The federal government’s position on Shari’a

Filed under: National Issues |
A shariah law officer canes a woman in front of a mosque in Banda Aceh, Indonesia, Friday, Jan. 27, 2006. This woman is blamed for staying together with her boy friend in a house. (AP Photo/Binsar Bakkara)

A shariah law officer canes a woman in front of a mosque in Banda Aceh, Indonesia, Friday, Jan. 27, 2006. This woman is blamed for staying together with her boy friend in a house. (AP Photo/Binsar Bakkara)

 

From the start, the federal government has adopted a passive attitude towards the introduction of Shari’a.  Even at the height of controversy surrounding the issue, it has opted to look the other way, hoping the issue would eventually disappear.  Some senior government officials have publicly voiced their personal opposition to certain aspects―in particular sentences of death by stoning―but have stopped short of intervening to prevent such sentences from being passed.  They have instead relied on the appeal system,  hoping that the courts of appeal would eventually acquit those facing harsh sentences―a lengthy process which only prolongs the psychological suffering of the defendants.  Nor has the federal government insisted on changes to the legislation which provides for such punishments. It has continued to allow state governors complete autonomy in this respect, even when the Shari’a system was used to justify flagrant human rights violations.  The federal government has also refrained from taking a position on whether the extension of Shari’a to criminal law is compatible with the Nigerian constitution.  Instead, it has waited for a test case to challenge the issue through the federal courts—which, until now, has not been done.  The federal government’s unwillingness to intervene can be explained principally by political considerations:  in 1999, President Obasanjo, a Christian from the southwest of Nigeria, was elected in large part thanks to the northern, predominantly Muslim vote, and he remains unwilling to openly antagonize northern politicians or alienate public opinion in the north.  The government may also feel that an open confrontation on this issue could trigger further bloodshed in the north or in mixed Muslim/Christian areas.

The pervasive negative publicity surrounding the cases of Safiya Husseini and Amina Lawal, combined with interventions and appeals by Western governments and institutions which Nigeria had counted as its political allies, clearly hit a raw nerve with President Obasanjo.  Fearing the negative consequences for Nigeria’s international image, he made several public statements expressing his opposition to these sentences and stating that no one would be stoned to death in Nigeria.  However, even these statements were couched in passive language, as if he was in no position to take any action at all. Following the decision of the Upper Shari’a court to uphold Amina Lawal’s death sentence, he told journalists:  “I do sincerely hope that we will get through it, that Amina will not die […] But if for any reason she is killed, I will weep for Amina and her family, I will weep for myself, and I will weep for Nigeria.”280  He also stated: “There is nobody that has ever been stoned to death in our history and I hope that nobody will be stoned to death.”281

As international pressure intensified around Amina Lawal’s trial, Minister of State for Foreign Affairs Dubem Onyia issued a press release on November 8, 2002, in which he stated:  “The recent flurry of comments and interest within the International Community on the trial of Amina Lawal piques wholesomely the concern of the Nigerian government […]  The Nigerian government […] shall not fold its arms while the rights of its citizens are abused […] The Nigerian government shall exude its constitutional powers to thwart any negative ruling, which is deemed injurious to its people.  We restate that no person shall be condemned to death by stoning in Nigeria.  Safiyat and Amina Lawal will not be subjected to abuse of rights.  The Nigerian government shall protect their rights”282  He also told journalists: “Amina Lawal will never, never be stoned to death […] The federal government will not stand by to let any citizen of this country be dehumanized.”283   However, it is not clear what action the federal government took beyond these pronouncements; and government officials failed to acknowledge that the very trials of these women for adultery and the death sentences which were hanging over them were in themselves “dehumanizing.”

President Obasanjo expressed relief when the death sentences of first Safiya Husseini then Amina Lawal were overturned by the Shari’a state courts of appeal.  After Safiya Husseini won her appeal, he was quoted as saying:  “Wherever I went in the world, I had no peace […] [The President of Spain] said ‘… this matter of Safiya…’  The second man was the Prime Minister of Norway.  I had been talking to him about oil exploration in Nigeria.  All he wanted to talk about was Safiya.  I thank God and all those God has used to save the life of Safiya.  Her stoning would have been a setback for us.  No matter what we felt about this, the perception of the world would have been different […] Nigerians must face the reality that the eyes of the world are on us.”284

Several sources reported that following the negative publicity generated by the cases of Safiya Husseini and Amina Lawal, the federal government put pressure on state governments, behind the scenes, to back away from such punishments.  It is difficult to estimate how effective this pressure may have been.  As mentioned above, some of the momentum which initially accompanied the introduction of Shari’a has been lost, but there are also other factors which may explain this shift.  A number of Nigerian journalists, activists and other individuals based in northern states told Human Rights Watch that they were convinced that international pressure on the federal government—which filtered down to state governments—had had a significant impact in diminishing the likelihood of death sentences and amputations being carried out and on further such sentences being handed down.285

Other senior federal government officials, as well as members of the National Assembly, have also expressed their personal opposition to sentences of death by stoning.  Bola Ige, who was Attorney General and Minister of Justice when Shari’a was first extended to criminal law in northern Nigeria, was among those who condemned these sentences.286   Members of the National Assembly also opposed the sentence, and the then-president of the Senate, Anyim Pius Anyim, deplored the “selective justice” which resulted in the conviction of Safiya Husseini, while the man with whom she had allegedly committed the adultery had been acquitted.287

In March 2002, the then Attorney General and Minister of Justice Kanu Agabi took the unusual step of writing to all the governors of the states applying Shari’a, urging them to amend the  legislation.  His letter, which was made public, referred first of all to “the hundreds of letters which I receive daily from all over the world protesting the discriminatory punishments now imposed by some Shari’a courts for certain offences.  As a respected member of the world community, we cannot be indifferent to these protests.”  He urged state governors to “take measures to amend or modify the jurisdiction of the courts imposing these punishments so that we do not in the end isolate either the country as a whole or the affected states.”   However, his main argument for demanding amendments to the legislation was that Shari’a discriminates against Muslims and is therefore in breach of the Nigerian Constitution.  Agabi’s letter stated: “A Moslem should not be subjected to a punishment more severe than would be imposed on other Nigerians for the same offence.  Equality before the law means that Moslems should not be discriminated against […] A court which imposes discriminatory punishments is deliberately flouting the constitution.”  He appealed to state governors “to take steps to secure modification of all criminal laws of your state so that the courts will not be obliged to impose punishments which derogate from the rights of Moslems under the Constitution.”288

Several state governors reacted negatively to this letter; others simply ignored it. Ahmed Sani, governor of Zamfara State, was among those who explicitly refused to comply with the attorney general’s request.  He told journalists:  “I wrote to tell the federal government that as far as Zamfara State is concerned, we have passed beyond the stage of dialogue on Shari’a.  We have adopted Shari’a and Shari’a has come to stay.”289  The matter was not pursued further.

Following the April 2003 elections, a new Attorney General, Akinlolu Olujinmi, was appointed.  When Human Rights Watch met him in August 2003, he shared our concerns about the human rights violations occurring in the implementation of Shari’a, particularly regarding the absence of defense lawyers.  He agreed that there should always be legal representation in capital cases, and undertook to raise the issue with the state attorney generals.  He also said that he believed some sentences were too severe and should not be applied.  Regarding the question of the constitutionality of Shari’a, he said it was the responsibility of individuals who felt their rights had been violated to initiate a court case to challenge the application of Shari’a.290  His language indicated that the federal government was still reluctant to take action itself on this point.   He explained that states were autonomous and expected very little intervention from the federal level.  He claimed that when the northern state governments had introduced Shari’a, “it was difficult for the federal government to say ‘don’t do it’.” 291   When Human Rights Watch met the minister again in July 2004, he said that the state would provide a lawyer to anyone charged with a capital offense, and that judges should order a lawyer to take up any such case.292

 

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