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Nigerian Constitution versus the Sharia

6 min read

By DPA Rambo

Dealing with the man-made conflict between the Constitution and the new sharia movement is at the center of all Nigerian problems today. I call the conflict man-made or contrived because that conflict was initially resolved. The idea of having the Constitution as the supreme law of Nigeria was settled right from the colonial days. Indeed, the settlement of that question was the bedrock for the formation of Nigeria as one country.

Throughout Nigerian political development between 1914 creation of Nigeria through the Amalgamation and the date of independence in 1960, it was an article of faith that Nigeria would be governed as a seccular state – that government and public administration would not be based on religion. This was necessary because the world’s two main religions (Christianity and Islam) were almost equally present in Nigeria. It can be said that the Nigerian State was founded on the understanding that the political governance or public administration would not be based on any of the religions, but rather on a neutral order embodied in the Constitution. This understanding was in effect on the date of independence.

Choosing the circular option as the order of government and public administration was not and did not destroy religion. Indeed, it was intended to preserve religious rights by keeping religion as a personal choice of an individual and by restraining the state (governments of Nigeria) from encroaching into that sphere of personal choice. It means in effect that a person is free to change his religion as many times ad he likes without suffering any legal consequence.

To maintain this understanding or the article of faith upon which the Nigerian State was founded, the country needed to observe the principle of supremacy of the Constitution. This means that the Constitution will be the supreme law of the land and shall override any other law or rule or system that is contrary to the Constitution. In fact, the British in developing the new legal order for Nigeria designed a method for resolving conflicts between different norms or rules of law that existed in Nigeria. A simple workable method was the Validity Test. That is; the method by which you should tell whether any rule (be it a sharia rule or customary law rule) should apply is to subject such rule to the Validity Test.

That Validity Test, which was a rule of general application, goes like this: For any rule (customary or sharia) to apply, it must:

(a) Not be contrary to any written law passed by a state or the federation or the Constitution, and

(b) Not be repugnant (offensive) to natural justice, equity and good conscience.

Let us forget the (b) condition, let’s call that what the white man used to assert his notion of cultural superiority over the African natives. Let’s focus on (a) for the purpose of constitutional supremacy.

Another thing that is very important to recognize is that it was agreed by Nigeria’s founding fathers that sharia for Muslims and customs of the various indigenous communities of Nigeria shall be at per. That is, that the two systems of law (sharia and customary laws) shall operate as inferior to laws made by the states and federal government and the Constitution. This means automatically that any conflict between either the sharia or the customary laws and the Constitution shall be resolved in favor of the Constitution. It is on the basis of this that the Nigerian Supreme Court declared void an Igbo customary law that denied women the right of inheritance. The Supreme Court found that this was a right which the Constitution granted to everybody (men and women) and that no customary law should be allowed to take that right away from women. The next logical question will be whether punishing a person for blasphemy takes away a right granted by the Constitution. And the answer is yes. It takes away the right to choose or reject a religion or a religious belief. That thing you call blasphemy is an exercise of a constitutional right – the right to differ or to disagree on a religious belief. The man has changed his belief about an aspect of or the whole of the religion of Islam. I will elaborate on this in a separate article.

How did Nigeria steer away from the principle of supremacy of the Constitution and now tending toward the supremacy of the Sharia or to this unsettled territory? This took time to happen, even though it exploded after 1999 return to democratic rule, under President Obasanjo, with Governor Sani Yerima of Zamfara State as the arrow head or bellwether of the new Sharia movement.

The first crack in the system began with the emergence of military rule and the aftermath of the civil war. With the victory of Nigeria in that war came the ascendancy of northern military officers as the leaders of Nigeria. Their political dominance meant a gradual shift away from the balance that saw the sharia as being at per with customary law in the hierarchy of laws. But the religious beliefs of the predominantly Muslim leaders from the North may not be the decisive factor, given that some of those leaders (Gowon, Obasanjo, Danjuma, etc) were Christians or fairly westernized with circular values. The greatest impact of military rule was that it practically destroyed the supremacy of the Constitution. By replacing the Constitution with military decrees (sanctioned by the Supreme Court in Lakanmi v. Attorney General of the Federation (1971) and a long line of subsequent cases), the Constitution lost its veneer of supremacy. The Constitution became a play thing and whoever is in a dominant position could undermine it.

Final blow to the Constitution came under Obasanjo when a Muslim Governor of Zamfara state saw the sharia as a means if mobilizing his citizens to his support and he declared the Sharia the supreme law applicable in his state. It remains an unanswered question whether Governor Yerima acted out of genuine religious belief or whether he just manipulated a religious situation to his political advantage. It is probably the latter, but the consequence has been devastating.

The main problem was not the dangerous behavior of Yerima. Rather, it was Obasanjo’s failure to stop him. Obasanjo failed to exert a decisive political will by invoking the federal might against Yerima because Obasanjo was desperate for a second term and even a third term. (Note that Obasanjo’s dream for a third term was Obasanjo’s own plan to also undermine the supremacy of the contrition. So Yerima’s conduct was not totally strange to Obasanjo). When Yerima was allowed to proceed, other Northern Governors saw a means to shore their holds on power by joining the Sharia movement. And here we are today – there is a continued effort to assert the supremacy of the Sharia and to make the Constitution subordinate to the Sharia, just as the military juntas made the Constitution subordinate to their decrees.

Of course, Boko Haram is a rejection of a particular book. Please, note that it is not every book that is haram. It is not western education that is haram. (All that was a manipulation of language to conceal the central message of Boko Haram). Indeed western education is necessary for making of bombs and for operating an AK-47 and rocket propelled grenades and for buying and driving Toyota Hylux with machine guns mounted on it. The book that is haram is the Constitution. A friend familiar with Boko Haram told me clearly that it is the Constitution that they reject as Haram. Now can you see the connection?

The final point I want to make here is this: It is actually the Constitution that made Nigeria possible. It was the idea of a supreme Constitution that made Amalgamation possible. It is not by accident therefore that every threat to the Constitution is also a threat to the existence of Nigeria. So, those who seek to impose sharia on Nigeria as something above the Constitution are doing exactly the same thing as those who want to break up Nigeria. In fact, those who seek secession from Nigeria can point at the leaders of the Sharia movement and say: “They started it. We are just responding in a logical manner”. In fact, I asked my friend: “Do you understand that the Christians will never agree to be subjected to the principle of supremacy of the Sharia?” He replied: “I know, but we cannot agree to the supremacy of the Constitution or anything outside the Sharia”. I then asked: “That means that we cannot be one country?”. And he replied: “No, it is not possible”.

You don’t need to take the views of my friend as the position of the entire North. There is a significant Christian population in the North and many of the Northern elites do not desire the consequence of supremacy of the Sharia.

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