Friday, March 20, 2009

NIGERIA: THE BATTLE FOR SHARI'AH SUPREMACY

Date: Friday 20 March 2009
Subj: Nigeria: The Battle for Shari'ah Supremacy
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal


In January 2000, Governor Ahmad Sani Yarima Bakura defied the Nigerian Constitution and enacted Shari'ah Law in his north western state of Zamfara. Other northern and middle-belt Muslim-majority states soon followed and it was not long before all 12 northern states were under Shari'ah Law: the constitution of the Islamic State. In religiously mixed middle-belt states such as Kaduna and Plateau, thousands -- mostly Christians -- died in Shari'ah riots and anti-Christian pogroms.

Nigeria has a secular constitution which guarantees religious freedom and does not permit states to adopt a religion (See Link 1). Adoption of Islamic Law as the law of the state does violate the constitution. It is extremely unfortunate that the federal government did not nip the Shari'ah movement in the bud while it had the chance. Then-president Olusegun Obasanjo seriously underestimated the Shari'ah movement, believing it would fade away by itself. But of course it did not. Instead it has transformed from bud to monstrous ticking time bomb.

SHARI'AH IMPLEMENTATION


As long as the constitution of the Federation remains supreme, Shari'ah Law cannot be fully implemented because any Shari'ah ruling made in a northern Shari'ah court that conflicts with the provisions of the constitution of the Federation can be successfully appealed in a federal court on constitutional grounds. Because of this, Shari'ah courts have avoided issuing harsh penalties: the acquittal of Amina Lawal is a case point. In March 2002, Amina Lawal -- who had been charged with adultery after conceiving out of wedlock -- was sentenced by a Katsina Shari'ah Court to death by stoning. In September 2003, a Katsina Shari'ah Appeals Court acquitted her on procedural grounds. It was always understood that the death-by-stoning sentence -- which had attracted global attention -- would eventually have been overturned in the Supreme Court. (Link 2)

Subsequently, Shari'ah implementation slowed considerably.

The issue of the day is no longer Shari'ah adoption, but Shari'ah implementation. To this end, the Centre for the Promotion of Shari'ah held a three-day conference in Kano from Thursday 26 to Saturday 28 February to "brainstorm on the way forward for Shari'ah in Nigeria". (Link 3)

The Shari'ah advocates are pursuing constitutional amendments that would exempt Shari'ah Law from the constitutional provision in Article 1.3: "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." Such an exemption would essentially give Shari'ah Law (the constitution of the Islamic State) supremacy over the constitution of the Federation.

Isa Sa'idu reports for the Daily Trust that the Centre for the Promotion of Shari'ah (CPS) convened the conference with the aim of finding solutions to the problems militating against the implementation of the Shari'ah legal system in Nigeria. The conference was chaired by Senator Ahmad Sani Yarima (former governor of Zamfara State) and funded by the Kano State Government. (Link 3)

According to Senator Ahmad Sani Yarima, the main obstacle to Shari'ah implementation is the Federal Constitution. He proposed that each state have its own independent constitution. While ignoring the fact that such a move would essentially result in the break-up of Nigeria, Senator Yarima appealed to "democracy" saying, "Democracy is a game of numbers. If we are to practice democracy vis-a-vis the Shari'ah legal system, there is the need for us to have individual states' constitutions that would be drafted and supported by the people of every state. When we have that in place, states that want to practice Shari'ah can go ahead and do it holistically without any constraint." (Link 3)

According to the Daily Trust, the CPS National President, Imam Aliyu Ibrahim Al-Tukri said, " . . . some of the problems facing Shari'ah in Nigeria are non-execution of judgments on grave offences, pressure and negative campaigns from different groups, misconception and mischief about Shari'ah. He said the legal battle between Kano State and the federal government on the legality or otherwise of establishing the Hisbah (Shari'ah implementation guards) is a vivid example of attempt to frustrate Shari'ah implementation in Nigeria." (Link 3)

THE BATTLE OVER THE LEGALITY OF HISBAH
(Hasba/sharia implementation)

After comfortably winning the 2003 state elections, Kano's Governor Ibrahim Shekarau established a Hisbah (Shari'ah implementation) Board. By 2005 Kano State had a 9000-volunteer-strong Hisbah Corps essentially operating as a parallel police force tasked primarily with enforcing Shari'ah Law.

In May 2004 the Kano Assembly passed legislation banning women riding on taxi mopeds, deeming it un-Islamic. In December 2005 Hisbah Corps launched a crack down on un-Islamic transport, in particular the persistent problem of women riding on taxi mopeds. The resultant clash between taxi drivers and the Hisbah Shari'ah enforcers -- which resulted in eleven people being injured and dozens of vehicles being vandalised -- generated an uproar.

But the greatest tension was not between the Hisbah Corps and the "masses" but between the Hisbah Corps and the police with whom they frequently clashed while pulling women off moving mopeds and confiscating alcohol from hotels etc.

On or around 7 February 2006, the Inspector-General of Police, Mr Sunday Ehindero, told a press conference that the Hisbah Law and the operations of bodies created by the Hisbah Law were unconstitutional and therefore illegal. He claimed the Hisbah agencies undermined Nigeria's national security, and noted intelligence alleging the Hisbah Board was receiving assistance from Libya and Iran and that around 100 Hisbah officers had been trained abroad in the ideology and methodology of jihad and terrorism, a claim the Kano authorities denied.

On 8 February 2006, the Inspector-General of Police arrested the Chairman of the Hisbah Corps, Yahaya Faruk Chedi, and his Deputy, Abubakar Rabo Abdulkareen. The men, arrested in Kano, were immediately taken to Abudja where they were charged with conspiring to subvert the government by managing and assisting an unlawful society known as the Hisbah Board in Kano.

The Kano State Government responded by petitioning the Supreme Court of Nigeria, asking it to rule on the constitutionality of the Hisbah Law. The Federal Government then requested that the proceedings in the High Court of Abuja against the Kano Hisbah Corps Chairman and Deputy be stayed pending the determination of the suit at the apex court, because obviously the ruling of the apex court would impact the ruling of the Abuja High Court.

What Kano's Hisbah advocates were after was a Supreme Court ruling that would declare Hisbah lawful, and restrain the Inspector-General of Police from interfering in and disrupting the full implementation of the Law.

However, the Supreme Court ruled on 2 March 2007 that the case did not come under its jurisdiction as the Kano State Attorney-General's complaints were against the Inspector-General of Police and not against the Federation. Seven Chief Justices were unanimous in this and the case was struck out. (Full ruling see: Link 4)

In his ruling, Justice Mahmud Mohammed JSC notes that in 2005 the President of the Federation wrote a letter expressing concern about the Hisbah Board, to which the Governor of Kano State responded, allaying his fears. Subsequently, in July 2005 the President sent a delegation to Kano to investigate the situation. The Governor of Kano welcomed the delegation and reportedly extended full co-operation. The Governor of Kano also wrote to the President correcting the alleged misinformation being spread about the Hisbah Board.

As Justice Mohammed noted: "Not a single paragraph of the plaintiff's statement of claim accused the Federation of Nigeria or the Federal Republic of Nigeria of doing anything to the Hisbah Law of Kano State, the operation of the Hisbah Corps in Kano State or the arrest and detention of the named Commander General and Deputy Commander General of the Hisbah Corps in Kano State. On the face of the statement of claim of the plaintiff therefore, it is not difficult to see that there is no dispute whatsoever between Kano State in its status as a component unit of the Federation and the unit of the Federation itself which are the recognised parties when the original jurisdiction of this court is invoked."

In his judgment, Umaru Atu Kalgo JSC further elucidated the inaction of the Federal Government, adding that the President of the Federation "apart from writing the letter and sending a delegation on a fact finding mission to Kano, did not take or threaten to take any action against Kano State Government, or Hisbah Law, or any of its operators. There is no doubt that the President in his official capacity has the constitutional powers to address or deal with any security issue affecting or likely to affect Nigeria or any part thereof. He is the Chief Security Officer of this country and must be satisfied with any information on security before deciding whether to take action or not. In this case, the President did not take any action, apart from acquiring information from the Kano State Government, and therefore since he took no action at all, he is presumed to be satisfied with the explanation and information given to him."

In his judgment, Niki Tobi JSC noted that while there was clearly no dispute between the Kano State authorities and the Federal Government, Kano State was "asking for a declaration that the Kano State Hisbah Board Law No4 of 2003 and the Kano State Hisbah Board (Amendment) Law No 6 of 2005 are legal, lawful and constitutional", prompting Justice Tobi to ask: "Is the plaintiff not trying to jump the gun?"

And this is the point: the Federal Government has never challenged the legality of Shari'ah or Hisbah in the Supreme Court. Nor has it ever interfered with Shari'ah implementation. The Inspector-General of Police had acted in his own capacity when he made the claim that the Hisbah Corps was unconstitutional. The plaintiff's complaints were not against the Federation and so the Supreme Court had no jurisdiction. The plaintiff was left with the option of taking the complaint to the Federal High Court.

On 29 March 2007 the Daily Triumph reported that the presiding judge of the Abuja Court of Appeal, Justice Babs Kuewumi, had ruled the detention of Chairman of the Hisbah Corps, Yahaya Faruk Chedi, and his deputy, Abubakar Rabo Abdulkareen to be unlawful and ordered the Federal Government pay each of them the sum of N500,000 as compensation for their illegal detention. (Link 5)

RETURNING TO THE CPS CONFERENCE


The driving force behind the Centre for the Promotion of Shari'ah (CPS), Kano State Governor Malam Ibrahim Shekarau, told the Kano conference that implementation of the Shari'ah legal system gives "a higher meaning and direction to politics" (Link 3).

Using the language of human rights and religious freedom, Governor Shekarau implored the conference participants not to forget the plight of Muslims in the south. "While Muslims in the north are struggling and pushing for further expansion of Shari'ah in their respective states, those in the south have been denied the right to have their marriages, divorces, inheritance and other social activities to be officially conducted, regulated and resolved in accordance with the provision of Shari'ah Law. This is unfair and unacceptable and the kinds of this forum must find a peaceful way out for our brothers in the south, also. We all have a role to play to this predicament of our southern brothers."

The Daily Trust reports: "At the end of the conference, the participants agreed that for Shari'ah to work effectively in Nigeria, the problems of political will, constitutional constraint, disparity in the approaches adopted by the Shari'ah implementing states, attitudinal problems of some Muslims towards Shari'ah, among others, must be addressed.

"The conference therefore called for a joint effort by the Shari'ah implementing states to ensure that concerned Muslims reflected, and impediments to Shari'ah implementation are removed in the proposed constitutional review, among many other recommendations."

The fact that the conference participants lamented the "attitudinal problems of some Muslims" exposes the reality that Muslims are divided over Shari'ah. Not all Muslims want the provisions of Shari'ah forced upon them.

Abdulaziz Ahmad Abdulaziz, who reported on the CPS conference for LEADERSHIP NIGERIA (Abuja), sees the reincarnation of the Shari'ah debate as a battle for supremacy.

Abdulaziz reports: "Insiders confirmed to LEADERSHIP that major forces within the pro-Shari'ah camp are itching to take centre stage with the Shari'ah agenda. Apart from the need to seek more power for the Shari'ah legal code in the new constitution which some persons have expressed, others are setting out to play the Shari'ah ticket for political prominence. The cornerstone of this, LEADERSHIP gathered, is the political romance coming into the limelight between the former Zamfara State Governor, Ahmad Sani Yarima and the incumbent Kano State Governor, Ibrahim Shekarau." (Link 6)

While a dispute between the Senate and the House of Representatives over the leadership of the Joint Constitution Review Committee has thrown the constitutional review process into disarray, Shari'ah advocates are making the most of the opportunity to advance Governor Ibrahim Shekarau's presidential prospects. One such group, known as Shekarau Political Action (SHEPAC), believes that Governor Shekarau "could be a vehicle for the total emancipation of the people of Nigeria". (Link 7)

By Elizabeth Kendal

Links

1) Constitution of the Federal Republic of Nigeria --1999
http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm

Article 1. (1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(3) 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.

Article 10. The Government of the Federation or of a State shall not adopt any religion as State Religion.

Article 38. (1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Links cont.

2) Facing Death for Adultery, Nigerian Woman Is Acquitted
By Somini Sengupta. Published: 26 September 2003
http://query.nytimes.com/gst/fullpage.html?res=9900E0D9153DF935A1575AC0A9659C8B63

3) Shari'ah: Surmounting the tall obstacles
by Isa Sa'idu, Kano. 10 March 2009
http://www.dailytrust.com/index.php?option=com_content&task=view&id=5933&Itemid=17:testset

4) Supreme Court of Nigeria. Friday 2 March 2007. S.C. 26/2006
Between Attorney-General of Kano State (Plaintiff) and Attorney-General of the Federation (Defendant).
http://www.nigeria-law.org/Attorney-General%20of%20Kano%20State%20v%20Attorney-General%20of%20the%20Federation.htm

5) Rights abuse: Court orders FG pay Chedi, Rabo N1m
From Kabiru Yusuf, Abuja. 29 March 2007
http://www.triumphnewspapers.com/archive/DT29032007/right293207.html

6) Reincarnating The Shari'ah Debate?
By Abdulaziz Ahmad Abdulaziz. 10 March 2009
http://leadershipnigeria.com/news/138/ARTICLE/7971/2009-03-10.html

7) 2011: Inside Shekarau's 'presidential project'
By Suleiman M. Bisalla, 8 March 2009
http://www.dailytrust.com/index.php?option=com_content&task=view&id=5818&Itemid=53