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Nigeria’s next challenge: its constitution

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Eric Mwiine-Mugaju graduated in Law & Development at SOAS University of London and is starting MSc Social Policy and Development at London School of Economics.  He is interested in Islamic and African Constitutional laws.

The victory of Muhammadu Buhari in Nigeria’s Presidential elections, announced on March 31stdid not come as a surprise to those who follow events in Nigeria: Boko Haram has been nailing shut the coffin of incumbent Jonathon Goodluck for several years. Now it seems he has finally paid the price for failing to secure Northern Nigeria. With a northerner in the driving seat once more, Nigerians will be hoping that some stability will return to the north of the country to ease the toll on human life and slow burgeoning inequality.

However, the most challenging task that lies ahead is not just to defeat Boko Haram; it’s what to do about The Constitution. Any constitution must bear a will of the people, such as a constitution drafted by an elected Constitution Assembly. Despite the preamble starting with words “We THE PEOPLE OF NIGERIA”, Nigerians never met or mandated anyone to draft the articles of the Constitution, making it a great lie. The question now is whether the legal elephant in the room bolsters the growing inequality between Nigeria’s North and South, by dividing the country in half.

The 1999 Constitution was ushered in after four decades of military rule, and bears the hallmarks of previous military rule. Like most constitutions, it should be designed to provide a basic legal guarantee of the rights and privileges that all citizens are entitled to receive. For example, the 1999 Constitution purports to guarantee that no citizen shall be subject to discriminatory treatment before the law because of their community, ethnic group, place of origin, sex, political belief or religion.

However, under the very same ’99 Constitution, Nigeria permitted one third of its states (all in the predominantly Muslim north) to adopt a strict interpretation of Sharia law. Coincidentally, Boko Haram began to surface at the turn of the millennium. This should not imply that 1999 Constitution, for that matter the re-instatement of Sharia is a direct cause of the group’s rise. However, it does provide a powerful rhetorical tool, and the groups always justify their actions using assertions of religious “ownership” over the north.

Sharia law has a long history in Northern Nigeria; the Malik School of Islamic law governed all aspects of life for Muslims living in Northern Nigeria. It continued to flourish throughout the 1900s as a result of British indirect rule, championed in Nigeria by Lord Lugard. In 1960, on the eve of independence, the administrative unification of Nigeria compromised the status Sharia had previously enjoyed with the enactment of the Northern Nigeria Penal Code and Criminal Code Procedure. This effectively abolished substantive and procedural Sharia criminal law and was considered beneficial for the unification of the Confederation of Federal Nigeria.

Following the creation of a federal state in the 1960s, Islam and Christianity have continued to play a vital role in national and political life. This relationship between the two religions has not, however, been characterized by harmony: this is made evident by scanning through the electoral maps of any election in Nigeria. The discriminatory nature of Nigeria’s Sharia Penal Code violates the Constitutional guarantee that all Nigerian citizens who belong to a particular religion or place of birth shall not be subjected to discrimination on that basis.

At present, Sharia law applies to Muslim residents of Northern Nigeria. For the most part, this means Muslims are clearly subject to different treatment before the law than Southerners. This is in contravention to the Constitution’s guarantee of equal treatment before the law.

The most notable consequence of this provision and similar provisions in the legislation of other Sharia-observant states is that Muslims in these states are likely to be penalized more harshly for their infractions than their non-Muslim counterparts.

Thus, for instance, if a Muslim and his non-Muslim friend are caught in the act of stealing a bicycle in Kano, Kaura Namodo or Kontagora, and there is sufficient evidence to prove their guilt, the Muslim culprit faces the daunting prospect of amputation while his non-Muslim co-offender will, at the very worst, be sentenced to a term of imprisonment (except in the highly unlikely event of his opting to be tried by a Sharia court).

By the same token, if two married persons commit adultery with each other and one of them happens to be a Muslim and the other a Christian, the former can be prosecuted and possibly sentenced to death by stoning, whereas the latter would undoubtedly have sinned against his or her religion but will not have to answer to a criminal charge. This clearly contradicts the equality before the law clauses in the Federal Constitution.

The most pressing issue is the divergence in the severity of punishments that result from petty offences, would that be mandated by the Federal Constitution and international conventions that Nigeria is a party to? The example of such case is that of Amina Lawal case.

Many cases decided by Sharia courts and overruled by the Supreme Court caused Muslim diehards to accuse the Lagos based court that it is interfering with the lives of Muslims north. These are elements that have easily been seized by extremist groups such as Boko Haram. Given the marginalization of the northern states by years of patronizing only the oil rich south, this gave the way for Boko Haram to use the Sharia and western education as a proxy.

The issue of whether Nigeria is secular state or has a state religion also continues to surface. The Constitution explicitly prohibits a state religion in Section 10. Does the enactment of Sharia reforms then entail the adoption of a certain religion?

The problem that faces not just Nigeria is Divine nature of Sharia. In many countries with a considerable balance of Muslims and Christians, such countries find it constitutionally problematic, in a way, to determine which law is supreme? Given that God’s law (Sharia) cannot be subject to human agency, the supremacy of the Constitution is evident in sect. 1 (1). The trouble is, both Sharia and the constitution claim to have the supremacy. Sharia in the eyes God Sharia cannot be questioned, and the Supreme Court also claims supremacy in the eyes of common law, such a situation leaves the 1999 Constitution contradicting itself.

By extending Sharia beyond the realm of civil law into the sphere of criminal law, ardent Sharia supporters have argued that it strengthens the social dimension of communities and reintroduces community participation in crime prevention. This seemed to capture the “African” nature of laws i.e. the absence of difference between civil and criminal law (every man had court in his front compound to expound justice) mostly in absence of the state. However it was short sighted given the task ahead to organize the courts and train jurists to interpret Sharia to accepted international standards.

The challenges of most African states go quietly undiscussed, or at least remaining in academic circles, but mainly affecting ordinary people is the above separation of these legal entities. The election of Buhari now waits to see how he handles the legal complicity of harmonizing Sharia and secular law in one country. Given that the transition of power in Senegal, Namibia, Zambia and now the coup d’état champions of Africa, Nigeria, are African democracies now perfecting the art of regularly changing president peacefully? Have African countries finally perfected the Bloody Marys to cure the colonial hangover? Although there are positive indications that the coup d’état era may be over and that post-election violence is becoming less frequent. The issue that continues to arise, not just for Nigeria, is multiple legal systems in Africa.

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