Maliki Law: The Predominant Muslim Law in Nigeria
Barr. Abdullahi Ghazali
Islam is adopted by a vast majority of the Nigerian population (1). Regardless of their geographical locations, Muslims are expected to be governed by Islamic law (2). Under the Nigerian legal system, Islamic law is one of the primary sources of law (3). Prior to the introduction of Islamic Shari'ah in Zamfara State of Nigeria in October 1999, Islamic law was regarded as a special class of customary law (4). Now, Islamic law is considered a statutory law in various states in Nigeria (5). There are several sects within the Nigerian Muslim community. Religious rulings (fatawa) in Nigeria are not restricted to a particular school of law, notwithstanding, all legal and judicial matters relating to Muslims are governed by Maliki school of law. This is because; Maliki law is predominantly the applicable Muslim law in Nigeria (6).
The purpose of this paper is to give the reader a general background on the evolution of Maliki School of law and its founding scholar; Imam Malik ibn Anas. Highlight on the impact of Maliki School on Islamic education and legal system in Nigeria, and examine the application of Maliki law in Nigeria.
2. Malik ibn Anas: The Founding Scholar of Maliki School
93-179 A.H (712-795 A.D)
It was foretold by the Prophet (SAW) that:
“Very soon will people beat the flanks of camels in search of knowledge, and they shall find no one more knowledgeable than the knowledgeable scholar of Madina.”
Al-Tirmidhi from Abu Hurairah (R.A)
In another transmission narrated by Al-Hakim from Abu Musa al-Ash’ari (R.A) the Prophet (SAW) said:
“People will go out from East and West in search of knowledge, and they shall find no one more knowledgeable than the knowledgeable scholar of Madina.”
Great Scholars such as al-Qadi Iyad, Dhahabi and others related from Sufyan ibn Uyayna, Abdul-Razaq, Ibn Mahdi, Ibn Mu’in, Dhu’ayb ibn Imamah, Ibn al-Madini and others that they considered that scholar to be Malik ibn Anas ibn Malik ibn Abi Amir ibn Umar ibn Harith ibn Ghiman ibn Habthil ibn Amr ibn Harith, Al-Asbahi, Al-Madani, Abu Abdullah, the Imam of the Abode of Emigration, the second of the four major mujtahids and the founding scholar of Maliki school. (Doi: 1984: 94; Al-Magribi 1995: 34; http://www.sunnah.org./publication/khulafa_rashideen /malik.htm
Imam Malik was born and lived his whole life in Madina. At that time, Madina was the centre of Islamic learning, since the disciples of the Companions of the Prophet (SAW) were the recognized masters of learning who attracted scholars from different parts of the Muslim world to Madina. Malik was taught by the greatest scholars of Islamic world of his time. He memorized the Holy Qur’an at his early age. Then devoted himself to the memorization of Hadith. Within a short period of time, he excelled in the area of Hadith, Fiqh-law and other branches of knowledge. Despite his encyclopedic knowledge, he never indulged himself with controversial analysis of knowledge. He used strictly to avoid speculative and hypothetical fiqh. His grand father Malik ibn Abi Amir was one of the great men of knowledge of the followers of the Companions (the tabi’un) he related from many Companions. His great grand father Abu Amir was a companion of the Prophet (SAW), he participated in all the battles with the Prophet (SAW) except Badr. (Al-Magribi; 1995: 35; http://ourworld.compuserve.com/ homepages/ ABewley/Malik.html
Imam Malik was recognized as one of the greatest scholars among the followers of the followers of the Companions of the Prophet (SAW) (tabi’u at tabi’un). He was the first author in Islam. His book al-Muwatta “the approved” was the oldest book known in Islam after the Holy Qur’an. It was reported that Malik spent about fourty (40) years in preparing this great book. al-Muwatta was approved by seventy jurists of Madina. According to Imam al-Bukhari, the soundest of all chains of transmission was “Malik, from Nafi'i, from ibn Umar." Scholars of Hadith call it the golden chain, and there are eighty narrations with this chain in al-Muwatta. http://www.sunnah.org/publication/khulafa_rashideen /malik.htm
Imam Malik’s life generally, was a mirror of the life style of the Madina people. He gave much respect to the people of Madina, he often called them “the people of knowledge” (Ahlu al-ilmi). He also gave great importance to the practice of the people of Madina in his ijtihad. Indeed, the principle of the “Practice of Madinites” was one of the foundations of his legal method.
Imam Malik was opportuned to be taught by the eminent scholars of the tabi’un class, i.e the immediate generation after the Companions of the Prophet (SAW) in history and the chain of narration of Hadith and knowledge generally in the prophetic system. He had many disciples, some of them remained in Madina, while a large number of them spread to different parts of Islamic world (7).
4. The Maliki School of Law
Maliki school means the application of Islamic law in accordance with the interpretation of Imam Malik (R.A) and or that of his disciples. Maliki school was originally the School of the people of al-Madinah al-Munauwarah, the lighthouse and blessed city of the Prophet (SAW). Madina was the first capital city of the Muslim administration in the lifetime of the Prophet (S.A.W), a status it retained throughout the era of the first three immediate Caliphs. It was reported that more than ten thousand (10,000) Companions of the Prophet (SAW) out of twelve thousand (12,000) were concentrated in Madina, while the remaining Muslim world shared the remaining two thousand (2,000). Until the Day of Judgement, the sacred body of the Prophet (SAW) remains there. Madina has been the glorious city of Islam. (Ambali; 1998: 35-36).
Imam Malik spent the whole of his life at Madina, acquired his knowledge from the disciples of the companions, taught in the prophetic mosque for over a period of fourty (40) years, recognized as the leading scholar in Hadith and Fiqh, and later became the spiritual leader and mufti of Madina. His understanding in Islam generally, the interpretations he gave to the law, and fatawa he gave in the religion of Allah were no doubt valuable to all scholars.http://ourworld.compuserve.com/homepages/ABewley/malik.htm
Maliki School therefore was essentially based on the understanding and practice of Islam in accordance with the method of the people of Madina before and after Malik. That is why the school is often called “the School of the Madinites”. Scholars concluded that the principles of Malik in fiqh was originally the principles of the people of Hijaz founded by Sa’id ibn al-Musayyab (R.A) the leader of Tabi’un in his time and the Imam of Madina (d. 94 A.H). Some scholars believed this very year to be the year in which Malik was born, and not the year 93 (A.H) (Aba al-Khail; 1997: 127).
According to Shaykh al-Islam ibn Taimiyyah (661-726 A.H):
“Their school – the people of Madina – at the time of the Companions, the followers and their followers, was the most authentic among the schools of all peoples of other Islamic cities, from East to West, in fundamentals and jurisprudence”
(Al- Jazzar & Al- Baz; 2001:20/163).
Basic Sources of Maliki Law
Maliki School deduced Islamic law from the following sources. They are listed in the order of their importance:
1. The Qur’an.
2. The Sunnah.
3. Amal ahl-alMadina- The practice of the Madinites.
4. Ijmaa of the Sahabah - Consensus of the Companions.
5. Fatwa al-Sahabi - Individual opinion of the Companions.
6. Qiyas - Analogical deduction.
7. Customs of the Madinites.
8. Istislah – welfare.
9. Urf – Custom.
10. Sad al-zarai’ i– Closing the doors of uncertainties.
11. Mura’at al-Khilaf – observance of differences. Differences are usually observed. (Philips; 1990: 71; Aba al-Khail; 1997: 127).
The Spread of Maliki School
Maliki School started in Madina, and later spread to many places in the Muslim world. It is the second most spread Muslim school of law in the World. The first being the Hanafi School, is adopted by more than one third of the Muslim world. (Aba al- Khail;1997: 112). Below are the places or countries where Maliki law applies, either in whole or in part:
Arabian Gulf States (Kuwait, Qatar, Bahrain, Dubai and Abu Dhabi) Spain, East and West African countries (upper Egypt, the Sudan, Tunisia, Algeria, Libya, Morocco, Mali, Nigeria, Chad, Niger, Senegal, Mauritania) Basra, Syria, Yeman etc.Today Maliki School is found in the US, France, UK and other few places in Europe and Asia. (Aba al-Khail; 1997: 137; Philips; 1990: 74).
Principal Reference Books in Maliki School of Law:
1. Al-Muwatta: Chronologically, Al- Mawatta was the first book in Islam after the Holy Qur’an. It contains Hadith, Sunnah and Fiqh-law. It was the first book of Malik. “It is the nearest book on earth to the Qur’an and most beneficial book on earth after the Qur’an.” al-Imam al-Shafi’i concluded.
2. Al-Mudauwanah: This is a collection of questions that people used to ask Malik and the answers he gave to them. His disciples compiled them. Sahnun was the disciple known to have listed most of them. Mudauwanah has been regarded as the foundation of Fiqh among the followers of Maliki School. It treated more than thirty thousand (30,000) legal issues.
3. Al-Utbiyyah: (The edited one)- This is a compilation of Muhammad ibn Ahmad al-Utbi al-Qurtubi (d. 255 A.H) of what Malik heard for him-from memory- and what they heard for their disciples-from memory.
4. Al-Wadhiha: By Abd al-Malik ibn Habib, a leading scholar in Hadith, Fiqh, and Literature in Spain (d. 237 A.H).
5. Al-Mawaziyyah: By Muhammad ibn al-Almawaz al-Iskandari, This is among the old Maliki scholars, (d. 280 A.H) (Aba al-Khail; 1997: 139-142; http://www.sunnah.org/publication/khulafa_rashideen/malik.htm
5. The Impact of Maliki School on the Islamic Education and Legal System in Nigeria
Before the advent of the Colonial Rule to Nigeria in the 19th century, Islamic law of Maliki school was the only applicable law in the territories now comprising the States of Northern Nigeria and some other places in the neighboring countries. The law was applied to both private and state affairs. According to Gwandu (1988: 24):
“The Sokoto Jihad leaders were all very aware of course, that all the four Sunni Schools of law are equally acceptable and stand on equal footing. However the confusion that could arise if qadis would be allowed to base their decisions on more than one School of law would be obvious. The possibility of some qadis using that to give incompatible verdicts on identical cases brought before them is strong. In order to forestall this; Shaykh Abdullah ibn Fodio in particular insisted that all decisions of a qadi must be based not only on the Maliki School of law, but, only on the mash-hur al-madh-hab or most widely known view of the school in cases where there is more than one view.”
The adoption of a madthab – School of law- in Shari’ah implementation is a common historical feature across the Muslim Caliphates, States, Emirates and Sultanates. It was not only specific to Sokoto Caliphate. In contemporary times of today, Saudi – Arabia is a good example where Shari’ah is fully practiced on the basis of Hambali School of law. In fact, this kind of promotion or adoption of a madthab by a particular Islamic State is one of the historical factors responsible for the spread or popularity of a particular madthab of a particular place in a particular time.
Since the period of Sokoto Caliphate and until the present day, courts rely on Maliki books on law and procedure after the Qur’an and Sunnah. The books that have been in use include the following:
1. Risalah –by Ibn Abi Zaid Al-Qairawani and its commentaries.
2. Tuhfah al-Hukkam – by Al-Qadi Abubakar Muhammad ibn Muhammad ibn Asim al-Andulusi al-Gharnadhi and its commentaries.
3. Mukhtasar Khalil – by Khalil ibn Ishaq ibn Musa ibn Shu’aib al-Jundi (d. 767 A.H).
4. Irshad al-Salik (Askari) – by Shihab al-Deen, Abdu al-Rahman ibn Muhammad ibn Askar al-Bagdadi.
5. Fathu al-Ali al-Maliki – by Shaykh Muhammad Ahmad Alish (d. 1299 A.H).
6. Tabsirah ibn Farhun- by ibn Farhun al- Maliki.
7. Al-Qawanin al-Fiqhiyyah – by ibn Juzai (d. 741 A.H).
(Gwandu; 1988: 23-24).
In addition to the above mentioned books, informal schools (Ilmi Schools) teach other books of Maliki School, such as:
- Al-Aka’id Al-Tauhidiyyah (Kawa’idi) -by unknown scholar.
- Mukhtasar Al-Akhdari (Ahlari) – by Abdu al-Rahman Al-Akhdari.
- Matnu al-Ashmawiyyah (Ashmawi) – by Shaykh Abd al-Bari al-Ashmawi al-Rufa’i.
- Al-Muqaddimah al-Iziyyah (Iziyya) by – Abu al-Hassan Ali al-Maliki al-Shazali.
- Manzumah al-Qurtubi Fi al-Ibadat (Kurdubi) – by Al-Shaykh Yahya Al-Qurtubi.
- Nazmu Muqaddimah ibn Rushd (Ibni Rushud) – by Abdu al-Rahman al-Rufai.
- Matn ibn Ashir (ibni Ashir) - by ibn Ashir (d. 1040 A.H).
- Misbahu al-Salik – by Shaykh Abdu al-Wasif Muhammad.
- Aqrab al-Masalik – by Ahmad ibn Muhammad al-Dardiri (d. 1201 A.H).
The method of teaching is an old one; it was the exact method of teaching adopted by scholars in Madina before and after Imam Malik. A Student always reads before the scholar just like children read to the teacher, and if he makes a mistake, he corrects them. The teacher or shaykh without looking at the text interprets and explains, most of the time sitting on his buzu (animal skin). The order that is followed in teaching the series of books of fiqh differs from place to place and from school to another. The most common order is as follows:
A student is taught Kawa’idi (prose) first, followed by Ahlari (prose), then Ashmawi (prose) with Kurtubi (poem), then Iziyyah (prose) with Ibni Rushud (poem), then Risalah (prose) with Ibni Ashir (poem), then Misbahu al-Salik (prose) with Askari (prose) then Aqrab al-Masalik (prose), then at the end Mukhtasar Khalil (prose) (Lauwali and Sani).
This kind of syllabus and method of teaching are called the Timbukty Method. They are obtainable in all the West African countries. If any thing therefore, this factor underscores the role of history in the spread of Maliki school of law in West Africa generally and Nigeria in particular.
Still in the North and some part of the South, there are formal Islamic schools which are either sponsored by the government, or individuals or organizations, they are generally called Islamiyya Schools, Arabic Schools or Islamic Schools in the South. The syllabi of these schools on Islamic studies are based on Maliki law. Until very recently when private or community Islamic schools started to design their own curriculum of education or syllabi for pupils, or women, or men in the mosques, or majalisai (Centres of Learning), books on Maliki law were the only recognized materials of learning. The books used in such institutions are not based on Maliki law; they are more of Hambali or Zahiri School, or a combination of all existing and non- existing schools. There are many explanations to that; all of them are rooted in the phenomenon of globalization, as epitomized in the following:
I- Explosion in Transport Technology and Massive Emigration:
This has facilitated movements across continents and regions. It has indeed facilitated migrant scholarship and trade movements. With this, a few developments emerged like:
- Massive importation of non- Maliki law books from the Arabic World.
- Boosted scholarship in Arabian countries, such as:
Egypt, Syria, the Sudan, Kuwait, Lebanon and especially Saudia- Arabia
Students return to Nigeria with non-Maliki orientation.
- Spread of many International Islamic Organizations across the Muslim countries. Nigeria is not an exception. E.g consider IIFSO, WAMY, Al-Muntada Al-Islami, World Islamic Call Society of Libya, etc.
II- Explosion in Information and Communication:
This has facilitated the massive influx and cross- penetration of ideas across nations through various means; Newspapers, Magazines, Journals
Booklets, Books, Radio, T.V, and now Satellites, Computer, and all its hazafirs (softwares,CDs, the Internet, etc).
It has been observed by this writer that, the teaching of Maliki law is recognized by the syllabi of many Secondary Schools and Colleges of Arts -where Islamic Studies or Law are taught. It has also been observed that the syllabi of Islamic Studies and Islamic Law in all the Nigerian Universities where such courses are taught have recognized the teaching of Maliki law whether or not in comparison with other Schools of Law. At the Nigerian Law School, Practice and Procedure in the Shari'ah Court of Appeal are taught based on Maliki law.
However, the combined effect of s. 261(3) of the 1999 Constitution that deals with the appointment and qualification of the Grand- Kadi or Kadi of the Sharia’ah Court of Appeal of FCT, Abuja or of a state under s. 276(3) on one hand. And s. 14 of the Shari'ah Court of Appeal Law of Northern Nigeria - as adopted by all the Northern States - that restricted the Court to the application of Muslim law of Maliki School in both substantive law and practice and procedure, demonstrates that; a person shall not be qualified to hold office as Grand – Kadi or Kadi of the Shari'ah Court of Appeal unless he is learned in Islamic law and more particularly Maliki law. This suggests that even if the position of a mufti of Nigeria would have been existed, the most knowledgeable scholar in Maliki law among the fellow Nigerians would have been the one to be appointed. Just as the opposite practice in Egypt, where the position of Shaykh al-Azhar is exclusive to Shafii scholars.
6. The Application of Maliki Law in Nigeria: Problems and Limitations
Nigeria is one of the multiple countries in the World that apply Maliki law to its Muslim citizens, especially in the northern part of the country. The law has impact on the evolution of our education and legal system. Despite its legal and judicial status in Nigeria, Maliki School is viewed by Critics as conservative, rigid, extremely traditional and surrounded by a lot of limitations that render it less effective. Their arguments are as follows:
6.1 Maliki School gives preference to the practice of Madinites over a prophetic Hadith.
6.2 The extent of Maliki School in applying the principle of Sad al-Zara’I’i has taken away the simplicity and dynamite nature of Islam in many respects.
6.3 A number of Maliki scholars concentrate more on Fiqh rather than Hadith, and give no respect to the views of other schools.
6.4 Some verdicts – fatawa - of Maliki scholars do not approach the contemporary life situation.
6.5 Restrictions on few books within the Maliki School.
6.6 The syllabi and method of teaching the Maliki law do not encourage wide knowledge or produce positive Muslims.
6.7 Weak connection between the academic and practical aspects of Maliki law in Nigeria.
6.8 Limitations of legal and judicial systems.
6.9 Professional and social problems associated with it.
7.0 Response/ Solutions
7.1 Practice of the Madinites in Maliki School constitutes a source of law after the Glorious Qur’an and Sunnah. The principle means that, the old practice of the Madina people at the time of the Sahabah – particularly the Rightly Guided Caliphs – is a binding proof in the religion, and even takes precedence over a conflicting Hadith that does not form part of the practice. It also takes precedence over a Hadith of individuals (Khabar Ahad). This does not derogate the merit of Hadith or the Sunnah as a whole. However, the later practice in Madina is not a binding precedence as held by Muslim Imams. Shaykh al-Islam ibn Taimiyyah (R.A) – in his fatawa- classified the practice of the Madinites into four stages, as follows:
- The first one is what runs on the course of reporting from the Prophet (SAW), e.g. quantity of measures, not taking alms from vegetables and endowments. This is a proof in accordance with the consensus of Muslims. It is also the unanimous view of all the Imams; Abu Hanifa, Malik, Shafi’I and Ahmad ibn Hambal.
- The second one is the old practice in Madina before the assassination of Othman ibn Affan (R.A), this is a proof in Maliki School as well as Shafi’i. Hambali School is of the opinion that whatever is practiced by the Rightly Guided Caliphs constitutes a binding proof in Islam. Abu Hanifa concluded that; the sayings of Rightly Guided Caliphs are proof. He further said: “ I do not know any old practice of the Madinites that offends the Sunnah of the Prophet (SAW).”
- The third one is where two conflicting evidences arise over a matter, such as two Hadiths or two analogies, and the preference of either of them is ignored, and one of them forms the practice of Madinintes. Here, Scholars differ. The view of Malik and Shafi’I is to give preference to the practice of the Madinites over the conflicting Hadith or analogy. Abu Hanifa totally disagreed with this view. Hambali School held two different views, one agrees with Hanafi’s view and the other agrees with Malik and Shafi’I’s view… “ Here, the majority view of the Imams agrees with the Maliki School in giving preference to the practice of the Madinites.”
- The fourth stage is the later practice in Madina. Does it constitute a binding precedence or not? . The position of the Imams is that, it does not constitute a legal proof. This is the view of Shafi’i, Ahmad ibn Hambal, Abu Hanifa and others. It is also the view of the erudite scholars among the Maliki School. (Al- Jazzar & Al-Baz; 2001:20/168-171).
7.2 Regardless of its different nomenclatures, Sad al- Zara’i’i is a generally acceptable source of law under the Islamic Jurisprudence. It literally means, “closing the means” or “closing the doors of uncertainties” i.e. closing or denying the legal means that leads or likely leads to prohibited act(s) or omission(s). The extent that Maliki School has gone in applying this principle is often criticized, especially by Zahiri Scholars who do not recognize the principle ab initio. (Othman; 1996: 55-69 & 206).
Under this principle, legal acts leading to unlawful acts may become unlawful, and those leading to lawful may become lawful to the extent of the lawfulness. Moreover, legal acts leading to welfare may become desirable, and those leads to injury may become unlawful. Sad al – Zara’i’i prevents the situation where people play with Shari’ah, it also prevents unbridled corruption of Sharia’ah or rendering it non-sense (Abu Zahra; 1980: 429).
7.3 The concentration of Maliki scholars on Fiqh rather than Hadith, can be regarded is a later development in the School. The reason is that, Malik was a leading scholar of his time in both Hadith and Fiqh, in fact his book al-Muwatta was the first book on Hadith. However, the first generation scholars of Maliki School did combine between Hadith and Fiqh, likewise their predecessors. The divorce of Hadith from Fiqh is not peculiar to Maliki school only, but common in all the schools of law.
Moreover, Imam Malik gave respect to the opinions of all scholars. It was reported that when the Caliph Abu Ja’afar Al-Mansur said to Malik: “ I desire that I may make copies of your book Muwatta and then send them to all the Muslim countries and order people to act upon them, and do not cross the limits. ” Malik refused, saying that: “ the Companions of the Prophet (SAW) differed in fiqh and dispersed to various cities and every one of them was right” (Doi; 1984: 103; Al-Suba’i; 1985:431)
As already mentioned in this paper that, one of the principles upon which Maliki School was based is considering the views of different scholars in making legal judgements. This may serve as a proof that Maliki School respects the views of other schools of law.
7.4 The reasons why many verdicts of our scholars do not approach the real life situation are as follows:
- Lack of sound knowledge of Hadith.
- Lack of sound background in comparative jurisprudence.
- Lack of contemporary jurisprudence (Fiqh al-Waqii).
- Absence of effective legal research. Etc.
7.5 It is true that, the Maliki law in Nigeria is restricted to few books of Maliki law. It appears that many prominent Maliki scholars are only known to us by their names, rather than works, such as Ibn Abd al-Bar, Ibn al-Arabi, Ibn Rush, al-Qarafi etc
7.6 The syllabi and method of teaching the Maliki law in Nigeria do not encourage wide knowledge or produce positive Muslims. This is because, students are not taught practical jurisprudence, comparative Fiqh, and Nigerian text on Maliki law.
7.7 The connection between the academic and practical aspects of Maliki law in Nigeria is very weak, sometimes is very difficult to trace. Our academic institutions - both formal and informal do not produce competent people who are ready to serve knowledge (Shari'ah in particular). The effect of this is the ignorance in our society about the concept of Shari'ah in its generic and practical sense. At this juncture, It is insulting to state that many operators in the Shari'ah system are not adequately learned in Shari'ah, and those who are learned are not socialized properly.
7.8 Maliki law being the applicable Muslim law in Nigeria is subjected to so many limitations, some of them are as follows:
7.8.1 Nigerian laws e.g.:
- The supremacy clause under s.1 of the 1999 Constitution. Under this, the Constitution is regarded as the sovereign law in Nigeria, and any other law including Islamic law derives its validity from it. However, where the provision of Islamic law is inconsistent with that of the Constitution, the Constitution shall prevail, and that provision of Islamic law shall to the extent of the inconsistency be void.
- Prohibition of state religion under s.10 of the 1999 Constitution. Under this, no state in Nigeria can declare Islam as its state religion.
- Effect of s.12 of the 1999 Constitution that deals with the implementation of treaties. Here, it is important to note that most of the international instruments are made through the making of treaties. Treaties like contracts create rights and obligations between the parties to them. Nigeria as a sovereign entity has full legal capacity to make treaties with other sovereign states, regional or international organizations. For a treaty to have the force of law in Nigeria, it must be domesticated or enacted into law by the National Assembly. A number of treaties to which Nigeria is a party are detrimental to Islam, its creeds, laws, civilization and general wellbeing of its followers. E.g Treaties relating to Fundamental Rights, Fundamental Freedoms (such as Sexual and Reproductive Health Rights), Education and Culture.
7.8.2 Regional International laws signed by Nigeria e.g.
African Charter on Human and People Rights, 1981. (Banjul Charter) Nigeria is a signatory to the Banjul Charter. The Charter adopts many provisions of the Universal Declaration of Human Rights, 1948.
7.8.3 International laws that assimilated into the Nigerian laws or Constitution e.g.; Some provisions of the Universal Declaration of Human Rights – UDHR (United Nations General Assembly Resolution 217A (III), 1948), such as:
- S. 34 dealing with the right to dignity of human person (see UDHR, Art. 15: 1948). Under this, Haddi Punishments e.g lashing, amputations of hands, stoning to death are regarded as torture or inhuman treatment contrary to the respect for the dignity of human person. Going by this provision, Islamic Criminal justice is viewed as unjustifiable.
- S.38 dealing with the right to freedom of thought conscience and religion which includes the right to change religion (see UDHR, Art.18: 1948). Under this, apostasy which is a capital offence and attracts capital punishment under Shari’ah is legalized, and the offender is covered by the provision of this section.
- S.39 dealing with right to freedom of expression and the press (see UDHR, Art.19: 1948). It is part of the Fundamental Human Right to every person in Nigeria to hold opinions, to receive and impart ideas and information without interference. And to own, establish and operate any medium for the dissemination of information, ideas and opinions. Some bad people in the country take undue advantage of this provision to encourage immoralities through the media – print or electric – which is contrary to Islamic law.
- S.42 dealing with the right to freedom from discrimination (see UDHR, Art. 2&7: 1948). Under this, certain provisions of Shari’ah that give more legal rights to man are regarded as discriminatory treatment against women on the basis of sex. E.g:
- Entitlement of the male heir to the double share of that of the female – in most cases- under the Islamic law of succession.
- Incompetence of women to give testimony in criminal cases.
- Testimony of a male witness is equal to the testimony of two female witnesses in civil cases of money or money worth nature.
- The right of a man to divorce his wife unilaterally.
- Incapacity of women to rule. Etc.
However, the provision of Shari’ah law that disqualifies an illegitimate child to inherit his biological deceased father is viewed by many international instruments as discrimination based on the circumstances of one’s birth.
7.8.4 International Human Rights Laws to which Nigeria is a signatory, e.g.:
- The United Nations General Assembly Declaration on the Elimination of Violence against Women, adopted in 1993. (WRAPA; 2002: 6).
- Universal Declaration of Human Rights, 1948. (Bande; 1998: 3).
- The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), 1979. (Gambari; 1998: 9).
Under this, many provisions of Shari’ah law that give more legal rights to man are considered as discriminatory laws and must be eliminated.
7.8.5 Institution of Criminal Proceedings in Shari’ah Courts
The authority given to police to initiate criminal proceedings in Shari’ah Courts does not favour the Shara’ah legal system in Nigeria. And by extension, Maliki criminal procedure law is seriously injured. (see for example The Kano State Criminal Procedure (Amendment) Law, Cap. 37, s. 385 ©: 2000).
7.8.6 Appeal System
Any case of the Shari'ah Court is very likely to go to the Shariah Court of Appeal, Federal Court of Appeal, then the Supreme Court of Nigeria. Although the doctrine of judicial precedent does not apply to Shariah Courts in principle but, by virtue of the appellate system whereby decisions of Sharia Court can ultimately reach the Supreme Court, Shariah Courts should follow the decisions of the Supreme Court. (Obilade; 1979: 123).
7.9 Professional and social problems.
7.9.1 Many legal practitioners in our Shari’ah Courts are not saturated with Islamic or Maliki law, they are half-baked lawyers in Islamic law.
However, many Shari’ah Courts personnel are seriously infected with Nigerian virus, likewise the practitioners.
7.9.2 The attitude of some students, Ustazes, (young scholars) and even the so-called Muslim intellectuals of disrespecting or condemning schools of law particularly Maliki school may be regarded as a serious problem of Maliki law from within the Nigerian Muslim community.
This writer humbly suggests as follows:
8.1 Arabic Language should be encouraged at the ordinary level of education, particularly in the North. This is to provide solid background in Arabic and Islamic civilization for young Muslims
8.2 Specialized Schools, Colleges or Centres of Learning (majalisai) in Maliki law be improved so as to breed learned and competent people in Islamic education.
8.3 To produce erudite scholars and jurists, specialized students in Islamic Studies, Law or Philosophy in all our universities be taught the following courses effectively:
- Arabic Language.
- Science of Hadith.
- Comparative Jurisprudence
- Contemporary Jurisprudence
- Islamic Legal Research
- Islamic Study Skills
8.4 The effort of Ilmi scholars in spreading knowledge cannot be derogated, their schools need moral and financial support to improve their work.
8.5 Independent Research Centres on Maliki law be established.
8.6 Websites, formal and local specialized libraries on Maliki law be opened.
8.7 Writings and Researches on “the Nigerian Maliki law” be encouraged, so as to improve our standard of Islamic Jurisprudence.
8.8 The office of Al-mufti (a Research Officer in the Shari’ah Court of Appeal) be revitalized, this is to improve standard of research in Sharia’ah Courts.
8.9 The Nigerian Council of Ulama’a be properly functional. So as to standardize the input of our scholars.
8.10 For regulating and standardizing the work of fatwa – religious rulings in the country, the position of Mufti of Nigeria ought to have existed.
8.11 Judgements of all Shari’ah Courts and The Sharia’ah Courts of Appeal in Nigeria be published; weekly or monthly in English, Hausa, Ajami, Fulfulde and Kanuri Languges. This is to enlighten the public about the judicial application of Sharia’ah legal system in the country. And to teach people certain provisions of Sharia’ah law in practice.
8.12 Certain provisions of the 1999 Constitution need a little amendment, so as to favour the law of the majority population of Nigeria. E.g.: s.1 (Supremacy of the Constitution), s.10 (Prohibition of State Religion) s.12 (Implementation of treaties), s. 34 (Right to dignity of human person), s. 38 (Right to freedom of thought, conscience and religion), s. 39 (Right to freedom of expression and the press) and s. 42 (Right to freedom from Discrimination).
1. Muslims make up 55% of the Nigerian 133 million populations, Christians 40% and 5% atheists. Several sources show that Muslim population in Nigeria is between 60 to 65%.(islamonline.net/English/News/200412/13/article04.shtml;http://www.isalaam.co.uk/themeofthemonth/October02_index.php?1=4; Microsoft (R) Encarta (R) Reference Libry,2003).
2. See Qur’an 5:45, 5:49-50, 6:162-3, 12:40, 42:13 and 42:21.
3. See Obilade; 1979:55-6.
4. See Adesubokun v. Yunusa (1971) NSNLR, 7.
5. For e.g s. 29 (3) and (4) of the Sharia’ah Courts Law of Kano State of Nigeria: 2000 provides:
(3) “Islamic and Muslim laws shall be deemed to be statutory
laws in all existing laws in the state;
(4) The provisions of existing laws in the state which define customary law to include Islamic or Muslim law are hereby accordingly amended and such provisions shall be deemed statutory laws wherever they occur.”
6. See e.g s. 14 of the Sharia’ah Court of Appeal Law (Northern Nigeria Laws, cap. 122: 1963 as adopted by all the Northern States of Nigeria); s. 2 Zamfara State Shari’ah Courts Law: 1999; s. 2 of the Kano State Shari’ah Courts Law: 2000;Ogesun v. Siddiq (1979) NNLR, 29;Alkamawa v. Bello (1992) 2 NWLR (pt 221) pg. 60.
7. Some of his Teachers include the following:
1. Hisham ibn Urwah.
2. Nafi’i (a freed slave of ibn Umar) (R.A) (d. 117 A.H).
3. Muhammad ibn Yahya al-Ansari (d. 121 A.H).
4. Abu Hazim, Salamah ibn Dinar (d. 140 A.H).
5. Yahya ibn Sa’id (d. 143 A.H).
6. Abu Razin, Nafii ibn Abdu al-Rahman (d. 169 A.H).
7. Ja’afar al-Sadiq (d. 198 A.H).
8. Abdul-Rahman ibn Hurmuz (d. 117 A.H).
9. Ibn Shihab al-Zuhri (d. 124 A.H).
10. Rabiah ibn Abdu al-Rahman (Rabiat al-Ra’ayi).
( Doi; 1984: 95-97; Aba al-Khail; 1997: 123)
The Disciples of Imam Malik include the following:
1. Abdu al-Rahman ibn al-Qasim al-Atki (d. 191 A.H).
2. Abu Muhammad, Abdullahi ibn Wahab ibn Muslim (d. 197 A.H).
3. Ash-hab ibn Abdul-Aziz al-Qaisi (d. 204 A.H).
4. As-bag ibn al-Faraj (d. 225 A.H).
5. Abu Muhammad, Abdullah ibn Abdu al-Hakam (d. 214 A.H).
6. Abu al-Hassan, Aliyu ibn Zayyad al-Tunusi (d. 183 A.H).
7. Abu Abdullah, Zayyad ibn Abdu al-Rahman al-Qurtubi- Shubtun
(d. 193 A.H).
8. Isah ibn Dinar al- Qurtubi al-Andulusi (d. 212 A.H).
9. Asad ibn al-Furat ibn Sinan al-Tunusi (d. 213 A.H).
10. Abu Marwan, Abdu al-Malik ibn Abi Salamah al-Majishun (d. 212 A.H)
11. Ahmad ibn al-Mu’udhil ibn Ghailan al-Abdi.
12. Yahya ibn Yahya al-Masmudi (d. 234 A.H).
13. Ibn Wahab, Abu Muhammad, Abdullah ibn Salamah al-Fahri al-Masri (d. 199 A.H).
14. Muhammad ibn Mubarak.
15. Muhamamd ibn al-Hassan al-Shaibani.
(Doi at 97 – 98; Aba al-Khail at 134).
1. List of Statutes/Legal Instruments
1.1 Nigerian Statutes
1963 The Northern Nigeria Laws Cap. 122, s.14.
1991 Laws of Kano State of Nigeria, Cap. 134, s.13.
1999 The Constitution of the Federal Republic of Nigeria ss. 1, 10, 12,
34, 38, 39, 42, 261(3) and 276(3).
1999 Zamfara State Shari’ah Courts Law, s.2.
2000 Kano State Shari’ah Courts Law, ss. 2 & 29
2000 Kano State Criminal Procedure (Amendment) Law, Cap. 37, s. 385©
1.2 Regional and International Instruments
1948 The Universal Declaration of Human Rights (United Nations General Assembly Resolution 217A (III), Arts. 2, 5, 7, 18 & 19.
1979 The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).
1981 African Charter on Human and People Rights (Banjul Charter).
2. List of Cases
- Adesubokun v. Yunusa (1971) NSNLR, 7.
- Ogesun v. Siddiq (1979) NNLR, 29.
- Alkamawa v. Bello (1992) 2 NWLR (pt 221) pg. 60.
1. Arabic Sources
-Abu Zahra, M. (1980), Tarikh al -Mazahib al-Islamiyyah
Dar al- Fikr al-Arabi Publishers
- Al-Suba’I, M. (1985), Al – Sunnah wa Makanatuha fi al-TashriI al-Isami
Al- Maktab al-Islami. Beirut – Lebanon.
-Al- Magribi, M.A (1995), Mawahib al-Jalil
Dar al- Kotob al- Islamiyyah. Beirut- Lebanon.
-Aba Al-Khail, S.A (1997), Mukaddimah Fi al-Fiqh
Dar al-Asimah Publications. Saudia- Arabia.
-Faruqi, H.S. (1997), Faruqi’s Law Dictionary ( Arabic – English)
Lebanon Library Publishers. Beirut – Lebanon.
-Al- Jazzar, A. and Al-Baz, A. (2001), Majmu’ah al-Fatawa li ibn Taimiyyah
Dar al-Wafai Publications & Dar al- Hadith
Publications. Cairo- Egypt.
-Othman, M.H.(1996), Qa’I datu Sad al- Zarai’I
Dar al- Hadith Publications. Cairo- Egypt.
2. English Sources
- Obilade, A.O (1979), The Nigerian Legal System
Sweet and Maxwell Ltd. London.
-Doi, A.I (1984), Shariah: The Islamic Law
Ta-Ha Publishers, London.
-Gwandu, A.A (1988), Aspects of Administration of Justice in the Sokoto Caliphate and Shaykh Abdullahi Ibn Fodio’s Contribution to it,
In Islamic Law in Nigeria (Application & Teaching). Edited by Syed Khalid Rashid.
Islamic Publications Bureau Lagos – Nigeria.
-Philips, A.B (1990), The Evolution of Fiqh
Alasela Islamic Publication, Lagos-Nigeria
- Ambali, M.A (1998), The Practice of Muslim Family Law in Nigeria
Tamaza Publishing Company Ltd.
- Bande, T. M (1998), Dimensions of Human Rights in Nigeria
Public Lecture Series No. 4. National Human Rights Commission. Abuja – Nigeria.
- Gambari, I.A (1998), Universal Declaration of Human Rights At Fifty:
Challenges for Nigeria at Thirty Eight
Public Lecture Series No. 2. National Human Rights Commission. Abuja – Nigeria.
- WRAPA, (2002), Eliminating Violence Against Women:
The Legislative Approach in the Quarterly Bulletin of the Women’s Rights Advancement and Protection Alternative (WRAPA).
Abuja- Nigeria. Vol. 3 No. 2. (April – June, 2002).
- Haddad, G.F. (2005), Imam Malik
- Bewley, Aisha (2005), Imam Malik Ibn Anas
- Abdel Baki, K. (2004), Nigeria’s Mufti Rejects Govt. Plan to Scrap Hajj Aid
-Info@salaam.co.uk (2002), Aids in Muslim African Countries http://www.salaam.co.uk/themeofthemonth/october02_index.php?1=4
- Microsoft(R) Encarta (R) Reference Libry, 2003: The People of Nigeria
Abdullahi Ghazali Esq.
EL-Tayyib & Associates
107, IBB Way,
Copyright- Abdullahi Mallam Ghazali, Kano-Nigeria