sharia criminal law in nigeria
[16][17][18] Also, hadith literature prohibits beasts having sharp canine teeth, birds having claws and talons in their feet,[19] tamed donkeys,[20] and any piece cut from a living animal.[15][21]. [21] These bills have generally referred to banning foreign or religious law in order to thwart legal challenges. Modernist interpretation of Islamic scriptures without adherence to the rules or methodologies of traditional jurisprudence, known as, Advocacy of democratic ideas, often accompanied by a belief that they are compatible with Islam, which can play a public role within a democratic system, as exemplified by many protestors who took part in the, Support for democratic procedures such as elections, combined with religious or moral objections toward some aspects of Western democracy seen as incompatible with sharia, as exemplified by Islamic scholars like, Rejection of democracy as a Western import and advocacy of traditional Islamic institutions, such as. In some cases, this was because Muslim governments wanted to make their states more powerful and they took European states as models of what a modern state should look like. [163] Religious police organizations tend to have support from conservative currents of public opinion, but their activities are often disliked by other segments of the population, especially liberals, urban women, and younger people. the roots of fiqh), which studies the theoretical principles of jurisprudence, and furūʿ al-fiqh (lit. Frank, Michael J. [96], Classical fiqh acknowledges and regulates slavery as a legitimate institution. [117] Brunei has been implementing a "Sharia Penal Code", which includes provisions for stoning and amputation, in stages since 2014. [208] Islamic scholars and Islamist political parties consider 'universal human rights' arguments as imposition of a non-Muslim culture on Muslim people, a disrespect of customary cultural practices and of Islam. "The Case of Hamza Kashgari: Examining Apostasy, Heresy, and Blasphemy Under Sharia". [187] On the Internet, "dozens of self-styled counter-jihadis" emerged to campaign against Sharia law, describing it in strict interpretations resembling those of Salafi Muslims. [296][297][298][299], Others believe that wife-beating is not consistent with a more modernist perspective of the Quran. [107] The 1917 Ottoman Law of Family Rights adopted an innovative approach of drawing rules from minority and majority opinions of all Sunni madhhabs with a modernizing intent. [209][210] In 1990, the Organisation of Islamic Cooperation, a group representing all Muslim-majority nations, met in Cairo to respond to the UDHR, then adopted the Cairo Declaration on Human Rights in Islam. [5][11], The two major genres of furūʿ literature are the mukhtasar (concise summary of law) and the mabsut (extensive commentary). [5][66] The terminology of juristic literature was conservative and tended to preserve notions which had lost their practical relevance. [173][174] The law was also invoked in an unsuccessful blasphemy suit against the feminist author Nawal El Saadawi. [222] Jurists of different schools prescribed different punishment for blasphemy against Islam, by Muslims and non-Muslims, ranging from imprisonment or fines to the death penalty. [9][10] Sharia rulings fall into one of five categories known as “the five decisions” (al-aḥkām al-khamsa): mandatory (farḍ or wājib), recommended (mandūb or mustaḥabb), neutral (mubāḥ), reprehensible (makrūh), and forbidden (ḥarām). constitution. [171], In Egypt, a law based on the doctrine of hisba had for a time allowed a Muslim to sue another Muslim over beliefs that may harm society, though because of abuses it has been amended so that only the state prosecutor may bring suit based on private requests. [103][104] Among other changes, these reforms brought about abolition of slavery, prohibition of child marriage, and a much more frequent use of capital punishment. [94] This legal framework was implemented with varying degree of rigor. [108] As traditional Islamic jurists lost their role as authoritative interpreters of the laws applied in courts, these laws were codified by legislators and administered by state systems which employed a number of devices to effect changes,[4] including: The most powerful influence on liberal reformist thought came from the work of the Egyptian Islamic scholar Muhammad ʿAbduh (1849–1905). [8] Other scholars think that the word "sharia" originally meant "path to the water hole". [129], A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible in traditional sharia courts for hudud crimes, i.e., the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, apostasy, drinking intoxicants and theft. Anyone could ask them a question about law, and they were expected to give an answer for free. They accused secular leaders of corruption and predatory behavior, and claimed that a return to Sharia would replace despotic rulers with pious leaders striving for social and economic justice. Less serious crimes were often handled by local police and market inspectors according to local customs, which were only loosely related to sharia. The code was based on Hanafi law, and its authors selected minority opinions over authoritative ones when they were felt to better "suit the present conditions". Nigerian society serves as the test of the reality, legitimacy, ability and aptness of the central government. [4] Introduction of Sharia-based laws sparked intercommunal violence in Nigeria[19][20] and may have contributed to the breakup of Sudan. Marriage below the age of competence was permissible only if proof of sexual maturity was accepted in court, while marriage under the minimum age was forbidden. […] [12] The most notorious examples are the fatwas of militant extremists. In most of them only a small part of the legal system is based on classical sharia. The fiqh literature parallels rabbinical law developed in the Talmud, with fatwas being analogous to rabbinic responsa. and other circumstantial evidence may likewise rejected in hudud cases in favor of eyewitnesses in some modern interpretations. [103][105], British administrators felt that Sharia rules too often allowed criminals to escape punishment, as exemplified by Hastings' complaint that Islamic law was "founded on the most lenient principles and on an abhorrence of bloodshed". [6][28], Saudi Arabia is an exceptional case in the legal history of the Muslim world. The ulema (religious scholars) were involved in management of communal affairs and acted as representatives of the Muslim population vis-à-vis the ruling dynasties, who before the modern era had limited capacity for direct governance. [4][11] Other criminal cases belong to the category of taʿzīr, where the goal of punishment is correction or rehabilitation of the culprit and its form is largely left to the judge's discretion. [215] Bassam Tibi states that Sharia framework and human rights are incompatible. [5][4] The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman. [74] Although independent muftis never disappeared, from the 12th century onward Muslim rulers began to appoint salaried muftis to answer questions from the public. [28], Some scholars describe the word šarīʿah as an archaic Arabic word denoting "pathway to be followed" (analogous to the Hebrew term Halakhah ["The Way to Go"]),[29] or "path to the water hole"[30][31] and argue that its adoption as a metaphor for a divinely ordained way of life arises from the importance of water in an arid desert environment. regarded the Quran[note 3] and Muhammad's hadiths as just one sources of law,[note 4] with jurist personal opinions, the legal practice of conquered peoples, and the decrees and decisions of the caliphs also being valid sources.[43]. [62] Although most classical-era jurists recognized maslaha and maqasid as important legal principles, they held different views regarding the role they should play in Islamic law. This led to major changes in the legal systems of these lands. [70][46] Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world. [240] This view is dominant in conservative societies like Saudi Arabia and Pakistan. Sikainga, Ahmad A. However, there is little research available to indicate to what extent Muslims acknowledge the authority of different muftis or heed their rulings in real life. The animal must be killed in the most humane way: by swiftly cutting the throat. Saudi Arabia and some other Gulf states possess what may be called classical Sharia systems, where national law is largely uncodified and formally equated with Sharia, with ulema playing a decisive role in its interpretation. Some parts of sharia can be described as "law" in the usual sense of that word, while other parts are better understood as rules for living life in accordance with God's will. 7: 22]). [128], The rules of evidence in Sharia courts traditionally prioritize oral testimony, and witnesses must be Muslim. [81] Another office for maintaining public order was the muhtasib (market inspector), who was charged with preventing fraud in economic transactions and infractions against public morality. [272], Some modern ulema, such as Yusuf al-Qaradawi and Sulaiman Al-Alwan, have supported suicide attacks against Israeli civilians, arguing that they are army reservists and hence should be considered as soldiers, while Hamid bin Abdallah al-Ali declared that suicide attacks in Chechnya were justified as a "sacrifice". Students hoping to pursue legal careers in the new court system increasingly preferred attending secular schools over the traditional path of legal education with its dimming financial prospects. [5] This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question. Jonathan A.C. Brown, Misquoting Muhammad, p. 131. An International Islamic Fiqh Academy was created by the Organisation of Islamic Cooperation, but its legal opinions are not binding. In the modern era, it was the government who controlled the laws. [340], There are differences between Islamic and Western legal systems. common law and sharia in nigeria Dec 19, 2020 Posted By Stephenie Meyer Public Library TEXT ID 1325a40f Online PDF Ebook Epub Library nigeria given the diversity of nigerian population one cannot be taken by surprise with the fact that some the law of nigeria consists of … [227], Blasphemy laws were rarely enforced in pre-modern Islamic societies, but in the modern era some states and radical groups have used charges of blasphemy in an effort to burnish their religious credentials and gain popular support at the expense of liberal Muslim intellectuals and religious minorities. The first areas of Islamic law to be impacted were usually commercial and criminal laws, which impeded colonial administration and were soon replaced by European regulations. That is happening now, with the arrests of 13-year-old Omar Farouq, Yahaya Sharif, and Mubarak Bala. Like the British in India, colonial administrations typically sought to obtain precise and authoritative information about indigenous laws, which prompted them to prefer classical Islamic legal texts over local judicial practice. [4][5] The same constitutions usually also refer to universal principles such as democracy and human rights, leaving it up to legislators and the judiciary to work out how these norms are to be reconciled in practice. [21] There are ongoing debates as to whether Sharia is compatible with democracy, human rights, freedom of thought, women's rights, LGBT rights, and banking. A Sharia court in northern Nigeria.Courtesy of Open Doors The situation Nigeria’s National Assembly is considering a change to the country’s constitution that would expand the scope of jurisdiction of the country’s Islamic Sharia courts of appeal. [97][98] However, slaves could not inherit or enter into a contract, and were subject to their master's will in a number of ways. Mohamed S. El-Awa (1993), Punishment In Islamic Law, American Trust Publications. [87][95] According to Ottoman records, non-Muslim women took their cases to a Sharia court when they expected a more favorable outcome on marital, divorce and property questions than in Christian and Jewish courts. [246] In a 2008-2012 Pew Research Center poll, public support for capital punishment for apostasy among Muslims ranged from 78% in Afghanistan to less than 1% in Kazakhstan, reaching over 50% in 6 of the 20 countries surveyed. [110][111] Islamist leaders such as Ayatollah Khomeini drew on leftist anticolonialist rhetoric by framing their call for Sharia as a resistance struggle. In Canada, for example, sharia law has been explicitly banned in Quebec by a 2005 unanimous vote of the National Assembly,[192] while the province of Ontario allows family law disputes to be arbitrated only under Ontario law. "[231] Others, in contrast, consider blasphemy laws to violate freedom of speech,[232] stating that freedom of expression is essential to empowering both Muslims and non-Muslims, and point to the abuse of blasphemy laws in prosecuting members of religious minorities, political opponents, and settling personal scores. [285] While modernist Islamic scholars have emphasized defensive and non-military aspects of jihad, some radical Islamists have advanced aggressive interpretations that go beyond the classical theory. [261] Historical instances of prosecution for homosexual acts are rare, and those which followed Sharia rules are even rarer. [51], The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan (juristic preference), istislah (consideration of public interest) and istishab (presumption of continuity). In the following northern states, where Sharia law applies, penalties can also include death: Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, ⦠This tradition continued to be practiced in madrasas, which spread during the 10th and 11th centuries. [139][140] In Pakistan, DNA evidence is rejected in paternity cases on the basis of legislation that favors the presumption of children's legitimacy, while in sexual assault cases DNA evidence is regarded as equivalent to expert opinion and evaluated on a case-by-case basis. [226] In the modern Muslim world, the laws pertaining to blasphemy vary by country, and some countries prescribe punishments consisting of fines, imprisonment, flogging, hanging, or beheading. [82][83] Islamic law required judges to be familiar with local customs, and they exercised a number of other public functions in the community, including mediation and arbitration, supervision of public works, auditing waqf finances, and looking after the interests of orphans. However, classical jurists developed very strict rules which restrict when these punishments could be applied, so that in many cases it became almost impossible to convict anyone under these rules. There are some states that have adopted Sharia law and these states reportedly have imposed the death penalty for homosexual behavior. [12], Modern public and political fatwas have addressed and sometimes sparked controversies in the Muslim world and beyond. [14], Advocates of Islamization have often been more concerned with ideology than traditional jurisprudence and there is no agreement among them as to what form a modern Sharia-based "Islamic state" should take. This paper examines the constitutionality of introducing the criminal aspect of sharia in Nigeria with a view to determining which of the Constitution and sharia is the supreme law. [28], In modern times, criminal laws in the Muslim world were widely replaced by codes which were inspired by European laws. [32] In Muslim literature, šarīʿah designates the laws or message of a prophet or God, in contrast to fiqh, which refers to a scholar's interpretation thereof. The animal must not have been exposed to feces, worms, and other impurities. Article 24 of the Cairo declaration states that "all the rights and freedoms stipulated in this Declaration are subject to the Islamic shari'a". Rom. University of Texas Press. The most recent constitution came into effect in 1999. It is unclear whether the laws of Afghanistan and United Arab Emirates provide for the death penalty for gay sex, as they have never been carried out. The standards of evidence for criminal cases were so strict that a conviction was often difficult to obtain even for apparently clear-cut cases. [46] In the 1870s, a codification of civil law and procedure (excepting marriage and divorce), called the Mecelle, was produced for use in both Sharia and secular courts. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff. Islamic jurists were commonly in attendance and a judge often presided over the court as a deputy of the ruler. Their purpose of mazalim courts was to "right wrongs" which could not be addressed through procedures of qadi's courts. In other cases, it was because Europeans who colonized these lands forced them to abandon parts of Islamic law and follow European laws instead. [185], In the Western world, Sharia has been called a source of "hysteria",[186] "more controversial than ever", the one aspect of Islam that inspires "particular dread". [5][65], Some historians distinguish a field of Islamic criminal law, which combines several traditional categories. In pre-modern Islam, the penalties prescribed for homosexual acts were "to a large extent theoretical", owing in part to stringent procedural requirements for their harsher (hudud) forms and in part to prevailing social tolerance toward same-sex relationships. [238][240][241][242] Wael Hallaq writes that "[in] a culture whose lynchpin is religion, religious principles and religious morality, apostasy is in some way equivalent to high treason in the modern nation-state". [4] Over the centuries, Sunni Islam muftis were gradually incorporated into state bureaucracies,[12] and fiqh was complemented by various economic, criminal and administrative laws issued by Muslim rulers. [5][14], One of the most influential figures in modern legal reforms was the Egyptian legal scholar Abd El-Razzak El-Sanhuri (1895–1971), who possessed expertise in both Islamic and Western law. [5] In his view, the real architect of Islamic jurisprudence was Al-Shafi‘i (d. 820 CE/204 AH), who formulated this idea (that legal norms must be formally grounded in scriptural sources) and other elements of classical legal theory in his work al-risala,[5][37] but who was preceded by a body of Islamic law not based on primacy of Muhammad's hadiths. Sharia rules classify actions into one of the following categories:[6], Sharia in Islam is viewed as the revealed law of God, which cannot be altered. [4][7] It is a sin or a crime to perform a forbidden action or not to perform a mandatory action. Each state of the federation is guaranteed with the right to apply and establish sharia law court in Sec 275 (1). Following precedents of earlier Islamic thinkers, he advocated restoring Islam to its original purity by returning to the Quran and the sunna instead of following the medieval schools of jurisprudence. [206] Kevin Boyle also criticized the decision for not distinguishing between extremist and mainstream interpretations of Islam and implying that peaceful advocacy of Islamic doctrines ("an attitude which fails to respect [the principle of secularism]") is not protected by the European Convention provisions for freedom of religion. [5] It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date. Judges in Saudi Arabia follow the classical principle which says that hudud punishments should be avoided if at all possible, and the punishments which they apply are usually tazir punishments which are left to their own choice. [70] The Hanbali school, with its particularly strict adherence to the Quran and hadith, has inspired conservative currents of direct scriptural interpretation by the Salafi and Wahhabi movements. "[191], Some countries and jurisdictions have explicit bans on sharia law. Tetley (1999), Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), La. Homosexuality is not illegal anywhere else in majority-Muslim Indonesia, but Aceh was granted the right to practice Sharia law as part of a peace deal with the Indonesian government in 2006 to end a decades-long separatist war. Testimony to establish the crime of adultery, fornication or rape must be from four Muslim male witnesses, with some fiqhs allowing substitution of up to three male with six female witnesses; however, at least one must be a Muslim male. Before 2000, the scope of sharia law in Nigeria was limited to civil cases.Since then, nine northern Nigerian states have adopted sharia law fully, to include criminal cases as well. [17][18] Sharia also continues to influence other aspects of private and public life. Iran declared in the UN assembly that UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law. [102] Islamic commercial laws were also replaced by European (mostly French) laws in Muslim states which retained formal independence, because these states increasingly came to rely on Western capital and could not afford to lose the business of foreign merchants who refused to submit to Islamic regulations. [14][87] Sanhuri's Egyptian code incorporated few classical Sharia rules, but he drew on traditional jurisprudence more frequently for the Iraqi code. [4][14] In practice, these changes were largely symbolic, and aside from some cases brought to trial to demonstrate that the new rules were being enforced, hudud punishments tended to fall into disuse, sometimes to be revived depending on the local political climate. Marriage and slavery in early Islam. Request PDF | Sharia Criminal Law, Islam and Democracy in Nigeria Today | Sharia and Islam constitute one of the key indices in the current Nigerian constitutionalism and democracy project. [5][7], Classical jurists held that human reason is a gift from God which should be exercised to its fullest capacity. [15], While Islamic law prohibits already-dead meat, this does not apply to fish and locusts. [4] To the broader Muslim public, the calls for Sharia often represent, even more than any specific demands, a vague vision of their current economic and political situation being replaced by a "just utopia". [252] According to Khaled Abou El Fadl, moderate Muslims do not believe that apostasy requires punishment. [279][280] Classical jurists developed an elaborate set of rules pertaining to jihad, including prohibitions on harming those who are not engaged in combat. THE Supreme Council for Sharia in Nigeria, yesterday, called on the South-West governors to provide ranches for herdsmen before banning open grazing, to avoid further crisis, warning that outright banning of open grazing, without an alternative for ⦠[70] State law codification commonly utilized the methods of takhayyur (selection of rulings without restriction to a particular madhhab) and talfiq (combining parts of different rulings on the same question). Apostasy is punished by death unless the apostate agreed to return to Islam. It was maintained by a waqf (charitable endowment), which paid salaries of professors, stipends of students, and defrayed the costs of construction and maintenance. Sharia law. Conflicts between individuals had the potential to escalate into a conflict between their supporting groups and disrupt the life of the entire community. [88] It granted slaves certain rights and protections, improving their status relative to Greek and Roman law, and restricted the scenarios under which people could be enslaved. "Trying Times – The Prosecution of Terrorists in the Central Criminal Court of Iraq". [270][271] Criminalization of consensual homosexual acts and especially making them liable to capital punishment has been condemned by international rights groups. A Muslim minor girl's father or guardian needs her consent when arranging a marriage for her. [292][293][294][295] Musawah, CEDAW, KAFA and other organizations have proposed ways to modify Sharia-inspired laws to improve women's rights in Muslim-majority nations, including women's rights in domestic abuse cases.