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.