Amending Islamic personal law: Issues and alternatives

The recent uproar in the National Assembly regarding Islamising Nigeria was unnecessary and unwarranted. The drama was centred around the lawmaker who proposed rephrasing Islamic personal law to Islamic law in the constitution. Instead of focusing on addressing the critical issues affecting our country, the members of the House of Representatives spend considerable time showcasing […]

The recent uproar in the National Assembly regarding Islamising Nigeria was unnecessary and unwarranted. The drama was centred around the lawmaker who proposed rephrasing Islamic personal law to Islamic law in the constitution. Instead of focusing on addressing the critical issues affecting our country, the members of the House of Representatives spend considerable time showcasing their ethnic supremacy and intolerance towards one another. The whole drama was avoidable and unacceptable.

This proposal to amend the constitution arose from the pressure for individual legislators to sponsor a bill—a way to measure their performance. The obsession with sponsoring bills is now at the mercy of Goodhart’s Law: “When a measure becomes a target, it ceases to be a useful measure.”

These legislators—both supporters and opponents of a bill—are now using the process to manipulate the measure to score cheap political points. All they care about is to have the record that they have sponsored a bill regardless of its relevance or positive contribution to the country.

Sponsoring a bill should be for the greater good of political parties, citizens and the country. Instead, we have a proposal triggering the anxiety of the Islamophobes and those peddling the conspiracy theory of Islamising Nigeria. Many people know little about the proposal, but hearing an amendment to Islamic law alone is an issue for an intolerant, divided country.

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Nigeria is a multi-religious country according to its constitution. Section 10 clearly specifies that “the Government of the Federation or of a State shall not adopt any religion as State Religion.” Similarly, under Section 38, the constitution guarantees citizens the freedom to hold, practice, change and propagate religion while protecting individuals from being forced into religious teachings or any activity. To be clear, the legislator is not looking to amend section 10 or section 38.

For the record, the constitutional amendment cannot happen unilaterally. Section 9 stipulates a two-thirds majority approval in the Senate and House of Representatives. Once passed at the federal level, the amendment must also receive approval from at least two-thirds of the 36 State Houses of Assembly. The constitution mandates an even higher threshold for particular provisions, requiring a four-fifths majority in both federal houses. This means that if more than 12 state assemblies do not agree with this amendment or any proposal, it cannot be passed. So, I wonder why the legislators were engaging in unnecessary drama in the House if they were aware of this.

Looking at the proposal, the lawmaker proposes amending 17 places where personal law is mentioned, including sections 262, 277, and 288. These are all under Chapter VII of the rulebook. Chapter VII, The Judicature, outlines the structure, functions, and powers of the judiciary in Nigeria.

Sections 262 and 277 grant Sharia Courts of Appeal jurisdiction over Islamic personal law in the FCT and states. It covers matters like marriage and inheritance for Muslims. Section 288 outlines procedures for appointing justices to higher courts, including the Supreme Court and Court of Appeal.

Note that Nigeria’s Sharia Courts only deal with matters of Islamic personal law and do not apply to non-Muslims unless they submit to its jurisdiction in certain cases.

I understand the advocacy for equal representation and the provision of a legal framework for Muslims to conduct their activities according to Islamic customs without interfering with the activities of non-Muslims.

Given the primary responsibility of the government is to design a legal framework for activities to occur, a multi-religious country like Nigeria must devise ways to treat its citizens equally based on what they want. Muslims may wish to go to Sharia courts in some instances. After all, the purpose of a court is to administer justice by resolving disputes, interpreting the law, protecting rights, and safeguarding the rule of law. This already exists in the constitution, and Muslims are not complaining.

So, expanding the current Sharia Courts’ jurisdiction beyond Islamic personal laws can only raise concerns about a system that is not broken. As a multi-religious state, expanding the Sharia Courts’ jurisdiction beyond personal law will infringe on the rights of non-Muslims. It can also challenge the secular nature of the Nigerian state, which guarantees freedom of religion and equality under the law for all citizens.

Similarly, the Nigerian legal system is built on a combination of common law and customary law, with Sharia courts deciding personal matters for Muslims. Expanding Sharia jurisdiction into criminal or civil law will generate a conflict with our existing legal framework, something the lawmakers sponsoring the amendment failed to anticipate. The amendment will create potential legal confusion and contradictions between different court systems in the country.

If the sponsors of this amendment had consulted the architects of the 1999 constitution, they would have understood why Sharia Courts were restricted to Islamic personal laws. It was mainly designed to maintain the commitment to treat all citizens, regardless of religion, equally under the law.

Common sense would have told them Islamic Banks would not have been subjected to Sharia courts even if the amendments were done because, as a public company, they have non-Muslim shareholders, and they can oppose going there.

Listening to the lawmaker’s rationale makes one suspect they did not do their due diligence before presenting the amendment. He specifically said he wants sharia courts for Islamic commercial laws, Islamic company laws, and Islamic international law to have a place in the constitution. Including such things in the constitution will call for erratic amendments as we adopt new global technologies and innovations.

Besides, they only need to look at the financial sector Acts to understand that Islamic commercial laws are well-covered in a contemporary manner. The CBN has issued specific guidelines on non-interest banking, which provide the operational framework for Islamic banks. These guidelines cover establishing, licensing, and operating non-interest financial institutions in compliance with Islamic law.

The principal legislation governing all banking activities in Nigeria, the Banks and Other Financial Institutions Act (BOFIA) of 2020, includes non-interest (Islamic) banking. Under BOFIA, banks are allowed to offer non-interest financial services. It provides the legal basis for Islamic banking to operate within the Nigerian financial system.

Also, the Financial System Strategy (FSS 2020) supports the inclusion of Islamic finance as part of Nigeria’s broader financial development plan, promoting a diverse financial system to cater to the different needs of its population. These Acts benefit Muslim citizens and are quicker to amend than the Constitution whenever needed.

As many agree, the drama at the National Assembly was avoidable. Instead of pushing lawmakers to score cheap political points by sponsoring a bill, we can measure their performances based on the bills they have voted for. Records should be kept for every bill a legislative member votes for, and his constituents can judge them when the time comes. This is what advanced democracies do, too.