By Ewulum Ifechukwu Christopher

I had the opportunity of reading an Article by Dr Abdulsalam Ajetunmobi (hereinafter “The Learned writer”). The article is titled “Is blasphemy punishable by death in Islam?”. For ease of reference, the link to the said article is herein provided (https://www.barristerng.com/is-blasphemy-punishable-by-death-in-islam-by-abdulsalam-ajetunmobi/).

Before we proceed, I must register forthwith that Dr Abdulsalam Ajetunmobi is a refined Lecturer whose wealth of knowledge is rare, I must commend the  Amiable lecturer for putting up such a scholarly work which has actually helped me to know some interesting aspects of Islamic Law. However, with utmost humility and respect, we find it difficult to agree with the majority of the positions of the learned writer in the aforementioned article, hence this agitated the need to put up this write-up which is merely an opinion and of which, I also stand to be corrected.

For the sake of clarity and coherency, it is pertinent to state some of the positions of the learned writer ;

First, the Learned writer did not agree  that the crime for which the singer was convicted has to do with Blasphemy but subsequently stated in the proceeding lines quoted the Supreme Court case of  Shalla v State (2007) 18 NWLR [Pt.1066] 240 S.C, where the learned Justices of the Supreme Court ruled that “The trite position of the law under Sharia 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 Mohammed (SAW), such a person has committed a serious crime which is punishable by death”. The learned writer proceeded by stating that “the foremost question that should immediately crop up in the mind is whether blasphemy is a crime punishable by death in the Qur’an”.

Secondly, that the Qur’an which the Muslims unequivocally accept as the prime source of all their principles, commandments, rules, and laws directing their social as well as individual life – does not prescribe the death penalty for blasphemy. Moreover, the standard Arabic term for “blasphemy” (sabb), as it came to be known in later periods of Islam after its inception in the Seventh Century, is almost never appears in the Qur’anic text, except once in a verse that commands Muslims not to insult objects of worship of other people (Qur’an 6:108) lest they use the insult as a pretence for speaking irreverently of God.

Again, There is no gainsaying the supremacy of the Qur’an, understood to be literally the ‘Word of God’, as the only valid and authentic source of guidance required by the Muslims in matters of religious beliefs and practices.

The learned writer further buttressed that blasphemy in itself is not a physical offence, but a spiritual one, and perhaps, because it is not a physical but spiritual offence, no physical punishment has been prescribed in the Qur’an for anyone who blaspheme.  therefore, if one commits a crime against another person, the aggrieved person has a right to pay back not in different terms, but only in the same coins. In addition, since blasphemy is not a physical offence, but a spiritual one, it will amount to a disproportionately drastic measure to avenge spiritual offence by physical retaliation.

Furthermore, the Learned writer asked and answered in the affirmative to wit ;  in this age of freedom, can anything be more sacrosanct than the right to freedom of expression, however damaging its irresponsible use might be to the other cherished values in society – including belief system?

And finally, that Given that no physical punishment has been prescribed in the Qur’an for verbal invectives against the Prophet of Islam, the Court of Appeal must confront the disturbing death sentence head-on by setting aside the ruling of the Kano State Upper Sharia Court. This is the only way to salvage the integrity of Islam and Muslim identities in the country.

THE REBUTTAL

  1. On whether Blasphemy is a crime Punishable by Death?

The learned writer strongly relied on the argument that death sentence for blasphemy is not expressly provided anywhere in the Qur’an. while I may not be in the strong position to delve into that argument, it must be stated herein that as far as the facts and circumstances of this Case are involved, the Learned writer’s arguments would have been different if he had taken consideration of decision in Shalla v the state(supra) and some other relevant laws. Firstly, Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria ( hereinafter “1999 CFRN”) provides that ; subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

The most important question which learned writer appeared to have missed is ; in view of the facts and circumstances of the case at hand, has there been any valid law which the accused accused was tried?

The answer is in the affirmative. Section 382 (b)  of the Kano Penal code 2000 to which the accused was tried states that : Whoever by any means whatsoever intentionally abuses, insults, derogates, humiliates or seeks to incite contempt of the holy Prophet Muhammad (SAW) or his prophethood or any other prophet of Allah recognised by the religion of Islam shall be punished with death(Emphasis mine) (replicated in section 406 of the Harmonised Sharia Penal Code” produced by the Centre for Islamic Legal Studies of Ahmadu Bello University, Zaria)

It must be stressed that in the instant case, the accused person (Sherrif) even pleaded guilty of defaming the holy Prophet(https://www.vanguardngr.com/2020/08/blasphemy-court-in-kano-sentences-man-to-death/) What then is the need for the  argument that it was not expressly provided in the Qur’an since such religious view has been codified by the Kano State House of Assembly?

With great humility, the Learned writer appeared to have contradicted himself when at the beginning of his article he disagreed that the crime for which the singer was convicted has to do with Blasphemy but subsequently asked and affirmed that ” Blasphemy was not expressly stated in the Qur’an”. He was initially of  the view  that the crime has nothing to do with blasphemy, of what importance is it in stating that the punishment for Blasphemy was not expressly provided in the Qur’an?

Moreover, in Shalla v State(Supra),  Mohammed JSC ruled that :

Although it is true that there is the provision in Risala which prescribes the punishment of death on any Muslim who insults the Holy Prophet, such punishment can only be imposed by the appropriate authority (i.e. the court) rather than by any member of the society whether a Muslim or otherwise(Emphasis mine).

His lordship who further relied on  “Risala (treatise on Maliki law)” translated and annotated by Joseph Kenny – Chapter 37 at paragraph 37.19 page 173  which states  thus ;

‘If someone speaks disrespectfully of the Messenger of God (sabb-an-nabiy) he should be put to death without accepting his repentance.’

In the instant case, it is respectfuly submitted that the accused was  tried under a valid law and appropriate punishment prescribed thereto, the words used in the said Kano Law  are explicit and leave no room for speculation or logical deductions. In Shalla v the state(Supra) the Supreme Court in an Unanimous judgement held that :

The trite position of the law under Sharia 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 Mohammed (SAW), such a person has committed a serious crime which is punishable by death.

As as been submitted before, the accused pleaded guilty of the offence of blaspheming the Holy Prophet and the learned writer has not even canvassed arguments to the contrary that his acts were not blasphemous. As the courts are not lawmakers, they only give a literal interpretation to the express and umbagious provisions of the law applicable in the circumstances of the case. This points should also discountenance the points that blasphemy is not a physical offence but a spiritual one, as  we have clearly seen a law that it has been codified in this circumstances.

Again, the Learned writer opined that “Given that no physical punishment has been prescribed in the Qur’an for verbal invectives against the Prophet of Islam, the Court of Appeal must confront the disturbing death sentence head-on by setting aside the ruling of the Kano State Upper Sharia Court”.

Let me respectfully state at  this juncture that this is not the first time a moslem was tried and convicted under sharia  for Blasphemy. In fact, Abdul Nyass, a Sufi Muslim cleric, was sentenced to death in 2015 by a Kano Sharia court for blasphemy against the Prophet in his preaching. It is submitted that the proper direction is to seek for an amendment of the said provisions of the law that provides for death penalty. As far as the said laws are concerned, the decisions of the court to this respect are valid except for instance where it was held per incuriam or disregarded of proper procedures as the law which he was tried was a valid law.

  1. On The Right to Freedom of Expression being Sacrosanct.

The point here is that the right to freedom of expression is not without limitations although the learned writer appeared to have  stated that it is sacrosanct. In Solomon Okerdara v Attorney-General of Federation (2019) LPELR-47298(CA) the court of appeal has stated that :

It is very important for me to stress that the right provided under Section 39 is not an open-ended or absolute right, the right is qualified, and therefore subject to some restrictions by the provisions of Section 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the section provides as follows: 1. Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution, shall invalidate any law that is reasonably justified in a democratic society- 1. in the interest of defense, public safety, public order, public morality or public health. . It is therefore within the powers of the legislature, in the interest of the public, to place restrictions and introduce safe-guards upon the constitutional right of a citizen..

What might be added here is that although we recognize that individuals are entitled to right to freedom of expression, yet the law will not allow the said freedom where it will amount to an offence that will disturb the peace in the society. A clear example is defamation which is an offence under Section 373 of the criminal code act applicable in the southern part of Nigeria, to incite mutiny which is an offence under Section 44 of the criminal code. In section 24(2) of the Cyber crimes act 2015, a person that   knowingly or intentionally sends a message or other matter by means of computer systems or network that he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent, commits an offence under this Act and is liable on conviction..

What we have gone to show here is that if freedom of expression will be injurious to public in general, such freedoms must be  restricted as it is not an absolute right.

CONCLUSION

In summary, the following can be gathered from our view so far ;

1] That as far as blasphemy has been codified as an offence under the relevant state laws, it would be better if our line of arguments are directed towards ensuring an amendment of the said provisions of the Extant Laws which appeared to be harsh. Moreover, the court has no power to substitute a capital punishment for even a lesser punishment . In Effiom v the state [1995] 1 NWLR (Pt. 373) 507 the Supreme Court per Ogundare JSC held that :

In the case on hand, the conviction being for the offence of murder the sentence provided for by the Criminal Code is mandatory, and that is death, Being mandatory the court cannot interfere with it by reducing it to anything else. In the circumstance, this Court has no jurisdiction to commute the sentence of death to life imprisonment.

2] That freedom of expression is not a leverage for one to do an act which he clearly knows will constitute an offence. Example can be seen in sections 373, 44 and 24(2) of the Criminal code act and Cybercrimes Act stated respectively.

3] That everybody is entitled to freedom of religion. Since the moslems are comfortable with it and even went to the extent of  criminalizing it under a law, I see no reason why such a law should not stand.

Ewulum Ifechukwu Christopher writes from Onitsha, Anambra state, Nigeria.

Contact : [email protected].