By Stephen Peter Okangla

Introduction

As a 200 level student of Law, I read with reservations and discontentment anytime I pick up a textbook on the Nigerian Legal System only to discover the argument surrounding the classification of customary law and Islamic law. Ordinarily, my knowledge and romance of law is shallow to discredit any writer who by such virtue is an authority in the profession of which I am still a pupil. The argument surrounding the classification of Islamic law is of no use as it had been glaring and is still that Islamic law is a very distinct class of law from customary law.

Howbeit, leveraging on the path and foundation laid by my Lecturer on the positions of the two laws in our legal space, I decided to embark on voyage of discovery to learn and to know more on what inform these laws and their nitty-gritty. Nigeria is pluralistic country with over 250 ethnic groups and 500 languages, this fact alone should create the awareness that Nigeria is a heterogeneous society accommodating different customs and traditions. Although Nigeria is circular state with the proscription clause on the adoption of state religion[1] there still exist religious worship in Nigeria of which I concur to the idea in its entirety. It is hard to separate Nigeria from her history and this has made it easy for me to get my findings as one would not be wrong to buy the fact that most of the decisions we have made as a Nation was to some extent influence by our colonial masters. This paper aim to critically examine customary law and Islamic law with a view to bringing out their differences and recommending ways to permanently put the argument to rest.

What Customary Law and Islamic Law Embodies

There are plethora of cases which have established what customary law entails. The Nigerian Evidence Act define custom as a rule, which in a particular district, has from long usage obtained the force of law.[2] Customary law in Nigeria can be simply described as an amalgam of customs or habitual practices accepted by members of a particular community as having the force of law as a result of long usage.[3] Section 2 of High Court laws has provided that the term “Native law and custom” includes law. This definition was also adopted in the Northern region’s Native Courts law and is now found in the High Court’s laws of some Northern States.

There are certain characteristics which qualifies customary law, these characteristics are:

It must be in existence at the material time
It must be applicable
It must be acceptable by the people and it is
It must be flexible
largely unwritten
In my view, the above characteristics settles the persisting argument as it presents a sharp dichotomy between the two laws. Customary law is the product of the society, it is an inherited way of life which become law upon passing the necessary test as imported and imposed by the white men and subsequently incorporated by us. Another striking difference between customary law and Islamic law is that, customary law is not of general application it differs even as communities in its names and peculiarities differs. There are over two hundred ethnic groups with their customs in Nigeria, among these indigenous tribes as present in the North, South and West are: Kanuri, Kalabari, Huasa, Igbo, Idoma, Yoruba, Fulani, Mgizm, Bolawa, Ikwerre, Tiv, Gwari, Nupe, Bassa nge, Bade, Margi, Kilba, Tangale, Ngamo, Kare-Kare, Gwoza, Chibok, Igbira, Igala and Igede etc. these tribes are present today across the thirty-six states in Nigeria with their own acceptable, spectacular, refined and unique ways of life christened “customary law”. It is important to note that these customs are to some extent the “creatures” of man, hence the name customary law. And without iota of doubt, it suit it so well.

Wait a minute! I have dwell so long on customary law, now let me delve briefly on what Islamic law entails. Is Islamic law a customary law? NO! It is far from being a customary law, hence its classification as a customary law is misconception of its purpose and that have created an ocean of confusion in our legal system.

There is generally no definition of Islamic law in Nigeria. That is not to imply that Islamic law have no basis for expression. Islamic law is a divine law handed down to Muhammed (PBUH) by Allah (SWT) to serve as law and a guide unto his people. Quran Chapter 45 verses 18 provides:

“then we put you, O Muhammed, on an ordained way concerning

the matter of religion so follow it and do not follow the inclinations

of those who do not know”

This is a clear indication that Islamic law was not inherited as customary law is, it is a command from Allah (SWT) hence a divine law. It has no iota of custom therein. The first five verses of the Quran which was revealed to the prophet is captured in Quran Chapter 96 from verses 1-5 and it provides:

“recite in the name of your Lord who created”

“created man from a clinging substance”

“recite, and your Lord is the most generous”

“who taught by pen”

“taught man which he knew not”

The rationale behind the reproduction of some Quranic verses in this article is to point out clearly the source of Islamic law in which Quran remains the very foundation. From the foregoing, it is not harmful to uphold that Islamic law predates the existence of man. Islamic law is comprehensive, universal, divine, humane and dynamic. The above characteristics of Islamic law has further straightened the argument in the most positive direction. Islamic law is not man made nor is it inherited. Its basic sources are Quran, Hadith, Qiyas, Ijma and Ijtishad. Customary law lacks the above features and there is no semblance between the two laws.

Furthermore, the supreme court of Nigeria made a landmark pronouncement in respect to the universality of Islamic in the case of ALKAMAWA V BELLO & ANOR[4] wherein Wali JSC said “Islamic law is not same as customary law as it does not belong to any particular tribe, it is a complete system of universal law most certain and permanent and more universal than common law.” I would have loved to drop my pen at this point because my mission is complete and the argument is now res judicata. However, in order not to offend the conversational way of the art of writing, I am compel to conclude and recommend.

Conclusion/Recommendation.

It has been established that customary law is born out of the custom of the people as an acceptable mode of operation in the society, whereas Islamic law is established as a divine law handed down to the messenger of Allah (SWT) as a regulatory document of the followers of Islam. It is has also been made glaring that customary law is unwritten whereas on the other hand Islamic law is written. Some other features which strongly disagree with the classification of Islamic law as customary law have also been established herein. From available factors and facts which have briefly discussed herein, it is safe for one to deduce and uphold the view that the classification of Islamic law as customary law is not only anomalous but a deep misconception of its purpose by authors and legislators alike.

However, I humbly recommend that:

Islamic law be made to stand on its own as a source of Nigerian law
Legislators should revisit various legislations and correct the anomalies regarding Islamic law therein.
writers and authors should quickly adopt the right meaning of Islamic vis a vis its classification
Khadis and Grand Khadis should be more proactive and firm in the interpretation of Islamic law in respect to its provisions.
The above recommendations if adopted will go a long way in reshaping and remolding people’s perception regarding Islamic law in Nigeria.

Okangla Stephen Peter is a year two student of Law at the University of Maiduguri, he has great penchant for Oil and Gas, Criminal Law, Constitutional Law, International Law, Human Rights Activism, Litigation, Corporate practice and Lecturing. He can be reach via:

Phone No: 08132040369, Email: [email protected]

[1] Section 10 of the Constitution of the Federal Republic of Nigeria 1999

[2] Section 258 (1) Evidence Act, 2011

[3] Ike Ehiribe, The validity of customary law Arbitration in Nigeria, 18 COMP. L. Y.B. INT’L BUS. 131, 132 (1996)

[4] (SC 293/1991) [1998] 2