Nigerias Next Challenge: Its Constitution

Eric Mwiine-Mugaju

The victory of Muhammadu Buhari in Nigerias Presidential elections, announced on

March 31st, did not come as a surprise to those who follow events in Nigeria: Boko
Haram has been nailing shut the coffin of incumbent Jonathon Goodluck for several
years. Now it seems he has finally paid the price for failing to secure Northern Nigeria.
With a northerner in the driving seat once more, Nigerians will be hoping that some
stability will return to the north of the country to ease the toll on human life and slow
burgeoning inequality.
However, the most challenging task that lies ahead is not just to defeat Boko Haram; its
what to do about The Constitution. Any constitution must bear a will of the people, such
as a constitution drafted by an elected Constitution Assembly. Despite the preamble
starting with words We THE PEOPLE OF NIGERIA, Nigerians never met or mandated
anyone to draft the articles of the Constitution, making it a great lie. The question now is
whether the legal elephant in the room bolsters the growing inequality between
Nigerias North and South, by dividing the country in half.
The 1999 Constitution was ushered in after four decades of military rule, and bears the
hallmarks of previous military rule. Like
most constitutions, it should be designed
to provide a basic legal guarantee of the
rights and privileges that all citizens are
entitled to receive. For example, the 1999
Constitution purports to guarantee that
no citizen shall be subject to
discriminatory treatment before the law
because of their community, ethnic group,
place of origin, sex, political belief or
religion.
However, under the very same 99
Constitution, Nigeria permitted one third
of its states (all in the predominantly
Muslim north) to adopt a strict interpretation of Sharia law. Coincidentally, Boko Haram
began to surface at the turn of the millennium. This should not imply that 1999
Constitution, for that matter the re-instatement of Sharia is a direct cause of the groups
rise. However, it does provide a powerful rhetorical tool, and the groups always justify
their actions using assertions of religious ownership over the north.
Sharia law has a long history in Northern
Nigeria; the Malik School of Islamic law
governed all aspects of life for Muslims
living in Northern Nigeria. It continued to
flourish throughout the 1900s as a result of
British indirect rule, championed in Nigeria
by Lord Lugard. In 1960, on the eve of

independence, the administrative unification of Nigeria compromised the status Sharia

had previously enjoyed with the enactment of the Northern Nigeria Penal Code and
Criminal Code Procedure. This effectively abolished substantive and procedural Sharia
criminal law and was considered beneficial for the unification of the Confederation of
Federal Nigeria.
Following the creation of a federal state in the 1960s, Islam and Christianity have
continued to play a vital role in national and political life. This relationship between the
two religions has not, however, been characterized by harmony: this is made evident by
scanning through the electoral maps of any election in Nigeria. The discriminatory
nature of Nigerias Sharia Penal Code violates the Constitutional guarantee that all
Nigerian citizens who belong to a particular religion or place of birth shall not be
subjected to discrimination on that basis.
At present, Sharia law applies to Muslim residents of Northern Nigeria. For the most
part, this means Muslims are clearly subject to different treatment before the law than
Southerners. This is in contravention to the Constitutions guarantee of equal treatment
before the law.
The most notable consequence of this provision and similar provisions in the legislation
of other Sharia-observant states is that Muslims in these states are likely to be penalized
more harshly for their infractions than their non-Muslim counterparts.
Thus, for instance, if a Muslim and his non-Muslim friend are caught in the act of stealing
a bicycle in Kano, Kaura Namodo or Kontagora, and there is sufficient evidence to prove
their guilt, the Muslim culprit faces the daunting prospect of amputation while his nonMuslim co-offender will, at the very worst, be sentenced to a term of imprisonment
(except in the highly unlikely event of his opting to be tried by a Sharia court).
By the same token, if two married persons commit adultery with each other and one of
them happens to be a Muslim and the other a Christian, the former can be prosecuted
and possibly sentenced to death by stoning, whereas the latter would undoubtedly have
sinned against his or her religion but will not have to answer to a criminal charge. This
clearly contradicts the equality before the law clauses in the Federal Constitution.
The most pressing issue is the divergence in the severity of punishments that result
from petty offences, would that be mandated by the Federal Constitution and
international conventions that Nigeria is a party to? The example of such case is that of
Amina Lawal case.
Many cases decided by Sharia courts and overruled by the Supreme Court caused
Muslim diehards to accuse the Lagos based court that it is interfering with the lives of
Muslims north. These are elements that have easily been seized by extremist groups
such as Boko Haram. Given the marginalization of the northern states by years of
patronizing only the oil rich south, this gave the way for Boko Haram to use the Sharia
and western education as a proxy.
The issue of whether Nigeria is secular state or has a state religion also continues to
surface. The Constitution explicitly prohibits a state religion in Section 10. Does the
enactment of Sharia reforms then entail the adoption of a certain religion?
The problem that faces not just Nigeria is Divine nature of Sharia. In many countries
with a considerable balance of Muslims and Christians, such countries find it
constitutionally problematic, in a way, to determine which law is supreme? Given that

Gods law (Sharia) cannot be subject to human agency, the supremacy of the
Constitution is evident in sect. 1 (1). The trouble is, both Sharia and the constitution
claim to have the supremacy. Sharia in the eyes God Sharia cannot be questioned, and
the Supreme Court also claims supremacy in the eyes of common law, such a situation
leaves the 1999 Constitution contradicting itself.
By extending Sharia beyond the realm of civil law into the sphere of criminal law, ardent
Sharia supporters have argued that it strengthens the social dimension of communities
and reintroduces community participation in crime prevention. This seemed to capture
the African nature of laws i.e. the absence of difference between civil and criminal law
(every man had court in his front compound to expound justice) mostly in absence of
the state. However it was short sighted given the task ahead to organize the courts and
train jurists to interpret Sharia to accepted international standards.
The challenges of most African states go quietly undiscussed, or at least remaining in
academic circles, but mainly affecting ordinary people is the above separation of these
legal entities. The election of Buhari now waits to see how he handles the legal
complicity of harmonizing Sharia and secular law in one country. Given that the
transition of power in Senegal, Namibia, Zambia and now the coup dtat champions of
Africa, Nigeria, are African democracies now perfecting the art of regularly changing
president peacefully? Have African countries finally perfected the Bloody Marys to cure
the colonial hangover? Although there are positive indications that the coup dtat era
may be over and that post-election violence is becoming less frequent. The issue that
continues to arise, not just for Nigeria, is multiple legal systems in Africa.