By Hameed Ajibola Jimoh Esq.
The need and of course the importance of an Islamic/Shariah Courts in all States of the Federation of the Federal Republic of Nigeria cannot be over-emphasised.
States in the Northern part of Nigeria seem to be more concerned about Islamic practices than all other States in the Federation, even though there are majority of Muslims in some of those other States, Lagos State for instance. Nevertheless the need and the importance of the Islamic/Shariah Court in Nigeria and nevertheless the fact that the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- has conferred the power to establish Sharia Courts in any State of the Federation (though the watch word there is ‘desire’ (which means there is no compulsion and it is a matter of interest of the people (Muslims) resident in those States and their Houses of Assembly as well as those involved in the legislative processes of passing the said interest for such establishment into law)), one would wonder what it would take such States such as: Lagos State, Oyo State, among others, such a decade to have the Sharia Courts established in those States despite the Islamic religious practices of the people in those States! One would also inquire as to the reason for such difficulty in achieving this task that poses no difficulty (at all) to achieve by the number of Muslims in the Houses of Assembly of those States?! Moreover, the establishment of the Shariah Courts is not such as which if established would affect other religious beliefs as it is mainly and specifically for Muslims except those other religious beliefs who submit to the jurisdiction of the Shariah Court with consent. These queries and others are reasons for this paper to actually ask the people (Muslims) of the those States of the Federation and their legislators as to whether it is not yet time for them to have such interest as would motivate the establishment of Sharia Courts in those States. Also, there are uncountable Islamic/Shariah Personal Law matters affecting some (if not majority) of Muslims in those States to such extent that those victims or those in need (both males and females) have been left with no solutions to their challenges or their needs especially in marriage/matrimonial causes such as divorce, custody of children of such divorce, among others; succession related matters such as: Wills and other related inheritance matters. I had tried to reason (and I researched into) whether such Muslims in the present circumstances and challenges of their States could approach Shariah Courts in other Northern States of Nigeria (especially those neighbouring Northern States) to resolve their matters but in the course of my research, I observed some impediments on the territorial limitation of the jurisdiction of the Area Courts for instance, the Federal Capital Territory, Abuja, which limits the powers of Area Courts to hear such Shariah personal law matters having regard to section 1(1) and (2) and 14 of the FCT Abuja Area Courts (Repeal and Enactment) Act, 2010, which provide thus:
- (1) There is established such grade of Area Courts for the Federal Capital Territory, Abuja,
(2) An Area Court shall exercise the jurisdiction conferred upon it by or under this Act within the area and to the extent specified.
- All civil causes or matters shall be tried and determined by an Area Place of hearing Court which has jurisdiction over the area-
(a) in which the defendant is ordinarily resident;
(b) in which the defendant was at the time when the cause of action arose; or
(c) where the transaction occurred.’.
Therefore, it is my humble submission in this paper that it is a critical high time for the establishment of Shariah Courts in the states of the south-west of Nigeria and I therefore call all stakeholders in the Islamic faith to urgently make a robust effort in actualizing this project (though I understand that my assistance in this regard might be needed too which I shall forever be ready to respond to the call if made). I therefore pray to Almighty Allaah to be of aid in making this dream actualized having regard to the pains of those Muslims in those States who are suffering (with tears in their eyes) and are in deer need of resolving their Islamic personal law matters as laid down by Allaah but have been left with no solutions.
First and foremost, the right to freedom of thought, conscience and religion is guaranteed by section 38 of the Constitution thus ‘38.—(1) 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. (2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance relates to a religion other than his own, or a religion not approved by his parents or guardian. (3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.’. Also, section 42 of the Constitution guarantees the freedom from religious discrimination thus ‘42.—(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person— (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action, of the government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, circumstance of birth, sex, religions or political opinions are not made subject ; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions. (2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.’. Furthermore, the Constitution empowers the House of Assembly of each State of the Federation (that desires it) to establish a Shariah Court of Appeal (which includes Area Courts or other Inferior Courts such as those practiced in the Northern Part of Nigeria) in section 275 with its jurisdiction provided in section 277 of the Constitution thus ‘275.—(1) There shall be for any State that requires it a Sharia Court of Appeal for that State. (2) The Sharia Court of Appeal of a State shall consist of— (a) a Grand Kadi of the Sharia Court of Appeal; and (b) such number of Kadis of the Sharia Court of Appeal as may be prescribed by a law of the House of Assembly of the State. 277.—(1) The Sharia Court of Appeal of a State shall, in addition to such jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the court is competent to decide in accordance with the provisions of subsection (2) of this section. (2) For the purposes of subsection (1) of this section, the Sharia court of Appeal shall be competent to decide— (a) any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant ; (b) where all the parties to the proceeding are Muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant ; (c) any question of Islamic Personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim ; (d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm ; or (e) where all the parties to the proceedings, being Muslims, have requested the court that hears the case in the first instance to determine, that case in accordance with Islamic personal law, any other question.’. Also see section 15(2) of the Constitution.
From the above Constitutional provisions in sections: 275 and 277 of the Constitution, it is observable that for there to be a Shariah Court of Appeal or any such lower Court (with original jurisdiction), there must be a Bill sponsored to that effect and which is passed into law as a State Law to establish same. This means that such Law will be the will of the people of that State. A close look at the Northern Part of Nigeria such as the Federal Capital Territory-Abuja, Kano State, Zamfara State, Niger State, Kogi State, etc., shows that these Islamic Personal Law Courts having jurisdiction in Islamic Personal Law related matters have been strongly established by the Government of those States as covered by section 277 of the Constitution (and not general civil matters, even though, I have argued that all Area Courts in the Federal Capital Territory-Abuja, have the general civil jurisdiction in Islamic law matters where certain conditions are available (this is not the context of this topic, so, same is not delved into here), but this attempt or right has not succeeded in the South West States of Nigeria, due to some factors first of which is (with due respect) the lack of the will of the politicians or majority of the politicians in those States of the South West (i.e. members of the Houses of Assembly and the Governors of those States) to enact such law even though, some numbers of the Islamic law practitioners (may Allaah continue to bless them and reward their good efforts) have severally called for such laws and despite even preparing Bill and presenting same to the House of Assembly, for instance in Lagos State, this effort has been rendered futile. I have read and benefitted from the research work titled ‘THE INDEPENDENT SHARIA PANEL OF LAGOS STATE by Abdul-Fatah Kola Makinde and Philip Ostien, which is an article in the ‘Emory international law review’, December 2011. Efforts have been made by Islamic Law activists in those South Western States by establishing the Independent Sharia Panel-herein after referred to as ISP- for instance: in Lagos State, Osun State, among other States in the South West (though, it must be stated that this ISP is a private institution serving as an Arbitration Panel to decide Islamic Civil Matters brought before it by parties who submit themselves to its jurisdiction as binding between them, without any State legislation backing its establishment). Finance is likely another problematic factor for its success in those South Western States and some (if not majority) of the South Westerners are too customarily attached in practices and ways of life.
Furthermore, it is my humble view that the problem of the failure of the establishment of Islamic Shariah Court in those South Western States is not only institutional (without Law of the State) rather, it is some kinds of orientation and sensitization factors, where if the majority of the Islamic faith practitioners (Muslims) unite to demand such establishment from the government, then, the difficulty is rather simplified (much more so that non-Muslims are not compellable to adopt the practice to their lives). I must also submit that Islamic Law is not a customary law rather, it has its root/source from the Quran, the Hadith, Ijma’a, Qiyaas with Ijtihaad being a resulting source of Islamic Law, and being in their written forms as customary law is unwritten, among other differences. Nevertheless, Muslim practitioners in those South Western States (very pathetically) have been left to abide by customary law courts’ and common law courts’ jurisdictions (helplessly) in deciding their Islamic law matters, including matrimonial causes, which is against their faith and constitutional right to religion! See: Alhaji Ila Alkamawa v. Alhaji Hassan Bello & Anor (1998) LPELR-424(SC) and Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) 7 SCNJ (Pt.11) 388 P.400.
Finally, it is my humble submission and recommendation that there is more to do in sensitising the Islamic law practitioners (Muslims) to continue to educate their members in various Islamic organisations and quarters as to the need and importance of having these Islamic Courts in those States (without relenting in their rewarding efforts), then, the matter is simplified as the State government will then have no option than to yield to the will of the people very soon for this issue really calls for drastic steps towards the implementation of this scheme and the time is now! May Allaah make it actualised in no time from now! Nevertheless, as far as I am concerned, it is a critical high time (in the present circumstances) for the establishment of Shariah Courts in the States of the south-west of Nigeria. May Almighty Allaah make this task achievable in no time! Aaamin!