of the study
The practice of Islamic
law in Nigeria, by northern states, raises a number of constitutional questions
and questions the supremacy of the constitution. The activities of these states have shown
that the federal government do not really have the interest of its citizens and
have refuse to strictly enforce the spirit of the letters in the Nigerian constitution which
provides for the unity, peace, principle of freedom equity and justice – in
Nigeria. Thus, no discrimination is envisaged by the
constitution. This lack of enforcement is more burdened on women who are said
to be governed under Islamic law, especially, as it relates to fair hearing
towards them. Thus, instances have shown that fair hearing is not for women.
This is one of the greatest threats in democracy and more so, the nation’s
constitution. The civil liberties organization reports that: an 18-year-old
nursing mother Tawa Bello was subjected to ten stroke of canes after being
convicted by a Sharia Court in Guassau Capital of Zamfara States, for wandering
and prostitution. This court did refuse to hear her side of the story and did
not give her legal representation.
against women is institutionalized in parts of the Islamic criminal
legislation, which has resulted to lack of fair hearing towards women.
There are two main provisions in the law,
which discriminate against women. The first is the inequality in the weight of
testimony. According to the sharia penal codes, a woman’s testimony as evidence
in a trial is worth half of a man or the testimony of one male witness equals
that of two female witnesses.
Another aspect of discrimination, which can
lead to lack of fair hearing, is the inequality in standard of evidence in
cases of Zina. Women have been adversely affected in these cases under the
sharia codes in force in Nigeria, based on the maliki school of thought;
pregnancy is considered sufficient evidence to convict a woman of adultery. For
the male defendant, the sharia penal code requires that the act of adultery
must have been witnessed by four independent individuals before the man can be
convicted - a standard of proof which is usually impossible to obtain and has
not been obtained in any of the cases which have been arisen so far. This
glaring discrimination in standards of evidence has had serious consequences
for women charged with Zina. It has resulted in situations such as those of
Bariya Magazis. Safiya Husseni
and Amina Lawal.
There have been also been cases when men have been convicted for adultery but
these conviction have usually been based on the man’s own confession. The intriguing
thing about this kind of society or judicial system is that, women are very
vulnerable and they suffer from this form of human right abuse and violations.
paper is written to address the problem of lack of fair hearing towards women
who are governed by Islamic law (Sharia) in Nigeria. From this paper, it will
be shown how injustice have been meted on the woman governed under Islamic law
(Sharia) in relation to fair hearing as it contradicts the provision of section 36 of the Nigeria
constitution of 1999 (as amended).
Statement of the problem
Fair hearing is a very important, in every
legal system. It tells a lot about a particular society or brings bad light or
image about a particular society that does not practice it or adhere to it.
Lack of fair hearing or the non-observance
of the principle of fair hearing especially as it relates to women govern under
Islamic law in Nigeria can ensure a lot or problems which include:
Lack of public confidence in the legal
system which can lead to anarchy in the country
It will affect the economic development of
that part of the country because of the inhuman laws that is applicable.
Devalues the force behind the constitution.
Paves way for high level of illiteracy
towards women due to the realistic intimidation before them.
Objectives of the study
In the course of this short essay, my
intensions, is to exposes the contradictory provisions of the Islamic laws
(Sharia) as it regards to fair hearing toward women, in the Nigerian
constitution 1999 (as amended). Also, examine the extent to which it can affect
the regions of the country.
Consequently, to examine how it impedes
human development to that part of the country that do not adhere to the
practice of fair hearing.
investigate the extent to which the practice of not adhering to the principle
of fair hearing towards women, has eaten deep into the Nigerian legal system.
to suggest solutions on the need to repeal some of these laws that is
contradictory to the provisions of the constitution regarding the subject
of the study
This study will firstly, add to the wealth
of literatures existing in this subject matter of law for educational purposes.
However, the work will be more valuable to lawyers and Islamic law judges. The
reason is that the beginning and end of
a matter or case in court rest on how well the principle of fair hearing have
been used in the adjudication of a
matter. Any breach of this principle results to the nullity of the entire
process no matter how well conducted it may appear.
Nigerian population is largely uneducated especially women in the northern part
of Nigeria, this study will be an eye opener to civil rights group and NGOs to
do more in their pursuit for human rights.
the executive arm of government, to know the way women are being treated in the
northern part of country and what can be done about the situation.
To the legislators, to know the laws that
are not intandem with the constitution and see how these laws can be amended or
reflect the spirit of the constitution.
And lastly to the general public especially
women in the north, to know the realities to steering them before their eye and
possible ways to go about this reality.
of the study
This work will span through the
unconstitutionality of Islamic law in Nigeria especially as it relates to the
lack of fair hearing towards women who are govern under Islamic law in Nigeria.
This will involve an examination of specific cases where the Islamic law court
have gone contrary to the principle of fair hearing which is more burden on the
In sourcing for materials for this work,
the law library was of immense help in sourcing for materials as it availed me
a variety of opinions and argument from different Islamic laws scholars and
lawyers and civil groups as continued in both articles, publications and books
written by Nigerian authors. Also given the computer age, it is no doubt that
the internet facility was in no small helpful as there were plethora of
materials that came handy as online articles.
Related works do not directly discuss our
topic however, various authors have expressed their opinion on their articles
on issues of fair hearing towards women who are governed under Islamic law.
is of the view that, the Quran reveals the general tradition imposed on all
testamentary evidence in Islam that, the evidence of a woman is half the
evidence value of one man. The verse states
“when you contact a debt for a fixed period, write it down… and get two witness
out of your own men… and if there are no men available, then a man and two women, so that if one of
them errs, the other can remind her ….”
from the foregoing verse, it can be seen that this evidentiary rule is
primarily restricted to cases of business transactions, civil debts and
contracts. It is true that as lacking in experience and requisite skills,
however, this practice is still in force in the modern society such as the Nigerian
is of the view that this Islamic practice in the aforementioned verse is still
being practice and it is in at variance with the provision of the section 42 of
the constitution which
citizen of Nigeria of a particular community, ethnic group, place of origin,
sex, religion or political opinion shall not by reason only that he is such a
Be subjected either expressly by or in the
practical application of, any law in force in Nigeria or any executive
administrative action of the government, disabilities or restrictions to which
citizens of Nigeria of other communities, ethnic group, sex, religions or
political opinion, are not made subject to”.
Also section 17 (2) (a)
“In furtherance of the social order every
citizen shall have equally rights, obligations and opportunities before the
He further opines that, by extrapolation,
this practice perhaps degrades the human status of women folk alberts by making
two women equal to one man. Hence, this unfair gender equation collides with
the provision of section 34 of the Nigerian constitution which states that no
person shall be subject to degrading treatment. He further said that besides,
Nigerian adjectival law regard everybody as equal irrespective of gender as a
competent witness in court proceedings except, in the consideration of the
court, one is prevented from understanding the questions by reason of tender
years, extreme old age, diseases whether of the body or mind, or any other
cause of the same kind.
concluded by saying that nowhere is the court consideration based on gender yet
in Nigeria today Sharia courts have insisted on two women as equivalent to one
man. This has even been made statutory in some of the Sharia penal codes.
On the issue of procedural irregularities of
he is of the view that, all the notorious criminal causes decided by one Sharia
trail court judges since 2000 in respect of adultery or fornication (Zina),
women have always been victims of judicial disregard to the constitution
safeguards on fair hearing as provided in section 36 of the constitution. These
constitutional safeguards or procedural guarantees are mainly the basic rights
of an accused person before, during and after the trial. Hence, in the cases of
the state vs Safiyatu Tudis
and the state vs Amina Lawal Kurami,
the procedural guarantees were not observed in favour of the accused person,
thereby resulting to denial of justice and violation of fundamental rights.
wonders whether the court’s decision confirmed to the equality cause of section
14 of the constitution and non-discrimination provisions of section 42 thereof.
is of the view that there is a lot of discrimination against women prevalent in
northern Nigeria. Firstly, Sharia devaluate a women’s testimony or evidence in
areas courts. Secondly, punishment mented out by Sharia court in adultery cases
discriminates against women.
She further complains on the wrong impression that, adultery could be committed
by one person.
concludes by calling on all state parties to take appropriate measures to
modify or abolish such discriminating laws.
is of the opinion that, there are specific or direct law to protect the right
of women and that the existing laws are not adequate. She further grieved that,
even the laws which stipulates the fundamental rights
are not being known by most women. She concludes by saying that there are many
laws which implies protection of women in Nigeria but these laws are not
Islam is seen as one of the three main
religions in Nigeria which adherents are predominant in the north. Its
teachings are founded on the Quran, life of Muhammad and some other sources
(Ozigbo 1988:2). An adherent of Islam is called a Muslim which is the active
participle of the same verb of which Islam is the infinitive.
Sharia is Arabic word that literally means
“a drinking place” or “a path leading to a watering hole” (Ubaka, 2000:11,
Kenny, 1986:20). The implication is that since water is regarded as a source of
life, Muslim claim that Sharia is the foundation of not only earthly but also
eternal life. Farlex (2009) describes Sharia as a code of law derived from the
Quran and from the teaching and examples of Mohammed. Johnson (2009:) expands
the meaning of Sharia as “inspired not only by Islam and Quran but also by
Arabic traditions and early Islamic scholars”. In this paper, Sharia is
understood as constituting those rules of conduct derived from different
sources of Islamic religion and codified into a body of law by relevant
legislatures with the intention of getting them enforced through state
machinery. It is equally understood as that body of Islamic law as interpreted
by the Maliki School of Islamic jurispendence which is the only acceptable
version in Nigerian Islam.
is an Islamic law concerning unlawful sexual relations between Muslims who are
not married to one another through a nikah. It includes extramarital sex and pre-marital
sex as adultery, fornication and homosexuality. The Quran deals with Zina in
several places. First is the quaranic general rule that commands Muslims not to
commit zina. Quran, sura 17 (al sira) ayat 32 reads “nor come nigh to
fornication/adultery: for it is shameful deed and an evil, opening the road (to