Applications of Legal Maxims in Islamic Criminal Law with Special Reference to Shari `ah Law in Northern Nigeria (1999-2007) Luqman Zakariyah A thesis submitted to the University of Wales, Lampeter In partial fulfilment of the requirements for the Degree of Doctor of philosophy University of Wales, Lampeter 2009 BEST COPY AVAILABLE Variable print quality Abstract The Subject of Islamic legal maxims is one of the sciences in Islamic jurisprudence which aphoristically subsumesall the spectrums that purpose of Sharl`ah is all about. There are six basic Islamic legal maxims agreed upon among the Islamic scholars on which the tenet of Islamic law is based. Each one of these six legal maxims has some sub-maxims which are either functioning as further explanation to the grand maxim or condition and restriction to it. This thesis attempts to analyze those six legal maxims and their sub-maxims in relation to Islamic criminal law. Each maxim is theoretically and empirically studied. In doing so, the thesis emphasizes on the link between each legal maxim and the overall objectives of Islamic law in relation to criminal law. The maxims are: (1) the roles of intention in a criminal act (a1-'umcir bi magasidiha), (2) evaluation of evidence from its certainty and doubt (al yagln lä yazül bi al-shakk), (3) facility guaranteed in the face of hardship (al- mashagqah tajlib al-taysir), (4) preference of Islamic law in eliminating harm (al-darar yuzäl), (5) the locus standi of custom (al-`adah muhakkamah) and (6) the effect of utterances ('i `mä1 al-kaläm awli min ihmiiih! ). Each one forms a chapter of the thesis and in addition, there is a first chapter which delves into the concepts of Islamic Legal Maxims (al-Qawi'id al-Fighiy)eah). In order to make the theory of these six legal maxims empirically visible, and to integrate the work of the past and the present,cases judged in Northern Nigeria Shari `ahcourts are critically illustrated in line with the overall objectives of Islamic Law (Magiyid al- Sbari'ab). The constant questions raised in the thesis are: Do judges consider core principles of these legal maxims when delivering verdicts? Do the verdicts corroborate/ commensurate/ extrapolate the tenet of Islamic Law? Is attention paid to the cardinal difference between the rights of God and the rights of mankind in evaluating crime brought before the judge before giving judgments? Declaration/Statements Declaration This work has not previously been accepted in substances forany degree and is not being concurrently submitted in candidature for any degree. Statement 1 This thesis is the result of my own investigation, except where otherwise stated. Other sources are acknowledged by footnotes giving explicit references. Any unpublished or unreported cases used in this thesis are referredto in the appendixes. Statement 2 I hereby give consent for my thesis, if accepted, to be available for photocopying and inter-library loan, and forthe summary to be made available to outside organisations. Signed...... Date ••....•.•.••.?:./ ...r.l..� .... ) .................................. ii ACKNOWLEDGMENT First and foremost, I give sincere thanks to Almighty Allah for giving me the ability to complete this work. Without Him (Subhnnahu Wata'äla) I would not have been able to contemplate this work, let alone to complete it. For six years I have worked on this thesis and despite many waves which have risen up in my way I continued firmly by Allah's grace until I reachedthe end of the journey. Next, I will appreciate the invaluable contribution of my supervisor, Dr. Dawoud El- Alami. It has been my humble privilege to complete this work under his supervision. By Allah and my supervisor, my vision and my dream are achieved. His advice on how to frame the final topic of the thesis deservesmuch praise. Another special thanks goes to my former supervisor, Dr Zaki Badawi, (the former director and founder of The Muslim College London). It was he who began supervision of this work before he passedaway from this earth. I commend his effort and appreciate his contributions, not only to my work, but also for his servicesto the Muslim community in particular and to the world in general. My humble thanks go to Professor Mashood A. Baderin of School of Oriental and African Studies (SOAS), University of London who is my external examiner for his critical evaluation and constructive suggestion.I also appreciatethe thorough reading and professional input of Dr. Rob Warner, head of the department of theology and religious studies, University of Wales, Lampeter, who is the internal examiner. I would also like to thank all membersof staff at the Muslim College for their cooperation and understanding during my transition from their college to the University of Lampeter. My sincere thanks also go to my name sake, Dr. Shakykh Luqman Jimoh of the department of Religions, Lagos State university Ojo, Nigeria, Brother Abdul Basit Mukhtar of OIC Jeddah, Dr. Ishaq Olatunbosun of The American University Shariqa UAE, Ustazdh Abdul WaheedAdebisi, Ahmad Agbaje and to host of others all of whom are very much appreciated. I am also indebted to some government and academic institutions, both in Britain and in Nigeria for their considerable assistance. In Britain, I would like to thank the staff " members of the University of Birmingham Library, the University of Edinburgh Library, the University of Wales Lampeter, the British National Library, London and the Scottish National Library Edinburgh, for giving me accessto their invaluable recourses and for helping me in acquiring materials which are not available in their libraries. In Nigeria, I would like to thank the ministries of justice Kano State and Zamfara State; Sharia Courts in Zamfara, Kano, Kastina and Kwara States; Faculties of Laws at Usmanu Danfodiyo University, Sokoto, Ahmad Bello University, Zaria and Bayero University, Kano Library for allowing me to get some relevant cases and materials for this work. I appreciate the help of Dr Toafiq Ladan of the Faculty Law, Ahmad Bello University, Dr. Mansur and Dr. S. 0. Rabiu of the Faculty of Law, Usmanu Danfodiyo University, Sokoto. I am indebted to my beloved family for their love and encouragementsgiven to me during my lengthy period of study. I especially thank my two daughters, Hikmah and Ummul Khayr for the sacrifices they have made and for the parental time lost during the course of my study. I give my highest degree of thanks to my both parents for their sincere prayers while they were alive. I pray to Allah (SWT) to make their souls perfect in the grave and to reward them with paradiseon the day of resurrection. To all my colleagues at my former college and my present university, I extend my deepest appreciation for their overwhelming support and wholehearted encouragement during my time with them. Human beings are not infallible, thus, weaknessesand faults are inextricable from their works. I admit that this thesis is subject to that nature. I sincerely welcome any comment, advice and suggestionabout how to improve this work. However, to Allah is perfection becauseof His infallibility and I submit this humble work in submission to Him SWT. Luqman Zakariyah Department of Theology, Religious Studies and Islamic Studies University of Wales, Lampeter, United Kingdom, 2009. iv TABLE OF CONTENTS Abstract i Declaration/ Statement ii Acknowledgement iii Table of Contents v Notes on Transliteration xviii List of casesreferred to xx Introduction 1 Northern Nigeria Implementation Shan"ah Penal Code and of .7 Constitutionality of full Implementation of Shan'`ahin Northern Nigeria 10 Codification of Islamic penal Law for Shari 'ah Statesin Northern Nigeria 12 Human Rights concerns about the implementation of Share `ah in Nigeria 14 Aims and Objectives of the research 16 Scopeof the research 17 Problems encounteredduring the research 17 Literature Review 18 ResearchMethodology 21 Structure of the thesis 22 Chapter One: The Concept of A1-Qawä`id al-Fighiyyah (Islamic Legal Maxims) 1.0 Introduction 25 1,1 Definition of Al-Qawä `id a1-Fighiyyah 25 1.1.1 Literal Meaning of Al-Qawä `id al-Fighiyyah 25 1.1.2 Technical Meaning of Al-Qaw F id al-Fiqhiyyah 26 1.1.3 Difference between Al-Qawä `id al-Fighiyyah and AI-Qawä `id V al-Usciliyyah 31 1.1.4 Difference between Al-Qawä `id al-Fighiyyah and AI-Dawäbit al-Flghiyyah 33 1.1.5 Difference betweenAl-Qawä `id al-Fighiyyah and a1-Nazariyyahal-Fighiyyah 35 1.2The Historical Development of Al-Qawä `id aI-Fighiyyah 38 1.2.1 The Primitive Stage 38 1.2.2 The FlorescenceStage 42 1.2.3 The Maturity Stage 46 1.3 The Sourcesof Al-Qawä `id al-Flghlyyah 49 1.3.1 The Holy Qur'an 50 1.3.2 The Hadith of the Prophet 52 1.3.3 The Ijmä ` (Consensus) 53 1.3.4 The Expression of Mujtahidcin (Islamic Scholars..) 54 1.4. Categoriesof AI-Qawä `id aI-Fighiyyah 54 1.4.1 In terms of the Scope 55 1.4.1.1 AI-Qawä `id a1-Fighiyyahal-Kulliyyah (The Basic general Legal Maxims) 55 1.4..1.2A1-Qawä `id al-Fighiyyah al-Mustagillah (IndependentGeneral Legal Maxims) 57 1.4.1.3 al-Dawäbit al-Fighiyyah (Topical or Controller Maxims) 57 1.5. Importance and Roles of AI-Qawä `id al-Fighiyyah 58 1.5.1 Importance of AI-Qawä `id al-Fighiyyah 58 1.5.2 Roles of Al-Qawä `id al-Fighiyyah 59 1.6 Summary of the Chapter 62 VI Chapter Two Analysis of Legal Maxim a1-'Umurb1Mag4idihs (Actions are considered together with their intentions) 2.0. Introduction : Action (al- `Ama!) and Intention (al-Niyyah) in Islamic Criminal Law 63 2.1. Definition and interpretation of the Maxim al-'Umcarbi Magäsidihä 64 2.2.