Application of Islamic Law Under the 1999 Nigerian Constitution: Problems and Prospects

Application of Islamic Law Under the 1999 Nigerian Constitution: Problems and Prospects

Ilias B. Lawal, Ph.D

Senior Lecturer, Department of Public Law, Faculty of Law, University of Ibadan, Nigeria

DOI: https://dx.doi.org/10.47772/IJRISS.2025.906000337

Received: 31 May 2025; Accepted: 04 June 2025; Published: 16 July 2025

ABSTRACT

The Islamic Law, also known as the Shariah, is of divine origin with roots mainly in the Quran and Hadith. Its main objective is to improve human conduct, cleanse it of vices and adorn it with virtues. The application of the civil aspect of the law in Nigeria seems to be almost seamless. However, that of the criminal aspect is not devoid of controversies. This paper examines the prospects and some of the constraints in the application of the criminal aspect of Islamic Law in Nigeria. Some of the identified constraints include the supremacy of the constitution, the lopsided distribution of legislative lists in favour of the Federal Government, the equation of the Islamic Law with customary law, the constitutional provision against non-adoption of a state religion and the general non-conductive atmosphere for the implementation of the full Islamic Law.

Keywords: Islamic Law, Criminal Justice, Nigerian Constitution, Legislative Lists, Secularism

INTRODUCTION

The Islamic legal system is based on the principles of Shariah. Shariah is an Arabic word which literally means “the path to a watering place”. In its technical sense for Muslims, it means the path ordained by Allah, through the last of His messengers, Prophet Muhammad (SAW) to be followed by every human being to earn His pleasure and to avoid His wrath in the hereafter. In this sense, Shariah or Islamic law, signifies the detailed code of conduct t or the canons regarding the ways and modes of worship and the rule to judge between right and wrong in every aspect of life (Masood,1987). According to Al Faruqi (1991), Shariah is “the greatest contribution of Islam to humanity”; is the “outpouring of Muslim genius and the real forte of Islam itself”.It is the response to the perennial questions, what ought man to do? What can man accomplish? And what may he hope for?” Shariah is a “complete way of life and an embracing social order where nothing is superfluous, and nothing is lacking”. (Abdul A’la Maududi, 1986). Shariah, as a universal system of life, covers all mankind and has many purposes and objectives. (Aliyu, 2007). According to Maududi, one of the main objectives of Shariah is to construct human life on the basis of ma’arufat (virtues) and cleanse it of munkarat (vices). The term ‘ma’arufat’ denotes all virtues and good qualities that have always been accepted as ‘good’ by human conscience. On the other hand, Maududi continues, “munkarat denotes all the sins and evils that have always been condemned as evil”. The Shariah gives a clear view of these ma’arufat and munkarat and states them as the norms to which the individual and social behaviour should conform. (Babaji, 2004).

Islamic Law is sometimes erroneously equated with customary law in Nigeria. This is because from the provisions of the earliest legislation (e.g. The Native Court Proclamation No. 5 of 1900), Islamic Law has never been separately classified. It has always been regarded as one with customary law, and not as a particular law, despite the differences in the two systems of legal jurisprudence. According to Karibi-Whyte (1991), the equation of Islamic Law with customary law is demonstrably wrong and clearly misleading. He states further that the two systems of law are not indistinguishably similar and that the fact that the Maliki School of Shariah has taken local customs into consideration and consequently modified some aspects of the strict Islamic Law “is not sufficient for this assertion”. In the first place, Karibi-Whyte contends, “the juridical nature of the two legal systems and the judicial attitude towards their proof in proceedings show their fundamental dissimilarities”. Furthermore, he continues, “as against the rules of customary law which are unwritten, Islamic law is of system of written law and does not derive its validity merely by popular acceptance”.

Apart from its divine origin the demand of Muslims for the total application of the Islamic Law is necessitated by the Quranic injunction that enjoins Muslims to enter into Islam wholeheartedly (Quran 2:208). The same message is also replicated in Quran 6:162 thus: “Say: Truly my prayer, my sacrifice, my living and my dying are all for Allah, the Lord of the Worlds”. Furthermore, the Quran has variously described those who do not judge by Allah’s Revelation as unbelievers (Quran 5:44), wrongdoers (Quran 5:45), and rebels (Quran 5:47).

Nature and Sources of Shariah

Shariah, as a divine law, has four main sources. These are the Quran, which is the word of Allah, the Hadith, which is the interpretation of the Qurpan as exemplified and approved by Prophet Muhammad (SAW), Qiyas, which is the analogical deduction of the law from the Quran and Hadith, and Ijma, the consensus of opionions of Islamic jurists (Ulama). The aim of the Shariah is to use truth to arrive at justice through the progressive use of rules and principles of adjudication. It is, therefore, a combination of science and art. The immutable portion of it (Quran and Hadith) is the science while the art side of it (flexible part) refers to the Ijma, Qiyas and Ijtihad. The unity and comprehensiveness of Shariah is the main unifying force in Islamic culture; its relative lack of flexibility prevents excessive changes which could lead to the relegation of any legal system into purely local system. Shariah is rigid only in matters of the Quran and Hadith. Moreover, it is better that flexibility in any social order should not be to the extent of sacrificing fundamental goals of social life. There should always be some inflexible outline for flexibility. (Rashid, 1987).

Shariah is an all-encompassing legal system. According to Malik (2001), Shariah has eight main branches. These are:

Ibadah (worship) which embraces tauhid (science of unity of God), salat (Islamic ritual prayers), saum (fasting), zakat (poor rate) and hajj (pilgrimage).

Al-Ahwal al shakhsiyyah (personal law) which includes the law of marriage, divorce, custody of children, guardianship of children, succession, bequest, will, endowment and disputes arising out of gift.

Mu’amalat (law of transaction) which covers definition of property title, possession, contract, sales, hiring pledge, trust, mortgage, partnership, pre-emption etc.

Ahkam Sultaniyyah (sovereignty) which covers the duties of the leaders of the community, the responsibilities of the citizens, rule of law, citizenship, human rights and law relating to public administration, international law, diplomacy treaties and arbitration.

Akhlaq meaning morals including duties which a person owes himself, members of his family, neighbours, animals and other living creatures.

Al-Adab (Ethics)

Al-Qada: Judicial administration and procedures governing appointment of judges, their discipline and procedures in court.

Uqubat: This is the Islamic criminal law which deals with crimes against God and their punishments. The Islamic penal code is of immediate concern.

Scope of Islamic Criminal Law

According to Khadduri and Liebeseny, (1955) crimes in Islamic criminal law are legal prohibitions, imposed by God and punished with the penalty of hadd or with the penalty of ta’azir. Hadd means measure, limit and in law it means a punishment, the measure of which has been definitely fixed. With ta’azir the court is allowed to determine the form in which such punishment is to be inflicted and its measure (Abdur Rahim, 2006). Such discretion should, however, be justifiable under the Quran or sunnah. Under the Islamic penal code, punishments are usually divided into two, namely the fixed elements and the variable elements. Variable elements include retaliatory punishments (al-qisas) and discretionary punishments (ta’azir). The fixed elements i.e. hudud are also known as haqqu Allah, the right of Allah, the Sovereign, as enunciated in the Quran which the criminal must pay in full (Hassan, 2001). Its import lies in the fact that punishment is for the public good. Offences that attract fixed punishment under the Islamic criminal law include theft (al-sariqah), armed robbery and brigandage (al-hiraba), illicit sexual relations (al-zina), false accusation of unchastity (al-qadhf), apostasy (al-ridah) and consumption of alcohol (shurbul khamr). Punishments for these listed offences include cutting of the hand from the wrists (Quran 5:3), banishment (Quran 5:3), flogging (Quran 24:2) and stoning to death or public execution (Quran 5:33).

It should, however, be noted that for the maximum hadd punishment to be imposed on an offender, the state should be able to provided access to social security schemes and citizens must be assured of an equitable standard of living commensurate with the resources at the disposal of the community. If the society is unable to fulfill its duty in this regard it has no right to invoke the full sanction of the criminal law (hadd) against the individual transgressor, but must apply milder form of administrative punishment. This explains why both Prophet Muhammad (SAW) and Caliph Umar were reported to have waived the hadd punishment in different periods of famine (Ajetunmobi, 2001). Furthermore, the stolen item must be of substantial value, already fixed by the law, otherwise the maximum punishment of cutting of the hand will not be inflicted. How has the application of the Islamic penal code fared in Nigeria?

According to Chukkol (2000) before the advent of colonialism in the twilight of the 19th century and the beginning of 20th century, “much of what was then known and called Northern Nigeria operated Islamic criminal law and criminal justice”. He argues that the clearest evidence of that was the many homicide cases that went up to the Emirs’ courts which had appellate jurisdictions to hear and determine them –hence the title given to the emirs as Sarkin Yanka i.e. emirs with powers to pronounce and cause to be executed. Chukkol further states it was in 1904 the colonial Governor, Lord Lugard, imposed the British modelled criminal code on Northern Nigeria and extended same to cover the whole of the country in 1916. Chukkol, however, concedes that towards the tail end of colonial rule some Northern political leaders still expressed their preference for the Western based penal code.

Speaking in a similar vein, Tabiu (1986) asserts that before the advent of colonial rule, Islamic and customary laws alone applied in the territories which later became Nigeria. After colonization the British introduced the English Law which, however, did not completely abrogate the existing legal systems. Tabiu further maintains that the Islamic Law, which was already established as the dominant legal order under the Sokoto Caliphate continued to be applied in the Northern Region, subject only to certain limitations imposed by the British Government. The system through which Alikali courts were applying Islamic civil and criminal laws was kept intact by colonial powers subject to some limitations on the courts’ power of imposing punishments and to function under supervision and control of colonial administrative officers, and later on, by the new courts established by the British Government. According to Karibi-Whyte, (1991: 124-125), the Islamic criminal law, when in force, covered all persons within the Northern Emirate where Islamic Law was generally applicable, and was in its jurisdiction regarded as the predominant law. However, with the enactment of the Penal Code, which substantially annulled the rules of Islamic criminal law and the introduction of the validity test (section 34(1) High Court Law of Northern Nigeria 1963, cap 49), Islamic criminal law became virtually abolished.

The Scope of Islamic Law Under the 1999 Constitution

In addition to freedom of thought, conscience and religion guaranteed to ‘every person’ by section 38 of the 1999 Nigerian Constitution, the Constitution also has copious provisions in relation to the scope and application of Islamic Law, otherwise known as the Shariah. For instance, section 275(1) provides that; “There shall be for any State that requires it a Sharia Court of Appeal for that State”. Section 277(2) of the Constitution further states the jurisdiction of Sharia Court of Appeal of a State to include the competence to decide:

Any question of Islamic personal law regarding marriage concluded in accordance with that law, including any 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;

Where all 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 foundling or the guardianship of an infact;

Any question of Islamic personal law regarding wakf, gift, will, or succession where the endower, donor, testator or deceased person is a Muslim;

Any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm; or

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, any other question.

A close examination of the jurisdiction of the Shariah Court of Appeal shows that it only covers civil matters relating to “Islamic personal law’. The criminal aspect which was included before the advent of colonialism, has been excluded. According to Muhammad (2007), the abrogation of the Shariah criminal law and its administration first occurred in 1959 after the Independence Constitutional Conference when all the delegates agreed that Shariah (customary) Criminal Law should be abolished. This led to the provision of paragraph 5(10) of the Nigerian Constitution (Amendment No. 3) Order in Council, 1959 to the effect that:

No person shall be convicted of a criminal offence unless that offence is defined and penalty therefore is prescribed in a written law.

The above provision has since been retained in subsequent Nigerian Constitutions. For example, it was reenacted in section 22(10) of the 1960 Independence Constitution, section 22(10) of the 1963 Constitution, section 33(12) of the 1979 Constitution and section 36(12) of the 1999 Constitution.

Reintroduction of Shariah Criminal Justice System in Nigeria

According to the Black’s Law Dictionary, the term “criminal justice’ connotes the methods by which a society deals with those who are accused of having committed crimes. (Black 1990). To Professor Chukkol (2000), criminal justice is “that branch of public law which encompasses the substantive criminal law, the adjectival law, the powers and functions of the police, the judiciary and at the end of this list the police”. It has also been observed that the criminal justice system performs ‘a multifaceted role in the society, primarily aimed at maintaining public order, ensuring justice and upholding the rule of law. Its core purpose revolves around the prevention and punishment of criminal behaviour, which is critical for the stability and safety of communities.’ (https://www.ucumberlands.edu)

The Shariah criminal justice system was reintroduced in Nigeria at the beginning of the Fourth Republic. On 29 May, 1999 the Constitution of the Federal Republic of Nigeria became operational with the swearing in of Chief Olusegun Obasanjo as President, as well as other elected State Governors, thereby effectively ushering in the Fourth Republic. On 27 October, 1999 the first elected Governor of Zamfara State, Alhaji Sani Yerima Bakura, announced the passing into law of the Shariah Court Bills by the State House of Assembly and the setting up of the Shariah courts. The ensuing Shariah Penal Code lLaww No 10 of 2000 commenced operation on 27 January 2000. The Shariah Penal Code Law has ten chapters of 409 sections. According to Ahmed Bello Mahmud, the Attorney General and Honourable Commissioner for Justice Zamfara State, inputs into the Shariah Penal Code Law included visits to Sudan and Saudi Arabia where notes were compared and experiences shared as followers of the Maliki School of Islamic Jurisprudence (Mahmud 2004). Therefore, crimes and punishments are generally defined and classified under the Shariah Penal Code Law in line with the Maliki School. The Shariah Penal Code Law is, however, not applicable to non-Muslims. According to Suleiman (2006), the reason for the reintroduction of Shariah Penal Code included (i) its universal acceptance by Muslims who saw it as representing at least a fulfilment of their desire and zeal for maintaining the Shariah to its full extent; and (ii) expression of the commitment of Muslims who have openly and wholeheartedly embraced it to “maintain a higher way of life in terms of attitude, disposition, conduct, standard, morality, value and goals”.

With the successful enactment of the Shariah Penal Code Law in Zamfara in 2000 about 11 other northern states have also passed their own Shariah Penal Code Laws with slight differences and modifications. The states include: Kano, Sokoto, Bauchi, Borno, Jigawa, Kebbi, Niger, Kaduna, Gombe, Katsina and Yobe. Despite the enthusiasm that greeted the reintroduction of the Shariah criminal justice system in Nigeria by the generality of Muslims, concerns have also been raised on some socio-legal issues that can hinder its effective implementation.

Constraints In the Implementation of Islamic Criminal Justice System

Some of the legal constraints in the implementation of the Islamic criminal justice system or the ‘full’ Shariah in Nigeria include the supremacy of the constitution, the constitutional provision on non adoption of a state region, the law of evidence, the Police Force and the lopsided distribution of legislative lists, among others. Each of these shall be treated in turn.

Supremacy of the Constitution

A constitution is a set of rules by which a country is governed. A constitution is both a source of governmental powers and a means of limiting same. (Nwabueze, 1993). Whether rigid or flexible, the constitution is the grundnorm from which other laws derive their validity. According to Curson (1995), the grundnorm or the basic norm is that norm the validity of which cannot be derived from a higher one; it is the commencement of a specific chain of legal norms. Therefore, the analysis of a legal norm cannot move beyond the grundnorm. To Dias, (1980) when a grundnorm “ceases to derive a minimum of support”, any other proposition which obtains support will replace it. Such a change of affairs, Dias contends, “is said to amount to a revolution in law.”

As the grundnorm, section 1of the 1999 Nigerian Constitution asserts it supremacy when it provides:

This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

Subsection (3) thereof further asserts this supremacy by providing that “if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail” and “that other law shall to the extent of the inconsistency be void”. The combined effect of these provisions is that some of the provisions of the Islamic criminal law may be declared void based on the inconsistency with the provisions of 1999 Nigerian Constitution. Therefore, the mandatory punishment for the offence of apostasy or ridda, will be contrary to the provision of fundamental right contained in section 38(1) of the 1999 Constitution which 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 private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Similarly, under both sections 387 and 388 of the Penal Code, the offence of zina (adultery/fornication is a misdemeanour punishable with two years imprisonment. However, under the strict Islamic Law like sections 126 and 127 of Zamfara Shariah Penal Code Law, if the offender is married, the punishment is stoning to death. This kind of punishment may be considered to be in breach of the constitutional right not to be subjected to inhuman and degrading treatment under section 34 of the 1999 Nigerian Constitution. The same may also be said of the hadd punishment of hand amputation of a convicted thief under the Shariah Law like section 145 of the Zamfara Shariah Penal Code Law.

Non Adoption of State Religion

Section 10 of the 1999 Nigerian Constitution, as amended, provides thus:

The Government of the Federation or of a State shall not adopt any religion as State religion.

The above constitutional provision has been given different interpretations by different scholars. While some see the provision as declaring Nigeria a secular state, others see it as proclaiming the country as a multi-religious state. The proponents of secularism include Professors I. O. Agbede, (1989) and B. O. Nwabueze, (2000). On the other hand, Abikan (2000) and Yadudu (2000) are stout defendants of the multi religious view. In a fierce counter-argument to the secularism view, Abikan contends that if the provision were to be in favour of secularism there would have been no official or constitutional recognition of faith based holidays and funding and establishment of religious institutions. He stated further:

The question is, could the provision be in favour of secularism? Certainly No. Otherwise, there would not have been constitutional recognition for observing work-free Sundays in accordance with Christian Sabbath injunction, religious public holidays, observance of Muslim and Christian festivals by declaring public holidays, establishment of a Mosque and Church in Aso Rock Villa, establishment of religious pilgrim boards, funding of educational institutions where a particular religion is taught etc. more particularly so as the constitution did not declare any place in Nigeria to be secular.

Abikan states further that after going through the whole of the provisions of the Shariah Penal Code Law, No 10, 2000 and Shariah Courts Law No. 5, both of Zamfara State, it can authoritatively be said that “the laws are made within the limits of the applicability of the Shariah permissible by the constitution” and their making “is by no means an adoption of Islam as a state religion”. This, according to Abikan, probably explains “why no serious attempt has been made to challenge its constitutionality in court”. Abikan, however, concludes his argument on a rhetorical note. Said he:

Be as it may, the unanswered question remains: can the various new Shariah laws of the states be fully said to be full Shariah expected of Muslims to be practiced? Put differently, could Shariah stricto sensu be practised in Nigeria under a Constitution made of people’s will and without adopting Islam as a state religion?

The Legislative Lists

There are three types of legislative list. These are the exclusive, concurrent and residual lists. The 1999 Nigerian Constitution expressly provides for the first two. The exclusive legislative list is contained in Part I of the Second Schedule to the Constitution while the concurrent legislative list is entrenched in Part II of the Second Schedule to the Constitution. The National Assembly has the exclusive authority to legislate on any matter contained on the exclusive legislative list while both the National Assembly and the Houses of Assembly of the state have competence to legislate on the concurrent legislative list. The third list, usually called the residual list, deals with matters that are neither contained in the exclusive list nor in the concurrent list. The States’ Houses of Assembly usually assume jurisdiction to legislate on this list.

There are many matters on the exclusive legislative lists that states operating Shariah Law should need to have under their jurisdiction for proper application of the law. These include banking (item 6), evidence (item 23), police and other security services (item 45), and weights and measures (item 65), among others. Concerns have been raised on the likely constraints some of these items on the exclusive legislative list can have on the smooth operation of the Shariah Law. Islamic banking is the one of the main concerns of Kanam: (2004). According to him Islamic banking does not recognize the taking of interest both on loans and savings. Since banking is on the exclusive legislative list, Kanam argues that a state government cannot establish a bank based on a law which “forbids the taking of interest” neither can it make a law to “stop bankers that operate within its state from taking such interest”.

Another major potential source of conflict relates to the law of evidence. According to Chukkol (2000), the Islamic rules of evidence, murafaat are at variance with the provisions of the Evidence Act. Chukkol further contends that since evidence is under the exclusive legislative list of the 1999 Constitution the states Houses of Assembly are legally incompetent to legislate on evidence as any such action “will be unconstitutional”. Next to be considered is the issue of the Police Force.

The Police Force is indispensable in the administration of any criminal justice system. As earlier indicated “the police and other security services” constitute an item under the exclusive legislative list. Furthermore, section 214 (1) of the 1999 Nigerian Constitution provides that:

There shall be a Police Force for Nigeria which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.

The above constitutional provision will undoubtedly affect the effective enforcement of the Shariah penal codes in the states using Shariah Law. As a way out of this problem some of the Shariah practising states have enacted Hisba Laws and set up Hisba committees mainly charged with the responsibility of monitoring and enforcing the shariah based legislation in collaboration with the peolice. (Aliyu 2007) A good examrrple is the Shariah Commission Law, 2001 of Bauchi State. This law also provides for the establishment of Shariah commission

and setting up of Hisba committee that is saddled with the enforcement of the Sharial Penal Code in collaboration the police and other law enforcement agencies. According to Muhammad (2007) ,it is not a substitute to the police but only assists the police and prosecute cases through the police or office of the Attorney General of the State.

The division of legislative lists between the federal and state governments in Nigeria is similar to the arrangement in Malaysia where the Federal Constitution allows the state legislature to create and punish offences by persons professing the religion of Islam “against its most foundational precepts”.(Ismail, 2015). The power of the state to enforce the Islamic criminal law, is however, usually limited by the words “except in regards to matters included in the Federal List”, or “dealt with by federal law”. Such matters include homicide, theft, rape, kidnapping ,etc. Similarly, offences attracting capital punishments and other serious crimes do not fall under the jurisdiction of Sharia courts. The Civil High Court is the only court clothed with jurisdiction to try such offences under the provisions of the Penal Code of Malaysia ( Act 574).

Weights and Measures

Strict regulation of standards, weights and measures is very important to the proper application of the shariah because Islam frowns against cheating in measurement or any other form of fraud or cheating in commercial and non-commercial transactions. Hence the Holy Quran is replete with verses that prohibit cheating in weights and measurement. For instance, the Quran condemns those who cheat in weight and measurements thus:

Woe to those that deal in fraud. Those who, when they have to receive by measure from men, exact full measure. But when they have to give to men, give less than due. (Quran 83:1-3).

There are also many hadiths or traditions of Prophet Muhammad prohibiting cheating and fraudulent dealings in commercial transactions. Unfortunately, however, the Shariah adopting states might not be able to legislate on weights and measures in accordance with Islamic principles since they are items on the exclusive legislative list

The Rights of Appeal from the Final Decisions of Shariah Court of Appeal

The 1999 Nigerian Constitution makes copious provisions for appeals by any dissatisfied parties in both civil and criminal proceedings. While some appeals are as of right, others must be with the leave of court. This right of appeal also applies to cases involving proceedings relating to questions of Islamic personal law. It is ,however, intriguing to note that the 1999 Nigerian Constitution makes different provisions in relation to appeals from the final decisions of the Shariah Court of Appeal in civil and criminal proceedings. For instance, section 240 of the 1999 Constitution, provides for the appellate jurisdiction of the Court of Appeal thus:

Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of Law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Shariah Court of Appeal of the Federal Capital Territory, Abuja, Shariah Court of Appeal of a State ,Customary Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly.

Going by the above provisions and that of section 277(1) of the 1999 Constitution, one may want to believe that the Court of Appeal can entertain appeals from both civil and criminal proceedings from the Shariah Court of Appeal. This is not true as section 244 (1) of the Constitution only allows the Court of Appeal to entertain appeals as of right in any civil proceedings before the Shariah Court of Appeal with respect to any question of Islamic personal law which Shariah Court of Appeal has competence to decide. This means that the decisions of the Shariah Court of Appeal in criminal cases seem to be final as litigants cannot file appeals from such cases to the Court of Appeal as of right. According to Kanam, (2004) adherence to this position will bring about unequal treatment of litigants by the courts since those whose cases are based on the civil aspect of the shariah law or the general law can have their rights of appeal up to the Supreme Court while those based on the criminal aspect would have theirs restricted to the Shariah Court of Appeal. This, as Kanam rightly points out, presents “a clear case of discrimination” contrary to section 42 of the 1999 Constitution.

CONCLUSION

The Islamic Law, otherwise called the Shariah, is an all encompassing legal system which is mainly based on the Quran and the Hadith. As a divine law, it has the potentials to assist the people in maintaining higher standards in terms of attitude, disposition, conduct, morality, values and goals. The Shariah was being fully applied in Northern Nigeria both in its civil and criminal aspects before the advent of colonialism when the colonial masters whittled down its criminal aspect and introduced the Penal Code with milder punishment for some criminal offences while some were totally abrogated.

The reintroduction of the ‘full’ Shariah by some states in the country was necessitated not only by the advent of a democratic Fourth Republic but also by its universal acceptance by Muslims as a way of fully enjoying their freedom of religion as well as fulfilling a religious obligation. Some of the likely constraints in the full application of the Islamic criminal justice include the supremacy of the constitution, the incompatibility of some of the Shariah based offences with constitutional provisions, the uneven distribution of legislative lists between the federal and state governments, the limitation of the rights of appeal of Islamic Law based litigants and the general non conducive atmosphere for the application of Islamic Law in Nigeria, among others.

As a way of mitigating some of these identified problems, it is proposed that the constitution should be amended to remove from the exclusive legislative list some of the items that would make the implementation of the Shariah to be easy. These include the law of evidence, weights and measures, banking and the police force among others. Furthermore, Islamic Law should be properly classified as a distinct type of law, quite different from the Customary Law. It is equally suggested that due consideration should be given to inputs from Islamic Law in any legislative reform or constitutional amendment as opposed to the erstwhile undue reliance placed on the English Law.

Finally, both the proponents and opponents of the full implementation of the Islamic Law should exercise great restraint in canvassing their ideas. The generality of Nigerians and the mass media, both traditional and social, should avoid spreading half truths, unfounded rumours and unnecessarily sensational stories about the implementation of the Islamic Law in order to avoid overheating the polity and endangering the much cherished peace and tranquility which the Islamic Law is primarily set to engender.

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