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The Unfizzled Sharia Vector in the Nigerian State

By Mobolaji E. Aluko, Ph.D.

I. The Declaration of Illegality

After many years of hemming and hawing, and after thousands of deaths as an aftermath, the Federal Government, from the pen of second-time Justice Minister Kanu Agabi, has finally made a definitive statement about Sharia. This is how the letter must have looked:

QUOTE

Federal Government of Nigeria

Ministry of Justice, Garki, Abuja, Nigeria

March 18, 2002 HAGF/SHARIA/2002/Vol. 1

MEMORANDUM

To: Governors of All States that are Practising Sharia Legal System

Zamfara - H.E. Ahmed Yerima Sani, Government House, Gusau

Sokoto - H.E. Alhaji Attashiru O. Bafarawa, Government House, Sokoto

Niger - H.E. Alhaji Abdullahi Kure, Government House, Minna

Kano - H.E. Alhaji Rabiu Musa Kwankwanso, Government House, Kano

Katsina - H.E. Alhaji Umaru Musa Yar’Adua, Government House, Katsina

Jigawa - H.E. Alhaji Ibrahim Saminu Turaki, Government House, Dutse

Borno - H.E. Alhaji Mallam Kachalla, Government House, Maiduguri

Yobe - H.E. Alhaji Bukar Abba Ibrahim, Government House, Damaturu

Kebbi - H.E. Alhaji Adamu Aliru, Government House, Birnin

Bauchi - H.E. Alhaji Ahmadu Adamu Muazu; Government House, Bauchi

Kaduna- H.E. Alhaji Ahmed Makarfi , Government House, Kaduna

Gombe- H.E. Alhaji Abubakar Hashidu, Government House, Gombe

From: Mr. Kanu Agabi (SAN), Attorney-General of the Federation and Justice Minister

RE: Prohibition of discriminatory punishments.

Your Excellencies:

It is my solemn duty to bring to your notice the hundreds of letters which I receive daily from all over the world protesting the discriminatory punishments now imposed by some Sharia courts for certain offences. As a respected member of the world community we cannot be indifferent to these protests. I crave your indulgence, therefore, to give thought to these protests and take measures to amend or modify the jurisdiction of the courts imposing these punishments so that we do not in the end isolate either the country as a whole or the affected states. We must be seen to comply with our constitution which in Section 42 (1) (a) provides as follows:

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 -

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, sex, religious or political opinions are not made subject.

I appreciate that your motive in conferring criminal jurisdiction on the Sharia Courts is to ensure transparency and achieve a more orderly and disciplined society. I commend this lofty objective but in achieving it we must not violate the constitution. Unless we abide by the constitution we shall have on our hands an arbitrary society based on the discretion of our rulers. That is totally unacceptable.

The fact that Sharia law applies to only Moslems or to those who elect to be bound by it makes it imperative that the rights of such persons to equality with other citizens under the constitution be not infringed. A Moslem should not be subjected to a punishment more severe than would be imposed on other Nigerians for the same offence. Equality before the law means that Moslems should not be discriminated against. As an elected governor I am certain that you would not tolerate such disparity in the allocation of punishment. It is not only against the constitution but also against equity and good conscience.

Individuals and states must comply with the constitution. A court which imposes discriminatory punishments is deliberately flouting the constitution. The stability, unity and integrity of the nation is threatened by such action. In order to implement policies or programmes inconsistent with the constitution we must first secure its amendment. Until that is done we have to abide by it. To proceed on the basis either that the constitution does not exist or that it is irrelevant is to deny the existence of the nation itself. We cannot deny the rule of law and hope to have peace and stability.

I write to you in good faith and in the interest of our country and the law. While bearing witness to your devotion to our country and to the cause of fairness and justice, I urge that you do not allow your zeal for justice and transparency to undermine the fundamental law of the nation which is the constitution.

I appeal to you, therefore, to take steps to secure modification of all criminal laws of your state so that the courts will not be obliged to impose punishments which derogate from the rights of Moslems under the constitution.

May God guide you successfully through these difficult times.

Signed:

Kanu Agabi (SAN)

Attorney-General and Minister for Justice

UNQUOTE

On the whole, a well-written letter, kudos go to Justice Minister Agabi on his second coming! One is particularly pleased at Agabi's emphasis on the argument that it is MUSLIMS that are actually discriminated against through these harsher Sharia punishments, not non-Muslims! This heavy reliance on Section 42(1) of the Constitution is apt. In a civilised society, nobody should be discriminated against, even with his or her permission!

On the other hand, one is tempted to say that that the declaration is too little too late. One is tempted to say that international condemnation more than Nigerian opprobrium and needless riots and deaths forced the government’s hands. One is also tempted to wonder whether an announcement as important as this should not have been made by the President himself, and not in his absence, far away in picturesque Monterrey, Mexico, for his 86th foreign trip, where he is hob-nobbing with 60 other heads of State. Or is the President building in some deniability in case some political dams burst?

II. How Sharia Progressed – The “Fizzle that did not Fizzle Out”

But how did this whole Sharia issue progress since May 29, 1999?

First remember that Kanu Agabi was Justice Minister from June 30, 1999 to June 2, 2000; Bola Ige took over from June 2, 2000 till his death December 23, 2001; and Kanu Agabi returned to his former position from March 7, 2002 till date. During this entire period, Olusegun Obasanjo was president and commander-in-chief of the armed forces of Nigeria beginning May 29, 1999.

Give or take a few days, the following table provides information on when each of the 12 states first announced/adopted Sharia law for its Muslim “citizens.”

Table 1: The Sharia Vector

State First Assembly Law Date Launched/

Announced Approves Signed Commenced

By Gov.

1 Zamfara Oct. 22 ‘99 x x Oct. 27 ‘99/ Jan. 27, ‘00

2 Sokoto x x Jan 31, ’00 May 29, 2000

3 Niger Jan 14, 2000 x Dec. 12, ’00 May 2000

4 Kano x Dec 9, ’99 Feb 24, ‘00 June 21,/Nov 26, 2000

5 Katsina x x x August 1, 2000

6 Jigawa x x x August 2, 2000

7 Borno x x x August 19, 2000

8 Yobe x x Aug 7, 2000 October 1, 2000

9 Kebbi x x x December 1, 2000

10 Bauchi x x Feb. 27, 2001 x

11 Kaduna x Feb 8, 2001 Nov. 2, 2001 Nov. 2, 2001

12 Gombe x x Dec. 14, 2001 x

x date not known from information available

Others Northern States not yet affected, to the best available information:

13. Kogi 14. Kwara 15. Benue 16. Plateau 17. Nassarawa 18. Taraba 19. Adamawa

But what did Obasanjo, Agabi and Ige say during all of this time? Emphatic statements not backed up by deeds – or just outright confusion!

QUOTE

http://www.africana.com/DailyArticles/index_19991104.htm

Nigerian State Begins Introducing Islamic Law

October 30, 1999, Obasanjo speaks to Harvard University forum on Sharia

The recent adoption of Sharia, or Islamic law, last week by one Nigerian state is unconstitutional and unlikely to remain in effect, Nigeria's president, Olusegun Obasanjo (pictured) said during a recent visit to the United States. "We have a constitution in Nigeria and the constitution is against any state religion," Obasanjo said. "To that extent, no part of Nigeria can formulate or go for anything that is a state religion -- it is unconstitutional. That is as the constitution stands." Speaking at a forum at Harvard University in Cambridge, Massachusetts, President Obasanjo also pointed out that Nigeria operates under a federal system and that Sharia law is already used in certain cases in some areas. "We practice true federalism whereby each state has power to make its own law provided it is not in opposition to a national law or the constitution," he told an overflow crowd, including many Nigerians, at Harvard. "We already have Sharia in place, in fact. At the local level we have Sharia laws in place, but it is for personal laws – marriage, inheritance and things like that. So, it is there. We even have something in the constitution saying that Sharia can serve as a court of appeal…People have their own way of doing things…but I don't think it [the effort to introduce Sharia law] will last."

http://www.domini.org/openbook/nigeria19991213.htm

Nigeria declares Islamic law unconstitutional

ABUJA, Nigeria, 10 December 1999 (Compass Direct) -- Nigeria's attorney general declared unconstitutional the implementation of Islamic law as planned by six northern Nigerian states. The statement follows widespread protests against the states' actions by Christians in Nigeria. "As for sharia (Islamic law), the constitution permits its limited application in personal and family issues. But the states have gone beyond that limit," said Joseph Agabi, Nigeria's minister of justice and attorney, at a press conference in Abuja on December 3. "The penal code provides for dealing with criminal cases," Agabi said. "There is no other law that is allowed by the constitution to handle criminal cases than the penal code in our judicial system. Now that sharia has been declared by these states to handle criminal cases, this is going beyond the limit permitted. It is unconstitutional and illegal."

http://www.africaaction.org/docs00/nig0003.htm

March 1, 2000 Speech of President Obasanjo to the Nation

As the Vice-President has announced in his press briefing, the National Council of States met yesterday, Tuesday, February 29, 2000, and deliberated on the alarming security situation in the country.

The Council was deeply saddened by recent events in Kaduna, and by subsequent events in Abia State, both of which have led to enormous loss of lives and destruction of property. The Council strongly condemned these events, and called for an immediate cessation of hostilities, and of these acts of senseless murder and destruction of property. The Council also reviewed the remote and immediate causes of the disturbances, and noted that the Penal Code currently in force in the Northern States is substantially based on Sharia Law, with the modifications that imprisonment is substituted in place of amputation of limbs, as punishment for stealing, and also as punishment for adultery, instead of stoning to death. The Council noted that these modifications are consistent with the human rights principles enshrined in our Constitution, and considered the punishments adequate in the circumstances. The Council unanimously agreed that all States that have recently adopted Sharia Law should in the meantime revert to the status quo ante. That is, Sharia, as practised in Penal Code, continues to be practiced by all States concerned.

http://allafrica.com/stories/200009130037.html

Obasanjo Carpets Patrons of Sharia (in Rome)

Vanguard (Lagos) September 13, 2000

President Olusegun Obasanjo, yesterday in Rome, Italy took a fresh swipe at the brains behind the current "introduction" of Sharia some Northern states, saying they are insincere. "What we have now is what I call political Sharia. I am not afraid of it because I believe it will fizzle out and Sharia will be welcomed because it had been part of us," President Obasanjo told newsmen in Rome.

http://www.thisdayonline.com/archive/2001/03/04/20010304news01.html

The Attorney General's Sallah Gift... Sharia is Constitutional, Says Ige

ThisDay Online March 4, 2001

An unexpected backing for the Islamic legal system, sharia, currently in place in most northern states has come from the Attorney General and Minister of Justice, Chief Bola Ige (SAN) who declared it constitutional. In a surprise expression of support which is expected to strengthen the arguments of the pro-sharia elements especially in the north, home of Ige's most vociferous critics, the minister saw nothing illegal in the adoption of the sharia by these states. "To tell you the truth, none of the states, which have passed what they call sharia law have violated any part of the Nigerian constitution" Ige told THISDAY in an interview, but he was quick to add that "they have also not acted as if the penal code is the criminal code by which Muslims are to be governed," The Minister who was asked to clarify the position of the laws setting up the sharia in the northern states of Zamfara, Kano, Bauchi and others that have adopted the Islamic legal system, as against the 1999 constitution said emphatically "they are not in conflict with the 1999 constitution."

http://www.vanguardngr.com/news/articles/2001/November/15112001/f4151101.htm

Sharia: FG won't allow Safiya to die —IGE

Vanguard Thursday 15th November, 2001

IBADAN — THE Federal Government has stepped into the recent death sentence passed on Safiya Tungar-Tudu, 33, by a Sharia court in Sokoto State, with the Attorney-General of the Federation and Justice Minister, Chief Bola Ige declaring that Abuja would not fold its hands and watch her killed.

But the Sokoto State Government says her fate will be decided by an appeal court. Safiya, said to be now in hiding was sentenced to death by stoning following her conviction by the court for adultery.

http://www.ngrguardiannews.com/news2/nn845010.html

How Ige met U.S.-based Nigerian lawyers on Safiyat

Guardian Tuesday, January 8, 2002.

But Ige was clear, according to Oloko, when he told the delegation of the Nigerian Lawyers Association that "No one will be stoned to death in Nigeria for adultery." "He told us of the political issues of the Sharia and that it was all a smokescreen. Chief Ige told us that only poverty and illiteracy make people susceptible to such manipulation," Oloko recalls. He said the former Oyo State Governor, in that vein, sought support for two bills, one to establish a minimum education rights for all Nigerians and second to establish a minimum age of marriage. He wanted us to focus on those two issues as vehicles that will inhibit such manipulation that the resurgence of Sharia is in Nigeria of today. "Chief Ige told us that Sharia is really a political issue and that the legal standing to implement Sharia had always been there, but now, it is now being used for political purposes."

UNQUOTE

On second thoughts, Kanu Agabi has merely restated in March 2002 what he first stated in December 1999!

III. Clearing the land of cow thieves, sexual deviants and other perverts

Anyway, what has been the substantive effect of the application of Sharia law so far in those states that have adopted it?

Well, following the Maliki Law of Jursiprudence adopted by the various states, the following “celebrated” cases have been reported. I have included the names of the State, town, accused(s) and the judges wherever possible – so that the world may know. Due to my human imperfection, I must necessarily omit a few cases.

February 2000 – Zamfara - Bahiru Sule, was given eighty lashes in front of a crowd of around five-hundred people near the Emir's palace in the state capital Gusau for drinking alcohol

http://news.bbc.co.uk/hi/english/world/africa/newsid_639000/639454.stm

February 2000 – Zamfara - An 18-year-old male youth in Zamfara State in northern Nigeria is reported to have been flogged 100 lashes (while his female partner watched) for having sex (with the 16 year old girl) before marriage. A soon as she recovers from an undisclosed illness, she is also to

be punished.
http://news.bbc.co.uk/hi/english/world/africa/newsid_646000/646983.stm

March 22, 2000 – Zamfara - Mallam Buba Bello Kare Garhie Jangebe, hand severed for stealing a cow [presiding Alkali: Alhaji Ibrahim Maigandi Zarumi, in court sitting in Taleta Mafara]

http://www.postexpresswired.com/postexpress.nsf/24c35a000fe637798525691a0076c2cb/9e0893af7d076847852568af002e0600

2000 - Lawali Isa, a fire-wood seller, hand amputated for stealing two bicycles

July 2000 – Zamfara - Nigerian official sentenced to receive 80 lashes for falsely accusing his wife of adultery

Zamfara - September 2000 - teenage Ms Bariya Ibrahim Magazu, sentenced to 180 lashes for pre-marital sex and bringing false charges against men with whom she allegedly had sex. Sentence of 100 lashes carried out in January 19, 2001

http://news.bbc.co.uk/hi/english/world/africa/newsid_1131000/1131189.stm

http://news.bbc.co.uk/hi/english/world/africa/newsid_1131000/1131096.stm

January 2001 – Kano - Two men found guilty of drinking alcohol flogged before large crowds, receiving 80 lashes

Kazaure, Jigawa State - traditional ruler , Alhaji Abba Ajiya of Kazaure, sentenced to one year
imprisonment and 40 strokes of the cane, for "camping" a housewife, Faiza Bala

Birnin Kebbi, Kebbi State - 35-year-old man, Attahiru Umar, was sentenced to death by stoning, for committing sodomy with a minor .

July 4, 2001 – Sokoto - State Executive Council approves the amputation of the right hand wrist of Umaru Aliyu, who was confirmed to have stolen some item

http://www.vanguardngr.com/news/articles/2001/July/07072001/wn470701.htm

July 6 – Kano - the right hand of a 30-year-old man amputated as punishment for stealing a goat, worth about $40

http://news.bbc.co.uk/hi/english/world/africa/newsid_1428000/1428159.stm

August 2001 – Sokoto – The director of the Sokoto National Orientation Agency, Mohammed Jobi, and the agency's accountant, Issa Abdullahi, were given forty lashes each, fined ninety dollars and made to pay back the money they stole. The two federal government employees found guilty of stealing the cash gratuity meant for an man who was about to retire.

http://news.bbc.co.uk/hi/english/world/africa/newsid_1493000/1493182.stm

October 9, 2001 – Sokoto - housewife 35-year-old Safiya Hussaini Tungar Tudu, allegedly raped by one Yakubu Abubakar, the man who allegedly impregnated her, sentenced to death by stoning. Abubakar freed for lack of evidence. Sentence suspended following appeal heard on November 27 .

http://www.vanguardngr.com/news/articles/2001/October/25102001/n1251001.htm

http://www.vanguardngr.com/news/articles/2001/November/15112001/f4151101.htm

November 5, 2001 Katsina City - a man, Sani Rodi, sentenced to death by knifing after he was convicted for taking the lives of a housewife and two of her children

November 2001 – Zamfara - the Deputy Speaker of State House of Assembly, Alhaji Abdulsalami Ahmed Asha, arraigned before a Sharia court in Samaru, Gusau, for selling his official Peugeot car at the cost
of N2.1 million.

Funtua, Katsina State - two policemen receive 100 strokes of the cane following their conviction over illegal confiscation of petrol from fuel vendors

Nov. 27, 2001 - Toro Local Council, Bauchi – pregnant woman, Hajo Poki, allegedly impregnated by one Suleiman Poki, sentenced to 100 strokes of the cane sentenced for committing fornication and for accusing the plaintiff falsely. [The judge, Mika’ilu Sabo Ningi]

http://www.vanguardngr.com/news/articles/2001/December/01122001/wn101201.htm

December 13, 2001 - Sokoto - a 28-year-old man, Mohammed Ali, sentenced to nine months imprisonment for stealing. He initially renounced his faith following his arraignment in Sokoto Upper Sharia Court. Ali, who first professed to be a Christian, said he should be tried according to Biblical injunctions, which he said forbid amputation. After the light sentence, he reaffirmed his faith, Islam, after escaping amputation. [Judge: Mallam Bawa Salabi Tambuwal]

December 2001 – Sokoto - Malam Sani Shehu (a.k.a Wang Yu) and Malam Garba Dandare (a.k.a Dan Jega), found guilty for stealing a policeman's beret, belt and bicycle. Court orders the amputation of the right hands and left legs of two convicted armed robbers. [The judge, Kadi Bawa Sahabi Tambuwal]

January 3, 2002 - Sani Yakubu Rodi, aged about 21, convicted in Katsina and hanged in Kaduna Prison.

Rodi was “found….guilty of the murder of a woman and her two children: a four-year-old boy and a three-month-old girl. The victims were stabbed to death in their home. Sani Yakubu Rodi was reportedly caught at the scene of the murder and immediately arrested by the police. Sani Yakubu Rodi did not have legal representation at any stage of his trial; he apparently told the court that he would defend himself. In the initial hearing on 5 July, he pleaded not guilty. However, in a subsequent hearing on 4 September, he changed to a guilty plea. The court sentenced him to death on 5 November. He did not take up the opportunity to appeal, and his death sentence was subsequently confirmed and his execution authorized by the Governor of Katsina State. “

January 23, 2002 – Sokoto - 18-year-old, Hafsatu Abubakar acquitted after accusation of having sex outside marriage. She and the baby have been held in prison pending the trial.

http://news.bbc.co.uk/hi/english/world/africa/newsid_1778000/1778614.stm

March 18, 2002 – Sokoto – Decision on Sufiya Husseini’s adultery case delayed till March 25.

http://news.bbc.co.uk/hi/english/world/africa/newsid_1879000/1879506.stm

The long and short of the Sharia story so far? It is pretty dangerous to be a petty thief in these Sharia states – or to have a libido. Thieves and lechers - beware. Murderers like Rodi too – beware!

IV Sharia-Related & Sectarian (Muslim/Christian) Violence

I have always wondered: if you die from a machete wound, fighting another Christian or another Muslim ostensibly because you hate him or her, would God admit you to heaven, saying “Come, enter into my rest, you hate-filled soul?”

Certainly not!

Anyway, here are a few dates of religion-related mayhem in Nigeria:

February 2000 – Kaduna

http://news.bbc.co.uk/hi/english/world/africa/newsid_660000/660239.stm

September 7 – 9, 2001 – Jos, Plateau - Clashes between Christians and Muslims leave at least 50 people dead and causes thousands to flee

http://news.bbc.co.uk/hi/english/world/africa/newsid_1534000/1534404.stm

October 6, 2001 – Kaduna - attack on at least one church and some shops

http://news.bbc.co.uk/hi/english/world/africa/newsid_1586000/1586476.stm

November 3 – 5, 2001 Gwantu, Kaduna - Ten people killed and hundreds more fled after a weekend of violence

http://news.bbc.co.uk/hi/english/world/africa/newsid_1638000/1638282.stm

V. EPILOGUE

As we have argued elsewhere, Sharia law as currently practiced in Nigeria not only discriminates against Muslims, but it is against the spirit and the letter of a federal system where the LEGAL PROCEDURE should be UNIFORM everywhere, even if the PUNISHMENT differs from federating unit to unit. For example, as it occurs in the US, a STATE REGULATION may EXCEED federal (minimum) standards, but state PUNISHMENT may not EXCEED federal (maximum) guidelines. In the present application of Sharia in Nigeria, BOTH the legal procedure (Sharia vis-a-vis common law) and punishment differ substantially. That situation is unacceptable until we have a confederation.

Finally, despite Agabi’s latest letter to their Excellencies, we have not heard the last of this issue. Simply because Agabi or Obasanjo says Sharia is illegal does not make it so in a presidential system with separation of powers. If the states do not accept that interpretation, then we will still have to hear from the Supreme Court.

That is what should have been done in the first instance, and should still be done: take this Sharia issue to the Supreme Court.

APPENDIX

Sharia Takes Hold in:

Zamfara - http://news.bbc.co.uk/hi/english/world/africa/newsid_486000/486982.stm

http://news.bbc.co.uk/hi/english/world/africa/newsid_620000/620058.stm

http://news.bbc.co.uk/hi/english/world/africa/newsid_620000/620181.stm

Sokoto - http://news.bbc.co.uk/hi/english/world/africa/newsid_767000/767961.stm

Niger - http://news.bbc.co.uk/hi/english/world/africa/newsid_603000/603681.stm

Kano - http://news.bbc.co.uk/hi/english/world/africa/newsid_798000/798630.stm

- http://news.bbc.co.uk/hi/english/world/africa/newsid_1041000/1041579.stm

- http://news.bbc.co.uk/hi/english/world/africa/newsid_558000/558880.stm

Katsina - http://news.bbc.co.uk/hi/english/world/africa/newsid_860000/860660.stm