Letter
to the Nigeria's Attorney General
By
Alhaji
Aliyu Umar, Esq.
Forwarded
By
Mahdi
Sadiq, Esq.
mahdisadiq@hotmail.com
27th
March, 2002
The
Hon. Attorney General of the Federation,
Federal
Ministry of Justice,
10th
Floor, Federal Secretariat,
Maitama,
Abuja FCT.
Dear
sir,
RE: PROHIBITION OF DISCRIMINATORY PUNISHMENTS
Your
letter to the Governors practicing the Shari’a legal system refers.
Although I am not a Governor and your letter was not addressed to me, I none
the less hold the view that, I can venture an opinion for two main reasons:-
1)
The leaking of the contents of the letter to the press I believe is aimed
at stimulating public discuss of the issues involved.
2)
The letter seemingly aimed at protecting my interest as a Moslem and
those of my family. This is because
it is your considered view that the application of the Shari’a Law
discriminate against me and thus unconstitutional.
Mr.
Attorney General with all respects, you are wrong in your views.
This is because:-
Every student of Law is
aware that, the approach to constitutional interpretation, nor, any legislation
is, whole some to get at the true meaning of what the legislature aim to
achieve. I need not cite
authorities for the above proposition but because I am writing to a learned
Senior gentleman of the Bar who has achieved all that is achievable in his
profession, I will only cite one authority viz.: - SENATOR ABRAHAM ADE ADESANYA
VS. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND OTHER (1981) 5 S.C.112 AT
134 where the Supreme Court ruled that:
“The
Courts have a duty when interpreting the provisions of the 1979 constitution to
look at the constitution as a whole and construe the provisions in such away as
not to frustrate the hopes and aspirations of those who have made the strenuous
efforts to provide the constitution for the good government and welfare of all
persons in the country on the principles of freedom, equality and justice”.
If
the above proposition of how the constitution is to be interpreted is the
settled law in Nigeria, then, I wonder why you cited only section 42(1) of the
constitution in your letter which provides thus: -
42-(1)
A citizen of Nigeria of a particular community, ethnic group, place of origin,
sex, religion or political opinion shall not, by reason only that he is such a
person-
(a)
be subject either expressly by, or in the practical application of, any
law in force in Nigeria or any executive or administrative action of the
government, to disabilities or restrictions to which citizens of Nigeria of
other communities, ethnic groups, places of origin, sex, religions or political
opinions are not made subject; or
(b)
be accorded either expressly by, or in the practical application of, any
law in force in Nigeria or any such executive or administrative action, any
privilege or advantage that is not accorded to citizens of Nigeria of other
communities, ethnic groups, places of origin, sex, religions or political
opinions.
But
you conveniently ignore subsection (2) and (3) of section 42 of the
constitution, which provides as follows: -
S.
42-(2) No citizen of Nigeria shall be subjected to any disability or deprivation
merely by reason of the circumstances of his birth.
S.42-(3)
Nothing in subsection(1) of this section shall invalidate any law by
reason only that the law imposes restrictions with respect to the appointment of
any person to any office under the State or as a member of the armed forces of
the Federation or a member of the Nigeria Police Force or to an office in the
service of a body corporate
established directly by any law in force in Nigeria.
I
shall equally draw your attention to section 45 of the same constitution, which
provides as follows: -
S.45
(1) Nothing in section 37, 38, 39, 40 and 41 of this constitution shall
invalidate any law that is reasonably justifiable in a democratic society-
(a)
in the interest of defence, public safety, public order, public morality
or public health; or
(b)
for the purpose of protecting the rights and freedom of other persons.
If
therefore section 42 and 45 are interpreted together with the sole aim of
finding the intendment of the legislature and securing a maximum fairness to all
Nigerians, will you say that the constitution does not allow for discrimination
under certain special circumstances. I
will give you instances from the penal legislation in operation in Nigeria for
instance:-
S.
390(1) of the criminal code
Act enhance the punishment for stealing in special cases viz
S.
390
“Any person who steals anything capable of being stolen is guilty of a
felony, and is liable, if no other punishment is provided, to imprisonment
for three years. BUT
S.390(1)
provides that, “If the thing stolen is a testamentary instrument,
whether the testator is living or dead, the offender is liable to imprisonment
for life”. AND
S.490(4)(b)
provides that, “if the thing is stolen in a dwelling house and its
value exceeds ten Naira, or the offender at or immediately before or after the
time of stealing uses or threatens to use violence to any person in the dwelling
house …………… the offender is liable to imprisonment for seven years”.
See criminal code Act Cap 77 Laws of the Federation 1990.
It is also instructive to
read section 312, 313, 314 and 315 of the penal code being operated in the
North. These sections provided
enhance punishment to certain group of people within the Nigeria society.
I wonder what the Honourable Attorney General of the Federation intends
to do about them. Up to the time
you wrote to the Shari’a Governors, and throughout your practicing career you
have not made any submission about these legislations which are discriminatory
by your standard. Perhaps you will
like to hear the views of the Supreme Court concerning these sections.
I refer you to the case of T.U. AKWULE & 10 OTHERS VS. THE QUEEN
(1963) All N.L.R page 191 at page 197 when the Court said:
“Adopting
those views for our guidance, it is clear that the legislature of Northern
Nigeria has power” to make laws for the peace, order and good government of
the Region.…….. There is no
suggestion that in including bankers in section 315 of its penal code, that
legislature was using its power to legislate on an offence such as criminal
Breach of trust as a cloak for encroaching on the field of banks and banking.
The offence is created and defined in section 311; and any person guilty
of it may be punished under section 312: The
true nature of section 313, 314 and 315 is that certain categories of persons
(including bankers in section 315) should be liable to heavier punishment.
An example of this mode of
Penal Legislation is found in Criminal code of the Federation and of other
Regions. Section 390 of that code
provides a general punishment for stealing and goes on to provide heavier
punishments for graver cases of the offence.
But
Sir, that is not even the issue. The
issue borders on section 42(1) of the 1999 constitution which you cited in your
letter. It also borders on the
sections cited above. I will also
add the following sections. But
first, I will draw your attention to the preamble of the constitution thus:-
“We
the people of the Federal Republic of Nigeria having firmly and solemnly
resolved: To live in Unity and harmony as one indivisible and indissoluble
sovereign Nation under God dedicated to the promotion of inter African
Solidarity, world peace, international co-operation and understanding”.
The
questions that beg for answers are under which God?
Is it the God as understood by the Catholic, or the God as understood by
the protestants, or for that matter by the Moslems, which God is Nigeria living
under? Is it the God as defined by
the Hindus or the traditional Religion could it be the God as defined by the
Americans and the rest of the Western or donor Nations of the world.
Your letter did not touch on this important constitutional provision.
But
let us go back to the question of the interpretation of a document be it the
constitution an Act of the legislature or private document.
If it is accepted that one of the golden rule of interpretation is aimed
at finding the meaning of the whole document in this case the constitution, is
any one of the sections superior to the other.
My own view is that the
question must be answered in the negative.
To
find the true meaning of section 42(1), you must interprete the provisions in
conjunction with sections 42(2), (3), 45 and section 38 of the constitution
which provides as follows: -
S. 38(1) 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 private) to manifest and propagate
his religion or belief in worship, teaching, practice and observance.
S.38(2)
No person attending any place of education shall be required to receive
religious instruction or to take part in or attend any religious ceremony or
observance if such instruction, ceremony or observance relates to a religion
other than his own, or a religion not approved by his parent or guardian.
S.38(3)
N0 religious community or denomination shall be prevented from providing
religious instruction for pupils of that community or denomination in any place
of education maintained wholly by that community or denomination.
S.38(4)
Nothing in this section shall entitle any person to form, take part in the
activity or be a member of a secret society.
It
is my opinion, you should also take into consideration the following sections of
the constitution:-
S.10
The Government of the Federation or of a State shall not adopt any
religion as State Religion.
S.4
(6) The legislative powers of a State of the federation shall be vested in the
House of Assembly of the State.
S.4(7)
The House of Assembly of a State shall have power to make laws for the
peace, order and good government of the State or any part thereof with respect
to the following matters, that is to say:
(a)
any matter not included in
the Exclusive Legislative List set out in part 1 of the Second schedule to this
constitution;
(b)
any matter included in the
Concurrent Legislative List set out in the first column of Part II of the Second
Schedule to this constitution to the extent prescribed in the second column
opposite thereto; and
(c)
any other matter with
respect to which it is empowered to make laws in accordance with the provisions
of this constitution.
The
Shari’a Penal Code being operated in the so called Shari’a State have a
common feature that is, for example, section 3 of the Kano State Shari’a,
Penal Code provides as follows:
S.3.
Every person who professes the Islamic faith and/or every other person
who voluntarily consents to the jurisdiction of any of the Shari’a Courts
established under the Shari’a Courts Law, 2000 shall be liable to punishment
under this law”.
It
is clear, from these common provisions that, the law only applies to Muslims
like the enhance sentences referred to above only applies to a group of thieves.
Your grudge is that the law discriminate against me.
Please remember that, you have not received any complaint from me.
May
be you will want to hear my own grudge against you and the system you represent.
These grudges are as follows:-
1)
As a Muslim I belong to that group of people who professes Islamic faith.
It simply means that I believe in one God, believe in the prophet hood of
Mohammed (Peace be upon him), believe in other prophets sent before him like
Abraham, Moses, Jesus and many others. I
pray five times a day, I give charity, I fast in the month of Ramadan and also
perform the Hajj. I also subject
myself to laws of God without any reservation, believe in the day of Judgment. There are many other believes.
The bottom line is that, I have to accept the Decrees of God, and for me,
it is balderdash to tell me that, if God had wanted the implementation of the
Shari’a he will do it himself. What
then you are telling me is that I should not believe in the contents of the Holy
Qur’an or the saying and Deeds of the Prophet (peace be upon him).
So my question to you is simply this. If you give me the right to
practice a religion of my choice are you not derogating from that right if you
force me not subject myself to the Decrees of God as contained in the Qur’an
and the sayings and Deeds of the Prophet. Or
is it that, you do not regard Islam as a religion?.
2)
My second grudge against you is that, even if you and what you represent
accept Islam as a religion, you want me to accept what people like Dr. Anthony
Olubunmi Okogie, the Catholic Archbishop of Lagos understands Islam to be.
For instance the holy father said that “Shari’a is not part of
Islamic religion but deals with customs and traditions of a particular people
living at the time and, in the land of a particular nation and that it is not
transferable”. He went further and said “punishment of stoning was
introduced later by Omar, the second Calif for reasons best known to him”.
These views tally with the views of the Orientalist, the American
Government and other Western Nations. What
you will have me do then is to jettisoned what
is contained in the Qur’an, the sayings and deeds of the prophet (peace be
upon him) and Omar the Amiral Muminin for the views of the holy father and the
American Government. My question to
you then is as a Muslim should I
live my life in accordance with the tenants of the
Islamic religion or in accordance with the definition of what is Islam in
accordance with the definition of Catholic Archbishops ?.
It
is my believe that, you have no constitutional backing for the views you
expressed in your said letter. To
maintain such views will only mean either of the following:-
The
right given to Muslims under section 38(1) of the 1999 constitution is limited
to what the Christians perceive as Islam. Or
the fight against Moslems as terrorists according America in Nigeria is
re-defining Islam which I have to live with whether I like it or not.
I
just wonder; on Thursday, 22nd March,
2002, a British Court ruled that a person has the right to take away his life to
end his suffering once he is capable of making such a decision.
In my case you are being pressured to stop me from going to Court of Law
constitutionally established to confess to committing a Crime, conscious of the
fact that the punishment is death. You
see Mr. Attorney General, you are taking away my right of choice.
It
is more puzzling to me when viewed from the prospective of those who are
pressurizing you, that is to say, in U.S.A. some states operates death penalty
while others don’t. Mr. A.G. a
matter of choice which they enjoy and which you are depriving of because of
their pressure on you. Sir, please
consider the fact that I have a right of review from the Court of 1st
instance up to the Apex Court. This
right is not available to the victims of OPC or Bakassi Boys who execute armed
robbers without the benefit of judicial process.
It is an act that you condoned as no person was ever brought to justice
for these extra judicial killings.
In
any case, what ever your motives, you have succeeded in giving Archbishop Okogie
the chance to insult my religion as he did in the statement he issued which is
carried in the this day newspaper of 25th March, 2002 at page 3.
I
congratulate you on your assumption of the office of the Attorney General for
the second time and I look forward to meeting you in Court or you just shut up
and let Muslims in this Country be!
Yours
faithfully,
ALH.
ALIYU UMAR Esq.