The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com
Heritage Foundation Dialogue
Last Wednesday, I attended an event tagged “Nigeria’s Moment: A Transatlantic Strategic Partnership Dialogue”, organised by the Heritage Foundation (driven by Mr Ayo Otuyalo and Mr James Carafano) in partnership with the American Business Council in Nigeria. I suppose part of the objective of the Dialogue, was to find a way to foster a deeper relationship between Nigeria and the United States of America, whether on a Government level in the area of security, supply of military equipment, training and the like, or in the area of commerce, attracting FDI and partnering with American entities. The Governor of Lagos State, Mr Babajide Sanwo-Olu; former Governor of Ekiti State and former Minister of Solid Minerals, Dr Kayode Fayemi, a few serving Ministers and other eminent Speakers and Panelists, both local and foreign, contributed to the Dialogue.
There were six addresses with accompanying panel sessions. The first session was “Why Nigeria is a Must-Have Partner in the New World Order”, and right from that session to the last, it was revealed that Nigeria is a must-have partner because she’s practically paradise on earth, in terms of her endowments ranging from hydrocarbons, to gem stones, base and precious metals, to extremely generous commercial quantities of mineral and rare earth mineral deposits of at least half of 60 very much globally sought out minerals, to arable land, a young population, to even the strategic physical location of Nigeria herself, amongst many other things.
Legal Matters Arising
1) Critical Minerals
What obviously interested me the most, were some of the legal issues that arose from the sessions. For instance, during the third session which centred on critical minerals, the issue of Section 44 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) which vests all minerals in Nigeria in the Government of the Federation, while Section 1 of the Land Use Act 1978 (LUA) vests land within the States in the Governors to hold in trust for the people (also see Item 39 of the Exclusive Legislative List of the Constitution and Section 1(1) of the Nigerian Minerals and Mining Act 2007 (NMMA)). Aside from the fact that this constitutional/statutory arrangement defies two common law principles of “Quic quid plantatur solo solo cedit” (“what attaches to the land belongs to the land”) and “Cuius est solum, cius est usque ad coelum et ad inferus” (“whose is the soil, his it is all the way to heaven and to those below”), in terms of the ease of doing business, this multi-layered approach of Federal and State requirements, makes access to mineral deposit sites not just somewhat convoluted and cumbersome, but ends up resulting in hardship of doing business, rather than ease! The issue of the ownership of minerals vis-à-vis resource control and devolution of powers has been debated for decades, yet, nothing tangible appears to have resulted from these debates so far. Having a better constitutional/legal framework in this regard, may help to attract FDI, from America and other countries.
2) Insecurity and Religion
Another takeaway from the event is that, without security, an independent Judiciary that metes out justice swiftly and fairly, and a country that has the highest regard for rule of law coupled with a low tolerance for corruption, it may be difficult to reach the Promised Land, either in partnership with Americans or any other serious foreign investors who come from a background where such ideals are cherished and practised, especially because without security, it would be difficult to harness Nigeria’s natural resources, particularly in areas endowed with resources which may be constantly under attack.
In Nigeria, insecurity and religion are intertwined. Luckily, the Panel that I moderated was themed “Security, Religious & Cultural Freedom, and Mobility”. The Chairman of the Panel was Congresswoman Vicky Hartzler from Missouri, USA. She gave the address for our session. Panel members were Ambassador Dupe Irele; Olufunke Amos; Pastor Paul Adefarasin and Senator Yar’Adua.
Let me start by saying that, Section 38(1) of the Constitution provides for freedom of thought, religion and conscience, and it allows Nigerians to propagate their various religions. I mentioned at the beginning of our session, that I come from a Section 38(1) home, where my late Father, High Chief Omowale Kuye, OFR, was a staunch Muslim and my Mother, Dame Priscilla Kuye, is a holder of one of the highest Papal decorations and honours by the Catholic Church, Pro Ecclesia et Pontifice. I gave that introduction to show that, I have absolutely nothing against Islam, though I do have a lot against those Clerics who deliver false, inflammatory, nonsensical teachings that aren’t in any Holy Book, and incite the people against themselves.
Some home truths must be told.
It is doubtful that insecurity would have escalated to the magnitude that it has, if the Federal Government and Legislature at the time, had been firm about upholding Section 10 of the Constitution, which provides that neither Nigeria as a nation, nor any State within Nigeria, shall adopt a State religion. See Ugwu v Ararume 2007 12 N.W.L.R. Part 1048 per Niki Tobi, JSC on the word ‘shall’ being a form of command or mandate in a statutory provision. In 1999, a few months after the inception of the Fourth Republic, then Governor of Zamfara State, Ahmed Yerima, adopted Sharia in his State. The then Attorney-General of the Federation (AGF) didn’t go to the Supreme Court to stop Yerima; and thereafter, 11 other Northern States followed suit. Since then, no AGF has bothered to take up this constitutional breach. This unconstitutionality, that is, the adoption of Sharia in those States, gave Muslim extremists and those non-believers who perpetuate evil claiming to be Muslim and using Islam as a cover, a platform to further their nefarious activities.
Those 12 Sharia States appear to have gone further to breach the Constitution, by allowing Sharia Courts to exercise criminal jurisdiction. See Sections 262, 267, 277 & 282 of the Constitution, which do not confer criminal jurisdiction on Customary and Sharia Courts of Appeal like Sections 233(2), 241(1), 251, 257 that confer criminal jurisdiction on the other Superior Courts of Record.
For example, Section 244(1) of the Constitution provides that appeals lie from the Sharia Court of Appeal to the Court of Appeal in civil proceedings with respect to Islamic Personal Law, ditto for Customary Courts in Section 245(1). Appeals lie from the State created Sharia and Customary Courts to the Sharia and Customary Courts of Appeal respectively. If the Constitution doesn’t provide for criminal appeals from the Sharia and Customary Courts of Appeal to the Court of Appeal, it follows that there can be no criminal matters at the Sharia or Customary Courts of Appeal, or in the courts below them from where appeals lie to them; that the lower Sharia and Customary courts cannot also be endowed with power to exercise criminal jurisdiction.
A Sharia Court of Appeal would be on the same level as a High Court, and a High Court is certainly not a court of last instance, how then can a Sharia Court of Appeal then be one, assuming without conceding that the lower Sharia Court had criminal jurisdiction which could be appealed to the Sharia Court of Appeal but not beyond, by virtue of Section 244(1) of the Constitution? It is trite law that every sentence of death shall be appealed up to the Supreme Court (see Section 233(2)(d) of the Constitution); this further buttresses the point that a death sentence purportedly handed down by a Sharia or Upper Sharia Court which has no constitutional route to be appealed up to the Supreme Court, just cannot stand.
In contrast, Section 272 of the Constitution, not only gives the High Court of a State original, but appellate criminal jurisdiction, meaning that it is implied that a Magistrate Court from which appeals lie to the High Court, has criminal jurisdiction.
Allowing Sharia Courts to exercise the criminal jurisdiction which constitutionally they do not have the power to exercise, are some of the things that give teeth to the conversation that Nigeria is on its way to being ‘Islamised’ and that Christians here are being persecuted. This is not to say that Christians aren’t being killed in their numbers in Nigeria – they are, and obviously, in some circumstances, it is because of persecution; but, Muslims are also being kidnapped and killed in their numbers too.
After the mass kidnap of the Chibok Girls by Boko Haram in 2014, the first of its kind in Nigeria, by the Islamic sect whose name means ‘Western education is forbidden’, Nigerians became uncomfortable. I made mention during our session that, in 2015, one of the reasons for voting-in President Muhammadu Buhari, GCFR, apart from his stand against corruption, was the hope of Nigerians that, as a former Army General, he would be able to fight insecurity effectively. Alas! This wasn’t to be. Instead, insecurity was left to fester like an untreated wound! Isa Ali Pantami who is considered to be a Muslim extremist because of some of his past utterances, was even appointed as Minister of Communications and Digital Economy under President Buhari – a person who had openly prayed for victory of the Taliban and al-Qaeda; a person who publicly stated: “We are all happy whenever unbelievers are being killed, but the Sharia does not allow us to kill them without a reason”; emotionally referring to Boko Haram fighters as “our Muslim brothers”. With such Ministerial/Government appointments, pray tell, why wouldn’t Nigeria’s reputation as one that is intolerant to Christians increase? Why would Christian foreign investors be interested in doing business with those who are top Government Officials that cannot be bypassed, who contemptuously consider them to be ‘Unbelievers’?
Congresswoman Hartzler made mention of Sharia Blasphemy laws, and mentioned the cases of Deborah Samuel Yakubu and Amaye, both of whom I have written about in the past, and how they were murdered in cold blood by mob justice, as a result of allegations of blasphemy against Islam. Why would any American want to invest in any of the Sharia States, where an angry crowd can easily be set off, descend upon them and kill them, for saying what is perceived to be the wrong thing? Aside from the fact that mob justice is barbaric, perpetrators are usually not brought to justice, even when they can be identified. Recall the case of those who murdered Mrs Bridget Agbahime for alleged blasphemy at Kofar Wambai Market, Kano? They were identified and charged, but despite the damning evidence, the Prosecutor entered a Nolle Prosequi and the Defendants were freed. Mob justice occurs in the South, also condemnable, usually for stealing.
3) Justice and Religion: Yahaya Sharif Aminu
Congresswoman Hartzler also mentioned the case of Yahaya Sharif Aminu, now on appeal to the Supreme Court, a case which I had discussed on this page in 2020. Aminu was sentenced to death by hanging by an Upper Sharia Court in Kano, for allegedly using derogatory expressions against Prophet Muhammad (PBUH) in a song which he circulated on WhatsApp in early 2020. See Madukolu v Nkemdilim 1962 2 SCNLR 341 on the outcome of the proceedings by a court lacking jurisdiction, being null and void and of no effect.
Aside from the fact that the Holy Quran does not prescribe death for blasphemy – see for instance Quran 4:140: “If you hear people denying and ridiculing God’s revelation, do not sit with them unless they start to talk of other things, or else you yourselves will become like them”. This sounds more like an instruction to ignore blasphemers and avoid their company, not kill them.
By virtue of the Section 204 of the Criminal Code Act and 210 & 213 of the Penal Code Act, Insult to Religion/Blasphemy is a misdemeanour that doesn’t attract a punishment of more than two year’s imprisonment or a fine or both, upon conviction. Aminu should have been charged before a Magistrate Court in Kano, for this misdemeanour. The death sentence pronounced upon him by the Kano Upper Sharia Court, is null and void ab intio – see Madukolu v Nkemdilim (Supra). Section 1(1) & (3) of the Constitution is clear that the grundnorm is supreme and binding, and that any law that is inconsistent with it is void to the extent of its inconsistency. Even if the Upper Sharia Court is established by Kano State Law, no Kano State Law can override the Constitution.
Conclusion
Now that Aminu’s case is before the Supreme Court, this is a golden opportunity for the Apex Court not just to nullify Aminu’s sentence, but to make a policy statement based upon the provisions of the Constitution – a pronouncement that the Upper Sharia Court’s decision is null and void and of no effect, because the Sharia Court is established only for Islamic Personal law, and lacks criminal jurisdiction; that State religion-inspired criminal laws are prohibited, particularly as in the case of Islam where the Holy Quran, the foundation of the religion, doesn’t even prescribe the punishment.
The truth is that, a country in which the Judiciary itself doesn’t uphold the rule of law, will not be attractive to responsible, law abiding investors, whether foreign or local.
It is time to stop playing politics with religion, by allowing this unconstitutionality to persist. Recently, I discussed a programme I stumbled upon on News Central discussing the Katsina State Hisbah (Sharia Police) (KSH), and how KSH was brutalising the people. The KSH Commander stated that Islam allows you to beat a person to enforce morality; but, Section 34(1)(a) of the Constitution, prohibits the torture and inhuman treatment of citizens. The implementation of Sharia law in aspects beyond civil matters such as marriage and inheritance, results in the breaching of the fundamental rights of citizens. They cannot co-exist in a democratic society.
It was clear from Congresswoman’s Hartzler’s address, that the issue of IDP Camps, Blasphemy laws, killing of Christians, accountability and a commitment to upholding the rule of law particularly by the Judiciary, must be addressed to deepen the rapport between our countries. This is a reasonable request, that lies within the ambit of constitutionality.
Lest I forget, even for the Muslim, submission to Sharia Law is voluntary; no State is empowered to impose Sharia on an unwilling Muslim. That would be unconstitutional.