Academic journal article Journal of Pan African Studies

The Entanglement of Shari'Ah Application in South-Western Nigeria

Academic journal article Journal of Pan African Studies

The Entanglement of Shari'Ah Application in South-Western Nigeria

Article excerpt

Introduction

Prior to the colonial era, Shari'ah was applied in the north and part of Yorubaland otherwise known as southwestern Nigeria. As Shari'ah was applied in a few Yoruba towns such as Epe in Lagos State, Ede, Ikirun and Iwo in Osun State, historical evidence shows that the Obas (Monarchs) of these towns fully implemented Shari'ah to the letter.1 The application of Shari'ah in some towns in Yorubaland was at its peak when the British colonialists arrived and introduced a colonial court system.2 Nevertheless, Muslims in that part of the country demanded from the colonial masters the establishment of Shari'ah Courts to adjudicate their civil matters. Muslim groups petitioned the colonial administrators in 1894, 1923 and 1948, complaining about the application of laws repugnant to their faith, but these petitions did not receive any significant attention from the colonial administrators.3

In 1960, Nigeria won its independence and in 1963, the Republican Constitution tacitly recognised Shari'ah, in response to appeals from Muslim courts of northern Nigeria. It was anticipated that these developments would lead to the establishment of Shari'ah courts in southwestern Nigeria, but that did not happen. While northern Muslims have had the opportunity of applying their civil matters in the Shari'ah courts, their counterparts in the south have not. One wonders why, after more than fifty years of independence and constitutional autonomy, Muslims in southwestern Nigeria do not have access to courts where civil matters, particularly on matters of personal law, in accordance with the Shari'ah law are applied.

Outside of northern Nigeria, where it is easy for Muslims to adjudicate their personal law matters in the Shari'ah court, Muslims in Yorubaland find it difficult. Therefore, some Muslim groups in some states in the southwest have made private initiatives to give fellow Muslims access to adjudication according to Shari'ah through Independent Shari'ah Panels. Similar efforts have been made to provide private Shari'ah adjudication in some states of the southeast. Interestingly in 2008, these panels in Lagos State were given official recognition by a Lagos High Court Judge, Justice O. H. Oshodi, who ruled that Islamic Law is not the same as Customary Law; hence the Customary Court had no jurisdiction on the marriage matter brought before it. The ruling then recognised the Independent Shari'ah Panels in Lagos State and advised that one of the panels should have been approached on the case. ("The ruling of Hon. Justice O. H. Oshodi on November 6, 2008 with Suit No. ID/852M/207"). This ruling emphasised the need for Shari'ah courts for Muslims in southwestern Nigeria.

Rather than solving the problem of the Muslims in southwestern Nigeria, the constitution seems to have compounded it. Though the constitution allows the establishment of Shari'ah Courts and a Shari'ah Court of Appeal in any state, it attaches certain conditions and procedures that make such establishment difficult. This is where the entanglement lies. Therefore, we must consider the Shari'ah issue in southwestern Nigeria with a view to determining why the establishment of Shari'ah Courts and a Shari'ah Court of Appeal in any of the southwestern states has not been achieved.

History of Shari'ah in the Nigerian Constitutions

Nigerian constitutions since independence have made provisions for Shari'ah. Section 112 of the Independence Constitution of 1960 provided for appeals from decisions of the Shari'ah Court of Appeal to the Federal Supreme Court, 'either as of right ("Section 112, 1) or with leave' (Section 112, 2) of the Federal Supreme Court. The 1963 Republican Constitution upheld the same provision under Section 119 (1). This same provision was upheld by Sections 240, 241 and 242 of the 1979 Constitution, Section 261 of the 1989 Constitution, Decree No. 50 of 1991, Section 281 of the 1995 Draft Constitution, Decree No. …

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