Laws

Reconciling Rights and Obligations: An Examination of Shari`ah Penal Reform in Northern Nigeria

This article examines the debate concerning the recent reinstatement of Shari`ah law with respect to criminal matters in Northern Nigeria. The discussion explores the inherent challenges in reconciling the equally entrenched and passionate views of pro-Shari`ah supporters on their right to freedom of religion with those that question its application in terms of human rights norms and obligations, and its constitutional legality. The analysis concludes that Shari`ah laws can coexist with Nigeria’s common law system and remain relevant in the context of Islam, provided that its principles are adapted and modernized to comport with international standards for due process and are interpreted and applied consistently.

Introduction

Nigeria exemplifies the struggles that so many other formerly colonized African nations have experienced and continue to reckon with in the wake of their independence. Its unrest stems largely from the artificiality of its creation, whereby approximately 248 different tribes, kingships, and other groups that are completely distinct in ethnicity, language, religion, and territory, were thrown together through foreign conquest and cast under the rubric of imperial Britain.1 Of these groups, three represent about two-thirds of Nigeria’s 116.9 million people2: the Hausa-Fulanis3 in the north, the Igbos in the southeast, and the Yorubas in the southwest.4 Perhaps the single most defining basis dividing these groups along geographic lines is religion, for most southern Nigerians are Christian while northern Nigerians are primarily Muslim and have a long history therein.

Predictably, colonization sought to amalgamate these groups in conformity with British values, administrative structures, and the common law system. While initial attempts sought to accommodate traditional institutions and practices through a policy of indirect rule, their erosion and transformation was inevitable as the influence of westernization increased. Despite the best efforts of imperial Britain’s 6 decades of rule,5 this process was never fully successful in the Muslim areas, for the Muslims always resisted full subjugation and sought to retain their own practices and structures to the furthest extent possible.

This commitment to and assertion of Islamic identity gained far greater momentum after Nigeria’s independence, which was achieved on October 1, 1960. Indeed, without the stabilizing effect of Britain’s controlling presence, groups have struggled against each other to assert their distinct priorities in an effort to reshape the balance of power within the government and to influence its administration. As a result, Nigeria has been plagued by internal armed conflict, government corruption, and persistent political and social instability. Some groups even seek to reject colonial vestiges altogether through self-determination. Once considered to be the “brightest star in the galaxy of new African states,”6 based on its great human capacity and rich natural resources, Nigeria is now a hotbed of ethnic and religious division.

Among the most controversial and sensitive issues to flare up between Nigeria’s Muslim and Christian communities of late is the reinstatement of Shari`ah law with respect to criminal matters in 12 of the country’s 36 states. Under colonial rule (1900-60), Islamic penal law was slowly transformed and eventually displaced entirely by the Northern and Southern Penal and Criminal Procedure Codes as a condition of achieving independence. This paper examines the debate over reintroducing Shari`ah penal laws and establishing courts to enforce them, and analyzes what options exist for reconciling divergent opinions within Nigeria as to the desirability and legality of these developments.

Part One provides a brief historical overview of the extent to which Islam forms part of northern Nigeria’s identity, while Part Two highlights salient principles of the Shari`ah penal system and its implementation in Nigeria thus far. The debate is subsequently considered from three different perspectives in Part Three: human rights norms and obligations, constitutionality, and the right to the freedom of religion. The analysis undertaken in Part Four ultimately concludes that Shari`ah laws can coexist with Nigeria’s common law system, provided that its principles are modernized to conform with international standards for due process, particularly its rules relating to criminal justice and sentencing. In comparison, elevating the issue to that of a constitutional challenge risks greater division and bloodshed regardless of the outcome, and potentially could lead Nigeria’s Islamic states to secede. What is needed is mutual understanding, respect, and tolerance of one another’s positions; cooperation toward creative solutions that foster the coexistence of different systems; and a shared commitment to a more peaceful and productive future.

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