The religious practice of every citizen of Nigeria is a constitutional right or to put it generally, is a fundamental right guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution.

However, a look at the jurisdiction of the South West of Nigeria will observe that such jurisdiction has been deficient in the practice of the Islamic Personal Law compared to the practice of same in the Northern part of Nigeria. This paper compares this practice in the South West and the Northern part of Nigeria with some few recommendations as to how the Islamic Personal Law can be accomplished in the South West of Nigeria.

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 of Nigeria, due to some factors first of which is 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 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!

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!

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