Administration of islamic law in nigerian

Introduction

Nigeria is a pluralistic nation in many senses. It is pluralistic in terms of law, ethnicity and religion. Laws in Nigeria are derived from three distinct laws or legal systems, namely, customary law, Islamic law and English style laws. There are over 250 ethnic groups in Nigeria, each with its own distinctive customary law. In terms of ethnicity, there are three main ethnic groups which are dominant in a part of the country respectively. There is the Hausa-Fulani in the north, the Yoruba in the west and the Igbo in the east. In terms of religion, there are three main religious groups in the country, namely Muslims, Christians and adherents of host indigenous religions commonly described as traditional religion. Muslims and Christians are the only powerful religious groups in the country. Adherents of traditional religion are scattered all over the country and have no uniting organization. The total population of Muslims and Christians in the country is hotly disputed. The 1963 census puts the population as Muslims 49%, Christians 34% and traditional religionist 17%. Now, Muslims and Christians claim to be in the majority. It is sufficient here to say that the two religions have each registered in Nigeria a presence that cannot be ignored.

There are two popular misconceptions relating to ethnicity and religion in Nigeria. The first is the notion of ethnic hegemony in the northern, western and eastern parts of the country. This notion glosses over the important fact that there are many minority ethnic groups which taken together constitute a sizeable minority in the part of the country to which they belong. The second is the talk of “Muslim north” and “Christian south”. Muslims are the dominant in the northern part of the country but there are sizeable Christian minorities who are even in the majority in some parts of the north. The notion of Christian south is further from being correct. In the south west, where Yoruba is the dominant ethnic group, Muslims are in the majority with Christians trailing slightly behind them. In the east where Igbo dominates, Muslims are few but not unknown, while Christianity which is the religion of the majority faces stiff competition from African traditional religions. However, a source of confusion in the country is that religious issues are often so mixed with ethnic matters that it is difficult to separate them. Religion also has a relationship with the legal pluralism in the country. Customary law is indigenous to Nigeria. It is as old as the peoples of Nigeria. The other two sources of law Islamic law and English style laws - are imported. Islamic law is the legal expression of the Islamic religion while English style laws have come to be linked with Christianity and customary law with African traditional religion.

Customary law refers to the indigenous law of the various peoples of Nigeria. Common law evolved in England and was brought into the country in the middle of the 19th century by the British colonialists who brought not only their system of administration but also their laws together with their legal system, particularly its methodology and methods of administration of justice. Islamic law has a much longer antecedent in the country.

Islamic law came with the Islamic religion, which penetrated, into Kanem-Bornu and Sokoto Caliphates in the 8th and 11th Centuries respectively. Islamic law thought divides into two broad divisions, the Sunni and the Shia. Among the Sunni, there are four schools (Madhahib, singular, Madhab) of jurisprudence - the Hanafi, Hanbali, Maliki and Shafi'i schools named after their respective founders. Maliki law is dominant and official school of Islamic law (madhab) in Nigeria. It has been so since the *th century. Prior to colonialism, Islamic law had become the institutionalised law in a large part of the northern part of the country. Since the 15th Century until the advent of colonialism, Qadis administering Islamic law have been continuously appointed in the northern part of the country. The revivalism movements of Uthman dan Fodio which culminated in the Sokoto Caliphate and others in the much older Kanem-Bornu empire ensured a well-organised system of administering Islamic law in the north. There has also been since that period, a strong supporting traditional Islamic law education. Many centres of learning in the area that is now northern Nigeria attained worldwide fame. During this period Islamic law was administered by courts manned by highly trained professional alkalai (judges). These judges were generally men of great respectability and considerable learning. They were literate and they based their judgements on written sources. The Emir's courts served as the last appellate court.

Islamic law was so much in enforced in Northern Nigeria that at the advent of British occupation of the north, it ranked as one of those places in the British Empire where Islamic law was enforced to the fullest. Nonetheless, local customs are still relevant in two major ways. First, there were and still are pockets of tribes in the north who are not Muslims. In consonance with the Islamic principle of freedom of religion and judicial autonomy for non-Muslims, customary law applied and still applies to such peoples. Secondly, local customs (‘urf) to some extent influence practices of Muslims particularly in the area of family law.

The advent of colonialism assured the dominancy of common law in the Nigerian legal system at the expense of Islamic law and customary law. Indirect rule system.

[ascendancy of common law]

1956 “”””

Various writers have complained about the “step motherly treatment” given to the Islamic law by the colonial masters. *****. The position of the Sharia Court of Appeal compared with that of the High Court reflects too well, the inferior position in which the colonial masters placed Islamic law vis-à-vis the common law in the Nigerian legal system.

Since independence in 1960, State law have influenced the Sharia Court of Appeal both positively and negatively. 1999.

Since it's established the Sharia Court of Appeal has been the centre of many controversies.

Nature Of The Nigerian State

Federalism

‘Northern Nigeria' which forms the focus of this research and which term gives it part of its title deserves further explanation. Today, ‘northern Nigeria' is no longer the juridical entity it was during the colonial and the early independence eras. The northern region came into being with the *** Constitution of 19** which introduced regional governments in Nigeria. The regional arrangement endured until 1967 when the regions were broken into 12 States. Since then further states have been created. Today, Nigeria consists of 36 states and a Federal Capital Territory. ** Although (as pointed out above), the Sharia Court of Appeal is a superior court established by the constitution and any State that so wish may establish one for its own State, only the northern states have Sharia Courts of Appeal; none have been established in the other States of the Federation. Thus, it is still very relevant and meaningful to speak of ‘northern Nigeria' as not only as a historical or a geographical concept but also in terms of making any juridical analysis in relation to administration of Islamic law in Nigeria.

Status Of Religion

No State Relgion

Freedom of religion

Statement Of The Problem/Research Questions

The Sharia Court of Appeal is supposedly an Islamic law court administering Islamic law. But, it is also a court within the Nigerian legal system which system is based on common law and which courts are patterned after the English courts. The court is therefore one created, defined and controlled by state law and to some extent, influenced by the common law. Again, as the Sharia Court of Appeal it is supposed to be is a superior Islamic law court, one with coordinate jurisdiction with the High Court, it is logical to expect it to have an exclusive jurisdiction when it comes to Islamic law. Yet again, this is not the case - it has had to contest the Islamic law jurisdiction with the High Court in some matters. Further still, unlike the other courts in the country which are perceived simply as ‘law courts', the Sharia Court of Appeal is also seen by some as a ‘religious' court. In this context, the court has been subject of many religion-centered controversies which has to some extent influenced the fortunes of the court. This study investigates the extent to which the Sharia Court of Appeal has been influenced by these three factors. The primary research questions in this study are:

  1. In what ways have State Law and the Common Law influenced the administration of Islamic law by the Sharia Court of Appeal? And what are the conflicts that have emerged between Islamic law and these two other laws in the Sharia Court of Appeal?

  2. How have the Sharia Courts of Appeal reacted to the conflicts between Islamic law on one hand and State law and the common law on the other? And how has the contest between Islamic law on the one hand and State law, other State courts and common law played out?

  3. How has religious politics influenced the fortunes of the Sharia Court of Appeal?

  4. In these contexts, in what ways can the administration of Islamic law in the Sharia Court of Appeal be improved?

Objectives Of The Proposed Research

The objectives of the proposed research are as follows:

  1. To describe the status, jurisdiction and working of the Sharia Court of Appeal within the Nigerian legal system

  2. To identify the areas of conflict between Islamic law and other laws (particularly state law and common law) as expressed in the court and to analyze how these have played out in the court.

  3. To suggest ways by which the Sharia Court of Appeal would be more effective as court administering Islamic law in Nigeria.

Hypothesis

This study will argue that the Sharia Courts of Appeal is suffering with a crisis of identity which stems essentially from its being an Islamic court in an English common law based legal system. Additional challenges have come from the religious-motivated opposition from non-Muslims who perceive the court as a factor in the ‘Islamisation' of the country. The Sharia Court of Appeal is not an exclusively Islamic court but rather a mixture of Islamic and English style courts. The fortunes of the court has been adversely affected by the increasing influence of the common law and its practitioners on the court and the political pressure of non-Muslims who want the common law to be the general law which applies to everybody and common law-style courts as the only courts in the country. These contrast sharply with the aspirations of Nigerian Muslims who want the full Islamic law to apply to all aspects of their affairs and full-fledged Islamic courts as the exclusive fora for determining matters relating to Islamic law.

Although the Sharia Court of Appeal was created merely to give Muslims the impression that Islamic law is being properly administered in the northern Nigeria (when in reality it was not), it has proved difficult for the court to remain a white elephant given the strength of Islam as a religion and Islamic law its law. Islam have proved to be a very resilient in the world generally and northern Nigeria in particular. Islamic law too seems to have a life of its own even in the context of legal pluralism. It is a highly sophisticated system of law which has proved to be highly competitive vis-à-vis the common law and whose components are finding expression even outside what was considered traditionally as the Muslim world. All these factors give an unexpected vitality and vigor to Islamic law in the modern world. These also underscore the need to make Sharia Court of Appeal more Islamic-oriented than it is now

Literature Review

The literature relevant to this study can be divided into four broad groups. These are literatures that espouse Islamic law, compare the conception of law under the common law (or Western law) and Islamic law, examine the Nigerian legal system generally, and those that discuss general or specific aspects of Islam and Islamic law in Nigeria.

In the first category are literature on Islamic law which are useful to this study are those that deal with the normative contents of Islamic law as applied in northern Nigeria. The Qur'an and the Sunna are the primary sources of Islamic law. Since these sources are not arranged in a systematically according to subject matter, it is very difficult to find the relevant materials needed for particular legal questions. Islamic jurists and scholars have produced compendiums of law based on both primary and secondary sources of Islamic law. These books form the reference materials for judges.

Judges in northern Nigeria usually rely on the classical books of Islamic law (including the commentaries thereon and glosses on the commentaries) written by jurists of the Maliki School. Maliki law books have been in use in Northern Nigeria since the time of El-Maghili (***th Century) who was reputed to be the first scholar to bring Maliki books into Hausaland. These books will be used in this study as the main sources of Islamic law. These books consist of those that deal with substantial law and those that deal with judicial procedure which includes the law of evidence, practice and procedure, and judicial manners or etiquette. Those on substantial law include the Risalah of Ibn Abi Zayd al-Qayrawani, Mukhtasar of Khalil Ibn Ishaq al-Jundi, Tuhafat al-Hukkam by Ibn Asim, al-‘Illaysh's Fath al-‘ali al-malik, Kitab al-Muwatta by Imam Maliki and their various commentaries. The main books of judicial procedure are ***. These books are usually in Arabic although many of them have now been translated into English language. Both Arabic and English translations (where and when available) of these works will be used in this study as the basic sources of the relevant Islamic law according to the Maliki School. In this category also are books written by modern writers. Two works stand out here. The first is Ambali's (). It is a textbook on Islamic family law in Nigeria which includes comments on administration of Islamic law in the Sharia Court of Appeal. The other is the book by Orire () which is written as a compendium on Islamic law. Coincidentally, both were former Grand Kadi of the SCA of Kwara State. Also in this category in a way is Doi's academic exposition of Islamic law generally. Although it is a very useful work as an academic reference book on Islamic law, it is of limited or no judicial use because it does not go into the details and it is not based specifically on the Maliki mazhab.

The second category of relevant literature consists of those that compare the conception of law under the common law (or Western law) and Islamic law. These include Anderson, Oba, 2004 JLP, Ubah 1982,

In the third category of the literature relevant to this study are those that examine the Nigerian legal system generally, These materials can be divided into those that deal with the Nigerian legal system generally such as (Park, Obilade, Asein, ), those that address the general or specific the problems of the Nigerian legal system such as legal pluralism (Yusuf) and the problems concerning to the administration of Islamic law.

The fourth group relevant literature consists of those that focus on Islamic law in Nigeria, in this group are works that focus on Islam in Nigeria, Islamic law in Nigeria generally, those that examine the administration of Islamic law in Nigeria, those that examine the implications of the post 1999 Islamic revivalism in northern Nigeria, and those that deals with the Sharia Court of Appeal in particular.

Historical Sokoto and Borno: Last, Judicial practice in Sokoto, and Borno, Islam in Nigeria, Doi, Islamic law and Islamic courts in the colonial era, Christelow 2002,

Ubah, 1985

In the firth category of literature are those that examine the administration of Islamic law in Nigeria generally Ubah, Khalid, the administration of Maliki Law Sodiq 1991, Gloster, 1987, Oloyede , and Ajetunmobi. Islamic courts Kumo, 1972, Oba, 2009

The sixth and last group of relevant literatures consists of those that that deal with the Sharia Court of Appeal in particular. Constitutional crisis of 1979: udo udoma**, 1989, and 1995 Aniagolu who was Chairman presents the Christian perspective of the crisis while Yadudu a member of the CA presents the Muslim version; post 1999, criminal jurisdiction Oba, 1995; Two important cases: appearance of Lawyers, Tabiu, Oba, practice and procedure Judicial precedent: Yadudu, Ladan, Oba, 2004 JLP, and Bello, 200*. Too sketchy, update.

**

Various writers have complained about the “step motherly treatment” given to the Islamic law by the colonial masters. **.

There have not been many studies of the courts administering Islamic law in Nigeria. There is Kumo's Ph. D. in 1972 titled “” which looked that . Ajetunmobi, Apart from the limited material in that study on the Sharia Court of Appeal, since the time of the study, there have been many important developments concerning the Sharia Court of Appeal. Ubah, 1985, Oba 2009 had also looked at the area courts administrating

[future of law] Parallel system

Islamic revivalism of 1999 huduud: Tahir IIUM NCL 2007,

The third and last group of existing literature relevant to this study consists of works which specifically address the Sharia Court of Appeal and its problems.

Literatures on the challenges at the SCA.

UBAH, C. N.

1982 ‘Islamic legal system and the westernization process in the nigeria emirates.' Journal of Legal Pluralism 20: 69 - 93.

1985 Government and Administration of Kano Emirate 1990-1930. Nsukka: University of Nigeria Press.

Scope And Limitations Of The Study

As regards Islamic law we shall focus on Maliki law which is dominant and official madhab in Nigeria. Although there is a Sharia Court of Appeal in each of the States in northern Nigeria and in the FCT, this research will focus in terms of fieldwork on the Sharia Court of Appeal of Sokoto and Kwara States respectively. The choice of the former is formulated by its importance as the “seat” of the Sokoto Caliphate and Sokoto State is one of the states which have expanded the jurisdictions of the SCA following the state's adoption of Islamic law as the basic law in the state in the post 1999 era. Kwara State is chosen for the status of its capital Ilorin as an important Islamic centre and the cultural varieties its presents as a state with Hausa-Fulani, Yoruba, Nupe and Bariba populations. Ironically, in spite of the fame of Ilorin as an Islamic centre, its cultural pluralism has precluded its adoption of the Shaira as its basic law. Both states provides examples *8.

This research is about the Sharia Court of Appeal but it will not be limited to the court. The Sharia Court of Appeal is an intermediate court between the lower Islamic courts (named in the various States as “Area Courts” and “Sharia Courts”) and the Court of Appeal. Thus, the activities and decisions of the Area Courts as they impact on the Sharia Court of Appeal will be discussed; so also the decisions of the Court of Appeal and those of the Supreme Court (to which final appeal lies). In this manner, the study will be able to present a more comprehensive analysis of the Sharia Court of Appeal within the Nigerian legal system. The study will cover essentially the period between the inception of the court in 1960 and the present (2010).

Methodology

This study is essentially library-based although the empirical method will also be used. The study will rely on primary sources which include the Nigerian Constitutions (past and present), statues and decisions of courts in Nigeria. In analyzing these sources, the study shall rely also on secondary sources such as books, monographs, journal articles, conference proceedings and reports of committees and other bodies. In locating and retrieving these sources, relevant websites, online bibliographies such as those of the IIUM library, ASC, ,** subscription-based internet data bases such as HeinOnline, JSTOR, Westlaw, Project Muse and LexisNexis, and free access journals such as those contained in the Directory of Free Access Journals (DOAJ) and other similar resources, data bases of libraries which are on open access will be used. These resources will be supplemented by searching the internet through search engines such as Google and Ask.com.

In relation to Islamic law, classical text books relating to Islamic law generally and the Maliki School in particular which are in use as reference materials in Islamic courts in northern Nigeria will be consulted. Facts and data on the administration of Islamic law in the Sharia Court of Appeal will be sourced by studying and analyzing courts records and through interview of those connected with the administration of Islamic law in the court such as Kadis, lawyers, court officials and litigants. The study will also adopt the participant observation method as the researcher will observe directly proceedings in the Sharia Court of Appeal and other activities in and around the court premises.

Journal Articles

The Shari'ah Penal Codes and the Challenge of the Evidence Act Nigerian Bar Journal Vol. 1 No. 4, 2003, pp. 449 - 470

Oba A. A. (2004) “Kadis (Judges) of the Sharia Court of Appeal: The Problems of Identity, Relevance, and Marginalisation within the Nigerian Legal System” Journal of Commonwealth Law and Legal Education, Vol. 2 No. 2, pp. 49 - 71.

Lawyers, Legal Education and Shari'ah Courts in Nigeria Journal Legal Pluralism, Vol. 49, 2004, pp. 113 - 161 (The Foundation for Journal of Legal Pluralism, California, USA)

Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction American Journal of Comparative Law Vol. 52 No. 4, 2004, pp. 859 - 900 (America Society of Comparative Law, California, USA).

Towards Rethinking Legal Education in Nigeria Journal of Commonwealth Law and Legal Education, Vol. 6 No. 1, 2008, 97 - 114.

Neither Fish nor Fowl': Area Courts in the Ilorin Emirate in Northern Nigeria Journal Legal Pluralism, Vol. 58, 2009, 69 - 92.