Application of Sharia I Life Saver!

Onimisi – fluent in silence!

Good morning, and I hope we are all good. Although we have not written our Usul Al-Fiqh
examination, yet, I just felt like dropping the final Life Saver for the semester so I will know I am
free from all sort of obligation as far as this semester is concerned. May Allah make it all easy for
us, and may He grant us results that are beyond our heart desires. Ameen thuma Ameen!

On this Life Saver, I will address some issues which I believe would help a great deal in the
examination.

Enjoy!

IMPACT OF BRITISH COLONIALISM ON THE APPLICATION OF SHARIA LAW IN

NIGERIA

The British incursions into Nigeria during the colonial period had a significant impact on the
Application of Sharia in the region. The introduction of British colonial administration and legal
systems brought about several setbacks for the traditional application of Sharia in Nigeria. Here, I
will discuss how this occurred, referencing relevant judicial and historical authorities.

1. Imposition of English Legal System: With the British colonial rule, the English legal
system was introduced and imposed on the Nigerian population. This meant that English
common law and statutory laws took precedence over Sharia law. The British colonial
authorities established their courts, which applied English law and customary law. This
transition undermined the traditional application of Sharia in Nigeria. The 1956 Native
Courts Law established native courts, but these courts were primarily controlled by the
colonial authorities. They applied English law and principles and had to ensure that any
application of native law, including Sharia, was not repugnant to natural justice, equity, and
good conscience. This requirement effectively reduced the autonomy of Sharia in the legal
system. On the meaning of repugnant to natural justice, equity and good conscience, Speed
A.G in the case of Lewis v. Bankole was confronted with interpreting the phrase, he

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 concluded by making these remarks: “I am not sure that I know what the terms natural
justice, equity and good conscience mean. They are high sounding phrases and it will be
of course not difficult to hold that many of the ancient customs of barbaric nature are
repugnant thereto.” Form the definition, even though the phrase natural justice and good
conscience has not been defined, and the fact that the principle of equity are the same as
those principles which were developed by the courts that apply law on the basis of fairness
and equity and as developed after the passing of the Judicature Act, the phrase was carefully
drafted and inserted so as to judge the native law and custom on the notion of common law
justice. In Quansa v Yankun II, the court held that: “A custom which was contrary to the
English law was repugnant to natural justice, equity and good conscience.” In Jalo Guri
v. Hadejia N.A, the Emir of Hadejia found the accused person guilty of the offence of
armed robbery and was sentenced to death. The conviction was on the principles of Islamic
criminal law. The convict appealed and among his grounds of appeal was that the trial court
did not consider the accused person a competent witness for his defence. This is in line
with Islamic law principle to the effect that an accused person is not treated as a competent
witness in his own case in any trial whether he is accused solely or jointly with other
persons. In quashing the decision, the appeal court held that any native law and custom
which did not recognize an accused person as a competent witness is repugnant to natural
justice, equity and good conscience. In Gubba v Gwandu Native Authority, the accused
person was found guilty of the offence of intentional homicide by the Gwandu Emir’s court.
He was accordingly sentenced to death under the provisions of Islamic criminal law. The
accused person appealed to WACA. Parts of the grounds of appeal was that, the Emir of
Gwandu’s court, though established provocation as a factor in the punishment, failed to
avail the accused person, because Islamic criminal law does not recognize provocation as
a defence to criminal liability. Then WACA held that, a native law and custom which did
not recognize provocation as a defence to criminal liability and which is used as mitigating
factor in sentencing an accused person who committed criminal offence is repugnant to
natural justice, equity and good conscience. Also, in Mallam Abba v Mary F. Baikie, a
person lived and died as a Muslim. During his life, he married Mary of the Christian faith;
problem arose after his death, when the trial court held that Mary being a Christian was not
entitled to inherit her deceased husband who died as a Muslim. Under Islamic law,

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 difference of religion is a barrier to inheritance based on the Hadith of the Prophet which
provides that a non-Muslim cannot inherit a Muslim and a Muslim cannot inherit a non-
Muslim. The appellate court was to judge on the petition by Mary, the court held that a
customary law which does not allow a wife to inherit her deceased husband is repugnant
to natural justice, equity and good conscience.
2. Incompatibility Test: The British colonial authorities introduced the incompatibility test,
which meant that any aspect of Sharia law that was incompatible with English law or
statutes of general application would be rejected. This undermined the application of Sharia
principles in areas where they conflicted with British colonial laws. The case of
Adesubokan v. Yunusa Razaki is a notable example of the incompatibility test. In this
case, the court ruled that certain Islamic law principles were incompatible with the Wills
Act of 1837, a statute of general application. This ruling effectively restricted the
application of Sharia law in inheritance matters where it conflicted with British colonial
legislation. In Jalo Guri’s Case, one of the grounds of appeal was that the punishment for
armed robbery for which the accused person was found guilty and sentenced to death was
only amounting to manslaughter under the provision of the criminal code. For this reason,
the appellate court also discovered that the Islamic criminal law punishment for the offence
of armed robbery was incompatible with similar punishment provided by the criminal code.
Similarly, in Gubba’s case, the appellate court using the defence of provocation as a
mitigating factor to criminal liability found that convicted person could only be liable to
imprisonment and not death sentence as was the case under the provisions of Islamic
criminal law. Finally, in Maizabo v Sokoto N.A, the court held that “the native court while
passing a sentence for a conviction under native law and custom is bound to conform with
the provision of the criminal code.”
3. Influence of British Jurisprudence: British jurisprudence and principles of justice
influenced the judicial system in Nigeria, leading to the interpretation of Sharia in light of
these principles. The concept of justice, equity, and good conscience was defined based on
British notions of fairness. The case of Lewis v. Bankole, where the phrase “natural justice,
equity, and good conscience” was introduced, reflected the influence of British
jurisprudence on the Nigerian legal system. This British approach to justice had an impact
on how Sharia law was interpreted and applied in the courts.

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 4. Reduced Autonomy of Sharia Courts: The British colonial administration created a
system where Sharia courts and judges had limited jurisdiction and authority. The colonial
authorities had the final say on many judicial matters, particularly those that concerned
issues of life and death. The case of Gubba v. Gwandu Native Authority highlighted the
reduced autonomy of Sharia courts. In this case, the appellate court asserted that a native
court exercising jurisdiction in a matter constituting an offense against the criminal code
must conform to the provisions of the criminal code, reducing the independence of Sharia
courts.

In summary, the British incursions into Nigeria during the colonial period significantly constrained
the application of Sharia law. The introduction of English legal systems, the imposition of British
legal principles, and the requirement that Sharia comply with British standards of justice all
contributed to the setbacks faced by the traditional application of Sharia in Nigeria.

THE LEGAL INTERSECTION: THE PENAL CODE LAW OF NORTHERN NIGERIA

AND ISLAMIC LAW COMPATIBILITY

The Penal Code Law of Northern Nigeria, which was promulgated in 1959 and subsequently
applied to various states in Northern Nigeria, reflects a mix of Islamic principles and British
colonial legal traditions. It was introduced to replace or, in some cases, modify the application of
Islamic criminal law (Sharia). The extent to which the Penal Code is considered Islamic law-
compliant is a complex matter, and it has been a subject of legal and scholarly debate. With the
promulgation into law of the Penal Code of Northern Nigeria, trials and punishment by any court
of offences taking under native law and customs including Islamic law ceased. For section 3 (2)
made this categorically clear “After the commencement of this law, no person will be liable for
punishment under any native law and custom”.

This was illustrated in the case of Numan Federation W.A. v Samari Numan. The court, in this
case, tried the accused person under native law and custom for an offence committed prior to the
promulgation into law of the northern Nigeria Penal Code. On appeal, the appellate court held that
by virtue of section 3 (2) of the Penal Code, no court had any more jurisdiction to try and convict
offenders under native law and custom. I will examine some salient points below:

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 1. Islamic Law Compatibility of the Penal Code: The Penal Code incorporates some
elements of Islamic law, particularly in areas such as offences against the person (hudud
crimes like theft, adultery, and alcohol consumption), which align with Islamic
jurisprudence. However, there are differences in the procedures and punishments
specified in the Penal Code as compared to traditional Islamic law.
2. Provisions in the Penal Code: The Penal Code’s provisions on adultery and alcohol
consumption, for instance, make provisions for imprisonment or caning, by section 387
and 403 of the Penal Code, respectively, whereas traditional Islamic law prescribe more
severe corporal punishments like stoning for adultery. Similarly, the Penal Code provides
for imprisonment and caning for other offences like theft, whereas Islamic law
punishments for theft include amputation. The Penal Code includes procedural safeguards
and evidentiary standards that differ from Islamic law.
3. State Sharia Penal Codes: In the early 2000s, some states in Northern Nigeria enacted
Sharia Penal Codes to align more closely with Islamic law. These state Sharia Penal Codes
aimed to implement more stringent Islamic punishments in areas like adultery and theft.
Most prominent is the Zamfara State Penal Law which provides in sections 126 and 127
for the offence of Zina, prescribing 100 lashes as the punishment if unmarried, and
stoning to death as the punishment if married. The same Law prescribes 80 lashes for
drinking of alcohol by section 149. However, these enactments have been a subject of
controversy, legal challenges, and public debate.
4. Legal Justification: The legal justification for states to enact Sharia Penal Codes lies in
the Nigerian Constitution. The Nigerian Constitution, by section 4(6), recognizes the right
of states to enact laws on various matters, including criminal law. As such, the states have
the legal authority to enact and implement Sharia Penal Codes.
5. Challenges and Controversies: The introduction of Sharia Penal Codes in some states has
been met with legal challenges. Opponents argue that these codes may not be consistent
with the federal Constitution or international human rights standards, especially when it
comes to severe corporal punishments. This leads to constitutional issues, particularly
bordering on the principle of covering the field, as emphasised by the Supreme Court in
Attorney-General of Ogun State v Alhaji Lasisi Agberuagba. The provision of section
4(5) of the Constitution of the Federal Republic of Nigeria has clearly provided to the effect

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 that if a law of the State House of Assembly is inconsistent with the Act of the National
Assembly, the Act of the National Assembly will prevail and the Law of the State House
of Assembly will, to the extent of the inconsistency, be null and void.
6. Legal Implications: The coexistence of the Penal Code and the Sharia Penal Codes in
Northern Nigeria has created a complex legal landscape. In practice, various states in
Northern Nigeria operate different criminal codes, and individuals are subject to different
legal standards depending on the state they are in.

To crown it all, the Penal Code Law of Northern Nigeria is designed to align with Islamic law to
some extent, but it also includes significant departures in terms of procedures and punishments.
States in Northern Nigeria have the legal authority to enact Sharia Penal Codes, but this has been
a subject of legal challenges and debates regarding their compatibility with the Nigerian
Constitution and international human rights standards. The issue of Islamic law compliance in
Northern Nigeria remains a complex and evolving legal matter.

DIVERGING PATHS: THE EQUATING OF ISLAMIC LAW AND CUSTOMARY LAW

IN NIGERIAN COURTS

The attitude of courts equating Islamic law with customary law, despite clear distinctions in their
nature and characteristics, is indeed a point of contention. This practice contradicts not only the
understanding of customary law but also the judicial, statutory, and textbook descriptions. Here’s
a comprehensive comment, supported by relevant authorities.

1. Judicial Authorities:
a. Owoniyi v Omotosho: In this case, customary law was defined as “a mirror of
accepted usage.” This definition emphasises the idea that customary law is rooted
in the customs and traditions of a specific community, reflecting their long-standing
practices.
b. Lewis v. Bankole: This case explained that customary law consists of customs of
a particular community that have long usage and are recognized and adhered to by
that community. It is described as “unwritten” and evolves over time to
accommodate changes in social conditions.

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 c. Agbai v Okogbue: The Court of Appeal provided a judicial meaning of customary
law, stating that it is “unrecorded traditions and history of people with which have
grown with the growth of the people to stability and eventually became an intrinsic
part of their culture.”
d. Alkamawa v. Bello: The Supreme Court emphasized that Islamic law is not the
same as customary law and does not belong to any particular tribe.
e. Patrick v Ohkae and The Governor of Bendel State & Ors: In this case, the
Court of Appeal highlighted the uniformity and certainty of Islamic law, in contrast
to the uncertainty and dynamic nature of customary law.
f. Ogbuji & Anor v. Amadi (2022): The Supreme Court, while citing its previous
decision in Nwaigwe v Okere (2008) defined customary law as laws relating to
customs or usage of a given community, emerging from the traditional usage and
practice of the people in a given community, which they accept as their ways of
life.
g. Ogolo v. Ogolo: “Customary law is the organic or living law of the indigenous
people of Nigeria regulating their lives and transactions. It is a mirror of the culture
of the people...”
2. Statutory Authorities:
a. Section 258 of the Evidence Act, 2011: This section defines customary law as “a
rule which is in a particular district has from long usage obtained the force of law.”
It reinforces the idea that customary law is rooted in specific districts and their long-
standing practices.
3. Textbook Authorities:
a. A.E.W Park: This jurist and writer on the sources of the Nigerian legal system
pointed out theoretical distinctions between Islamic law and customary law. He
stated that, while for practical purposes, Islamic law and various tribal laws are
treated alike, there are many theoretical distinctions between them.
b. Professor Akintunde Olusegun Obilade: In his book “The Nigerian Legal
System,” he highlighted that, in most of the territories now comprising the northern
states, the principal law administered by the courts was Islamic law, which is based

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 on the Holy Qur’an, the practice of the Prophet, consensus of scholars, and
analogical deduction from these sources.
c. Justice Karibi Whyte JSC: In his book “The History and Sources of Nigerian
Criminal Law,” he asserted that the classification of Islamic law as customary law
was wrong and misleading, emphasizing the distinguishing features of the two
systems of law.
4. General Comment:

The judicial, statutory, and textbook authorities cited demonstrate that customary law is
fundamentally rooted in the customs and traditions of specific communities, is unwritten and
vague, and evolves over time. In contrast, Islamic law is distinct and characterized by its divine
origin, written sources, and international uniformity.

The courts’ tendency to equate Islamic law with customary law, thereby subjecting it to the tests
of repugnancy and incompatibility, appears arbitrary and problematic. These tests are designed for
customary law, and applying them to Islamic law disregards its unique characteristics and universal
applicability.

The impact of these tests on Islamic law is evident in various cases where Islamic law principles
were rejected when found incompatible with written law, despite their clear applicability within
Muslim communities.

In conclusion, the equating of Islamic law with customary law is a matter of concern that affects
the administration of justice and the rights of individuals in Muslim communities. It is crucial for
courts to recognize the distinct nature of Islamic law and apply it accordingly, without
subjecting it to the same tests as customary law. This will help ensure justice and fairness for
those who adhere to Islamic legal principles [the emboldened part of this conclusion can also be
used as a point in the next article I will drop below].

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 REVIVING AND REIMAGINING SHEIKH USMAN BIN FODIO’S LEGACY:
ADVANCING SHARIA IN CONTEMPORARY NIGERIA

Reviving and reinventing the legacies of Sheikh Usman bin Fodio on the application of Sharia in
Nigeria can be a complex and multifaceted endeavour. Sheikh Usman bin Fodio was a renowned
Islamic scholar and leader of the Fulani Jihad in the early 19th century, and his teachings and
influence on the application of Sharia have left a lasting legacy. To revive and reinvent these
legacies, various steps can be taken:

1. Islamic Education and Scholarship:

a. Promote Islamic education and scholarship to ensure a deep understanding of
Islamic jurisprudence, including Fodio’s teachings.
b. Establish and support Islamic schools, colleges, and universities to provide quality
Islamic education.
c. Encourage research and scholarly work on Islamic law and jurisprudence within
the Nigerian context.
2. Community Engagement:
a. Promote community awareness and understanding of the principles and benefits of
Sharia.
b. Engage local communities in discussions about the relevance of Islamic law in
contemporary Nigeria.
c. Encourage community leaders and scholars to take active roles in interpreting and
applying Sharia in accordance with Fodio’s principles.
3. Interfaith Dialogue:
a. Promote interfaith dialogue to foster better understanding and tolerance between
different religious communities in Nigeria.
b. Seek common ground and shared values to create an atmosphere of religious
harmony.
4. Legal and Judicial Reforms:
a. Advocate for the incorporation of aspects of Sharia into the Nigerian legal system
where applicable.

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 b. Ensure that Sharia is administered by competent and knowledgeable jurists who
adhere to Fodio’s principles of justice and equity.
5. Publication and Media:
a. Produce and distribute literature, articles, and multimedia materials that promote
Fodio’s teachings and their relevance in contemporary society.
b. Utilize modern media platforms to reach a wider audience and engage in public
discourse.
6. Political Engagement:
a. Encourage the political representation of Muslims who are knowledgeable about
Islamic law and principles.
b. Advocate for policies that respect the rights of Muslims to practice Sharia within
the bounds of Nigerian law.
7. International Collaboration: Collaborate with international Islamic organizations and
scholars to learn from global experiences in applying Sharia and Islamic governance.
8. Conflict Resolution: Promote Sharia-based conflict resolution mechanisms, as Fodio
emphasized the role of Sharia in maintaining peace and justice.
9. Combating Extremism: Vigilantly combat extremism and interpretations of Islam that
promote violence or intolerance, as Fodio’s teachings emphasized peace, justice, and
fairness.

May Allah make it easy for us all!

Onimisi – fluent in silence!

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