As Nigeria gets entangled in the full implementation of Sharia legal system (as different from the legal penal code), I will like men and women of calm disposition to ask whether this Sharia issue is a mere brouhaha or a sword of Damacles handing over simple men and women who reside in the Sharia States. The 1999 Constitution which came into being on May 29, 1999 is the central law by which the legality of every other law is measured.
S1 (3) States "If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency be void."
In simple terms, all those Sharia enactment's of the various states must be measured in the scale of the 1999 Constitution. If any is found wanting, then such a law is unconstitutional and cannot be enforced.
The one part of the constitution that touches on every aspect of a person's life is contained in Chapter IV. The sections contained therein are the very air which the citizens, the residents of and those passing through, Nigeria must breath. Whether you have the right to a free and fair determination of your rights to life, liberty, to movement, and to association is based on what is contained in the fundamental rights applications in sections 3346 of our present Constitution.
Rights have been stated to include power, privilege, faculty or demand inherent in one person and incidental upon another. A right has been defined as a "capacity residing in one man of controlling, with the assent and assistance of the state, the action of others" Black Law Dictionary.
A fundamental right can be described as that immutable right which a person is born with (and even an unborn baby). It is not negotiable and can neither be legislated away nor waived by the person. All those funny legislations that removed the fundamental rights of Nigerians are nothing but official brigandry which must not escape the new international attack on sovereign and diplomatic 33(1) provides as follows:
"Every person has a right to life and no one shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria".
One very important flaw in this section is that a state, e.g. Zamfara state, can set a Sharia Court and sentence Mr. A to death for apostasy or sedition or even adultery and the sentence will be carried out immediately. In Islam, these offences are classified as Hudood (against Allah) and will be carried out by any pious Moslem around. A sophist will simply claim that sentence and execution were justifiable under S 33(1) because (a) a Sharia Court is a court and (b) those offences are criminal offences in Islam. A more rational interpretation will be that "court" should be restricted to "The High Court of a State" by applying the ejusdem genris rule in interpreting S 6 (2) (3) and (5). The reason is that the word "court" cannot be a runaway horse where any usuage can be used to hound opponents. If it were the intention of the constitution to cover the word "court" on any parochial proceeding, it would have so specified.
When an Islamic court in exercise of the jurisdiction conferred on it by the House of Assembly, condemns Mr. A. to death, can Mr. A appeal to the Sharia Court of Appeal? The answer is in the negative because S 277(2) (same as S242 (2) of the 1970 Constitution) gives a run down of the specific jurisdiction of the Sharia Court as follows
"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 and relating to family relationship or the guardianship of an infant.
(b) Where all the parties to the proceedings are Muslims, any; question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage or regarding family relationship, a founding or the guardianship or an infant.
(c) Any question of Islamic personal law regarding a wakf, gift, will or succession where the endowed, 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 or 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".
The recent case of Magaji Vs Matari dbaided by the Supreme Court of Nigeria on 12/5/2000 per Wali JSC in page 52 stated as follows:
"Section 242(2) of the 1979 constitution confines Sharia Court of Appeal to what has been termed in that section as Islamic Personal Law', in other words, Islamic Law of Personal Status. Looking at the facts involved in this case' the dispute cannot fit in any of the matters listed in S.242(2) of the Constitution. It is neither a case for a claim of inheritance, or that of a gift, a Wakf or a Will. It is simply a case involving ownership of the piece of land in dispute between the contending parties. It is therefore a misconception by learned counsel for the respondent to say that the dispute involves question of inheritance "within the contemplation and provisions of section 242(2) (c) and (e) which was being withheld from the Respondent and his privies". The case of ABUJA V. BIZI (supra) is quite apposite and applicable. The fact that it was alleged that the parties signed Form CA9, would not confer Jurisdiction on the Sharia Court of Appeal since the matter did not involve Islamic Personal Law as stated in section 242(2) (e) of the Constitution. In the case supra, Uthman Mohammed, JCA (as he then was) in his lead judgment to which both Maidama and Aikama JCA subscribed, emphasized the law as follows at page 267.
"The Sharia Court of Appeal under 1979 Constitution has no jurisdiction to determine any matter which is not an issue of Islamic Personal Law regardless on the fact that the parties signed form CA9 or, not.; MALLAM ADO & ANO. V. HAJIYA DIJE (1984) 5 N.C.R.L. 260 at 267".
"The Provision of section 242 (2) has been severally interpreted by the Court of Appeal in several of its decisions and many of which are yet to find their way to the Law Reports. Some of these cases were cited and relied upon by the Court of Appeal in ABUJA V. BIZI (supra) to wit; UMARU FANNANI V. BUKAI SARRI (appeal No. CA/J/16/84) and ALHAJI MUDI LIMAI V. ALHAJI MAIWADAN GOGA (Appeal No. FCA/IL/1105/80), both unreported". Justice Karibe Whyte in the same MAGAJI VS MATARI (2000) 5SC 46 at page 56 stated thus.
It seems to me unambiguous on a fair construction that the Jurisdiction of the Sharia Court of Appeal is confined to and Limited to all questions of Islamic Personal Law regarding the matters prescribed in Subsections (2) (a) (b) (c) (d) (e). These subsections relate to marriage and its dissolution, family relationship and guardianship of infants (a) (b). They also include Islamic Personal Law regarding wakf, gift, will or succession where the endowed, donor, testator or deceased person is a Moslem (c). The determination of any question of Islamic Personal Law regarding a Moslem and in fact, prodigal or person of unsound mind, or the maintenance or guardianship of a physically or mentally infirm Moslem (d). In all other cases where the parties have requested the court to determine the case in accordance with Islamic Personal Law.(e)".
This case in fact, makes nonsense of "in addition to such other jurisdiction as may be conferred upon it by the law of the state "contained in S277(i). The regular courts, in interpreting the fundamental rights provisions, have continued to lean towards the people when it concerns their protection see UKAEGBU VS A.G., IMO STATE (1983) ISCNLR 212. It is, therefore reasonable to conclude here that the entire trial and conviction of Mr. A. in a Sharia Court will be set aside because they are antithetic to the Constitution's provisions. See also the case of ARIORI VS ELEMO (1983) 1 SC 13 and ADEWOLE VS JAKANDE (1881) INCLR 262 "Having regard to the language used in the provision of the constitution of the Fundamental Right and Freedom and traditions and usages which had influenced the United Nations Universal Declaration of Human Rights and the European convention of the Protection of Human Rights and Freedoms, the provisions are to be generously interpreted to give full effect to 1 to the Fundamental Rights and Freedom referred thereto.
The need to protect the people has also led the Nigerian Government to enact the Ratification and Enforcement Act of 1983 by which Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 8 of the African Charter on Human Rights have become laws in Nigeria.
See also the interesting case of BELLO VS OYO STATE. I will therefore suggest that the word "Court" should be qualified by adding "High" to lt. That way there will be no dispute about which court we are referring to.
Secondly, no execution of any sentence on death can be carried out until after 3 months. This is to allow the convict to appeal if he so chooses.
Thirdly, the right to prosecute anybody for murder should be given to any relation of the deceased and the Attorney general or the Director of Public Prosecution has no right of nolle prosequi. This is to avoid a situation where the state can frustrate a prosecution. For example, Chief Gani Fawehinmi could not prosecute those he suspected of killing the famous journalist, Dele Giwa and even when he made moves in that direction, the Attorney General of the state promised to defend the suspects.
Lastly, the Governor of the state shall have no right to grant pardon or to commute the sentence in a private persecution and conviction.
This is to stop the Governor from frustrating the efforts of a private prosecution. Remember that when one Gideon Akaluka, a Christian Igbo man residing in Kano was killed some years ago for being (falsely) accused of defecting a page of the Koran, he was tried by a mob under Sharia Law and the punishment of (Hodood) beheading was carried out immediately. Till today, nobody has been arrested or tried for that murder.
S34 (1) (a) states that "no person shall be subjected to torture or to in human or degrading treatment:. In spite of this provision, two persons have been flogged 80 and 100 times respectively in obedience to the order of a Sharia Court, in Zamfara State. The provision for flogging is in some statute books but since S34 (1) (a) is unequivocal in outlawing torture, it is my submission that flogging is an aspect of torture, and therefore, all provisions for flogging are void and unenforceable for being inconsistent with the constitution. This section is very clear and needs no amendment to make all and sundry understand it. See BELLO VS A. G. OYO STATE (Supra) at 1267 where Bello J.S.C. (as he then was) held as follows: "It seems to me that to answer the first question in the affirmative would stultify the constitutional provisions relating to appeal and make them otiose. Consequently, such a construction would by virtue of S(3) of the constitution which states:
"If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail and that other law shall to the extent of the inconsistency be void" renders the provisions of sections 371 to 375 of the Oyo Criminal Procedure law null and void. On this account, the said section of the law must be accorded such construction as will give effect to the enjoyment of the Constitutional Rights of Appeal by a convict and by the exercise of appellate jurisdictions of the Court of Appeal and of this court". S,35 provides for right to personal liberty. This section is very clear and all those military decrees and edicts that curtailed personal liberty have automatically died a natural death.
It is beyond imagination for anybody siesed of our present Constitution to argue otherwise. I am aware of the antics of some dubious policemen who arrest a suspect, detain him for 24 hours and then move him from one police station to another every 24 hours. My answer is that police detention is one. The venue is immaterial.
S 36 guarantees the right to a fair hearing. This is the basis of all decent societies. Beginning from the era of Magna Carta to the French Revolution to the rights of the people, the twin pillars to fair hearing have remained unshakable. No man is a judge in his own cause (Nmmo judex in cacasua) and that both sides to an issue must be heard (audi alterem partem).
One of the rights reserved for all is the right to be represented by a counsel of his own choice in a proceeding in court, tribunal, or any other place of adjudication. The famous case of Awolowo's Treasonable Felony trial is old and no longer tenable as a lawyer who is qualified to practise in Nigeria can by implication enter Nigeria. But the test case is whether a suspect or a litigant can insist on a lawyer of his own choice in a Sharia Court.
In practice, lawyers are not allowed by the Sharia Courts to appear there. This is strictly contrary to the Constitution S 36(b) c. In fact, the case of NTUKIDEM & ORS VS OKO & ORS (1986) 2 NSCC Vol.17, 1303 (1323) brought the issue succinctly and lucidly as follows:
"The right to fair hearing 1s radically a right under the rules of natural justice. Our constitutional guarantee of fair hearing merely amplified an existing right under the rules of natural justice and gave it an added statutory and constitutional force.
I am fully aware of the fact that our Various constitutions have always conferred the right to counsel or legal representation in criminal cases only, as evidenced by sections 21 (5) c, 22(5)c, 22
(5) and 33(6) of the 1960, 1963 and 1979. The question now is can this court exercising its interpretative jurisdiction enlarge S33
(1) of the 1979 constitution to include the right to counsel in civil
cases and appeals? Again justice Black of the American Supreme Court in GIDEON V WAINWRIGHT 37Z U.S 335 observed. 'Not only these precedents but also reason and reflection require us to recognise that in our adversary system of criminal justice any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to be an obvious truth. Lawyers to prosecute are every where deemed essential to protect the public interest in an orderly society. Similarly, there are defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal counts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trial in some countries but it i6 in ours".
Admittedly, Justice Black was in Wainwright's case dealing with right to counsel in a criminal case. His observation above, to my mind, will apply with equal force to civil cases and appeal cases involving points of law which a layman cannot deal with adequately".
Lord Denning M.R. in PETT V GREYHOUND RACING ASSOCIATION (1969) QB 125 stated as follows: It is not every man who has the ability to defend himself on his own. He cannot bring out the points himself in his own favour in the other side. He may be tongue-tied
or nervous, confused or wanting in intelligence. He cannot examine or cross examine witnesses. We see it everyday If justice is to be done, he ought to have the help of someone to speak for him, And who better than a lawyer who has been trained for the task". And on page 133 (a) he continued further that "in matters affecting reputation or livelihood or of serious import, when fairness demands an oral hearing, natural justice requires that a person can be represented, if he wishes, by counsel or solicitor".
The image S36 conveys to the mind's eye is that of a picture of the Judicial system of Nigeria. What is a person supposed to do when he is in trouble or when he as threatened. When he needs to have his right adjudicated, does he expect technical justice, or does he expect substantial justice. Justice C.A. Oputa in BELLO V. A.G., OYO STATE in page 1296 stated thus:
"The picture of law and its technical rules triumphant and justice prostrate may no doubt, have its admirers. But the spirit of justice does not reside in forms and formalities, nor in technicalities, nor is the triumph of justice to be found in successfully picking one's way between pitfalls of technicality. Law and its technical rules ought to be a handmaid of Justice.
Justice Kayode Eso held in STATE VS OWONTO (1983) ISCNCR 142 (160) that "The Court is more interested in substance than in form. Justice can only be done if the substance of the matter is examined. Reliance in technicalities leads to injustice". The horrible aspect of this Sharia denial of legal representation is that the trial and sentence of the accused person would have been over by the time the lawyer has prepared his appeal motions.
Besides, punishment is carried out instantly.
S38 guarantees freedom to practise ones religion and also the freedom to change same. The background to this fundamental right can be traced to the history of various nations when religions and the states were one. We even had Holy Roman Emperors. Religious leaders interfered in the governments of the states. Later on, the relationship was broken and religion became a private right. By this section it means that Solomon, a Christian, can convert to Islam and became Sulaimon without any fear for his life. Also, Yusuf, a Moslem, can convert to Christianity and become Joseph without any reappraisals from his Moslem brothers. But this right has been truncated by the introduction of Sharia Law under which it is a crime of apostasy to leave Islam and join another religion. The punishment for apostasy is death. As a matter of fact, the convert's nearest relation is expected to redeem his family honour by killing the man who has converted.
This section 38 is clear enough for all. Freedom to practice one's religion, freedom to change one's religion, freedom to propagate one's religion are fully entrenched. Religion here means religion and not government.
S42 follows S38 because it outlaws discrimination by circumstances of ones birth, religion, etc. Can a Moslem girl marry Christian without being killed by her nearest relation (Honour killing) for bringing disgrace to her family? The answer is no. The Sharia practice requires such killing. The constitution requires no such for it is a right guaranteed to all that religion should not be a cause of one's death. Under the Sharia Law of evidence the evidence of one woman is not accepted unless supported by another person.
Sections, 39, 40 and 41 clearly guarantee the rights to freedom of (1) expression, (2) assembly and (3) movement. These right are curtailed in Islam for sedition in religion could result from freedom to express oneself or even to question religion leaders and their tenets. The right to assemble for your religion could anger Moslem faithfuls who will regard such a sight as insultive to them. A man and his wife, girl friend or his female associate are entitled to take a walk or board the same bus. But in Zamfara, this is a criminal offences rooted in Sharia.
I believe that the mischief makers are the ones who will fail to uphold these constitutional provisions over and above any religious code.
Section 45 rather than derogate from sections 377 39, 40 and 41 actually reinforces them because it uses the expression "reasonably justifiable in a democratic society.
Democracy, as the ancient philosophers will say, is government of the people, for the people and by the people, It shies away from using the expression "the majority" in place of the people". Democracy is all about your right to exist freely and allow others also to exist. You do not dictate to others how they will live their lives. The only dictation allowed is from the Constitution. S46 gives the High Court the special Jurisdiction to handle all cases arising from this chapter. The burden placed on the count as the hope of the common man is a kin to that discharged by the United States court during the era of Benator Mccarthy. The court had to stop the hounding of all those who held dissenting view. Where the courts in Nigeria fail to discharge such duties, then the rule of the jungle will take over.
The competence of the Legislature to make laws is circumscribed by the Constitution. The National Assembly and the State Assembly cannot make laws that are inconsistent with the Constitution without first amending the Constitution. The following sections: 4, 6, 277 and 277 speak eloquently for themselves. The power to make the Constitution work lies with the Executive, the Legislature and the Judiciary Any misuse can bring unquantifiable ruin on the nation. If you are still in doubt find out what happened to Lebanon or why Kamal Attaturk of Turkey insisted on separating religion from the State. Ironically, the armed forces of Turkey have remained the guarantor of that separation till today.
I hope and believe that sober reasoning can take over from the present Sharia hype. The Penal code is enough to handle the fears of the present Ayatolas.