An Assessment Of Islamic Law As Customary Law Viz A Viz The Supreme Court Ruling In Alkamawa V Bello And Anor

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An Assessment Of Islamic Law As Customary Law Viz A Viz The Supreme Court Ruling In Alkamawa V Bello And Anor


Abstract


In recent times there has been a renaissance of the Islamic heritage in the consciousness of the adherents of the Islamic faith and this has sought expression in their quest to conduct their affairs in accordance with Islamic injunctions. This has become noticeable in areas where Islam is the predominant religion in northern Nigeria. In the past decade, there has been a renewed focus on the Islamic law system, with twelve(12) of the nations thirty six states adopting it in public proclamations. The focal point of this research is a critical assessment of the likening of Islamic law to customary law in relation to the case in focus- Alkamawa v Bello &anorand with a unanimous voice, the Supreme court in its full Constitution categorically and clearly brought to rest the point that Islamic law is not in similitude with customary law. Its uniqueness and distinction from customary law was succinctly enunciated on the account of the fact that it has no particularity with any tribe.

It is more universal than tribal. And as though intensive and extensive x-ray was made clear. With no few instances, this research examines various reasons why Islamic law cannot be fairly and squarely regarded as customary law. The methodology of this work is a critical analysis of the subject and mode of collecting data for the richness and accuracy of this work is built within statutes, case laws, textbooks, articles, internet researches etc. In furtherance, and on a note of finality, conclusions and recommendations were made to the effect that the fact that other religions are not freely at operation in the country, therefore, the wings of Islamic law and its accompanying operations in the northern region of Nigeria should be clipped.


Chapter One


General Introduction

1.1 Background of Study

The association of Islamic law as customary law has engendered a controversy, and the crux of the controversy is to ascertain whether Islamic law which is the central focus of the Islamic religion in northern Nigeria can be safely settled to be customary law, which is the law of other parts of the country.

To critically evaluate the situation, mention and analysis of the case of Alkamawa v Bello will be submitted at the floor of examination, in which the supreme-court held that Islamic law is not customary law.

Worthy of note is that before judicial voices announced the decision in that case, Islamic law was likened to customary law as jurists regarded it as ‘received customary law’, with a similar colouration as ‘native law and custom’.

It reasonably is understandable why the Supreme court’s decision in the abovementioned case is in conflict with the acceptance of Islamic law as customary law.

One could say retaining Islamic law still as part of our legal system is somewhat questionable, on account of the fact that Islamic law is so to speak a religious law which relates to personal issues. Now, extending its reach beyond the borders of criminal and civil matters, sounds the gong of attention at its highest decibel. There has been back and forth criticism in associating Islamic law with our legal system with regards to the disparity between Islamic law and regular laws pursuant to section 10 and section 38 of the 1999 constitution of the federal republic of Nigeria.


1.2 Statement of Problem

Fairly and squarely, the challenge this work x-rays is to expose Islamic law as more of a religious law, and to trace its root to our legal system. And if that be the case, a rhetorical question is attendant: will it be rationale to allow religious inclinations dictate the laws.


1.3 Purpose of Study

The purpose of this work is to show the rationale behind the court’s decision in the case of Alkamawa v Bello and enlighten readers with the nature and meaning of customary law, as distinct from Islamic law.


1.4 Scope of Study

The scope of study of this work cuts across customary law, Islamic law and the distinct approaches to them both. An argument in a bid to understand the line of distinction between customary law and Islamic law. It progressively delves into scholarly viewpoints on different schools of thought debating Islamic law as customary law.


1.5 Significance of Study

The essence and significance of this study is to place on the floor of examination the borderline between Islamic law and customary law, and an analysis of their true nature. The postions of different jurists engage the discussion in this work.


1.6 Methodology

To an appreciable comprehension and acceptance of this research work, a critical and analytical research approach is adopted. Critical evaluation of case laws is well in order in analyzing the legal nature of Islamic law. The constitution, case laws also support statutes as primary sources that form the methodology of this work.

Furthermore, textbooks, journals, articles, reports, internet information constitute aids to this work. A list of scholastic and judicial inputs also will form the content of this work.


1.7 Definition of Terms

Briefly, the necessity of defining some terms is relevant here.

1.7.1 Customary Law

Custom which forms the bedrock of every customary law is a type of way of behavior, which has been long established among members of a social group capable of obtaining the force of law.

By virtue of Sec 258(1) Evidence Act, Custom is defined as a rule which, in a particular district has from long usage obtained the force of law.

From a judicial angle, the Supreme Court per Obaseki submitted in Oyewunmi v Ogunesan thus:

‘Customary law is the organic law of the indigenous people of Nigeria regulating their live transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it. Generally, customary law which is a mirror of accepted usage is law relating to the custom and tradition of a people.’

1.7.2 Islamic Law

Islamic law is the law practised by the Moslems and which is as interpreted by the Quran and other Islamic books, which is alternatively referred to as Sharia law.

Jurisprudents of Islam have cushioned a definition for the concept, and it is defined as the highway of righteous life leading to God or the totality of divine commands to man. It also includes principles, morals, and the mantra to which every moslem must subscribe to.

1.7.3 Right of Preemption (Shufa)

The right of preemption, is a contractual right to acquire certain property newly coming into existence before it can be offered to any other person or entity.Also called a “first option to buy. It comes from the Latin verb emo, emere, emi, emptum, to buy or purchase, plus the inseparable preposition pre, before.

It is that right which the owner of a certain immoveable property possesses as such for the quiet enjoyment of that said property, to obtain in the substitution for the buyer proprietary possession of certain other immoveable property not his own, on such terms as those on which such latter immoveable property is sold to another person, and being a personal right remains neither transferrable or heritable.


Chapter Five


Conclusion and Recommendation

5.1 Conclusion

Reviewing the progressive drive this research has covered, a full length of knowledge can be measured on the Assessment of Islamic law as Customary Law in relation to the Supreme Court ruling in Alkamawa v Bello .

Without any shadow of doubt, it can be safely embraced that Islamic Law is not Customary Law. This can be agreed with by juxtaposing the differences between Islamic Law and Customary Law. Just like salvation, the decision of the Supreme Court per WaliJ.S.C in Alkamawa v Bello which states that Islamic Law is not the same as Customary Law as it does not belong to any particular tribe has appeared to us. It is a complete system of universal law, more certain and permanent and more universal than the English Common Law. Exposure has also been given to the fact that Islamic law with its characteristics and nature is a religious law and like other religious laws should not have a sit of operation in our legal system because it negates the import of section 10 of the 1999 Constitution of the Federal Republic of Nigeria which provides for state secularity. However, Islamic Law has been recognized by our Constitution and the extent to which it should be applied has been provided for in section 262 . So, the establishment of Sharia legal system with jurisdiction in both civil and criminal matters is legally and constitutionally wrong. The secularity of Nigeria makes it questionable for Sharia to be operated.


5.2 Recommendation

With personal acceptance, I tilt towards the ruling in Alkamawa v Bello . The decision should be followed and Islamic Law should no longer be regarded as Customary Law. Islamic law is a religious law which should not be found in our legal system nor recognized by our Constitution. However, since it is prevailing, there should be a reformation of Islamic law to be in consonance with the times and seasons we live in. Societal desires engendered Sharia Law at the time, and as such nothing prevents the modern day Islam from restructuring it to meet the dynamism of the moment.

The Sharia legal system which has been adopted by the Northern States is treading on an unconstitutional ground. It is an abuse of power granted to the State House of Assembly under section 4(7) and 6(4) (5) of the 1999 Constitution and should abide by the constitution and should therefore restrict it to civil obligations only.


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