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Religious and Customary Laws in Nigeria Emory International Law Review Volume 25 Issue 2 Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States 2011 Religious and Customary Laws in Nigeria Abdulmumini A. Oba Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr Recommended Citation Abdulmumini A. Oba, Religious and Customary Laws in Nigeria, 25 Emory Int'l L. Rev. 881 (2011). Available at: https://scholarlycommons.law.emory.edu/eilr/vol25/iss2/6 This Religious and Legal Pluralism in Nigeria is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly Commons. For more information, please contact law-scholarly- [email protected]. OBA GALLEYSFINAL2 11/16/2011 4:02 PM RELIGIOUS AND CUSTOMARY LAWS IN NIGERIA ∗ Abdulmumini A. Oba This Essay discusses the “religious law” and “customary law” paradigms in the context of the Nigerian legal system. It also examines the pluralistic nature of Nigeria in terms of ethnicity, religion, and law, and argues that the religious law paradigm is problematic for the discussion of laws at the global level generally and within the Nigerian legal system in particular. Then this Essay identifies customary law, Islamic law, and English law (common law) as the three legal traditions in Nigeria, and then proceeds to discuss their status and scope, the conflicts between them, and the particular challenges facing the Islamic and customary laws in Nigeria. This Essay concludes with suggestions for the way forward. I. ETHNIC, RELIGIOUS, AND LEGAL PLURALISMS IN NIGERIA Nigeria is pluralistic in terms of ethnicity, religion, and laws. There are more than 250 ethnic groups in Nigeria and within these groups are distinctive subgroups and communities.1 This heterogeneous ethnic character exists across the country. Although, the Hausa-Fulani, Yoruba, and Igbo (Ibo) are the largest ethnic groups in the northern, southwestern, and eastern parts of the country respectively, there are also other sizeable groups in those parts of the country.2 Muslims, Christians, and adherents of various traditional religions are the three main religious groups in Nigeria. Muslims constitute the majority,3 although Christians generally dispute this.4 Muslims and Christians are the most powerful religious groups in the country.5 Although the Nigerian ∗ Senior Lecturer, Faculty of Law, University of Ilorin, Ilorin, Nigeria. 1 See P.A.O. OLUYEDE, PETER OLUYEDE’S CONSTITUTIONAL LAW IN NIGERIA 21 (1992). 2 CRAWFORD YOUNG, THE POLITICS OF CULTURAL PLURALISM 276–81 (1976). 3 CIA, Country Profile: Nigeria, WORLD FACTBOOK, https://www.cia.gov/library/publications/the- world-factbook/geos/ni.html (last updated Oct. 18, 2011) [hereinafter Country Profile: Nigeria]. The U.S. Central Intelligence Agency puts the figures at now fifty percent Muslims, forty percent Christians, and ten percent followers of traditional religion. Id. 4 See, e.g., Conflict in Nigeria Not Just About Religion!, AFR. COUNCIL RELIGIOUS LEADERS: RELIGIONS FOR PEACE (Afr. Council Religious Leaders, Nairobi, Kenya), Apr. 2011, at 1. 5 See Enyinna S Nwauche, Law, Religion and Human Rights in Nigeria, 8 AFR. HUM. RTS. L.J. 568, 577–79 (2008). OBA GALLEYSFINAL2 11/16/2011 4:02 PM 882 EMORY INTERNATIONAL LAW REVIEW [Vol. 25 Constitution emphatically forbids the State from having an official religion,6 some have rightly pointed out that Islam and Christianity, given their prominence and governmental recognition, are de facto state religions.7 Religion is often conflated with ethnicity and regionalism in Nigeria. There is the talk of the “Muslim North” and “Christian South.” However, these are misconceptions. In the north, although Muslims are overwhelmingly the majority, there are pockets of non-Muslims.8 Similarly, in the south, while Christianity has a very strong followership, Islam also has a huge following among the Yoruba in the southwest and some adherents in the southeast.9 Legal pluralism in Nigeria is very complex, taking three distinct forms. First, there is the legal pluralism arising from the multifarious legal traditions or legal cultures in the country. Laws in Nigeria are derived from three distinct laws or legal systems: customary law, Islamic law, and English-style laws. Customary law is indigenous to Nigeria with each of the various ethnic groups in the country having its own distinctive customary law.10 Islam was common by the end of the eighteenth century and subsequently emerged as state law in the Kanem-Bornu and Sokoto Caliphates, which now constitute northern Nigeria.11 Within the caliphates, there were large pockets of non-Muslim peoples to whom customary law, not Islamic law, applied and still applies.12 Islam also penetrated into the south, but apart from some isolated instances, there was no state enforcement of Islamic law in the precolonial south.13 The English laws owe their antecedents in the country to colonialism. Apart from the common law that formed the nucleus of received English law, many statutory laws in both the colonial and postcolonial era would be included among English-style laws simply because the laws are largely reflective of English laws. 6 CONSTITUTION OF NIGERIA (1999), § 10. 7 Nwauche, supra note 5, 577–79. 8 See, e.g., ‘ABDURRAHMAN I. DOI, ISLAM IN NIGERIA 86–95 (1984). 9 Id. at 109–18, 158–84. 10 Yemisi Dina et al., Guide to Nigerian Legal Information, GLOBALEX (Feb. 2005), http://www. nyulawglobal.org/globalex/nigeria.htm. 11 DOI, supra note 8, at 57–60; MURRAY LAST, THE SOKOTO CALIPHATE, at lxix (1977). 12 See AHMED BEITA YUSUF, NIGERIAN LEGAL SYSTEM: PLURALISM AND CONFLICT OF LAWS IN THE NORTHERN STATES 55, 71–75 (1982). 13 See Muri Okunola, The Relevance of Shar’ia to Nigeria, in ISLAM IN AFRICA: PROCEEDINGS OF THE ISLAM IN AFRICA CONFERENCE 23, 24–26 (Nura Alkali et al. eds., 1993). OBA GALLEYSFINAL2 11/16/2011 4:02 PM 2011] RELIGIOUS AND CUSTOMARY LAWS IN NIGERIA 883 The second form of legal pluralism in the country arises from the country’s federal system, whereby the federal and state governments share legislative power.14 This has resulted in differences between federal and state laws as well as differences among the individual states’ laws. For example, federal laws govern statutory marriages while state laws govern Islamic and customary law marriages.15 The third expression of legal pluralism in the country is connected to the country’s political history. Colonial authorities administered the northern and southern protectorates separately until their amalgamation in 1914.16 With the introduction of regionalism in 1954, the country was divided into three regions: northern, western, and eastern. These regions had a large measure of autonomy and thus developed along slightly different lines.17 Despite the subsequent creation of states beginning in 1967 (Nigeria now has thirty-six states and a Federal Capital Territory),18 this regionalism holds the key to understanding the current legal arrangements in the country. Until the regions were broken into states, uniform laws applied in each of the regions. Today, the bulk of the laws in the states owe their origin to the era of regionalism. Uniformity of laws in the northern states, particularly regarding Islamic and customary laws, continued largely until 1999, when twelve of the nineteen states in the north adopted Islamic law as the basic source of laws in their 19 states in a largely uniform manner. II. THE PROBLEMATIC NATURE OF CLASSIFYING LAWS AS “RELIGIOUS” AND “CUSTOMARY” The classification of some legal systems as “religious” is problematic at the global level. Three legal systems—Talmudic law, Islamic law, and Hindu 14 See CONSTITUTION OF NIGERIA (1999), § 4. 15 Id. sched. 2, pt. I, item 61. 16 See G. O. Olusanya, Constitutional Developments in Nigeria 1861–1960, in GROUNDWORK OF NIGERIAN HISTORY 518, 519–20 (Obaro Ikime ed., 1980). 17 See generally Ladipo Adamolekun, The Nigerian Federation at the Crossroads: The Way Forward, 35 PUBLIUS 3 (2005). 18 CONSTITUTION OF NIGERIA (1999), §§ 2(1)–3(1). 19 See INT’L CRISIS GRP., NORTHERN NIGERIA: BACKGROUND TO CONFLICT 5 (Dec. 20, 2010), available at http://www.crisisgroup.org/~/media/Files/africa/west-africa/nigeria/168%20Northern%20Nigeria%20- %20Background%20to%20Conflict.pdf. The twelve Sharia states are Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and Zamfara States. Id. at 5 n.1. The remaining seven northern states are Adamawa, Benue, Kogi, Kwara, Nassarawa, Plateau, and Taraba States. OBA GALLEYSFINAL2 11/16/2011 4:02 PM 884 EMORY INTERNATIONAL LAW REVIEW [Vol. 25 law—are usually classified as religious legal systems.20 However, these laws are not coherently homogenous. Apart from having their roots or sources in religion, these legal systems are conceptually and normatively different. While Talmudic law and Islamic law are based on Abrahamic faiths and are similar in some respects,21 there are often vast differences between them. Again, Talmudic law and Hindu law are based not only on religion, but also on race, whereas Islam is based exclusively on belief.22 Thus, Talmudic law and Hindu law are not only “religious law,” but also restricted to particular ethnic groups. The notion of “religious law” is based on Western perceptions of religion, but there are differences between Western and Islamic conceptions of religion.23 While in the West, religion is largely a system of beliefs,24 in Islam religion is both a system of belief (iman) and a way of life (minhaj).25 While in the West, “religious law” is limited to canon law, which is now merely the law regulating the Church,26 Islamic law is a full-fledged legal system in the same manner as common law and civil law. In the Islamic law context, “religious law” would refer only to the laws relating to worship (ibadat) as distinct from the laws relating to human interactions (muamalat).27 This “religious law” would exclude marriage, which is viewed legally as a “secular” contract 20 Zweigert and Kötz include only Islamic law and Hindu law as religious legal systems.
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