The planned inauguration of a Sharia Court in Oyo State has sparked widespread reactions on social media over the past few days.

The controversy began when the Supreme Council for Shari?ah in Nigeria, Oyo State chapter, announced its intention to establish a Sharia Court in Oyo town and its environs by January 2025.

While some netizens expressed support for the initiative, others strongly criticised it.

Those against it argue that establishing a Sharia court in the South West, a region predominantly inhabited by Yoruba people undermines the area?s cultural and religious diversity, where no single faith is dominant.

In response to the backlash, the Islamic Council later announced an indefinite postponement of the court?s inauguration.

As though expecting the news to climb up the media radar, the Oyo State government was quick to respond to the controversy surrounding the proposed establishment of a Sharia Court in the state.

Reacting, Governor Seyi Makinde reaffirmed his commitment to upholding the law of the land ? the Nigerian Constitution.

Despite the recent debates surrounding Sharia law, many Nigerians remain unaware of its meaning and what the 1999 Constitution of the Federal Republic of Nigeria says about it.

Sharia law refers to the legal and moral framework derived from Islamic teachings, encompassing rules, principles, and ethical guidelines based on the Quran (the holy book of Islam), the Hadith (the sayings and actions of Prophet Muhammad), Ijma (the consensus of Islamic scholars on matters of law), and Qiyas (the process of analogical reasoning by comparing complex legal questions to similar cases resolved based on the Quran and Sunnah).

Sharia Courts: What Does the Nigerian Constitution Say?

The establishment, appointments of Grand Kadi and Kadis, jurisdiction, constitution, and practice/procedures of Sharia Courts of Appeal are detailed in Sections 275 to 279 of the 1999 Constitution of the Federal Republic of Nigeria as amended.

According to section 275 of the Constitution, a Sharia Court of Appeal can be set up in states where the demand for it exists, with its purpose primarily focused on resolving civil disputes rooted in Islamic personal law.

The Constitution specifies that the Sharia Court of Appeal shall be composed of a Grand Kadi and additional Kadis, whose appointment is governed by state authorities in consultation with the National Judicial Council (NJC).

Section 275 reads, ?(1) There shall be for any State that requires it a Sharia Court of Appeal for that State.

(2) The Sharia Court of Appeal of the State shall consist of ?

(a) A Grandi Kadi of the Sharia Court of Appeal; and

(b) such member of Kadi of the Sharia Court of Appeal as may be prescribed by the House of Assembly of the State.?

The qualifications and process for the appointment of the Grand Kadi and Kadis are explicitly outlined in section 276 of the Constitution. To be appointed as a Kadi, one must either be a legal practitioner with over ten years of experience and a recognized qualification in Islamic law or be a distinguished scholar with a decade-long experience in Islamic law.

These appointments are made by the state governor, subject to confirmation by the state?s House of Assembly. If the office of the Grand Kadi becomes vacant, the most senior Kadi is tasked with assuming the duties temporarily until a permanent appointment is made, as detailed by Section 276 of the constitution.

In a discourse around Sharia Law in a secular setting, the issue of jurisdiction is usually topical.

However, the jurisdiction of the Sharia Courts is well encapsulated in Section 277. The Sharia Court of Appeal is empowered to address matters concerning Islamic personal law, such as marriage, inheritance, and guardianship, as long as all parties involved are Muslim.

The court?s jurisdiction extends to family-related issues, including the validity or dissolution of marriage, as well as the guardianship of infants or persons unable to care for themselves.

Additionally, the court handles matters related to Islamic endowments (wakf), gifts, wills, and succession, as long as the concerned individuals are Muslim.

Other sections, like 278, explain that the Sharia Court must be composed of at least three Kadis before it can exercise jurisdiction while 279 empowers the Grand Kadi to establish rules to guide the practice and procedures of the Sharia Court of Appeal, subject to the laws passed by the state?s House of Assembly.

Past Arguments on Sharia Law

In a secular state like Nigeria, it?s expected that the implementation of Sharia law must have led to several arguments in the past, especially regarding its alignment with the Constitution of the land.

For instance, critics of the law have opined that Section 10 of the Constitution of the Federal Republic of Nigeria, which states that ?The Government of the Federation or of a State shall not adopt any religion as State Religion,? is violated by the adoption of Sharia in northern states.

They argued that this amounts to adopting Islam as a state religion. However, supporters of Sharia law countered with the position that the law (Sharia) only applies to Muslims and does not affect those of other faiths.

Another major argument centres on Section 38, which guarantees freedom of thought, conscience, and religion. Non-Muslims contended that Sharia infringes on their religious freedom because its implementation indirectly affects them. Advocates of Sharia, on the other hand, argued that this same section protects their right to practice their religion fully, which includes adhering to Sharia law.

That?s not all. There was also controversy surrounding the jurisdiction of Sharia courts. Sections 275 to 279 of the Constitution grant Sharia court the power to handle only civil cases involving Islamic personal law. However, some northern state governors had insisted that they have the authority to extend Sharia?s reach into criminal matters, a move critics described as unconstitutional.

Many critics have also made a case for discrimination under Sharia law and presented it as a major point of contention. Section 42 which guarantees freedom from discrimination has been cited by critics who argue that Muslims are compelled to be tried under Sharia with no choice of jurisdiction, unlike non-Muslims. They further pointed out that Sharia law does not treat men and women equally.

Another concern was on capital punishments provided under Sharia law, such as death, stoning, flogging, and amputation. These have been heavily criticised for violating Section 34 of the Nigerian Constitution, which guarantees the dignity of the human person and explicitly prohibits torture and inhuman treatment.

Of all the past arguments, what seems to be the big elephant was the issue of supremacy between Sharia law and the Constitution of the Federal Republic of Nigeria. Some proponents of Sharia argued that because Sharia originates from religion, it is supreme over the Constitution. This claim, however, contradicts Section 1 of the Constitution, which states that it is the supreme law of the land, and any law inconsistent with it is void.

Sharia Court in South-West: Experts Weigh in

National issues, primarily on law or positions of the constitution of the land, are usually a conundrum.

However, the Nigerian Constitution was explicit on the establishment of a Sharia Court, according to Kola Oloyede, the principal partner of Eleni and Co. Chambers.

Speaking, Barr Oloyede said despite being a secular state, the Nigerian Constitution permits states to create various courts, including Sharia Courts in the North and Customary Courts in the South, to regulate affairs within their jurisdiction, provided such courts are established in compliance with legal requirements.

?Nigeria is a secular state, and by that fact, it does not recognise or give prominence to any particular religion. As it is, we have different religions. However, the law permits a state, especially northern states, to formulate different courts,? he said.

Community or radio stations can establish programmes or initiatives in a semblance of the court; however, any court of law established without due process cannot make enforceable pronouncements on any issues, Oloyede emphasised.

According to him, actual courts are not just established by whims and caprices of any group but with legislative backing through a State House of Assembly.

He emphasised that a legal framework is required in creating any court in Nigeria, adding that every court, including the Supreme Court and Customary Courts in Southern states, is created by an Act.

?They will need to go to the House of Assembly. The House of Assembly will create the court and define its extent of operation. It is the House of Assembly that will create the law to establish the Sharia Court. If that is not done, then it is a joke,? he said.

Oloyede noted that ?unless we have a Sharia Courts Law in Oyo State, there can?t be anything like Sharia Courts in the state. If a group of people come together and decide they want to create it without following due process, they are merely playing,? Oloyede explained.

Another legal practitioner, Olusegun Abayomi, the principal managing partner of O. Abayomi and Associates, spoke to Tribune Online. Barr Abayomi agreed with Oloyede that the constitution empowers states to establish Sharia courts, which primarily handle matters of Islamic personal law.

He, however, explained further that these state-created Sharia courts lack constitutional authority to hear criminal cases, adding that they are exclusively for Muslims.

He said, ?They can?t handle criminal cases and only operate in states that adopt Sharia law, mainly in the northern parts of Nigeria. Sharia Courts are for Muslims and cannot override Nigeria?s Constitution, and their decisions can be appealed to regular courts.?

Whether a community or religious group, such as the Supreme Council for Shari?ah in Nigeria, Oyo State chapter, can create a Sharia court, the legal practitioner rejected the idea, noting that such power is exclusively reserved for the state through the House of Assembly.

Abayomi continued: ?States in Nigeria have been empowered to create other courts other than the ones created by the constitution, and that is why we have states creating magistrate courts, Area Courts, and, in this instance, Sharia courts. It is axiomatic to note that no one group can create a court, as proposed by the Islamic group in Oyo, Oyo State; they are void of such power.?

He explained further that in states like Zamfara and Kano, ?Sharia law applies to both civil and criminal cases involving Muslims. In Kano, if one party is non-Muslim, the case can only be heard by a Sharia Court if the non-Muslim agrees in writing. If not, the case is referred to a Magistrate Court.

?Sharia Courts can only be set up by states, not religious groups. These courts are meant to handle matters for Muslims in states that adopt Sharia law.?

He added that introducing Sharia courts in the South West, where people practise different religions, could negatively impact non-Muslims, making it inconsistent with Sections 38 and 42 of the Nigerian Constitution.

?In the South West, where people follow different religions, introducing Sharia law could harm non-Muslims. Hence, it becomes inconsistent with the provision of Sections 38 and 42 of the Nigerian Constitution,? he opined.

Reacting to the possibility of the proposed Sharia Court replacing Customary Courts in the South West, Abayomi argued that establishing a Sharia Court in Yoruba land would be an unfair disadvantage to non-Muslims and violate the principle of equality for all citizens, regardless of their religion.

?Where any group in Nigeria, such as the Islamic group in Oyo, Oyo State of Nigeria, desires the creation of Sharia Courts in Oyo State, being a multi-religious state, such a group will need to have a bill passed by the House of Assembly while the interpretation of the provision of Section 6(4)(b) will be put into effect, wherein the State House of Assembly can abolish a court it has the power to establish.

?Finally, it is pertinent to note and understand that Nigeria is a secular state, which means it cannot adopt a National Religion,? Barr Abayomi emphasised. (Nigerian Tribune)

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