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Sharia Implementation in Kano State By Mamman Lawan Yusufari INTRODUCTION The
return to civil rule in Barely two months after inauguration, the Governor of Zamfara State in North-Western Nigeria broke the lid by constituting an 18-member law review committee to, among others, examine and review all existing laws and edicts to make them conform with the traditions, culture, values and norms of the people of the state. The committee submitted its report and recommended, among others, that the Sharia penal law can ‘fully’ be enforced without offending any of the provisions of the constitution. Armed with the recommendation, the Governor set the ball rolling, signed certain bills into law and formally declared the implementation of the Sharia legal system in the state. What
later came to be known as the Zamfara initiative sparked off debates on
the constitutionality or otherwise thereof and more importantly
galvanized sister predominantly muslim-populated states in the North
into action. The effect was felt in some South-Western States where
though the Governments did not succumb to pressure, independent private
efforts were made to apply personal status Sharia. A
committee, Technical Committee on the Implementation of Shari’a in
Kano State, was set up for this purpose and it came up with a
recommended Bill (Shari’a (Administration of Justice Reform) Law 1999)
which “will lay a sound foundation and irrevocably commit the
Government and people of Kano State to the implementation of the
Shari’a in a comprehensive way” and provide a better method of
reviewing all existing laws to make them conform with the Sharia.
Instead of heeding to the recommendation, the Government sent the
members of the House of Assembly to a familiarization tour to some
countries that had similar experiences of blending Islamic and
conventional legal systems like THE
PERIOD BETWEEN
2000 AND 2003. Like
in Zamfara State, the implementation of Sharia in Kano from the legal
perspective had more to do with making the Sharia penal law a written
one (in satisfaction of section 36(12) of the Constitution) and
conferring courts with jurisdiction to try the offences therein
contained all pursuant to sections 4(7), 6(5) (k), 277 & 278 of the
1999 Constitution. At the risk of saying the Sharia civil aspect was
self-sufficient and hence needed not much attention, the focus was on
criminal law. Not long after the declaration therefore, the Governor
signed into Law the Shari’a Penal Code Bill on Thus Chapter VIII defines and provides punishment for Hudud and Hudud Related Offences like adultery or fornication (Zina), rape, sodomy (Liwat), false accusation of adultery (Qadhaf), theft (Sariqah), drinking alcohol (Shurbul-Khamr), and robbery (Hiraba). For instance, Zina is now punishable with either stoning to death (rajm) for married or previously married convicts or caning of 100 lashes plus one year imprisonment for convicts yet to marry (section 125 of the Law). Qadhaf carries caning of 80 lashes (section 131). Sariqah for the first time offender attracts amputation of the right hand from the wrist joint (section 133). Drinking alcohol or any other intoxicant voluntarily is punished with caning of eighty lashes (section 136). Qisas (retaliatory offences) like homicide and bodily injuries attracting both punishment and compensation and Ta’azir (offences of discretionary punishments) like criminal force and assault, kidnapping, abduction and forced labour, lesbianism etc. have also been accommodated in Chapter IX and Chapter X of the Law respectively. The Upper Sharia Courts are given jurisdiction to try all offences under the Sharia Penal Code Law and the Sharia Courts are to try all the offences except homicide, adultery and robbery. This is contained in the First Schedule, Part 1 of the Sharia Courts Law. Having brought the substantive criminal law into conformity with the Sharia, it then became necessary to make provision for Islamic Criminal Procedural Law. Chapter XXXIII (covering sections 385-396) of the Criminal Procedure Code, CAP 37 Laws of Kano State 1991, dealing with trials by Sharia Courts was therefore repealed and substituted with a new chapter which is Sharia-compliant. This was achieved through the Criminal Procedure Code (Amendment) Law 2000. The
Shari’a Courts Law 2000 repealed the Area Courts Edict 1967, CAP 9
Laws of Kano State and the Shari’a Administration of Justice Law 2000.
In place of the Area Courts and Upper Area Courts, it established the
Sharia Courts and Upper Sharia Courts. By the Shari’a Courts
(Establishment and Territorial Jurisdiction) Order 2000 made by the
Grand Kadi pursuant to section 9 of the Shari’a Courts Law, the
territorial jurisdiction of each The
case of Commissioner of Police
vs. Danladi Dahiru (Case No. CR/171/2001) handled by the One
notable development brought about by the implementation of Sharia could
be seen in the expansion of the jurisdiction of the Sharia Court of
Appeal. Hitherto, its jurisdiction, which has been purely appellate, was
confined to Islamic personal law matters emanating either from the Upper
Area Courts exercising original jurisdiction or appellate when the court
of first instance happened to be an Area Court. The lower courts having
been empowered to entertain cases bordering on transactions (mu’amalat) and non-capital offences, it meant that their
jurisdiction was wider than that of the Sharia Court of Appeal. So
appeals on those matters went to the State High Court Appellate Division
constituting of two justices of the court who, in most cases, were
Muslims though not necessarily trained in Islamic law. By section 6(2)
of the Shari’a Courts Law 2000, appeals now from the Upper Sharia
Courts in both civil and criminal matters go to the Sharia Court of
Appeal leaving the (Appellate) High Court with appeals coming from the
Magistrate Courts where English-based Nigerian law applies. It is the The case of Commissioner of Police vs. Danladi Dahiru (supra) went on appeal to the Sharia Court of Appeal. It was numbered SCA/CR/KN/9/2002. Six grounds of appeal were filed and argued on behalf of the convict by his Solicitors. The Respondent was represented by a State counsel learned in Islamic law. Among the grounds were that the lower court erred in Sharia by relying on the evidence of the three prosecution witnesses and the accused person’s confession when all were not reliable to secure a conviction for the offence of theft; that the lower court did not administer the concluding remarks (Izar) to the accused person before its judgement; the court misdirected itself in adopting “the common law” procedure of preferring charges after hearing witnesses and asking for evidence of previous conviction. In its judgement of 17th November, 2003, the Sharia Court of Appeal found irregularities and non-compliance with the provisions of the Criminal Procedure Code (Amendment) Law 2000 in the trial proceedings and ordered, on the strength of section 410 (2) of the Law, for a retrial before the Upper Sharia Court, Rijiyar Lemo, Kano. The retrial is yet to begin and the accused person is now in prison custody. There is no record of a concluded case of adultery (like the Safiya Hussein or Amina Lawal cases from Sokoto and Katsina) but other ‘novel’ punishments were meted out to offenders in different courts within the state. For instance, the Upper Sharia Court Gyadi-Gyadi recorded about three cases of alcohol drinking (the records are unavailable in the court) and in each case the offender was punished with caning of 80 lashes in the public in accordance with the Sharia. Outside the courts, the Government established the Islamic Education and Social Affairs Commission by a Law of 2000 to mainly promote, develop, coordinate and generally enhance Islamic religious and cultural values. There is however no evidence of the activities or achievements of this Commission. The main actors in the social field were the Hisbah groups. Hisbah has been a social engineering institution in Sharia and it is in answer to the Qur’anic call that let there be among the believers a community of people who will enjoin good deeds and forbid bad deeds. Youths voluntarily offered their services to make the Sharia a success. Numbering about 11,000 and co-coordinated mostly at grass root level, the groups helped in detecting crimes, making arrests and forwarding suspects to the police for necessary investigations and possible prosecution. The government could not afford to leave this important institution unsupervised. It therefore constituted a committee headed by a renowned Islamic scholar to co-ordinate its activities. The government’s and the institution’s views and approaches to issues were however divergent. Thus it did not enjoy government’s support and the relationship became antagonistic. The institution’s role therefore dwelt more on public lectures aimed to sensitize the Muslim Ummah which lectures too did not go down well with the government. Sharia implementation in the State during this period could be said to be neither a failure nor a success. The style adopted by the Government resulted into a tug of war between the zealous Muslim organisations/individuals and the seemingly deceptive government. In any event, the ball was set rolling and a lot of legislative work done during this period. The mutual suspicion was ended by the change in government following the April 2003 elections. 2003
TO DATE The previous administration had made the necessary legislation on the application of Islamic criminal law and the reorganization of the courts. So the courts did not relent in their efforts at dispensing justice according to the Sharia. A case showing Sharia in action is the mixed (civil/criminal) case of Rashida Minjibir v Ibrahim Iro (Case No. CV41/04) decided by the Sharia Court Minjibir. It was a case of paternity. The plaintiff who was married to the defendant for six months claimed for an order of court declaring that the defendant was responsible for her pregnancy. The cause of action arose when the defendant denied the pregnancy. His ground was that he sent the plaintiff for an ante-natal check up and the result, according to her, showed 4 months two weeks old pregnancy but she told him she knew she was only three months old pregnant. When he added three months to the period they have been separated, he got 5 months 2 weeks and she claimed that as at the time of the case she was 7 months old pregnant. Citing relevant authorities, the court decided in favour of the plaintiff. Its grounds were based on its findings that between the date of marriage (18th July 2003) and the date of judgement (1st March, 2004) was a period of 7 months 13 days; under the Sharia, the minimum period of gestation was 6 months and yet the plaintiff did not deliver; the defendant did not find the plaintiff committing adultery, nor did he deny having sexual intercourse with her after her last menstrual period; the defendant did not complain upon knowing about the pregnancy. In addition to confirming the defendant’s responsibility for the pregnancy, the court ordered that he be punished with caning of 80 lashes for falsely accusing the plaintiff of adultery. This punishment was in line with sections 130 and 131 of the Sharia Penal Code Law though the court simply relied on a passage in Ihkamul Ahkam, page 127 in its judgement. Presently,
efforts are being made to make the court system better. Seminars and
workshops are being organized for judges of the Sharia Courts as part of
continuing legal education and a sensitization programme. This will
ensure a better output from the courts. Recently (June this year), a
workshop was organized for the judges where important papers were
presented by highly respected academics, practicing lawyers and judges.
It was at the opening ceremony on First on the list of the present administration’s commencement retreat is to conduct all affairs in accordance with the dictates of the Sharia. So without prejudice to the court system, focus now became on how to make the entire system work better and to emphasise the need for a societal reorientation. To achieve this laudable objective, the Government created the Shari’ah Commission, Zakkah and Hubusi Commission, and Hisbah Board. These institutions are necessary tools if the implementation of Sharia is truly desired to be meaningful. Their social impacts are examined hereunder. The
Shari’ah Commission. The Shari’ah Commission was established by the Kano State Shari’ah Commission Law 2003. The Law repealed the Islamic Education and Social Affairs Commission Law 2000. Headed by a “full-time Chairman who shall be an erudite scholar in Islamic Jurisprudence and of proven integrity”, the Commission’s functions as itemized in section 4 of the Law include:
In the discharge of its functions, the Commission saw it as a primary duty to sensitize the general public on the all-encompassing nature of the Sharia. The general notion has been to limit Sharia to the court rooms. To the average man, meting out capital punishments (hudud) is the evidence of the implementation of Sharia. The Commission now tries to show that the relationship between father and son, husband and wife, buyer and seller, master and servant, leader and led are all regulated by the Sharia and ought to be conducted in accordance therewith. Radio programmes are aired and lectures conducted to achieve this objective. And in order to tackle the menace of alcoholism and prostitution, the Commission had held meetings with the hospitality industry representatives reminding them of the social ills associated therewith. Success is being recorded here as there is a reduction in the twin activities. In order to ‘catch them young’, the Commission under its Islamic Education Department has prepared syllabus for Islamiyya and traditional (allo) schools tailored to inculcate into the pupils a general knowledge of the Sharia and the necessity of living a life according to its dictates. An inspiring Arabic book, Dala’ilul- Khairat has now been translated into Hausa and distributed to the schools free. These schools are registered (registration still in progress) with and supervised by the Commission and are given a periodic grant to discourage the ‘Almajiri syndrome’ bedeviling most of the Northern States. In
its efforts to sanitize business transactions, the Commission recently
organized a 2-day seminar/workshop (22nd – 23rd
June, 2004) for grocers all over the State. The State was divided into 5
zones- Municipal, Dambatta, The Commission also entertains complaints from aggrieved litigants who for one reason or the other do not exercise the right of appeal. In cases where material rights are not involved, the Commission settles the parties and if settlement proves difficult or where material rights are involved, they are referred to the office of the Chief Registrar of the High Court who, in most cases, finds an administrative solution to the problem. In this way, expense, rigours and enmity associated with prolonged litigation are avoided. Zakkah
and Hubusi Commission. Zakkah is the obligatory alms paid from a specified amount of wealth at specified period while Hubusi means endowment. The Commission was established by the Kano State Zakkah and Hubusi Commission Law 2003. It has a full-time Chairman, 2 permanent Commissioners and other ex-officio and part time members. Section 4 of the Law has listed its functions. They include:
At take off, the Commission started by a sensitization campaign. The practice over the years has been that wealthy individuals were distributing their Zakkah to individuals directly. The previous Governments did not make effort to involve a Governmental institution in the collection and distribution of Zakkah. There was only the Independent Zakkah Council (which this Law now merged with the Commission) and its impact was not much felt. It was part of the sensitization effort that the Commission organized a dinner at the Government house and invited notable persons from the business class, traditional rulers, farmers, etc. Visits were also made to influential persons in the State with a view to getting their maximum co-operation in the Commission’s discharge of its duties. The Law has made provision for the constitution of Zakkah Council in each local government and a Zakkah Committee in each village/ward so that the Commission’s activities could be decentralized. So the Commission embarked on a sensitization tour to all the 44 local government areas in the State. The Commission has also sponsored jingles in the radio stations in the State to raise awareness on the positive effect (i.e. it brings about mutual love in the society) of giving out Zakkah and alms to the needy. Response
from the wealthy persons has been quite encouraging. The Commission has
been receiving Zakkah in different forms since its inception. It is
hoped that by the month of Ramadan, the bulk of the collections will be
made because from experience, it is the season of Zakkah for most people
in The Commission has a strategy for poverty alleviation. Its targeted areas are medical assistance (recently a #160,000 bill was settled for a patient), capital for the working class, vocational training for the unemployed youths, capital for widows (Uwar Marayu Programme), and periodic assistance to the aged. So far, the Commission has received over 4,000 applications from needy individuals. A Screening Committee composed of renowned Ulama had already screened about 500 applicants and recommended them for disbursement. Arrangements are now in top gear for the launching of the first disbursement, which occasion the Governor is expected to grace. On
the part of endowment (Hubusi), the Commission is also recording
success. So far, there are three confirmed cases. A Professor of Law has
donated a built school in the Hisbah
Board. Unlike the previous administration, this administration attaches so much importance to the activities of the Hisbah institution. It finds it to be an indispensable tool for the realization of its set objectives. Thus the Board was created by the Kano State Hisbah Board Law 2003. It is composed of a full-time Chairman, representatives of the Shari’a and Zakkah and Hubusi Commissions, representatives of all the law enforcement agencies and security outfit, etc. In each village, Local Government and Senatorial Zone there is a Hisbah Committee to ensure a wide coverage. There are established the Hisbah Corps, eligible to be appointed as justices of the peace, who are under a Commander appointed by the Governor. Their responsibilities as spelt out by section 7 of the law include:
The Hisbah Corps members now numbering about 1,800 are assigned to various nooks and crannies of the State. They were drawn from the volunteer pioneer Hisbah members and are on the Board’s pay roll. Persons willing to volunteer are still accommodated because the work is primarily a duty to the Almighty Allah. The Board’s target is to have about 9,700 Corps. The impact of the institution is now greatly felt in the whole of the State. For instance, they run a weekly radio programme, “Muryar Hisbah” (Voice of Hisbah) which is meant for the sensitization and admonition of the public. One of the programmes for instance dwelt on the picnics going on at Tiga Dam every weekend pointing out the ills associated therewith and the need for parents to take responsibility for the better growth of their children. The Government has now formed a committee, at the instance of the Hisbah, to put a stop to the activity. Hisbah helps in the control of traffic during and after working hours especially the rush hours and where the traffic wardens do not cover. They help in settling minor accident cases thereby decongesting the courts. In the area of family matters, they play a role too. For instance, one Binta Ado from Sabuwar Gandu tried, but in vain, to get a divorce through the court process on the ground of the husband’s alleged impotency which spanned for nearly a decade. At the Hisbah, the husband who remained adamant over the years was persuaded to let her off the hook. The case of Fatima Shehu Dorayi and Abubakar Sadiq Daurawa which was before the Upper Sharia Court Kofar Kudu cost the plaintiff her marriage and her only guardian disowned her as a result. The Hisbah intervened and saved the relationship with the guardian thereby averting a stranded and vulnerable situation. The
Hisbah also helps in checking the influx of young girls into One other area in which Hisbah plays an important role is in the girl-child trafficking. Children of school age and from poor families in the villages are trafficked to the city and distributed to interested persons (Muslims and Non-Muslims) for domestic labour at a wage the lion’s share of which goes to the agents. Hisbah now places surveillance on this practice and handles all reported cases by sending the children back to their parents. In
the recent CONCLUDING
REMARKS Whatever the efforts of the Governments and people of the State, implementation of Sharia cannot be a full one. By our Constitution (section 38), one has a fundamental right to change one’s religion and under the Sharia such change is a criminal offence which may attract death penalty. Any law criminalizing change of religion may therefore be declared null and void for being inconsistent with the Constitution. This explains the conspicuous absence of apostasy (Ridda) on the list of offences in the Shari’a Penal Code Law. Even the other seemingly clear areas are not unproblematic. A number of cases suffer a lot due to the attitude of the police and the State counsel. For instance, capital offences charged to Magistrate Courts do not get prosecuted for want of jurisdiction. Accused persons are only remanded in prison custody. Charges are later filed before the Upper Sharia Courts by the State counsel. But each time the case comes up, the accused will not be produced before the court. The prison authorities only entertain production warrants issued by the remanding Magistrate who refuse to transfer the accused persons to the Upper Sharia Courts for trial. Applications for bail are either opposed by the State counsel or refused by the Magistrates on ground of lack of jurisdiction. It is in few cases that the High Court grants bail. Examples
of cases of this nature are many. In State vs. Ibrahim Garba &
Anr. (Charge No. CR/4/04) a charge of armed robbery (contrary to
section 140(b) of the Sharia Penal Code Law) was filed before the There is need for a forum of all stakeholders in the Sharia ‘project’ in order to correct the anomalies shackling the system. Judges, Magistrates, private and public bar, prison authorities and the police must put all hands on deck to see to the smooth running of the Sharia criminal justice system. The social aspect of the Sharia did not receive much attention between 2000 and 2003. What has been done from 2003 to date is commendable looking at the short period and constraints involved. The social institutions established are bound to face teething problems and it is only with time that people will maximize cooperation to achieve the desired objectives. The general consensus however is that confidence in leadership has been restored thereby creating a conducive atmosphere for the Sharia to flourish. Mamman
Lawan wrote in from Faculty of |