Citation
Can Sharia Respond to Progressive Change? A Discourse on the Implementation of Sharia Law in Nigeria: Addressing Constitutional, Religious and Human Rights

Material Information

Title:
Can Sharia Respond to Progressive Change? A Discourse on the Implementation of Sharia Law in Nigeria: Addressing Constitutional, Religious and Human Rights
Creator:
Ginader, Wendy
Publication Date:
Language:
English

Subjects

Subjects / Keywords:
Criminal law ( jstor )
Islam ( jstor )
Islamic law ( jstor )
Jurisprudence ( jstor )
Koran ( jstor )
Law schools ( jstor )
Muslims ( jstor )
Religion ( jstor )
Religious freedom ( jstor )
Sunni ( jstor )
Christians
Islamic law
Muslims
Nigeria
Genre:
Undergraduate Honors Thesis

Notes

Abstract:
Since 1999 twelve of Nigeria's Northern states have implemented full Sharia law extending it from civil to criminal matters. The proclamation of these twelve states has escalated religious conflict and generated a multitude of concerns that has aggravated the already fragile relationship between Muslims and Christians in Nigeria. In the wake of the Sharia debates disagreement on its application has been met at every avenue, whether it is on its constitutional validity, religious freedoms and ideology, or human rights. This research aims to call attention to the problems that are mired in Nigeria's past which have exacerbated many of the issues that surround the adoption of Sharia Law, with a particular emphasis being placed on the constitution, civil and religious rights of the parties involved. The research will also attempt to shed light on the essentiality of Sharia Law for Muslims and the religion of Islam while discussing the problems associated with the implementation of Sharia in an assumed secular state. The findings will contemplate the perceived negative and positive effects of Sharia through a comparative process of filtering through the fears and concerns of both Christians and Muslims in Nigeria ( en )
General Note:
Awarded Bachelor of Arts; Graduated May 3, 2011 summa cum laude. Major: Religion
General Note:
Advisor: Gwendolyn Simmons
General Note:
College of Liberal Arts and Sciences

Record Information

Source Institution:
University of Florida
Holding Location:
University of Florida
Rights Management:
Copyright Wendy Ginader. Permission granted to the University of Florida to digitize, archive and distribute this item for non-profit research and educational purposes. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder.

Downloads

This item is only available as the following downloads:


Full Text
xml version 1.0 encoding UTF-8
REPORT xmlns http:www.fcla.edudlsmddaitss xmlns:xsi http:www.w3.org2001XMLSchema-instance xsi:schemaLocation http:www.fcla.edudlsmddaitssdaitssReport.xsd
INGEST IEID EUHHFY44Z_A238SU INGEST_TIME 2017-07-11T21:26:05Z PACKAGE AA00057192_00001
AGREEMENT_INFO ACCOUNT UF PROJECT UFDC
FILES



PAGE 1

1 Can Sharia Respond to Progressive Change? A Discourse on the Implementation of Sharia Law in Nigeria: Addressing Constitutional, Religious and Human Rights

PAGE 2

2 I. Introduction full Sharia law extending it from civil to criminal matters. The proclamation of these twelve states has escalated religious conflict and generated a multitude of concerns that has aggravated the already fragile relationship between Muslims and Christians in Nigeria. In the wake of the Sharia debates d isagreement on its application has been met at every avenue, whether it is on its constitutional validity, religious freedoms and ideology, or human rights. This research aims to call attention to the probl issues that surround the adoption of Sharia Law with a particular emphasis being placed on the constitutional, civil and religious rights of the parties involved. The research will a lso attempt to shed light on the essentiality of Sharia law for Muslims and the religion of Islam while discussing the problems associated with the implementation of Sharia in an assumed secular sta te The findings will contemplate the perceived negative and positive effects of Sharia through a comparative process of filtering through the fears and concerns of both Christians and Muslims in Nigeria. II. Overview of Sharia Presently, S haria is understood as a legal code that is synony mous with the faithful adherence to the religion of Islam T he two primary sources that the S haria was developed from which is considered by Muslims to be the divine revelation from Allah, and the Sunnah of the Prophet Muhammad which are his

PAGE 3

3 saying and actions as recorded by his Companions In many cases, especially from a Western perspective, Sharia is understood to simply be a system of laws that strictly governs legal circumstances but this is not en tirely accurate. While it is true that there are legal aspects incorporated in the text of the Sharia they do not encompass its complete scope. In addition to legal instruction and punishments, the Sharia governs every facet of a Muslims life including p rayer, fasting and rituals. The term S haria in its literal sense means the way to the watering place or the path to seek salvation. 1 Since Sharia is such an intrinsic part of the Islamic faith, one may assume that the concept of Sharia would be a main the term S haria only occurs once in Sura (45:18). 2 This verse reads as follows: of religion. So follow it and follow not the whimsical desire ( hawa ) of th ose who a asserts that the 3 The term hawa is interpreted here as whimsical desires which lead to a deviation from correct guidance; therefore, it is used to illustrate a demarcation between the two ideas. 4 An imperative in understanding the nature of the meaning of sharia is to place it within its historical context. At the time this verse was revealed Islam was encountering other religions, namely pagan, on a rather consistent basis and it is quite plausible that the reference to hawa was used to explain how the belief system of such groups were fallible and in stark contrast to the values and way of life of the Islamic faith. This understanding assumes that Sharia in its literal sense should be 1 Kamali, Mohammad Hashim. 2008. Oneworld Publications. p. 2. 2 Ibid. p. 2 3 Ibid. p.2 4 Ibid. p.2

PAGE 4

4 perceived as the proper course of the religion of Islam rather than an implied legal sys tem. To c ompliment this notion, there is Sura (42:13) which uses the term of which its derivative s mean to enact or to begin something 5 The Sura reads as follows: din ] as that which He enjoined on Noah and the one we revealed to you and that which We enjoined on Abraham, Moses and Jesus, namely that you should remain steadfast in religion and make no have asserted that in th is Sura the term should be understood as relating to tawhid, essentially the belief in the oneness of God, since this is what the scriptures revealed to the afore mentioned prophets had in common. 6 From this, one cannot ascertain that the referenc e implied here relates to law in the juridical sense since the laws handed down to each prophet were not identical. Therefore, the terminology would be better understood as speaking in regards to religious doctrine If we understand S haria to be the assume the purpose of Sharia to be the pres ervation of the fundamentals of the Islamic faith these being faith in God, the manner by which he is revered and observance of the five pillars 7 then we must ask ourselves where and how legality and justice enter the picture. First and foremost, it must be noted that of the approximately 6,000 verses that makeup 8 This certainly suggests that herent nature, a law book as would be 5 Ibid. p. 4 6 Ibid. p. 4 7 Ibid. p. 4. 8 Al In, Liberal Islam: A Sourcebook. Edited by Charles Kurzman. 1998. Oxford University Press. p. 51.

PAGE 5

5 perceived in the that revolve around moral and religious obligations. 9 When Sharia law was being deve loped the considered indisputable, however, these sources did not fully explain every facet of life and law 10 Because of this, certain aspects needed to be extrapolat ed through the use of human interpretation and reasoning. T herefore, it can be said that Islamic law in reality originate d from two major sources, divine revelation and human reason 11 relegated to the discovery, comprehension and application of Sharia which was only allowed to be executed by an appropriately qualified Muslim jurist. 12 It was these jurists that engage d in the application of S haria through the process of interpretation and independent reasoning call ed ijtihad. When applied to its fu nction in the context of S haria, the effect of ijtihad was used to discern an extending formulation of the rules in the primary texts through the a pplication of qiyas or analogy. 13 In other words, it is through interpret ation or ijtihad that the jurist determined the grounds for a specific ruling found in the primary texts and therefore, it expanded it to cover a broader spectrum of legal issues through means of analogy or qiyas. Once this ha d occurred and a public judgment ha d been acquired it was to be accepted by Muslim jurists through unanimous consensus or ijma in order to be considered as fiqh or jurisprudence. Fiqh is comprised of the developed literature on legal rulings formulated by Muslim jurists based on 9 Ibid. p. 19. 10 Ibid. p. 39, 11 Ibid. p. 39 12 Al Muhari, Butti Sultan Butt i Ali. Pre Modern Period. Arab Law Quarterly. Vol. 10, No. 4 (1995). p. 289. 13 Ibid. p. 294.

PAGE 6

6 ijtihad, qiyas, and ijma. 14 It is important to note her e that the terms Sharia and fiqh a re differential. While some use the language interchangeably this is not an appropriate application of the terms. Sharia is implicit in its d efinition as divine revelation which distinguishes the path that must be pursued by the believer in order to acquire guidance, whereas, fiqh is associated with human reason, knowledge and understanding. 15 Fiqh is not given any precedence over the law that God delivered to the Prophet Muhammad, instead it is seen as a compliment to those laws, a derivative of them so as to achieve a better understanding. Bernard Weiss emphasized this sentiment by asserting that: The premise of Ijtihad assumes that the Holy Law is not given to man ready made, it is to be actively constructed on the basis of sacred and acknowledged sources by expounding on that which is present but yet is not self evident. Therefore, the Mus lim ju rist never invents rules; his endeavors are attempts to derive rules from those which are divinely ordained. These rules which constitute the ideal Law of God, exist objectively above and beyond all juristic endeavor 16 This being sai d Islamic law has never been appli ed as a standardized system. There are variations based on such factors as geographic location, culture and social situations. 17 While the differences cannot be seen in the fundamentals, there are variances within the app lication and 14 Ibid. p. 294. 15 Kamali, Mohammad Hashim. 2008. O neworld Publications. p. 40. 16 Weiss, Bernard. Interpretation in Islamic Law: The theory of Ijtihad The American Journal of Comparative Law, Vol. 26, No. 2 (1978). p. 199. 17 Oba, A. A. Islamic Law as Customary Law: The Changing Perspective in Niger ia The International and Comparative Law Quarterly, Vol. 51, No. 4 (2002). p. 821.

PAGE 7

7 interpretation of scholars. 18 These factors have led to a difference in the approach to and application of jurisprudence which has produced multiple schools on the theory of Islamic law a. Schools of Islamic Law After the death of the Prophe t Muhammad ( 632 CE ), problems arose in the Muslim community surrounding the idea of succession. The conflict revolved around whether Abu Bakr, a close companion of the Prophet, or Ali ibn Abi Talib, his cousin and son in law would become the successor leadership should stay within the family of the Prophet and those that would become Sunnis felt that leadership should fall to the person who was deemed by the elite of the community t o be best able to lead. 19 It was Abu Bakr that would assume the role as leader of the Muslim community; however, both Ali and Bakr would become members of what Muslims refer to as the four rightly guided caliphs. 20 This le d to the first major division in t he Muslim community of law. From this division emerged multiple centers of juristic activity, the most significant of them being the Medina school in the Hijaz, and the Kufa school in Iraq. 21 Within these schools geography played an important role in the development and approach to their jurisprudential thought. The Medina school, arising in the city with such a close connection to the P rophet during his life, placed traditio n or hadith as the most highly regarded aspect and t he Kufa school, being located away from the Hijaz laid more of an emphasis on personal opinion thr ough the 18 Ibid. p. 821. 19 Shuster, Mike. The Origins of the Shia Sunni Split. npr. http://www.npr.org/templates/story/story.php?storyId=7332087 20 Kamali, Mohammad Hashim. 2008. Oneworld Publications. p. 68. 21 Ibid. p. 69.

PAGE 8

8 22 l rather than that of geographic locality. 23 Because the Sunni schools of thought are per tinent to the understanding of S haria and its implementation in Nigeria I wi ll focus my discussion around them in the following section. b. Sunni schools of Islamic thought The legal scholars located in the Medina and Kufa schools produced the four leading Sunni schools of Islamic law were led by prominent imams of the day. 24 As mentioned before the major divisions between these four schools came from their approach to developing jurisprudence based on their association with either the Medina or Kufa schools. In other words, in addit ion to the acceptance of the Quran as a primary source of S haria, certain schools adhered more towards the recognition of the hadith as the second most important source for the development of jurisprudence, while others favored a foc us on personal opinion 25 Abu Hanifah, was an influential imam that was born in Kufa where he studied Islamic legal theory. 26 He is the founder of the Hanafi school which is considered to be the first of the his disciples, however, during his life he contributed a great work called Al Fiqh al Akbar or The 22 Ibid. p. 69. 23 Al Muhari, Butti Sultan Butti Ali. Pre Modern Period. Arab Law Quarterly. Vol. 10, No. 4 (1995). p. 298. 24 Kamali, Mohammad Hashim. 2008. Oneworld Publications. p. 69. 25 Ibid. p. 69. 26 Kamali, Mohammad Hashim. 2008. Oneworld Publications. p. 70.

PAGE 9

9 Great Understanding which dealt with the issues of dogma. 27 Additional disciples have provided works to the Ha nafi school of thought which have had a profound impact on its development of legal reasoning. In particular, Muhammad ibn H asan al Shaybani assembled the corpus juris of the Hanafi school, of which six of the works dedicated to principal matters became the foundation of multiple literary sources on jurisprudence. 28 The Hanafi school has the reputation for putting a greater emp hasis on the role of reason and analogy or qiya s, and Kamali explains that Hanafi law is considered to be the most humanitarian of all the schools, specifically concerning the treatment of non Muslims and war captives, and its penal law is considered to be more lenient. 29 Currently it is the predominant school of Islamic thought, comprising one third of the Muslims around th e world in areas such as Syria, Jordan, Lebanon, Pakistan, Afghanistan, and the majority of Muslims in India. 30 T he second largest of t he four Sunni schools of Islamic legal theory is the Maliki school Mal ik ibn Anas was a prominent legal expert that had lived his entire life in Medina and h is most acclaimed and recognized work was the al Muwatta 31 l Muwatta is the earliest and most complete compilation in the history of Islam and it is frequently described as a work of hadith ; however, unlike others it is arranged according to the topics of fiqh. 32 What is particular to this work is that it is based on the prac tices of the close companions of the Prophet in Medina. Malik favored these hadith on the premise that it was a more reliable source of the true Sunnah as opposed to other sources by individuals that were not in close contact with 27 Ibid. p. 70 28 Ibid. p. 70 29 Ibid. p. 70. 30 Ibid. p. 73. 31 Ibid. p. 73. 32 Ibid. p. 73.

PAGE 10

10 the Prophet and his teac hings. 33 Therefore, it can be said that the Maliki school looked to the hadith that originate d in Medina to derive a ruling when encountering the dilemma of conflicting literature. 34 The Maliki school is inclusive in the sense that it accepts all the collected works that are maintained by the three other Sunni schools h owever, in addition they have added three other sources Madinah ), istislah (consideration of public interest), and sadd al (bl ocking the means). 35 Kamali asserts that, the scope and source materials employed by Maliki jurisprudence has significantly opened the doors of ijtihad wider than most. 36 The third school I founded by a pupil of imam Mali k. Muhammad ibn Idris al which differentiates it from the others is the fact that it emphasizes the authority of fou r essential sources from which legal theory can be authenticated S unnah of the prophet Muhammad, ijma ( consensus ) and qiyas ( analogy ) are the only reliable sources with which one can derive legal rulin gs. 37 exclusive, and th erefore, must be read in tandem. As for his views on ijma, he rejected the idea of consensus as asserted by the elite scholars of the previous schools and proclaimed that the only valid consensus is that of the whole Muslim community. 38 explains that when confronted with a situation on which the Quran, the Sunnah, or ijma do not 33 Ibid. p. 73. 34 Ibid. p. 73. 35 Ibid. p. 75. 36 Ibid. p. 75. 37 Ibid. p. 77. 38 Ibid. p. 78.

PAGE 11

11 provide a definitive answer, only then should qiyas be applied in order to deduce the law 39 From this le gal theory could be derived. While i rejecte d some of the ideas from the previous schools, he was adamant in studying the ir jurisprudence and h is aim was to accommodate both schools through the attempt to find a sense of unanimity when deducing law. 40 From a modern gorized as a moderate since he ventured to find a middle ground between the Hanafi and Maliki schools when developing his legal theory. The fourth and final school of law within Sunni Islam is the Hanbali school, which mai nly took its directives from The Hanbali school was founded by Ahmad ibn Hanbal who studied under many of the also placed qiyas as the last method in deducing law; therefore the majority of his rulings were derived from the primary sources with a major emphasis on hadith 41 His key work and contribution to the Hanbali school was Al Musnad (the Verified), which is a compiled resource of approximately forty thousand hadiths. 42 I n the eighteenth century the Wahhabi movement in Arabia used the Hanbali methods to derive its doctrine and as a result the Hanbali school is still the recognized school of Islam ic law in Saudi Arabia. 43 We can see from the previous discussion that the four Sunni schools were not polarized entities that stood in stark contrast to one another. While particular emphasis may be placed in different areas there is a shared commonality throughout much of their developed legal theories. 39 Al Muhari, Butti Sultan Butti Ali. Islamisati Pre Modern Period. Arab Law Quarterly. Vol. 10, No. 4 (1995). p. 299. 40 Ibid. p. 298. 41 Ibid. p. 84. 42 Ibid. p. 84. 43 Ibid. p. 84.

PAGE 12

12 What is important to n ote here is that the application of ijtihad was a main component of the development of each of these schools of thought. However, it was determined that the legal rulings ascertained by the four Sunn i schools were adequate for dealing with any further dev elopments that may be encountered, and as a result a conclusion was reached for closing the gates of ijtihad. 44 This meant that no other jurist had the right to look to the texts to derive new formulations of legal rulings or theory through the implementat ion of ijtihad It was decided that the concept of ijtihad would be banned and replaced with taqlid (imitation) ; therefore every subsequent jurist was forced to accept the legal rulings of the masters of the four established Sunni schools. 45 It is impo rtant to point out that the ban on ijtihad may be seen to have played a major role in the way S haria has been implemented throughout the modern era. Within the context of progress and the evolution of individual human rights S haria law may seem static. It will be pertinent to consider this aspect as we move furthe r through our investigation of S haria law in Nigeria. I believe that the effect of taqlid will be seen as problematic when we look at the sharia law in juxtapos ition with constitutional and fun damental human rights As we move further through our investigation of Sharia and its implementation in Nigeria, I feel it is essential to discuss authoritative and governmental structures from the pre colonial era to the present. This is per tinent in achieving a broader understanding of the context in which the S haria debate has formed. It also gives us a background to consider the multitude of dilemmas that Nigeria has fa ced throughout its existence which will hopefully result in a framewor k that allows us to discuss the aspects of S haria in Nigeria appropriately. 44 Al Muhari, Butti Sultan Butti Ali. Pre Modern Period Arab Law Quarterly. Vol. 10, No. 4 (1995) p. 300. 45 Ibid. p. 300.

PAGE 13

13 III. Nigeria Currently, Nigeria is home to over 155 million 46 populous country. There are more than 250 ethnic groups and over 500 languages, many of them indigenous, spoken in the country of Nigeria. 47 These numbers are proof that it is impossible to group the people of Nigeria into a single category or to use one over arching theme to describe them. Many here in the West tend to split Nigeria into Muslim and Christian categories and use these terms to explain the ongoing problems that fester within the nation, however, it is important to consider the ethnic diversity and the role it plays in the development of Nigeria as a whole. Beyond this, it is important to look at the history of Nigeria and the key circumstances that have been the impet us for the struggles Nigeria has had in creating a common unity for its people. Within these struggles we find the foundation of the issues surrounding sharia and where they begin may very well be at a. Pre Colonial Era Nigeri a lies in the Western portion on the continent of Africa and is home to a large number of ethnic groups. The most predominant groups in the Northern portion are the Hausa, Fulani and the Kanuri, however, it can be said that the Hausa and Fulani are the majority which is a result of political hegemony and they are usually coupled together as a single group 48 The Hausa came to Nigeria through migrations, forming an identifiable group around the twelfth century and by the thirteenth century they had established several major city states which came 46 The World Factbook. Central Intelligence Agency. https://www.cia.gov/library/publications/the world factbook/geos/ni.html 47 ibid. 48 Northern Nigeria: Background To Conflict. Africa Report, No. 168. International Crisis Group. 20 December 2010. p.2.

PAGE 14

14 to be known as Hausaland. 49 The Fulani were primarily nomadic people that migrated to Hausaland between the thirteenth to fifteenth centuries from the area that is currently known as Senegal, however, the scholars of the Fulani eventually found favor with the Hausa nobles and established a place of prominent influence 50 The Hausa were able to establish a strong hold on a significant portion of the region through their control of several areas of trade. It is through these trade routes that Islam would initially come to establish itself in Hausaland. Islamic expansion spread through the areas of West Africa in two broad phases. The first phase was brought by Muslim clerics and Arab traders from the North between the eleventh and the seventeenth centuries 51 Isl am had reached those i n Hausaland around the middle of the fourteenth century and was accepted primarily by the ruling classes which f ormed the beginnings of a division between the elites and the rural classes. H owever, Islam and the traditional cust oms of the indigenous people were able to coexist in a relatively peaceful manner. 52 The second phase of Islamic expansion can be characterized as a religious revival which was aimed at the return to a purer form of Islam. This purification of Islam primarily came through jihads in the nineteenth century and the motivator of these jihads was a prominent Fulani preacher named Usman dan Fodio. 53 Usman saw the ruling Hausa elite as a self indulgent and corrupt class that interfered with his ideal form of Islam and therefore, needed to be suppressed. His jihads gained support from many of the rural Fulani class which had been deprived and repressed under the Hausa leadership. 54 By 1810 Usman and his followers had gai ned control of the Hausa states 49 Ibid. p. 2. 50 Ibid. p. 2. 51 Ibid. p. 3. 52 Rasmussen, Lissi. Christian Muslim Relations in Africa: The Cases of Northern Nigeria and Tanzania Compared. 1993. London/New York. British Academic Press. p. 6. 53 Ibid. p. 7 54 Ibid. p. 6.

PAGE 15

15 and replaced the ruling Hausa elite with Fulani emirs. 55 The jihads that Usman had initiated had several religious and political aspects tied to them and of these the most significant was the establishment of the Sokoto Cali phate. The Sokoto Caliphate was at the epicenter of the emirates in West Africa and the caliph was the central figure of both spiritual and political authority. 56 Each emirate was in a sense self governing but they were regulated by a method of supervisi on through the caliphate in Sokoto. 57 The Fulani leaders imbedded the principles of the Islamic faith throughout most of the area they ruled in order to establish a common identity that would surpass any ethnic divisions that had previously been an obsta cle. At this time a stringent form of S haria was applied throughout the majority of the region, and in some respects it was seen as a tool for oppression among those who were not strict adherents of Islam. 58 However, things remained relatively peaceful for a time and a s a result trade was extremely prosperous in t hese ar eas, however, while things seemed relatively secure, growing tensions within the community would begin to weaken the Sokoto structure. 59 As a result of these tensions the British found it easier to gain control over the emirates and the caliphate when they began their colonization of Nigeria. b. The Colonial Era 55 Ibid. p. 7. 56 Ibid. p. 7. 57 Ibid. p. 9. 58 Northern Nigeria: Background To Conflict. Africa Report, No. 168. International Crisis Group 20 December 2010. p.3. 59 Ibid. p. 4.

PAGE 16

16 Colonialism is a term that evokes strong feelings of mistrust which continue to plague the relations between Christians and Muslims in Nigeria and throughout most of the world. This is not necessarily linked to the existence of the two religions in Africa but rather the sentiment was developed out of the perpetua l conflict that had r isen from their encounters in the Mediterranean. 60 Prior to the time of European dominance Islam had been present for centuries in various parts of Africa. 61 As mentioned before, Islam had made its appearance in Northern Nigeria, e.g Hausaland, around the fourteenth century and was further imbedded in the eighteenth century as a result of the Usman dan Fodio jihads. Lissi Rasmussen religious scholar and author of present day Nigeria had ended with the creation of the Colony and Protectorate of Nigeria, 62 The British had neither the resources nor the man power to establish a formal colonial government and with the combin ing of the Northern and Southern regions they feared that retaliation to their power could be implemented from both sides. It was due to this fact that the British decided to employ a form of indirect rul e that would allow Muslim leaders to retain a certain amount of power. The intentions behind such actions were not embedded in a respect for the current religion of Islam and its Muslim adherents; rather it was for the purpose of maintaining some sort of peaceful negotiating tool and in avoidance of Muslim uprisings against the imperial agenda. The British were able to rationalize this pragmatic approach through the consideration that Islamic culture was far more civilized than the pagan traditions that were 60 The Direction of Christian Muslim Relations in Sub (1995) in Y. Haddad & W. Haddad. Christian Muslim Encounters. University Press of Florida. 61 Ibid. p. 302. 62 Rasmussen, Lissi. (1993). British Academic Press. p. 16.

PAGE 17

17 confronting them elsewhere, e ven though it was not viewed as elevated as their own. 63 The British believed that the system for ruling that had been in place under the Sokoto Caliphate presented the best form of control in their present situation. However, the British modified the sys tem and eventually extended it over the whole colony, including non Muslims. 64 This would prove to affect the Christian efforts that were largely playing out in the Southern portion of Nigeria. k had begu n in Southern Nigeria but it had not necessarily made a huge impact. Conversion of Muslims, especially those in the North, was a primary aim of the missionaries; however, they were having more success with those who lived in the Southern region and adhere d to traditional pagan religions. The British perceived the efforts of the Christia n missionaries to be problematic for their overall agenda in the sense that it could ignite a Muslim uprising. Therefore, the British government enforced a ban on missionary work and proselytization in Muslim territories. 65 As an inadvertent result of this tactic, Islam was able to spread rather e asily throughout areas of Nigeria and the suppression of Missionary activities was yet another obstacle that had been rem While some of the policies implemented by the British may have helped Islam maintain a strong presence in the Northern region, these policies were primarily viewed by Muslims as a way for the British to assert their ultimate goal of domination. 66 Many Nigerians equated the British colonizers with the Christian Missionaries coming from the West and s ince the rule of the British was being imposed throughout all of Nigeria which essentially affected those that adhered to traditional urned to Islam i n rejection of imperial rule As 63 Rasmusse n, Lissi. (1993). British Academic Press. P. 18. 64 Ibid. p. 16. 65 Ibid. p. 28. 66 Ibid. p. 18

PAGE 18

18 a result, Islam became a representation of the resentment that was felt by who h ad colonial rule imposed upon them. This gain of members to the Islamic faith concerned anti Muslim feelings among Christians 67 In discrepancies between Muslim and Christians the government regularly took the side of the Muslims and accused the Missionaries for being culpable of political agitation, therefore, every endeavor asserted by the Muslims was perceived by Christians as step towards political gain. 68 Es sentially, colon ialism in Nigeria and throughout Africa set the tone for uneasy relations between Christian and Muslims. c. Post Colonial Era Nigeria officially gained their independence from the British government in 1960 but prior to authority changing hands the British engraved their colonial marks even deeper by 69 The British co ntinued to focus missionary efforts in non Muslim areas and since schools were a predominant part of their work, it was converted Christians that benefited from the Western education they supplied. This created an uneven balance in education between the two religious groups that generated fear s amongst the Northern and Southern regions and it would be an issue that would continue to play out for many years to come. As mentioned before, the British implemented a form of indirect rule throughout Nigeria which had allowed the caliphate to maintai n a certain amount of authority. However, in the last years of col onial rule the British removed the criminal aspects of S haria from the table and introduced a British Penal 67 Ibid. p. 37. 68 Ibid. p. 43 69 Northern Nigeria: Background To Conflict Africa Report, No. 168. International Crisis Group 20 December 2010. p. 5.

PAGE 19

19 Code on the grounds that was contrary to the overall rights of the ci tizens of a religiously plural society. 70 The North ern of the Penal Code was not welcomed by them; they really only accepted it as a part of a c ompromise which would have resonating effects as can be seen in the S haria debates of th e modern era. What this compromise actually meant for Muslims was an exaltation of Christian values over their own. These decisions would come to manifest itself in feelings of mistrust and anti plague the relationship between Muslims and Christians in Nigeria today. agreed on the adoption of a federal administration which was considered suitable based on its 71 This form of government it was thought seemed to best suit the many levels of As far as an arrangement of powers is concerned, a federal system of government seeks to provide a certain degree of autonomy between the national and re gional governments 72 and it was intended to provide a balance of powers that would help create a homo geneous political, economic, and social entity in Nigeria. As we move through our review was never realized as those who praised its implementation thought it would. Unf ortunately, the and relig ious and economic strife. These features became the catalyst for a multitude of violent wars and ri ots which lead to a countless number of deaths. 70 Ibid. p. 5. 71 Adamolekun, Ladipo & Ayo, S. Bamidele. The Evolution of the Nigerian Federal Administration System Publius Vol. 19, No. 1. (1989). p. 157. 72 Ibid. p. 157.

PAGE 20

20 d. First Republic political parties. The two most influential were the Northern Elements Progressive Union (NPC). 73 At this time Nigeria was divided into three geopolitical regions (North, Western, and Eastern) The prominent groups in the Northern region were the Hausa Fulani, in the Eastern region were the Igbo, and in the Western region were the Yoruba. The NPC proved to be the party that gained significant strength and Ahmadu Bello, who was the head of the party, situated himself as premier of the Northern Region. Bello then positioned Abubakar Tafawa Bal coalition agreement with the National Convention of Nigerian Citizens (NCNC) it was determined based on parliamentary norms that the NCNC wo uld provide the presidency of the Senate. 74 Nnamdi Azikiwe would assume this position and eventually move into place as sense, when the country became a republic in 1963. 75 The period of the First Republic can be described as a quest for unification, bo th in the Northern portion of the country and throughout the three regions as a whole; however, these hopes would not culminate as such in the years to come Ahmadu Bello advanced several policies, which privileged those of all religions, in order to stre ngthen the cohesiveness of the North. 76 The policies that were put into place forged a sense of harmony in the North but fostered various fears in the Western and Eastern Regions. These fears were based on the perception of the Northern region gaining strength and a disregard for the demands being made 73 Northern Nigeria: Background To Conflict. Africa Report, No. 168. International Crisis Group 20 December 2010. p. 6. 74 Elaigwu, Jonas Isawa. Federalism and National Leadership in Nigeria. Publius. Vol. 21, No. 4. Federalism in Nigeria: Toward Federal Democracy. (1991). p. 129. 75 Ibid. p. 130. 76 Northern Nigeria: Background To Conflict. Africa Report, No. 168. International Crisis Group 20 December 2010. p. 7.

PAGE 21

21 by the other regions such as the development of states. Balewa tried to appease the situation by creating a Midwest Region in 196 3; however, this only satisfied those in the specific area and did not pacify the same requests coming from the East. 77 As a result Balewa had to focus his efforts on conciliatory matters that would diffuse the notion of secession out of the trepidation t hat it would be detrimental to the new government structure and the country as a whole. The efforts to increase the unification of the North and the perception o f Islamic hegemony created a riff that lead to a military coup in 1966 by Christian Igbo offic ers from the Eastern Region. 78 In the military takeover of the government several politicians, including Ahmadu Bello and Abubakar Tafawa Balewa, were killed. 79 government to a military dictatorship. e. N The years between 1966 and 1999, Nigeria experienced multiple military coups that led to copious amount s of violence and unstable government structures. After t he Januar y coup of 1966 General Aguyi Iro nsi acquired control of the military regime and proclaimed Nigeria to be a unitary state, referring to it as The Republic of Nigeria; therefore, all former regions were considered abolished. 80 At this point Southern domination was a primary concern and mi norities in the North ca me together with the Muslim (Hausa Fulani) majority and stage d a counter coup in July of 1966. 81 time in power and his life were cut 77 Elaigwu, Jonas Isawa. Federalis m and National Leadership in Nigeria. Publius. Vol. 21, No. 4. Federalism in Nigeria: Toward Federal Democracy. (1991). p. 130. 78 Northern Nigeria: Background To Conflict. Africa Report, No. 168. International Crisis Group 20 December 2010. p. 8. 79 Elaigwu, Jonas Isawa. Federalism and National Leadership in Nigeria. Publius. Vol. 21, No. 4. Federalism in Nigeria: Toward Federal Democracy. (1991). p. 131. 80 Ibid. p. 133. 81 Northern Nigeria: Background To Conflict. Africa Report, No. 168. International Crisis Group 20 December 2010. p. 8.

PAGE 22

22 short. With the counter coup of July 1966, Colonel Yakubu Gowon eme authoritative figure. 82 Unrest and violence continue d to run rampant throughout the country, however, the worst could be seen in the Eastern region where the Igbo who are primarily Christian, wer e targets of hostility after the takeover of the government in 1966 which was headed by Igbo army officer General Ironsi. 83 The military coup of 1966 was perceived by many Muslims as a way to forward a mainly Christian agenda. Colonel Gowon respond ed to the situation by splitting Nigeri 84 This create d a further divide in the relationship between Gowon and the governor of the Eastern Region Colonel Emeka Odumegwu Ojukwu who refuse d s Eastern Region formally secede d from Nigeria on May 30, 1967 and declare d itself the Republic of Biafra. 85 T his secession led to a horrific civil war that ensued for over two years and led to innumerable Nigerian deaths Eventually Biafra collapsed and was re absorbed by the country of Nigeria. While attending an Organization of African Unity (OAU) meeting in Kampala, Gowon was ousted in a bloodless coup on July 29, 1975. 86 The coup that removed Gowon from power was led by General Murtala Mohammed who in 1976 created seven additional states which brought the total number of states in the federation to nineteen. 87 Lieutenant Colonel Buka Suka Dim ka in February 1976, only ten days after the establishment of 82 Ibid. p. 8. 83 Leadership Timeline. PBS Newshour. http://www.pbs.org/newshour/indepth_coverage/africa/nigeria/timeline.html 84 Ibid. p. 8. 85 Ibid. p. 8. 86 Elaigwu, Jonas Isawa. Fede ralism and National Leadership in Nigeria. Publius. Vol. 21, No. 4. Federalism in Nigeria: Toward Federal Democracy. (1991). p. 136. 87 Ibid. p. 137.

PAGE 23

23 the seven new states. 88 contributions to Ni geria were the supervision over the removal of the military from the political arena and the development of a committee to draft the 1979 constitution. 89 was the last in a long line of military dictatorships and he was successful in handi ng over power to a new civilian government in which a democratically elected president would take the helm. Alhaji Shehu Shagari became the first executive president of Nigeria in 1979 which put an end to thirteen years of military rule. 90 Shagari governed for two consecutive four year terms but throughout his political career ther e were rumors of corruption, rigging of elections, and frivolous expenditures which 91 The military overthrew Shehu Shagari on Dece mber 31, 1983 92 and unfortunately, this would lead to another substantial period of military dictatorship s in Nigeria. Each consecutive military regime from 1983 forward appeared more and more ruthless and aggravated the already fragile Nigerian society. Corruption and violence were the principal tactics of the majority of the military regimes that came into power throughout the following 15 years. This carved deeper divisions between religious groups and furthered the problems that revolved around socioe conomic status Eventually an actual return to democracy would come for Nigeria in 1999 f. 88 Ibid. p. 138. 89 Ibid. p. 139. 90 Ibid. p. 139. 91 Leadership Timeline. PBS Newshour. http://www.pbs.org/newshour/indepth_coverage/africa/nigeria/timeline.html 92 Ibid. p. 140.

PAGE 24

24 Nigeria had faced in the previous decades. While the government was structured more towards breaks and a general suspicion and mistrust for government entities. Olusegun Obasanjo was elected to return to t he presidency on May 29, 1999 93 which was almost twenty years after he had handed over his authority to Shagari. While there were still ground s for concern, Obasanj o's election was primarily seen as a hopeful progression for Nigeria. However, throughout his first term the country continued to spiral economically and violence was still a major component of societal struggles. He was elected aga in in 2003 for another four year term and focused his attention on squelching corruption in the political arena through setting up the Economic and Financial Crimes Commission (EFCC). 94 Obasanjo pushed the limits of his constituency when he made an effort to amend the constitution to allow him to run for a third term ; the amendment was never ratified and he stepped down from power in 2007. 95 It would seem that the suspicions that surrounded the Obasanjo presidency co about the legitimacy of his election. Rumors of election rigging and fraudulent votes were rampant and the people requested the help of the Supreme Court to determine the validity of and in 2008 the Supreme Court acknowledged possible errors made in the election process but concluded that they were not severe enough to reverse the results. 96 93 http://www.pbs.org/newshour/indepth_coverage/africa/ nigeria/timeline.html. 80 ibid. 95 Ibid. 96 Ibid.

PAGE 25

25 me ill early on in his presidency and on May 4, 2010 he passed away, leaving his vice president Goodluck Jonathan to succeed him in office. Goodluck Jonathan became the acting president of Nigeria when his predecessor Umaru s death in May 2010 proclaiming that the focus of his administration would be anti corruption, power and electoral reform. 97 His presidency has not been overwhelmingly easy as there continue s to be religious, eco nomic and societal issues that have been ongoing for several decades. Jonathan remains April 2011. As we can see by the previous overview, Nigeria has had a le ss than productive political life. Government rule has transitioned through a multitude of hands and many, if not the and individual gain have plagued the rank s of politicians which have provided the arena for ck to the imposition of British rule which left Nigeria with a myriad of tribulations that would continue to inundate it even until present day. One of the issues, which has had a major impact on Nigeria is the implementation of Sharia law i n twelve of its Northern states and more specifically the addition of its criminal law aspects. The focus of the next section will focus upon trying to answer questions that surround the S haria debate. We will look at the validity of S haria from a constitutional standpoint, the religious issues that surround S haria from both the Christian and Muslim perspective, and the effect S haria has on human rights. IV. Issues surrounding S haria in Nigeria 97 Ib id.

PAGE 26

26 As previously discussed, relations between Christian and Muslim communities in Nigeria have been strained by factors that can be traced as far back as Colonial rule These relationships have continued to deteriora te on struggle to maintain some type of stability within its governmental structures. It can be said that the root of the tensions between Muslims and Christians ha s been cultivated in the politi cal, economic, and societal struggles that have been an ongoing predicament for the people of Nigeria. At the same time, it is not incorrect to suggest that these relationships were complicated by the religions of the two groups; however, as it has been m entioned above, religion by itself was not necessarily the fundamental cause. All of t hese factors play an important role in the issues that surround the S haria debates, in the sense that the uneasiness between both religious groups had already been playi ng out in the form of other conflicts. In other words, the implementation of S haria in twelve ween the two religious groups although it can be viewed as a vehicle or megaphone for many underlying issues However, with this being said, there are still many questions that continue to circulate regarding the validity of full S haria implementation in light of the Nigerian Constitution the implications it has on human rights, as w ell as, how it effects the religious rights of both Muslims and Christians. a. The Question of Constitutional Legitimacy First and foremost, it must be stated that S haria or Islamic law has been a part of the Northern Region of Nigeria prior to the time of British Rule. As I have discussed earlier, the British implemented a form of indirect rule which allowed Muslims in this region to maintain a certain amount of authority which included Islamic law. Dr. Andrew Ubaka Iwobi lecturer at the

PAGE 27

27 Swan sea University school of law 98 Ho wever, the British scaled down the limits to which S haria could be applied, mainly focusing it on topics that dealt with personal matters which in turn meant that all aspects of criminal law were abrogated from the scope of the S haria. Essentially, at this time 99 This was a problem for Muslims as they saw the limiting of S haria on any level to be a blatant ac t of subordination. made when Muslim authorities in the North accepted the introduction of the British Penal Code which would delineate punishments for criminal offenses. While this may have seemed to plac ate Muslims in this region for the time being, it would not completely satisfy their future desires to implement an unabridged version of Islamic law. The initial post Colonial debate surrounding S haria that truly created a firestorm was during the drafting of the 1979 Constitution It was initiated when t he Constitution Drafting Committee (CDC) proposed, what would become, a rather controversial provision for the development of a Sharia Court of Appeal at the Federal level. Almost immediately debates began to ensue on the constitutional legitimacy of such a propos al. Religious fervor may have been at its highest when the Constituent Assembly (CA) convened in order to review the co ntent of the draft co nstitution 100 98 Iwobi, Andrew Ubaka. Tiptoeing through a Constitutional Minefield: The Great Sharia Controversy in Nigeria. Journal of African Law, Vol. 48. No. 2 (2004). p. 112. 99 Nmehielle, Vincent O. Sharia Law in the Northern States of Nigeria: To Implement or Not to Implement, the Constitutionality Is the Question. Human Rights Quarterly. Vol. 26, No. 3 (2004) p. 732. 100 Iwobi, Andrew Ubaka. Tiptoeing through a Constitu tional Minefield: The Great Sharia Controversy in Nigeria. Journal of African Law, Vol. 48. No. 2 (2004). p. 115.

PAGE 28

28 Courts of Appeal at the state level but appeals from these courts would be referred to the Federal Court of Appeal rather than a separately constituted Federal Sharia Court of Ap 101 The Muslim members of the CA were outraged and essentially walked out on the proceedings with no intentions of returning until the recommendations for prohibiting a Sharia Court of Appeal at the Federal level had been reversed. This threatened th e very nature of the constitutional process and there were growing concerns that there would be no constitution in place when civilian rule was restored; therefore, the military government had to intervene in order to convince the Muslim members to reconsi der their stance on the matter. 102 The result of the Constitutional compromise was that states could establish their own Sharia Court of Appeal if they chose to do so, however, appeals would be referred to the Federal Court of Appeal where they would be hea rd by learned Islamic judges. 103 Once again this was seen by many Muslims as a way for the Western oriented government to marginalize them. On May 29, 1999 a new Constitution was introduced in Nigeria and o nly a few months after its induction the G overnor 104 Since this time, eleven other Northern states S okoto, Borno, Gombe, Kebbi, Jigawa, and Yobe. 105 What the procla mation of these states means is that S haria, which was previously relegated to personal and civil matters, would now govern all areas of life including criminal aspects. It is important to not e that not all of these states immediately implemented the full scope of S haria. Some have chosen to take the route of 101 Ibid. p. 115. 102 Ibid. p. 115. 103 Ibid. p. 115. 104 Nmehielle, Vincent O. Sharia Law in the Northern States of Nigeria: To Impleme nt or Not to Implement, the Constitutionality Is the Question. Human Rights Quarterly. Vol. 26, No. 3 (2004) p. 731. 105 Ibid. p. 731.

PAGE 29

29 a gradual implementation mostly out of concern for the stability of the state in regards to religious backlashes. The declaration of t hese states is what has brought the most attention to the S haria debates not only within Nigeria but from around the world as well It is here where several arguments have been made surrounding the constitutional validity of the establishment of full S ha ria. supreme and its provisions shall have binding force on the authorities and persons throughout the 106 inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other 107 The wording in these sec tions seems to be rather clear cut on the supremacy of the Constitution over any other law that may conflict with it held conviction that the Sharia embodies the will of Allah and as such is eternally valid, 108 This argument is highly problematic legall y especially in respect to the Constitution of a country that has a religious and ethnic plurality ; and it is difficult for an argument to withstand legal questions about its validity by basing claims to a single set of religious beliefs. Th e very sentime nt revolving around the religious nature of the argument from a Muslim point of view moves us to the next question of whether th e S haria is constitutionally valid. 106 Constitution of the Federal Republic of Nigeria. 1999. Chapter 1, General Provisions. http://www.nigeria l aw.org/ConstitutionOfTheFederalRepublicOfNigeria.htm#Chapter_1 107 Ibid. 108 Iwobi, Andrew Ubaka. Tiptoeing through a Constitutional Minefield: The Great Sharia Controversy in Nigeria. Journal of African Law, Vol. 48. No. 2 (2004). p. 127.

PAGE 30

30 o 109 Both Christians and Muslims have used section 10, on several occasions, to promulgate their positions on the secular nature of Nigeria. Opponents of S Sharia reforms are unconstitutional because 110 On the other hand supporters of the S haria profess that there is no reference to Nigeria being a secular state within the context of sectio n 10 of the 1999 Constitution. It is true that this line in the Constitution does not specifically use the word secular but many scholars agree that the wording he problem here is that the term secular is being assumed by many Muslims to have a religious connotation attached to it that implies a removal of religion from society in general when it actually applies more to legal terminology that describes a politica l or governing entity as having no affiliation with re ligion on any level. 111 This sentiment is furthered by David Ihenacho a religious scholar and journalist, who opines that: The observation is quite right that Section 10 of the 1999, unlike its immediate state reli gion. In other words, the Constitution states that Nigeria shall be 109 Constitution of the Federal Republic of Nigeria. 1999. Chapter 1, Part II, Powers of the Federal Republic of Nigeria. http://www.nigeria law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm#Chapter_1 110 110 Iwobi, Andrew Ubaka. Tiptoeing through a Co nstitutional Minefield: The Great Sharia Controversy in Nigeria. Journal of African Law, Vol. 48. No. 2 (2004). p. 128. 111 http://www.nigeriawor ld.com/columnist/ihenacho/042002.html

PAGE 31

31 independent of all religions and it seems clear and unambiguous in sociology and political science that a state that is independent of religion is a secular state. 112 The point of section 1 0 may seem to be moot as the arguments that surround it can be said to be built on a matter of semantics, however, they have contributed to and maintained yet another layer of disagreement within the S haria debates. While discussing the topic of religion the next logical progression i s to discuss the aspects of freedom of religion under the 1999 Constitution which are contained in section 38. This section delineates the freedoms that are entitled to each and every Nigerian citizen. Section 38(1) provides that: Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance. 113 Many of the arguments made that are relevant to this section not only fall under the arena of religious freedoms but they also correspond with affected Once again this is a card that is strategically play ed from both sides of the tab le and in all actuality it is probably one of the most difficult subjects to navigate. Why is this? It is due to the fact that taken at face value section 38 seems to be clear that it professes freedom of religion in any circumstance. Therefore, Muslims see this as a proclamation that invites them to practice their religion in its totality. Muslims are absolute in their insistence that Islam is a complete way of life that encompasses all aspects. For them there is no distinction between the religious an d secular portions of life or for that matter, governing. So the question that is derived from these 112 Ibid. 113 Constitution of the Federal Republic of Nigeria. 1999. Chapter 4, Part II, Fundamental Rights. http://www.nigeria law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm #Chapter_4.

PAGE 32

32 sentiments is if prevention of the implementation of S haria, and more specifically its criminal ice their religion freely? In response to this, Vincent O. Nmehielle professor of law at the University of Witwatersrand in Johannesburg, asserts that: This reasoning fails to recognize that there is a difference between freedom to religious belief and the wholesale adoption of religious law as a ba sic law of a state, which is by no means totally composed of members of a particular religion. The freedom of religion is not an absolute freedom, but one that is limited by another indiv 114 right is afforded to all individuals and this concept is in direct contrast to the principle of apostasy found within S haria law. For a Muslim to leave Islam and convert to another religion is seen as a criminal offence which is punishable by death under the S haria This very act does not only impede the choice of one to freely make a decision to change their religion without fear, it also creates a veritable human rights dilemma. The problem of jurisdiction also comes into play when dealing with the issue of whether state Sharia Courts of Appe al actually have the power to exercise criminal jurisdiction. Section 277 (1) of the 1999 Constitution states that: The sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic 114 Nmehielle, Vincent O. Sharia Law in the Northern States of Nigeria: To Implement or Not to Implement, the Constitutionality Is the Question. Human Rights Quarterly. Vol. 26, No. 3 (2004) p. 750.

PAGE 33

33 personal Law which the court is competent to decide in accordance with the provisions of subsection (2) of this section. 115 Section 277 (2 a e), explains the capacity and extent to which state Sharia Courts of Appeal ha ve jurisdiction over cases that are presented before it. Thus, Section 277 (2) states: For the purposes of subsection (1) of this section, the S haria Court of Appeal shall be competent to decide (a) any question of Islamic personal Law regarding a marriage concluded in accordance with that Law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant; (b) where all the parties to the proceedings are Muslims any question of Islamic personal Law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a founding or the guarding of an infant; (c) any question of Islamic personal Law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a Muslim ; (d) any question of Islamic personal Law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardia nship of a Muslim who is physically or mentally infirm; or 115 Constitution of the Federal Republic of Nigeria. 1999. Chapter 4. Fundamental Rights. http://www.nigeria law.org/ConstitutionOfTheFedera lRepublicOfNigeria.htm#Chapter_4.

PAGE 34

34 (e) where all the parties to the proceedings, being Muslims have requested the court that hears the case in the first instance to determine that case in accordance with Islamic personal law. 116 When reading this portion of the 1999 Constitution one can see that there is no mention of criminal law anywhere in the section. Each time the word law is mentioned, it explicitly refers to Islamic Personal Law which has been explained as dealing specifically with civil matters. Therefore, many people especially those who are non Muslim, see the proclamation of the twelve Northern states to extend their jurisdiction over criminal matters to be in direct conflict with the Constitution. The caveat to this interpretation is that some scholars believe that a portion of the wording in section 277(1) is misleading and leaves a relative loophole for state Sharia Court of Appeals to extend jurisdiction over criminal offenses. One of these scholars in pa r ticular is Phillip Ostien w ho 117 it may plausibly be read as delegating to the states the power to give their Sharia Courts of Appeal any jurisdiction they please 118 The line of section 277(1) of the 1999 Constitution to which Ostien is referring to reads as follows: in addition to such other jurisdiction as may be conferred upon it by the law of the State 119 Ostien suggests t hat: 116 Constitution of the Federal Republic of Nigeria. 1999. Chapter 4. Fundamental Rights. http://www.nigeria law.org/Consti tutionOfTheFedera lRepublicOfNigeria.htm#Chapter_4. 117 78 Sharia Debate Revisited. in Soares, Benjamin. Muslim Christian Encounters in Africa. 2006. Brill. p. 249. 118 Ostien, 78 Sharia Debate Revisited. in Soares, Benjamin. Muslim Christian Encounters in Africa. 2006. Brill. p. 249. 119 Ibid. p. 249.

PAGE 35

35 The clause appears to authorize the states to extend the jurisdiction of their Sharia Courts of Appeal ad lib ince 1999, this is how the clause has been read by all twelve of the so called sharia states, which have acted under it, by their own la ws, to extend the jurisdiction of their Sharia Courts of Appeal from Islamic personal law all the way to Islamic criminal law. This they say is expressly permitted by the Delegation clause. 120 This is, of course, one way of looking at the situation and it h as never been completely determined whether or not the twelve sharia states are correct in their assessment of section 277(1). With respect to this state of affairs in 1999 w hen the governor of Zamfara announced hi s decision to implement full S haria it was originally denounced by President Obasanjo as being completely unconstitutional, however, since t hat statement was made there has been a change in his stance and he seemed to even be backing the line of thinking of the twelve Northern states. 121 This re constitution that allow the S haria states to implement their jurisdiction over criminal matters, however, no formal decision has been revealed to the public. This i ssue obviously has not been resolved since it is now almost twelve years since the initial proclamation was made and there has been no reversal of it from a constitutional stand point. Besides the question s of constitutional validity there are many human rights concerns that are brought about in regards to the implementation of full sharia. Many of the issues that are being raised surrounding the question of human rights and S haria have direct correlations with the subject of constitutional 120 Ibid. p. 250 251. 121 Ihenacho, David Asonye. Profe http://www.nigeriaworld.com/columnist/ihenacho/042002.html

PAGE 36

36 validity as ha ve been mentioned above. In the following section I will discuss the issues surrounding the implications that full S haria law has on human rights in Nigeria. b. Sharia and Human Rights Throughout the ordeal that has been circling the implementation of full sharia in twelve of people, both Muslim and non Muslim, in these areas. The proclamation of these twelve states has garnered international attention and a m agnifying glass has essentially been placed over the Northern region of Nigeria. The common consensus by human rights advocates is that many of the S haria laws and their punish ments infringe or outright violate the various rights that are deemed to be ent itled to individuals under several international and regional human rights protocols. As space and time does not permit me to unpack every aspect of how S haria law infringes on human rights, I will discuss those that I feel are most important and have gai ned the most scrutiny from around the world. Nigeria is a member of the United Nations (UN), as well as, the African Union (AU) and has willingly ratified the following international and regional conventions: The international conventions include the Inte rnational Covenant on Civil and Political Rights (ICCPR), to which Nigeria has been a state party since 1993; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which Nigeria ratified on June 28, 2001; the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which Nigeria ratified on July 13, 1985; and the Convention on the Rights of the Child (CRC), which Nigeria ratified on April 19, 1991.

PAGE 37

37 The regional conventions include th e African Charter Rights (African Charter), which Nigeria ratified in 1983 and has incorporated into domestic law; its Protocol on the Rights of Women in Africa, which Nigeria signed on December 16, 2003, but has not yet ratified; and the African Charter on the Rights and Welfare of the Child (ACRWC), which Nigeria ratified on July 23, 2001. 122 This list shows that Nigeria is concerned with the equitable and just treatment of their citizens which extends to both Muslims and non Muslims. Therefore, l isting out these conventions is important to our discussion in understanding why so many people observe various aspects of S haria to contravene a range of entitled human rights as delineated by the above mentioned protocols. First I want to address the iss ue surrounding the right to equality before the law. Several of the conventions mentioned above contain language that speak to the rights of all persons, male or female, to have equality in the eyes of the law. In Article 26 of the ICC PR it states that: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 123 122 Human Rights Watch. Vol. 16, No. 9(A). September 2004. p. 104. 123 International Covenant on Civil and Political Rights. http://www2.ohchr.org/english/law/ccpr.htm#art26 Cited Human Rights Watc h. Vol. 16, No. 9(A). September 2004. p. 108.

PAGE 38

38 In addition to this Article 3 of th e African Charter provides that 124 Certain aspects of Sharia which has been implemented in Northern Nigeria, are in stark contrast to the two statements provided above Dr. Frieder Ludwig professor of mission and World Christianity at the Luther Seminary Under the new legislation the testimony of a male Muslim is given greater weight than that of a woman (whether Muslim or not) or any non Muslim (whether female or not), if indeed, women and non Muslims are considered competent 125 This sentiment has played out in most respects towards women who are being tried in Shar ia Courts, and an example of this is the la w that considers 126 Therefore, a woman is never seen to be equal in the eyes of sharia law and in such a situation a woman usually cannot bring forth enough evidence in her defense to acquit her of the crime she has been accused of. This is especially apparent in the laws that revolve around the crime of zina (extra marital sex, which is referred to as adultery if the person is married, or fornication, if she is not ). 127 The two most high profile cases attached to t he conviction and punishment for zina were those of Safiya Husseini of Sokoto State and Amina Lawal of Katsina State 128 Both of these women were young adults who were accused of having engaged in sex without being married and became pregnant. In this circumstance, t hese two women were accused of the crime of zina S ince Nigeria implements the form of S haria found under the Maliki school where pregnancy is 124 http://www.achpr.org/english/_info/charter_en.html Cited in, Human Rights Watch. Vol. 16, No. 9(A). September 2004. p. 108. 125 Ludwig, Frieder. Christian Journal of the American Academy of Religion. Vol. 76, No. 3. 2008. Oxford University Press. p. 613. 126 Nmehielle, Vincent O. Sharia Law in the Northern States of Nigeria: To Implement or Not to Implement, the Constitutionality Is the Question. Human Rights Quarterly. Vol. 26, No. 3 (2004) p. 753. 127 Human Rights Watch. Vol. 16, No. 9(A). September 2004. p. 64. 128 Ibid. p 34 35.

PAGE 39

39 considered to be an admittance of guilt, the y were convicted of the crime and sentenced to death by stoning. 129 In both of these cases the women did not have adequate legal representation and the men that each of the women had engaged in extramarital affairs with were acquitted of the crime of adulte ry for lack of evidence and their denial of the act. 130 These cases were eventually taken to the Court of Appeal where the convictions were overturned due to insufficient evidence and a lack of a proper adherence to protocol and due process, therefore, the sentences for death by stoning were never carried out. 131 While the punishment for these crimes was reversed, it does not discount the fact that the males in this scenario were treated with a higher regard in the eyes of the law than the women were. The eq uality that is discussed in the ICCPR and the African Charter were not taken into consideration in the S haria courts. These w omen were disproportionately affected in these cases involving adultery on the basis that there are different standards of evidence required based on whether the person is a male or a female. 132 In cases involving zina, a man facing charges of adultery must have been seen in the act by four independent witnesses before he can be convicted, whereas a woman can be found guilty on the basis of pregnancy alone 133 Beyond this, CEDAW which is another human rights protocol that Nigeria has ratified discusses several instances where equality before the law is mandatory. The following articles illustrate these examples: Article 2 commits state parties to pursue a policy of eliminating discrimination against women and ensuring equality of men and women in several ways, notably 129 Ibid. p. 34 35. 130 Ibid. p. 34 35. 131 Ibid. p. 34 35. 132 Ibid. p. 22. 133 Ibid. p. 22.

PAGE 40

40 through adoption or amendment of legislation. In particular, Article 2 (f) commits state parties to tak e or abolish existing laws, regulations, customs and practices which constitute 134 As we have seen from the discussion above, the measures prescribed in the CEDAW documents were not taken into account by the Sharia Court when it render ed convictions or punishments of these women Another instance where human rights have been in q uestion is surrounding the topic of cruel, inhumane and degrading treatment or punishment. Many of the punishments that are called for by S haria law involve amputations, public lashings, and death by stoning. Human right s advocates s ee these punishments as needing to be abolished since they are nothing less than cruel and inhumane treatment of human beings. According to inquiries by Human Rights Watch there have been approximately sixty sentence s of amputation carried out since the ye ar 2000 135 These sentences are usually delivered when the crime involves theft. The ICCPR and The African Union contain statements regarding the right of all individuals to be exempt from enduring such punishments that are viewed as cruel, torturous, or i nhumane. From their perspective the act of amputation as a punishment for theft falls within this category. Article 7 of the ICCPR states that : No one shall be subjected to torture or to cruel, inhuman e or degrading treatment or punishment 136 In additi on to this, Article five of the African Charter states that: 134 Ibid. p. 108. 135 Ibid. p. 36. 136 International Covenant on Civil and Political Rights. http://www2.ohchr.org/english/law/ccpr.htm#art26 Human Rights Watch. Vol. 16, No. 9(A). Septemb er 2004. p. 106.

PAGE 41

41 Every individual shall have the right to the respect of the dignity inher ent in a human being ll forms of exploitation and d torture, cruel, inhuman or degr ading punishment and treatment shall be prohibited 137 The articles of these protocols do not only pertain to the punishment of amputation they apply to any and all acts that are seen as demeaning and inconsistent with the standards of the modern world. As I noted earlier, flogging or lashing is anot her punishment that is called for under S haria law in Nigeria. Flogging is reported to be the most frequently applied punishment and is typically performed with a cane that is whipped across the body with the number of strokes ranging from forty to one hundred. 138 Flogging or lashing is usually carried out in public so others can observe the effects of criminal actions which in turn, heightens the demoralizing process of the punishment If there is a quest ion as to whether or not these actions can be considered torturous or cruel the answer can be found in Articl e 1 of CAT (the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) which f this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person 139 Every punishment that has been discussed in this section is deemed, by the above mentioned human r ights protocols to be an act of tor ture 137 http://www.achpr.org/english/_info/charter_en.html Cited in, Human Rights Watch. Vol. 16, No. 9(A). Septemb er 2004. p. 106. 138 Human Rights Watch. Vol. 16, No. 9(A). September 2004. p. 58. 139 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment. http://www2.ohchr.org/english/law/cat.htm#part1 Cited in, Human Rights Watch. Vol. 16, No. 9(A). September 2004. p. 106.

PAGE 42

42 In line with the right to equality before the law and the right to be free from torture is the right of all individuals to have a fair hearing. Article 14 of the ICCPR states: e the courts and entitled to a fair and public hearing by a competent, independent and impartial entitled to minimum mptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defense and to communicate with counsel of his (g) not to be com pelled to 140 If we look back at the situation surrounding the accusations of Amina Lawal and Safiya Husseini, we can see that many of these provisions in Article 14 of the ICCPR were not taken into account when the women were on trial in the S haria courts. In both cas es there was a failure to clearly explain the offenc e that the women were being accused of ; both women were not properly informed of their legal right for representation, nor were they made aware of the consequences of confessing the offense. 141 This failur e to follow proper procedure is not uncommon. Similar situations can be found in many cases that come before S haria courts and the result affects both men and women drastically whether the punishment inflicts stoning, flogging, or amputation. 140 Human Rights Watch. Vol. 16, No. 9(A). September 2004. p. 58. ICCPR document found at, http://www2.ohchr.org/ english/law/ccpr.htm#art26 141 Human Rights Watch. Vol. 16, No. 9(A). September 2004. p. 34 35.

PAGE 43

43 All the s ituations I have previously discussed, whether they be constitutional issues, human rights or religious rights, affect the people of Nigeria on many levels. In particular the debates involving S haria have a direct impact on Christian Muslim relations whic h has widened the gap in understanding and appreciation for on e another In many instances this lack of understanding has led to violence which has culminated in the deaths of countless numbers of Nigerian citizens from both religious groups. V. Christian Muslim Relations As can be deduced from the discussions above we can see that there is a definite line of demarcation in the views that surround the implementation of S region. On the one hand, it is seen as being in d irect conflict with the interests of Nigeria and its peopl e which is a view shared by the majority of Christian s and non Muslim individuals. On the other hand it is seen as being fully legitimate and within the rights of Muslims to exercise the provisions of full S haria implementation. The unfortunate situation is that these two schools of thought have created prominent feelings of mistrust and animosity which have effected Christian Muslim relations on many levels. It is important to note that S haria h as been a part of the lives of Muslims and has always been implemented in Nigeria in some form. The debates and tensions surrounding the issue of S haria is not an entirely new circumstance, however, the proclamation of full S haria in twelve of orthern states has churned religious fervor on both sides of the divide whic h seems to be at its apex. 142 between 142 Oba, A. A. Islamic Law as Customary Law: The Changing Pe rspective in Nigeria. The International and Comparative Law Quarterly. Vol. 51. No. 4. 2002. p. 844.

PAGE 44

44 Christians and Muslims is far reaching and many underlying issues which ha ve stemmed from the time of Colonialism are being played out today. Beyond this, societal and economic situations in Nigeria are fuel for the religious fire which continues to divide the relationship between the two religious groups. As I have discussed ea rlier, the fact that Nigeria had and continues to have such an unstable government structure does nothing to placate the fears of both Muslims and Christians alike. Th erefore, it can be said that much of this animosity is being housed within the cont ext of the S haria debate. Muslims believe that the S their lives. 143 This is difficult for Christians to comprehend since, for them, there is a difference between that which is religious and that which is secular. For Christians it is not problematic to be governed by laws that are of human construct. Professor of polit ical science, Jonas Isawa Elaigwu who is the head of the Institute of Governance and Social Research and his colleague Dr. Habu Galadima explain that: According to Muslims, Islam means total submission to the will of God. Islam is understood as a religion, a way of life, and a state. It does not distinguish between religion and other aspects of living. The legal framework that governs the life of a Muslim is the Sharia the law of God, the application of which cannot be negotiated by human beings 144 This sentiment is at the very heart of the problems surrounding the discourse of Christians and Muslims in regard to S haria. For Muslims, S haria is an absolute and inherent part of their faith 143 Elaigwu, J. & Galadima, Habu. The Shadow of Sharia over Nigerian Federalism. Publius. Vol. 33, No. 3 2003. p. 124. 144 Ibid. p. 124.

PAGE 45

45 and they feel that this is not being respected by their Chr istian counter parts. In addition to this, Nigerian Muslims view the world around them as corrupt and lacking in moral values. For them, this is directly associated with the fact that S haria has not been allowed to exist in its complete form. Therefore, Muslims believe the only way to alleviate the moral ills of society is through the restoration of the religious imperatives of Islam 145 However, Christians are concerned that the adoption of full S haria in areas of Northern Nigeria will negatively impac t several aspects of their lives. In truth, their fears are not entirely unwarranted. Regardless of the fact that Muslim leaders in Nigeria have continually made claims that S haria only pertains to Muslims and it will not in any way affect Christians and non Muslims there has been evidence to the contrary. Christians profess that they have experienced instances of discrimination in various forms throughout the areas that have adopted full S haria, and as a result they are becoming increas ingly resentful of such actions. In Sokoto state, Christians explain that they have encountered problems when trying to acquire land for building churches, as well as, there being a marginalization of Ch ristian programming on the state radio and television stations. 146 So me may see these as minor infringements but when taken into context with other actions, one can see that they are just the tip of the iceberg. Dr. Frieder Ludwig professor of mission and world Christianity at the Luther Seminary discusses the problems th at have affected the relationship between these two religious groups in his article Christian Muslim asserts that: 145 K alu, Ogbu. U. Safiyya and Adamah: Punishing Adultery With Sharia Stones In Twenty First Century Nigeria. African Affairs. 2003. p. 390. 146 Ludwig, Frieder. Christian Journal of the American Academy of Religion. Vol. 76, No. 3. 2008. Oxford University Press. p. 614.

PAGE 46

46 In Zamfara a law was passed in 2001 prohibiting i ndecent dres sing in public, as well as, indecent haircuts for both men and women. The same law banned the association in public of two or more persons of opposite sexes to engage in discussions or acts of immoral or indecent nature in circumstances not approved by th e tradition and culture of the people of the state. 147 This proclamation brings up serious concerns because it is imposing Muslim norms on a religiously plural society While Christians may be a minority in Zamfara, they feel they should not have to adher e to the restrictions of a religion that is not their own. Laws such as the one mentioned above are even more problematic in the sense that they are constructed around the o are not privy to the dictates of the Muslim culture and tradition. Therefore, Christians and non Muslims are not fully aware of what is considered acceptable or unacceptab le in such a situation as they are not a part of the Muslim tradition and culture. Another po int of contention has been the restrictions imposed on travel. This has been extremely difficult on both Christian and Muslim women alike. Taxi cars, motorbik es, and kabu kabu are the primary modes of transportation in many areas of Nigeria and they are predominantly operated by men. Since there are laws prohibiting the association of males and females in public the drivers of these vehicles refused to pick u p female passengers which have forced women to walk long distances to get to their destination. 148 As a result the Christian 2001 and some members of the association have turned their cars into taxis so that Christian 147 Ibid. p. 621. 148 Ibid. p. 622.

PAGE 47

47 women can travel without being harassed. 149 While this may be seen as a resourceful way to navigate restrictions on travel that are imposed by the state, it again impacts the lives of Christians who are no t a part of the Islamic faith and who adamantly feel that S haria laws should not hinder their daily ac tivities. In addition to this there have been reports that many of the Northern states have institut ed regulations that force women and men to sit in se parate areas of buses, if they are allowed to travel together at all, and there has been talk of girls and boys being educated in different schools. 150 There has also been a ban on the sale of alcohol and numerous business establishments have been forced to shut down which in turn negatively affects the economic life of both Christians and non Muslims. 151 Restrictions such as these are the very reason that the introduc tion of S haria is associated with an imposition of Islamic values and as such, it is viewed as a new legal system that attempts to assert Muslim dominance in Northern Nigeria. 152 These are just some e xamples of how the adoption of S haria has compromised the lives of both Christians and non Muslims living in the Northern states in Nigeria. Essenti ally, the implications of such laws and restrictions have ultimately perpetuated the fears of both Christians and non Muslims leaving in these states and they are concerned that there is a fanatical element lurking behind the motives of these states. Chri stians bring up the problematic situation of gender inequality and the barbaric punishments called for 149 Ibid. p. 622. 150 Ibid. p. 610. 151 Elaigwu, J. & Galadima, Habu. The Shadow of Sharia over Nigerian Federalism. Publius. Vol. 33, No. 3 2003. p. 124. 152 Ludwig, Frieder. Christian Journal of the American Academy of Religion. Vol. 76, No. 3. 2008. Oxford University Press. p. 614.

PAGE 48

48 by the S haria as proof that their laws infringe on human rights, are unjust and contravene modern day mores and expectations. Both human rights advocates and Christians in Nigeria 153 Many Muslim s explained their feelings to the Sharia 154 Sentiments such as these weaken the already fragile relationship that exists between the two religious groups and unfortunately, in many circumstances it has led to violent clashes. Since the adoption of full S haria by Zamfara state in 1999 and the consecutive adopt ion of it by eleven additional states, there has been an unequivocal surge in religious violence. These backlashes have had resounding implications for both Christians and Muslims. Rioting and vandalism has led to the destru ction of homes, religious structures and countless deaths. In May 2000, when the Kaduna government announced they would implement S haria, fierce violence broke out in the streets resulting in the deaths of two thousand people. 155 Since that time, there ha s been consistent rio into a Muslim North and a Christian South as has been the case in the Sudan with the creation state. 156 Obviously this scenario has not pla yed out, but the fact that the idea was even entertained is a foreboding consequence of the heated dissention that is brought to the surface over the S haria debate. Similar instances of religious violence have been observed in various areas throughout the S While the majority of the violence 153 Iwobi, Andrew Ubaka. Tiptoeing through a Constitutional Minefield: The Great Sharia Controversy in Nigeria. Journal of African Law. Vol. 48. No. 2. 2004. p. 141. 154 Ibid. p. 140. 155 Manning, Jason. Nigeria in Transition: Recent Religious Tensions and Violence. Online NewsHour. http://www.pbs.org/newshour/bb/africa/nigeria/religious_violence.html 156 Ludwig, Frieder. Christian Muslim Relations in Northern Nigeria si Journal of the American Academy of Religion. Vol. 76, No. 3. 2008. Oxford University Press. p. 616.

PAGE 49

49 has taken place in the Northern region there is evidence that it is reaching areas of Nigeria that are not directly involved in the S haria controversy. For example, fighting ensued in Aba in South East Nigeria, leaving hundreds dead and injured, in response to rioting in Kaduna that had taken place over the introduction of Islamic law. 157 158 As a result of the horrifying si tuation multitudes of Christians, fearing for their lives, have fled the Northern states 159 Unfortunately, a t this point and time violence seems to be the vehicle of choice for the conflicting views of Christians and Muslims surrounding the implementation of S haria, which inevitably threatens the peaceful coexistence of each and every individual living within its borders. Therefore, in the interest of mutual understanding and a hope d f or peace ful solution to this dilemma the question that must be asked is what does the future of the implementation of S haria in the majority Muslim states of Nigeria portend for the people of Nigeria. VI. Is There a Future for Sharia As the years pass, t he debate that revolves around S haria con tinues to intensify since the Disagreement on its application has been met at every avenue, whether it is on its constitutional validity, religious freedoms and ideology, or human rights. Contention between Muslims and Christ ians grow stronger every day, pushing the gap between them further and further apart. Violence has become the primary tool for acting o ut ones oppositions to the situation at hand and 157 Nigerian Riots Kill Hundreds. BBC NEWS. http://news.bbc.co.uk/2/hi/africa/662246.stm 158 Ibid. 159 Kalu, Ogbu. U. Safiyya and Adamah: Punishing Adultery With Sharia Stones In Twenty First Century Nigeria. African Affairs. 2003. p. 396.

PAGE 50

50 m any would say that the situation in Nigeria has spiraled out of control with no plausible answer in sight. However, there are some scholars that believe that S haria has a productive future in Nigeria and it does not come at the cost of its current predicament. Abdullahi Ahmed An a renowned human rights scholar and professor of law at Emory University asserts that: sanctification of social institutions and relationships, and the shaping and development of those fundamental values that can be translated into general legislation and public policy through the democratic political process. But it does not have a future as a normative system to be enacted and enforced as such by the state as positive law. 160 Since Muslims accept S haria as an inherent part of their religious faith that regulates and governs all aspects of their lives there is no possible way for it to be c ompletely withdrawn from the picture. We need to remember that S haria is not just a set of laws in the legal sense; it is also a law that decrees the values and duties that should be honored in order to follow the Islamic faith in its proper sense. Ther efore, it can be said that S haria influences the very nature of the person that adheres to the Islamic faith just as much as the religious dogma of the Christian faith influences a person who adheres to its tenets. It seems what An is suggesting is that there is not a question about whether or not S haria will remain in the public forum; rather it is the question of how it will take shape and be applied. It is An enormous amount of misunderstanding, confusion, a nd misrepresentation in the debates 160 An Comparative Pers (Ed) Phillip Ostien, Jamila M. Nasir, & Franz Kogelmann. 2005. Spectrum Books Limited. p. 327.

PAGE 51

51 surrounding S haria and therefore, the initial task he thinks, which must be addressed is that of communicating what exactly Muslims want to achieve and how they plan on accomplishing that task so as to allay concerns fe lt by non Muslims. 161 The majority of non Muslims feel that S haria, in its current interpretation, reduces their security and fundamental rights provided to them by the constitution and several human rights treatise ratified by Nigeria. An im is cogniza nt of these concerns and does not discount the validity of them specifically because there has been such ambiguity in the demands of Muslims pertaining to S haria. In response to this, he asserts that : If Muslims are actually calling for a complete implementation of sharia, including such aspects as ; 1 the dimmah system where Christians are considered second class citizens, 2 where those subscribing to non scriptural beliefs are not accepted as legal per sons at all, 3 punishment for the law of apostasy or riddah, or 4 prohibition of charging or receiving interest on loans (riba) and speculative contracts (qarar) which would essentially outlaw modern banking and insurance contracts; then they leave no ba sis for the equality before the law of those Nigerian citizens who are not Muslims. Therefore, a demand for the application 162 It is precisely this lack of understanding on the direction of S haria that is problematic for both Muslims and Christians. There has been only a broad representation by Muslims leaders regarding the expectations of S haria implementation and as a result it is negatively affe cting those on the ground level Since there is obvious evidence that the current inter pretation of 161 Ibid. p. 328. 162 Ibid. p. 339 330.

PAGE 52

52 S haria is problematic in regards to fundamental rights and discrimination against both women and non Muslims, it therefore produces a counterproductive system for constitutional governance, political stability, and economic development. 163 However, if there was a possibility to reassess the dictates of S haria could there be a more a modern a nd progressive approach to its application. In the second section of this paper above I discuss ed the idea s of ijtihad which is human interpretation and taqlid which means imitation. I explain that ijtihad had been a major component throughout the devel opment of Islamic jurisprudence in the four Sunni schools of thought until it was determined that the legal rulings ascertained by these schools were adequate for dealing with any further developments that may be encountered, and as a result a conclusion w as reached for closing the gates of ijtihad. 164 From this point on the concept of ijtihad would be banned and replaced with taqlid (imitation), therefore every subsequent jurist was forced to accept the legal rulings of the masters of the four established S unni schools. 165 From a modern point of view the closing of the gates of ijtihad can be seen as a hindrance to the application of S haria since it has not allowed progressive circumstances and concepts to be readdressed. The development of S haria was a lon g and arduous task conducted by Islam ic scholars and jurists where it was commonplace to have multiple areas of disagreement on the conclusions they derived from their various interpretive efforts and these differences are still apparent within the various schools of Islamic jurisprudence 166 This fact is not contradictory to the accepted 163 Ibid. p. 331. 164 Al Muhari, Butti Sultan Butti Ali. Islamisation and Modernis Pre Modern Period Arab Law Quarterly. Vol. 10, No. 4 (1995) p. 300. 165 Ibid. p. 300. 166 An Comparative (Ed) Phillip Ostien, Jamila M. Nasir, & Franz Kogelmann. 2005.

PAGE 53

53 understanding of Muslims throughout the world on the incept ion and development of S haria. What is important to point out is that S haria was ee centuries of 167 at a time when the dictates of society were completely different from the modern context of today. Therefore, t he evolution that has taken place in the areas of civil liberties and human rights within the global community compel us to revisit aspects of our religious and pol itical views that are incongruent with these progressive expectations. In other words, a more contemporary implementation of S haria could be useful in resolving some of the problematic issues that arise out of the traditional interpretation of Islamic jurisprudence. An response to this dilemma is a paradigm shift in ijtihad and revision of usul al fiqh (the classical science of understanding the sources of shar 168 The problem that stems from ideas such as An that many Muslims disagree with a new interpretation of S haria since they believe that only a return to a purer form of Islam, a s was the case in the time of the Prophet, is what God has intended. An state in Medina (622 632 CE), it is clear that that expe rience can neither be repeated, nor logically compared to any other period in Islamic history or the Spectrum Books Limited. p. 333. 167 Ibid. p. 333. 168 Ibid. p. 332.

PAGE 54

54 applied in the present context of any Islamic society because it was a uni que phenomenon that ended with his death. 169 Navigating through the issues mentioned above is complicated and involves an exploration in reform that has not been widely entertained, let alone accepted. However the foundation for change is being put in place through initiatives that questions the logic behind the avoidance of modern evaluations on issues within the Islamic faith that require progressive review. Since the develo pment of S haria took Islamic scholars over three centuries to create it is uncertain how much time needs to be invested in a reinterpretation of those laws. However, i t is absolute ly imperative that specific attention must be devoted to creating an understanding of why there are aspects of S haria that n eed changing, and an inclusive discussion and concerted effort among the entire Muslim community regarding the methodologies for a progressive reform. VII. Conclusion It can be ascertained that the debates surrounding S haria in Nigeria are an intrica te web that is imbedded with complex and diverse ideas which have been difficult to come to terms with; thus b oth Christians and Muslims have developed a growing animosity towards one another in the wake of the de bate The lack of communication between religious leaders on both sides of the table has turned many of their followe rs into violent vigilantes whose actions have has only contributed to the alre ady strained relationship between Muslims and Christians and there has been concern that the current government has been woefully inadequate in their attempts to unite the count ry as a whole. The problems in Nigeria are m ired in its past and the 169 Ibid. p. 339.

PAGE 55

55 implicati ons of the adoption of S haria in twelve of its Northern states has perpetuated tensions which has raised questions about the future of Christian and Muslim relations. The only certainty that can be obtained from th is situation is that S haria is not going away. Since it is an relegated to an obsolete position, however two question s that remain are: Can Muslims reinterpret the Sharia in a way that is in keepin g with modern sensibilities regarding the equality of all persons regardless of sex or religion and what role S haria will play in the future of Nigerian society.