The #ShariaBill – Barriers to Passage By @TexTheLaw

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This is the Bill before the Federal House of Representatives proposing an amendment to the provisions in the Nigerian constitution relating to the jurisdiction of Sharia courts.

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Proposed by an Honourable Representative from Sokoto State, it seeks to expand the scope of the Sharia appeal court’s authority from personal law, to also include criminal law.

If the Bill were to pass as is, sections 262 and 277 of the constitution would read as follows (amendments emphasised) –

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For those who are not aware, “hudud” are the punishments, under Sharia law, believed to have been set by God. “Qisas” refers to retributive justice under Sharia law, in instances when a Muslim is murdered, suffers bodily injury or suffers property damage.

 

I do not think the bill can become law in its present form for the following constitutional reasons (though there are also questions to be asked about the place of such amendments in a secular state in the year 2016, but that’s a different matter altogether) –

 

  1. The requirements for amending the constitution –

According to section 9 of the constitution, for an amendment to pass, two-thirds of each house of the national assembly must first of all approve the amendment. Then, two-thirds of the houses of assembly in no less than two-thirds of the States of the Federation must also approve the amendment. Basically, if the amendment fails to pass in 13 States, it will have no effect. I do not think that the promoters of the Bill can get 24 states to approve the amendment.

 

  1. The Prohibition Against Adopting an Official Religion –

Section 10 of the constitution forbids the Federal Government and the government of any State from adopting any religion as State Religion. It’s hard to see how a State can mete out punishments based on religious crimes without being seen to have adopted the religion as its official religion.

 

  1. The Guarantee of Freedom of Religion –

In section 38, the constitution says everyone has the right to freedom of thought, conscience and religion, including freedom to change their religious beliefs, and the freedom to propagate one’s religion. The proposed amendment does prescribe how a person might elect to have Islamic criminal law apply to him or her, leaving several important questions unanswered. Will the law apply to all States in Nigeria, or just a few? Will it apply to only Muslims, or to non-Muslims as well (since it is a matter of criminal law). Can Muslims opt out, given that they have the right to change their beliefs and religion? How about the fact that apostasy is a hudud crime?

 

  1. The Requirement for Crimes & Punishments to be Law

The constitution says (in section 36(12)) that, unless it says otherwise, a person can’t be convicted of a criminal offence unless that offence is defined and its penalty prescribed in a written Federal Act or State Law. This means that, to be of any consequence, the various hudud and qisas matters/punishments must be listed and passed into the criminal/penal code of a State or of the Federation.

 

  1. The Right to Freedom from Discrimination

It is also a provision of the constitution, that no citizen shall on the basis of ethnic group, sex, RELIGION, place of origin, etc., be subject to any restriction which people of other sexes, places of origin, or RELIGION are not subject. This, to my mind, would also extend to the restrictions placed on Muslims by virtue of Sharia criminal law. Thus, if the government attempted to levy a Sharia punishment on a citizen, he would be entitled to argue that it is unconstitutional, given that it is a punishment that does not apply equally to all citizens of Nigeria who commit the same offence.

Rotimi Fawole

Rotimi Fawole

Rotimi is a lawyer whose practice areas over the years have been largely within corporate/commercial and intellectual property law. He’s a music lover, plays the guitar and the piano and supports the Arsenal. His other musings can be found on texthelaw.wordpress.com and he tweets from the handle @texthelaw.

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