Death Sentence on Blasphemy: The Legality of the Shar’iah Court’s Judgement

By Ola-lawal Mu’azzu Abolaji

Preamble:

Nigeria is an entity situated in a multifaceted society1 where cultural, religious and social propagation are largely welcomed and constitutionally endorsed2. This unassailable factor (of course) reflects further in our legal system so much so that it has bequeathed the country with a pluralistic legal system3. Hence, the influence of the cultural and religious practices (which includes Shari’ah) cannot be overshadowed in our legal system. Thanks to antecedents – from which various statutes were enacted. Two of which include the Kano State Shari’ah Penal Code Law and Shari’ah Penal Code that the Kano State Upper Shari’ah Court based its decision and sentencing. This article shall sail on the voyage of the legality of the court decision vis-à-vis the Nigerian legal system.

Shar’iah in Nigeria:
I must start by mentioning that, deducing from the various types of definition that has been proffered by scholars4, Shari’ah can simply be seen as the “totality of Islamic teachings and system”5 as revealed to the Prophet of Islam by way of Qur’an and Sunnah. Moving forward, it must be mentioned that although Shari’ah is practiced in Nigeria as part of our legal system, Nigeria only enjoys a sprinkle of it. Therefore, the effect of Islamic law in our system has been watered down to Islamic personal law6 which only covers questions of marriage (validity or dissolution), guardianship of infants, Wakf, gifts, will or succession, persons of unsound mind, and prodigal children, provided that all parties are Muslims. This is largely because the system erroneously believes that Islamic Law is also customary law since it is dominantly practiced in the Northern part of the country, thus is it being relegated to the level of the other customary laws.

Shariah Law

Jurisdiction of Shar’iah Court in Nigeria:
Just like blood in the body, jurisdiction runs in the veins and arteries of all litigation. Once this crucial factor is missing, the case is lifeless, baseless and whatever decision reached on same is void ab-initio7 since nothing can stand on nothing8. Hence, it is so crucial and pivotal in any adjudication. However, it is not for courts to summarily assume jurisdiction or confer same upon itself. It must have been statutorily or constitutionally vested9. Thus, Area courts and Shari’ah courts owe their jurisdiction to state Laws establishing them; same for the Upper Area and Upper Shari’ah courts since they are majorly courts of inferior records10. For instance, see section 2 of the Area Courts Edicts11, section 14 (2)12, section 15(1)13 inter alia. It should however be noted that by section 5 of the Shari’ah Court Laws14 of the Northern states, Shari’ah judicial System confers original jurisdiction in all civil and Criminal matters in the Shari’ah courts, while the Upper Area and Upper Shari’ah Courts enjoy dual jurisdiction as courts of first instance and also as appellate courts with power to entertain appeals arising from the decision of Area Court and Shari’ah court15.

Hence, to answer the query of whether the Shari’ah Court could have criminal jurisdiction or pronounce capital punishments, the above analysis suggests that in the affirmative; in so far as it is within the subject matters as identified by the establishing provisions, as in the Shar’ah Penal Code Laws. Salient is it to then mention that, jurisdiction is not novel to Shari’ah. That is, just like the conventional practice, Shari’ah courts also prioritize jurisdiction. It thus provides jurisdiction over territory, period, parties and subject matter16. While the subject matter jurisdiction is further classified into criminal (Huddud and Qisas offences) and Civil matters17. The courts in several instances have reiterated that subject matters must satisfy the condition of being within the competence of the court and must not carry any factor which hinders the court from exercising jurisdiction18

Legal Frameworks on Blaspheme in Nigeria:
Without doubt or reservation, it is unequivocal that the Nigerian legal system, having a multi-religious influence19 condemns the act of derogation against religions. However, the punishments obtainable are territorially different considering the differences in religion and cultural believes of the regions. Hence, while the Criminal Code which is strictly applicable in the southern part of the country condemns blaspheme as a misdemeanor and stipulates a two-year term as punishment20, the various codes applicable in the northern region especially the Shari’ah Penal Codes punishes the act of blaspheme with death21. Specifically, the Section 402 of the Kano state Shari’ah Penal Code Law provides as follows in its subsection (b):

“whoever by any means publicly insult by using words or expressions in written or verbal means of gesture which shows or demonstrate any form of contempt or abuse against the Holy Qur’an or any prophet shall on conviction be liable to death.”22

Section 402 of the Kano state Shar’iah Penal Code Law


A similar provision as this is contained in the Kaduna Shari’ah code23.
Hence, the Shari’ah Courts in these states which have adopted the Shari’ah Legal System have the unassailable jurisdiction over cases beyond personal law. And they may accordingly impose punishments pursuant to the provisions of the Shari’ah Penal Code Law including death, forfeiture, and destruction of property inter alia.24 25

Conclusion:
This write up seeks to settles the ongoing uproar and unrest among the general public as regards the legality of the Upper Shari’ah Court’s Decision on the Yahya Sharif’s case, who was sentenced to death for blaspheming the Prophet of Islam. Albeit, this write up refuses to discuss the correctness of the Court’s decision. This is because, as at the point of this write up, the transcript of the court’s judgment is yet to be made available to the public. Thus the ratio of the court is still yet to be ascertained. But this write up went as much as possible to answer the question as to whether Shari’ah court has criminal jurisdiction or pronounce death sentence in Nigeria. A painstaking perusal of the foregoing answers these questions in the affirmative. Hence, it is submitted that the populace should take caution, thread and opine softly on the issue, as the law is the law. Therefore, it would only be wrong for court or any entity for that matter to have acted, or done anything in contravention of the letters of the law.

References:

  1.  Ola-lawal Mu’azzu Abolaji: Islam in a Multifaceted Society: Nigeria as a case study. Al-maslaha Journal biennial Publication, 2017-2019 Edition
  2. See section 10 of the constitution, Federal Republic of Nigeria, (CFRN) 1999 as altered.
  3. See The various works of A. A. Oba, particularly Lawyers, Legal education and the shari’ah court in Nigeria; a paper presented at the common wealth legal education association conference held at Sheraton hotel, Abuja between 28-30, 2000
  4. See Hammudah ‘Abd al-‘Ati in The Family structure of islam, (Kuala Lumpur, Malaysia: The Other Press, 2008) p. 13; M. A Ambali: The Practice of family law in Nigeria., p.2.; S. O Muhammed: Valid Claims and Competent plaintiffs Under Islamic  Law, p.6.
  5. See Hon. Justice Abdullateef Kamaldeen: An overview of the jurisdiction of shari’ah courts: a paper presented at the workshop  for Area/Shari’ah/Customary court  judges, Directors and Inspectors of Area/Shari’ah/ customary courts.
  6. See section 262 and 277 CFRN 1999 as altered.
  7. See Madukolu v. Nkemdelim (1962) 2 SCNLR 341
  8. See UAC v. MacFoy (1961) 3 W. L. R. 1405
  9. Hon. Justice Abdullateef Kamaldeen: An overview of the jurisdiction of shari’ah courts: a paper presented at the workshop  for Area/Shari’ah/Customary court  judges, Directors and Inspectors of Area/Shari’ah/ customary courts.
  10. That is they are not constitutionally established
  11. Area courts edicts, 1967
  12.  ibid                               
  13.  ibid
  14.  Shari’ah Court Laws.
  15.  See section 53 (2) of The Area Courts Law, 1967
  16. See Dr. Abdulkareem Zaydan: Nizam Al-Qada’ fi Ash-shari’ah Al-Islamiyyah (Oman: Makatabatul Batha’ir, 1989), pp. 46-47
  17. Hon. Justice Abdullateef Kamaldeen: An overview of the jurisdiction of shari’ah courts: a paper presented at the workshop  for Area/Shari’ah/Customary court  judges, Directors and Inspectors of Area/Shari’ah/ customary courts.
  18.  See Mantari V. Dan Galadima & ors (1993) NWLR (pt. 287) 266
  19. This submission disagrees with the notion that Nigeria does not give regards to religion, hence, it is a secular state rather, it is a state which accommodates various forms of religion, practices and propagations thus making it multi-religious.
  20. See section 204 of the Criminal code.
  21. See the Shari’ah Penal Codes of various Northern states, such as Kano, Kaduna inter alia
  22. Section 402 Shari’ah penal code Law of Kano state; see also the explanation note under the provision.
  23. Kaduna Shari’ah Penal code law.
  24. Hon. Justice Abdullateef Kamaldeen: An overview of the jurisdiction of shari’ah courts: a paper presented at the workshop  for Area/Shari’ah/Customary court  judges, Directors and Inspectors of Area/Shari’ah/ customary courts.
  25. See also Hauwa Ibrahim and Princeton N. Lyman: Reflections on the New Shari’ah Law in Nigeria, pp. 3-4

One thought on “Death Sentence on Blasphemy: The Legality of the Shar’iah Court’s Judgement

pls., i will sincerely appreciated your views about the above excerpt in the comment box below.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s