INTRODUCTION

The recent judgement of an Upper Shariah Court in Kano State, convicting and sentencing one Yahaya Sharif-Aminu, Muslim, 22 to death, for the crime of blasphemy has set the social media space on fire with comments and counter comments. Even as I write this piece, the cyber space is still burning.

Scrolling through few write-ups, i discovered that, a large number of the commentators against the judgement are ignorant of how the Shariah criminal justice system operates in Nigeria.

Thus, I intend shedding light on the once again trending issue and providing references to those who tend not to appreciate the system for better assimilation. In the course of my discussion, I will beacon on the 1999 Constitution of Nigeria (Hereinafter referred to as the Constitution) as it relates to the courts administering Shariah criminal justice.

BRIEF HISTORY OF CRIMINAL JUSTICE SYSTEM IN NIGERIA.

Islam came into Nigeria in the 11th century and Shariah (Law) has been in force in Nigeria since 1468. Even the colonialists met a well-structured and sophisticated Islamic criminal law, when they came. This is evident in the book written by Okonkwo and Naish: Criminal Law in Nigeria page 4, while discussing on the history of Criminal Law in Nigeria:

“In much of the North, there was the highly systematized and sophisticated Moslem law of crime

– so systematized in fact that there were several ‘schools’ of jurists, and even differences within them, though the dominant one was the Maliki School.”

The Shariah indeed suffered setbacks in the hands of the colonialists and managed to survive to this day in Nigeria. It was subjected to the common law by the colonialists.

SHARIAH AND THE 1999 CONSTITUTION OF NIGERIA

With the enactment and passage of the 1999 constitution of Nigeria, all other Laws have been made inferior to it. Thus, any other Law which is inconsistent to it shall not prevail over it and shall to the extent of its inconsistency be void.

Since, the reintroduction of and reinforcement of Shariah on Muslims in the Northern States of Nigeria. Lawyers and Non-Lawyers have provoked conversations on the constitutionality or otherwise of Shariah practice in Nigeria.

It is pertinent to note that, under our constitutional democracy, the power to make law is vested on the legislative arm of government. And this power is divided between the Federal and State legislative houses i.e. The National Assembly (Senate and the House of Representatives) and the various State Houses of Assemblies. Section 4 of the constitution is very instructive.

The Federal legislators make laws on matters under the Exclusive legislative list in Part I to the Second schedule to the constitution; while the various States legislative powers are contained in the concurrent legislative list in Part II to the Second schedule to the constitution. In the same vein, a state can legislate over any issue outside the exclusive and concurrent lists i.e. the Residual matters. See section 4 (7) of the constitution.

Flowing from the above, it is worthy to note that, the enactment of penal laws are within the purview of the State legislative arm. However, it only enact laws in matters outside the Exclusive legislative list.

Pursuant to the constitutional powers bestowed on the various State Houses of Assemblies. Almost all the Shariah implementing States have codified penal their laws e.g. The Kano State House of Assembly in 2000 enacted and passed the following laws:

Kano State Shariah Courts Law 2000
Kano State Penal Code Law 2000
Kano State Shariah Criminal Procedure Code 2000
Kano State Upper Shariah Court (Appeal) Rules 2000 Inter alia.

Hon. Justice Muhammad Bello, CJN (May Allah forgive his shortcomings) while buttressing the above position of law in his paper – Shariah and the Constitution, published in Yakubu A.M et al (eds), Understanding Shariah in Nigeria, Abuja, Spectrum Books Ltd, p. 12:

“Section 4 of the constitution has divided the legislative powers of the governments between the federation and states in its second schedule; it specifies the exclusive legislative lists, on which only the federation can make laws and also the concurrent legislative list on which both the federation and states can make laws. In addition it empowers states to make laws on any other matter not included in the two lists. Shariah falls within the residue and, consequently a state has the constitutional power to make law relating to Shariah.”

Having been clothed with the power to enact penal laws for their various states, the State Houses of Assemblies and again relying on section 6 (5) (k) of the constitution the State legislature have the power to establish such other courts that can exercise jurisdiction at first instance or on appeal vide legislations. Hence, we have various Shariah and Customary Courts operating in various State jurisdictions within the Federation of Nigeria.

It is a well-established fact that, it is the State that defines crimes and proscribes punishments while exercising their various legislative powers. And laws are aimed essentially at public tranquility and as such, what might be a crime in one locality might not necessarily be in another. Jurists have always argued that, one of the characteristic of law is its enforceability or else it will be regarded as a dead law.

Looking at the lifestyle of Muslims in Nigeria, one would understand that, Islam is our way of life. This is a fundamental human right we enjoy under section 38 of the constitution. It is further argued that, for the effective and efficient workings of any law in our territory, it must be

modeled to suit our way of life e.g. While consumption of Alcohol is a crime in some jurisdictions, it is not in another. In fact, it is even part of bride prize in some jurisdictions.

CONSTITUTIONALITY OF THE CRIME OF BLASPHEMY

The constitution of Nigeria in section 36 (12) provides that, a person can be convicted for an offence if only such offence is defined in a LAW. Thus, Blasphemy and other crimes have been codified by the various Houses of Assemblies. Kano State is not left out – Kano State Shariah Penal Code Law 2000. See section 382(b) of the said law for the punishment on blasphemy.

The Supreme Court in 2007, in the words of Muhammad, J.S.C said:

“The trite position of the law under Shariah is that, any sane and adult Muslim who insults, defames or utters words or acts which are capable of bringing into disrepute, odium, contempt, the person of Holy Prophet Muhammad (SAW), such a person has committed a serious crime which is punishable by death.” – Shalla v State (2007) LPELR – 3034 (SC) pp. 65 – 66, paras. G

– A.

As such, the notion that, the Shariah and or its penal laws are unconstitutional is unfounded. And if really it has any base. The court has always been open for such persons who feel unsettled with the Shariah Criminal Justice system.

Thank You!

Ahmed Musa A.K.A The Black General

Kano State. [email protected]