of their lives. On the whole, the

system has forced the muslims to subject themselves to an alien system that they do not know and do not appreciate. These adverse effects range from religious, economic, social political to judicial aspects of their lives.

From religious perspective, the right of freedom of thought, conscience and religion of muslims in Nigeria as entrenched in the

constitution16 has been flagrantly trampled upon. First by not

allowing complete and total application of penal laws of shariatul - Islam to apply on muslims. Secondly the penal aspect of Shariatul-Islam has undergone synthesis to conform withrequirement of the English Common Law before adoption and imposition on the muslim populace. The synthesis has denied the muslims the right to profess and practise Islam to the letter as handed down by Allah.17 For instsance, homicide resulting from provocation under the present Penal Code Law18 will mitigate the criminal offence to one not punishable with death (Manslaughter) contrary to what obtains under Maliki School of Law of the Shariatul-Islam.

Economically, partial application of Shariatul-Islam has demoralised the commercial activities of Nigerians as a whole and the muslims in particular. The muslims in one way or the other, contrary to Shariatul-Islam, have been compelled by necessity to conduct the bulk of their commercial activities in accordance with secular positive law. 19 As a result of this, business men are no longer honest and sincere. Hoarding2O and creation of artificial scarcity of goods and services have become the bane of economic life. A muslim could defraud or cheat his brother muslim and get away as long as he can afford to employ the services of a competent lawyer to defend him in accordance with secular man­made law. Mass fraud and diversion of public funds21 into private use have since been accepted as a way of life.

Socially, the society is rotten. Lixes and properties are no more safe. Unlike the period prior to coloniaHsm, now women and in fact men, can no longer carry "caskets of gold" from one edge of Fel1aha to another without armed escort in order to avoid either a daylight or night robbery. Even where armed escort is provided, they have to be prayerful to arrive--at their destinations safely without one form of attack or the other,,?2 Muslims live in perpectual fear and tension every day contrary to what the holy

UNLORIN SHARI'AH JOURNAL

Prophet Muhammad (P.B.U.H.) said on his last-pilgrimage where he said:­ "Your lives and properties are sacred to one another.,,23 People are molested and assaulted and woman are raped every , now and then. Consented illicit sexual intercourse is no more an offence. under the secular positive law as against what \s entrenched in the divine Shariatul-Islam which has specific and. divine punishment for different offence as they occur day in day OUt.24 The belief of Islam that the law is the "moulder of the society as well as creator of an ideal nation and citizen" is denied manifestation as a result of peripheralised application of Shariatul Islam?5 The societY is nothing to day but a topsy-turvy.

On the political scene, Nigeria is somehow deteriorating in the concept of brother-hood especially within the muslim fold because of peripheralisation of Shariatul-Islam. Today, muslims in Nigeria firstly look at themselves from their ethnic affiliation and geographical setting before identifying themselves as brothers in Islam.26 This is contrary to the concept of brotherhood in a Darul­Islam where the boned of brotherhood in Islam is stronger than the bond of blood relation.

Finally, since the present legal system is built on a capitalist concept and capitalism reigns supreme, the poor is and will always be at the receiving end. This is contrary to what justice is under Shariatul-Islam because the poor is always accorded equal judicial right with his rich counter part as there is more or less any difference between them. Under Shariatul-Islam, it is the obligatory duty of the state to provide the poor accused person with a competent lawyer to defend him in both civil and criminal cases so as to arrive at just end.

It is gratifying that the wind of restoration of application of Shariatul-Islam, for the benefit of muslims, which is already blowing in Zamfara State is gradually spreading to Niger state and about spreading to neighbouring states of Katsina, Jigawa and Kaduna. Though, the action of the Zamfara State government is laudable, bold, courageous and commendable, it is not illegal. The 1999 Constitution provides the basis when it provides that:­

conscience and..r:eligion, 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, teachins, practice and obsevance?7

It is worth noting at this juncture that restoration of application of Penal and Civil Laws of Shariatul -Islam on muslims is neither synonymous to adoption of Islam as a State religion nor Islamization of the state. Hence, it does not contravene the provision of section 10 of the 1999 constitution. This is because, in recognition of the secular nature of Nigeria, both the federat and state governments recognise Christians' and Muslims' festivals28 by declaring such days of the festivals as public holidays. Also, in further recognition of the secular nature of the country, the two tiers of government give legal recognition to the Christian Pilgrims Welfare Board and Muslim Pilgrims Welfare Board. These boards are financed and runned with public funds and appointments of members of these boards is done solely by the government. If all these actions of the government neither amount to illegality nor a contravention of section IO of the 1999 constitution, and do no equally amount to "Christianizing" or "Islamizing Nigeria, it is therefore legal and within the law to

UNILORlN SHARl'AH JOURNAL

allow the application of Islamic Penal and Civil laws to fully apply on muslims in any state of the federation where muslims exist. It is equally right to categorically state that what Zamfara State government did in respect of applying Shariatul-Islam on the musilms in the state and other states about to follow the path of Zamfara State government is neither illegal nor a breach of any of the provisions of the 1999 constitution.

The fear that the system is susceptible to abuse and corruption bei1):g expressed by nominal IIUlslims, uneducated muslims and non-muslims alike is baseless, unfounded and unnecessary raising of false and imaginery alarm as no one system, including the present one, is absolutely immune to being susceptible to abuse, corruption and bias. There is no adverse problem with Shariatul­ Islam but with the people.
ENDNOTES

Lecturer in the Department of Islamic Law, Faculty of Law, University of florin.

1. By the 1991 National Census figures, the population of Nigeria is said to be 100 million.

2. Clarke, J.D. 1956 A Visual History of Ni~eria lbadan; Evans Brothers Ltd; p.ll

3. The 1991 National Census did not reckon with the religion of the populace, it only indicated their sex.

4. This consists of 19 states including the Federal Capital Territory (F.C.T.) Abuja namely; Bauchi, Benue, Bomo,

Gombe, Jigawa, Kaduna, Kano, Katsina Kebbi, Kogi, Kwara, Nasarawa, Niger, Plateau, Sokoto, Taraba, Yobe and Zamfara.

5. This consist of 9 states namely; Akwa Thorn, Anambra, Bayelsa, Cross River, Delta, Ebonyi,. Enugu, Imo and Rivers.

6 These are the Edo, Ekiti, Lagos, Ogun, Ondo, Osun and Oyo states. 7. See Quran. Chapter 2, Verse 112.

8. Muri, Okunola "Sharia and Justice", A paper presented at the 151 Annual Conference of Islamic Law Teachers' Association held at University of Sokoto, Sokoto, from 10th-12th December, 1986.

9. .Q!!r.illh Chapter 5, Verse 47

10. Section 38 (1) of the 1999 constitution of the Federal Republic of Nigeria

11. Moo Okuno1a, QIl. Ci1;

12. Clapperton, Sokoto Gazzetteer.

13. See "The Penal Code Law," Cap. 89, Laws of Northern Nigeria. 1963. which replaced the Islamic Penal Laws The Huddud offence in the present 19 Northern States of Nigeria including the Federal Capital Territory (FCT), Abuja where muslims form the bulk of the population.

14. (1961). NRNLR, 18.

15. Qyrnn Chapter 65, Verse 4

16. See Section 38 (1) of the 1999 Constitution of the Federal Republic of Nigeria.

17. See Qyrnn, Chapter 5 verse 47

18. Section 222 of the Penal Code Law, Cap.89, Laws of Northern Nigeria. 1963.

19. The example that readily comes to mind is the current banking system which is an interest based banking system contrary to an Islamic interest free banking system.

20. See Quran. Chapters 3 and 4, verses 180 and 3 7 respectively.

21. See "Federal Government Recovers N11.7bn stolen fund," The Punch, Thursday, November 25, 1999, front page.

22. See "Fire and fury in Lagos," The Punch, Monday December 6, 1999, p. 28

23 Abdul, M. a. A., 1982 The Selected Traditions of Al­l Nawawi, Islamic publications Bureau, Lagos, p. 40

24 See The Radiance Ma~azine. No.5 September-December, 1983, p.13

25 See Inquiry, VolA, No.1. January 1987, p.27.

26 The formation, existence, objectives and activities of ethinic unions such as adua People Congress (a.p.C) Arewa People Congress (APC), Igbo People Congress (l.P.C) and the Egbesus to mention but a few, speak volume of their atrocities. af recent, the federal government has placed a cash reward ofN100, 000.00 for any body who can supply information that would lead to the arrest of one Ganiyu Adams, a factional leader of a.p.C. In the same vein, the leader of A.P.C. has also placed a cash reward of N200,000.00 for any body who could supply information that would lead to the arrest of the said Ganiyu Adams.

27 Section 38 (1) of the 1999 Constitution of the Federal Republic of Nigeria.