Secularism, Shari’ah and Nigerian Constitution (2)

nigerian constitutionCONTINUED FROM SEPTEMBER 25

Earlier before 1861 when the British forces arrived in Lagos, Shari’ah legal system had been practiced in some towns in Yorubaland as already mentioned (see The Guardian Newspaper of 12th, 19th and 26th June 2015 under the caption: Shari’ah and quest for legal pluralism). It had therefore started to receive gradual patronage in some other parts of Yorubaland when it was forestalled by the arrival of the British Colonialists.

Unlike the Northern Nigeria where the Shari’ah legal system was firmly rooted into their judicial system and the British rulers found it extremely difficult todisenfranchise, the Shari’ah in the Southern part, particular Yorubaland had aserious blow from the British Government. Thus, the British Government used its might to enforce customary law in all places in Yorubaland at the expense of established Islamic law in its judicial administration and created Area Courts to replace Shari’ah Courts.

The history of Nigerian legal system is interwoven with that of the colonial British administration. According to former Chief Justice of Nigeria, Justice Dahiru Musdapher in a lecture titled “Law Reform in Nigeria: Challenges and Opportunities” in 2014 explained that the origin of the legal profession in Nigeria dates back to 1862 in Lagos, with the introduction of the British patterned courts by the colonialadministration. This was as a result of conclusion of treaty of cession between the then Oba of Lagos, his chiefs and the British Crown.

The introduction of the Courts (via the main body of English law by ordinance No.3 of 1863) brought about the need for an organized legal profession that will apply English laws and precedents. Between 1864 and 1865, about five Ordinances which related to the legal profession and administrationof justice were made for the settlement of Lagos. Since then to this day, that colonial history still wields an abiding and compelling influence on every aspect of our legal system.

Following the proclamation of the protectorate of Northern Nigeria on 1st January 1900, new courts were formed; namely: the Supreme Court of the North, Provisional Courts (one for each province), Customary courts and Native courts (Shari’ah courts). A Native Court Proclamation Ordinance, 1906, also permitted native courts to exercise judicial functions under the direction of the Chief Justice or other Justice of the Supreme Court.They were to execute local laws and customs that were “not opposed to natural morality and humanity”.

In 1914, the Northern and Southern Protectorates were amalgamated resulting in the birth of Nigeria, Lord Lugard was appointed the first Governor of the Colony and Protectorate of Nigeria. He established a uniform system of courts with some modifications. Among the modifications include the deliberate abolishment of Shari’ah legal system in Yorubaland while status of Shari’ah law in the North was reduced using validity and repugnancy tests. In 1933, the British introduced a legislation which enables the British courts to entertain appeals from the Native courts.

In 1943, the government passed a number of ordinances, which also affected the courts sub-systems including but not limited to Native Courts Colony Ordinance (Shari’ah Courts). Following the regionalization of the Federation, in October 1954, a Federal Supreme Court was established. A High Court was also established for the territory of Lagos and for each of the three regions while the magistrate courts remained. A Moslem Court of Appeal was also set up in 1956 which exercised original criminal and civil jurisdiction and was also an appellate court. It was in 1959 that Islamic law was excluded from the sphere of criminal law and confined to the field of personal law.

Towards independence, the magistrate courts in the North were restricted to criminal causes. The district courts were established for the purpose of exercising civil jurisdiction. Also at the eve of independence, a Court of Resolution was set up in the North to resolve whatever issue may have arisen between the High Court and the Shari’ah Court of Appeal. It determined which cases should go to the High Court and which to go to the Sharia Court of Appeal.

Unarguably, the colonial Lugard Constitution of 1914, Clifford Constitution of 1922, Richard Constitution of 1946, Macpherson Constitution of 1951 and Lyttletton Constitution of 1954 recognized the multi-religious nature of Nigeria with the establishment of native Shari’ah Courts and Customary Courts alongside British System of Courts.

One of the colonial authorities, Perrone acknowledged this fact in the introduction to Maliki Law that: “Muhammadan Law in all its detail, religious as well as civil, has for us an immense interest. It necessitates the study of the social institutions of a people which an immutable law has, for twelve and a half centuries, moulded and remoulded at frequent intervals. For here, it has been neither the nation nor the people which have made the Law; it is the Law which has made and moulded the nation and the people. Both the outer form and the inner spirit bear impress of the one word: Religion. In Islam, there is but one Law, and it is the Religious Law, signified in the word: Shari’ah. In other words, it is the only Supreme Law; for it emanates from God, who decreed its main bases in the Koran. With Mohammadans, the law is also dogma (see F. H. Ruxton, 1916, Preface of Maliki Law, Lucas and Company, London, Reprint in 1978).

Shari’ah laws are written native laws that draw its origin from two principal sources – the Holy Quran and Hadiths of Prophet Muhammad (SAW). These two principal sources are complemented by Ijma (consensus of Islamic scholars), Qiyas (analogous deduction) and Ijtihad (intellectual exertion) while customary laws are unwritten body of customs, accepted by members of the community as binding upon them.

In other words, they are unrecorded tradition and history of the people which has grown with the growth of the people to stability and eventually become an intrinsic part of their customs.
At independence in 1960, the Shari’ah Court of Appeal replaced the Moslem Court of Appeal. The Shari’ah Court of Appeal had civil jurisdiction only, and in cases governed by personal Moslem law. It had power to entertain contempt cases. The magistrate exercised civil and criminal jurisdiction in the South.
So, it was that at independence, Nigeria had as part of the sources of her laws, the Common law of England, the doctrines of Equity, as well as the Statutes of General Application in force in England as at 1st January, 1900. These were in addition to the local legislations (both at federal and regional levels), Case law, as well as Islamic law, and Customary laws that are not repugnant to public policy,natural justice, equity and good conscience as widely expressed by retired Justice Dahiru Musdapher.
To be continued

Engr. Ayanda (MNSE) wrote from Ibadan.



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