The Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad at the 20th Annual Judges Conference at the Ahmadu Bello University, in a speech read on his behalf on December 14, 2019 by the Grand Khadi of Niger State, Justice Muhammad Danjuma, called for the amendment of the country’s Constitution to “accommodate some of the concerns of Muslims and the Sharia Law.”
It must be borne in the mind that this year’s Annual Judges Conference was held during the first week of December (2019) at the National Judicial Institute (NJI) in Abuja and not in ABU, Zaria. It would not have been necessary therefore to comment with such error but for the space all manners of reactions has occupied in the media, it therefore require some clarifications.
Specifically, Section 237 (2) (b) of the 1999 Constitution states that the Court of Appeal shall consist of… ‘’(b) such number of justices of the Court of Appeal, not less than forty-nine of which not less than three shall be learned in Islamic personal law, and not less than three shall be learned in Customary law, as may be prescribed of the National Assembly’’
The number of Justices has been on the increase from 36 at inception (with Decree 43 signed by General Olusegun Obasanjo in 1976) to 41, 50 and 70.
However, with the enactment of the Court of Appeal (amendment) Act, 2013 which increased the number of Justices of the Court of Appeal from seventy to ninety, former President Goodluck Jonathan on March 17, 2014 approved the appointment of 25 new justices for the Court of Appeal; thereby, bringing the number of justices of the court from 70 to 90. That appointments followed the recommendation of the National Judicial Council (NJC) under the leadership of the former CJN Aloma Mariam Mukhtar, to President Jonathan.
It would be recalled that following the recommendation of the All Nigeria Judges’ Conference in 1972, the General Murtala Mohammed had directed the establishment of a Federal Court of Appeal and a Federal Sharia Court of Appeal before his assassination in 1976. While General Obasanjo signed into law the Federal Court of Appeal Decree No.43 of 1976, he directed that the establishment of the Federal Sharia Court of Appeal be left for debate in the Constituent Assembly when the draft Constitution was to be considered. The proposed Sharia Court of Appeal was to coordinate nationwide, and to hear appeals from various state Sharia Court of Appeal. As a result of controversy that ensued due to opposition to the establishment of the Federal Sharia Court of Appeal, a division in the Federal Court of Appeal was created to hear appeals from various state Sharia Court of Appeal.
That marked the birth of the ‘’three justices of the Court of Appeal learned in Islamic personal law’’ which concomitantly enshrined in the 1999 Constitution (as amended), which remained like the rock of Gibraltar, even when the number of Justices and divisions of the Court of Appeal were severally altered and increased by Acts of the parliament.
It is provision for this three justices of the Court of Appeal learned in the Sharia personal law the CJN has requested to be altered in the constitution, and equally requested that they be thoroughly bred in Islamic law which has drawn replete of reactions from some quarters lately.
To begin with, the Christian Association of Nigeria (CAN) described as a threat to national unity, the alleged call by the Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad for a Constitutional amendment, with a view to adding more Sharia contents.
However, National Director, Legal and Public Affairs, CAN, Evang. Kwamkur Samuel Vondip said CAN viewed this development as the most reprehensible, reckless and insensitive statement made by a public officer, a jurist and the very head of Nigeria’s judiciary.
He observed that no one can begrudge the CJN from peacefully practising his faith, but seeking to transform one religion into having greater space in the Constitution is the height of official immodesty.
Vondip condemned the CJN’S advice that academics champion the cause of redesigning the methods of teaching Sharia law; discard English as the language of instruction in Sharia law and for a separate faculty dedicated to Sharia.
He said: “CAN observes that the CJN has neither denied nor clarified the report. No person or association has also come out with a contrary opinion. We, therefore, regard it as a settled fact that the CJN said it, and meant it… “Clearly, this looks like the path to making Islam a state religion…’’
The Human Rights Writers Association of Nigeria (HURIWA) also slammed the CJN for suggesting embedding sharia law to the constitution, adding that the NJC should sanction him for attempting to heat up the polity.
According to Collins English Dictionary, justice is fairness in the way that people are treated. It’s the quality of being just; righteousness, equitableness, or moral rightness the system of laws in a country that judges and punishes people. The www.yourdictionary.com
, defines justice as the use of power as appointed by law, honor or standards to support fair treatment and due reward.
The Chief Justice of Nigeria is the head of the judiciary arm of government of Nigeria, and presides over the country’s Supreme Court and the National Judicial Council. At the risk of sounding immodest, he’s unarguably the custodian of ‘Justice’ in the country.
The Christian Association of Nigeria can bend a bit backward and in all sense of fairness, equity and good conscience and come to terms that when the Court of Appeal Justices were 36, the constitution prescribes 3-justices amongst them to be learned in Islamic law. Yet, when it increased to 41, 50, 70 and 90, the justices learned in Islamic law still remains three. Will CAN accept that as justice for the Muslims in the country? By now, there shouldn’t be less than three justices learned in Islamic law per Court of Appeal Division, because of heap of appeals requiring their services.
When the CJN called for the number to be increased, it is in the interest of justice, especially to deal with such backlog of cases involving Islamic law interpretation. We’ve witnessed several conflicting judgements in the Court of Appeal in the recent days, just as avalanche appeals decided by that court were frontloaded to the Supreme Court owing to dissatisfaction by litigants against those judgements. Besides, the ongoing judiciary reforms require that such cases should terminate at the Court of Appeal; in order to decongest and reduce sprawling workload at the Supreme Court, a situation which forced President Muhammadu Buhari to appoint additional four justices to apex court bench recently.
Is the CJN therefore not right by insisting that justices meant to sit on appeals regarding Islamic law be thoroughly bred in it, considering that that court may soon become final court for matters involving the Muslims in the country? Of course, when the CJN’s statement is weighed in the scale of righteousness, equity and good conscience, he would adjudged to be just, good, painkilling and a valuable initiative and ligament for our tattered bag of unity.
According to Justice Chukwudifu Akunne Oputa of blessed memory in GODWIN JOSIAH v. THE STATE (1985) 1 NWLR (Part 11) page 125 at 141,’’…Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant (accused) of a heinous crime of murder; justice for the victim…, ‘whose blood is crying out to heaven for vengeance’ and finally justice for society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of’’. As it is, it’s not only CAN that justice must be served for peace to rein, the Muslim community deserve fair treatment also to avoid threat to peace in the country.
Justice in its true sense is for all without any discrimination. Section 17(1) and (2) of the 1999 Constitution which recognizes this fact states that; ‘’the state social order is founded on ideals of freedom, equity and justice’’; ‘’in the furtherance of social order’’; ‘’ every citizen shall have equality of rights, obligations and opportunities before the law’’; … ‘’the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained’’.
The applicability of the shari‘a in Nigeria is underlined by the Supreme Court case of Kharie Zaidan v Fatima Khalil Mohssen. On November 16, 1973, Justices Taslim Olawale Elias, Atanda Fatayi-Williams and Dan Ibekwe had in an appeal from the judgment of Ovie-Whiskey, J., delivered in Suit No. W170/66 at the High Court, Warri, held that Islamic law and not the customary law of the place of residence governed the estate of a deceased Muslim who died intestate because it is the customary law to which he was subject. Justice Elias who delivered the lead judgement held, inter alia, that Islamic law is applicable in Nigeria, and upheld the universality of Islamic law rules. The issue for consideration was the applicable law for the devolution of an immovable property in Warri, Nigeria, of a deceased Lebanese Muslim who had retained his Lebanese domicile.
Subsequently, the Nigerian constitution safeguards the freedom of each and every Nigerian to manifest, in observance, their chosen faith. Section 38 (1) of the Constitution states that: … every person shall be entitled to freedom of thought, conscience and religion … 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
On May 26, 2016, the bill to increase the powers and geographical jurisdiction of Sharia Law in Nigeria passed second reading at the House of Representatives without a debate. The bill seeking to amend section 262 and 277 of the 1999 constitution which was sponsored by Abdullahi Salame, the lawmaker representing Gwadabawa/Illela federal constituency of Sokoto state, scaled through, “due to its sensitivity”.
Even the then Speaker Yakubu Dogara who Salame said had supported the bill at the beginning turned round to say there was no such a bill in the House, due to the uproar that greeted it.
Religious diversity is not peculiar to Nigeria, neither concurrent application of multi-religious adherent laws in nations’ courts are exclusive preserve of Nigeria. The following are few examples of such practices in other comity of nations.
But in India, the Muslim Personal Law (Shariat) Application Act 1937 directs the application of Muslim Personal Law to Muslims in a number of different areas, mainly related to family law.
While in Israel, according to online encyclopedia, Wikipedia, ‘’Islamic law is one of the sources of legislation for Muslim citizens. Islamic law is binding on personal law issues for Muslim citizens. The Sharia Courts of Israel arose as a continuation of the Ottoman sharia courts, whose jurisdiction was restricted under the British Mandate. The Sharia Courts operate under the jurisdiction of the Ministry of Justice and adjudicate matters relating to marriages, divorce, financial maintenance, legal capacity and guardianship, custody of children, paternity, prevention of domestic violence, conversion to Islam, and inheritance, among others’’
In Singapore, ‘’Sharia courts may hear and determine actions in which all parties are Muslims or in which parties involved were married under Muslim law. Court has jurisdiction over cases related to marriage, divorce, betrothal, nullity of marriage, judicial separation, division of property on divorce, payment of dowry, maintenance, and muta’’.
Also, in Germany, ‘’under certain conditions, Sharia rules on domestic relations are recognized by German courts based on private international law if no party has German citizenship. The outcome must not violate the principles of the German legal system according to the ordre public’’.
Besides, in United Kingdom, especially in England and Wales, ‘’Sharia councils, which have no legal status and no legal jurisdiction, are consulted by many Muslims as a source of religious guidance and as an instance granting religious divorces. Likewise, Muslim Arbitration Tribunals are afforded limited recognition as purveyors of arbitration’’.
The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws which regulate an establishment of religion, prohibit the free exercise of religion, … It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another … in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’ … That wall must be kept high and impregnable. We could not approve the slightest breach.
Controversy has surrounded attempts by several state legislatures to limit the consideration of Islamic religious law (commonly referred to as sharia) or religious law generally, in domestic courts. In one of the most publicized examples, Oklahoma voters definitively approved a state constitutional amendment that prohibited state courts from considering “sharia law,” but the amendment has not taken effect pending the outcome of a lawsuit challenging its constitutionality. Other states have introduced variations of this limitation, with some generally prohibiting the use of religious principles in domestic courts.
Critics have questioned the constitutionality of several recently proposed or enacted measures under the religion clauses of the First Amendment of the U.S. Constitution. The Establishment Clause prohibits the government from establishing an official religion or showing preference among religions or between religion and non-religion. The Free Exercise Clause prohibits the government from burdening an individual’s ability to exercise his or her religious beliefs if the burden does not arise from neutral law of general applicability but instead infringes upon a particular set of beliefs. Any bill that would specifically ban sharia may be challenged as a disapproval of Islam in violation of the Establishment Clause or as an infringement on the ability of Muslims to freely exercise their beliefs under the Free Exercise Clause. Broader proposals that address religion generally would not necessarily comport with the First Amendment either, however.
According to Michael Kirkland, UPI Senior Legal Affairs Writer, ‘’disputes over the laws of various religious traditions have occasionally made their way into U.S. civil courts, but the [U.S.] Supreme Court consistently has ruled that judges and other government officials may not interpret religious doctrine or rule on theological matters. In such cases, civil courts must either defer to the decisions of religious bodies or adjudicate religious disputes based on neutral principles in secular law.
“Across the United States, religious courts operate on a routine, everyday basis,” the analysis says. “The Roman Catholic Church alone has nearly 200 diocesan tribunals that handle a variety of cases, including an estimated 15,000 to 20,000 marriage annulments each year. In addition, many Orthodox Jews use rabbinical courts to obtain religious divorces, resolve business conflicts and settle other disputes with fellow Jews. Similarly, many Muslims appeal to Islamic clerics to resolve marital disputes and other disagreements with fellow Muslims.
However, in the landmark 2010 pro-Sharia ruling on S.D. v. M.J.R., Judge Joseph Charles Jr. of New Jersey concluded that the Muslim ex-husband repeatedly had raped (see Taharrush) his Muslim ex-wife. After testimony from the Muslim man’s imam, the judge denied the ex-wife’s request for a permanent restraining order against her ex-husband, citing the Muslim man’s “belief.”
Meanwhile, Section 24(1) of the 1999 Constitution (Nigeria) provides that, “It shall be the duty of every citizen to respect the dignity of other citizens and the rights and legitimate interest of others and live in unity and harmony and in the spirit of common brotherhood.” This is what governs affairs of people of many nations devoid of religious or ethnic based conflicts.