Focus on constitutional crisis caused by Islamic law

Nigeria's president, Olusegun Obasanjo, drew some relief when an Islamic Court of Appeal in the northern city of Sokoto freed a woman sentenced to death by stoning for adultery on 25 March.

A lower court had convicted Safiya Husseini Tunga-Tudu, a 35-year-old mother of five, in October 2001 in a trial that subsequently drew international outrage for its perceived violation of human rights.

But the relief at her acquittal was soon dampened by the sentence to death by stoning for adultery passed on Aminat Lawal in nearby Katsina State. The Islamic or Sharia court that sentence Lawal has given her 30 days to appeal. Thus the stage has been set for another legal battle for the life of a woman.

Sokoto and Katsina states are among a dozen states in the country's predominantly Muslim north that had introduced strict Islamic or Sharia law over the past two years. Sentences prescribed under the legal code include death by stoning for adultery, amputation of limbs for stealing, and public flogging for drinking of alcohol and premarital sex.

But Sokoto was the first to impose the death penalty for adultery and Katsina has followed. In both cases the evidence of guilt was that the women gave birth while divorced. In each case the men thought responsible for the pregnancies were acquitted for lack of evidence on the basis that under Sharia there must be four witnesses to prove guilt. This has given rise to the view, also shared by Tunga-Tudu, that the legal code is biased against women and the poor.

"When the judge said I was guilty and passed the sentence, I broke down in tears," she was quoted by a Lagos newspaper, Thisday, as saying. "I never thought there would be such a penalty. It is because I am poor, my family is poor, and I am a woman."

In the week before her acquittal, Nigeria's minister of justice, Kanu Agabi, wrote to the state governors that introduced strict Sharia, describing some of its penalties as unconstitutional. He urged them to modify the application of the law to conform to the constitution.

"A Muslim should not be subjected to a punishment more severe than would be imposed on other Nigerians for the same offence. Equality before the law means that Muslims should not be discriminated against," Agabi said.

But in their statements since then, some of the governors and Islamic religious leaders have been defiant, ruling out any moves to heed Agabi's directives. Governor Sani Ahmed Yerimah of Zamfara State, the first to introduce the strict legal code, has since declared the application of Sharia "non-negotiable".

For centuries the Sharia code had been applicable in parts of northern Nigeria, which had fallen under Islamic influence from around the 10th century. But after British colonial conquest at the turn of the 19th century and the creation of the Protectorate of Northern Nigeria, Islamic law was limited to personal matters such as marriage and inheritance and ceased to apply in criminal matters.

In the run up to Nigeria's independence in 1960, by which time northern and southern protectorates had been merged by the British to create Nigeria, a unique penal system was devised for northern Nigeria with the agreement of the region's political and religious leaders. Borrowing from a model already
applicable in Sudan, the penal code eliminated the application of Islamic law in criminal matters and it remained restricted to personal matters.

In the end a unique legal system was bequeathed to Nigeria incorporating aspects of Islamic, Western and customary law. Customary law, for instance, featured in the adjudication of land and marriage matters in parts of the Christian and animist south.

However, from the 1970s there began a movement in parts of northern Nigeria for the expansion of the application of Sharia. It gained strong momentum during the constituent assembly set up to prepare a new constitution in 1977 for the return of power from military to civilian rulers two years later. The Sharia debate also heated up in the processes leading up to new constitutions in 1989 and 1995. But in all cases compromises were reached in the constitution ruling out the application of the strict code.

State governments that have introduced Sharia since the election of a civilian government in 1999 quote the constitutional provisions guaranteeing freedom to practice one's religion to justify their action. They have discounted arguments pointing to provisions in the same constitution against the institution of a state religion, the violation of fundamental human rights through inhuman and degrading treatment, and contravention of the equality of all before the constitution.

The option left for the federal government is to seek Supreme Court ruling. While the governors have expressed readiness to be challenged at this court, Obasanjo has shied away from doing so for fear of dividing the judiciary along religious lines and deepening the constitutional crisis. But, so far, his attempts at a political resolution have failed.

Meanwhile, Nigeria which comprises a mainly Muslim north and a largely Christian south in roughly equal parts, has witnessed an upsurge of religious violence in the past two years with the hardening of positions across the religious divide due to the introduction of Sharia. Thousands of people have died in the fighting. Internationally, the country is increasingly being tainted by the Sharia stigma generated by cases such as Tunga-Tudu's.

Obasanjo, expressing his delight at her acquittal, said the case had presented him with a delicate diplomatic problem. During recent foreign trips in search of foreign investment to Nigeria, his guests were more interested in talking about Tunga-Tudu's fate than discussing investments, he said. But with another similar case pending and more likely to come, it is unlikely that his troubles will soon be over.

The executive director of the Africa Division of Human Rights Watch, Peter Takirambudde, reflected the thinking of the international community on the issue when he said: "We're glad that the life of Safiya Husseini has been spared. But even if this battle has been won, the struggle continues against this kind of cruel punishment. The death penalty is inherently cruel, and death by stoning is a kind of torture that is prohibited by international law."