Resolution of Civil Disputes in Jigawa State (Nigeria)
Total Page：16
File Type：pdf, Size：1020Kb
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 2 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 3 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. 4 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. 5 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.