When one thinks of Sharia, that is, the set of behavioral rules and moral conduct inspired by Islamic precepts. How does the law implement in Sub-Saharan Africa?
Some countries have begun to embrace Sharia norms in this part of the world, introducing Islam into the current legal system. In this article, we will examine the case of Nigeria, analyzing how the Muslim faith has developed among its citizens, how it has become part of the social context, and, in particular, translated into the adoption of Islamic criminal law in some northern states.
History of Islam in black Africa
The spread of Islam in Nigeria dates back to the 11th century, when it first appeared in Borno, in the country’s northeast. Islam later established itself in Hausaland in the northwest, and its influence was evident in the Kano and Katsina regions.
Islam was for a time the religion of court and commerce, peacefully preached by clerics and merchants. Muslims increasingly conducted Trans-Saharan trade. In the second half of the eighteenth century, there was a Muslim revival in West Africa, thanks to the flourishing trade relations between the Ottoman Empire and the Fulani people, an ethnic group made up of nomadic shepherds who settled in northern Nigeria at this time, adopting Islam as their religion.
These played a central role throughout the 18th century. In fact, the Muslim scholar Uthman dan Fodio was of Fulani ethnicity, who launched a six-year jihad in 1804, with the aim of reviving and purifying Islam.
In fact, he believed that the rulers Habe and Hausa in power did not live according to the Koranic norms. Also, through the education of the population, Dan Fodio aimed to eliminate beliefs, syncretistic rituals, and all innovations contrary to the Koran and the Sharia and to encourage less devout Muslims to return to an orthodox and pure Islam. However, this revolution was not only religious but also political.
The differences between the Shaikh and the government resulted in open conflict in 1804 and 1809. Dan Fodio founded the Sokoto Caliphate, effectively conquering the Hausa dynasties. It was precise to Dan Fodio and his immediate successors that owe the first introduction of an Islamic legal system.
The Sokoto Caliphate ended in 1903 when the British incorporated it into the colony of Nigeria, and the sultan’s power was transferred to the British High Commissioner. Many aspects of the structure of the caliphate, including the Islamic legal system, were kept on paper during the colonial period. However, the British often interfered with the application of Islamic law, which was relegated to the status of customary law and subordinated to the principles of English common law.
Ahmadu Bello gave a new impetus for the spread of Islam. The premier, originally from the Muslim-majority region in the north of the country, after Nigerian independence in 1960, launched an Islamization program that led to the conversion of over 100,000 people in the provinces of Zaria and Niger.
With the independence of Nigeria, the legal order in what had become the Northern Region changed radically. Criminal matters were judged under the 1959 Criminal Code, an essentially English code that contained a number of special provisions based on Islamic criminal law.
After the adoption of the Criminal Code of 1959, Islamic law continued to be applied in a non-codified form only in civil cases. After Ahmadu Bello died in the 1966 coup, the 1970s saw a new phase of Islamic revival. Under the military dictatorship of Ibrahim Babangida (1985-1993) and Sani Abacha (1993-1998), Islam became an increasingly integral part of Nigerian society, clashing with the existing Christian culture.
Adoption of Islamic criminal law in northern Nigeria
After the fall of the dictatorship in 1999, in order to protect the democratization process, the governors of the various states were left with a wide margin of freedom in the new Constitution regarding the type of legal system to be applied in their jurisdiction. The Sharia was introduced in the criminal field on January 1, 2000, in Zamfara. The state of Kano followed in June 2001 and, in 2002, another ten northern states.
Obasanjo, the first president elected in 1999, did not oppose the introduction of the Sharia in the northern states to avoid disagreements and win the political support of the populations of the northern part of the country.
On the other hand, since he is a Christian and a native of the southwestern region, he did not risk being accused of introducing Islam as a state religion and, therefore, undermining national unity by giving its approval. For the most part, he avoided intervening in the decisions taken by states that applied Islamic law, simply invoking moderation.
However, although the Nigerian Constitution recognizes Sharia and the creation of appellate courts for Muslim cases, it does not indicate Islam as the official religion of these states. Furthermore, it has value above any other law stipulated at the state level.
The Constitution is binding on all governments of the 36 States of the Nigerian Federal Republic and, consequently, any law contrary to the provisions of the rules contained therein will be considered null and void ab initio.
Religious tensions between evangelical Christians and Islamic groups have existed for some time, but the planned extension of the Sharia in some northern states has caused an increase in religious tensions since December 1999.
The reintroduction of Islamic criminal law in northern Nigeria is, in fact, considered by many Nigerians, especially by exponents of Christian groups and traditional cults, as a major threat to the legitimacy and supremacy of the Constitution of the Nigerian federal state.
On the other hand, the introduction of the Sharia was also dictated by pressure from below for reasons of an identity nature in Muslim-majority regions. For some, the adoption of the Islamic penal system has also led to a better lifestyle and greater moral rectitude, as in giving up alcohol consumption.
However, Islamic criminal law applied to Nigerian citizens residing in the northern territories has often attracted criticism for violating the human rights established in Chapter IV of the Nigerian federal Constitution. Here are listed the fundamental rights to life, freedom (of thought, conscience, religion and to change one’s religion), political association, privacy, opinion, expression, free movement and residence in the State federal, private property, and the consequent prohibition of discrimination, torture, and inhuman and degrading treatment.
In addition to the constitutional provisions just mentioned, the international norms to which Nigeria is a contracting party would also conflict with the rigid application of the Sharia in criminal matters.
Despite these legal constraints, the states of northern Nigeria continue to apply the laws on citizens present in their territories, backed by the support of the new Nigerian president Muhammudu Buhari, a practicing Muslim of Fulani ethnicity, coming from the north of the country.
Furthermore, the jihadist armed group Boko Haram adopted a literal and extremist reading of Sharia in the criminal sphere. The terrorist organization, mainly active in the less prosperous areas of the northeast, boasts the sad record of the bloodiest group in the world and has suffocated Nigeria since 2009.
Other African states
Nigeria is not the only case in sub-Saharan Africa where Sharia is adopted. Some African Muslim states have introduced Islamic law within their legal system.
Sudan and Mauritania fully adopt the Sharia precepts but in a different way. Since independence in 1960, Mauritania has been an Islamic republic. The 1985 Constitutional Charter declares Islam the state religion and Sharia the law of the country. The penal code contains crimes recognized by the Sharia as heresy, apostasy, atheism, refusal to pray, adultery, and alcohol consumption. Punishments include stoning, amputation, and scourging.
In Sudan, on the other hand, Islam is recognized as the religion of the majority of citizens, but it is not the state religion. The Sharia was declared the main source of all Sudan legislation in the Constitutions of 1968, 1973, and 1998.
In 2005, a Provisional National Constitution was adopted, which eliminated some references to the Sharia, but included the adoption of Islamic law in criminal, civil, and private fields. The Criminal Law of 1991 prescribes punishments that include forty lashes for drinking alcohol, amputation of the right hand for valuable theft, and stoning for adultery.
The Criminal Code of 1991 also contemplates the death penalty in cases of murder, terrorism, armed robbery, sexual violence, drug trafficking, possession and trafficking of weapons, treason, acts of war against the state or that could endanger its independence and territorial unity, apostasy, prostitution. The provisional Constitution of Sudan of 2005, in article 36, establishes that the death penalty can also be inflicted on minors under the age of 18 in cases of pay, or hudud crimes.