Reflections on the

New Sharia Law in Nigeria

Prepared in cooperation with
the Africa Policy Studies Program at the Council on Foreign Relations

Hauwa Ibrahim
Humphrey Fellow, American University Washington College of Law

Princeton N. Lyman
Director of Africa Policy Studies, Council on Foreign Relations

June 2004
 CONTENTS

Foreword ii
Background and Context 1
The Nigerian Legal System 2
The Sharia Penal Code Law SPCL (Adopted by twelve states since 1999) 3
Two Illustrative Cases 8
The Amina Lawal Case 8
The Case of Ahmadu Ibrahim and Fatima Usman (The Couple) vs The State 15
The Need for Legal Reform 19
Nigerias Human Rights Obligations 27
Strategy for Legal Review and Reform 30
Conclusion 34
 FOREWORD

Beginning in 1999, twelve states within the Federal Republic of Nigeria adopted Sharia penal
law codes in addition to their longstanding systems of Sharia personal law. The spread of
Sharia penal law in Nigeria attracted international attention. Nigeria is Africas most populous
country, with as many as 130 million people. There are as many Muslims in Nigeria, around
sixty-six million, as in Egypt. The introduction of Sharia penal law in a country that had not
done so throughout its independence since 1960 raises questions about the role of Islamic
fundamentalism, anti-Western attitudes, and stability not only in Nigeria but in West Africa as
a whole.
Within Nigeria, there were mixed reactions: the decision to adopt Sharia penal law
appeared tremendously popular among Muslims in those states, who responded to both deeply
held religious views and popular frustration with growing crime and other aspects of social and
economic decline. On the other hand, Nigerian Christians living in those states were alarmed,
fearing their rights would be restricted and that they would even be driven out of the area.
Christians in the south viewed the decision as a growing threat to Nigerias largely secular
government. The imposition of Sharia penal law aggravated historic Muslim-Christian tensions
in the country, with instances of riots and related religiously based violence in the northern cities
of Kano and Kaduna and later, though for different reasons, in Jos.
There were concerns about the human rights implications of the penal codes in Nigeria
and around the world. Several cases, in which women were sentenced to death for adultery,
attracted international attention.
Hauwa Ibrahim is a Nigerian lawyer and a student of Nigerian and international law. She
worked as a defender in some of the most widely followed Sharia cases. In 20032004 Ms.
Ibrahim was a Humphrey Scholar at the American University School of Law; during the spring
of 2004 she and I undertook a study to understand the structure of Sharia law in Nigeria, its
relationship to Nigerian federal law, and how it was applied to two of Ms. Ibrahims prominent
cases. The following account provides special insight into the legal battles, the contending legal
concepts, and the issues at stake in Nigerias struggle with deeply contending views of how to
organize a multiethnic, multireligious society. Ms. Ibrahims sensitivity and respect for the

ii
Quran and the principles of Islamic tradition are especially important parts of this account,
specifically regarding how the issues of legal reform, within that tradition, can be advanced.
The report goes into considerable detail on two prominent cases: that of Amina Lawal
and that of Ahmadu Ibrahim and Fatima Usman. There is also a detailed discussion of Nigerian
federal law. This may be more than the general reader may wish, but the thrust of the arguments
are clear. The details are important for legal scholars. At the end of the report Ms. Ibrahim lays
out an agenda of legal reforms that she and her colleagues in Nigeria will be pursuing in the
coming years. She provides valuable advice for donors and the international community on how
to support such reforms within the context of Nigerian sensitivities and realities. This is an
important guide concerning the questions of religion and state, and the ways in which Muslim
and non-Muslim societies can relate effectively with mutual respect.

Princeton N. Lyman
Ralph Bunche Senior Fellow and
Director of Africa Policy Studies
Council on Foreign Relations

iii
 BACKGROUND AND CONTEXT

Nigeria today has a population of 132 million people. It is a country of great diversity having
many ethnic, linguistic, and religious groups living within its borders. Even today, after many
years with a single political border, Nigeria claims between 250 and 400 ethnic groups
(depending on how they are defined), speaking approximately 400 languages. Of these, the
Hausa are the dominant group in the northern area, followed by the Kanuri; the Nupe and Tiv are
predominately in the middle region; the southern area is fragmented, but the major groups are the
Yoruba, concentrated in the southwest, and the Igbo in the southeast. In 1990, 80 percent of
Nigerias population lived in villages. 1
Nigerian society has had a history of tolerating religious pluralism. The far northern areas
of Nigeria traditionally have been predominately Muslim, but the middle region is a mixture of
Muslim and Christian. The south has had a long-standing Christian presence, featuring Protestant
and Africanized churches such as the Aladura movement among the Yoruba and Roman Catholic
among the Igbo. It also has a sizeable Muslim population. Especially in rural areas, traditional
and indigenous religious practices exist, characterized by worship of primordial spirits, dead
ancestors, and spirits of places. 2
Notwithstanding the colonial rule of this large geographic area and the efforts to create a
modern nation-state,3 the north and the south have distinct characteristics and the regions
continue to encourage their unique identities and characteristics. North and south Nigeria
developed under colonial constitutions that were adopted in 1946, 1951, and 1959, but Nigeria
became an independent nation in 1960 when Great Britain granted it its independence. The first
republic is generally believed to have begun with this grant of independence, but the nation did
not technically become a republic until October 1, 1963.4

1
Library of Congress: Supra.
2
Supra.
3
Nigerian Political History: http://www.onlinenigeria.com/politicalHistory.asp
4
Library of Congress Country Study: Nigeria:
http://lcweb2.loc.gov/cgibin/query/r?frd/cstudy:@field(DOCID+ng0011

1
 THE NIGERIAN LEGAL SYSTEM

The Nigerian legal system has been greatly influenced by English law. Absent a body of law of
its own creation, Nigeria inherited the British Common Law and applied it until 1999. However,
the Nigerian legal system is somewhat complex and has several sub-systems. At the national
level, the federal legal system is applicable throughout the country. At the state level, each state
has its own legal system. In some states, Sharia and customary laws are the applicable laws.5
The Federal Constitution establishes the norm for the Nigerian legal system. Other
subsidiary laws include the criminal law, administrative law, and revenue law, etc. The sources
of Nigerian law include Nigerian legislation, consisting of the adopted English law, the common
law, the doctrines of equity, statutes of general application in force in England on January 1,
1900, and statutes of subsidiary legislation on specified matters.
Nigerian legislation also includes statutes enacted by the legislature (laws enacted by
both the federal and state legislatures),6 and also ordinances which derive from other legislation
that constitutes customary law (customs that people in a certain community hold as being
binding and recognized as law by them). There are two ways of establishing customary laws
before the courts: by raising it to the court and by judicial notice of obvious facts that do not
need to be proven.7
The Nigerian judicial structure has numerous original jurisdiction and appellate courts.
The highest court is the Supreme Court. It has original jurisdiction in any dispute between the
federation and a state or between states if and in so far as that dispute involves any question
(whether of law or fact) on which the existence or extent of a legal right depends.8 It can hear
appeals from the court of appeal.
The court of appeal has exclusive jurisdiction to hear and determine appeals from the
federal high court, the High Court of the Federation Capital Territory (Abuja), high court of a
state (Sharia), Court of Appeal of the Federal Capital Territory (Abuja), Sharia court of appeal
of a state, and customary court of appeal of a state. Appeals can also be brought from decisions
of court martial or other tribunals as may be prescribed by an act of the National Assembly.

5
Motherland Nigeria: http://www.motherlandnigeria.com/legal.html.
6
The schedule to the 1999 constitution indicates clearly the areas each of them could legislate.
7
Supra.
8
Section 232. (1) Nigerian Constitution.

2
 The high court of a state has jurisdiction to hear and determine any civil proceedings in
which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation,
or claim is an issue or to hear and determine any criminal proceedings involving or relating to
any penalty, forfeiture, punishment, or other liability in respect of an offence committed by any
person.
Sharia courts of appeal 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 the Nigerian Constitution, which states,
The Sharia Court of Appeal shall be competent to decideany question of Islamic personal
law regarding a marriage relating to family relationship or the guardianship of an infant;any
question of Islamic personal law regarding a wakf, gift, will or succession where the endower,
donor, testator or deceased person is a Muslim;where all the parties to the proceedings, being
Muslims, have requested the court that hears the case in the first instance to determine that case
in accordance with Islamic personal law, any other question.9
There are a host of other courts, such as the customary court of appeal, magistrate court,
district court, customary and area court, juvenile court, specialized courts for particular matters,
and the military tribunals.

THE SHARIA PENAL CODE LAW SPCL

(Adopted by twelve states since 1999)

Twelve states, primarily in the north, have adopted the new Sharia legal system: Zamfara,
Jigawa, Bauchi, Gombe, Kaduna, Katsina, Yobe, Niger, Kano, Sokoto, Kebbi, and Borno. The
Sharia courts in these states have jurisdiction over several new offences beyond personal law,
including theft, unlawful sexual intercourse, robbery, defamation, and drinking alcohol. The
Sharia courts may impose punishments, pursuant to the provisions of the Sharia Penal Code
Law (SPCL), that include death; forfeiture and destruction of property; imprisonment; detention
in a reformatory; fine; caning (flogging); amputation; retaliation; blood money; restitution;

9
Section 277 of the 1999, Nigerian Constitution.

3
reprimand; public disclosure; boycott; exhortation; compensation; closure of premises; and
warning, among others.
The adoption of the SPCL attracted international attention as well as controversy within
Nigeria. One concern is that the SPCL violates basic human rights, and human dignity,
especially regarding equality before the law, equal protection of the law, torture, or degrading
and inhuman punishment. Within the Nigerian legal system, the SPCL raises questions about
certainty of law, supremacy of law, separation of state and religion, and strict standards of
evidence and proof.
Many different reasons have been advanced for the interest in and implementation of
Sharia in northern Nigeria. One explanation is that the Nigerian federation is becoming more
decentralized, and part of the decentralization is taking the form of cultural self-determination.
Another explanation for the rise of Sharia militancy is to regard it as a political bargaining
chip. Since 1999, northern Nigeria has seen a decline in its share of national office, senior
military positions, and, in some respects, the economy. As the north loses political influence in
the Nigerian federation, it is asserting new forms of autonomy to challenge the federal
government and to prepare for a national debate over the allocation of power and resources. A
third quite different interpretation is that the rise of Sharia militancy is a consequence of
globalization. One of the repercussions of globalization is its arousal of cultural insecurity and
uncertainty about identities worldwide. Indeed, the paradox of globalization is that it
simultaneously promotes enlargement on an economic scale and stimulates fragmentation on an
ethnic and cultural scale.10
Finally, the introduction of the new Sharia in the Nigerian legal system has been
attributed to the rising influence of fundamentalist groups.11 The awakening of stronger
Islamist tendencies in northern Nigeria is closely linked to the successful revolution of the
Iranian people against the Pahlavi dynasty over two decades ago. The emergence of an Islamic
government under the leadership of the Ayatollah Khomeini provided inspiration to Muslims
across the globe and in particular the youth, who now saw in Islam a viable alternative to the bi-

10
Ali A. Mazrui, Shariacracy and Federal Models in the Era of Globalization: Nigeria in Comparative Perspective:
Written for presentation at the International Conference on Restoration of Shariah in Nigeria: Challenges and
Benefits, sponsored by the Nigeria Muslim Forum, and held in London, England, on April 14, 2001. The first half
of this paper has borrowed from Mazruis previous writings on the Sharia in Africa.
11
Sanusi Lamido Sanusi: Fundamentalist Groups And The Nigerian Legal System: Some Reflections:
http://www.whrnet.org/fundamentalisms/docs/doc-wsf-sanusi-nigeria-0311.rtf.

4
polar system of capitalism or communism. Various groups in different parts of the world shouted
the slogans of the Iranian revolution, including neither east nor west, Islam only. In the
heartlands of Sunni Islam, a new rhetoric soon emerged aimed at counteracting the Shiite threat
posed by Iran but which, incidentally, created a new corpus of Sunni fundamentalists who were
determined to reproduce an Islamic revolution, but one based on the Sunni tradition of keeping to
the path of the pious forebears (salaf as-salih).12
The Muslim Brothers in Nigeria (also known as the Muslim Brothers), which had
earlier started as a Sunni Islamic sect, were inflamed by the success of the Iranian people and
many joined Ibrahim El-Zakzaky, an economics student at a northern Nigeria university, in his
struggle for an Islamic State in Nigeria. The Muslim Brothers close association with Iran, and
the fact that several of their members were given scholarships by the Iranian government to
study at the city of Qom, led inevitably to greater influence from Shiite doctrines. The leader, El-
Zakzaky, was, himself, soon to be seen as a Shiite, a fact that led to rebellion and fragmentation
in the movement. As a result, a splinter group was formed, led by some of El-Zakzakys most
loyal supporters, including Abubakar Mujahid (in Zaria), Aminu Aliyu Gusau (in Zamfara) and
Ahmad Shuaibu (in Kano). This group maintained that its disagreement with Zakzaky was purely
doctrinal in that they rejected Shiite theology. They remained committed, however, to the
revolutionary process of Islamization while remaining faithful to Sunni orthodoxy.13
Ibrahim Suleiman,14 an advocate of the SPCL, suggested that beyond the change of
guards after Nigerian independence in 1960, nothing had really changed. Muslims, he argued,
are yet to be free from an imposed British legal system and there is hostility towards anything
Islamic. The Muslims demand for the Sharia, according to Suleiman, has been adamantly and
shamelessly refused and Islam, its adherents and institutions, are daily objects of ridicule by the
mass media and are the focus of surveillance by security agencies. He further opined, What we
have today is not the great nation that government officials tell us about on official occasions but
a group of people of diverse worldviews and cultures lacking any serious cohesion; an irksome
and arrogant Christian minority; an alienated and discontented but unyielding Muslim majority; a
few secularized elite filling vacancies created by colonialism; all living in a colony whose

12
Supra.
13
Supra.
14
Ibraheem Sulaiman: The Islamic Political System and the Political Future of Nigeria. A paper presented to the
National Conference on the Political Future of Nigeria organized by the Muslim Forum, Ahmadu Bello University
from August 1-3, 1986 at Kongo Conference Centre, Zaria.

5
economy is wholly controlled by western imperialism.15 He suggested the importance of the
struggle was a need for independence to live according to our conviction, values and culture;
the independence to operate, the socio-economic, legal educational and political systems we
believe in, understand and respect; the independence to associate with who we wish, how we
wish and when we wish.16
Professor Auwalu Yadudu,17 a Harvard trained lawyer and an advocate of the SPCL,
opined that Section 38 of the 1999 Constitution guarantees freedom of religion. He explained
that a Muslim firmly believes that his submission to the Will of Allah is inchoate if he were to
choose or be made to follow some part of His, Allahs, injunctions, the personal law, and
abandon others, the penal system. The Sharia, defined as the Path which embodies the totality of
Islamic guidance, seeks to govern every aspect of a believers life. Islam, being a complete way
of life for the believers, knows not the dichotomy so much flaunted by non-Muslims, especially
Christians, that religion is a private affair of the individual. To the best of his belief, therefore, a
Muslim conceives of his faith as demanding a total submission to the Sharia. To a Muslim,
freedom of conscience and to profess a religion of his choice alone or in company of others
amounts to not much if a pre-condition, which by the way may be perfectly acceptable to
followers of other religions, is stipulated for him.18
Professor Yadudu further argues that Sections 4, 6, 277, and the Second Schedule to the
1999 Constitution, establish the right for new Sharia courts, in addition to existing ones, and
expand their jurisdiction and the right to enact laws that draw inspiration from religious and non-
religious norms. In conformance with these provisions, the SPCL represents an Islamic penal
system, enacted in a written law and with specific punishments prescribed. He argued further that
the Nigerian Constitution did not declare Nigeria to be a secular state and that the initiatives of
the states implementing the Sharia cannot be said to have violated Section 10 of the Constitution
which prohibits any state from adopting any religion as a state religion. Furthermore, by
proposing an expanded application of the Sharia, the governors are fulfilling a campaign
promise and also meeting the yearnings and aspiration of the electorate. Professor Yadudu,

15
Supra.
16
Supra.
17
Professor Auwalu Hamisu Yadudu, Benefits of Shariah and Challenges of Reclaiming a Heritage, The Nigerian
Muslim Forum, UK Holding at: Commonwealth Conference Centre, Commonwealth Institute, Kensington High
Street, London, April 14, 2001 (20th Muharram 1422 A.H.)
18
Supra.

6
contended that to suggest review or reform of the Sharia will attract a severe rebuke from
the Muslim followers who will see the effort as, at best, revisionist in character or, at worst, an
attempt to meddle with Allahs injunctions.

7
 TWO ILLUSTATIVE CASES

THE AMINA LAWAL CASE

A Nigerian woman, Amina Lawal gave birth to a child out of wedlock and was charged and
convicted of zina (adultery), under the Sharia Penal Code Law (SPCL) of Katsina State. The
lower Sharia court found Ms. Lawal guilty as charged and sentenced her to death by stoning.
According to SPCL, Section 41, zina includes adultery and fornication. Chapter VIII,
Section 126, defines zina as, Whoever, being a man or woman fully responsible, has sexual
intercourse through the genital of a person over whom he has no sexual rights and in
circumstances in which no doubt exists as to the illegality of the act, is guilty of the offense of
Zina. Section 127 provides for the punishment of zina: Whoever commits the offense of Zina
shall be punished as with Caning of one hundred lashes if unmarried, and shall also be liable to
imprisonment for a term of one year; or (b) if married, with stoning to death. The trial court in
this case ruled that Ms. Lawals conviction was based on her confession and the fact that she was
pregnant out of wedlock. These are two of the grounds on which adultery can be proven in
Sharia law, provided the procedures for establishing the validity of the grounds are properly
adhered to. The principal question presented was: What procedural due process rights are
available to an accused person under the SPCL?

Arguments in the Amina Lawal Case

Ms. Amina Lawal was convicted by the Sharia trial court at Bakori in Katsina State (Ms.
Lawals home state) on March 20, 2002. The only evidence was an alleged confession and the
fact that she was pregnant out of wedlock. Sharia law accepts these two facts as proof of
adultery. The lower Sharia court sentenced Ms. Lawal to death by stoning based solely on this
evidence.
The SPCL of Katsina State, permits appeals to an upper Sharia court. The lower courts
judgment was appealed to the Funtua Upper Sharia Court, but the appeal was denied. On appeal
to the Sharia court of appeal in Katsina, however, judgment was rendered in favor of Ms. Lawal.
The principal arguments focused on procedural rights of the accused under the Sharia
Penal Code Law. Ms. Lawal had no legal representation at her trial. Legal representation is

8
provided for under the provision of the Sharia Penal code law as well as under Section 36 (1) of
the Nigerian Constitution. Second, a defendant charged with zina must be tried before a panel of
three judges, as provided for by the Sharia Court law of Katsina, Section 4 (1). In this case, a
single judge heard the case and rendered judgment. Third, the law under which Ms. Lawal was
being tried was not in effect at the time the alleged zina was committed. The trial court record
indicated that Ms. Lawal was arraigned on January 18, 2002, that her baby was nine days old on
the date of arraignment, and that the baby was born out of wedlock. The SPCL of Katsina State
was promulgated on June 20, 2002, nearly five months after the arraignment. Assuming no
evidence to the contrary and a normal pregnancy of a nine-month gestation period, Ms. Lawal
could not have committed the alleged offense because there was no law of zina in the state when
the alleged zina occurred.
In the Funtua Upper Sharia Court, counsel for Ms. Lawal argued that the charge was
vague and that pregnancy of an unmarried woman can not be conclusive proof of zina. Counsel
argued other procedural due process issues, for example, that the word zina (an arabic word) was
not explained to Ms. Lawal in the language she understood; that Ms. Lawal was not given the
opportunity to call witnesses; that under Islamic law in such cases of zina, where there is doubt,
it should be settled in favor of the accused; that the trial of Ms. Lawal was not conducted in
accordance with the law; and that the police do not have authority to arrest and prosecute a
person charged with zina.
Ms. Lawals counsel invoked the Nigerian federal constitutional guarantee of a fair trial,
argued that the alleged confession was given under duress, and that the burden of proof in capital
offenses is on the prosecution.
Counsel for the state countered all the arguments and asked that the judgment of the
upper Sharia court be upheld. However, the state counsel added that Sharia is for justice and
that if the court had any doubt about the evidence or procedure, then the court should resolve the
case in favor of Ms. Lawal.
On September 25, 2003, the Sharia Court of Appeal of Katsina State, rendered its
opinion and a judgment that settled a number of fundamental issues. The Honorable Khadi of the
court, reading the concurrent judgment of three others, ruled that the police should not have
charged Ms. Lawal with the offense of zina because it was not within their constitutional
responsibility. The court also decided:

9
 1.) That, for an offence of zina to be proved, both accused persons must be seen performing
the act of zina openly by at least four responsible male adults;
2.) That discharging the man accused of being with Ms. Lawal without establishing that four
witnesses had seen the act of zina, was an error and cannot be sustained before the
court;
3.) That since Ms. Lawal (first accused) was not the wife of Yahaya Mohammed (the second
accused) at the trial, under the Sharia Law, she cannot be charged with adultery;
4.) That anyone who accuses another of zina and cannot prove it should be flogged forty
times;
5.) That where four witnesses have not been established, the accused must be discharged and
acquitted;
6.) That it was an abuse of the Sharia Penal Court Law for a judge to sit alone at the trial
when the law provided for a three judge panel;
7.) That the confession of the appellant was not valid;
8.) That the trial court failed to give Ms. Lawal the opportunity to withdraw or recant her
confession at least four times;
9.) That where one accused person allegedly confessed and the second accused refused to
confess, then that cannot be zina;
10.) That the trial court record concerning Ms. Lawals confession was unclear, and where
such a doubt existed, doubt must be resolved in the favor of the accused person. The
court recounted the entire story of Mais (a person that allegedly committed zina) to
buttress this point;
11.) That the burden of proof of zina is borne by the prosecutor and not the accused. Ms.
Lawals pregnancy and childbirth could have been the product of the former husband;
12.) That an accused can withdraw a confession at any time before judgment and the trial
court must accept this; and
13.) That withdrawing or recanting a confession is not punishable.

The Sharia appeal court stated that Islam and Sharia provide for freedom, protection
and justice, and for all the reasons presented above, the court dismissed all the charges against
Ms. Lawal.

10
Defense Strategy
This case was successfully tried entirely under Sharia law before Sharia courts. It is important
for counsel representing an accused under Sharia to understand the dynamics of the Sharia
legal system itself, the court procedures, the judges understanding and perceptions of the issues,
and the lawyers attitude and understanding of the people, the culture, the traditions and values.
Since new Sharia (SPCL) was a law that had just been adopted in some northern states of
Nigeria at the time of this proceeding, jurisdictional issues and lack of procedural rules presented
unique challenges to counsel.
Section 277 of the Nigerian Constitution of 1999, which provides for the jurisdiction of
the Sharia court of appeal, appears to limit the jurisdiction of that court. It states that the 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 the question of Islamic personal Law which the Court is competent to
decide in accordance with the provisions of subsection (2) of this section. (Emphasis added.)
Subsection 2 defines issues of Islamic personal law as including gifts, successions, wills,
donations, and issues regarding infants and guardianship of a Muslim who is physically or
mentally deformed.
The absence of clear, constitutionally adequate procedural rules for the Sharia courts
with regard to penal law posed a serious challenge. The Sharia (area courts) had functioned for
over four decades with jurisdiction on civil matters (Islamic personal law). Given the nature of
the punishment, however, applying civil law procedure for arguing this case would not have been
appropriate. (These are, therefore, issues of law that legislators should address in the near future.
It may have to be one of the issues lawyers in emerging application of new laws will have to
learn more about also.)
It is a recognized principle that international law can be applied to national laws,
particularly in the context of protecting human rights. Within this general framework, remedies
exist under the Sharia law respecting the rights of the victims, respect for the rule of law and
due process. Nigeria is a signatory to a number of relevant international instruments,
conventions, treaties and protocols, including the Universal Declaration of Human Rights;
International Covenant on Economic, Social and Cultural Rights; International Covenant on
Civil and Political Rights; and the Optional Protocol to the International Covenant on Civil and

11
Political Rights. Others are: United Nations Declaration on the Elimination of All Forms of
Racial Discrimination; International Convention on the Elimination of All Forms of Racial
Discrimination; Declaration on the Elimination of All Forms of Discrimination against Women;
Convention on the Elimination of Discrimination against Women; Declaration on the
Elimination of Violence against Women; Convention on the Political Rights of Women; and the
Optional Protocol to the Convention on the Elimination of Discrimination Against Women,
among others, all of which may be tools to create positive change for humanity in our
communities.
By the same token, the top priority in this case was saving a human life through the law.
Counsels successful defense relied on learning and working within the framework of the Sharia
law while also applying principles of human rights, laws of the Federal Constitution, and
International law. It was thus essential also to rely on local custom and tradition. The Holy Quran
and Islamic authoritative sources like the Hadith and the Sunnah of the Holy Prophet (SAW),
Ijmah, Qiyas, Ijtihad and A-Urf were essential resources. The provisions of the Nigerian
Constitution governing fundamental human rights and fair trials were also introduced to ensure
that the rule of law existed also under the SPCL. The strategy was intentionally non-
confrontational to garner the trust, respect, and confidence of the judges.
Although the culture, tradition, and values do not accept a woman having a child out of
wedlock, the lawyers concentrated on protecting and promoting respect for the rule of law and
due process of law. The temptation was always high to join issue with those who accuse defense
lawyers of disrespecting values, culture and tradition. But the temptation was resisted to the
benefit of the defendant.

Importance of This Case

This case was a victory for law, human rights, human dignity, and freedom. It also established
numerous important precedents that will help ensure procedural and substantive due process
rights to persons accused of crimes under the law of Sharia.
The case established that all judicial proceedings, including the proceedings before the
Sharia courts, must comply with the principles of the Constitution of Nigeria. The court defined
the role of police as maintaining law and order, and limited their authority of arbitrarily search
and arrest of individuals who may have committed adultery. The court concluded that the

12
prosecutor always bears the burden of proof, not the accused, a fundamental tenet of justice and
the rule of law.
Beyond the courtroom, the considerable national and international attention to the case
had several positive effects. Through the media, the international community became aware of
the process and the potential for injustice. The case and in particular the final decision
encouraged human rights movements within Nigeria and beyond. It sensitized lawyers and
judges and helped to clarify how the new Sharia legal system related to the United Nations,
other Africans, and international human rights laws. It also provided a model for using existing
tools and laws to advance human rights within national societies. The case highlighted the need
to develop regional and international coalitions to advance issues of equality and non-
discrimination before the law. It enhanced the role of Nigerian nongovernmental organizations
(NGOs) in promoting human rights and increased their access to national and international
human rights institutions and processes, while increasing their accountability and transparency.
The case called attention to massive and urgent human rights issues, in particular discrimination
against women, and gave greater focus and attention to issues of economic, social, and cultural
rights as they relate to vulnerability, poverty, illiteracy, powerlessness and voicelessness of these
women.

Remaining Questions
The Amina Lawal case raised, but did not decide defintively, a number of issues relating to the
supremacy of law, including questions about certainty of law; separation of powers; respect for
human rights and human dignity; Sharia as state legislation and its application as criminal law;
the separation of state and religion; cruel, inhumane, or degrading punishment; equality and non-
discrimination before the law; and the plurality of legal systems.
Other questions raised include: What happens when the international spotlight is off of
Nigeria in such matters? Will the rule of law prevail? What effect did the national and
international media have in this case? Did the media and other national and international pressure
encourage the courts to be responsive to procedural and due process issues? The media coverage
in this case had a positive impact, but it also had negative aspects. International attention was
perceived in some Nigerian quarters as bringing outside pressure on Nigerian religious and legal

13
traditions, exacerbating the controversy and drawing attention away from the strictly legal issues.
What is the right balance?

Looking Ahead
There is a tremendous opportunity in using the Amina Lawal judgment of the Sharia court in
Katsina to reform the Nigerian legal system in ways that will ensure equality and non-
discrimination for all before the law. To this end, there is a need to provide a greater
understanding of how international instruments, treaties, conventions, and protocols protect the
rights of individuals and apply under national law. Nigerian lawyers and judges will need
continuing education to improve the administration of the criminal justice system. This judgment
of the court provides a powerful tool for positive change.
Lawyers and judges, as well as court supporting staffs involved in litigation and
adjudication should be sensitized to the application of the Sharia legal system as well as
understanding the usefulness of international human rights laws as a tool to advance human
rights within national societies. Efforts should be made to educate local groups and lawyers
about widespread and deeply entrenched discrimination against women and how this violates
human rights law.
The coalition of credible NGOs, community based organizations (CBOs), and persons of
like minds could help accelerate this process by helping to review and propose reforms of some
of the provisions of the new legal system to ensure equality before the law. Such groups will
need to enlist allies among opinion leaders, especially religious and traditional leaders, and state
and federal legislators.
On the other hand, cases such as that of Amina Lawal, which had the temporary focus of
the world press, could lose much of their substance if taken over by issues that are not related to
the struggle for saving a human life or ensuring fairness, justice, and upholding fundamental
human rights and human dignity. In the courtroom, there is danger of losing a clear sense of
direction, particularly if a local supportive group changes focus in response to a well-meaning
(or even a not well-meaning) donor who may have other issues to advance. This is particularly
important when dealing with sensitive issues of religion, local tradition, and community values.
The international diplomatic community in Nigeria should familiarize itself with local conditions

14
and non-confrontational intervention in the interest of judicial reform and adherence to equality
under the law.
There is also the danger, when so much international attention has been generated, that
resources will not be used well or wisely. Donors, NGOs, CBOs, and individuals can provide
substantial resources to advance the rights of individuals. NGOs and CBOs should become
involved in the promotion of human rights, have access to courts (where necessary), and become
more accountable, and transparent. Any such entity willing to give resources, however, should
insist and demand transparent and honest accountability.

THE CASE OF AHMADU IBRAHIM AND FATIMA USMAN (THE COUPLE) VS. THE STATE

Reflections of the Defense Counsel19

One day, Ahmadu Ibrahim, a poor villager and a security guard in the village market, saw a
woman called Fatima Usman. Fatima was a divorcee who had gone to the village market to buy
some items. She lived with her parents. (It is customary for divorced women to return to their
parents home or the home of any male relative upon divorce.) Ahmadu and Fatima fell in love;
Fatima became pregnant and gave birth to a baby girl in 1999. Pregnancy out of wedlock is
considered unacceptable in the Muslim dominated northern Nigeria. In fact, a story was told,
many years ago, about a similar incident that occurred in another village. The village elders came
together and advised the girl and her parents to move out of the village and community, which
they did.
Ahmadu and Fatima had brought distress, disgrace, disrepute, and disrespect to the
village. Something had to be done. The village elders and the religious and opinion leaders had a
meeting to address this tragedy, which affected the entire village. Ahmadu and Fatimas fathers
were invited to the meeting. After days of deliberation, Ahmadu admitted that he was Fatimas
lover and that they had a child by accident. He apologized to the members of the meeting and,
through them, to the village. He stated that because he already had a wife and was unable to
support another (he is entitled by the culture/religion to have up to four wives), he would rather

19
Hauwa Ibrahim, Defense Counsel for Amina Lawal Humphrey Fellow, American University Washington College
of Law, 2003-2004 and Intern at the Council on Foreign Relations, Washington DC.

15
not marry Fatima. Ahmadu did promise to support her and the baby, by getting them wood from
the mountain, giving them food from his farm and, when he could afford it, some money (about
$6 monthly).
Pausiya, the baby of this union, became very sick. Mr. Usman, Fatimas father and the
familys breadwinner, was not able to buy the necessary medication. As a result, Mr. Usman
demanded that Ahmadu give him the promised money so that he could buy medication and food
for both his daughter and his granddaughter. Ahmadu repeatedly told Mr. Usman that he could
not give him the money because he did not have it. Mr. Usman and Ahmadu exchanged unkind
words. Mr. Usman decided to seek legal advice and subsequently sued Ahmadu in court for
defaulting on his promise of monetary support as well as for defiling his daughter in the first
place. During this process, Fatima married someone else and Pausiya, who had never regained
her health, died. Ahmadu is still married to his wife. The court, which found Ahmadu and Fatima
guilty, first sentenced them to prison and a fine, but then vacated that sentence to replace it with
a sentence of death by stoning.
The trial court record of Upper Area Court of New Gawu, Gurara Local Government of
Niger State, indicated that the case commenced on May 23, 2002. Ahmadu and Fatima (accused)
were charged under S. 387 and S. 388 of the Penal Code Law of northern Nigeria which
provided for the offence of adultery and prescribed the sentenced of two years imprisonment or
fine upon conviction. They were convicted and sentenced on August 5, 2002, to either five years
imprisonment or a fine of N15, 000 (about $100). Shortly thereafter, however, the court vacated
the original sentence and sentenced them both to death by stoning. Both of the accused served
three months in prison and, while the case is on appeal, they are now out on bail. Defense
counsel appealed this judgment to the Sharia Court of Appeal of Minna, in Niger State. The
grounds for the appeal included:

1.) That the trial judge erred in law and in fact by convicting and sentencing the appellants
first to five years imprisonment or an option of N15, 000 fine and thereafter to the
punishment of stoning to death, giving two conflicting judgments in respect of one and
the same offence, a judgment ultra-vice his jurisdiction;
2.) That there was violation of due process in ignoring the initial judgment passed;
3.) That the initial complaint by the complainant, the plaintiff, Usman Umaru, was seeking

16
 for a compensation of N150, 000 (about $1,000);
4.) That the trial judge erred in law and in fact by convicting and sentencing the appellants to
an offense that was not in existence when the alleged offence was committed and before
the promulgation and commencement of the Sharia law in Niger State;
5.) That the court convicted the appellants to death by stoning when at that time they were
both legally married to other persons;
6.) That the accused persons had no legal representation and were not advised as to their
rights to counsel of their choice; and
7.) That the judge sat alone to pass the judgment of hudud (capital punishment), then the
court sat and reversed itself acting functus officio (out of its official responsibility).

Provisions of the Sharia Law Under Which the Couple Were Convicted
The offense of adultery is addressed in Sections 378 and 388 of the Penal Code Law of northern
Nigeria, which provides for two years imprisonment or an option of a fine and states: Whoever
being a man subject to any native law and custom in which extra-marital sexual intercourse is
recognized as criminal offence has sexual intercourse with a person who is not and whom he
knows or has reason to believe is not his wife, such sexual intercourse not amounting to the
offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment
which may extend to two years or with fine or with both. Section 388 provides thus: Whoever
being a Woman subject to any native law and custom in which extra-marital sexual intercourse is
recognized as criminal offence has sexual intercourse with a person who is not and whom she
knows or has reason to believe is not her husband is guilty of the offence of adultery and shall be
punished with imprisonment for a term which may extend to two years or with fine or with
both.
Disregarding the initial complaint of Mr.Usman Umaru is curious. However, the situation
has not been any clearer because the court had no legal authority to change the complaint. The
court record indicates that the police in charging the couple suggested to them that you
Ahmadu committed adultery with Fatima and she became pregnant and gave birth to this baby
and if this is true then as a Muslim you have committed an offence, in your position as a Muslim
following the Sharia. Islamic Sharia which Allah through his prophet Mohammed (SAW) gave

17
to us.20 Furthermore, throughout the entire proceedings, the defendants religion, Islam, and the
Devil were used in such a way as to coerce admission. For instance, in one example from the
court record, Mr.Ahmadu was asked: did you follow the rules of Islam or the Devilif
someone impregnates your daughter will you be happy? Turning to Fatima the court stated,
you have heard the complaint of the police against you and Ahmadu that you committed
adultery, and gave birth to this child without benefit of marriage; you are not his wife and he is
not your husband. On further prompting to admit guilt the court asked the couple why did
you do this, and in reply they saidit is the devil that brought this on us, it is temptation.
In a second hearing, the court asked the couple if they were ever mad, and went further to
find out from the couple if they knew the punishment of adultery. The court went on to say
before this court you have admitted three times that you committed the offence of adultery
you Ahmadu being married have cheated your wife. More unclear is how some pages of the
record of the court seem to have been mutilated and that has not been helpful either. It is
unbelievable that a court that has had a case and passed judgment and sent the accused persons to
jail now sits suo proprio moto and reversed itself on the ground that since Niger State has now
adopted the SPCL, it is reversing its judgment and sentencing the couple in abstentia to stoning
to death. In the meantime, both at the initial trial and the second reversal, the couple had no legal
representation. The record of the court indicated that they confessed to having had sexual
relations, which amounts to an offense of zina (adultery).
The case of Ahmadu and Fatima remains on appeal.

20
Authors translation from Hausa (a Nigerian language).

18
 THE NEED FOR LEGAL REFORM

The Rule of Law and Due Process

How could cases such as these pay attention to law, its rules, and its processes? What is rule of
law? Or is it rule by the law? Whose law? What law? What is due process and what is its
application?
The rule of law is a concept incorporating several principles that govern the intricate
working of a legal order, the provision of equality before the law, and effectiveness of legal
principles. The rule of law envisages stability, maintenance of law, public order, and security.
The alternative is instability at best and anarchy at worst. Casper Gemhard21 has suggested that,
there is a proposition of rule of law and rule of the law. He further argues that law is universal
in nature. Universal law has three major strands: divine law, natural law, and public law. In
contradiction to these universalist views, however, the modern world has been focused on
particularistic law. Sovereign nations constitute largely autonomous legal systems. The
autonomous system of different countries may also reflect historic legal traditions such as
Roman law in civil law countries or the French Code of Civil Law, German Civil Code, or the
Swiss Civil Code.22
Due process, on the other hand, is tied to customs, which can vary even among regions or
localities within a nation. Customs are the regular habits and non-religious rituals of a local
people. Customs along with folk ways (proverbs and symbols) and norms (guides for behavior)
make up the sociological definition of culture. The extent of due process among the customs of a
people is the hallmark of a civilized or decent society. Due process generally refers to the
regularity, fairness, equality, and degree of justice in both procedures and outcomes. Due process
guarantees the:

1.) Right to a fair and public trial conducted in a competent manner;

2.) Right to be present at the trial;
3.) Right to an impartial jury;

21
Casper Gernhard: Rule of Law? Whose Law?, Keynote address at the 2003 CEELI Award ceremony and
luncheon of the American Bar Association. San Francisco, California. August 9, 2003.
22
Anders Fogelklou, Principles of Rule of Law and Legal Development in Per Sevastik, ed., Legal Assistance to
Developing Countries: Swedish Perspectives on the Rule of Law (Kluwer Law International. 1997) pp: 32-60.

19
 4.) Right to be heard in ones own defense; and
5.) Right to laws that are written so that a reasonable person can define and understand
criminal behavior.

How Do These Principles Relate to Sharia?

Under Sharia, the victim of a criminal act or his kinsman was personally responsible for
presenting a claim against the accused before the court. This included notice of the claim, the
right for the defendant to remain silent, and a presumption of innocence in a fair and public trial
before an impartial judge. There were no juries. Both parties in the case had the right to have a
lawyer present, but the individual bringing the claim and the defendant usually presented their
own cases.
At trial, under Sharia law, the judge questioned the defendant about the claim made
against him. If the defendant denied the claim, the judge then asked the accuser, who had the
burden of proof, to present his evidence. Evidence almost always took the form of the direct
testimony of two male witnesses of good character (four in cases of adultery). Circumstantial
evidence and documents were usually inadmissible. Female witnesses were not allowed except
in cases where they held special knowledge, such as childbirth. In such cases, two female
witnesses were needed for every male witness. After the accuser finished with his witnesses, the
defendant could present his own. In the above case study, the accused persons were both denied
due process under the common law and the Sharia.

Legal Reform of Some Sections of the Sharia Penal Code Law

The introduction of the Sharia Penal Code Law in the twelve states of northern Nigeria has
raised much concern because of the size of the country and its population of over 132 million
people,23 its influence in the West Africa and Africa as a whole, as well as its sizable Muslim
population, which is more than the entire Middle Easts Muslim population combined.24
The introduction of the SPCL has a very high symbolic value and, as has been suggested
by many leaders in northern Nigeria, may be irreversible. Therefore, outside pressure to annul
the SPCL will likely be ineffective and may lead to antagonism and a defensive attitude. A

23
World Bank Report, 2003.
24
U.S. State Department Report.

20
serious problem exists, however, because the SPCL may, in some cases, conflict with the
Nigerian Federal Constitution. Almost all the penal codes promulgated thus far by these twelve
northern states were hastily drafted with many incorrect cross-references, incorrect and defective
wording, omissions and contradictions. 25
Because of the way in which the Sharia law was introduced, the new legal regime and
legal order lack the legal certainty and facility to recruit the judges that could administer it.
Judges, lawyers, court staffs and the police need to be oriented and trained. There is a very high
degree of lack of awareness by the populations as to the provisions of this new legal order.
Among all the defendants in the forty-seven Sharia cases in which this author has been
involved, most of defendants were not aware of the provisions of the SPCL before they were
brought to court. Generally speaking, reform should address issues of strict standards of proof
and evidence in all offences, especially the offences carrying the death penalty. Second, offences
and their punishment must be founded in written law and not the discretion of the judge (as
suggested in some of the provisions of the SPCL). Third, there should be separation of powers
between the executive and the judiciary to respect the independence of the judiciary and allow it
to serve justice. Fourth, the laws should be certain and respect the principle of fundamental
human rights and human dignity. Fifth, the law should not be repugnant to natural justice, equity,
and good consciousness. Sixth, in the quest for dispensing quick justice, the law should have a
clear and written procedural process.
Other important provisions include nulla poena sine lege principles (a person shall not
be convicted of a criminal offence unless that offence is defined and the penalty therefore is
prescribed in a written law),26 equality before the law, no violation of the freedom of religion,
and no violation of the basic rights of children. (The author was involved in about seven cases
where those convicted and sentenced to have their limbs amputated were under the age of
eighteen years.)
Sections 275279 of the Nigerian Federal Constitution dealing with establishment of the
Sharia court of appeal of a state and its jurisdiction have raised new and complicated challenges.
They provide that, 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

25
Professor Ruud Peters: The Reintroduction of Islamic Criminal Law in Northern Nigeria. Lagos, Nigeria 2001.
26
Ruud Peters: Supra.

21
supervisory jurisdiction in civil proceedings involving questions of Islamic personal Lawany
question of Islamic personal Law regarding a marriageand relating to family relationship or
the guardianship of an infant; any question of Islamic personal Law regarding a wakf, gift, will or
succession
This restricts the jurisdiction of the Sharia court of appeal to civil jurisdiction. In light of
that, the cases handled by the author have involved appearing before a court that did not have the
jurisdiction to impose a criminal sentence, and could not argue that the exercise of the courts
jurisdiction was contrary to the law, contrary to professional ethic, abusive of court process, and
against the provisions of rule of law and due process. It was, however, a process and challenge
we had to undertake in the circumstances of the moment to save a life.
Section 93 of the SPCL of Zamfara enumerates the punishments and compensation that
are allowed under the code, but it does not list death by stoning or crucifixion. Such punishment
is set forth in Sections 127 (b) and 153 (d). The code is thus inconsistent and uncertain.
Similarly, Sections 136 (1) of the Kano State SPCL, Section 137, 149-159, of the
Zamfara State SPCL, and Section 68A (2) (e) dealing with rules regarding the Quranic offences
of hudud (offences with capital punishment, including the drinking of alcohol) of the Niger
State SPCL are inconsistent with respect to the elements of the offences, the punishment to be
applied, and the procedures for carrying out the punishment. In the case of Amina Lawal, who
was sentenced to death by stoning, there was no law indicating how, by whom, in what way or
by what means and where such a sentence could be executed. It gave room to so much
speculation and uncertainty that it was inherently contrary to due process.
Sections 125 of Kanos SPCL, Section 127 of Zamfara SPCL, and Sections 68 (2) (c) of
Nigers SPCL are not specific on the use of which drug(s) and which false accusation with
regard to unlawful sexual intercourse will receive punishment by lashing. The sections also do
not stipulate the punishment. The three codes are inconsistent on that.
One form of proof of zina under both the SPCLs for Kano and Niger are confessions
from four male witnesses, but Zamfaras SPCL is silent on that.27
Classical Maliki doctrine (the Islamic school of thought applied to the states that adopted
the Sharia legal system) provides that the pregnancy of an unmarried woman is proof of zina.

27
See Sections 127 of the Kano SPCL; Sections 68A (3) (b) of the Niger SPCL; and Section 130-31 of the Zamfara
SPCL.

22
This rule was applied in the cases the author was involved with, for example, Bariya Ibrahim
Magazu, charged, convicted, and punished by flogging (100 lashes). Safiya Hussaini, Amina
Lawal and many more victims have all mentioned alleged rape, yet without proof beyond a
reasonable doubt, and they were all convicted at trial.
With respect to rape, Sections 126-127 of the Kano SPCL and Sections 128-129 the
Zamfara SPCL, state that the perpetrator should pay compensation. On the other hand, rape has
been assimilated into zina. This is shown by the fact that the prosecution in some cases has used
the fact that the woman has a child out of wedlock to be proof of adultery.
Other inconsistent provisions include Section 134 of the Kano SPCL and Section 145 of
the Zamfara SPCL dealing with theft and amputation of limb(s). Definitions of the offences vary.
Kano and Zamfara define the offence of theft as covertly, dishonestly and without consent takes
any lawful movable property belonging to anotherwithout justification, but that definition
differs from the Maliki Law (the school of thought adopted by the twelve Sharia States),
which defines theft from a monetary value perspective. The definition above differs also from
Niger State Section 68A (2) (a), which does not adopt any definition, but refers to the northern
Nigeria Penal Code Law for the definition of theft.
Section 137 of the Kano SPCL and Section 147 of the Zamfara SPCL provide for eight
defenses of theft under Maliki, i.e., where the offence was committed by ascendant against
descendant; where the offence was committed between spouses within their matrimonial
home; where the offence is committed under circumstances of necessitywhere the offender
believes in good faith he has a share; where the offender retracts his confession before
execution.it will reduce the offence and punishment of an offense of theft. 28 The definition of
theft is not consistent in the codes. While theft is defined as covertly, dishonestly and without
consent taking, in other codes it is defined by the amount of money involved.
Other sections to be looked into for review and reform include: Sections 147 and 259 of
the Zamfara SPCL and Section 134 (b) of the Kano SPCL dealing with embezzlement; Sections
229, 231, 227, and 229 of the Bauchi State SPCL; Section 228 and 230 of the Kebbi State SPCL;
Sections 229 and 231 of the Jigawa State SPCL; Sections 229 and 231 of the Yobe State SPCL.
Section 156 of Bauchis SPCL refers to death by impalement (Crucifixion), but does
not define what is meant by the term impalement. Other SPCL sections in need of review are

28
Zamfara Sharia Penal Code Law 2000.

23
Section 139 for Kano and 152 for Zamfara, which refer to homicide and hurt and derive their
wording from the Northern Nigerian Penal Code Law. The new penal code is in English, the
language of the court is Hausa, the language of the victims is Hausa, and this has caused untold
hardship in ensuring the administration of justice, especially where no clear definitions of a term
exist. Sections 142 of the Kano SPCL and 68A (20) (f) of the Niger SPCL on intentional
homicide and retaliation are ambiguous. Sections 59 of the Zamfara SPCL and 143 (c) of the
Kano SPCL; dealing with treacherous homicide, retaliation, blood money and imprisonment
among others are not the same provisions in all these codes despite the fact that all the provisions
are supposed to be applied to the same Muslims in the same country. The list is endless, but the
point is that for these laws to apply justice to all Muslims and provide peace and harmony, the
need for reform cannot be over emphasized.

Sharia and the Nigerian Constitution

The Nigerian Constitution is the ground norm of Nigeria as a country. Indeed, all the members
of the National and States Executive, as well as members of the National and States Assemblies
and the judiciary, have pledged oaths of allegiance to the Constitution. They swear or affirm that
they will be faithful and bear true allegiance to the Federal Republic of Nigeria and to preserve,
protect and defend the Constitution of the Federal Republic of Nigeria. The president
swears/affirms that he will be faithful and bear true allegiance to the Federal Republic of
Nigeriato discharge his dutiesfaithfully, always in the interest of the sovereignty,
integrity, solidarity, well-being and prosperity of Nigeria.29
Similarly, the governor of all the states in Nigeria, including the ones that have adopted
the Sharia, have pledged to solemnly swear/affirm that they will be faithful and bear true
allegiance to the Federal Republic of Nigeria; that they will discharge their duties, faithfully and
in accordance with the Constitution of the Federal Republic of Nigeria and the law, and always
in the interest of the sovereignty, integrity, solidaritythey will preserve, protect and defend the
Constitution of the Federal Republic of Nigeria. Also members of the National Assembly and
that of a State House of Assembly solemnly swear/affirm that they will be faithful and bear true
allegiance to the Federal Republic of Nigeriathey will preserve, protect and defend the
Constitution of the Federal Republic of Nigeria. In the same manner, members of the judiciary

29
Nigerian 1999 Constitution: Seventh Schedule; Oaths.

24
solemnly swear/affirm to bear true allegiance to the Federal Republic of Nigeriapreserve,
protect and defend the Constitution of the Federal Republic of Nigeria. They all should respect
and abide by their oaths of office and respect the supremacy of the Constitution and not do
anything by acts or omission to promulgate law contrary to the provisions of the Constitution and
rule of law.
Some sections of the Constitution need to be studied and understood with regard to the
SPCLs. The Nigerian Constitution provides for its supremacy;30 the Constitution is supreme and
its provisions shall have binding force on the authorities and persons throughout the Federal
Republic of Nigeria. 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. The Constitution further provides that, The Government of the Federation or of a State
shall not adopt any religion as State Religion.31 While, Section 277 provides that 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.
Under Legislative Powers, Part 1, of the Exclusive Legislative list of the schedule in the
Nigerian Constitution, certain items are the exclusive preserve of the Federal legislatures and
State legislatures and members of the executive cannot interfere. One of those provisions
involves the promulgation of the rules of evidence and interfering with the police and other
government security services.
Other sections which need to be closely studied with respect to the new SPCLs include:
Sections 4 (1) (2) (3) (4) (5) (6) (7) (8) (9); 34 (1); 36 (12); 38 (1); 42 (1); 244 (1); 275 (1); 277
(1); and 277 (2). These sections deal with legislative powers at the Federal and States levels; non
discrimination; and establishment, appointment and jurisdiction of Sharia courts.

Legal Reform as a Basic Principle of Justice

Legal reform is necessary to promote respect for human rights and human dignity; to encourage
good governance, the rule of law, and due process; and to create a stable and predictable legal
system, that will provide the proper climate for investment. It will enhance good legal order, and

30
Section 1 (3) Nigerian Constitution 1999.
31
Section 10 Nigerian Constitution 1999.

25
legal institutions; it will reduce delay in rendering justice; it will reduce congestion in cases
before the courts and those in prisons awaiting trials; and it will encourage legal education of
judges, lawyers, and court officials. It will help in documenting the legal opinions of the courts
and will encourage good record keeping as well as publication of the laws and reporting of
judicial decisions. It is necessary for enacting procedural laws, and addressing the issues of
inadequate facilities by the courts, as well as issues of court budgets and independence. It is
necessary to address the issues of access to justice for the poor, illiterate, voiceless, powerless,
and vulnerable members of society. It is necessary to create an impartial system, without
corruption or sentiment to provide undue influence on the outcome of a case.
Legal reform is necessary for stability and predictability. It is important that people in
any given society feel and know that they are treated equally under a system of law that respects
human dignity and recognizes the need for protection under the law. Transparent legislation, fair
laws, predictable enforcement, an accountable legal system, and the promotion of the rule of law
is what citizens yearn for. A legal and judicial system that meets these standards is both an end in
itself as well as a means to facilitate and leverage the achievement of long-term development
objectives, opportunities, and security. Legal reform is important for legitimacy, freedom of
speech, constant attention to due process, autonomy, equity, and effectiveness.
Legal reform is an ongoing and incremental process that involves the executive and
legislative branches, law reform commissions, nongovernmental organizations, and the public.
For most countries, legal reform addresses new international standards, responds to social and
economic issues, expands access to justice, or improves court operations. Effective and coherent
legal reform requires a comprehensive and sustainable approach that avoids importing models
inconsistent with national legal and socioeconomic norms. Effective legal reform also promotes
opportunity, security, and empowerment for the worlds poor.32 Law reform seeks to ensure that
laws are drafted by experts, taking into account best practice principles and international
standards, in consultation with interested stakeholders. Transplanted laws from abroad may be
appealing, but usually are not sustainable unless grounded in the local context. Fostering public
understanding and ownership of proposed laws ensures that they are suitable for the economic,
social, and legal environment, and facilitate understanding by the public at large. A stable
equitable and just legal system is a panacea for good society.

32
Legal and Judicial Reform: http://www4.worldbank.org/legal/leglr/leglregorm.html.

26
 The concept of the rule of law could be viewed as the need simply to follow the law as
set down by constituted authorities. But what law should apply? Has that law been validly
written? Is the law internally consistent and equally applicable to all? The law should be neutral
and apply equally to all in its substantive content. Suggested values should include fairness,
transparency, accountability, and consistency, predictability, binding adjudicatory mechanism, as
well as equality of access to all, and equality of treatment to all.

NIGERIAS HUMAN RIGHTS OBLIGATION

Legal reform can be carried forward in Nigeria drawing upon the existing instruments of the
Nigerian constitution and international instruments to which Nigeria has given formal
ratification.

The Constitution
The provisions of the Nigerian Constitution dealing with protection of fundamental human rights
and ensuring the due process right of a fair hearing are incorporated in Chapter IV. It provides:
Every person has a right to life,33 and no one shall be deprived intentionally of his life, save in
execution of the sentence of a court in respect of a criminal offence of which he has been found
guilty in Nigeria. Every individual is entitled to respect for the dignity of his person,34 and
accordinglyno person shall be subject to torture or to inhuman or degrading treatment;35 every
person shall be entitled to his personal liberty and no person shall be deprived of such liberty.36
Every person should be entitled to a fair hearing within a reasonable time by a court or
other tribunal established by law and constituted in such manner as to secure its independence
and impartiality. Whenever any person is charged with a criminal offence, the person charged
shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable
time by a court or tribunal.37

33
Section 33 (1).
34
Section 34 (1).
35
Section 34 (1) (b).
36
Section 34 (1).
37
Section 36 (1) (4).

27
 Every person who is charged with a criminal offence shall be presumed to be innocent
until that person is proven guilty; every person who is charged with a criminal offence shall be
entitled to be informed promptly in the language that the person understands and in detail of the
nature of the offence; be given adequate time and facilities for the preparation of his defense;
defend himself/herself in person or by legal practitioners of his/her own choice. Furthermore, the
accused is entitled to examine, in person or by his/her legal practitioners, the witnesses called by
the prosecution before any court or tribunal and obtain the attendance and carry out the
examination of witnesses to testify on his behalf before the court or tribunal on the same
conditions as those applying to the witnesses called by the prosecution; and have, without
payment, the assistance of an interpreter if he cannot understand the language used at the trial of
the offence.38
No person shall be held to be guilty of a criminal offence on account of any act or
omission that did not, at the time it took place, constitute such an offence, and no penalty shall be
imposed for any criminal offence heavier than the penalty in force at the time the offence was
committed.39 No person who is tried for a criminal offence shall be compelled to give evidence
at the trial. 40
The privacy of citizens, their homes, correspondence, telephone conversations, and
telegraphic communications, is guaranteed and protected.41 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. 42 Every
person shall be entitled to assemble freely and associate with other persons, and in particular he
may form or belong to any political party, trade union or any other association for the protection
of his interests.43
Section 244 provides that an appeal shall lie from decisions of a Sharia court of appeal to
the aourt of appeal as of right in any civil proceedings before the Sharia court with respect to
any question of personal law which the Sharia court of appeal is competent to decide. While

38
Section 36 (5) & (6.)
39
Section 36 (80).
40
Section 36 (11).
41
Section 37.
42
Section 38.
43
Section 39.

28
Section 275 provides that there shall be for any state that requires it, a Sharia court of appeal for
that state.
The Sharia court of appeal of a state shall, 44 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. The Sharia court of appeal shall be competent to decide any question of Islamic personal
law regarding a marriage concluded in accordance with that law, including a question relating to
the validity or dissolution of such a marriage, when a question that depends on such a marriage
and relating to family relationship or the guardianship of an infant; where all the parties to the
proceedings are Muslims, any question of Islamic personal law regarding a marriage, including
the validity or dissolution of that marriage, or regarding family relationship, a founding or the
guarding of an infant.45

International Instruments
The Universal Islamic Declaration also observes that human dignity is sacred and inviolable and
every effort shall be made to protect it. Additionally, the Quran itself places great importance
upon human dignity. It declares that dignity, in the broadest possible language, is the natural
right of every human being. The quranic diction that, We bestowed dignity on the progeny of
Adam, (al-Isra 17:70) clearly transcends all the racial, social, or religious barriers that divide
humanity.
By accepting the conventions, treaties, protocols, and optional protocols, States commit
themselves to undertake a series of measures to end problems that are linked closely to gender,
cultural, religious, and other equality related problems like poverty, illiteracy, and traditional
dogma. Incorporating the principle of equality of men and women in their legal system, they are
to abolish all discriminatory measures, and laws that violate human rights and human dignity.
This means establishing tribunals and other public institutions to ensure the effective protection
of fundamental human rights and to ensure elimination of all acts of discrimination on the bases
of ethnicity, race, religion, class, and caste. The current configuration of Sharia law fails to
conform with all these provisions.

44
Section 277, Constitution of the Federal Republic of Nigeria.
45
Supra.

29
 STRATEGY FOR LEGAL REVIEW AND REFORM

Those of us in Nigeria dedicated to legal reform will conduct research on other various key
issues, especially promotion and protection of rights under the new Sharia legal system. We
plan to document this research, thereby creating a knowledge center for advocates.
Implementation will also include:

1.) Seeking a constructive approach to legislative reforms and systematic reviews of laws
and writing the laws when the laws are deficient or non-existent;
2.) Encouraging domestic initiatives to promote change in national polices and regular
functioning of the judiciary and working with the legislative branch of government,
through legislative hearing and fact-finding investigations, to seek the reforms;
3.) Devising principles and mechanisms to guide multilateral or unilateral humanitarian
intervention to prevent or stop massive violations of human rights and methods to
disseminate human rights ideas and documentation, and to ensure access by individuals
to national and international institutions to redress violations;
4.) Encouraging and engaging in dialogue, fruitful discussion, and developing
collabrorations with NGOs and other organizations representing civil society;
5.) Studying and understanding the dynamic of the new religious laws and the
complementarily between the Nigerian constitution and international instruments
signed by Nigeria;
6.) Encouraging communication and debate in the media on issues of Sharia with some
countries practicing moderate Sharia to foster understanding;
7.) Encouraging and engaging in discussion of other religious and cultural practices with
similar issues and of how some of their difficulties were overcome. For example,
recognising similar cultural practices that correspond to similar legislation could be
instructive in the 1989 case of G. Ato del Avellani Vs. Peru,46 a case dealing with the
status of women and its similarity with another culture in Nigeria, as well as the 1987

46
Report of Human Rights Committee UN Doc. A/YY/40 (1989).

30
 case of Mrs. Brocks Vs. Netherlands, 47 a case dealing with the right of equality and
giving the sense that the struggle is universal;
8.) Promoting research and discussion on issues of Islam in areas such as marriage,
divorce, modesty, submission, physical abuse, security, etc.;
9.) Encouraging creative thinking, using drama and radio talk shows to enhance positive
traditional values;
10.) Addressing gender, political, economic, social, and cultural issues in the legislative
reform efforts;
11.) Establishing equal rules and regulations governing nationality legislation, especially in
states where there are no procedural codes in trying these Sharia cases ;
12.) Enabling women to pass their nationality to their children;
13.) Encouraging laws to prevent emotional and physical abuse on women by their spouses;
14.) Establishing quota systems for women for positions in parliament, diplomatic posts,
decision making and other governmental positions, should also be considered;.
15.) Advocating for the equitable distribution of wealth, right to education, right to
healthcare, right to vote, right to be elected, the right to work, the right to liberty, the
right to security, and the right to equality before the law;
16.) A bottom-up approach that will be conceived as a long term plan, measuring short-term
results, using flexible methodology and paying attention to details;
17.) Understanding the value, cultural and traditional system, having organizational and
analytical skills as well as creative intelligence and strategic thinking;
18.) Coordinating and cooperating with donors, working with political leadership, and
having a coalition building strategy to encourage alternative dispute resolution that goes
back in ancient time and is just and acceptable and, above all, provides for justice; and
19.) Giving the people the tools to ask questions and encouraging a greater measure of
political freedom and activism, letting them realize the essence of the rule of law and
not rule by law; encourage knowledge sharing; harmonize laws and regulations,
encourage capacity building, and encourage law reporting and reviews from time to
time as well as building partnerships with local organizations.

47
Protocol Vol. 2, 17-32 UN Doc. CCPR/C/OP/2 (1990) Communication No: 173/1987.

31
 The strategy for implementing these reforms will be to focus exclusively on human rights
fundamentals, human dignity, and precedents in order to develop greater local expertise and to
address these highlighted sections and issues of rights more effectively.
We will build extensive legal coalitions with both governmental and nongovernmental
organizations to create awareness about the inconsistencies, uncertainties, incorrect cross
references, defective wording, omissions and contradictions contained in the Sharia penal laws
adopted by the twelve states. We will build partnerships with international donors, such as
organizations within the United Nations interested in our objectives, the World Bank, and other
international governmental and nongovernmental organizations.
The American Bar Association African Initiative and Lawyers without Borders (Paris,
France and Quebec, Canada) are planning to undertake projects in northern Nigeria with the
objective of assisting local attorneys to provide legal and professional services to indigent
victims who are either in prison or unable to afford legal service and sharing knowledge and
skills with local attorneys while helping them understand the new legal system, Nigerian
legislation, and how these relate to international instruments to which Nigeria is a state party. All
of these initiatives will encourage the objective delivery of justice. In collaboration with local
lawyers, the Bar Association, and civil societies, research will be undertaken on the new Sharia
law, its rules of procedure, and evidence requirements, and work will be conducted toward
reviewing and reforming these laws where and when necessary. Special emphasis will be placed
on creating awareness and adhesion to professional ethics.
Mass media can raise awareness among young people and the society at large concerning
the new legal system. Community-based organizations and nongovernmental organizations
should be directly involved in addressing issues of equality, justice and the rights and dignity of
individuals. It is also important to make the school curricula relevant to social realities and to
teach children how to deal with these new realities.
We hope to persuade government that human rights are an appropriate and legitimate
concern of national foreign policy, especially support for human freedom and dignity. We will
emphasize that it is in Nigerias pragmatic, long-term national interest to acquire the respect and
friendship of other nations and, along with others, to build a world in which people can live
securely and in peace.

32
 CONCLUSION

In Nigeria, the rule of Sharia law has violated legal due process and the basic human rights of
many. The legal reforms we propose will rely upon Nigerian constitutional law as well as
international human rights standards (to which Nigeria is a signatory) as the basis for legal
reform. Furthermore, we hope to encourage the legislatures in other moderate Islamic
countries to follow the rule of law and due process.
Though some of the international human rights instruments are not directly binding in a
legal sense, they establish broadly recognized standards and are frequently invoked in connection
with human rights issues. The easiest and most effective way to implement human rights is
through action within each countrys own legal system. If domestic law provides an effective
system of remedies for violations of international human rights obligations, the authority of a
nations own legal system can be mobilized to support compliance with international norms.
Most human rights treaties require that parties incorporate relevant obligations into their
domestic law and that they provide appropriate local remedies. This in turn provides the rationale
for the common requirement that domestic remedies be exhausted before an international body
will investigate a complaint of human rights violations.48
The Universal Islamic Declaration observes that human dignity is sacred and inviolable
and every effort shall be made to protect it. 49Additionally, the Quran itself places great
importance upon human dignity. It declares that dignity, in the broadest possible language, is
the natural right of every human being. The quranic diction that, We bestowed dignity on the
progeny of Adam (al-Isra' 17:70) clearly transcends all the racial, social, or religious barriers
that divide humanity.
By accepting the conventions, treaties, protocols and optional protocols, states commit
themselves to undertake a series of measures to end problems that are linked closely to gender,
cultural, religious, and other equality related problems like poverty, illiteracy, and traditional
dogma. By incorporating the principle of equality of men and women in their legal systems, they

48
Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations made
upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under
article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994).
49
Universal Islamic Declaration of Human Rights: 21 Dhul Qaidah 1401 19 September 1981
http://www.alhewar.com/ISLAMDECL.html.

33
will abolish discriminatory measures and laws that do not respect human rights and human
dignity. To achieve this, it is necessary to encourage and promote legal reform. In a world that is
fast becoming a global village and with the dimunition of distance brought about by the internet
and other satellite devices, it is important to ensure the effective protection of fundamental
human rights and to ensure elimination of all acts of discrimination on the basis of ethnicity,
race, religion, class, and caste.50
The United Nations Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief51 provides, among other things, that dignity and
equality are inherent in all human beings and that all member states have pledged themselves to
take joint and separate action in cooperation with the UN to promote and encourage universal
respect for the observance of human rights and fundamental freedoms for all, without distinction
as to race, sex, language, or religion. member states pledged to uphold the principles of non-
discrimination and equality before the law and the right to freedom of thought, conscience,
religion and belief. They further committed themselves to consider discrimination between
human beings on the basis of religion or belief an affront to human dignity and a disavowal of
the principles of the Charter of the United Nations, and that it shall be condemned as a violation
of the human rights and fundamental freedoms proclaimed in the Universal Declaration on
Human Rights and enunciated in detail in the International Covenants on Human Rights, and as
an obstacle to friendly and peaceful relations between nations.
The application of provisions of international conventions within domestic laws, such as
provisions of the Universal Declaration of Human Rights, would recognize the inherent dignity
and the equality and inalienable rights of all members of the human family as the foundation of
freedom, justice, and peace in the world. Disregard for human rights often results in barbarous
acts which outrage the conscience of mankind, and deny freedom of speech and belief, and
freedom from fear, which have been proclaimed as the highest aspiration of the common people.
Regardless of the customs, religion, traditions, and unique history of a nation, human standards
and respect for human dignity and the worth of a person are universal aspirations.

50
International Instruments: A selection of the key United Nations Covenants or Conventions on Human Rights,
http://www.hrc.co.nz/index.php?p=450.
51
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief
Proclaimed by General Assembly resolution 36/55 of 25 November 1981,
http://www.unhchr.ch/html/menu3/b/d_intole.htm.

34
 Those of us dedicated to reform will focus on bringing together people to consider
theoretical concepts and practical realities. We will develop innovative ways to litigate cases and
increase public awareness. We will work within the governmental structure to positively
influence decision makers on issues of gender, culture, religion, and human rights, and in this
process, will involve vocational leaders, opinion leaders, traditional leaders, and religious
leaders, among others. Individual communities will be encouraged to recognize their plight and
take action. The future will depend upon advocacy, positive engagement, lobbying, and creating
awareness.
Legal reform is an ongoing process that involves all aspects of government and the
public. Legal reform in our context will address new international standards, and respond to
social and economic issues. Legal and judicial reform will involve the collaboration of
governments, judges, lawyers, scholars, civil society representatives, media, public, and other
organizations to build better legal institutions and judicial systems. Effective and coherent legal
reform will require a comprehensive and sustainable approach that avoids importing models
inconsistent with national legal and socioeconomic norms. Effective legal reform will promote
opportunity, security, and empowerment for the worlds poor, voiceless, powerless, illiterate, and
vulnerable.52

52
The World Bank Group: Legal and Judicial Reform: http://www4.worldbank.org/legal/leglr/.

35