Sharia Law, Customary Law, and the Nigerian State: Why Abolition Is Neither Constitutional nor Practical -By Odey-Agba Itite Emmanuel, Esq.

There is a call in some quarters for the prohibition of Sharia law in Nigeria. While such arguments may appear compelling to those who hold them, they fundamentally misunderstand Nigeria’s constitutional design, legal structure, and sociocultural realities. To seek the abolition of Sharia law is to ignore the fact that Nigeria is, by history and constitutional architecture, a pluralistic legal stateone in which statutory law, customary law, and Islamic (Sharia) law coexist under a single overarching constitutional framework.

A Constitutionally Recognized Legal System

Sharia law is not an informal or secondary set of norms in Nigeria. It enjoys clear and express constitutional recognition. Sections 260–264 of the 1999 Constitution (as amended) establish the Sharia Court of Appeal for the Federal Capital Territory, while Sections 275–279 authorize the creation of Sharia Courts of Appeal across the States. These courts handle matters of Islamic personal lawmarriage, succession, family relations, and waqf applicable only to those who voluntarily submit to such jurisdiction by virtue of their faith.

In Alkamawa v. Bello (1998) 6 NWLR (Pt. 552) 284, the Court of Appeal affirmed that Islamic law is undeniably part of the Nigerian legal system. Its presence, therefore, is not a concession but a constitutional fact.

Customary Law: The Southern Counterpart

Similarly, customary law dominant in Southern Nigeria is constitutionally entrenched. Sections 265–269 and 280–284 establish Customary Courts of Appeal for the FCT and the States. Customary law governs key aspects of social life including inheritance, marriage practices, traditional governance, and land tenure systems.

To single out Sharia law for prohibition while leaving customary law untouched is both illogical and constitutionally indefensible. Both systems arise from the cultural identities and traditions of Nigerian communities and exist within the constitutional order.

Secularism Does Not Mean Hostility to Religion

Section 10 of the Constitution prohibits any government in Nigeria from adopting a state religion. This has often been misconstrued to mean that religion has no place in the public legal sphere. Nigerian secularism, however, does not prescribe hostility to religion; it demands state neutrality. This neutrality allows the Constitution to recognize Islamic personal law and customary law equally.

Section 38 further guarantees freedom of thought, conscience, and religion, ensuring that Nigerians are free to practice their faith including submitting to its personal law without state interference.

Personal Law and Its Limited Application

A foundational principle of Nigerian jurisprudence is that individuals are governed by their personal law where statutory law is silent. Therefore, Sharia law applies only to Muslims who choose to be bound by it. It has no automatic force over non-Muslims and cannot infringe on their rights.

In Saidu v. State (1982) 4 SC 41, the Supreme Court reinforced this principle by holding that criminal offences must be created under written law—preventing any religious criminal code from binding non-adherents.

Sharia, therefore, presents no threat to national coexistence when properly understood.

The Validity Test and Constitutional Supremacy

Customary law is subject to the well-known validity test, which requires that:

1. It must not be repugnant to natural justice, equity, and good conscience.

2. It must not conflict with any existing law.

3. It must not violate public policy.

Cases such as Mojekwu v. Mojekwu (1997) 7 NWLR (Pt. 512) 283 and Agbai v. Okogbue (1991) 7 NWLR (Pt. 204) 391 demonstrate that customary rules must evolve within constitutional and human rights limits.

Sharia law equally operates under constitutional supremacy, with Chapter IV of the Constitution acting as the safeguard ensuring that every legal system in Nigeria aligns with fundamental rights and national values.

Integration, Not Abolition

Nigeria’s diversity is central to its identity. With more than 250 ethnic groups and multiple legal traditions, a monolithic legal system would create more conflict than harmony. Abolishing Sharia law would undermine constitutional guarantees and generate tension rather than unity.

The constitutional pathway is clear: integration, harmonization, and the development of all legal systems statutory, customary, and Islamic within the overarching authority of the Constitution.

Conclusion

The call for the prohibition of Sharia law is rooted in misunderstanding rather than legal or constitutional necessity. Sharia law’s existence in Nigeria is lawful, historical, cultural, and constitutionally entrenched. Its proper place is alongside customary and statutory law, all operating under the supremacy of the Constitution.

Nigeria’s strength lies not in suppressing its diversity but in managing it through justice, balance, and constitutionalism. The real task before us is not to abolish any legal tradition, but to ensure that each evolves in line with human dignity, national unity, and constitutional values.