1 Boahen, AAAfrican Perspective on Colonialism (1987, Johns Hopkins University Press) at viiGoogle Scholar.

2 Mamdani, MCitizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (1995, Princeton University Press)Google Scholar.

3 Peters, RCrime and Punishment in Islamic Law: Theory, and Practice from the Sixteenth to the Twenty-first Century (2005, Cambridge University Press)Google Scholar at 119–25; Peters, RIslamic Criminal Law in Nigeria (2003, Spectrum Books Ltd)Google Scholar at 1–12; Tabi'u, M “Islamic law in Nigeria: A historical perspective on some basic issues” (1993) 19 Journal of Islamic and Comparative Law 31Google Scholar; Yakubu, AM et al. (eds) Understanding Shari'a in Nigeria (2001, Spectrum Books Ltd)Google Scholar; Yusufari, MAL “The application of Islamic law in Nigeria” (1998) 4 Yearbook of Islamic and Middle Eastern Law 201Google Scholar.

4 Yadudu, AH “Colonialism and the transformation of Islamic law in the northern states of Nigeria” (1992) 32 Journal of Legal Pluralism 103CrossRefGoogle Scholar; Tabi'u, M “The impact of the repugnancy test on the application of Islamic law in Nigeria” (1991) 18 Journal of Islamic and Comparative Law 53Google Scholar; Ubah, CN “Islamic legal system and the westernization process in the Nigerian emirates” (1982) 20 Journal of Legal Pluralism 69CrossRefGoogle Scholar.

5 An-Na'im argues that Islamic law cannot be codified as state law. Neither can it be enforced by the state. Claiming to enforce Islamic law principles as state law, he argues, is an objective that can never be realized anywhere. See An-Na'im, AAIslam and the Secular State: Negotiating the Future of Shari'a (2008, Harvard University Press)CrossRefGoogle Scholar. This article considers Islamic law in Nigeria as it is (and not as it ought to be) and relates it to the legal hybridity as it exists in the country. It is a fact that codification has taken place; it is a fact that the subject of the codification is Islamic law; and it is equally a fact that legal hybridity exists. Whether technically the law will lose its “Islamic” value upon codification or whether the state can successfully enforce the law are therefore not within the purview of the article.

6 Gwandu, AA “Aspects of the administration of justice in the Sokoto caliphate and Shaykh Abdullahi Ibn Fodio's contribution to it” in Rashid, SK (ed) Islamic Law in Nigeria (1988, University of Sokoto Press) 16Google Scholar.

7 Johnston, HASThe Fulani Empire of Sokoto (1967, Oxford University Press)Google Scholar at 251–52.

8 Angie, A “Time present and time past: Globalization, international financial institutions and the Third World” 32 New York University Journal of International Law & Politics 242Google Scholar.

9 F Lugard's statement in Fitzpatrick, PThe Mythology of Modern Law (1992, Routledge)CrossRefGoogle Scholar at 107.

10 Mamdani, MCitizen and Subject, above at note 2Google Scholar.

11 Peters, RCrime and Punishment in Islamic Law, above at note 3Google Scholar; Peters, RIslamic Criminal Law, above at note 3Google Scholar.

12 Elias, TOThe Nigerian Legal System (1962, Routledge & Keagan Paul) at 113Google Scholar; Keay, EA and Richardson, SSThe Native and Customary Courts of Nigeria (1966, Sweet & Maxwell)Google Scholar at 19–27.

13 Kumo, S “Application of Islamic law in Nigeria: Problems and prospects” in Rashid (ed) Islamic Law in NigeriaGoogle Scholar, above at note 6 at 45. Northern and southern protectorates had been earlier amalgamated in 1914.

14 Mamdani Citizen and Subject, above at note 2 at 115.

15 This role led to the translation of an important Arabic law book, Mukhtasar Khalil, into English. See Malik, SHA “The application of Sharia as a legal system in Nigeria” in Yakubu et al. (eds) Understanding Shari'aGoogle Scholar, above at note 3, 132.

16 Tabi'u “The impact of the repugnancy test”, above at note 4 at 53; Fitzpatrick The Mythology of Modern Law, above at note 9 at 110.

17 Chap 62, Laws of Nigeria, 1958, now chap E14, Laws of the Federation of Nigeria, 2004.

18 For example, Shehu Shayi v NA Police (1959) NNLR 9; Jalo Guri v Hadejia NA (1959) 4 FSC, 44; Maryam v Sadiku Ejo (1961) NRNLR 31; and Yunusa v Adesubokan (1971) NNLR 77.

19 Fitzpatrick The Mythology of Modern Law, above at note 9 at 110.

20 Anderson, JNDIslamic Law in Africa (1955, Frank Cass and Co Ltd)Google Scholar at 219, quoted in Ostien, P (ed) Sharia Implementation in Northern Nigeria 1999–2006: A Sourcebook vol 1, “Historical background” (2007, Spectrum Books Ltd)Google Scholar at 3.

21 Yadudu, AH “Constitution-making and the politicisation of Sharia in Nigeria” (1991) 18 Journal of Islamic and Comparative Law 23Google Scholar at 24.

22 The Penal Code was originally drafted by a British lawyer, Lord Macaulay; it was made applicable to India from 1862 and “exported” later to colonial Sudan in 1899. See KS Chukkol “The Penal Code: Origins, applications and limitations” in Yakubu et al (eds) Understanding Shari'a, above at note 3, 161. Baxi lamented on this type of “exportation” in Baxi, U “The colonialist heritage” Comparative Legal Studies: Traditions and Transitions (2000, University of Cambridge)Google Scholar 5.

23 R Peters Crime and Punishment, above at note 3 at 119; R Peters Islamic Criminal Law, above at note 3 at 12.

24 For instance, adultery and drinking alcohol were still offences, though not in the classical sense.

25 Ostien (ed) Sharia Implementation, above at note 20 at 3.

26 “Sharia” or “Shari'ah” is an Arabic word meaning Islamic law; they are often used interchangeably.

27 Yadudu “Constitution-making”, above at note 21 at 25.

28 1979 Constitution, sec 33(12).

29 Id, sec 240(1).

30 Id, sec 242.

31 Id, sec 226(a) and (b).

32 See Yusufari “The application of Islamic law”, above at note 3; Ostien, PA Study of the Court Systems of Northern Nigeria (1999, Center for Development Studies University of Jos)Google Scholar.

33 See for instance secs 36(12), 237(2)(b) and 277 of the 1999 Constitution.

34 Baxi, U “Global development and impoverishment” in Cane, P and Tushnet, M (ed) The Oxford Handbook of Legal Studies (2003, Oxford University Press) 455Google Scholar.

35 Baxi “The colonialist heritage”, above at note 22 at 2.

36 Compare with Baxi, id at 5.

37 These universities are: Ahmadu Bello University, Zaria; Bayero University, Kano; Usmanu Danfodio University, Sokoto; University of Ilorin; and the University of Maiduguri.

38 For instance, the dean of law at the University of Lagos in 1998, Prof EO Akanki, expressed this intention in a conversation with the author when the author was a postgraduate student there.

39 Sec 10 of both the 1979 and 1999 Constitutions.

40 See Ofonagoro, WI et al (eds) The Great Debate: Nigerian Viewpoints on the Draft Constitution (1977, Daily Times)Google Scholar at 356–88; Muhammadu, TThe Nigerian Constitution 1979, Framework for Democracy (1982, Fourth Dimension Publishers)Google Scholar at 29–31.

41 Sharia Court of Appeal Law, chap 122, Laws of Northern Nigeria 1963.

42 1979 Constitution, sec 240(1).

43 Such as marriage, divorce, inheritance, maintenance, custody of children and endowment. See sec 242 of the 1979 Constitution, now sec 277 of the 1999 Constitution.

44 Area Court Edict, 1968, sec 18.

45 Land Use Act 1978, secs 39 and 41.

46 Through the Constitution (Suspension and Modification) (Amendment) Decree No 26 of 1986.

47 The decree provided for the deletion of the word “personal” wherever it occurred after the words “Islamic law” in the constitution. In effect, “Islamic personal law” was intended to read “Islamic law”. The effect was to divest the High Court (Appellate Division) of all jurisdiction to hear appeals from area courts.

48 (1989) 5 NWLR (pt 119) 120; Yusufari “The application of Islamic law”, above note 3 at 207–08.

49 A state from the heart of the conquered Empire and bearing the name of a town that was important in the jihad era. The creation of states in Nigeria started in 1967. There are now 36 states plus the Federal Capital Territory, Abuja.

50 The declaration was made publicly in Gusau, the state capital, on 27 October 1999.

51 A Sani (Yeriman Bakura) “Application of Shari'a in Nigeria: Challenges and prospects” (paper presented at Bayero University Kano, on 18 May 2013).

52 Shari'ah Courts (Administration of Justice and Certain Consequential Changes) Law No 5, 1999.

53 See Ado-Kurawa, IShari'ah and the Press in Nigeria: Islam Versus Christian Western Civilization (2000, Kurawa Holdings Ltd)Google Scholar.

54 Olisa Ogbakoba, SAN, of the Civil Liberties Organization filed a suit in Zamfara State to challenge the constitutionality of the Zamfara initiative. The suit was later withdrawn perhaps due to political pressure for fear of what the pronouncement might trigger in a country that is very sensitive to religious matters.

55 The other states are Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto and Yobe. All these states (except Borno and Yobe, which were under the Islamic Kanem-Bornu Empire established by Sheikh Al-Amin El-Kanemi) were territories under the conquered Sokoto caliphate. Together with Zamfara State, they are referred to in this article as “Sharia implementing states”.

56 Niger State did not repeal the Penal Code. It merely amended it to incorporate Islamic criminal law. See the Niger State Penal Code (Amendment) Law 2000 in (2000) 25/8Niger State of Nigeria GazetteGoogle Scholar at B29–B36.

57 Katsina State incorporated Islamic criminal law by reference as contained in the primary sources of Islamic law, that is to say the Qur'an and Hadith. See the Katsina State Islamic Penal System (Adoption) Law 2000: (2000) 11/5Katsina State of Nigeria GazetteGoogle Scholar, supp pt A, at A97–98.

58 Peters Islamic Criminal Law, above at note 3 gives some detail on the re-introduction of Islamic criminal law in Nigeria. More detail can be found in Ostien (ed) Sharia Implementation, above at note 20, vols I–V.

59 Governor Rabi'u Musa Kwankwaso publicly declared the introduction of Islamic law in the state on 21 June 2000.

60 Sharia Penal Code Law 2000, sec 3.

61 Laws of Kano State 1991, chap 37.

62 Id, chap 9.

63 Unreported no 28/CR/2002; appeal no SCA/NS/CR/408/2002. See “Political Sharia?: Human rights and Islamic law in northern Nigeria” 16/9(A) Human Rights Watch Report (September 2004) at 25.

64 The decision in the case of Safiya Husaini was later overturned by the Sharia Court of Appeal (appeal no SCA/GW/28/2001); there was much campaigning by human rights activists in favour of the convict and she was later honoured with citizenship in Rome. Case no 9/2002 regarding Amina Lawal was decided on 20 March 2002 by Shari'ah court Bakori; the decision was later overturned by the Sharia Court of Appeal (appeal no 36/SCA/2002), again after much activism by human rights organisations. These two cases attracted local and international attention and they are discussed extensively in Ostien (ed) Sharia Implementation, above note 20: vol V “Two famous cases”.

65 Upper Sharia Court, New Gawu. See “Niger Sharia court sentences two to death by stoning” (29 August 2002) The Guardian (Nigeria) at 1; and “Political Sharia?”, above at note 63.

66 Commissioner of Police v Danladi Dahiru, case no CR/171/2001 tried by Upper Sharia Court, Dambatta, Kano State. The accused was a Muslim male aged 22. He was alleged to have stolen two sewing machines and some textile materials all valued at NN23,400 from a shop in Dambatta market on 25 August, 2001. The case went on appeal to the Sharia Court of Appeal. It was numbered SCA/CR/KN/9/2002, but is unreported. The court set aside the conviction and ordered a re-trial due to procedural defects in the trial proceedings.

67 See: <http://www.dailytrust.com/news1.htm> (last accessed 2 November 2013).

68 See Ostien (ed) Sharia Implementation, above at note 20: vol III “Sanitizing society”.

69 In addition Kano State, under Mallam Ibrahim Shekarau, created a Societal Reorientation Directorate (A Daidaita Sahu) which mainly preached, in various ways, economic independence, honesty, dedication to duty, mutual help, cleanliness, discipline and, above all, fear of God.

70 See for instance the Kano State Shari'ah Commission Law 2003 which repealed the Islamic Education and Social Affairs Commission Law 2000 by virtue of which Governor Rabi'u Kwankwaso had previously established the Islamic Education and Social Affairs Commission. Its functions are as spelt out in sec 4 of the law.

71 Zakkah is the obligatory alms paid from a specified amount of wealth at a specified period.

72 Hubusi means endowment.

73 See for instance the Kano State Zakkah and Hubusi Commission Law 2003. Its functions are spelt out under sec 4 of the law.

74 See for instance the Kano State Hisbah Board Law 2003, amended later as the Kano State Hisbah Board (Amendment) Law No 6 of 2005. The responsibilities of the Hisbah are as spelt out in sec 7 of the law. The work of the Hisbah is based on verses of the Qur'an and Hadiths of Prophet Muhammad specifically asking Muslims to enjoin good and prohibit evil. See Qur'an 3:104 and “Hadith no 82” in Hajjaj, MSahih Muslim (2000, Darul Fikr Beirut)Google Scholar at 52.

75 Ostien (ed) Sharia Implementation, above at note 20: vol I at 3.

76 I Sulaiman “Victor takes all: The Shari'ah in secular Nigeria” in K Rashid (ed) Shari'a, Social Change & Indiscipline in Nigeria 55 at 56, in Ostien (ed) Sharia Implementation, above at note 20: vol I at 8–9.

77 See the White Paper on the Report of the Committee for the Implementation of Sharia in Kebbi State, in Ostien (ed) Sharia Implementation, above at note 20: vol II “Sharia implementation committee reports and related white papers” at 184 (emphasis added).

78 Quoted in Ostien, id, vol I at ix.

79 IN Sada “The making of the Zamfara and Kano State Sharia Penal Codes” in Ostien, id: vol IV “The Sharia Penal and Criminal Procedure Codes” 22 at 25.

80 1999 Constitution, preamble.

81 Id, sec 2(1).

82 Id, sec 2(2). The Federal Capital Territory is in Abuja; see id, sec 3(4) and pt II, first sched.

83 Id, sec 3(1). This section lists the 36 states as: Abia, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.

84 See note 55 for a list of 11 of the states. Zamfara State, which set the pace, is the 12th.

85 The first amendment brought about some electoral reforms following the recommendations of the Uwais Committee on Electoral Reform in Nigeria. See 98/2 Federal Republic of Nigeria Official Gazette: Government Notice No 6, Constitution of the Federal Republic of Nigeria (First Alteration Act) 2010. The second amendment extended time for the Independent National Electoral Commission to conduct the 2011 elections. See 98/3 Federal Republic of Nigeria Official Gazette: Government Notice No 7, Constitution of the Federal Republic of Nigeria (Second Alteration Act) 2010. The third amendment was to establish the National Industrial Court in the constitution. See 98/20 Federal Republic of Nigeria Official Gazette: Government Notice No 103, Constitution of the Federal Republic of Nigeria (Third Alteration Act) 2010. The fourth amendment is a general one and began in September 2011; it is still on-going. The National Conference inaugurated by President Goodluck Jonathan submitted its report in August 2014. Amendments to the constitution are expected as a result, though not regarding provisions dealing with Islamic law.

86 The 1914 British Amalgamation of the Northern and Southern Protectorates which gave birth to Nigeria is often called “the 1914 mistake” because, apart from the three main ethnic groups of Hausa/Fulani, Igbo and Yoruba, there are several minorities. See CP Aka “Nigeria: The need for an effective policy of ethnic reconciliation in the new century” (2000) Temple International and Comparative Law Journal, available at: <http://uk.westlaw.com/welcome/westlawinternational/default.wl?TF=1&TC> (last accessed 2 November 2013).

87 1999 Constitution, sec 4.

88 By virtue of sec 4(5) of the 1999 Constitution, when a law made by the House of Assembly becomes inconsistent with a law made by the National Assembly, the latter shall prevail and the former shall be void to the extent of the inconsistency. Where the conflict is between two state laws or two federal laws, the court has to decide considering the circumstances of the case, for example which law was enacted first.

89 Id, sec 1(1).

90 Id, sec 1(2).

91 Id, sec 1(3).

92 1960 Constitution, sec 1; 1963 Constitution, sec 1; and 1979 Constitution, secs 1(1) and (3). The 1960 and 1963 Constitutions did not mention the word “supreme”. However the supremacy could be inferred from the constitutions' clear authority over other laws (including the regional constitutions which then existed) which may be inconsistent with them. However, such supremacy was “subject to the provisions of section 4 of [the] Constitution” which meant that the constitutions' authority was subject to the over-riding power of Parliament to alter any of their provisions. The 1979 and 1999 Constitutions do not contain this “subject to” provision. Nevertheless its equivalent is contained in secs 9 of these constitutions, which recognize the power of the legislature to alter any of their provisions.

93 See for instance Doherty v Balewa (1963) 1 WLR 949 and Lakanmi and Others v Attorney-General Western State and Others (1971) 1 UILR 201.

94 (2000) 10 NWLR (pt 674) 116 at 191, para C and 193, para F.

95 See note 90.

96 See note 51.

97 See note 54.

98 The executive, the legislature and the judiciary.

99 A Bill to Establish Sharia Court to Apply Sharia Law in Kano State was sponsored privately.

100 At the state level, the governor's office is established by sec 176(1) of the 1999 Constitution, while the House of Assembly is established by sec 90.

101 He appoints commissioners and other aids by virtue of id, secs 192, 193 and 196.

102 See id, secs 177, 178 and 179 on the election of a governor, and secs 106 and 112–19 on the election of members of a House of Assembly.

103 Id, sec 177 provides: “A person shall be qualified for election to the office of governor of a State if – (a) he is a citizen of Nigeria by birth; (b) he has attained the age of thirty-five years; (c) he is a member of a political party and he is sponsored by that political party; and (d) he has been educated up to at least School Certificate level or its equivalent.” Except for the citizenship by birth qualification and age qualification (which is put here as 30 years), sec 106(1) specifies the same qualifications for election to a House of Assembly.

104 See id, sec 180 for the governor's tenure of office and sec 109 for the tenure for members of the House of Assembly.

105 See id, chap VI, pt II, containing secs 176–212 on the state executive, and chap V, pt II containing secs 90–129 on the State House of Assembly.

106 Id, sec 4(6).

107 Id, sec 4(7)(a), (b) and (c).

108 Id, sec 6(2).

109 Id, sec 6(5)(e) and (g); there is also the Customary Court of Appeal for a state under sec 6(5)(i) but this does not exist in any of the Sharia implementing states.

110 Id, sec 272 vests civil and criminal jurisdictions on the High Court of a state but this is subject to sec 251 (on the exclusive jurisdiction of the Federal High Court) and other provisions of the constitution. It appears that, with the codification of Islamic criminal law, nothing stops the State High Court from assuming jurisdiction over Islamic law offences. However, since appointment as a judge of the court does not require any qualification, experience or scholarship in Islamic law (see sec 271(3)), unlike the Sharia Court of Appeal for instance (see sec 276(3)(a), (b)(i) and (ii)), it should not be expected that the court would assume such jurisdiction. On the other hand, sec 277 makes the jurisdiction of the Sharia Court of Appeal purely appellate. Further it apparently limits it to civil matters and specifically Islamic personal law, such as issues of marriage, divorce, inheritance and custody of children.

111 Id, sec 6(5)(k).

112 Id, sec 237(2)(b); there is a similar requirement on customary law in the sub-section.

113 Id, sec 230(2).

114 Id, secs 275, 237 and 230 respectively.

115 1979 Constitution, secs 240(1) and 242.

116 1999 Constitution, secs 275 and 277.

117 The area court, now renamed the Sharia court in most of the northern states, was established by the Area Court Edict 1968. The Sharia Court of Appeal was first established under the Sharia Court of Appeal Law, chap 122, Laws of Northern Nigeria, 1963.

118 1999 Constitution, sec 279.

119 These are: legal methods; constitutional law; law of contract; criminal law; company law; commercial law; law of equity and trusts; law of evidence; jurisprudence; property law; Nigerian legal system; law of torts; and compulsory final year essay. See B-MAS at 21.

120 Id at 26.

121 Id at 27.

122 These are the Supreme Court, Court of Appeal, High Court of a state, High Court of the Federal Capital Territory Abuja, Federal High Court, National Industrial Court, Sharia Court of Appeal of a state, Sharia Court of Appeal of the Federal Capital Territory Abuja, Customary Court of Appeal of a state and Customary Court of Appeal of the Federal Capital Territory Abuja.

123 B-MAS at 27.

124 Id at 28–29.

125 Id at 22.

126 Id at 3–4.

127 In Bayero University Kano, “Arabic for legal studies” is a course every student must register for and pass.

128 (1982) NCLR 325.

129 Sec 390 of the Criminal Procedure Code, chap 30 Laws of Northern Nigeria 1963 prohibited legal practitioners from appearing before the area courts.

130 This was contained in sec 33(6)(c) of the 1979 Constitution, now replicated in sec 36(6)(c) of the 1999 Constitution.

131 See for instance the comprehensive index to Nigerian Weekly Law Reports (NWLR) 2000–01, pts 639–92. Pages 328–31 contain several cases on customary law; pages 461–64 contain cases on Islamic law; while all other pages are on various aspects of conventional law. Similarly, the comprehensive index to NWLR 2005 (vol 1), pts 906–59 has cases on customary law on pages 357–62, cases on Islamic law on page 536 and cases on conventional law on the other pages.

132 For female lawyers, the dark suit comprises a skirt, coat and a white blouse worn inside.

133 The author appears regularly before various Sharia Courts of Appeal and observes that the judges (kadis) often feel relegated when the dress code is not observed. They often say to offending barristers “you are disrespecting us, if you were appearing before the High Court you wouldn't dress in this manner”.

134 Rules of Professional Conduct for Legal Practitioners, 2007, sec 36.

135 Circular No (5) 009, DSC/CIR/27/II/163/09, dated 28 May 2009.

136 See above at note 50.

137 For instance Qur'an chap 2 verses 208 and 85 command Muslims to accept Islam wholly and not to believe some parts of the Qur'an and disbelieve other parts.

138 1999 Constitution, sec 38(1).

139 These are Arabic terms which normally follow the mention of Allah and they mean “the Most High”.

140 Sani “Application of Shari'a in Nigeria”, above at note 51 at 1.

141 Silbey, SS “Let them eat cake: Globalization, postmodern colonialism and the possibilities of justice” (1997) 31/2Law and Social Review 207CrossRefGoogle Scholar.