By Onikepo Brathwaite

“First they came for the Socialists, and I did not speak out – Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out – Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out – Because I was not a Jew.

Then they came for me – and there was no one left to speak for me.” Martin Niemöller, 1946

This poem by Martin Niemöller, pretty much embodies the attitude of Nigerians to many things – we feel totally unconcerned about things which do not affect us directly, oblivious of the fact that one day, we too could be faced with a similar situation. “Boko Haram is in the North East, far away from me in Benin or Lagos, so it doesn’t concern me whether the military annihilates the insurgents or not; Maiduguri is also thousands of kilometres away from Owerri”. By the time insecurity gradually spread all over the country in different forms – whether by kidnapping, herdsmen crisis or otherwise, everyone suddenly felt concerned about insecurity. As far as religion is concerned, “they are operating Sharia law in the Northern States, I’m in Abeokuta, it doesn’t concern me”. But, it does! Because, gradually this is how it starts, and then it spreads like wild fire. When you give the enemy an inch (in the context of this discussion, by enemy, I mean those who disobey the Constitution), he not only takes a yard, he takes uncountable miles. After all, there are plenty of Muslim faithfuls in the South West (both Northerners and Southerners), even in Edo State. Spurred on by the declaration of Sharia law by Zamfara State in 1999, in the early 2000s, there was a push for the establishment of Sharia Courts in Lagos. And, in 2002, a private arbitration panel, the Independent Sharia Panel of Lagos State (ISP) was established for Muslims to take their disputes to, for adjudication (there’s nothing wrong with that, as long as it is lawful).

The moral of Martin Niemöller’s poem, is that we should be our brother’s keeper and love our neighbours as ourselves; therefore, we must speak out, even if the injustice is not done to us directly, so that those who are directly affected are not consumed by the injustice; and in the event that injustice finally reaches us, there will still be others left to speak out and support us. I would go a step further to add that, we must also take into consideration our neighbours when we make certain decisions. It seems that Kano State Government/Kano State Hisbah Board (KSHB) has not taken the non-Muslims in Kano and their fundamental rights into consideration, nor the constitutional provisions, in issuing some of its directives.

1999 Constitution: The Grundnorm

The 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) is the supreme law of our country, and is binding on all persons and authorities in Nigeria, including the KSHB (Section 1(1)). Furthermore, any other law that is inconsistent with this grundnorm, is void to the extent of its inconsistency (Section 1(3)). See AGF v Abubakar 2007 8 N.W.L.R. Part 1035 Page 117. I submit that, several of the KSHB and Sharia Court actions are inconsistent with the Constitution, and therefore, null and void ab initio. For example, sentencing Yusuf Sharif Aminu to death for blasphemy, when the Sharia court doesn’t have criminal jurisdiction in the first place (and the Holy Quran does not even prescribe the death penalty for blasphemy).

Section 6(6)(b) of the Constitution confers jurisdiction on the courts to determine all matters (except those excluded by Section 6(6)(c)). It is the duty of the courts to interpret the Constitution when called upon to do so, and to rule against any law that conflicts with the Constitution. Also see AG Ondo State v AGF 2002 9 N.W.L.R. Part 772 Page 222; Balonwu v Governor, Anambra State S.C.233/2008 2009 18 N.W.L.R. Part 1172 Page 13 at 39-40. I think the time has come for Constitutional Law gurus and Human Rights Activists to proceed to court to seek the interpretation of Sections 10, 38(1),(2) & (3), 262(1) & (2)(a)-(e), and 277(1) & (2)(a)-(e) of the Constitution once and for all, and for the courts to fulfil their constitutional mandate of nullifying the laws, directives and actions which conflict with the grundnorm, before the issue of religion becomes an additional catalyst that divides us as a country completely.

As far as I’m concerned, the constitutional provisions in respect of the jurisdiction of the courts are crystal clear and unambiguous. But, since controversies have arisen with the observance of the Constitution in its breach, especially on the issue of Sharia law and the extent of its jurisdiction, questions like whether Sections 262, 277, 282 of Constitution endow Sharia and Customary Courts with criminal jurisdiction, must be answered. I have searched the Constitution high and low, and I have failed to find any provision in this document which confers Sharia and Customary Courts with criminal jurisdiction; because they simply are not vested with criminal jurisdiction. My dear colleagues, I stand to be corrected.

‘One Nigeria’

This is my country, Nigeria, and I firmly believe in ‘One Nigeria’ on the basis of respect for fundamental rights and the rule of law, equity, equality, equal opportunity and justice. I do not want to wake up one day, and become the last victim in Martin Niemöller’s poem. So, forgive me for being tiresome or repetitive or sounding like a broken record, but, I must be brutally honest when I say this issue of religion in Nigeria seems to be escalating, and if Government is not willing to put a stop to the illegality, we, the people should speak out and insist that it is unacceptable for religion to be anywhere other than where the Constitution, the grundnorm, allows it to be; if not, the consequences of non-adherence may be grave for us all. Religious disagreements and intolerance, can end up destroying any entity. And in a multi-ethnic, multi-religious country like ours, it is dangerous for Government to allow any one religion to take precedence over others when the Constitution donates no such rights, and maintains that neither our nation or any State is permitted to adopt a National or State religion.

A State religion, is simply a religion that is endorsed or favoured by the State. I need not bother to state the obvious – that the Northern States that are implementing Sharia law have endorsed Islam, and favoured this faith over and above all others. Here lies the issue – Islamic law does not separate State from religion, and that is why it can only be workable in a country where everyone is of the Muslim faith and there is a ‘consensus ad idem’ (meeting of the minds).

Customary Law and Islamic Law are different. It was the British by virtue of Section 2 of Native Courts Ordinance of 1914, that grouped Islamic law as Native law and custom. In Alkamawa v Hassan Bello & Anor 1998 6 SCNJ 127 the Supreme Court held that “Islamic law is not the same as Customary law, as it does not belong to any particular tribe. While Customary law differs from tribe to tribe, community to community, Islamic law has a more unified system”. Customary law is not uniform, it is flexible and elastic, derived from the usages of a particular people. Islamic law is religious law. It does not change. It is based on the teachings of the Holy Quran and the Hadith.

KANO STATE HISBAH BOARD

When it comes to some of the activities of the KSHB, you see that because there is no separation between the State and religion in the Muslim faith, the KSHB is trying to apply Sharia law to most facets of their lives seeing as Islam is a way of life. But, some of the activities of the KSHB are clearly unconstitutional, and we must speak out against them – first, as Nigerians, whether Muslim or Christian; second, as Lawyers, who in order to qualify to become legal practitioners, were all students of Nigerian Constitutional law at one time or the other, and are therefore, familiar with Section 10 of our Constitution which prohibits Nigeria or any State herein from adopting a National or State religion. The drafters of the Constitution, were wise enough to realise that adopting any religion, whether State or National, would not only be problematic, but result in the fundamental rights of citizens being breached, especially those who do not belong to whichever faith is adopted. They went a step further to include Section 42 in the Constitution, which prohibits discrimination against any person on the basis of religion.

Recently, the KSHB banned the use of mannequins “to display clothes by tailors, supermarkets and boutique owners”, in shops and even private homes in the State, on the ground that it violates Islamic provisions and could be a fertile ground for breeding immoral thoughts. Aside from the fact that Section 37 of the Constitution guarantees the privacy of citizens, their homes, correspondence, telephone and telegraphic communication, therefore, making it unconstitutional for Hisbah to decide that people cannot have mannequins in their homes, such pronouncement runs foul of Sections 16 and 41 of the Constitution, as such directive will impact negatively on the clothes selling business in Kano; and with the draconian directives that are being given these days, Southerners and non-Muslims who enjoy freedom of movement and have made their homes in Kano and other Sharia States through several generations, may be constrained to leave for more conducive environments, seeing as their fundamental rights are being infringed upon, more and more.

I have relatives who live in Kano; octogenarians, Christians, who have lived in Kano for over 50 years. That is their home. As the Hisbah directives get more and more stringent, there is pressure from family members for them to relocate down South. Are they expected to leave their life long home in Kano, and head to unfamiliar places like Lagos or Ibadan to start a new life at this age? What of the clothes sellers in Kano, whose businesses have been truncated with the clamp down on cosmopolitan wears which they sell, and now the ban on mannequins which is the tool used worldwide to advertise clothes for sale? What about those that are arrested on the streets by Hisbah for non-compliant haircuts, hairstyles and dressing?

CONCLUSION

The bottom line is that, just as true Federalism is possibly the most appropriate system for a heterogeneous country like Nigeria as opposed to the Unitary system which we are running, so also political secularism (“separation of State from religious institutions”) is the best system to adopt in a multi-religious society like ours. That does not preclude anybody, from practicing his or her religion. In fact, that is the spirit and purport of Section 38 of the Constitution – that every person is entitled to freedom of thought, conscience and religion (as long as it is lawful), and to propagate same in worship, teaching, practice and observance.

Tribalism destroyed Rwanda in the 1990s. The incessant conflict between the Israelis and Palestinians, apart from being political and territorial, is religious. By the time the other Sharia States decide to follow Kano and implement these directives, more non-Muslims and Southerners may be forced to relocate down South. If this happens, this may in turn, make the cries for secession louder. We should learn from the mistakes of others, instead of taking active steps towards a path, which we have observed from their own experiences, will only lead to destruction.