Judicial Practice in Islamic Family Law and Its Relation to ʿurf (Custom) in Northern Nigeria*

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Islamic Law and Society 272 A.A. IslamicOba / IslamicLaw and Law Society and 20-3Society (2013) 20 (2013) 272-318 272-318 www.brill.com/ils

ISSN 0928-9380 (print version) ISSN 1568-5195 (online version) ILS Judicial Practice in Islamic Family Law and Its Relation to ʿUrf (Custom) in Northern Nigeria*

Abdulmumini A. Oba

Abstract Although northern Nigeria is known for its extensive enforcement of Islamic law, the region has been heavily influenced by local custom and traditions. The dominant and now official school (madhhab) is the Maliki school which, arguably more than any other madhhab, recognizes ʿurf or custom as a source of Islamic law. This essay looks at local customs as they affect Islamic family law, specifically marriage, divorce, child custody, and inheritance, and the judicial responses to these customs in contemporary courts in northern Nigeria.

Keywords Islamic law, Islamic family law, ʿurf (custom), sharia courts, Northern Nigeria

Introduction Islam gained its earliest converts in the Kanem-Bornu Empire (northern Nigeria) in the 8th century C.E.1 By the 11th century, Kanem-Bornu had its first Muslim ruler. From this time onwards, the empire paid

Correspondence: Abdulmumini A. Oba, Faculty of Law, University of Ilorin, P.M.B. 1515, Ilorin, Kwara State, Nigeria. E-mail: [email protected] * This is a revised version of the paper entitled “The Impact ofUrf ʿ (Custom) on Islamic Family Law in Northern Nigeria,” presented at the Sixth International Society of Islamic Legal Studies Conference (ILS), “Islamic Law and Custom,” Exeter University, England, July 13-15, 2009. I am grateful to the two anonymous readers whose suggestions improved this essay immensely, and to David Powers for his helpful suggestions and careful editing. Responsibility for any remaining errors is mine. 1) See accounts of the early part of the Kanem-Bornu Empire in J.E. Lavers, “Kanem and Borno to 1808,” in Obaro Ikime (ed.), Groundwork of Nigerian History (Ibadan: Heinemann

© Koninklijke Brill NV, Leiden, 2013 DOI: 10.1163/15685195-0011A0004 A.A. Oba / Islamic Law and Society 20 (2013) 272-318 273 great attention to the practice of Islam.2 Around the same period, Islam gained ascendancy in Hausa land.3 Between the 15th century and the advent of colonialism, the rulers of Kanem-Bornu and Hausa cities, especially Kano and Katsina, appointed kadis to administer Islamic law in their respective territories.4 Northern Nigeria has always been heavily influenced by local custom and tradition. The 18th century jihad of Uthman Dan Fodio was, among other things, directed towards ridding Islam and its law of the heavy influence of custom. Traces of these customs survived the jihad and new ones emerged subsequently. The strongest contest between custom and law in northern Nigeria is in the area of family law. It is correct to say that in northern Nigeria, “a combination of ʿāda and Sharia” governs family laws.5 British colonial laws (starting from the last part of the 19th century) also had an impact on Islamic law generally and on Islamic family law in particular in the region. Colonial authorities treated Islamic law as a variant of customary law and modified its application. However, Islamic law has shown a strong resilience in northern Nigeria, which has always been known for its enforcement of Islamic law. Writ- ing in 1978, Anderson ranked northern Nigeria third—after Saudi Arabia and Afghanistan—in terms of strict enforcement of Islamic law.6 While the actual judgments of the courts in the Sokoto Caliphate have not survived, the writings of the leaders of the jihad show their commitment to a judiciary based on Islamic law.7 British explorers and

Educational Books for Historical Society of Nigeria, 1980), 187-209; and S.A. Balogun, “History of Islam up to 1800,” ibid., 210-23. 2) Ibid., 212. 3) T.B. Irving, Islam Resurgent: The Islamic World Today (Lagos: Islamic Publication Bureau, 1979), 41. 4) Interview with Justice Abdulkadir Orire, ‘Secularity is a Foreign Notion,’ THISWEEK, October 24, 1988, 23; and Hassan Ibrahim Gwarzo, “The Sharia Courts in our Judicial System,” in All-Nigeria Judges Conference Papers, 1988 (Ibadan: Spectrum Books Ltd, 1993), 500-9. 5) Abdullahi A. An-Na’im (ed.), Islamic Family Law in a Changing World: A Global Resource Book (London: Zed Books, 2002), 284. 6) J. N.D. Anderson, Islamic Law in Africa (London: Frank Cass, 2nd ed., 1978), 3, 171 and 219; and idem, “The Future of Islamic Law in British Commonwealth Territories in Africa,” Law and Contemporary Problems 27 (1962), 617-31, at 626. 7) See Shehu Shagari and Jean Boyd, Uthman Dan Fodio: Theory and Practice of His Leadership (Lagos: Islamic Publication Bureau, 1978) 28-30.