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Course Title: Nigerian Legal System
Course Code: LPI 203
ISLAMIC LAW
Islamic Law can be defined as the totality of the content, method, and juristic heritage which
Muslims consider to be their distinct Law. Islamic law is the expression of Allah's command
for Muslim society and, in application, constitutes a system of duties that are incumbent upon
a Muslim by virtue of his religious belief.
Islamic law, as the name implies, gets its name from Islam, the religion and way of life of the
Muslims. Therefore, Islamic Law is the law of Islam. Islamic law is the divine law. It is
immutable and unchangeable. It is sacrosanct, indelible and constant. It is fixed by almighty
Allah for all times and must be obeyed by the people.
Islam is described not only as a religion but also as a complete way of life. This is because the
proponents of the Sharia see society as having an integrated normative system, where law and
religion is part of the same cultural complex.
It is regarded as a path not only leading to true worship and belief in God, but also the path
believed by all Muslims as prescribed by him through his messenger, prophet Mohammed. In
Allah’s estimation, man is not perfect. He cannot make perfect laws because by himself, he
does not know what is good, evil, beneficial, or harmful to him. Therefore, Allah revealed to
man the Law which is the right and complete code of life for the entire human race to follow.
Islamic law has been classified as a component of customary law in Nigeria. However, recent
findings point to the fact that Islamic law differs from customary law in a number of ways. The
rules of customary law change from time to time. The flexible nature of customary law accounts
for its ability to adapt to new developments that were not on ground at the time such customary
laws evolved. `They reflect the changing social and economic conditions. On the other hand,
Islamic law, which is largely codified already, is not as flexible as customary law. Express
provisions of the Quran for instance, cannot be altered without incurring the wrath of adherents
of the Islamic faith. Other sources of Islamic law are supposed to be in conformity with the
express provisions of the written Quran and where there is any inconsistency, the written code
prevails over the inconsistent source of Islamic law.
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Islamic law unlike customary law is written. The acceptability of Islamic Law is a divine
command from the Almighty Allah and therefore spontaneous on the part of all Muslims.
Islamic law therefore does not depend on its acceptability of the Muslims, unlike customary
law which must be accepted as binding by members of the community.
Origin and Spread of Islam and Islamic Law
Islam came into this world through the holy prophet Muhammad, the messenger of the
Almighty Allah. The religion was chosen by God for the Holy Prophet, who was to spread and
disseminate it. The Holy prophet, after getting the message of Islam directly from God, spread
it with his companions. Islam was introduced into the Northern parts of the country as early as
the 14th century and gradually germinated into fruition despite the hostility of the colonial
masters. By the time the colonialists arrived, Shariah was already a flourishing system in
Northern Nigeria.
The colonial masters with their typical missionary background did not see anything good
in Islam and Islamic law and they showed their hostility in different ways to prove their
point. The Alkali courts were permitted to apply Sharia civil and criminal laws. Their
jurisdiction was however limited as far as imposition of punishments was concerned. They
were also expected to function under the strict supervision and control of colonial
administrative officers. The preservation of Alkali courts was borne out of necessity
because English law could not be a substitute as Islamic law was already a part of the lives
of the people.
Despite this, the Muslim leadership in the Northern provinces did not relent in their struggle
for religious tolerance on the part of the colonialists. They believed they had the natural
right to serve Allah in accordance with their divine belief. The southern provinces
experienced the same hostility but it was not felt so much because they had a lesser
population than the Muslims in the North. Thus, for reasons of political expediency, the
customary courts and Alkali courts were allowed to operate side by side with the British
legal system. However, slowly and steadily, the British administrators evolved their own
legal system.
However, after Nigeria’s independence, Islam as a religion and way of life of Muslims
experienced a tremendous growth, particularly in the Northern Region. Thus, Islamic Law
has been spreading tremendously with the establishment of teaching institutions all over
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the country. Islamic Law from its early formative years to date has not been only a law
governing Muslims but a formidable dominant and comprehensive legal system of the
Islamic world. Islamic law does not create a contrast between law and morals. Mahmud
stated thus;
The extent and scope of Islamic Law, since the 7th century , is to say
the least, unique and comprehensive legal system with developed and
articulate substantive law dealing with contracts, torts, Evidence,
Crimes, Company and Partnership, Islamic Law, State laws,
International law, Moral laws and Administrative Laws, etc
Thus, the Holy Quran is a comprehensive book of God dealing with different aspects of
both substantive and adjectival laws with a moral base and background
Sources of Islamic Law
The four main sources of Islamic Law are as follows;
•
The holy Quran
•
The Sunna
•
The Ijma
•
The Quiyas
1)The Holy Quran: This is a book of Allah sent directly by him to Muslims with all the contents
complete. It is the original, basic and most fundamental source of Islamic Law. To Muslims,
the Quran being the very word of God, is the ultimate authority where the conception of legality
and every legal obligation springs from. The verses of the Quran cannot be changed or
tampered with by any human being. The supreme culture of the Qur’an cannot be denied or
disputed by any true believer of Islam. According to Niki Tobi in his book ‘Sources of Nigerian
Law’, out of all the four main sources of Islam, there cannot be any conflict between the Quran
and the second source ‘Sunnah’. This is because the ‘Sunnah’, which is the traditions of the
holy prophet are derived from the Quran. However, such cannot be said of the other two sources
because of the human element and intervention which characterises them and which may
deviate from the teachings of the holy Book. This is possible as it relates to humanity which is
never perfect. In such situation, the teachings of the Holy Book will prevail.
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2) The Sunna: This is the second source of Islamic Law. The Arabic word ‘Sunnah’ literally
means ‘a way or rule or mode of life.’ This represents the sayings, teachings and practices of
Prophet Mohammed found in the Hadith. It includes what the followers of the holy prophet
heard and witnessed from the prophet. It can also be defined as the elaboration and
exemplification of the principles in the Quran, exhortations and Laws in life-situation by the
prophet. The Holy Prophet Mohammad acted divinely and in full obedience to the Quran. His
lifestyle was an embodiment of the tenets and dogmas of the Quran. As a person, the prophet
said and did certain things, took certain actions, approved certain actions of his companions
and followers. The totality of all these constitute Suunah. Although Sunnah emanates from the
Quran, it is not a repetition of the Quran as it goes beyond the main principles of the Quran in
certain instances. The Sunna amplifies, elucidates and consolidates the principles of the Quran
as collected from the physical lifestyle and comportment of the Holy prophet.
3) The Ijma: The Sunna also left various details unelaborated, so there arose the need for
another source of sharia Law called the IJMA. It is the concession or concurrence of opinions
of Islamic jurists on a particular question of Law. It is adopted to fill any lacunae in the Qur’an
and Sunnah or to explain any discrepancies in their teachings. This source is of great practical
significance in the interpretation of Islamic Law. In an effort to ensure that the principles in the
Quran were expounded, Muslim jurists put their heads together to conduct detailed studies of
the two sources. After very comprehensive and critical sources, they came out with some
fundamental agreements and concurrence on a particular point or question of Law. These
agreements, consensus of opinion and concurrence of like pious minds are articulated and
published for use by the entire Muslim world. Ijma can be described as somewhat flexible
because it has to keep track with changing circumstances of the Muslim society in any given
question of law. That is the well-entrenched principles of Islam have to be interpreted to
accommodate the changing society. Ijma is binding on Muslims in so far as it does not conflict
with the Quran.
The importance of Ijma as a source of Islamic law cannot be overemphasized. Its capability to
adapt to the changing society offers a major advantage to the global development and
orientation of Islamic Law in the Muslim polity.
4) The Quiyas: The noun Qiyas is a derivation from the verb Qasa which means ‘to weigh’ or
‘to measure’. It is a systematic deduction on a matter not falling within the Holy Quran or the
Sunnah. It helps to accommodate the growing needs and aspirations of the community. Qiyas,
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as a source of Islamic Law, arises from the application of already established principles to new
or concurrent situations and circumstances. The jurist does this by a careful analysis of the
already existing situation and from that, makes some sensible analogical deductions. Like Ijma,
Qiyas is also based on the Quran and Sunnah. Anything outside that is null and void and will
not have any binding force or effect. Qiyas is the most modern in relation to the other three
sources. With the expansion of Islam, new Islamic ideas and ideals developed. The innovations
were not within the strict conservative contemplation of the Quran and the Sunnah. There was,
therefore, the need to relate and match the fast growing and developing Muslim world with
new ideals and new rules. Muslim jurists embarked on a logical and systematic reasoning based
on principles entrenched in the Quran and Sunnah. They developed into very useful and pious
opinions which were documented and later became known as Qiyas
Before Qiyas is valid, the following conditions must be fulfilled;
1) The original order in the text to which analogy is sought to be applied must be capable
of being extended, thus it must not have been confined to a particular state of facts.
2) Where the law of the text in the original order is beyond comprehension, analogy cannot
be applied.
3) The result of the Qiyas should not be inconsistent with the rule laid down in the original
prescription (Nais) i.e the Quran and the Sunna
4) Qiyas should be applied to ascertain a point of Law and not to determine the meaning
of the word used
5) The cause must be a compelling factor, that is, the idea intended by the sharia. It should
be apparent, complete in itself and not hidden or ambiguous.
Islamic Law also recognises four other secondary sources, which supplement and amplify the
four main sources. They are the Istihan (Juristic Preference), Istislah (public interest), Istidlal
(reasoning) and urf (custom).
There are four Sunni schools of jurisprudence, each with its distinctive doctrine. The one
prevailing in Northern Nigeria is the Maliki school and Maliki legal doctrine is the principal
constituent of the Northern Nigerian legal practice.
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APPLICATION OF ISLAMIC LAW IN NIGERIAN COURTS
Sharia stipulates the Law of God in the most comprehensive manner with the object of showing
to man the best way and means to fulfil his needs in the most successful and most beneficial
way, not only in this life but also in the hereafter.
In the Sharia scheme of rights and obligations, four types of rights are established; (i) the rights
of God, (ii) the rights of man upon himself, (iii) the rights of other people over man; and (iv)
the rights of those powers and resources which God has placed in his service and has
empowered him to use for his benefit. Much as he enjoys his rights, he has obligations towards
others rights. The violation of any of these rights results in civil wrong or criminal offence, or
both. Sharia has not considered the issue of procedure to be of paramount importance so as to
distinguish between subject matter of the same nature. Thus, a Sharia judge is empowered to
look into various heads of rights that have been wronged in a particular case and adjudicate on
them accordingly.
The Sharia courts of Appeal of the Federal Capital Territory and the State exercise appellate
and supervisory jurisdictions in proceedings involving questions of Islamic personal Law. See
Section 260-262, 1999 Constitution (as amended). In the case of Abubakar Faransi v Habsatu
Noma [2007] 10 N.W.L.R pt 104 203, it was held that the Sharia Court of Appeal of a state
must restrict itself to only questions of Islamic personal Law and that since the present case
was not related to Islamic law, the court lacked jurisdiction to entertain the suit. These new
Sharia Courts have jurisdiction in all civil litigation if both parties are Muslim and in criminal
proceedings if the accused is Muslim. Its constitutional jurisdiction is additional to whatever
jurisdiction that may be conferred on it by the law of the state where it is established.
The court consists of a grand kadi and such other number of kadis of the Sharia court of Appeal
as may be prescribed by the National Assembly. The Sharia Court laws stipulate that its judges
must be learned in Islamic law and they define their qualifications. Most of the laws create
institutions or offices to advise, supervise and control the functioning of the Sharia Courts (e.g.
a council of Islamic scholars (ulama), judicial inspectors, muftis) or assign such powers to
existing officials (such as the Grand Kadi, i.e. the president of the Sharia Court of Appeal).
Persons charged with criminal offences are entitled to defend themselves in person or by a legal
practitioner of their choice.
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APPLICATION OF CRIMINAL LAW
The Zamfara State Governor Ahmed Sanni, after announcing his adoption of Islamic law as
the basic source of law in the State in 1999, took further initiative by creating Sharia Courts in
place of the old Area Courts. The jurisdiction of the Sharia Court of Appeal of the states was
also extended to cover all aspects of the Islamic civil and criminal causes. Amid criticism,
blackmail and propaganda by the antagonists of Sharia, many States of the north have followed
suit. Unlike a clear dichotomy placed on civil and criminal law causes under other legal systems
adopted in Nigeria, criminal and civil wrongs are treated in their interwoven state under the
Islamic law.
In 2000, 12 Nothern states (Sokoto, Kebbi, Niger, Kano, katsina, Kaduna, Jigawa, Yobe,
Bauchi, Borno, Zamfara and Gombe reintroduced criminal law aspects of the sharia legal
system. All states that reintroduced Sharia criminal law have made changes in the judicial setup. Except in the states of Zamfara and Niger, where the government took the initiative, the
Sharia Penal Codes were enacted against the wish of the authorities under strong popular
pressure. The recently enacted Sharia Penal Codes violates basic human rights on several
scores. The most important area of conflict is that these laws prescribe for certain penalties
which are regarded as torture or degrading and inhuman punishment.
Criminal law falls in the Sharia under three separate headings.
1) Quranic offences and their punishments (hudûd)
2) The law of homicide and hurt
3) Other crimes punishable at the discretion of the judge (ta`zîr, siyâsa)
The Qur’anic offences are those which most engage non-Muslim attention. This domain, which
has a certain symbolic function to present-day advocates of the reintroduction of the Sharia,
consists of crimes mentioned in the Qur’an, for which fixed penalties are provided in the Sharia.
These are:
-Unlawful sexual intercourse (i.e. between persons who are not married), zina
-Theft, sariqa
-Robbery, hirâba
-Drinking of alcohol, shurb al-khamr
-False accusation of unlawful sexual intercourse, qadhf.
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The fixed punishments for zina are stoning to death for persons who are currently married or
have ever contracted a valid marriage. For those who have never contracted a marriage, the
punishment is one hundred lashes and, in addition, banishment for men. Theft is to be punished
by amputation of the right hand. Robbery is punished by death if a life has been taken, death
by crucifixion if both lives and property have been taken, by amputation of both the right hand
and the left foot if only property has been taken, and by banishment if there was only a “hold
up” without further aggravation. Qadhf and drinking alcohol are both punishable with eighty
lashes. An essential element with regard to the Quranic offences is that, if they are formally
proven, the judge has no latitude in the choice of punishment.
The second domain, that of homicide and hurt, is one characterised by private prosecution in
the sense that the culprit can only be sentenced and punished if the victim demands punishment.
The third domain of Islamic criminal law has no clearly defined offences. Judges have the
discretionary power to punish sinful or otherwise undesirable acts. This is called ta`zîr or
siyâsa. In the past rulers often issued legislation in this field in order to restrict the freedom of
the judges.
The reintroduction of Sharia criminal law is in the first place justified on religious grounds.
Many Muslims believe that in order to be good Muslims they must live in an Islamic order,
enforced by the state. They argue that the establishment of such an order is warranted under S.
38 of the Constitution, guaranteeing freedom of religious practice. In addition, many Muslims
welcome the implementation of Islamic criminal law on practical grounds: they see it as a
solution against a wide range of social evils, such as soaring crime rates and corruption. Islamic
criminal law, with its harsh punishments for homicide, grievous hurt, theft, robbery and
immoral behaviour, is regarded as an adequate answer.
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