CONFLICT BETWEEN SHARIA LAW AND THE RULE OF LAW ON THE RIGHTS OF WOMEN. AN APPRAISAL
CHAPTER ONEBackground of the studyThe practice of Islamic law in Nigeria, by northern states, raises a number of constitutional questions and questions the supremacy of the constitution. The activities of these states have shown that the federal government do not really have the interest of its citizens and have refuse to strictly enforce the spirit of the letters in the Nigerian constitution which provides for the unity, peace, principle of freedom equity and justice – in Nigeria[1]. Thus, no discrimination is envisaged by the constitution. This lack of enforcement is more burdened on women who are said to be governed under Islamic law, especially, as it relates to fair hearing towards them. Thus, instances have shown that fair hearing is not for women. This is one of the greatest threats in democracy and more so, the nation’s constitution. The civil liberties organization reports that: an 18-year-old nursing mother Tawa Bello was subjected to ten stroke of canes after being convicted by a Sharia Court in Guassau Capital of Zamfara States, for wandering and prostitution. This court did refuse to hear her side of the story and did not give her legal representation[2]. Discrimination against women is institutionalized in parts of the Islamic criminal legislation, which has resulted to lack of fair hearing towards women.There are two main provisions in the law, which discriminate against women. The first is the inequality in the weight of testimony. According to the sharia penal codes, a woman’s testimony as evidence in a trial is worth half of a man or the testimony of one male witness equals that of two female witnesses.Another aspect of discrimination, which can lead to lack of fair hearing, is the inequality in standard of evidence in cases of Zina. Women have been adversely affected in these cases under the sharia codes in force in Nigeria, based on the maliki school of thought; pregnancy is consideredsufficient evidence to convict a woman of adultery. For the male defendant, the sharia penal code requires that the act of adultery must have been witnessed by four independent individuals before the man can be convicted - a standard of proof which is usually impossible to obtain and has not been obtained in any of the cases which have been arisen so far. This glaring discrimination in standards of evidence has had serious consequences for women charged with Zina. It has resulted in situations such as those of BariyaMagazis. SafiyaHusseni[3] and AminaLawal.[4] There have been also been cases when men have been convicted for adultery but these conviction have usually been based on the man’s own confession. The intriguing thing about this kind of society or judicial system is that, women are very vulnerable and they suffer from this form of human right abuse and violations. This paper is written to address the problem of lack of fair hearing towards women who are governed by Islamic law (Sharia) in Nigeria. From this paper, it will be shown how injustice have been meted on the woman governed under Islamic law (Sharia) in relation to fair hearing as it contradicts the provision of section 36 of the Nigeria constitution of 1999 (as amended).Statement of the problemFair hearing is a very important, in every legal system.It tells a lot about a particular society or brings bad light or image about a particular society that does not practice it or adhere to it.Lack of fair hearing or the non-observance of the principle of fair hearing especially as it relates to women govern under Islamic law in Nigeria can ensure a lot or problems which include:1. Lack of public confidence in the legal system which can lead to anarchy in the country2. It will affect the economic development of that part of the country because of the inhuman laws that is applicable.3. Devalues the force behind the constitution.4. Paves way for high level of illiteracy towards women due to the realistic intimidation before them.Objectives of the studyIn the course of this short essay, my intensions, is to exposes the contradictory provisions of the Islamic laws (Sharia) as it regards to fair hearing toward women, in the Nigerian constitution 1999 (as amended). Also, examine the extent to which it can affect the regions of the country.Consequently, to examine how it impedes human development to that part of the country that do not adhere to the practice of fair hearing.Furthermore, to investigate the extent to which the practice of not adhering to the principle of fair hearing towards women, has eaten deep into the Nigerian legal system. Lastly, to suggest solutions on the need to repeal some of these lawsthat is contradictory to the provisions of the constitution regarding the subject matter.Significance of the studyThis study will firstly, add to the wealth of literatures existing in this subject matter of law for educational purposes. However, the work will be more valuable to lawyers and Islamic law judges. The reason is that the beginning and end of a matter or case in court rest on how well the principle of fair hearing have been used in the adjudication of a matter. Any breach of this principle results to the nullity of the entire process no matter how well conducted it may appear. The Nigerian population is largely uneducated especially women in the northern part of Nigeria, this study will be an eye opener to civil rights group and NGOs to do more in their pursuit for human rights. Likewise, the executive arm of government, to know the way women are being treated in the northern part of country and what can be done about the situation.To the legislators, to know the laws that are not intandem with the constitution and see how these laws can be amended or reflect the spirit of the constitution.And lastly to the general public especially women in the north, to know the realities to steering them before their eye and possible ways to go about this reality.Scope of the studyThis work will span through the unconstitutionality of Islamic law in Nigeria especially as it relates to the lack of fair hearing towards women who are govern under Islamic law in Nigeria. This will involve an examination of specific cases where the Islamic law court have gone contrary to the principle of fair hearing which is more burden on the woman.Research methodologyIn sourcing for materials for this work, the law library was of immense help in sourcing for materials as it availed me a variety of opinions and argument from different Islamic laws scholars and lawyers and civil groups as continued in both articles, publications and books written by Nigerian authors. Also given the computer age, it is no doubt that the internet facility was in no small helpful as there were plethora of materials that came handy as online articles.Literature reviewRelated works do not directly discuss our topic however, various authors have expressed their opinion on their articles on issues of fair hearing towards women who are governed under Islamic law.Ikenga,[5] is of the view that, the Quran reveals the general tradition imposed on all testamentary evidence in Islam that, the evidence of a woman is half the evidence value of one man. The verse states [6] “when you contact a debt for a fixed period, write it down… and get two witness out of your own men… and if there are no men available, then a man and two women, so that if one of them errs, the other can remind her ….” However, from the foregoing verse, it can be seen that this evidentiary rule is primarily restricted to cases of business transactions, civil debts and contracts. It is true that as lacking in experience and requisite skills, however, this practice is still in force in the modern society such as the Nigerian society. Ikenga is of the view that this Islamic practice in the aforementioned verse is still being practice and it is in at variance with the provision of the section 42 of the constitution which[7] state; “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason only that he is such a persona. Be subjected either expressly by or in the practical application of, any law in force in Nigeria or any executive administrative action of the government, disabilities or restrictions to which citizens of Nigeria of other communities, ethnic group, sex,religions or political opinion, are not made subject to”.Also section 17 (2) (a)[8] which states“In furtherance of the social order every citizen shall have equally rights, obligations and opportunities before the law”.He further opines that, by extrapolation, this practice perhaps degrades the human status of women folk alberts by making two women equal to one man. Hence, this unfair gender equation collides with the provision of section 34 of the Nigerianconstitution which states that no person shall be subject to degrading treatment. He further said that besides, Nigerian adjectival law regard everybody as equal irrespective of gender as a competent witness in court proceedings except, in the consideration of the court, one is prevented from understanding the questions by reason of tender years, extreme old age, diseases whether of the body or mind, or any other cause of the same kind[9]. Ikenga concluded by saying that nowhere is the court consideration based on gender yet in Nigeria today Shariacourts have insisted on two women as equivalent to one man. This has even been made statutory in some of the Shariapenal codes. On the issue of procedural irregularities of Shariacourts[10] he is of the view that, all the notorious criminal causes decided by one Shariatrail court judges since 2000 in respect of adultery or fornication (Zina), women have always been victims of judicial disregard to the constitution safeguards on fair hearing as provided in section 36 of the constitution. These constitutional safeguards or procedural guarantees are mainly the basic rights of an accused person before, during and after the trial. Hence, in the cases of the state vsSafiyatuTudis[11] and the state vsAminaLawalKurami[12], the procedural guarantees were not observed in favour of the accused person, thereby resulting to denial of justice and violation of fundamental rights. Ikenga wonders whether the court’s decision confirmed to the equality cause of section 14 of the constitution and non-discrimination provisions of section 42 thereof. Simeon Emakhis[13] is of the view that there isa lot of discrimination against women prevalent in northern Nigeria. Firstly, Shariadevaluatea women’s testimony or evidence in areas courts. Secondly, punishment mented out by Shariacourt in adultery cases discriminates against women[14]. She further complains on the wrong impression that, adultery could be committed by one person. She concludes by calling on all state parties to take appropriate measures to modify or abolish such discriminating laws.Izabazza[15] is of the opinion that, there are specific or direct law to protect the right of women and that the existing laws are not adequate. She further grieved that, even the laws which stipulates the fundamental rights[16]are not being known by most women. She concludes by saying that there are many laws which implies protection of women in Nigeria but these laws are not implemented.DEFINITION OF TERMSIslamIslam is seen as one of the three main religions in Nigeria which adherents are predominant in the north. Its teachings are founded on the Quran, life of Muhammad and some other sources (Ozigbo 1988:2). An adherent of Islam is called a Muslim which is the active participle of the same verb of which Islam is the infinitive.ShariaSharia is Arabic word that literally means “a drinking place” or “a path leading to a watering hole” (Ubaka, 2000:11, Kenny, 1986:20). The implication is that since water is regarded as a source of life, Muslim claim that Sharia is the foundation of not only earthly but also eternal life. Farlex (2009) describes Sharia as a code of law derived from the Quran and from the teaching and examples of Mohammed. Johnson (2009:) expands the meaning of Shariaas “inspired not only by Islam and Quranbut also by Arabic traditions and early Islamic scholars”. In this paper, Shariais understood as constituting those rules of conduct derived from different sources of Islamic religion and codified into a body of law by relevant legislatures with the intention of getting them enforced through state machinery. It is equally understood as that body of Islamic law as interpreted by the Maliki School of Islamic jurispendence which is the only acceptable version in Nigerian Islam.Zina: is an Islamic law concerning unlawful sexual relations between Muslims who are not married to one another through a nikah. It includes extramarital sex and pre-marital sex as adultery, fornication and homosexuality. The Quran deals with Zinain several places. First is the quaranic general rule that commands Muslims not to commit zina. Quran, sura 17 (al sira) ayat 32 reads “nor come nigh to fornication/adultery: for it is shameful deed and an evil, opening the road (to the evils)”.[1] Preamble of the federal republic of Nigeria constitution 1999 (as amended)[2] Contrary to section 36 of the constitution of the Federal Republic of Nigeria[3] (Unreported) case No USC/GW/CR/FI/10/01; judgement delivered on 9/11/2001[4] (Unreported) case NO 9/2002, sharia court Bakori, Katsina state judgment delivered on 20/03/02[5] Oragbunam, Ikenga. K. E. A critique of certain aspects of Islamic personal law in Nigeria: re-examining the jurisprudence of woman’s right. Pg 10[6] Koran 2 : 282[7] 1999 constitution (as amended) of the FRN[8] 1999 constitution (as amended) of the FRN[9]Evidence act 2011, section 175 (1)[10] Foot note 10 rewarding pag 12[11] supra[12] supra[13] Jekhuemen Simeon Emakhis “the nature and prevalence of violence in Nigeria pg. 5[14] State vs safiyatu tudu (supra)[15] Hadiza iza bazza “domestic violence against in Nigeria” pg. 10[16] Chapter four of the Nigerian constitution 1999 (as amended)
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