While political life in the Northern Region is dominated by the Muslim Hausa-Fulani elite, the area also contains numerous ethnic minorities, in particular small, largely Christian ethnic groups living in the so-called Middle Belt in the southern part of the region, in addition to Muslim ethnic groups, such as the Kanuri in the north-east.
Since , the Northern Region has been divided into ever smaller states on several occasions. By , nineteen different states18 and the Federal Capital Territory around the new capital Abuja shared the space previously occupied by the Northern Region. Within these new states, the ethnic and religious majorities have been redefined.
Not surprisingly, the inhabitants of these states identify strongly with the historic model of the Sokoto Caliphate. The same applies in principle to Kano State even though large immigrant communities of different religious and ethnic background live in Kano metropolis, the economic centre of northern Nigeria.
The north-eastern states of Borno and Yobe, which are dominated by the Muslim Kanuri, and Hausa-dominated Gombe19 have important Muslim and non-Muslim minorities. In Niger State, the predominant group is the Muslim Nupe. The remaining ten successor states of the Northern Region are religiously and ethnically divided. Some of these states have been the scene of violent confrontations between supporters and opponents of Islamic criminal law following the adoption of the controversial legislation by Zamfara State. This is incorrect. Before Nigeria was granted independence in , the colonial administration, in an attempt to accommodate the non-Muslim minorities living in northern Nigeria, brokered a compromise with the Muslim elite of the Northern Region which led to the adoption of the Penal Code for the Northern Region.
However, here and there special provisions were included based on Islamic criminal law Peters The Penal Code was inherited by all nineteen successor states of the Northern Region. Every time the country has embarked on re-defining its constitutional order, Muslim delegates have attempted to strengthen the position of Islamic criminal law.
However, in the view of the Nigerian scholar Kyari Mohammed , it was the military, which has governed the country for most of its independence, that ultimately has prevented the status quo from being changed. He explains: On all occasions the military government stopped the debate. The laws of the original regions or states were continued in force in and became the laws of the new states carved out of them Ostien The Nigerian Constitution, while empowering states to introduce legislation on criminal matters,22 demands that criminal offences and their punishments be specified in a written law enacted by the federal parliament or a state parliament.
Non-Muslims in these states continue to be tried by magistrate courts that apply the old Penal Code. In Niger State, the changes were introduced by amending the existing Penal Code. Thus, legislation on criminal offences is the sole responsibility of the states. It, therefore, appears that a continued application of uncodified Islamic criminal law would have been contested on constitutional grounds.
As long as the Penal Code was the only criminal law applied in the nineteen successor states of the Northern Region there was, in essence, legal uniformity across the region. With the introduction of Islamic criminal legislation on the state level, however, this uniformity was compromised. Nevertheless, most differences between the codes are minor and concern the punishments defined for specific offences.
Codifying Islamic criminal law has changed the way in which justice is administered. In the lower instances, in particular, they seem to have lacked the training and experience to implement the new codified legislation. Ruud Peters 17 reports from his field trip to Nigeria: We heard many complaints that the changes [in the judiciary] were not properly introduced. Ignorance of the law of procedure, we were told, seriously hampered the course of justice.
In addition, the number of offences punishable by corporal punishments caning or flogging has been increased Peters Otherwise the penalty is lashes. In addition, men are imprisoned for one year. Shurb al-khamr, or drinking alcohol or any intoxicant voluntarily, is punishable by eighty lashes, according to most codes. Sariqa, or theft, is punishable by amputation of the right hand from the wrist for first offenders.
Most codes make it punishable by life imprisonment, if neither property nor life was taken; by amputation of the right hand and the left foot, if property was stolen; and by death, if murder was committed. Some codes prescribe crucifixion as punishment for armed robbery if property and lives were taken. The proper brideprice also mahr al-mithl , which according to the classical doctrine is to be paid in cases of unlawful intercourse in which the woman is unmarried, is the average bride-price that a woman of the same age and social status would receive upon marriage in that region Peters The method of execution is the same as that used by the offender on his victim.
In cases of grievous bodily harm, the victim can demand retaliation, i. In cases of unintentional homicide or wounding, the perpetrator must pay diya. In particular, it includes provisions regarding offences committed by or relating to public servants. At least Zamfara State has adopted the harmonised codes in late Although 29 E. Nevertheless, the facts contained in these media reports can provide a general, albeit often enough incomplete, picture of the reported cases. The information retrieved often remains fragmentary.
Frequently, the history and the final outcome of a case remain unknown. This is probably due to the thin media coverage of events taking place in northern Nigeria, in particular on the regional and local level. As such, although technically trials under the new Islamic criminal codes, they did not constitute anything novel and, therefore, were not reported individually in the media.
Human Rights Watch Articles, the references of which do not include page numbers, were retrieved from the Internet. IRIN, however, seems at times to rely on reports from other news providers. Many of these cases come to the attention of these groups when their members or lawyers engaged by them visit prisons to talk to defendants in unrelated cases.
It seems that many people are charged and imprisoned on remand while awaiting trial, or sentenced and kept in prison waiting for their sentence to be implemented, without the media taking notice of them. For certain types of cases, i. Regional distribution istribution of cases Since the beginning of , twelve northern Nigerian states have introduced new punishments for violations of Islamic criminal law. In three states Borno, Gombe, Yobe , no court cases under Islamic criminal law were reported during this period. Bauchi, Jigawa, Kano, Katsina, 37 On the introduction of the new codes and changes in the judiciary, see Peters 13f and Ladan The problem of the number of trials has led to some inconsistencies between the different chapters.
In the overview provided in the appendix, I specify cases, as opposed to in this chapter, published as Weimann Here, I only considered cases between and reported in the media or by NGOs with explicit reference to a court trial. Excluded were trials after and prison inmates mentioned by NGOs without explicit reference to a trial in court.
In later chapters, I found that these limitations unnecessarily restricted the number of cases in specific crime areas, in particular with regard to theft. Therefore, I decided to include also cases after and all prison inmates mentioned by NGOs. The change in methodology does not affect my conclusions, since these are not based on a statistical analysis. The trials described only serve as an illustration of judicial practice. The general trend for all states except Bauchi is that the highest number of new cases reported is found shortly after the introduction of the respective Islamic criminal code.
Over time, the number of cases reported decreases, until , when no more than seven cases were reported, two in Zamfara and five in Bauchi. One explanation for this trend is that the attention paid to Islamic criminal law by the media has decreased over time. However, developments in the application of Islamic criminal law seem to be subject to dynamics on the state level. Finally, the religiously mixed states of Kaduna and Bauchi will be discussed.
The pioneer state of Islamic criminal law in Nigeria accounts for roughly one-third of all cases, i. This number, however, is probably only the tip of the iceberg. The article does not specify the source of this information. Eleven defendants were sentenced to amputation. Only two defendants were reported to have received another form of punishment.
After these two amputations, the state governor seemed reluctant to approve further amputations. Persons sentenced to amputation remained in prison. In June , seven persons were reported awaiting amputation. The only indictment for bodily harm in Zamfara State was reported as early as February The media reports do not specify who would receive the money.
In February , Mustapha Ibrahim was sentenced to six months in prison and thirty lashes, while his accomplice Abdullah Abubakar received an amputation sentence Human Rights Watch Four qadhf cases ended in corporal punishment for five defendants. In August , commercial motorcycle riders were arrested for carrying women under a newly passed law prohibiting the transport of passengers of the opposite sex on one motorcycle, if driver and passenger are not married. At March However, it cannot be excluded that this last case is identical with the first one.
With exception of the year stated by HRW, there are striking similarities not only in the names but also in the facts reported. It is unclear if the tribunal admitted the complaint for trial. The case was dismissed Human Rights Watch This is the only case involving an accusation of ridda reported in Nigeria in the period under review.
The first was the death sentence against Sani Yakubu Rodi for homicide in November Rodi was convicted of brutally stabbing to death the wife of a high-ranking security officer and their two children while attempting to rob their house. This is the only publicly acknowledged execution in Nigeria since the transition to a civilian government in May It is also the only reported execution pronounced under Islamic criminal law in the period under review.
By a majority of four to one, the judges agreed that the two lower courts made a mistake of law by failing to carry out a proper investigation into the allegations against Lawal. The remaining fifteen cases reported from the state received considerably less media coverage. The judge ruled that Tijjani should have either one of his eyes removed or pay a compensation of 50 camels. In this case, she must have been brought before the court while still pregnant.
Four cases of sariqa involving seven defendants were reported, one per year between and No execution of an amputation sentence was reported from the state. In three trials, a total of five men reportedly were convicted of drinking alcohol and given between eighty and ninety lashes. In fact, two court cases against musicians were reported in April In Funtua, Dauda Maroki and Gambo Maibishi, two traditional Hausa praise singers, were given ten strokes of the cane in public. Kabiru Yusuf, Salisu Danjuma and Rabiu Mohammed were sentenced to eighty lashes each for drinking alcohol in contravention of a Funtua bye-law in May Three other men were discharged and acquitted from the same offence.
Fifteen trials reportedly took place in and four in Here again, the identified cases appear to be only a small fraction of the total number of cases. Seven cases involving eight defendants indicted for theft and one accomplice led to four amputation sentences. An appeal was filed at least for the amputation sentences of Aminu Bello and Bello Garba. In the case of Mustapha Abubakar, the sentence has not been reported. The two defendants, Garba Dandare and Sani Shehu, were charged with stealing goods and cash.
In December , they were sentenced to have their right hand and left foot amputated. The execution of the sentence has not been reported. Apart from these cases, many more unreported amputation sentences seem to have been pronounced in the state. As early as December , twelve people were in jail awaiting amputation. In March , Hussaini was discharged and acquitted on procedural grounds. This was the only stoning-to-death sentence reported from the state. The trials of Hafsatu Abubakar and Umaru Shehu, as well as Maryam Abubakar Bodingo ended with the defendants being discharged and acquitted.
Aisha Musa filed an appeal after being sentenced to corporal punishment. But this does not necessarily reflect the reality: in January , a number of young nursing mothers were being kept in Sokoto prison. One indictment of a single defendant for shurb al-khamr was reported in April ,95 and one trial of smoking Marihuana involving four Muslims was reported in July As in other states, this is probably just the tip of the iceberg.
There were four indictments for intoxication: five persons, among them the only woman convicted of the offence, were sentenced to eighty strokes each, all in The trial started in March , but no sentence has been reported. In May , he was sentenced to death by stoning for raping a nine-year-old girl. Furthermore, on page 2 of its January edition, Weekly Trust mentions, without specifying a period of time, 2, cases under Islamic criminal law registered in Jigawa State, of which 2, had been treated. Already in August , Yunusa Yargaba was charged with attempted rape of a blind woman and sentenced to strokes of the cane.
As in other states, in the initial phase after the introduction of Islamic criminal law, public floggings seem to have been used to change public behaviour. Relying on local sources, Human Rights Watch 58 reports that after the introduction of Islamic criminal law in Kebbi State, floggings took place on average once a week in the state capital of Birnin Kebbi.
By the end of , the number had decreased to one per month. Sometimes these floggings seem to have taken the character of mass trials, such as, e. Apart from public order issues, a small number of important cases have been reported from Kebbi State. After having been indicted for sodomy, Attahiru Umar was sentenced to death by stoning in September for sexual abuse of a seven-year-old boy. The authors of the report found the convicts in prison in December , awaiting the execution of their sentences.
One case in Kebbi State deserves particular attention: in , Yahaya Kakali was sentenced to amputation of the right hand for theft. But the Nigerian print media has essentially ignored this case, despite its precedential potential. Kano Kano, the capital of Kano State, is the most populous city and the economic centre of northern Nigeria. It has a large non-Muslim population. It is more likely that the charge was theft sariqa , as the sentence reported was amputation of the right hand.
On several occasions, this religious nongovernmental body clashed with police forces. The fact that the only three cases of sex crimes reported from the state took place after the change in government may not be unconnected to this power change. Be it as it may, the global figures of cases under Islamic criminal law in Kano are not significantly different from other states: mass trials against alleged prostitutes and their clients took place following the enactment of Islamic criminal legislation. One of the women arrested died in prison, another gave birth in detention while awaiting trial.
But only three trials for shurb al-khamr were identified over the five-year period. In July , i.
Islamic criminal law in northern Nigeria: politics, religion, judicial practice
In one case, Hafsatu Idris stated to the police that she had been raped by Ahmadu Haruna. At least seven court cases involving ten defendants have been identified, two in , three in , and two in , i. Appeals were filed against a minimum of four amputation sentences. In December , eighteen alleged cattle thieves were put on trial, seven of whom were remanded in prison custody, but no sentence was reported.
The amendments to the Penal Code became enforceable on 4 May Peters As in other states, when Islamic criminal legislation was first introduced public floggings were frequent. Human Rights Watch 58f , relying on a local source, mentions the figure of ten to a maximum of twenty floggings per month in Niger State in and early By mid, their number had declined to one or two per month. One trial of a rape case was reported in November Aminu Ruwa was sentenced to lashes and required to pay the medical bill of the six-year-old girl with whom he had forceful intercourse.
Three weeks later, this sentence was changed into stoning to death without retrial, even without informing the defendants, who were already serving their prison terms. The change was in line with the amended Penal Code. An appeal against the sentence was still pending in Human Rights Watch Philip Ostien estimates that there are four or five cases of death sentences for illegal intercourse in Niger State personal communication in May The sources available to me do not mention any court case tried under Islamic criminal law in the state. Philip Ostien, reader in Law at the University of Jos Nigeria , confirmed to me that in Borno State the Islamic criminal legislation has remained a dead letter.
See SIDP. In September , ten people were killed in inter-religious clashes in the state. Gombe State Governor Abubakar Habu Hashidu ANPP tried to resist pressure from Muslim activists to introduce Islamic criminal law in the first place, and it is reasonable to assume that he did not make it a priority of his government after its enactment. Kaduna Kaduna embarked on the implementation of Islamic law on 2 November , twenty-one months after Zamfara State started the process. The north, where the university town of Zaria is the regional centre, is predominantly Muslim, whereas Christians make up the majority of the population in the south.
Kaduna metropolis was founded by the British colonial power, which established its administrative and military headquarters in the new settlement in The magistrate courts continued to exist. In the mixed parts of Kaduna city and other principal towns, the implementation of any form of religious laws was explicitly foreclosed. After one year in prison waiting for their judgments to be signed by the governor, their cases were made public by human rights activists, who claimed that the convicts had been tried and sentenced in one day and were not given the opportunity to engage the services of legal counsel.
The men were released from prison on the grounds that the two years that they had already spent in prison were sufficient punishment. I thank Philip Ostien for providing me with information on the outcome of this case. She was said to have accused him of having an affair with his mother. In court, Abdulkarim denied having made such an allegation against her husband. Bauchi The last state to be examined in this regional overview is Bauchi. Situated in the Middle Belt, this state has a predominantly Muslim population, but with significant Christian minorities and some pockets of animists.
In July , ethnic and religious clashes killed many dozens of people and forced thousands to flee. In neither case, a tripartite system as in Kaduna seems not to have been envisaged. One court case was reported in , four in , three in and five in One trial for drinking alcohol was identified in late The arrest of the culprit, Ibrahim Musa, took place in November Sarki was sentenced to pay compensation of 5. However, the victim rejected the compensation and insisted on retaliation. In January , after a trial that lasted several months, Adamu Hussaini Maidoya was sentenced to have his right leg amputated under the knee without anaesthesia.
The judge pointed out that Maidoya had to experience the same pain that he had inflicted on his wife. She had been found pregnant out of wedlock. However, some reports indicate that it was executed while Poki was still pregnant.
Religious and Customary Laws in Nigeria |
When she failed to prove her case, she was sentenced to strokes of the cane and banned from the area. The judgment was confirmed by an appeals court, which, however, revoked the banishment. The stoning-to-death sentence was overturned on appeal in March on the grounds of procedural shortcomings at the initial trial.
The lower court judge was ordered to tender an unreserved apology to the three boys and pay them compensation. The sentence was appealed in January The final hearing was slated for 7 December However, the outcome of the appeal could not be established. It is not clear if Altine and Umaru Tori filed their appeal together. Not much information is available on the stoning-to-death sentence against Selah Dabo for rape in September Their sentences were overturned on appeal: Daso Adamu was acquitted in December on the grounds of the possibility that her pregnancy was caused by her former husband.
Nineteen-year-old Hajara Ibrahim was initially sentenced to stoning to death and strokes of the cane after she confessed to having intercourse with a man she said had promised to marry her. Among criminal cases from Bauchi State, sex crimes are predominant. If the figures provided are accurate, media reports illustrate well the problem, already See also Peters In June , twelve people were waiting to be stoned to death or have a limb amputated.
It cannot be excluded, on the basis of the fragmentary data available, that other northern Nigerian states have experienced a similar development in the numbers of amputation sentences to be executed. Nevertheless, the situation in Bauchi appears to be unique in that it is the only state in which the number of newly reported cases has increased over time.
This may be explained by more intensive media coverage in the state. The verdicts included the stoning-to-death sentence against Yunusa Rafin Chiyawa and the retaliation sentence against Adamu Hussaini Maidoya. This again included the retaliation sentence against Maidoya. However, I have not found more information on this case. See ibid. Thus, the increase of cases, with a predominance of sex crimes, in Bauchi State calls for an explanation. As mentioned, Bauchi is a religiously mixed state. Both verdicts were annulled on appeal. Christian fundamentalist movements also appear to be active in Bauchi State.
They sometimes even claim that Christians make up more than half of the population of the state, which is hardly believable. Hence the emphasis on sexual morality. The popular support that has resulted from this identity building has, at least in the initial phase, spread throughout northern Nigeria. It can be assumed that religious lobby groups have played a role in this rapid propagation. This is best illustrated by the differences in case numbers reported from the northwest and the north-east of the country.
In the Hausa states of the northwest, such as Zamfara, Kebbi, Sokoto, Katsina, Jigawa and Kano, where identification with the historic precedent of the Sokoto Caliphate is strongest, the number of cases identified is high. The Islamic identity in these states is shaped by the historical experience of the much older Muslim Kanuri kingdom of Kanem-Borno and its more introspective Islamic tradition.
Jibrin Ibrahim argues that the creation of ever smaller states in Nigeria since independence has led to the redefinition of new ethnic or religious majorities and minorities on the state level. These groups compete for hegemony and access to public resources. In Kaduna, the state government found a compromise aiming at accommodating the divergent interests in an attempt to limit the tensions. The most interesting state in this regard, however, is Bauchi, which usually receives little attention outside its own borders.
As in neighbouring Plateau State, so too in Bauchi, Christian and Muslim missionaries compete for influence over the population. Both communities claim to be the majority. Has the introduction of Islamic criminal law had an impact on the living conditions in the affected states?
For the Quoted in Ostien et al. As for security of property, I have identified at least thirty-eight trials for theft and robbery and forty-two people who were sentenced to amputation of the right hand. Three amputations were carried out, in and Since , the governors have been reluctant to approve amputation sentences. Some people sentenced to amputation have been released after being remanded to prison for a prolonged period. In practice, this means that they suffered a punishment different from their sentence. To date, no one has raised the question if amputation sentences are to be pronounced and carried out in the future.
The answer to this question will probably depend on the political climate and, therefore, on the activities of religious groups. The danger that any decision in this field will spark violent reactions should not be underestimated. However, only four indictments of a total of ten public servants have come to light.
In two cases, no sentence was reported. The indictment of the governor of Jigawa State was dismissed. Since indictments of representatives of public authorities generally attract high attention in the Nigerian media, it is unlikely that the number of indictments of public servants is much higher than this. The low number of cases suggests that the introduction of Islamic criminal law has not had a great impact on public service in the states implementing it. A handful of cases against low and medium-ranking officials cannot be considered a strong deterrent, which is the main goal of Islamic criminal law.
The resulting disillusionment, however, may motivate northern Nigerian politicians to create more realistic policies, as pointed out by Philip Ostien : Chapter Three p. But quite probably, notwithstanding the implementation of shari'a, the world will wag on much as it always has, and the governments of the implementing states will find that they still have a great deal to do to trim bloated bureaucracies, reform education, fight crime and corruption, foster development, encourage investment, and so on and on.
This prediction, made at an early stage of the reintroduction of Islamic criminal law in northern Nigeria, seems to be confirmed by the virtual absence of the topic in the campaigns for the presidential and gubernatorial elections in Nigeria in April At the same time, male control over female sexuality has been strengthened.
Between October and December , twelve northern states of the Nigerian federation implemented legislation codifying Islamic criminal law and introducing Islamic codes of behaviour, such as the prohibition of alcohol and the segregation of sexes in public transport. An analysis - 55 - tences were quashed on appeal. To date no stoning-to-death sentence has been executed in Nigeria. The prominence accorded to sexuality in the Muslim discourse on Islamic law in northern Nigeria can only be explained as an attempt to restore lost virtues in society and to put it back on the straight and narrow.
The question of how and to what extent Islamic law should be applied in the independent Nigerian state has been a recurrent issue in the Nigerian political discourse. It has been propagated as a panacea for all problems of the Nigerian polity, which led to the wide-spread belief that corruption and decadence are the result of a loss of Muslim values caused by external influence or a lack of Islamic education.
This perception seems to be shared by a majority of northern Nigerian Muslims, irrespective of the diverging positions they of the case of Safiyya Hussaini is provided in Peters For accounts of the two cases by one of the lead defence lawyers, see Yawuri These seem to have attracted the attention of international and national human-rights organisations to a much lesser extent than the two prominent trials for illicit sexual intercourse Kogelmann This is partly due to the fact that its members have advocated the education of women and challenged the respect which children traditionally owe to their parents in Hausa society.
This trait is comparable to the emphasis put on legal positivism in modernity in a Western sense Umar The reasons that led them to support the political initiative of the introduction of Islamic For a discussion of the major trends in northern Nigerian Islam and the relations between them, see Umar However, Muslim societies in northern Nigeria have evolved under the influence of Islam for centuries, and local customs have been shaped in interaction with the injunctions of Islamic law.
The modernist project challenges behaviour that a majority of the population perceives, if not as Islamic, then at least as acceptable in a Muslim society. The northern Nigerian cultural context North-western Nigeria has a long history of Islamisation. John N. Paden points out that the political system of the emirates shaped the societies under their control to an extent that central tendencies of what he calls the emirate civic cultures become identifiable, in particular as regards their orientation to time and destiny, community, authority, civic space, and conflict resolution Paden For the history of the Sokoto Caliphate, see Last The Hausa cultures traditionally see legal action before a court of justice as the last resort.
On the local level, conflicts usually are resolved informally through mediation by the elders of the community Paden Only if this mediation fails, the case may eventually be raised to a court. It can be assumed that this applies in particular in cases of extramarital sexual intercourse, which causes considerable embarrassment to the families involved if discussed publicly in court. In the words of Nigerian-based feminist writer Charmaine Pereira , the introduction and enforcement of Islamic criminal law constitute a radical break with the prevailing heterosexual culture of northern Nigeria.
To shed light on the notion of illicit sexual intercourse among the Hausa, it is useful to outline briefly certain aspects of gender relations in the Muslim Hausa cultures in general. In the Hausa-speaking areas of northern Nigeria, gender segregation has taken the form of seclusion, often referred to as purdah or kulle in Hausa. There is a feeling that seclusion is a means to maintain social order in line with Islamic rules, a view expressed in the following quote from northern Nigerian sociologist Yakubu Zakaria : With the seclusion of adult women in Hausa society, intrusion into privacy, unwanted pregnancies among adult females and other social vices have been reduced to the barest minimum.
For the Muslim Hausa woman the keeping of the rules of purdah and wearing the veil have become symbols of Islamic identity, a sign of The states which were at least partly incorporated in the Sokoto Caliphate are the Hausa-Fulani-dominated states of Sokoto, Kebbi, Zamfara, Katsina, Kano, Jigawa, Bauchi, and Gombe, but also other states such as Niger, Kaduna, Kwara, Kogi, Adamawa and Taraba, which are dominated by other ethnic groups or are composed of a ethnically mixed population Paden 63 and In Hausa society female seclusion and the wearing of the veil are proofs of the acceptance and practice of Islamic norms and values.
Often, they are distinguishing symbols between the Muslim and non-Muslim women. However, wife seclusion as a predominant practice in Muslim Hausa societies is a rather recent phenomenon. In the s, ninety-five percent of married women in Kano city were living in seclusion Callaway In an urban environment, on the other hand, businessmen, executives and academics with Western education nowadays encourage their women and daughters to take up activities outside the house. Women are not secluded during their entire life.
Only a married woman is expected to observe seclusion fully. Before marriage, girls enjoy great freedom of movement in traditional Hausa society. In an urban, more anonymous, environment, hawking can pose a threat to underage girls, e. Northern Nigerian governments have tried in the past to control hawking by young girls, but the practice still persists Nasir In the s, a number of authors still described a form of premarital sexual practice, known in Hausa as tsarance, during which several couples consisting of a buduruwa and a young man, who might or not be married, spend the night together teasing and petting, usually without On the development of female seclusion among the Hausa, see Callaway , Imam , Werthmann and Robson Already in the early s, it had been largely replaced by more individual forms of premarital intimacy Barkow 60; and Already then, for Muslim adolescents, sex-play had to take place surreptitiously, the participants always worried that an adult may come upon them Barkow The acceptance of premarital forms of sexuality has certainly decreased in the last thirty years.
Another traditional occasion for young men and women to meet and possibly acquire sexual experience was to attend marriage celebrations out of town which could last several days. This tradition currently seems to be practiced only in remote villages Pereira But it may still exist. They had organised a wedding picnic. In Hausa society, for both sexes, the first marriage is a rite de passage into adulthood. Namely for the woman, in most cases, it means the passage from the freedom of a buduruwa to the secluded life of a matan aure.
Practically all women and men have contracted marriage at least once in their life Kleiner-Bossaller The age at which the first marriage is contracted, however, is significantly lower for girls than for boys. Early marriage—at the age of eleven to fifteen years—is the rule for women, the exception being girls who have received a formal school education ibid.
Hausaland, fourteen years is the age of marriage United Nations This provision is one of the principal reasons for the reluctance of certain state Houses of Assembly, especially in the north, to ratify the CRA Nasir By late , the only predominantly Muslim northern state to have passed a law to enforce the CRA was Jigawa. But even this law, adopted in , does not specify an age See Barkow 60fn4 for bibliographic references. This, according to the state government, was done in a bid to make the law acceptable to the local population.
In addition, it will be enforced only once the population has been fully sensitised on its existence. Polygyny is widespread ibid. An age difference of twenty or more years between spouses is not uncommon Kleiner-Bossaller This may be one reason for the high frequency of divorce in Hausaland.
A man can divorce his wife, in line with Islamic law, by simply repudiating her without necessity to give reasons. No official records are kept of such divorces Nasir A woman may be married three or more times in the course of her life. Safiyya Hussaini, who was aged 35 at the time of her trial, had been married three times. Between two marriages, i.
In the early s, Barbara J. Callaway estimated that, in the city of Kano, 10 to 11 percent of adult women are divorced and not married at any given time. However, an individual woman usually will not be out of marriage for more than a few months to a year Callaway Most divorced women stay with male relatives.
In the s, Jerome Barkow observed that a divorced woman might take lovers discretely, accepting their usually cash gifts and eventually marrying one of them Barkow A traditional alternative to remarrying is courtesanship karuwanci. A courtesan karuwa, pl. Karuwai can have relations with one or more men, but unlike prostitutes they choose their partners by themselves and relationships often are long-lasting Kleiner-Bossaller Karuwanci is usually only a temporary stage in the life of a woman, since she will probably marry after some time.
Some women go back to karuwanci after each of their several marriages Barkow Extramarital sexual relations continue to be tolerated by the population in northern Nigeria, certainly in the case of men, but also—provided they take place discretely—for women. Even the offence of rape is seen foremost as a civil issue. It can become a criminal case when the parents of the girl do not accept a settlement, which may include that the rapist is forced to marry the victim ibid.
Conflicts arising from sexual relations which exceed the socially accepted norm probably are resolved, first and foremost, through mediation between the parties involved. This is the only trial of a woman for intoxication which has come to my knowledge. Illicit intercourse is more likely to become public knowledge in settings in which unmarried girls or women meet men, be they married or not, outside the close mutual supervision of the family compound.
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Groups likely to be involved in trials of illicit sexual intercourse, consequently, are girls who move freely without being surveyed by their secluded mothers; young people practicing premarital sex; divorced women who do not conform to a secluded lifestyle; and karuwai. As slavery has been abolished, in practice, unlawful intercourse nowadays is limited to extramarital sexual relations. Based on this verse, not only unlawful intercourse itself but also acts which might lead to it, as e.
Secondly, a man who engages in unlawful sexual intercourse commits a civil tort against the woman, regardless of whether or not the woman consented. If the woman is not married, the man is liable for the proper brideprice mahr al-mithl, i. The witnesses must have seen the act in the most intimate details, i. If in such a case she pleads that she was a victim of rape, she must, in order to corroborate her plea, produce circumstantial evidence. In these cases, the burden of proving her innocence is put on her. Men are punished, in addition, by imprisonment for one year.
The same punishments are prescribed for the offences of rape, sodomy and, in most codes, incest. In Bauchi, the prison term may extend to up to five years; Kano and Katsina prescribe death by stoning Ostien However, it does not apply to sexual intercourse within a marriage, which under no circumstances is regarded as rape. Many codes fail to specify the evidentiary value of pregnancy. Most states followed the model of Zamfara. Niger introduced corresponding amendments to the existing Penal Code. In such trials, the woman was charged, while the man often were discharged for lack of evidence.
In most cases, the circumstantial evidence was rejected by the appellate instances. Many verdicts handed down by lower instances were deficient. In addition, they have been exposed to the activities of Muslim pressure groups, a fact which seems to have encouraged disrespect of procedural guarantees. An additional trial for rape came to light in May see the appendix, p. The year-old married woman alleged that yearold Jugga entered her matrimonial home and assaulted her. There are no reports that men charged with rape were convicted on the grounds of a pregnancy of the victim. How the courts were informed about the accusations of rape against Hamisu Sulaiman, Selah Debo and Ade Debo has not been reported.
On appeal, Baranda withdrew his confession and was acquitted of the charge in August on the grounds of insanity and remanded in a psychiatric asylum. The last case defies easy categorisation. He was caught when the little girl escaped from his house and was found by neighbours walking in the street with bloodstained clothes. The girl told them what had happened to her. Although the report speaks of adultery, sexual intercourse with a woman of unsound mind is always considered rape.
On indication by a group of children, who told her mother that Abbas had taken her daughter to his home, the mother examined the girl and found stains of blood on her underwear. The same offence is defined by the Zamfara code Section Thus, Tukur Aliyu may not have been convicted of rape but of gross indecency. Whereas the press reports describe the offences as rape or attempted rape, respectively, the grounds of conviction remain unclear. His conviction was founded on a confession made in court and the statements of three witnesses.
The judge sentenced him to hundred strokes of the cane. The high proportion of underaged victims shows that forceful sexual intercourse which takes place within family compounds is either not considered an offence or dealt with between the affected parties. Penalising sodomy aims at deterring people from homosexuality.
In practice, however, at least in two of the three sodomy cases the victims were little boys. Thus, these acts are better described as paedophilia than as homosexuality. Babaji is also reported to have answered in the affirmative when asked by the judge if he was a Muslim. Similar to Ado Baranda, Jibrin Babaji was acquitted on appeal after he pleaded to being insane.
The three boys, who allegedly accepted money from Babaji in return for allowing him to have sex with them, were given six strokes of the cane after the trial of first instance, but were later rehabilitated by the court that granted the appeal of Babaji. The judge who had sentenced them in the first instance was ordered to pay them compensation. Like the abovementioned rapist Selah Debo, it is not unlikely that Attahiru Umar has remained in jail awaiting the execution of the death sentence.
It appears that, in a region in which child marriage is common, sexual intercourse with immature girls is more acceptable to fellow men and judges than with little boys. In court, Umaru Tori confessed to having raped his stepdaughter four times and was sentenced to death by stoning in December In spite of this, Altine, who only admitted two forceful sexual contacts, was apparently convicted of incest like her step-father on the basis of her pregnancy out of wedlock and sentenced to strokes of the cane to be administered after the delivery of her baby.
Umar Isa Zurena of Jigawa State was charged with incest in November after his niece, pressed by her family, disclosed that her pregnancy was caused by him. There, she is reported to have testified that her uncle raped her on two occasions, offering her money and threatening to beat her if she disclosed what had happened. However, it is in the discretion of the court whether or not to consider the girl or woman affected a victim or an accessory in the offence. Only for crimes which in the patriarchal societies of northern Nigeria may be considered repulsive for violating the feeling of manhood sodomy or the family honour incest , this indulgence is absent.
However, it is equally absent in trials of consensual unlawful sexual intercourse, in which the majority of the defendants are women. For instance, Bariya Ibrahim is reported to have named three middle-aged men as being the possible father of her pregnancy. She stated that all three had paid her to have sex with her, adding that it had been against her wishes. It is not clear whether Altine and Umaru Tori filed their appeals together.
In another case, involving Hafsatu Idris and Ahmadu Haruna, the female defendant claimed that she had been raped. Cases of consensual intercourse came to the attention of the courts principally in two ways. Another case which shows the effects of a thwarted mediation is the trial of Hafsatu Idris: her newly wedded husband divorced her after noticing that she was pregnant at the time of the wedding.
She claimed having been raped by Ahmadu Haruna. Four of the men were immediately discharged and acquitted due to lack of evidence against them. Two other women, Maryam Abubakar and Hafsatu Abubakar, were acquitted in the trial of first instance, both after attributing their pregnancies to their former husbands. Both had been charged without a male counterpart.
At least fourteen of the nineteen female defendants were pregnant or had given birth out of wedlock at the time of trial. The only woman who was married at the time of trial was the co-defendant of Yunusa Rafin Chiyawa. There, nineteen trials for illicit consensual sexual intercourse were mentioned, whereas footnote only lists eighteen.
This error was a corollary of another error in a footnote Weimann fn , which mentions Hafsatu Idris twice, thus seemingly elevating the number of indicted women to nineteen. The first mention of Hafsatu Idris is correct. Faced with accusations of illicit pregnancy or childbirth, these women admitted sexual relations and pointed to the man responsible for it, probably motivated by the wish that the father assume responsibility for his child.
The men, however, have no incentive to acknowledge the charges. In the trial of first instance, Hajara Ibrahim was even sentenced to death by stoning and lashes. Amina Lawal and Hafsatu Idris were found pregnant, but gave birth before the start of their trials. In the sixth trial, a final verdict has never been reached: Fatima Usman and Ahmadu Ibrahim were sentenced to death by stoning in Niger State in August Pending the outcome, they were admitted to bail. With regard to more recent stoning-to-death sentences, such as those against Hajara Ibrahim or Daso Adamu, the appeal was granted within less than three months after the verdict of first instance.
Appeal judges accepted the argument of the delayed pregnancy. The confession of Hajara Ibrahim was annulled by the appeal judge on the grounds that it was not made four times. But the annulment of the stoning sentences is also the result of the influence of informed Muslim defence teams at the appeal trials. See Chapter Five and Weimann forthcoming. With regard to illicit sexual intercourse, the aim clearly was to discourage all forms of extramarital sexuality. Procedural guarantees and individual circumstances seem to have been secondary.
But the urgency with which the project was pushed forward may have backfired. The improper application of the law not only provoked international protests—which more often than not strengthen the radicals—but, more importantly, also offended the feelings of both Westernised and traditional Muslims. At the higher levels of the judiciary, Islamic procedural guarantees regarding evidence have been emphasised, and practically all judgments by lower courts which did not respect these guarantees have been revoked.
The text of the letter is available at. People not familiar with the concepts of Islamic criminal law must get the impression that they are denying the obvious. Due to the ignorance of this doctrine, many women confessed, not knowing that in doing so they created the evidence against them.
asia.userengage.io/13868.php As a consequence, the doctrine of the delayed pregnancy was used mainly on appeal. The rejection of accusations based on suspicion prevents charges levelled by a party not directly affected by the case from being admitted in court. Legal pluralism in Nigeria is very complex, taking three distinct forms. First, there is the legal pluralism arising from the multifarious legal traditions or legal cultures in the country. Laws in Nigeria are derived from three distinct laws or legal systems: customary law, Islamic law, and English-style laws. Customary law is indigenous to Nigeria with each of the various ethnic groups in the country having its own distinctive customary law.
Islam was common by the end of the eighteenth century and subsequently emerged as state law in the Kanem-Bornu and Sokoto Caliphates, which now constitute northern Nigeria. Within the caliphates, there were large pockets of non-Muslim peoples to whom customary law, not Islamic law, applied and still applies. Islam also penetrated into the south, but apart from some isolated instances, there was no state enforcement of Islamic law in the precolonial south. The English laws owe their antecedents in the country to colonialism.
Apart from the common law that formed the nucleus of received English law, many statutory laws in both the colonial and postcolonial era would be included among English-style laws simply because the laws are largely reflective of English laws. For example, federal laws govern statutory marriages while state laws govern Islamic and customary law marriages. I, item Colonial authorities administered the northern and southern protectorates separately until their amalgamation in With the introduction of regionalism in , the country was divided into three regions: northern, western, and eastern.
These regions had a large measure of autonomy and thus developed along slightly different lines. Until the regions were broken into states, uniform laws applied in each of the regions. Today, the bulk of the laws in the states owe their origin to the era of regionalism. Uniformity of laws in the northern states, particularly regarding Islamic and customary laws, continued largely until , when twelve of the nineteen states in the north adopted Islamic law as the basic source of laws in their states in a largely uniform manner. Three legal systems—Talmudic law, Islamic law, and Hindu law—are usually classified as religious legal systems.
Talmudic Law could also be included. See H. Patrick Glenn , Legal Traditions of the World 99— 4th ed. However, these laws are not coherently homogenous. Apart from having their roots or sources in religion, these legal systems are conceptually and normatively different. While Talmudic law and Islamic law are based on Abrahamic faiths and are similar in some respects, 21 See, e. Legal Hist. Again, Talmudic law and Hindu law are based not only on religion, but also on race, whereas Islam is based exclusively on belief. This is further supported by example in the Independent Sharia Panel in Lagos State wherein Muslims, regardless of race or tribal affiliation, can submit to arbitration under Sharia law.
While in the West, religion is largely a system of beliefs, 24 Hence, the U. Seeger, U. Achinike , Why Law in the Church? Islamic law is a full-fledged legal system in the same manner as common law and civil law. The perception is that the common law is attributable to Christianity, 34 Id.
II. The Problematic Nature of Classifying Laws as “Religious” and “Customary”
Islamic law is linked to Islam, and customary law is linked with African traditional religion. It is better and more meaningful to discuss law and legal pluralism in Nigeria under customary law, Islamic law, and common law, which are the globally and nationally recognized legal traditions and categorizations. There are various definitions of customary law. There are statutory definitions in northern Nigeria that state that customary law includes Islamic law. However, this approach is changing.
There is generally no definition of Islamic law in Nigeria. The Islamic law applicable in northern Nigeria is that of the Maliki School. The Maliki School has been the dominant school in the north since around the thirteenth century. Although the constitution does not refer to any school, the Sharia Court of Appeal laws of the states in northern Nigeria give legal endorsement to the Maliki School. Courts have held that where there are divergent opinions within the school, the majority mashur opinion is applicable. Bello,  6 SCNJ , However, this does not preclude English courts from enforcing any other school of Islamic law that is binding between non-Nigerian parties.
As noted above, colonial authorities decreed that customary law includes Islamic law. Judge Ames explains this position clearly in Bornu Native Authority v. Magudama : 48 J. Many have pointed out the inappropriateness of classifying Islamic law as customary law. However, the classification continued in all the northern states until when some states repealed all the laws that made Islamic law part of customary law in their states.
Thus, Islamic law now has a dual status in northern Nigeria. The nonrecognition of Islamic law as a distinct legal tradition and its classification as customary law in Nigeria raise problems for Islamic law in the southern part of the country where ethnic customary law prevails. This is especially problematic in the southwest where there is a substantial Muslim population and there are Muslim-majority states, but Muslims are denied application of Islamic family law.
Islamic personal law consists of questions involving marriages conducted under Islamic law, property—charitable endowment wakf , gift, or succession—and administration of the affairs of persons with diminished capacities—infants, prodigals, or persons of unsound mind. These are the only aspects of Islamic law that are constitutionally recognized. There are instances where states have made statutory declarations of customary law; however, large-scale codifications are rare. Obi ed. The recently enacted Sharia Penal Codes in some northern states are perhaps the critical examples. However, once codified, the Sharia Penal Codes take the character of statutory law for all legal purposes.
When colonial authorities assumed power in Nigeria, they immediately abrogated some norms of Islamic and customary law that they thought to be barbaric and unacceptable. They also enforced the remaining norms of Islamic and customary law subject to three tests, generally described as the validity tests.
Asein , Introduction to Nigerian Legal System —38 2d ed. The first test is that an Islamic or customary law norm must not be repugnant to natural justice, equity, and good conscience. Essein,  11 NLR 47, Iwuchukwu,  4 SCNJ , The second test is that an Islamic or customary law norm must not be incompatible, either directly or by implication, with any law presently in force. This test was invoked in Adesubokan v. Yinusa , 66 , reprinted in 1 Sharia Law Reports 26 — However, the position was superseded by legislative amendment following protests by traditionalists and Muslims.
Nigerian L. The last of the validity tests is that an Islamic or customary law norm must not be contrary to public policy. Egwu,  NSCC , A further validity test in the post-independence era holds that the constitution is the supreme law of the land. Any other law that is inconsistent with its provisions is null and void to the extent of the inconsistency. Some have suggested that the three previous validity tests, which are still in force in the postcolonial era, should be repealed now that there is a bill of rights in the constitution that provides enough guarantees for the rights of Nigerian peoples.
Courts in Nigeria are divided into superior courts and courts with jurisdiction subordinate to the High Courts. The Customary Courts of Appeal are concerned exclusively with customary law, but the High Courts, which are English-style courts, share jurisdiction over Islamic law matters with Sharia Courts of Appeal, which are Islamic courts.
This has resulted in jurisdictional incongruities between the High Courts and the Sharia Courts of Appeal. It has also disadvantaged parties looking to apply Islamic law, because English law applies prima facie in the High Court, although parties can request Islamic law be applied to their case. In all cases, however, the courts use procedural rules and laws based on English law.
Musa,  5 NWLR 1, Attempts by some states to confer exclusive jurisdiction over all aspects of Islamic law to the Sharia Court of Appeal in the post era have been declared unconstitutional by the High Courts and the Court of Appeal.