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…Dangerous Proposal to expand the scope of Islamic Law beyond Personal Law under the Constitution
Introduction
On behalf of the Civil Society and millions of ordinary Nigerians, we commend the entire National Assembly for the on-going efforts to alter the Constitution with a view to strengthening the judiciary and improving the administration of justice. However, we reject vehemently the attempt to elevate the status of Islamic Law under the secular or better still, multi-religious Constitution of the Federal Republic of Nigeria.
We hereby call attention to the dangerous proposals in the Senate and House of Representatives to alter Sections 262, 277 and 295 of the extant Constitution of the Federal Republic of Nigeria,1999 (As amended).
Proposed Amendment of Sections 262 and 277 of the Constitution as contained in Constitutional Amendment Bill No: 24: Judicial Reform Proposals.
Under the extant Constitution, Section 262(1) and 277(1) provide respectively that, “The Sharia Court of Appeal shall, in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law”
“The Sharia Court of Appeal of a state shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal law which the Court is competent to decide in accordance with the provisions of subsection (2) of this section.”
The above provisions only permit Islamic personal law in civil proceedings. This is clearly defined in sections 262(1) and (2) and 277(1) and (2). All references under these provisions are to “Islamic personal law.”
The Constitutional Amendment Bill No 24: Judicial Reform Proposals before the senate contains a bill titled: A Bill for An Act to Alter the Provisions of the Constitution of the Federal Republic of Nigeria, 1999 to further Strengthen the Judiciary for Speedy Dispensation of Justice; and for Related Matters
Clause 11 of the said bill contains a proposal for the alteration of section 262 of the Constitution. It reads thus, “Section 262 is altered by substituting for subsection (1), a new subsection “(1) – The Sharia Court of Appeal of the Federal Capital Territory shall, in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, exercise such appellate and supervisory jurisdiction in civil proceedings where the subject matter of the claim is on or relates to Islamic law”
Clause 14 of the said bill, contained a proposal for the alteration of section 277 of the Constitution and its substitution with a new section “277” which reads thus “section 277(1)- The Sharia Court of Appeal of a state shall, in addition to such other jurisdiction as may be conferred upon it by the Law of the state, exercise such appellate and supervisory jurisdiction in civil proceedings where the subject matter of Islamic Law.
The Danger in the Proposed Amendment
The courts have in several cases interpreted the extent of the jurisdiction of the Sharia Court of Appeal. Some of the cases include Magizawa v. Magiziwa (2017) LPELR-42133(CA), Abdulsamad & Ors v. Abdulahi & Ors (2015) LPELR-40746 (CA) and Magaji v. Matari (2000) 2 NSCQR 636. And these judicial authorities are to the effect that the Sharia Court of Appeal does not have jurisdiction to hear any matter outside Section 262 (1) & (2) (a-d) and 277 (1) & (2) (a-d) of the Constitution of the Federal Republic of Nigeria (1999) as amended.
It is our view that the proposed amendment will elevate Islamic law to the status of general law. Once the word “personal” is removed from Sections 262 and 277 of the Constitution, it opens the door for wholesale importation of Sharia Law including Sharia Criminal Law in the FCT or any part of the federation. The National Assembly will be empowered to pass an Act of general application introducing Sharia Criminal Law which will not require a Constitutional Amendment since the only impediment which is the word “personal” would have been removed from the Constitution. The proposed amendment being considered by the House of Representatives, recommends the deletion of all references to “Islamic personal law” both in section 262 (1) and (2) and section 277 (1) and (2).
No Justification to Replace “Islamic Personal Law” with “Islamic Law”
There is no justification for replacing the clause “Islamic personal law” with “Islamic Law”. The Constitution is secular, or better still, multi-religious. Thus, there is no justification for elevating the whole of Islamic Law into the Constitution by making it a general law.
The amendment will give the Sharia Court of Appeal unlimited jurisdiction to entertain all kinds of matters both civil and criminal using Islamic Law. It will interfere with the jurisdictions of both the Federal High Court and the State High Courts. The Appellate jurisdiction of the High Courts to hear a criminal appeal from the Area Court would be eroded if the Sharia Court of Appeal is given this unlimited jurisdiction to entertain all forms of appeals brought under Islamic law. In line with the foregoing, we propose that the provisions of the extant law (the Constitution of the Federal Republic of Nigeria (1999) as amended) be retained.
Attempt to Weaken the Judiciary
Section 295 of the Constitution provides for reference of questions of law from lower courts to higher courts (Case stated). The essence of case stated as contained in section 295 of the Constitution is to give the lower court an opportunity to refer a particular issue to the higher court for the decision which will aid the lower court in deciding the case before it and such referral must be a question relating to the interpretation or application of the Constitution.
The constitutional amendment proposal before the House of Representatives which seeks to delete section 295 of the Constitution is, therefore, a dangerous move to weaken the judiciary; such will open the door for conflicting decisions at the lower courts. Thus such a proposal should be rejected and the extant provision retained.
Conclusion
The alterations suggested in respect of sections 262, 277 and 295 0f the 1999 Constitution will weaken the judiciary and give unlimited jurisdiction to the Sharia Court of Appeal making it possible for the court to decide all matters including criminal appeals, civil appeals which are not within the meaning of Islamic Personal Law in accordance with Islamic law. It will usurp the jurisdictions of the State High Courts, Federal High Courts, FCT High Court and the National Industrial Court. If it is allowed to sail, it will create room for every subject matter to be brought under the jurisdiction of Sharia court, and by extension, the Sharia Court of Appeal. This will remove the safeguards put in place to protect a non-Muslim from being subjected to the jurisdictions of the Sharia Court of Appeal and by extension, the Sharia Courts. There is no justification for this. The proposed alterations should be rejected in their entirety and the extant law on their subject retained.
Signed: Prof Yemi Akinseye-George, SAN, President, Centre for Socio-Legal Studies (CSLS)
(barristerng.com)
