ACCESS TO JUSTICE PROGRAMME – RESEARCH REPORT
June – August 2003
RESOLUTION OF CIVIL DISPUTES IN JIGAWA STATE (NIGERIA)
Prepared by Dr. Ali Ahmad (Lead Researcher, Faculty of Law, BUK) Dr. Jummai Audi (Co-Researcher, Faculty of Law, ABU) Dr. Ibrahim N. Sada (Co-Researcher, Faculty of Law, ABU) Assisted by: Mallam Nasir A. Ahmad Ms. Hafsat Adamu Sani Mrs. Binta Abdulkarim
2. Table of Contents
1. Cover Page
2. Contents
3. Abbreviations 3
4. Glossary 3
5. Acknowledgements 4
6. Summary and Principal Action Points 5
7. Background 8 7.a Introduction 8 7.b Study Purpose 8 7.c Previous Research 8 7.d Structure and Processes of Dispute Resolution under the Sharia 9 7.d.1 Formal Forum 9 7.d.2 Informal Forum 11 7.e Structure and Processes of Dispute Resolution in Jigawa State 12
8. Assignment Terms of Reference 14
9. Assignment Report 15 9.a. Strategy 15 9.b. Observations 16 9.c. Analysis 27 9.d. Conclusions 30 9.e. Action Points Arising 32
10. Experiential Learning 33
11. Appendices 34
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3. Abbreviations NOIC: Nigeria Opportunities Industrialisation Centre
4. Glossary
Al-bara’a al-asliyyah: original non-liability Auren dole: forced marriage, often between a young girl and an old man Biko: reconciliation effort initiated by the families of a husband whose wife has deserted in protest, Da’wah: claim as alleged by an aggrieved person Dagaci: Village head Diwan al-mazalim: A special tribunal that often resolves disputes between citizens and government officials Hakamain: third-party, ad-hoc arbitration panel involving representatives from family members of the wife and those of the husband Hakimi: District head Iqrar: admission of a claim Mai Unguwa: Ward head Mudda’i: claimant Nakoul: refusal of defendant to take evidentiary oath Noshouz: ill conduct Qadi or alkali: judge Sheqaq: disagreement between couples Sulh: mediation, reconciliation or arbitration. It is a commendable contract consisting of the surrender of a right or discontinuance of a dispute for a consideration. Tazkiya: proceedings that seek to verify the character and reliability of a witness of proof Ulama: the clergy or jurists. Wakil: representative Yaji: desertion by the wife of her husband’s matrimonial home in protest of a perceived wrong behaviour Zumunci: solidarity and understanding
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5. Acknowledgements
We are pleased with the opportunity of being part of an effort that seeks to provide an efficient justice system at a level that is important to the poor. An efficient justice system is essential for the eradication of poverty, creation of sustainable development and entrenchment of the rule of law. This study was commissioned by the UK’s Department for International Development (DFID) under the auspices of the British Council to establish an evidence base for this effort.
In the course of the study, we met with a number of individuals who were extremely busy but who nonetheless attended to our numerous requests. We are especially grateful to His Royal Highness the Emir of Kazaure, Alhaji Najib Hussaini Adamu. We benefited from his rare insights of being an attorney and a current active mediator among his people. We are no less grateful to His Royal Highness the Emir of Ringim, Alhaji (Dr.) Sayyadi Abubakar Mahmoud, who is also the Chancellor of Delta State University, Abraka, for treating us to unexpected royal reception and conviviality throughout our stay in his Emirate.
Similarly, we are pleased with all the assistance received severally and collectively from Alhaji Yusuf Mahmood, Sarkin Yara of Kazaure, Alhaji Usman Sayyadi, Tafidan Ringim, the Hakimi of Ringim, the Hakimi of Kazaure, and Professor A. T. Sulaiman of Usman Danfodio University and an indigene of Ringim. We are also grateful to many Mai Unguwas, Dagacis, Imams, Alkalis and magistrates in both Ringim and Gwiwa Local Government Areas who attended to our queries.
The study was conducted during the rainy season, a season that is of extreme economic importance for the vast majority of users of justice forums who participated in the study. We are highly indebted to them, and to the people who facilitated our contact. We are also grateful for the assistance in research and field work provided by Ms. Hafsat Adamu Sani, Mrs. Binta Abdulkarims and Mallam Nasir Ahmad.
Finally, we would like to thank staff of the Access to Justice Programme of the DFID and those of the British Council in Nigeria. We are immensely grateful to Professor Muhammed Tabiu, Jigawa State Justice Adviser for the Access to Justice Programme, Dr. Lola Odubekun, the Programme’s Research and Evaluation Manager, and Mr. Danladi Plang, the Programme Officer.
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6. Summary and Principal Action Points This report presents results of a study of how poor people in Jigawa State resolve their interpersonal disputes in civil matters and how the practice affect their ability to access and enjoy justice. The purpose of the study is to provide an evidence base to inform the development of pilot or demonstration projects that will enhance access to justice for poor and vulnerable people in Jigawa State.
The study was carried out in Ringim and Gwiwa Local Government Areas of the State, the former representing urban while the latter represents rural. It is based on a combination of focus group discussions, observations, review of original court records, and interviews of judges, Emirs and other traditional leaders, imams and selected users of justice forums. The study team explored key institutions and issues that are significant to resolution of civil disputes, such as traditional forums and Sharia courts, gender, age and occupation of participants, and major subject matters of disputes. Traditional forums of dispute resolution are known as sulh.
A key finding of the study is that gender does not in any way constitute a limitation on openness of, and access to, either the court or sulh forum. However, most people who are users of sulh are poor people. Overall, more people use sulh forum much more extensively than the court, while among users of courts, women outnumber men. Claims of women in courts are mostly on matrimonial issues. The urge to maintain good post-dispute relationship as well as “and sulh is best”, the resonant Qur’anic phrase, are incentives for pursuing sulh. The study gathered that majority of the participants were afraid of the courts and never used them, and they had negative impressions about the formal forum, based on the perception that courts wasted time, were expensive and susceptible to manipulation by the rich. However, about 40% of the participants that had actually used them had a fair assessment that the courts were not terribly bad.
The study reveals that appeals to higher courts, even when a party was completely dissatisfied with a judgement, were not at all common among participants, who had a notion of the existence of a “comity of judges” who would defer to holdings of their comrades on all issues. According to most court users therefore, appeals were a mere venture in time wasting. Further research will be required to determine the extent of the influence and oversight of inspectors in correcting juridical misfeasance and whether that is comparable to the potency of appeals as a correctional mechanism.
The significance of these perspectives is that poor people of the State have limited access to formal justice. The people have a somewhat misplaced impression about the court, thereby affecting their interest to appeal. This has the effect of limiting their ability to fully participate in the process. However, one useful characteristic of the Sharia court in the State is the existence of inspectors who are empowered to stop and transfer cases or place them on the docket of a higher court where the inspectors believe judicial impropriety has occurred. But there is limit to the number of mishandled cases that are detectable by the inspectors in a society where people do not exercise their right to appeal. This scenario presents an opportunity for a deliberate intervention programme.
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It will be hard to establish a sustainable intervention programme that pushes people toward a process of appeal, especially since such a process would entail expenses and possible engagement of attorneys. Fortunately, the sulh alternative is worth noting. Sulh, which is a more acceptable forum to the people, is adjudged to provide better access to justice for the poor. All poor people have ready access to public sulh forum, which involves mediators such as the Emir, Hakimi, Mai Unguwa, Dagaci, the imam or neighbours. Private sulh is even more accessible because the mediators are family relations of one or both parties. However, women do not always have equal opportunity to participate in public sulh forum due to nervousness before an all-men forum, or sometimes being prevented by mediators from fully expressing herself, thereby affecting the quality of the settlement. Further study needs to be carried out on the possibility of having women public mediators; but if sulh must continue to be an all-men affair, it must combine its strength of providing unmatched access with affording court-like opportunity for women to fully express themselves and participate in the process. It is proposed that mediators should be educated on the need to provide the opportunity for women to fully participate in sulh forum. In addition, provision of such opportunity may include permission for women parties to invite women relatives as observers of the proceedings of a sulh forum.
Another important finding is an unconscious bifurcation of sulh authority over land and succession disputes. Where parties choose sulh forum for their land disputes, traditional leaders exercise jurisdiction almost exclusively. On the other hand, the imam predominates over distribution of estates; and the fact that an estate involves land does not take it out of the jurisdiction of the imam. Depending on their status, women tend to face difficulty taking possession of landed property to which they are entitled under the Sharia based on an impression formed by co-heirs that men are more entitled to land. This scenario is found however to be limited to women who are wives of deceased persons and not those that are deceased daughters or sisters.
Having stated this, there is no escaping the effort of making Sharia courts transform into quality courts-of-first-instance. In order to achieve this objective for our purpose, the alkalis of Shari’a Courts, Higher Shari’a Courts and Upper Shari’a Courts should be retrained specifically in the field of Islamic human rights especially on aspects of gender relations and civil procedure. The objective of the training should be to combine in the Sharia courts the fact-finding mission of a trial court and that of the corrective machinery of an appellate court.
Highly informed alkalis who are sensitive to issues of gender relations in Islam should be forthcoming in reversing the trend of stalling rights of wives to inheriting landed property of their husbands, in awarding allowance to wives who decide to take custody of their children as provided by Sharia, and in annulling divorce pronounced during pregnancy. They should also be able to properly handle evidentiary oaths as well as award to litigants who are not represented by attorneys any entitlements due to them even if the right parties fail to specifically make a demand. Detention of parties in civil matters would also be curbed. For the vast majority of cases of non-maintenance, a
6 similar workshop should be organised for sulh mediators in order to make it hard for men to deny their wives maintenance rights.
The role of sulh mediators, especially public ones who are invariably traditional leaders, is extensive. The high regard in which they are held transforms into deference to their determinations. It is also significant to note the finding that sulh is characterised by relaxation of all rules and rights, and that mediators feel obliged only to two requirements: that they must act equitably and that their settlement must not involve a legally impermissible award. Based on endorsement by participants, mediators, more than judges, have a better success record in both. Sulh mediators maintain good rapport with the courts. Relationship of sulh mediators with the police is not so cordial, as they and sulh users complained of police interference in some sulh processes. It is proposed that the Commissioner of Police of Jigawa State be required to issue an order to officers under his command to stop meddling in civil matters submitted voluntarily by both parties to the sulh resolution method.
On hierarchy of sulh, there is no determinable upward movement of resolution effort, although the Emir is the final sulh arbiter. The Emirs, and only Emirs, have upturned court decisions in two instances. The first, where such decisions were obtained by impropriety or fraud involving powerful people like Dagacis; and the second, where if such decisions are left to stand, they will pose a threat to communal cohesion and solidarity, an extremely important factor acknowledged by all sides. In the latter situation though, the Emir negotiates terms of settlement with the party that was successful at court (See Appendix 4). Once a dispute is filed and ongoing in court, no mediator intervenes for the purpose of settlement unless both parties so wish.
No less significant is the finding that reinforces the knowledge about acceptability of Sharia among all men and women in the State. However, while laws and institutions tend to reflect traditional Sharia, it is not always the case that practices of individuals do, especially when it comes to gender relations. In the area of civil dispute resolution in the State, there is no match to the challenge posed to the Sharia by customary practices on gender relations. The study observed rampant rate of divorce in the communities of poor people visited, though most divorce women got remarried without much difficulty. Most of the participants were poor and illiterate but we were unable to definitively ascertain the effect of both on the rate of divorce. Other suspected causes, as positively alleged by the women concerned, included lack of maintenance by husbands while taking additional wives, auren dole, and hawking-to-husband syndrome. Establishing a forum where public sulh mediators and alkalis will participate to assess the case and offer settlement assistance.
A strategy for intervention is to design a programme, based on Sharia, which is intended to address whatever the causes of divorce. Women will support this strategy— because they will be the greatest beneficiaries; imams and ulamas will—because it is based on unadulterated Sharia; so are traditional rules—because their legitimization is historically religious; and finally the policymakers will support it if only openly— because they are perceived to be faithful to the system. Only the wrongdoer may not.
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7. Background 7.a. Introduction Nigeria’s justice sector has been facing a number of challenges, not least are those that concern people in poverty. Achieving necessary reform is hampered by limited resources, among others. There are no indications that the justice needs of the poor will receive prioritised attention they ordinarily deserve under a democratic society. The Access to Justice Programme of the DFID aims to enhance access to, and the quality of, safety, security and justice to ordinary Nigerians beginning with some focal states. Jigawa State is one of those chosen by the Programme in which it intends to proceed through pilot projects. In its effort to enhance access to justice for the poor through promoting fair and equitable outcomes at lower courts and traditional forums, the Programme requires an information base to inform development of appropriate pilot or demonstration projects. This study provides such information.
7.b Study Purpose
The purpose of this study, Resolution of Civil Disputes in Jigawa State, is to provide information on how contemporary local practices, relating to the resolution of civil disputes in traditional, religious and Sharia court forums in Jigawa State, affect poor people’s ability to access and enjoy justice. The study pays particular attention to the status of women in matrimonial matters and the problems of poor people in the resolution of land disputes.
This study has the following specific objectives:
• to provide information on current local practices relating to resolution of civil disputes between parties in Jigawa State with specific reference to matrimonial matters and land disputes
• to provide better knowledge and understanding of the aspects of Sharia relating to resolution of civil disputes and the extent to which those make justice accessible and affordable to the ordinary people
• to elicit poor people’s perceptions of the formal and informal justice forums and how these enhance or impede their ability to access and enjoy justice
• to gain insight into the role of traditional and religious institutions in resolving civil disputes.
7.c. Previous Research The justice sector is made up of formal and informal forums. Our review of literature was limited by the scope, area and period of our study. We were interested in relevant studies of lower courts and other traditional dispute resolution forums. Having stated this, it is generally observed that the important position occupied by traditional dispute resolution forums in Northern Nigeria has not been reflected in the number or
8 scale of studies that have been carried out in the area. In the formal justice sector, most researches have also concentrated on the roles and functions of higher courts or judges, and have paid little attention to the workings of lower courts and their personnel. The few that were carried out were not published. For instance, a few years back a survey found out how Area Court judges or alkalis had adopted an unwritten ethic of encouraging parties in civil matters to reconcile before passing judgment. The survey noted that this practice by alkalis was more pronounced in matrimonial causes (Dederi, 1998). A similar study of a Kiri Shari’a Court (then named Area Court) in Ringim Local Government of Jigawa State revealed that out of a total of 324 decided cases, 243 or 75% were related to matrimonial matters (Aliyu, 1992). The Kano State Government (which then included Jigawa State) also commissioned a study that subsequently recommended the establishment of a Matrimonial Arbitration Court. This followed a finding by the Committee on Women Affairs that a major cause of rampant cases of divorce was the attitude of some alkalis (Aliyu, 1992). Although the recommendation metamorphosed into enactment, the court was never inaugurated.
As earlier mentioned, there are even fewer studies on the informal justice sector. In January 2002, the USAID-funded Nigeria Opportunities Industrialisation Centre commissioned a study to document traditional methods of conflict resolution in Kano State. The study, which interviewed twenty-two traditional rules, religious, ethnic and community leaders, found out that traditional ways of mediation were most effective in reversing disputes before they degenerated into violent conflicts. Once conflicts resulted into violence, traditional methods became completely ineffective. The study however related to communal conflicts among communities in Kano rather than inter-personal disputes (NOIC, 2002).
A study of the extent of use of informal forum in the larger Muslim world showed that over 90 percent of all civil cases filed in traditional Islamic courts in Saudi Arabia ended in reconciliation (Vogel, 2000). In the Western world, Canada has formally recognised the preference of its Muslim population for mediation of civil disputes. Courts in the Ontario Province are required to grant a mandatory three-hour mediation session for Muslim litigants in civil matters (Ruccella, 1998). The present study provides a unique and deeper insight not only on the functions of various mediators in Jigawa State but also on the experiences of those who patronise them.
7.d. Structures and Processes of Dispute Resolution under the Sharia 7.d.1. Formal Forum It will be discussed in subsequent pages that the vast majority of poor people that choose to use the courts in Jigawa State patronise lower courts. These courts are Sharia courts and they apply Islamic law or Sharia. Therefore, an overview of the justice sector under the Sharia is necessary to provide a context on the nature, development and potential reform of the justice sector in Jigawa State. Rules, institutions and values of Sharia apply wherever Muslim communities live and the extent of application of Sharia depends upon a number of factors, including magnitude of external forces like colonialism. Jigawa State is not different as overwhelming majority of its people are Muslim, and Sharia occupies a prime position in its hierarchy of laws.
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In Sharia legal theory, justice is an entitlement of the citizens and the state is under obligation to provide avenues that guarantee justice. The judge exercises his power as a representative (wakil) of the caliph. But even when the caliph appoints a judge, he does not forfeit his right to act as a judge himself, as ensuring impartial justice is one of his main obligations. The judicial role of the caliph has reduced over the centuries but this historical practice of attachment to the justice sector has manifested in various forms in different communities. In pre-colonial Nigeria, we have had the Alkali Courts and the Sarki Courts, first established during the Emir of Kano Rumfa (1463-99). Courts are always of general jurisdiction, but a court of wider power and authority, known as diwan al-mazalim, may be established to adjudicate disputes between citizens on the one hand and between them and the government, government officials or influential individuals on the other. Establishment of mazalim by a government is indicative of its commitment to governance under the rule of law. The mazalim court or tribunal, where established, also acts as an appellate forum. A candidate for judicial office is expected to be a jurist who knows the Sharia and the rulings of his predecessors.
Proceedings in Sharia courts are unflinchingly simplistic. Once there is da’wah or claim before the court, public policy under Sharia demands the court to dispense with the substance of the da’wah without delay. It could be the inability of Sharia to compromise on this policy that Muslim countries have to establish other courts or tribunals to handle complex cases that require sophisticated procedures resulting in lengthy proceedings. Proceedings commence when a claimant or mudda’i presents his or her da’wah, which must be clear, specific and must be supported by evidence. Da’wah is generally without weight, as it seeks to displace the presumption of original non-liability (al-bara’a al- asliyyah), unless it is supported by evidence.
According to the procedure in civil matters, when a claimant or plaintiff states his claim, the court calls upon defendant to respond. If he admits the alkali renders judgement in favour of the plaintiff. If defendant denies, the alkali asks the plaintiff to bring his witnesses and adjourns or issues summons, if need be, for that purpose. Means of proof are usually admission, witnesses, oath and refusal of a party to take oath. Documentary evidence is also admitted. Only testimonies of witnesses who in the view of the court are not known to be lacking in good character and reputation are admissible. Where there is suspicion about the reputation of a witness of proof, the judge conducts tazkiya proceedings (or purgation), an enquiry that seeks to verify the character and reliability of the witness of proof.
Thus, evidence of a witness may be rejected on account of presumed bias; for instance, a parent may not ordinarily be a witness for his child or vice versa, nor one spouse for the other. In all cases of perjury that survives due enquiry, the witness is liable to compensate the adverse party. Oath has a key evidentiary value in Islamic civil procedure where both parties are unable to prove their cases in the normal manner. Where the plaintiff cannot prove his claim, the alkali will require defendant to take an oath denying the claim, which will then be dismissed. If he refuses to take the oath,
10 referred to as nakoul, the oath returns to the plaintiff who gets judgement on taking the oath. If plaintiff refuses, his claim is dismissed.
The court is expected to integrate within its system a practice of reconciliation, to be agreed to by both parties, before judgment is passed. Access to judicial forums must be made as costless as possible to users. The doors of the courts must remain open to the public and secrecy is not permitted. The litigants may represent themselves or appoint a delegate. The judge plays a role in the discovery of truth of the claim but he avoids advice or statement that is supportive of only one party. Ordinarily, previous cases determined by coordinate or superior courts have no binding effect, as a judge is expected to be independent in learning and should not succumb to imitating the efforts of other judges. The qadi or alkali may not adjudicate on the basis of his personal knowledge while he must specify the grounds of his decision and the authority on which it is founded. He may also not adjudicate in a matter in which he has personal interest or where he or one of his close relatives is a party.
7.d.2 Informal Forums Informal forums are often referred to as alternative dispute resolution forums. If “alternative” signifies non-conventional, non-preferential marginal forum, then the general tendency of referring to informal forums in predominantly Muslim societies as alternative dispute resolution forums could be a misnomer. In Islam, the opposite is truer because although the court is still the standard forum, it has not always been the deliberate choice for many. The informal forum is the preference and court is the complementary and the alternative. Even where a matter finds its way into the court, it is more likely to be settled outside of the court. This interconnectivity between the two forums received a practical bolster, apart from admonitions toward that in the Holy Qur’an, as early as the period of the second Caliph in Islam, Umar, who called upon judges to refer litigants before them to mediation outside of their chambers, because judgement creates feelings of malice among people. The informal forum, which is permanent and not ad-hoc, is pervasive such that it is inbuilt in the court system itself.
The technical term for settlement, reconciliation, arbitration or mediation is sulh, literally meaning the severance of a dispute. In its legal usage, it connotes a commendable contract consisting of the surrender of a right or discontinuance of a dispute for a consideration. Sulh is a permanent mechanism available to interpersonal and communal disputes and it is inbuilt within the formal justice forum rather than a parallel to it. Sulh is by far the most favoured of justice forums, in principle and practice. It is not as structured and its procedure not as uniform as the formal court forum. It is adjustable according to the situation but the ultimate aim of any intervention is to arrive at reconciliation in accordance with Islamic values. Its main characteristic is its variegated nature, noticeable from one community to the other. Its form is determined by a number of factors, including the nature and circumstances of a dispute, willingness of the parties, and custom of the community.
In a typical matrimonial dispute for instance, the potential intervention technique depends on the stage or level of deterioration of the conflict. The intervention could be
11 restricted to the parties and it might involve third parties. Where it is a sheqaq situation, or disagreement, the intervention could take the shape of a two third-party team, each made up of representatives of each spouse’s family member or members. This technique is technically known by its Qur’anic term of hakamain arbitration. In a noshouz situation, ill conduct that may lead to desertion by either of the spouses, each party is responsible to follow a process to restore normalcy, failing which either party may pursue divorce (See Appendix 3, Item i-ii).
Active participation in mediation is considered a form of charity and mediators do not expect financial benefits. Generally, participation by members of public in order to put things right—in this case, to maintain peace between disputing parties—is highly commendable for all Muslims. The layers of such public involvement under Islam are classified into three, in order of preference: active, partial, and passive involvement. This classification is derived from the statement of the Prophet: “Whosoever of you sees an evil action let him change it with his hand; and if he is not able to do so, then with his tongue; and if he is not able to do so, then with his heart and that is the weakest of faith.” (Al-Nawawi, 1990)
Having examined the general characteristics of sulh, its process is also worth noting. Sulh is at the background of settling any dispute; it continues to be at the background within and outside the formal forum without relenting until judgement is rendered. Both feuding parties have to agree on a sulh forum before a settlement process is commenced. Once there is an agreement on a forum indicating readiness to relax or not to insist on legal rights, and once there is a settlement to which both parties further accented, the term of the sulh is final with respect to the particular claim and becomes a binding contract between the parties as well as others, such as relatives and neighbours, who took part.
Relaxation of all rules is also normal, whether those rules relate to the substantive rights of the parties, verification of witnesses or other procedural requirements. The one requirement that is of general application to sulh is that its outcome must be one that is legally permissible under the Sharia; for consent of the parties cannot authorise what is illegal (See Appendix 3, Item vi). Mediators need not be legal experts in Sharia but they are expected only to be impartial and to “act equitably” as stipulated in Qur’an 4:128.
The motivation to pursue sulh is attributable to a number of factors all geared toward maintaining harmony and solidarity. It is assumed that conflict is not only between the parties but that it also involves relatives, neighbours and the community. Therefore, Islam envisages communality and interdependence of people and employs it to improve conflict resolution. Islam (or peace, literally) places high value on peaceful coexistence, especially among neighbours (delineated by forty-house radius from one’s house) and relatives. It is thus not hard to appreciate that the premium Muslims place on good personal relationship is dearer than securing personal interests through rancorous court processes. Another reason is that sulh is thought to be religiously rewarding as it has been divinely encouraged in the Qur’an, and Muslims forego mundane rights to
12 strengthen personal relationships so they may obtain eternal reward. “And sulh is best”, is the universal catchy phrase among Muslims derived from Qur’an 4:128.
7. e. Structures and Processes of Dispute Resolution in Jigawa State In the year 2000, the court structure in Jigawa State went through fundamental changes involving nomenclature, type of law and extent of its application, as well as procedural changes, though the changes were not as substantial with regard to civil matters as they were in the area of criminal law and practice. Nonetheless, the changes in civil matters were also remarkable. Area courts, which had constituted the lower courts of the State and where customary and Islamic law matters were heard, became abolished. Shari’a Court, Higher Shari’a Court and Upper Shari’a Court are now in that order the three categories of lower courts existing in the State, all having original and appellate jurisdictions, except the Shari’a Court which has only original jurisdiction [See §§3 and 39(1) Shari’a Court (Administration of Justice and Certain Consequential Changes) Law 2000 — all references in this part are to this Law]. Further appeal lies from Upper Shari’a Court to the Shari’a Court of Appeal, from where a case proceeds on appeal to the Court of Appeal and ultimately to the Supreme Court (See §§39 and 40). The courts have jurisdiction over causes founded in Islamic law (See §§ 5 and 8), and persons professing the Islamic faith or any other legally competent persons who voluntarily consent to the courts’ jurisdiction (See § 7). In all other matters, jurisdiction lies in the Magistrate’s Court or High Court, as the case may be.
The substantive and procedural laws applied by the courts are based on Sharia (See § 10 (1)), and they are mandated generally to sit in public (See § 10(4)). In the State, Islamic law is now distinct from customary law (See § 49). A notable feature of the Sharia courts, as with its predecessor courts, is that they are subject to inspectors who are required to possess superior qualifications than the alkalis (See § 30). The inspectors have access to Sharia court records at all times and, where they note miscarriage of justice or unfairness before judgement is delivered, may stop the proceedings and transfer the case to another alkali (See §§ 33, 34 and 36). Where judgement has been delivered and a prejudiced party does not for some reason appeal, the inspectors may report the case to the next court in the hierarchy and such court may make appropriate order in the circumstance, including an order of retrial, reversal or to call additional witnesses (See § 38).
Sharia courts hold their proceedings in the Hausa language and possess ancillary powers and may issue processes in all manners comparable to other courts of similar grade or jurisdiction in the country. The applicable rules of civil procedure for Sharia courts reflect traditional Sharia provisions described above. At a hearing of a civil matter, the court is required to read and explain the claim to the understanding of the defendant, who is then required to reply. The court is entitled to enter judgement on defendant’s admission of the claim or complaint. If he denies, the alkali shall admit plaintiff’s witnesses one after the other. Where the testimony of the witness agrees with the statement of claim, the court shall give the defendant opportunity to cross-examine him. Where defendant discredits the testimony of a witness such evidence shall be rejected. But if defendant fails either to impeach the witness or to rebut his testimony then the
13 evidence shall be admitted. Where plaintiff cannot produce witnesses, the judge shall require the defendant to swear the oath of denial and to get the claim dismissed. If he refuses to swear, then the oath shall be returned to the plaintiff who shall be required to swear in support of his claim. If he swears, judgement shall be entered in his favour. If he refuses to swear, his claim fails and it shall be dismissed(See Appendix 3, Items iii-v).
The Supreme Court further stated other aspects of applicable procedure in Sharia courts succinctly: The general principles of Islamic Law relating to claim in civil matters are that proof is complete by the evidence of two male unimpeachable witnesses; or such one male witness and two or more female unimpeachable witnesses; or one male or two female witnesses in addition with the claimant’s oath. Thus, the plaintiff is required to state his claim and, unlike the English law, parties are not competent witnesses in their respective cases, hence their statements in court are not regarded as evidence. After the plaintiff has stated his case and circumstances connected with it, the Kadi (judge) orders the defendant to make an answer to confess or deny. The plaintiff is required to bring witnesses to testify for him and this rule has a general application. The defendant is required to take an oath in the event of plaintiff’s failure to bring forth witnesses. Evidence of a witness, especially a close relative, who stands to derive some benefits or escape some harm from such evidence, is not admissible; such as the evidence of a creditor that has the effect of augmenting his creditor’s assets. Plaintiff is also entitled to judgement upon defendant’s admission or iqrar. Per Abubakar Bashir Wali, JSC in Hada vs. Malumfashi, 7 N.W.L.R. 1 at 17-18 (1993).
Where the parties to a suit are relatives, the judge may first request them to agree to arbitration or reconciliation, failing which he shall proceed to hear the matter. In all other cases, the court may order the proceedings to be referred for arbitration with the consent of both parties. Arbitration is also permitted by the Arbitration Law of Jigawa State. This arbitration is not necessarily coterminous with the sulh mediation, which does not need court authorisation. Apart from the provisions allowing reconciliation among litigants who are related or those stipulating arbitration generally under the court’s supervision, we were unable to establish existence of any legislation or policy that directly relates to sulh as practised, which is examined in Section 9b.
8. Assignment Terms of Reference The study is expected to provide the following: • A comprehensive overview of the structures, procedures and processes available for the mediation of civil disputes in traditional and Sharia Law-based forums in Jigawa State.
14 • An assessment of the openness and accessibility of structures and the impartiality of procedures in civil dispute resolution forums.
• Descriptions of practices that promote the equal access and enjoyment of all people, particularly women and the poor, to justice in the state.
• Descriptions of practices that impede the equal access and enjoyment of all people, particularly women and the poor, to justice in the state.
• An analysis of the actual as well as potential areas of interface between the informal structures and the formal justice system.
• Suggested areas of intervention and recommendations for future activities to promote justice for women and poor people in the resolution of civil disputes in Jigawa State.
9. Assignment Report 9 a). Strategy: The study relies heavily on a participatory and qualitative research methodology. The research team drafted exhaustive interview instruments, such as questionnaires, in- depth interview questions and focus group discussion guides. These instruments were subjected to pre-testing in Dutse on July 7th, 2003. They were subsequently perfected and translated into the Hausa language.
The fieldwork was conducted in two local governments of Jigawa State, each selected to reflect a rural and urban setting, although both have unavoidable similarities in ethnic background and religion of the people. Ringim Local Government represents the urban site and it was once connected to the Kano Emirate. It has all modern infrastructures including telephone lines and the roads are fairly accessibly. The people of Ringim are known to be enlightened and make use of the courts regularly. Gwiwa, which is under the Kazaure Emirate, fairly contrasts with Ringim in that although it has electricity and running water, it is less developed and less accessible to outsiders. The people pride themselves to be the most harmonious part of the state. “In Kazaure Emirate”, so goes the popular saying there, “there are no criminals or thieves, only minor skirmishes.”
In view of the fact that the population is a typical unit, the team adopted a purposive sampling. The sample population size was about 54 in each local government, most of them poor people, and the sampling frame included gender, occupation, marital status, family size, education, age and other relevant distinctive characteristics such as number of wives in a household. The sample population size comprised of 10 mediators (e.g. the Emir and other traditional leaders, alkalis, a magistrate and the ulama), 12 users each of formal and informal forums, and a two 10-member focus group discussions of male and female participants. The instruments were used flexibly as guides, since interviews and discussions were made to flow and were more particularly captured on tapes. The study included passive observations of procedures and practices in both formal
15 and informal forums. The study also involved review of records of courts in both locations and subsequent translation of those records into English language.
The team combined these methods to collect data from both local governments. In addition to these methods, the team carried out literature review as well as examination of primary Sharia sources and practices of sulh in other Muslim countries to enable it analyse and interpret the information gathered.
To protect identity and confidentiality of participants in the study, we have supplied names to substitute for the real names of the participants.
9.b Observations All the research participants were well aware of various forums for settling disputes and the steps involved in each, even though most of them did not possess an informed view about how high up they might pursue their claims. Responses of participants varied on the issue of forum of first choice, but four out of six participant court users in Ringim Local Government, and a higher count in Gwiwa Local Government, indicated that the court was always their last resort in their quest for justice. (See Table 9.1)The few participants who preferred the courts were those who felt that the damage they had suffered or the infraction of their rights was so glaring, so grievous or so unexpected that they could not contain the bitterness.
Box 9.1 Court as a forum of last resort
In Ringim, people seldom think of court as the first option to resolve their disputes. They are conscious of battered relationship that is the possible side effect of going to court and they are more interested in maintaining a good post-conflict relationship. Kalla is a 50-year old civil servant in Ringim. He was aggrieved by an allegation that he considered defamatory and he reported first to the Madaki and then to Dan Iyan Ringim (the District Head). Finally, he had to file an action in court, and he got judgement in his favour in two days. “The settlement did not stop him [the defendant] from the act. The essence of tacking him to court was simple. I decided to go to court so that the court would take notice and give an injunction stopping him from defaming and threatening me.” For Talatu, a civil servant who took her husband to court on a matrimonial issue and who was satisfied with the judgement, she had no further intention of going to court as she was there in the first place because the family settlement failed. “There is nothing to take in court, whenever you see a person in court you know there is a problem”, she said. In Gwiwa, inability of the people to spare time outside of their farming chores makes court unappealing. As much as Nasirdeen of Gwiwa can observe, it is only when people are angry about a dispute that they go to court and not for ordinary disagreement about any matter.
In Ringim Local Government, which is considered urban, all the participants were found to have settled over 80 percent of disputes they have ever had through sulh. Among court users in the area, fewer went on appeal from the Shari’a Court beyond the Upper Sharia Court. Only one out of five participant court users in the Local Government had appealed a decision up to the Sharia Court of Appeal. By far the overwhelming majority of poor people interviewed used lower Sharia courts and rarely utilised their chances of
16 appeal. Most of the participants in both local governments assumed that once judgement was awarded by a judge, it was hard to get another judge who would always be an associate of the first, to upturn it (See Table 9.2). During a group discussion involving twenty participants in the more rural Gwiwa Local Government, not a single person had ever been a party to a dispute at the Sharia Court of Appeal. Only one participant had been a party to proceedings at a Magistrate’s Court while another was a witness at the Sharia Court of Appeal.
Box 9.2 Lack of interest in appeal to higher courts
People in both Gwiwa and Ringim Local Governments do not always go on appeal, even when they are dissatisfied with the outcome of their case. “I do not go on appeal because whatever the first judge decided would remain up to the end and even when you appeal they will uphold that”, so said over 50-year old Samaila, a resident of Ringim. The reason was a little different for Talatu, also of Ringim, who would not appeal because, as she said “I am under the control of my parents and they ma y not allow me to appeal.”
Generally, the subject matter of most disputes involved aspects of matrimonial issues, disagreement over land, non delivery of sale items and other incidents of breach of contract (See Box 9.3). In particular, most participants were involved in disputes specifically relating to divorce, “auren dole” or forced marriages often between a young girl and an old man, taking of multiple wives even if husband was poor, succession, disputes involving demarcation of farmlands, and conflict between Fulani herdsmen and farmers (See Appendix 8). Conflict between herdsmen and farmers were fairly common in Ringim Local Government and less so in Gwiwa Local Government. Complaints over child custody were rare and two notable cases were recorded during the studies. Hannatu of Ringim Local Government, unlike many in her position, successfully sued her husband, after he divorced her, to gain custody of these children. She was aware of the Sharia rule and practice of entrusting the young to the care of its mother until the age of puberty. The husband had kept the children with him forcibly to help him with farming chores, while Hannatu wanted them to attend school. Relatively informed as she was, Hannatu did not ask for maintenance allowance for the children and the court did not award her any even though she was entitled to it under Sharia (See Box 9.11).
Box 9.3 Subject matters of disputes
Alhaji Yusuf Mahmood, Sarkin Yara of Kazaure, summarises the types of disputes they mostly mediate: “Most cases that we handle at the traditional level in the Emirate Council have to do with marriage and divorce issues, inheritance and land disputes. These form the majority of disputes among our people.” A sizeable number of women identified auren dole and lack of maintenance by their husbands as forming the bases of their complaints. In Ringim, people identified dispute between herdsmen and farmers as an additional major cause of conflict. Review of court cases also showed that matrimonial and land cases as well as those of inheritance were rampant.
17 Similarly, divorced women who were nursing or rearing young children were found to be mostly unaware of their entitlement to demand allowances for feeding and educating their children to last up to the legal period of custody. Poverty was a bigger factor that prevented these women from protesting denial of custody. There were instances where husbands would decide to keep custody of their children contrary to the provision of Sharia and, knowing that she would not be able to cater financially for the children, women would not protest. As stated earlier, the wives were not under obligation to cater for those children in the first place. Women also suffered another avoidable jeopardy: being divorced while pregnant. One imam in Ringim Local Government was particularly irked by the prevalence of the practice of divorce meted out to pregnant women contrary to the stipulations of Sharia, and wanted the government to do something about it. Except for land cases, records of proceedings were not kept by sulh mediators or parties. In land cases, the mediators issued documents that were signed and witnessed by the parties. Although all forums entertained disputes that occurred between people of different gender and income bracket, an alkali at the Gwiwa Shari’a Court would want a certain dispute to be reserved for courts alone. Based on his previous encounters, he suggested that paternity cases were completely unsuitable for sulh and should always be taken to the courts exclusively because of the complexities and consequences involved. None of the participants had had a paternity quarrel before.
All participants had fair idea about the levels or hierarchy of sulh forum more than they had about court hierarchy. As stated previously, parties who felt aggrieved the most took the initial steps, which often was the sulh forum. Users of sulh were fairly distributed among both male and female but over ninety percent of users were poor or middle class. In consultations held with male participants in both local government areas, most of the participants were known to be poor and depended on daily outings to earn their living. As such, they had little time to spare for going to courts unless it was absolutely necessary (See Box 9.1). The fact that they did not have to make any payments and the short period involved in resolution at sulh forum made it more appealing to them.
Box 9.4 The process of sulh
Ghazali of Ringim town erected a house on a piece of land he inherited from his parents. He decided to include in his compound a tract of land on which his grandparents dumped refuse to prevent further dumping. Mukhtar was his neighbour to the south and he challenged Ghazali’s attempted claim of sole ownership of the dump site. Ghazali first took the matter to the Hakimi who directed him to Mai Unguwa and Dagaci. The parties were assembled and witnesses called, but Ghazali was not satisfied with the settlement, claiming the whole site belonged to him. He went back to the Hakimi who gathered the families concerned at the disputed premises, including neighbours, Mai Unguwa and Dagaci. The Hakimi preached to them about the virtue of good neighbourliness and he announced his award of 2/3 of the disputed area to Ghazali and the other 1/3 to Mukhtar. Everyone was satisfied and there has not been an issue involving the disputed site.
Sulh process was characterised by informality and absence of procedural rules, except for the notion that mediators and witnesses were religiously mandated to act justly
18 and that mediators were answerable to Allah for their actions. Confidentiality was also an important feature as members of the general public were not ordinarily permitted in the forum. Furthermore, the other party to sulh had to agree to the complainant’s particular avenue of settlement, although we did not come across a single situation where a purported wrongdoer rejected sulh totally or one sulh avenue for the other. Generally, people treated the Emir and other traditional mediators with high esteem, which often resulted to deference to whatever those mediators observed or decided. No change was observed on the attitude of deference given to traditional leaders even during sulh sessions when parties’ rights were determined. Where a party was not satisfied, she “appealed” to a higher sulh avenue, although this was not common or structured. More often she opted out to an appropriate court. Over two-thirds of sulh settlements studied were accepted by both parties. For women they perceived husbands’ claim of being guardians of their wives to underlie men’s attitude toward women. Men therefore tried to persuade them to leave their complaints to God instead of bringing an action in court.
Box 9.5 Perceptions of sulh forum in Gwiwa
Asabe is 34 years old. She is one of three wives of her husband and has 5 children, 2 from her previous marriage. When she was divorced by her former husband the present husband agreed only to take one of her children, the male child, from her previous marriage. Asabe failed to place the other child, who was female, with any of her relatives, especially her sister whose husband also rejected the child. Asabe reported to the parents of her husband, and after 3 days the dispute was resolved and her new husband took the other child. She chose sulh because “it is the usual practice in the community so I also chose the case to be resolved out of court.” She did not regret the steps taken because her friend was divorced with three children and the new husband refused to take any of the kids who were distributed among her relatives. She did not think gender was a factor in the outcome of sulh. For Hindatu, sulh is the norm for settling disputes if one wants lasting peace. She believes that like men, women also have equal access to the forum without discrimination and that the forum is much fairer than the court by far. She feels there is enhancement of women’s status in the family because now women also contribute to the upkeep of the family. On the overall environment of sulh forum for women, she said most women were not comfortable with sulh where everyone else except the parties and their witnesses was male. “Yes, the face to face contact with the men is not conducive especially when the woman has no education and she is not bold. Then during proceedings, men are called by the side to tell all their stories and she knows that the environment is not fair to her. And once she starts talking a bit, she will be stopped from talking, whereas the man will speak at length against the wife without hindrance.” Another lady had this to say, “The face-to-face contact is not ideal for the women. Men are usually given preferential treatment and women are cut short while stating their cases. But then, sulh is still fair but men are sometimes not ready to accept settlements.” In the opinion of Hannatu of Ringim, she would want the authorities to select responsible ladies in each ward to be saddled with the responsibility of mediating some matrimonial disputes.
If we must define a structure for sulh avenues, it would appear as follows: close relations or friends had the first shot, then the village head or Dagaci, the ward head or Mai Unguwa, the district head or Hakimi, the imam somewhere in between, and finally the Emir. The imam could take part at any stage or avenue of sulh. Dagaci and Mai Unguwa handled most of the disputes among participants (See Box 9. 4). All mediators shared in their participation in matrimonial cases. The ulama settled cases of inheritance
19 almost exclusively but rarely land cases, which were settled by the traditional leaders. Where land claims were based on inheritance, they perfectly fell within the jurisdiction of the imam. Traditional rulers came to be mediators by virtue of their positions which they inherited and they considered mediation part of their official callings. On the other hand, imams mediated voluntarily as stipulated by Islam hoping to be rewarded by Allah. The sulh forum was perceived to be fair, somehow fairer than the courts (See Box 9.5). Participants derived this perception from the historical performance of the sulh mediators on the one hand and on the other from the belief that the mediators were ultimately answerable to Allah. Mediators also considered themselves fathers of all and that once they were unfair, their reputation would become eroded over time.
The sulh process began with laying a complaint with a responsible member of the family of either or both parties. The mediator would then send for the other party for his side of the story. If the dispute was complicated and both parties stood by their claims, witnesses were invariably called and, for more complex ones, neighbours too. Mediators often employed religious suasion and reviewed Islamic textual injunctions on the merits of settlements and peaceful living among neighbours before addressing the substance of the disputes. They then impressed upon parties that mediators functioned on the basis of zumunci and that they were not alkalis, while at the same time reminding parties of the disadvantages involved in court proceedings. Sometimes, such a reminder about availability of alternative court forum was raised to a level of threat, indicating that mediators had nothing to gain in the mediation and that it was in the best interests of the parties to agree to settle.
In a focus group discussion in Gwiwa Local Government, all participants formed a consensus that they preferred mediation because they would not have to swear on oath, unlike the courts (see Box 9.6). They considered oath taking especially to support false claims as abominable and socially stigmatising. Many participants were noted to be fearful of the court. It was hard to find a case that ran through its lifecycle without having employed one sulh process or another. Thus, one could not clearly draw a wedge separating courts from sulh process. However, sulh mediators were found not to interfere or continue mediation when a party decided to take a dispute to the court.
Box 9.6 Fear of oath taking in court makes sulh even more attractive
“In the court you may be required to swear by the Qur’an, at sulh forum you will certainly not, and that is why it is sulh. Nobody swears ordinarily with the Qur’an just for mere disputes, especially if it is false. If the person does, then the alkali may be playing on one’s intelligence because he may have agreed with the party and he may have removed some portion of the Qur’an so that it will be incomplete and the oath will not be effective. But if it is complete Qur’an and he knows it, no one wants to swear.” Those were the words of Sabo of Gwiwa Local Government
The family connection as a foundation step in sulh intervention was almost the invariable first stage in cases of matrimonial disputes. In the case of wives who considered themselves abused, reporting to relatives of either or both families of the
20 parties was widespread among female participants. Where the abuse continued after such reports, aggrieved wives moved to their parents’ homes in protest of their husbands’ maltreatment. This act of temporarily disserting the husband in protest was known as yaji. The husband or, more often, his relatives or friends were expected to initiate a reconciliatory move for the return of the wife. This process or strategy was known as biko, apparently a local adaptation of the Qur’anic hakamain method earlier discussed.
Sulh intervention did not always progress in a linear fashion following the structure or hierarchy previously highlighted, but it did so with variations that could have been determined more by expediency than any other single factor. Similarly, all informal disputes did not have to exhaust their chances up to the Emir, the highest avenue in the hierarchy. Participants acknowledged that as far as informal justice forum was concerned, final “appeal” lied with the Emir directly but such appeals did not feature highly among poor people that participated in the research; and there were instances where the Emir was the first port of call.
The following disputes were successfully resolved but they did not depict a predictable hierarchy. A matrimonial dispute in Ringim Local Government was first reported to parents of both parties and thereafter to the imam where it terminated. In another incident in the same area, reported by a forty-year old primary school teacher whose husband had refused her permission to proceed with her education at a higher institution, the imam was the first choice and he settled the dispute to the satisfaction of both parties (See box 9.7). A few disputes in the Local Government relating to land were submitted first to the Hakimi who referred the parties back to the Dagaci, not because of breach of procedure but because the Dagaci was considered closest to the parties and nearest to the land in contention.
Box 9.7 Sulh lacks a predictable hierarchy
There is no determinable hierarchy for sulh, except that the Emir is acknowledged to be its final arbiter. The particular venue selected by an aggrieved party depends largely on personal considerations rather than an objective factor. Asama’u is a 40-year old primary school teacher and has 3 children. When her husband refused her permission to continue with her education, she complained to the imam who assembled the families of both spouses. The dispute was resolved shortly thereafter to her satisfaction. She has had at other times other matrimonial disputes such as complaints by others that she went out too often, that she was beyond the control of her husband and that a woman should not work. Her impression about sulh is that “it offers quick judgement and it is fair.” While when Tabawa and Amina had dispute over a landed property in Ringim, they submitted it directly to the Emir who finally resolved the dispute.
Mediators at sulh forum sometimes tried to settle minor cases of crime, especially theft, before they got blown out of control and reached the police (See Box 9.8). The stolen items were usually returned completely or in large part and the victims were encouraged not to pursue formal changes in order to protect the reputation of the family of the thief within the community.
21 There was extensive use of sulh means among all participants, male and female, such that an average participant who had been to court once would have used sulh means about ten to fifteen times. Giving a reason for choice of sulh as a means of resolving her matrimonial dispute, a female participant in Ringim town, who was above age fifty, declared that “[i]t was the tradition I saw being used for many years”, while another forty-year old female chose sulh because her “sister had her marriage case resolved in a similar way.” Nothing from our studies showed restricted access to court or restricted participation in its process, systematic bias or partiality on account of gender or wealth. No woman complained of lack of access to informal forum either, not with the venues of the traditional leaders and certainly not the family ones. If women were satisfied with the level of access to sulh forum, they were not completely so satisfied with the extent of their participation (See Box 9.5). A significant number of female participants expressed displeasure on their restricted participation in sulh process, especially where traditional leaders were the mediators.
Box 9. 8 Sulh and police relationship
In a consultation with mediators in Ringim Local Government, one Dagaci captured the popular sentiments among mediators in the following words: “ In most rural areas even when a mediator engages in sulh, the police will get to know through their secret informants and they will summon the parties and sometimes the mediators. Then one party would refuse to cooperate or even reject an accepted settlement. They are the problem to sulh in rural areas. But sometimes they do not interfere in sulh even if they know about it and they even try to enforce sulh terms after settlement.”
Courts visited in both local government areas were quite open and accessible to all. The filing fees were minimal, the procedures less technical, and the need for services of attorneys highly negligible. Filing fees used to be 50 Naira for claims that were not related to recovery of money, in which case 10% of the monetary claim was payable. Presently, litigants in the courts under study do not pay any fees as the current administration in Jigawa State is said to have withdrawn all requirements for payment of fees in those courts. For women, especially in Gwiwa Local Government, the Shari’a Court was invaluable. However, the alkali judge of the Court served in that capacity for two other local government areas of the State, ‘Yankwashi and Korial. The study observed that the courts treated all parties equally but sometimes appeared to be overly sympathetic to women. As the reviewed court cases showed, the urge to help women resulted in granting of divorce in some cases. Divorce order by the court was premature if it ignored the general practice of encouraging reconciliation or sulh among the parties. During interview with alkalis, they extolled the virtue of reconciliation before ordering for divorce, but it did not appear from the records that they followed that practice all the time. We reviewed twenty two decided cases in both local governments, eight cases each related to matrimonial and land issues. All the matrimonial cases decided by the courts were on divorce and all, except one, were instituted by women. The normal lifespan of divorce proceedings was from two to five days, and land cases took between three and four weeks.
22
Courts followed the known Sharia procedure as stressed briefly above. One Alkali in Gwiwa knew the contents of Tuhfah, the most popular treatise on Islamic law of procedure, by heart as he often cited it accompanied by page numbers. Witnesses were separated during proceedings and those that were yet to give evidence were kept away from the court premises. In practice, courts departed from the stipulated procedure in a number of respects. They often misapplied procedure leading to the evidentiary value of oath, and sometimes employed criminal sanctions in civil cases. Observations of the proceedings of these courts in both Ringim and Gwiwa Local Governments revealed extensive involvement of the alkalis in almost all the stages of the proceedings even in the presence of attorneys, while at the same time trying to remain impartial and render a just settlement. Parties were quite familiar with the proceedings, as they knew exactly the type and number of witnesses to call. The courts applied a practice that was not complex in process and procedure, as they were mandated by law to strive to achieve substantial justice rather than revel in technicality (See Appendix 3, Item viii). Not being an adversarial system, the courts in some cases awarded litigants what they deserved under the law arising from their claims, even if for some reasons (mainly lack of awareness) the litigants specifically failed to ask for those awards (See Appendix 3, Item vii).
An overwhelming number of cases filed in the courts were related to matrimonial causes, suggesting that women were heavy users of the court than men in that dispute subject-matter. Betraying its image of a bastion of peaceful living manifested in non- litigiousness, Gwiwa recorded a high rate of active women litigants in matrimonial cases. From January to July 2003, the Gwiwa Shari’a Court decided three hundred and eighty- seven cases out of which only six were non-matrimonial matters. The issue of the unexpected high incidence of women litigants in Gwiwa was ascribed to the fact that most of the women traveled with their husbands during dry seasons to other parts of the Northern States where they were exposed to city lifestyles and tastes which they insisted on keeping when they came back to rural Gwiwa. Observation at those courts further revealed that over two-thirds of court attendants in the days of our visits were female.
Box 9.9 Importance of post-conflict relationship to parties
The consideration of post-conflict relationship of the parties weighs heavily on the type of forum that is to be chosen. People always desire to keep and maintain good relationships and they will avoid going to court in order to maintain their personal relationships with their disputing partner. However, those who have actually taken their disputes to court have been able to keep their relationships even after the case. A female relative of Hindatu’s husband visited her at her residence in Ringim but took some of her jewels. She reported the matter to the police from where it was taken to court when the relative denied the allegation at settlement proceedings. A civil servant, Hindatu paid 50 Naira as court fees, got her belongings back, and still maintained her relationship with the relative. This was the first time she went to court and she added: “Even though I knew it was my case, I was so scared when I first went into the court.” Kalla who sued on defamation case also maintained his relationship with the adverse party, so did Sani who sued to recover his debt. On the other hand, Bahijatu’s matter was taken to the sulh forum. Bahijatu is over 40 years old and is one of three wives of her husband. She has been married for 12 years and has six children, all female. Her husband forced her under a threat of divorce to abort her seventh pregnancy for fear she would bear a female child again. The husband wanted her to have a male child. Subsequently when she had the eighth pregnancy, she refused to abort as demanded by the husband. He asked her to pack out of the house. She felt humiliated and wanted to die. She considered suing him in court but decided against it because it would have implicated23 her husband and the native doctor that carried out the abortion. She reported to the parties’ parents and moved to her parents’ house, where she remained for about one year and delivered her eighth baby girl. While she was with her parents, she saw a doctor to help out. Thereafter, the dispute was resolved with the joint efforts of relatives, elders, Dagaci and imams. She was satisfied with the settlement and has since moved back to her
Almost all participants who initiated sulh proceedings expressed a desire to maintain cordial relationship with the adverse party as the basic reason they avoided going to the court. Expectedly, all participant users of sulh maintained their relationships with the other party, a substantial number of them having those relationships becoming even stronger than before the dispute. Thus, in Ringim town a land demarcation dispute between a peasant and a Dagaci was settled by the Hakimi who gave the claimant all he alleged because of his weaker standing in the community compared to the Dagaci. A few years later, the claimant got married to the daughter of the Dagaci and they now had grown up children. In contrast, post-court relationship of participants was bitter, although the number of participants who actually kept their relationships going was higher than expected, four out of ten participants in Ringim Local Government (See Box 9.9). This was not the case in matters of divorce. Relationships of all participant parties involved in divorce proceedings in court in both local governments never got mended. Thus, in Ringim Local Government, all court cases successfully instituted by women for divorce resulted in permanently damaging the relationship of the parties.
In both local governments, information from participant mediators was consistent about how the police impeded the cause of mediation (See Box 9.8). The police had secret informants and once there was a quarrel or dispute, the police would know and would contact one of the parties, whether or not the dispute was settled expeditiously by mediators. The police would allegedly instigate that party to take further action with the involvement of the police, irrespective of whether the cause was civil or criminal. Mediators in both local governments voiced this concern, the veracity of which we did not verify from the police.
All the participants expressed positive views about the continued ability of Sharia to be instrumental in the resolution of their disputes. Parties to disputes felt that Sharia should be strengthened, noting that the problem was always lack of awareness of the provisions of the law to particular issues. Interestingly, a number of participants who claimed fair knowledge of the Sharia rules on matrimonial duties and rights did not know much about provisions on a wife’s entitlement to maintenance for a specified time immediately following divorce, or to entitlement to allowances for child custody.
There was no noticeable difference in procedural matters in cases involving matrimonial or land cases in all the forums. The only exception was that in sulh forum, land settlements were documented and parties to the settlement signed and retained copies for future reference or to serve as possible evidence in potential court cases. Most
24 land disputes were between farmlands or residential neighbours or between heirs (See Box 9.10). In some cases where female members were legally entitled to inherit landed property, male members tried through foul means to scheme them out. A few women had the experience of attempts at denial of their right to inherit landed property after the death of their husbands. In a particular case, relatives of the husband claimed that since the wife’s four children were below twelve years of age, the estate of the husband would not be distributed. Her action in court upheld the argument of the husband’s relatives. She only succeeded in getting her legally mandated share for herself and her children at a sulh forum.
Box 9. 10 Access to Sulh by a landowner
In Ringim Local Government, there was a dispute on proper demarcation of land between two heirs, Hadiza, a female, and Mustafa, a male. Hadiza reported the dispute to the Dagaci who called the other party and resolved the matter. Sometime later, Hadiza decided to sell off her portion and called upon her brother to purchase it if he was interested. He paid her the agreed sum in the presence of the Dagaci.
More land disputes were customarily recorded during rainy seasons than any other time. Some female participants were of the view that they often suffered bias because of their gender in land disputes. According to them, formal or informal intervention proceeded upon the assumption that men were more entitled to land than women.
All the justice forums studied were presided over by men. In Gwiwa Local Government, some women who appeared before sulh forums expressed discomfort having to show up before an all-men gathering. In a focus group discussion with women, there was a fair amount of consensus that women did not feel free most of the time expressing their complaints fully before the men mediators (See Box 9.5). Indeed, they indicated that they were sometimes told to stop talking while men were given fuller opportunity to talk. Some of the women felt prejudiced but at the same time satisfied with the outcome of sulh. Abu, a fifty-year old woman resident of Ringim town whose six children were all female, and as a result of which the husband threatened her with divorce, felt that societal prejudice against women was grievous and could affect their resolve to pursue their claims.
Fear of courts was widespread among women than men, and fear of her parents was noted by one female participant in Ringim town to be responsible for her unwillingness to go to court even as she was dissatisfied with the outcome of a settlement. Overwhelming majority of women did not feel they suffered bias or prejudice emanating from formal or informal mediators but were mainly concerned about gossips on the steps they took to resolve their disputes in courts. We observed added pressure on women emanating from the impression that they must get and remain married to survive financially and free themselves from damaging insinuations.
25 Broad indications of perceived impartiality of both formal and informal forums emerged through the studies. In a consultation with participants at Gwiwa Local Government, participants were near unanimous that they expected and often found informal mediators impartial. They indicated that from the Dagaci up to the Emir as well as the imam, mediators represented the embodiment of the uprightness of Shehu Usman Dan Fodio, founder of the Sokoto Caliphate, whose system, jurisdiction and authority have passed on to the mediators. Impressions of participants who had actually used the courts about fairness and impartiality were mixed, but most who had not used the courts before were afraid of them and were very critical of the formal forum. A few of the litigants were impressed and satisfied about the outcome of their cases (see Box 9.11).
Box 9.11 A housewife’s perception of the court
Most poor people in the two local governments are generally afraid of the courts, and most of those who had negative impression about the formal forum had not been parties to any proceedings in court. Hannatu of Ringim Local Government was in court once, after attempts to resolve her dispute with her former husband through sulh failed. Unlike many women in her circumstance, when the 45-year old trader was divorced she demanded for the custody of her children, which the husband refused because he wanted the children to carry out farming tasks. Many women do not know that they are entitled to custody before their children reach the age of puberty. Hannatu, who had Qur’anic education and knew that she was entitled to custody, wanted her children to be educated in both Qur’anic and Western forms. She attended the court twice and it took the court two weeks to reach a decision in her favour. “I was really impressed by the softness and mildness of the judge to my cause.” Those were the words of Hannatu. She particularly liked the opportunity given her to present her case against her husband. “I have not in any way whatsoever been hampered in my case presentation on the ground of gender. The only problems I faced were psychological trauma, apart from financial constraint in prosecuting the case.” Although Hannatu had custody of her children, she did not ask for maintenance allowance from the court. In Contrast, Asabe of Ringim has not been to court and she dislikes courts because, according to her, there is “corruption, waste of time, injustice, and expense.”
However, one notable participant in Gwiwa Local Government was particularly bitter about courts because the alkali allegedly forced him to divorce his wife with no reason he could explain other than a subsequent discovery by him that the alkali actually desired to marry her. He believed he suffered bias and prejudice based on his gender, as many men in that circumstance did. On the whole, less than a quarter of all participants felt that their vulnerability, manifested in feminine gender or lack of resources, had a thing to do with either the handling or outcome of their disputes in courts. Further, the alkali courts gave people what they deserved under the law even if for some reasons they failed to ask for them.
The local conditions in both local governments were similar. To overwhelming people of Jigawa State, Islam is not only a religion but represents a sacred social meaning. People endeavour to live by its tenets in the spheres of private and public lives. Marriage is extremely important, especially for women who are expected to stay married
26 to men of their choices at all times. Staying married is socially so important that oppressed women sometimes choose to remain with their abusive husbands (See Box 9.12). An imam in Ringim Local Government had to personally intervene on behalf of two ladies to take their complaints to court to ask for divorce as he was convinced about their being maltreated by their husbands who did not care about all sulh avenues employed.
Most of the women participants got married early between the ages of 12 and 14, mostly after they became too mature to hawk. This hawking-to-husband cycle perpetuated their lack of economic empowerment. Their exposure to education was for a type or level that was aimed at religious upbringing rather than for empowerment, since most of them attended only the Qur’anic school and a few others attended primary school. Although no longer widespread, auren dole, was still practised and was an observable cause of dispute (See Box 9.12).
Box 9.12 Auren dole
Rabi is now 34 years old and she lives in Gwiwa. Some years back her father gave her out in marriage to a man who was 45 years older than her. She ran away to her uncle. Later, other elders of her family and the husband’s family were assembled. When the husband would not voluntarily divorce her, she took the matter to court where she succeeded. She stated in her own words: “I did not feel anything because I hated being married then. Everybody in my family, except my father, was happy. I was lucky I was not pregnant, unlike my friend who had to wait until she delivered her baby, which was taken from her by the former husband.” Her sister also had similar experience, but it was settled and she remarried. Sabrina of Gwiwa had similar experience. She is now 43 years old but she was married off when she was very young to a person she did not like. The person tied her to a bed and forcibly consummated the marriage. She had to risk her life running away along the Gwiwa jungle that was then full of dangerous animals. She sought for divorce in the court when the sulh attempt failed. She felt she was hampered in the presentation of her case because “all men and elders of the community looking at me face to face and I was the only female among them”. She had nothing doing, she would not have remarried because of her experience and trauma which still haunts her. Even then, she is afraid of gossips of people. She believes that spousal rights would be better protected “by going to elders and to Dagaci and Mai Unguwa so long as they uphold equity”.
Married women are by law, and custom, expected to be provided full maintenance regarding decent housing, feeding, clothing and healthcare as are affordable by the husband. In return, she is expected to respect his sensibilities and manage the house. Polygyny is common, and the most common among participants is men having two wives, although Islam permits up to four wives if the interested man is able to maintain fairness and impartiality in providing maintenance and conjugal relations among the wives. Women are entitled to and do inherit from their husbands, parents and relatives and there is no restriction on the type of property they may inherit or own. Women have not been mediators beyond family and private sulh forums, but there were instances where wives of mediators (in particular wife of an Emir) had successfully helped women oppressed by rich individuals lay their claims before the Emir. Sulh mediating avenues were open to all, but our studies revealed that the higher on the hierarchy or the more public the sulh forum, the less likely it was for women to present their complaints. In
27 Gwiwa Local Government, most men were farmers who traveled with their wives to neighbouring states during dry seasons to pursue other economic activities. Divorced women got remarried fairly quickly, especially in Gwiwa.
9 c. Analysis The local practice of sulh as revealed by the studies is capable of enhancing ability of poor rural people to settle their disputes without appreciable loss of economic opportunities. The fact that no payment is required to lodge a sulh complaint and that it is considered free of blame has had impact in encouraging people to pursue their claims in sulh forums. A number of the sulh cases are such that evidence of the party claiming a right will be vague if taken to court, and sulh forum places emphasis on discontinuance of a dispute rather than entitlement to rights. Weakness in evidence and the fact that sulh is seen as an integral part of court or whatever dispute resolution forum, sets it off from statutorily mandated arbitration. It is courts, rather than sulh, that provide alternative forum, and the practice of the courts in advising parties to pursue sulh settlement in appropriate cases further enhances ability of poor people to access justice. Sulh forum has worked sometimes to upturn or soften the rough edges of cases determined by courts where a (powerful) party is known to have obtained judgement through impropriety. This practice, which is invaluable among people that do not exercise their right of appeal, has only been observed however with the Emir and not lower levels of sulh.
Compared to other non-Sharia courts of similar jurisdiction in the State or the country at large, the Sharia courts in Jigawa State dispense justice fairly quickly and without much expense. Currently, litigants do not pay filing fees and the expenses incurred relate only to transportation of parties and witnesses. General disenchantment with the courts or, in some cases, disapproval of its practice was as a result of speculation probably arising out of fear. It is not surprising that those that ventured into the courts did not exhaust appeals at local levels even when they were dissatisfied with the outcome. Courts employed brief periods of imprisonment to coerce recalcitrant parties into obedience in purely civil matters. They used this strategy apparently to dispense with cases quickly where the jailed party was proved to be the liable one, yet such practice is not sanctioned by any law or rule of court.
There is enormous societal pressure to accept sulh outcome in which mediators, family members and neighbours participated because of the communal way of living of the people. In extreme cases of discontent, this pressure, while it achieves settlement, can erode the long-term credibility of the forum. As practised in Jigawa State, sulh is not expressly mandated by any law or rule of court. It is rather traceable to the State’s Islamic heritage, as is prevalent in most Muslim societies around the world. However, the practice of inspectors is unique to Sharia courts. Sharia court inspectors, who are required to possess superior qualification than the alkalis, have power to show displeasure on alkalis almost summarily on discovery of judicial impropriety. But the emphasis on highly qualified inspectors cannot be substituted for equally qualified alkalis, although because of the higher number of alkalis, this requires more state funds.
28 Having stated this, inspectors must continue to function in a community that does not or cannot utilise its option to appeal. Overwhelming majority of people do not exercise their right of appeal, therefore the fact that appeals serve as an internal corrective measure in judicial forum is inapplicable. Therefore, if lower courts in the State do not provide quality justice, possibly under the watchful eyes of inspectors or other forms of oversight, poor people will be permanently condemned to second-hand justice.
Sulh as practised may be categorised into two, if consideration is had to mediators and their relationship with the disputing parties. These are private and public sulh. Public sulh is where the disputing parties share no familial or personal relationship with the mediator or mediators, such as where a political, traditional or religious personality intervenes, or where neighbours or notable members of the community mediate. On the other hand, private sulh involves mediation by people who are related by blood, marriage, or close acquaintance to one or both parties. Public sulh is often permanently established and is by appointment or inheritance, while the private sulh is ad-hoc or conflict-specific, lasting the period of a particular dispute. Examination of disputes disclosed that where both parties to a conflict were related, private sulh was mainly their choice forum and it always succeeded in settling the dispute, or else the conflict was referred to the court. The high incidence of divorce cases in courts is an illustration of this phenomenon. However, private sulh was not adaptable for handling conflicts where the parties were not in any way related.
Unlike the position of the mediator in public sulh, the position of alkali is not hereditary but is by appointment. However, the hereditary nature of some sulh mediators may have some significance on their fairness and impartiality because these mediators have interest in not soiling the good name of their ancestors for any instantaneous gratification. With regard to impropriety, the alkali is like any other public officer with no special family lineage or attachment to the post, so that any wrongdoing is personal to the alkali. This conclusion is strengthened by an examination of a small number of alkalis whose forefathers happen to be judges. Throughout Northern Nigeria, judge’s compound or “gidan alkali” is common in every city and village, indicating that the compound has produced an unbroken chain of alkalis and judges for a long time. These bearers of the judicial torch have been noted by researchers to be more circumspect, diligent, and upright in the discharge of their judicial duties than those who are alkalis by circumstance. Inheritance of judicial power so to say, quite unlike political or executive power, may be significant to readiness of being fair and impartial.
Justice to women was accessible provided they had the means and the courage to go against a man whether a husband, a neighbour or relations in asking for their rights. Persuasions by husbands that wives leave their complaints with Allah and to fulfil their domestic functions worked some of the times because, according to a number of women, wives had no independent economic base and they hoped to maintain their self esteem and sense of belonging in their society. Occasional reinforcement by mediators of the sentiments of husbands, which had the effect of urging women to remain in the bliss and blessing of marriage, had the effect of dissuading some women to approach sulh.
29 Sharia is at the heart of justice forums in Jigawa State at a level that is of interest to this study. It was established that laws and institutions in the justice sector greatly reflected traditional Sharia, and when moulded, it was to comply with the reality of constitutional federalism, such as stipulation that Sharia courts are bound by decisions of higher courts. It is in the area of practice or implementation by institutions or those in position of authority that rules of enacted or traditional Sharia sometimes become subjective, tilted to the benefit of those in authority, be they a husband, a male co-heir with a female, or an influential individual; or it can be a disposition that is unfavourably disposed to giving women equal opportunity to express themselves in informal forums, all of which have no basis under the Sharia as believed to have been revealed or as envisaged by policymakers. It is these areas of incongruence that present a framework for constructive intervention.
Court records in Gwiwa Local Government showed that 98% of cases handled in six months were matrimonial cases, and almost all were instituted by women. While this figure is alarming and tends to show women as an impatient lot, a deeper examination will challenge this observation. Until we know and correlate the number of divorces that men issued in the same area over the same period of time, such observation may be speculative. Under the Sharia, men do not need assistance of the court to divorce their wives, although there was a strange case of a husband who did just that in Ringim Local Government. What is certain however is that a lot of women in the areas covered were considerably not satisfied with their relationships with their husbands.
We did not have information about the reasons for divorces emanating from husbands, but most women based their divorce claims mainly on how their husbands handled the issue of polygyny, on auren dole, and lack of proper or any maintenance. While it is difficult to determine veracity of the first ground legally, the two other grounds are objective and determinable. The figures say no more than that divorce, which is permitted by Sharia but highly discouraged, is prevalent. The fact that sulh is much more ingrained in matrimonial matters has not checked the rate of divorce. There is the need therefore to properly deploy sulh to address this phenomenon in a fashion that will be compliant with Sharia. Sincere effort by former Kano State (which then included Jigawa State) in enacting a law, after commissioning a study, to establish a Matrimonial Arbitration Court did not come to fruition because of challenges based on inconsistency with the Sharia, among others.
9d). Conclusions Inexpensiveness, speediness, confidentiality, capacity to resolve dispute and still sustain relationship, and solidarity have converged to make sulh a more acceptable justice forum to a vast majority of people of Jigawa State. It is particularly accessible to poor people, men and women, and it is known all through history to be open and impartial. The forum, which mediates all sorts of civil disputes voluntarily brought before it by parties, is not known to be affected in any way by the gender of parties except as it relates understandably to women’s lack of confidence appearing and expressing themselves before mediators who are all men. Gaining physical access to sulh and accessing justice through its forum are perceived by the people of the state to be more assured compared to
30 the courts, but the forum will need to match the full opportunity for participation and expression given to women by the courts. Main disputes reported in both sulh and court forums are related to matrimonial matters and are thought to be appropriately handled; equally important to the poor are land disputes, whose outcomes are perceived by women to be slightly affected by a general disposition among mediators that men are more entitled to own land.
This study has highlighted the role that a proper understanding of Sharia and its deployment can play in reversing practices that work to impede impartial resolution of civil disputes in Jigawa State. It also demonstrates that modern interventions to enhance both formal and informal justice forums can be achieved within the framework of the Sharia legal system of Jigawa State.
In particular, the following points were examined and analysed in the study: Openness of Justice Structures • Courts, by law and practice, are open to all irrespective of whether parties are comfortable with it. • Sulh: its established practices over the years prove to be open to men and women on equal footing. Additionally, the forum is not limited to working days or working hours.
Impartiality of Procedures • Participants perceive courts to be generally impartial, except in certain cases where some of them allege court officials to be interested in a particular matter. Women parties do not complain about the requirement of number of male and female witnesses. • Sulh: People perceive its procedures to be impartial and very fair, basing their perception on the historical performance of the forum. Most women however expressed the practice of not allowing them to fully express themselves, unlike the male parties, to be unwelcome.
Equal Access • Except for fear of court that is widespread and relatively higher in female population, the court provides equal access to male and female parties. • For sulh, which has a variety of venues both private and public, the element of fear is absent and every party is comfortable with one method or the other. However, women are not comfortable when the sulh process goes higher toward the level of the Emir.
Best Practices of Justice Forums
Courts • The procedure is not complex and the filing fees are inexpensive. • Proceedings are carried out in the local language. • Alkalis are often sympathetic to women, especially in matrimonial cases.
31 Sulh: • the right to complain at all levels of the structure. • Parties and their witnesses are given opportunity to be heard. • Adopting Sulh for settlement is voluntary. • Acceptance of mediation award is not binding until it is accepted by all parties, and the settlement often does not need to be executed or monitored by anybody beyond the parties. • It is even less inexpensive. • It is time saving and prompt. • It is confidential. • It is highly advantageous for maintenance of post-conflict relationships.
Practices that Impede Equal Access Court • Failure to follow substantive or procedural rules, especially since people do not exercise their rights of appeal (e.g. ordering divorce on pregnant women, not awarding maintenance allowance to women who insist on having custody of their children).
Sulh • All mediators and attendants of forum are male, rendering women to be uncomfortable in the presentation of their cases. • Some times, women are not permitted to fully express themselves. • There are no records kept anywhere, except for land cases. • Acceptance of a few settlements by parties is sometimes informed by the expectation of deference to traditional leaders. • It is the perception of women that in both court and sulh forums, men are thought to be more entitled to own landed property than women.
Actual and Potential Areas of Interface • Courts have integrated sulh in their operations. • Courts uphold settlements to which both parties agreed. • Sulh mediators do not interfere in any way when a matter is in court. • In limited cases, the Emir has nullified the effect of judgements when such judgements were obtained by fraud. • Courts can be made to issue summons and to enforce settlements in difficult cases.
9e). Action Points Arising The following are prioritised action points arising directly from the study, and some of which were discussed with participants. Not intended as a programme design, the action points, which are sensitive to local conditions, may require further analyses and discussions. For instance, the study acknowledges that lack of maintenance of wives by their husbands, contrary to Sharia, is rampant. A strategy that seeks to enforce this right only through the courts will result in even higher rates of divorce, because the study
32 also establishes that post-court relationships of couples have never been cordial. Similarly, one cannot realistically suggest establishment of a forum of women mediators to address women’s discomfort over appearing before a gathering of men—men will simply not attend. Having so observed, there are no pre-conditions attached to any of the suggested actions and the financial implications are minimal.
Objectives What to do How For whom By whom 1. Train alkalis on Invite All alkalis of A2J Help alkalis human rights and alkalis to a Shari’a Court, consultants/ provide quality gender relations in 3-day Higher Shari’a in collabora- justice to Islam and on civil rigorous Court and tion with people who do procedure to rectify training Upper Shari’a Jigawa State not always go identified practices workshop Court Ministry of on appeal that impede enjoyment Justice of justice 2. Show that the Liaise with Emirs, Hakimis, A2J Make it mediators’ duty to “act Emirs to Mai Unguwas, consultants/ feasible for equitably” includes provide Dagacis, the Emirs women to fully providing equal education ulama participate in opportunity for women forum for public sulh to fully express their all tradition- forum grievances al leaders 3. Create a Sharia- Establish Public sulh A2J To find out based programme to alkali/ mediators and consultants major avoid- address common mediator alkalis of (first- able causes of matrimonial disputes forum level) Shari’a divorce & like divorce Courts proffer settlement 4. Awareness Sermons/ Poor men and A2J, imams, To make campaign on the rights TV-Radio women Jigawa State populace of women jingles and Government appreciate programmes stipulated rights of women 5. Work with civil Follow Farmers and A2J/ civil To address the society to sponsor normal Fulani society constant private bill on procedure of herdsmen dispute farmers/herdsmen sponsoring between the bills two groups
33 Objectives What to do How For whom By whom 6. Stop the police from Cause the The Police A2j/ Jigawa To ensure that interfering with sulh Commissio- State the Police no initiated voluntarily by ner of Government longer interfere both parties Police to in smooth issue functioning of appropriate sulh forum. order
10. Experiential Learning The team is made up of six people equally split in two locations. Initially, this proved to be a difficult challenge but it later turned out to work in favour of the team, allowing it to meet most of its schedules. Every member of the team took meetings seriously because of the fact of distance, and tasks were carried out in good time. In particular, this research has enhanced the capacity of the researchers to organise, coordinate and carry out not only tasks assigned to them but those assigned to others who were understandably unable to carry them out. Undoubtedly, members of the team have all expressed the view about enhancement of their ability to conduct participatory fieldwork research. Most members of the team had their accessible knowledge issues increase especially in the area of sulh, its method, simplicity, voluntaries and the fact that it solves a huge number of disputes of poor people largely satisfactorily and that it is a way of adjusting problems in their lives. This knowledge will be shared within the limits of the contract with colleagues and students.
34
11. Appendices
List of Appendices
1. Bibliography
2. Selected court cases.
3. Notable quotations on dispute resolution.
4. A copy of a writ of possession of land but which was later negotiated with the
plaintiff by the Emir for a settlement transfer to the defendant.
5. Map of research sites.
6. Programme of activities.
7. Terms of Reference.
8. Newspaper report on a conference over a dispute theme attended by some of
the researchers.
Other Materials Attached
1. Questionnaires (in English and Hausa).
2. Full translated cases and Sulh settlements.
3. Copies of bibliography materials.
4. Audio recordings (15 tapes).
35
APPENDIX 1: BIBLIOGRAPHY
Books, Journals and Reports
Abdallah, A, Principles of Islamic Interpersonal Conflict Intervention: A Search within lslam and Western Literature, 15 JOURNAL OF LAW AND RELIGION 151 (2001). Ahmad, A, Righting Public Wrongs And Enforcing Private Rights: Public Involvement in Islamic Law, in THE NEW “PUBLIC” 39 (2002). Ahmad, N. A., The Matrimonial Arbitration Court Versus the Traditional Islamic/Traditional Arbitration Methods, in THE CONCEPTION AND IMPLEMENTATION OF A SOCIAL POLICY, A. H. YADUDU, ed., 207 (1992). Aliyu, M. N., Matrimonial Arbitration Court and its Prospective Effects on Area Courts, in THE CONCEPTION AND IMPLEMENTATION OF A SOCIAL POLICY, A. H. YADUDU, ed., 207 (1992). Al-Nawawi, Y. S., SAHIH MUSLIM BU SHARH AL-NAWAI, Vol. 2 (1990) Dederi, H. I.: THE ADMINISTRATION OF JUSTICE BY THE AREA COURT JUDGES: A SURVEY OF GWARZO LOCAL GOVERNMENT AREA OF KANO STATE (1998). Iqbal, Walid, Courts, Lawyering, and ADR: Glimpses into the Islamic Tradition, 28 Fordham Urban Law Journal 1035 (2001). Kamali, M. H., Appellate Review and Judicial Independence in Islamic Law, in ISLAM AND PUBLIC LAW: CLASSICAL AND CONTEMPORARY STUDIES, Chibli Mallat, ed. 49 (1993). Kamali, M. H., FREEDOM, EQUALITY AND JUSTICE IN ISLAM (2002) Naniya, T. M., The Dilemma of the‘Ulama’ in a Colonial Society: the Case Study of Kano Emirate 4 JOURNAL OF ISLAMIC STUDIES 151 (1993). NOIC: WAYS OF MITIGATING CONFLICT USED BY TRADITIONAL RULERS, RELIGIOUS, ETHNIC AND COMMUNITY LEADERS OF KANO (2002). Roshash, M. A. A., How Islamic is the Matrimonial Arbitration Court? Any Alternative?, in THE CONCEPTION AND IMPLEMENTATION OF A SOCIAL POLICY, A. H. YADUDU, ed., 207 (1992). Ruccella, Rosemarie. 1998. Muslims Call for Mediation in Canadian Courtrooms, at
LAWS
Laws of Jigawa State of Nigeria 1998 Shari’a Court (Administration of Justice and Certain Consequential Changes) Law 2000.
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APPENDIX 2: SELECTED COURT CASES
I. Magaji v. Dandi: (Ringim Upper Shari’a Court) 22/5/2003. CV/151/2003. Rare Divorce case instituted by husband, role of the Alkali The plaintiff urged the court claiming two things: to get the court affirm his earlier divorce of defendant wife from the day judgment was delivered and to order her to stop disturbing his peace. The court ensured that defendant was not pregnant nor observing her monthly period, but that she was nursing a nine-month old baby girl. The court awarded judgement in favour of plaintiff on both counts. Even without defendant demanding for it, the court ordered plaintiff to give maintenance allowance to defendant as she was nursing his baby. The case lasted 3 days. Comment: Islamic law permits a husband to divorce his wife without the intervention of the court, and so divorce cases are rarely instituted by males. The wife needs to go through the court. Furthermore, the case typifies the overbearing role of the Alkali whose interest, in normal circumstances, is always to apply the rules of Islamic law to a dispute as he deems fit, even if a party does not ask for an award. A number of parties do not ask because either they are not aware of their rights or those rights have been shrouded by some customs and traditions. The role of the Alkali in this case is commendable as he tried to find out whether the wife was pregnant, since divorce during pregnancy or during menstrual period was not permitted under Islamic law. Non-court divorces by husbands do not often fulfill these requirements.
II. Alkali v. Kafinta, Upper Shari’a Court Ringim, CV/22/2001, 21/8/2001: detention in civil case. Plaintiff sought to recover her cupboard cabinet she gave to defendant carpenter for repair. She denied that a particular cabinet brought to court by defendant was her own because it looked inferior. The court required defendant to take an oath but he refused. He was detained and later he was ordered to make payment for the cost of the cabinet. The case took four days. Comment: The record did not indicate whether plaintiff was asked to call witness before requiring defendant’s oath of rebuttal; and the detention of defendant was inappropriate.
III. Tela v. Garba. Ringim Upper Shari’a Court CV/69/2002, 25/6/2001: Trespass to Farmland: sulh and court interface Plaintiff sued claiming that defendant had trespassed on his farmland by planting crops on it. On the next adjourned date, plaintiff informed the court in the presence of defendant that they had resolved the matter amicably. The court then affirmed the settlement. The case lasted three days.
IV. Dogamare v. Ubawa. Ringim Higher Shari’a Court. CV/151/2003, 26/2/2002. Divorce. Interface Plaintiff sued her husband seeking divorce on the ground of unfair treatment, compared to the other co-wife. Defendant admitted the allegations but offered some flimsy justifications. The court adjourned, giving the parties time to resolve their differences. Having failed to amicably resolve, the court granted the divorce. The case lasted six days.
37
V. Marayata v. Nasiru. Gwiwa Shari’a Court. CV/110/2003 8/3/2003. Divorce Plaintiff wife sued for divorce. On hearing the claim, defendant gave his permission for the divorce and judgement was rendered accordingly. The case took three days. Comment: The court failed to urge the parties to reconcile before delivering its judgment.
VI. Kundiga v Kundiga: Gwiwa Shari’a Court. CV/253/97. 8/6/97. Admission. Soon after plaintiff wife was divorced by defendant, she sued him to recover her farmland that she had allowed him to use for his purpose. Defendant admitted the claim. He however requested that he be allowed to harvest the farm before he handed over the farmland to plaintiff. Judgement was so ordered. The case lasted six days.
VII. Fawa v. Mairuwa. Ringim Higher Shari’a Court. CV/527/2003. 27/6/2003. Land case, admission. Plaintiff sued to recover the sum of N30,000.00 being the purchase price of a piece of land purportedly sold to him by defendant. Plaintiff found out that the piece of land belonged to someone else and the title documents were forged. Defendant admitted the claim, adding that he was fronted by another person. He undertook to repay the money. The court ordered him to pay the purchase price within one month.
VIII. Murtala v. Dije. Land Case. Emir involved with negotiation with the successful party to maintain communal solidarity. Plaintiff was the heir to a piece of land in Kazaure but he was ignorant of this fact for a considerable length of time, believing as everybody else that the possessor who was let in by the deceased father of plaintiff was the actual owner. When he knew the facts he brought this case and the court awarded him the house (see Appendix). However, the defendant had been in possession for an unbroken period of over 30 years and the reliance of the mistaken fact was so devastating to the community. He had so many children and had nowhere else to move. A sulh process was initiated with mediators including the new alakali of the court that awarded the judgement and the Emir of Kazaure. It was finally resolved that equity was in the side of the plaintiff selling the house at a price he agreed to the defendant since he had an alternative house and had less attachment to the particular house. Plaintiff agree and the parties became closer after the settlement.
IX. Two cases of husband-on-the-run taken to both forums Hajara’s husband went away for a long period of time. She waited for six years before she finally gave up. During this period she tried all she could and when she heard he was in Benin City, she tried to no avail to contact him. The husband’s relatives were very supportive of her psychologically and financially, and shared in her anxiety. After notifying both parents of the parties, it was the imam with assistance of Mai Unguwa that finally resolved the matter.
In contrast, in the case of Kuna v. Barau filed at Gwiwa Sharia Court, plaintiff wife sued for divorce on the ground of absence of her husband for a period of 7 months. The court ordered defendant husband, who was thought to be somewhere in Bauchi State, to appear
38 before it. However, there was no trace of defendant and the court delivered judgement on 5/3/2003 granting the divorce. The case lasted 2 weeks. (Under Islamic law, protracted absence of husband is a good ground for divorce.)
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APPENDIX 3: NOTABLE QUOTATIONS ON DISPUTE RESOLUTION
I. Chapter 4 (Chapter of Women) in the Qur’an: “If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from her’s; if they both wish for peace, Allah will cause their reconciliation.” 4: 35. [See p.12]
II. Chapter of Women “And if a woman fears cruelty or desertion on her husband’s part, there is no sin on them both if they make terms of peace [sulh] between themselves; and sulh is best.” Qur’an 4: 128. [See p.12]
III. Chapter of Women “O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves..” Qur’an 4: 135. [See p.14]
IV. Prophet Muhammad’s (peace be upon him) Statement “I am but a human being. When you bring a dispute to me , some of you may be more eloquent in stating their cases than others. I may consequently adjudicate on the basis of what I hear. If I adjudicate in favour of someone something that belongs to his brother, let him not take it, for this would be like taking a piece of hell.” [See p.14]
V. Advice by Caliph Umar to Judges “Use your own understanding and judgement when disputes are placed before you…Let all men be equal in your sight, in your court and in your judgement, so that the strong may not hope to sway you into injustice, nor is the weak led to despair in your justice. The burden of proof lies on the shoulders of the plaintiff and the oath is upon the denying party. Compromise is permissible among litigants unless it renders into halal (lawful) what is haram (forbidden) or forbids what is lawful. And let not a judgement that you rendered yesterday, and then upon reflection and reconsideration you find that it was incorrect, deter you from returning t the truth. For truth is timeless and returning to truth is better than continuing in falsehood.” [See p.14]
VI. Prophet Muhammad’s (peace be upon him) Statement
40 “Sulh is permissible between the people, except one which would make illegal that which is legal or make permissible that which is illegal.”
VII. Communiqué “Ignorance about Islamic law by women is the biggest threat to their rights and access to justice under the Sharia. Under Islamic legal system, there is no deliberate policy of bias against women. However, with regard to protecting rights and securing access to justice for women, it is necessary to prevent biases borne out of cultural, personal, or selfish reasons or even ignorance.” Communiqué of a conference on Women’s Rights and Access to Justice under the Sharia in Northern Nigeria held in Abuja 28 February, 2003. [See p.23]
VIII. Sharia Court Law of Jigawa State (2000) S. 47 “No proceedings in a Shari’a Court and no summons, warrant, process order or decree issued or made thereby shall be varied or declared void upon appeal or revision solely by reason of any defect in procedure or want of form but every court or authority established under this law and exercising powers of appeal or revision under the Law shall decide all matters according to substantial justice under the principles of Islamic Law.” [See p.23]
41 APPENDIX 6
TASKS, RESPONSIBLE PERSONS AND TIMELINES
No. Tasks Responsible Person(s) Timeline Initial visit to LGAS and final selection of venues Tabiu/Ahmad/Audi/Sada 24/6/03 for Interview and observation Community Mobilizers Audi/Sada/Ahmad 3/7/03 Literature Review Ahmad/Sada 8/7/03 Obtain, Translate & Summarise Court Records N. Ahmad 8/7/03 Weekly Report Ahmad/Sada 30/6/03 Development of Research Questions Audi/Ahmad/Sada/Sani/ 5/7/03 Abdulkarim Pre-testing/Finalising of Instruments Same 6/7/03 Review of Rules, Structures and Processes of Sada/N. Ahmad 1/8/03 Formal and Informal Dispute Resolution Forums under the Sharia Overview of Laws and Policies applicable in Sada/N. Ahmad 25/7/03 Jigawa State to Dispute Resolution Documenting System Structures of Justice forums Sada 18/7/03 Obtaining Records of Administrative Policies and Sada/N. Ahmad 1/8/03 Local Practices on (In)formal justice Forums Financial Reports Audi/Ahmad 1/8/03and 15/8/03 Data Collection: 21 July to a. In-depth Interviews of Emirs, Ulamas, Village 2nd Heads and Judges Sada/Ahmad/N.Ahmad ) August, 2003. b. In-depth Interviews of females Sani/Audi/Abdulkarim )
c. In-depth Interviews of males Ahmad/Sani/N. Ahmad )
d. Observations at Selected Forums Ahmad/Audi/Sada/Sani ) Abdulkarim ) e. Focus Group Discussion Same ) MODERATOR: Audi Data Analysis and Interpretation Audi/Ahmad/Sada/ 4-8/8/03 Genderization of Analysis Audi/Sani/Abdulkarim 7/8/03 Deliverables Ahmad/Audi - Detailed Draft of Contents of Final Report Ahmad/Audi/Sada 1/8/03 Draft of Final Report All 8/8/03 Complete Final Report Ahmad/Audi 15/8/03 Report Editing Sada/Audi - Overall Coordination Ahmad -
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