It is unfortunate that a person like Femi Fani-Kayode who calls himself a lawyer does not know that Nigeria is not a secular state. He does not also know that Islamic law is an integral part of the Nigerian Legal System.
No wonder, it has been argued in some quarters that not all lawyers know the law and not all lawyers who know the law are learned. Although, there is a legal statement often credited to Lord Denning that “God forbid that a lawyer should know all the law”. Therefore, it is not a crime if a Lawyer does not know an aspect of the law. But if a lawyer does not know where to find the law, his legal competence would surely be in doubt.
If a non lawyer like Prof. Ishaq Lakin Akintola could say Nigeria is not a secular state and that Islamic law is a source of law in Nigeria, even if Fani-Kayode was hearing this for the first time, he ought to have conducted his own independent research to actually know the real gist of the issues involved before making this ignorant statement:
“I must however point out that Nigeria is not a muslim or indeed a christian state. She is a secular state and she is governed by secular laws. Religious laws have no place in our land or constitution. Our constitution is a secular document which specifically says that the state shall not adopt any religion. This must remain so if we do not want a divided country and if we do not want continued controversy, strife and possibly even a fully blown religious conflagration and conflict. We should all keep our religious sensitivities out of certain matters if we want continued peace” (expressing what he called his final view on “early marriage” through his facebook page this morning)
MEANING OF THE WORD ‘SECULAR’
We have always say and we wouldn’t stop stressing the fact that Nigeria is not a secular entity. It should rather be referred to as “multi religious society”. A simple dictionary definition answers this question. Secularity suggests a society where religion is not recognized at all. According Merriam Webster’s Dictionary, here are some of the relative words used to define the word ‘secular’; atheistic, godless, irreligious, pagan, blasphemous, impious, irreverent, sacrilegeous etc. Please let us be frank with ourselves, if a non Nigerian uses any of the above enumerated words to describe Nigeria, how would we feel as a Nigerian?
REASONS WHY NIGERIA IS NOT A SECULAR STATE
There are many instances to show that Nigeria do recognize Islam, Christianity, Traditional religions etc. I will just give few examples;
1. The constitution of the Federal Republic of Nigeria states in its preamble;
“We the people of the Federal Republic of Nigeria; Having firmly and solemnly resolved: To live in unity and harmony as one indivisible and indissoluble sovereign Nation under GOD dedicated to the promotion of inter-African solidarity, world peace, international coorperation and understanding…”
From the above quote, it is clear that our constitution in Nigeria says the nation is under “God” and Fani-Kayode still had the audacity to call it a secular constitution.
For Nigeria to be considered a secular state, the non-Muslims want it to become, this preamble of the constitution must be amended. In as much as the constitution says the nation is under God, it would be irrational for anyone to think Nigeria is a secular state.
2. The existence of the National Hajj Commission, its Christian counterpart and yearly sponsorship of Pilgrims to Saudi Arabia and Israel is also an indication that Nigeria vividly recognize Islam and Christianity. Intact, the traditionalists are still fighting for their own right to pilgrimage too.
3. In government programmes (Federal or State), it has become a convention that a Priest opens the event with prayers and an Imam gives the closing prayers, or vice versa. With this, can we still say Nigeria is secular in nature. No!
Apart from this, every state memorable events like Independent Anniversary, Democracy Day, Military Remembrance Day etc are always preceded by special Juma’at Service and Church Services.
4. It is also clear from every inference that the National Mosque and the National Christian Center in Abuja enjoy certain level of supervision by the Federal Government of Nigeria. If Nigeria is indeed a secular state, what does it have to do with religious institutions.
5. It is a common practice now in Nigeria that when the President is a Muslim, the Vice President must be a Christian. Similarly, in all states of the Federation where Muslims or Christians dominate as the case may be, it has become a convention that the Governors and their deputies are adherents of the same religion. (Abia, Rivers, Imo, Kano, Katsina, Sokoto, Ekiti, Ondo etc) Whereas, in state where Muslims and Christians are relatively close in population, the position of authority are often shared between the adherents of the two major religions (eg. Taraba, Lagos, Kwara, Kogi, ‘Kaduna etc)
6. The recent criminalization of lesbian and gay marriage by the National Assembly is a clear indication that Nigeria is not a godless or atheistic society. Nigeria is far away from being a secular state. Although, the Legislators in banning homosexuality in Nigeria gave a number of cultural and traditional motives, the truth of the matter is that their decision was greatly influenced by the religious nature of the Nigerian people. The two main religious groups in Nigeria condemn homosexuality outrightly. Nigeria as nation does not have a unified custom in order to prove that the criminalization of homosexuality was trully customarily based. Nigeria has over 750 diversed customs traditions. The most glaring effect in this instance is that all the members of the legislature are either Muslims or Christians and their faiths had great influence in what became the law on homosexuality in Nigeria today.
7. The second stanza of the Nigerian National Anthem starts with prayers to God “O God of creation…”. In the same vein, our National Pledge ends with “So help me God”. So, what suggests secularity in this?
These are just few examples I can mention for now. There are many other examples that lend credence to the fact that Nigeria is neither a secular state in the real sense of it, nor is it on the face of the constitution of the Federal Republic. There is no single word in the constitution that suggests secularism in the state of Nigeria.
DOES SECTION 10 OF THE CONSTITUTION SUGGEST SECULARISM?
It is true that section 10 of the 1999 CFRN (as amended) provides that;
“The Government of the Federation and of a State shall not adopt any religion as a State religion”
However, by every sense of interpretation, this does not connote secularism. The intention of those who drafted the constitution may be that the governments in Nigeria (federal or state) should not recognize any religion. But the glaring truth is that Nigerians are naturally religious people and no government in Nigeria can successfully close its eye on this fundamental feature of the Nigerian people. Religion has greatly shaped the activities of governments in Nigeria over the years.
Even a nation like the United States of America may not be said to be a secular state stricto-senso because it directly or indirectly supports the cause of certain religions over another. The American State has not only shown its hatred for the Muslim world, it has bombarded several Muslim nations over the years and promoted the Jewish cause and cultism. The only thing is that the degree to which the government of the United States stress religion is minimal compared to our own case in Nigeria.
LAWYERS POOR KNOWLEDGE ON THE STATUS OF ISLAMIC LAW IN NIGERIA
My personal experience shows that more than 90% of aspirants to the Nigerian Bar, especially those trained abroad (Bar I) do not know the status of Islamic law in the Nigerian Legal System until they reach the Nigerian Law School. It is either that some non-Muslim University lecturers hide this fact from their students, or that the students were not inquisitive enough. The glaring fact is that Mr. A. O Obilade in his popular work on “The Nigerian Legal System”, pg 5 (1979) explained the position of Islamic law in Nigeria thoroughly, albeit from a customary perspective. Even students who had sound Diploma training in law know this very well.
Any graduate of law from the prestigious University of Ilorin would also agree that Dr. AbdulMumin A. Oba equally did a good in making his students (Muslims and non-Muslims) realize the true nature of the Nigerian Legal System vis a vis the position Islamic law in Nigeria.
This is the reason why one finds it very astonishing to still find out that some lawyers still think Nigerian Muslims do not have the right to practice the shari’ah. The concept of secularism is often pleaded by the non-Muslims to fault the Muslims’ power to practice their religion properly in their fatherland despite clear provisions of section 38(1) of the constitution. The section provides and I quote:
“Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief and freedom (either alone or in a community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance”
Going by this constitutional provision, is it not apparent enough to know that Muslims have the right to practice the shari’ah in Nigeria? As noted by Pro. Auwalu Hamisu Yadudu of Bayero University, Kano in his paper titled ‘Legal Pluralism in a Multi-Religious Society: A Nigerian Case Study’, it is embarrassing when lawyers of several years at the bar condemns the practice of Islamic law on the ground that Nigeria is a secular state. While some of them are suffering from religious sentiments, bias and bigotry, others are ignorant of the real position of the law.
Apart from section 38 that provides for Freedom of Religion, section 42 also provides for right not to be discriminated against. This connotes that there should be no discrimination by reason of sex, religion or political opinion. It means Muslims are free to practice their religion so far as it does not affect the rights of other non-Muslim citizens as provided under section 45(1).
Pipping through the pages of the constitution, the words like ‘God’, ‘religion’, ‘Islamic law’, ‘shari’ah’, ‘kadi’, ‘muslim’, etc are contained therein, but the word ‘secular’ cannot be found. So, who is fooling who?
As a matter of fact, the shari’ah is the total way of life of the Muslims which cannot be taken away. The Muslims cannot do without the shari’ah and the continuous attempts by the non-Muslims to obstruct the inalienable rights of the Muslims in this regard is dangerous to the unity of this country.
ISLAMIC LAW BEING AN INTEGRAL PART OF THE NIGERIAN LEGAL SYSTEM
The shari’ah as it is interchangiably used to mean Islamic law is not new in Nigeria. It precedes the arrival of common law and the eventual independence of Nigeria on 1st October, 1960. Ever before the advent of the colonialists, there are clear evidences to show that the shari’ah was practiced in the old Kenem-Bornu empire, Hausaland, Sokoto Caliphate and Yorubaland. The shari’ah had been deeply rooted in the Kenem-Bornu as far back as the 11th Century. With Sheikh Uthman Bin Fodio is successful jihad against the Alkalawa and Gobirawa citadel of power in 1808 CE and the subsequent fall of other pagan Hausa states, the shari’ah became the grundorm under the popular Sokoto Caliphate. (See A A. Gwandu, Aspects of the Administration of Justice in the Sokoto Caliphate and Sheikh Abdullahi Ibn Fodio’s Contributions to it’, pg 12)
The shari’ah was also applied in Ibadan, Iwo, Ilorin, Epe and Ede. In all these areas, both the civil and penal aspects of the shari’ah were applied unfetered.
When the imperialist came, they did not only aim at converting the predominant Northern Muslims to Christianity, they were determined to impose their own laws on them. Their mission was largely successful in the Southern Nigeria where Christians are now in the majority. The Bristish colonial masters imposed all aspects of their laws on the Southern people. But in the Northern region, they were only able to confine the application of the shari’ah to personal matters. And uptil today, what remains in the constitution are matters of Islamic personal status. The criminal aspects of the shari’ah had been truncated by the activities of the colinialists and replaced with their own criminal laws. However, in 1999 former Governor Ahmed Sani Yerima pioneered full implementation of Islamic law in Zamfara state. Some other Northern States like Kano, Sokoto, Katsina, Bauchi etc followed suit. The main problem associated with this development was that all criminal cases decided by states criminal courts were reversed on appeal.
Basically, the Nigerian Legal System is divided into two (2) main segments ; i. The Received English Law and ii
The Customary Law. Under the Customary Law, we have; i. Indegenous Customary law and ii.
The Received English Law which now forms the large aspects of our laws in Nigeria consists of the i. Common Law, ii. Doctrine of Equity and iii. Statutes of General Application. It was be noted that the statute of general application are now only applicable in Nigeria if the local circumstances permits
Our focus is on the Customary law under which the shari’ah was placed. The indegenous customary law consists of the customs and traditions of Nigerians before the arrival of the colonialists. Those customary laws are still applicable in Nigeria in as much as they are not repugnant to the principles of natural justice equity and good conscience. Also, for a custom to be applicable in Nigeria, it must not be incompatible with a written law for the time being in force or contrary to public policy.
In the case of Islamic law, it has been strongly argued that the shari’ah should not have been placed under customary law. The reason is that the shari’ah has not passed any of the characteristical tests of customary law. Unlike the indigenous customary law, Islamic law is written, comprehensive, divine and highly organized in nature. Islamic law is written and documented in the provisions of the Quran, Sunnah and Books of reputable scholars
The indegenous customary law which is the organic law of a specific group of people and differs from one place to another is defined as a mirror of acceptable usage in the case of Owonyin v. Omotosho (1961) 1 All NLR 304 at p. 309.
In case of Islamic, it is divine. The provisions of the Quran and Sunnah were revealed by the Law Giver through Prophet Muhammad, sollaLohu alaihi wasallam to guide the affairs of the entire mankinds in order to attain salvation in this world and the hereafter.
The shari’ah was only equated to customary law because of the influence of Islamic law on the culture and tradition of the Northern predominant Muslims. But in the true sense of it, the shari’ah is not a customary law. Its provisions is applicable to Muslims all over the world regardless of their races, colours, language, sex etc. See (Q49: 13)
From the foregoing, I have been able to establish the fact that the constitution of the Federal Republic of Nigeria is not secular in nature. The constitution recognizes the complexity of the nation’s polity and its multi-religious nature. It has also been satisfactorily argued that Mr. Fani-Kayode’s claim that Nigeria is a secular state lack basis in the real sense of it and as far as the constitution is concerned.
The shari’ah is an integral part of the Nigerian Legal System and Nigerian Muslims must be allowed to practice their religion to the best of their ability. The kind of protests and unnecessary debates the Muslims often face from the non-Muslims when any part of the shari’ah is mentioned are unacceptable. Like I advocated at a conference of young lawyers last year in Abuja, instead of the non-Muslims’ continuous antagonism, they can collate the body of laws contained in their Books so that we can have a parallel legal system in which the various religious groups would follow and apply what they have in Books.