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									    Religion and Secular Constitution: Human Rights and the Challenge of Sharia

                                             Sam Amadi 1

Introduction:

         On September 25, 2003, a Sharia Court of Appeal in Katsina, Nigeria 2 reversed

the conviction and sentence of death passed o n Amina Lawal in March 2003 by a Sharia

court3 . The reversal has been hailed as a victory for justice by feminists, human rights

activists and secularists who criticize the death sentence, as well as by Islamic clerics and

Muslim fundamentalists who support the introduction of Sharia criminal law in Nigeria .

Who is right? Is it the Sharia advocate or the secularist? Is the appellate verdict a victory

for those who challenge the introduction of Sharia criminal law and the conviction of a

rural woman for the crime of adultery? Or is it a victory for the religious leaders who

insist that the Sharia system is fair and just? Again, what does the introduction of a

religious criminal law by a democratically elected legislature in a constitutional

democracy, and the death sentence for adultery tell about the challenges of protection

human rights when religion mixes with politics?

                                                                          h
         Human rights organizations inside and outside Nigeria, including t e Human

Rights Watch, the Amnesty International and the BOABAB for Women Human Rights ,

condemned the conviction and sentence as violation of Amina Lawal’s rights to equal


1
  Sam Amadi holds a law degree from Nigeria and a Master of Public Administration degree from the
Kennedy School of Government. In November 2004, he receives SJD (PhD equivalent) from the Harvard
Law School. This essay grows out of class work for Michael Ignatief in 2003 and research as a fellow at the
Carr Center for Human Rights Policy. I thank Michael Ignatief and Michelle Greene for their support.
2
  The court here is the Katsina Sharia Court of Appeal. Since the beginning of colonial administration
Nigeria runs a dual court system. There are courts that administer customary laws and English (state) laws.
So the court structure proceeds from two tracts and converges at the apex with the Court of Appeal and the
Supreme Court. The Sharia Court of Appeal is the highest court for Islamic matters. See Akintunde
Obilade, The Nigerian Legal System (Ibadan: Spectrum Law Publishing, 1979).
3
  Upper Sharia Court in Funtua, Katsina State, one of the Sharia courts created by some States in Northern
Nigeria since 1999


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treatment under the law, human dignity and freedom from discrimination. The

condemnation goes beyond the trial itself. These groups condemn the institution of

Islamic criminal law in a secular democracy with a constitution that guarantees equal

rights under the law. 4 The groups further criticize the federal government for permitting

states to implement criminal laws that derogate from the secular and democratic

constitution.5

         Both the trial and the establishment of Islamic criminal law in a secular

democracy6 with a constitution that proclaims commitment to basic human rights and a

government that covenants under international human rights treaties to protect human

rights pose complex challenges to human rights and the rule of law. 7 This paper analyzes

the comp lexities of the Amina case and the Sharia debate in Nigeria as they relate to the

protection of basic human rights within a secular constitution. It relates the problem of

accommodating Islamic religious demands of Sharia proponents to the necessity of

defending the equality and freedom of Nigerian citizens, and queries whether the tension



4
  The Nigerian Constitution 1999 follows the tradition of constit utions since independence in 1960 to
guarantee all the basic human rights under International Covenant on Civil and Political Rights (ICCPR).
The history of constitutional protection of human rights in Nigeria began as a response to fear of ethnic
minorities that they would be oppressed by majority tribes after the exit of colonial administrator. The
Willink Commission in 1958 recommended human rights protections for minority ethnic group before self -
rule.
5
  See joint statement issued by Amnesty Internation al and Baobab for Women Human Rights dated March
25, 2002 and circulated via internet.
6
  Nigeria returned to the path of democracy in 1999 after a devastating decade of military rule. Chief
Olusegun Obasanjo, a former military ruler and political prisoner of the last military dictator, Gen Sani
Abacha, was sworn in as President. Although, democracy is yet to fully consolidate in terms of good
governance, Nigeria has managed to maintain a good enough democracy. Nigeria’s democracy may be in
the category of “ illiberal practices and shallow institutionalization” of democracy. See Larry Diamond,
“Developing Democracy: Toward Consolidation (Baltimore: John Hopkins University Press, 1999), page
20
7
  Nigeria ratified both the ICCPR and the African Charter on Human and Peoples’ Rights. Nigeria has also
incorporated the African Charter as part of its domestic law. The Nigerian Supreme Court has held the
African Charter obligations to be obliging and superior to local legislations. See Chapter 10 of the Law of
the Federation of Nigeria, 1990. See Abacha v. Fawehinmi (2000) ICHRL) 23 (delivered on 28 th April,
2000)


                                                                                                         2
(or contradiction) between ‘democracy’ and ‘equality’ in this case does not indicate a

crisis for human rights interventio n in the context of disruptive pluralism.



Amina Lawal: a Rural Woman Provokes a Debate

        The woman in the midst of the legal storm was unknown and invisible in the

political and religions conflicts that have become periodic features of Nigeria’s unsteady

march as a multi-religious state, until a Sharia court in Katsina State convicted her of

adultery. Amina, a 30 years old mother of three children and divorced when she was 14,

was prosecuted for adultery for having a baby out of wedlock. Amina, in her poverty,

represents the many women in Nigeria who are at the receiving end of a predatory state

and male-dominated social order.

        During her trial she had no legal representation. She was convicted of adultery on

the evidence of her baby whereas the alleged father of her child was discharged because

he denied the charge and there was no sufficient evidence against him. 8 Under the Maliki

School of Islamic jurisprudence that predominates in Northern Nigeria a woman is

convicted of adultery upon her confession, or the existence of a pregnancy or a baby, if

she is unmarried or divorced. 9 But convicting the man in the absence of confessional




8
  Amnesty International, “Save Amina from Death by Stoning” Urgent Appeal, posted on
http://www.mertonai.org/amina/amina.asp. Visited on November 10, 2002
9
  Most of the eleven states in Northern Nigeria that have enacted Sharia criminal Law follow the Maliki
School of Islamic law. Often the Maliki School is treated as homogenous legal tradition. But there are as
well so many different perspectives in the Maliki School. Mukhtasar of Khaleel, the magnum opus of
Maliki law stipulates that in the case of pregnancy in a woman, even a claim of rape will not avail unless
corroborated. See Minah-al-Jaleel, Sharh’ala Mukhtasar Khaleel, p:255-259 cited in Sanusi Lamido Sanusi,
“The Hudood Punishments in the Northern Nigeria: A Muslim Criticism, October 1, 2002, paper prepared
for ISIM News, quarterly publication of the Institute for the Study of Islam in Modernity, Leiden, Holland


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statement requires four credible and reasonable witnesses who testify that they each

caught the culprits in the very act.10

         It is pretty difficult to have such witnesses to a single sexual act. Therefore the

court easily lets off male offenders while the females are quite easily trapped by

evidential rules. Some human rights groups who opposed the Sharia system point to such

evidential requirement as discrimination on grounds of gender.11 Such discriminatory

practices constitute some of the serious challenges to the concept of Islamic justice in

Nigeria’s plural democracy and the bedrock of the conflict between religious leaders and

secular legalists on constitutional accommodation for Sharia criminal law.

         But, it is rather simplistic and even false to think that the process of establishing

the offence of adultery against a woman is that easy. There is an established tradition in

Islamic jurisprudence, including the Maliki School, that the offence of adultery is almost

impossible to prove against a woman who is either married or divorced. 12 This was

manifested during the Amina Lawal’s trial. By the time she was charged for adultery he

had already separated from her husband for two years. She confessed to the crime at first

trial. Later on appeal she withdrew her confession. Her lawyer alleged the offence (Zina)

was described in Arabic which she does not understand and that the alleged offence must

have occurred before the Sharia law was enacted. Her defense was disallowed by the


10
   In the Maliki tradition this is made more difficult by the requirement that the witnesses meet some strict
standards of standing in Islamic society to be reasonable and that they each witness the sexual act one after
the other, not as a group.
11
   Baobab for Women Human Rights and Amnesty International are such organizations. In their news
release of March 25, 2002 they argued against the conviction of Safiyyatu Yakubu Hussaini for adultery
that Safiyyatu’s sentence to death for adultery on the basis of her pregnancy was discrimination on the
ground of gender
12
   The checks and balances erected the conviction of a married or widowed woman for adultery in Islamic
law, especially under Maliki is so exacting that “for all practical purposes pregnancy is not proof of Zina in
previously married woman in Maliki law”. See Sanusi, op cit. page 11. In the case of unmarried women the
punishment is simply 100 lashes of the cane.


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intermediate appeal court. She further appealed to a higher Sharia court. By a verdict of

three against one, the Sharia Court of Appeal held that her trial was improper because the

required numb er of witnesses did not testify; her pregnancy was within the prescribed

limit of 5 years after cessation of marital relationship and the trial court was wrongly

constitute by one judge instead of three.13

         Although Amina’s trial touched off the most pervasive and trenchant attack

against Sharia in Nigeria, she was neither the firs t nor the last victim of Sharia criminal

law. Before Amina, another poor, rural and divorced mother was tried without leg al

representation and sentenced to death for adultery. Like Amina, her alleged partner

denied the charge and was acquitted bec ause there could be no four eye witnesses to the

act. Like Amina, her sentence and conviction was quashed on lack of procedural du e

process. Before then, Mallam Buba Bello Jangadi, a Fulani cattle farmer of Zamfara was

amputated on the orders of a Sharia court after conviction for stealing a neighbor’s cattle

valued at about $100. 14 Ever since, many more people have been found guilty of Sharia

offences and punished, although no one has been stoned to death for adultery yet.



         Sharia and the Breach of Incomplete Liberal Legality




13
   See “Appeal Court Quashes Death Verdict on Amina Lawal”, Vanguard Newspaper of September 26,
2003 online version on,http:allafrica.com/storie/printable/200309260467.html
14
   Jangadi was arrested and prosecuted by a local vigilante group set up by the Governor of Zamfara State
to enforce the new Sharia penal law. His amputation was widely criticized by human rights NGOs and civil
society groups in Nigeria. Mrs. Ayo Obe, President of the Civil Liberties Organization decried the injustice
of punishing mere stealing with amputation whilst public officers who steal billions of naira go scot -free.
See Ayo Obe, “The Meshing of Legal Systems: The Challenge of Shari’a” 2002 page 27, paper presented
at a conference on “Nigeria: Unity, Governance, Law, and Conflict” organized by the World Peace
Foundation at the Kennedy School of Government, Harvard University, 12 -14 December 2002


                                                                                                          5
        Sharia criminal law unsettles the frameworks for accommodating religious

convictions in public policy under l iberal legality in Nigeria. 15 The accommodation began

with colonialism and continued after independence until in 1999, at the advent of civil

rule after many years of military dictatorship, Governor Ahmed Sani of Zamfara State in

Northern Nigeria put a knife to work to redraw the structure of the relationship between

religion and politics in Nigeria. The Governor campaigned on the banner of the

restoration of Islamic justice- a populist theme that resonated among the poor and

oppressed people of Zamfara who had become disenchanted with the malfunction civil

law system.

        In 2000, the Sharia Penal Law of Zamfara state came into effect. The law created

different Sharia courts with full criminal jurisdiction to try offences ranging from trivial

crimes like possession, sale and drinking of alcoholic beverages to other more serious

offences like prostitution and adultery. The law recognized a guild of Islamic clerics who

could act as judges of Sharia court s and grants them power to award the death penalty-

stoning in the case of adultery by a married or divorced woman. The role of the public

prosecutor was more or less performed by a vigilante group set up by the Governor- the

Hisba- otherwise called the “Sharia Police”. Many other states (at the last count eleven

states) in the north have followed the path of introducing Sharia criminal laws. In effect,

legal dualism in Nigeria has taken a trajectory contiguous to its geo-political dualism.




15
  For discussion on the debate on Sharia and public law in Nigeria during and after independence in 1960
see the following: Simeon Ilesanmi, “Constitutional Treatment of Religion and the Politics of Human
Rights in Nigeria”, African Affairs, 100, 2001, pages 529 -554; Ikem Bu Chukwu Ngwoke, Religion and
Religious Liberty in Nigeria Law (from colonial days to 1983) (Roma, 1984) and JND Anderson, “Islamic
Law in Africa: Problems of Today and Tomorrow” in Anderson (ed.), Changing Law in Developing
Countries, (London, 1963)


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The mainly Islamic north operates a mixture of religious and civil system and the mainly

Christian south operates a civil law system atop rudimentary customary law.

        The severity of the constitutional crisis engendered by the reintroduction of Sharia

criminal law is appre ciated in the narrative of the politics of state and religion in Nigeria.

Before the British colonialists clobbered together the different nationalities that make up

Nigeria in the 1900s, Islam was already established in most part of what became northern

Nigeria. The British met a well established caliphate with institutionalized state religion.

In the bulk of northern states ruled by the Muslim emirs or under their suzerainty , Sharia

was both a religious and legal code. In some places the strict principles of Sharia were

modified to meet the justice of the local cult ure or political exigency. As Frederick

Lugard, the architect of colonial Nigeria observed, “The administration of Muslim Law is

modified by local law and custom in the pagan Districts, provided that by so doing the

judge does not directly oppose the teach ing of the Quran”.16

        Although by 1900 the British have defeated the armies of Fulani Muslim rulers of

northern Nigeria, they were still faced with stubborn resistance . These local rulers refused

to accept colonial administration based on fear that Islam would be overthrown and

replaced with Christianity. The colonialists acted wisely with the Islamic caliphs who

held sway in northern Nigeria. They agreed not to interfere with the religious

arrangement in the caliphate. They accommodated both the feudal polit ical system and

Islamic legal order entrenched in the caliphates . Still, there remained the problem of what

to do with Islamic justice. Thus began a process of transformation and subordination




16
  Lord Frederick Lugard, Political Memoranda. See also Karibi-Whyte, History and Sources of Nigeria
Criminal Law (Ibadan: Spectrum Publishers, 1993) pages 131-132.


                                                                                                      7
which culminated in the proscription of criminal components of the Islamic legal system

in 1960.

         What the colonialists did in Nigeria is similar to what they did elsewhere in

Africa. They began a process of legal pluralism that consisted in constraining local justice

within the framework of ‘cosmopolitan’ conception of western justice. His Majesty’s

government promulgated several colonial ordinances to redefine customary law (Sharia,

in spite of its imperial status in Northern Nigeria was classified as customary law) 17 . The

process consisted of both the transformation of Islamic justice and its subordination to

principles of common law and English statutes . First, the Islamic courts were permitted to

adjudicate some offences, provided they could not impose capital punishments which

only the resident governor could impose.18 Next, the decisions of these courts (even

within the jurisdictional limits) were further subjected to the review of the English courts

under the infamous repugnancy clauses.19 Finally, before granting political independence

the colonialists ensured that the criminal aspect of the Sharia was abolished. The Nigerian

independence constitution incorporated a bill of rights fa shioned after the just emerged

European Convention on Human Rights and legislated against imposition of punishments

for offences not defined by a code. Obviously, this was targeted against Islamic criminal

law since it was largely not codified in any legal instrument.20


17
   Sharia is a colonial legacy as much the common law because it was institutionalized by con quering
foreign Fulani Jihadists.
18
   Section 10(2) of the Native Court Ordinance, 1933 provides that “For offences against any native law or
custom, a native court may, subject to the provisions of this ordinance, impose a fine or imprisonment or
both, or m ay inflict any punishment authorized by native law or custom provided it does not involve
mutilation or torture, and is not repugnant to natural justice and humanity”.
19
   The repugnancy clause which operated in all British African colonies generally require d local customs to
be applied only if they are not offensive to natural law, equity and good conscience. The difficult problem
was determining whose moral standards would be applied- the ‘natives’ or the colonialists.
20
   It was also aimed against other customary criminal laws. The justification is partly well meaning since
such customs sometimes vary from place to place. But, legal scholars consider it an affront to the wisdom


                                                                                                          8
        The decision to limit sharia to personal relations between Muslims was not just a

colonial conspiracy. It was actually a considered response to the cries for protection from

minority non-Muslims in northern Nigeria , who feared religious persecution, and the

perception that the existence of a religious criminal law in a multi-religious secular state

was incongruous and illegit imate. In order to give Muslims a sense of religious

fulfillment and still cater to religious pluralism and equal citizenship, a solution was

sought that will compromise between the extremes of maintaining Sharia as it exists in

the pre-colonial caliphates and disregarding the religious sensibility of northern Muslims.

        Associate Justice of the Nigerian Supreme Court, Dr. Karibi-Whyte articulates the

crisis clearly: “The government of Northern Nigeria was in a dilemma. Though extremely

anxious to preserve entrenched position of the religion of Islam and Moslem law within

its territory, the government was at the same time prepared to conform to the general

pattern of legal jurisprudence and development to achieve the balancing of the social

order of which the Northern region is an integral part”.21 An international conference of

Islamic jurists and scholars was convened in 1959 to find an acceptable compromise. The

panel, including the Chief Justice of Sudan and Professor JND Anderson of University of

London, a renowned authority in Islamic law, recommended the enactment of a penal

code similar to the ones in India and Sudan which will incorporate some sharia offences

but subject them to ordinary common law procedures.

        Therefore, in 1960 when Nigeria became independent she inherited the

treacherous legacy of a legal pluralism that is a patch-work that answers to neither the

demands of modern democracy nor the nostalgia of traditional religion and culture. The

of customary justice. See Martin Okany, The Role of Customary Courts in Nigeria (I badan: Fourth
Dimension Publishing, 1984)
21
   A.G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan: Spectrum, 1993) 190


                                                                                                   9
transformation and repression of Sharia was swallowed with much difficulty. Muslims

protested the violation of the integrity of Sharia . 22 Some clerics considered the proposal

as a plot by Christian crusaders to undermine Islam. Opposition continued to mount

against the policy of Anglicization of Islamic justice, especially with regards to the

withdrawal of homicide cases from the Emir’s courts. This disgust simmered behind the

veneer of joy at independence.

         After independence and throughout the period of intermittent military rule Nigeria

maintained the basic template of the legacy of colonial legal pluralism. Sharia law

continued to be reserved for the settlement of legal disputes between Muslims on

personal legal relation. At critical junctions when Nigeria negotiated new constitutional

order, after disruptio ns by military intervention, Sharia came up for debate. First, in 1979,

at the eve of the second republic; then again in 1989 when another military dictatorship

planned a democratic transition; and finally in 1995, during another planned return to

democracy. Each time the genie threatened to jump out of the bottle, the Nigerian

political class settled on a compromise. At these negotiations the key issues were both the

status of the Nigerian nation-state and the place of Sharia in it.

         Some Muslims resent th e idea of Nigeria as a secular state. The conception of

secularity as approximating irreligion drives a wedge between the efforts of modernists to

craft a constitution based on religious and moral pluralism and the demand of

traditionalists for religious authenticity. Justice Sambo, a leading Islamic cleric articulates

a far reaching view of Islamic authenticity. Responding to the constitutional designation

of Nigeria as ‘a secular state’ he argued that what Nigeria needed to solve her problem of

22
  Karibi-Whyte states that “A historical study of British colonial policy and the trend of judicial decisions
point out clearly that it was only towards the end of the first half of this century that the myth of the
inviolability of Islamic law was broken” op. cit. page 189


                                                                                                           10
moral disorientation was religion and not secularity: “As we have often said the only

source of moral teaching is through divine injunctions. Though Nigeria is a country full

of people of various religions, yet certainly it will not be to sort out the moral values of

the religions especially as it is well known that the greater number of the population are

(sic) followers of divine religions”.23 In other words, Justice Sambo argued for an

overlapping consensus of religious values. The authenticity argument is deployed to

argue for the retention of the totality of Sharia in the constitution. Part of this

revitalization of Sharia includes the restoration of criminal jurisdiction to Sharia courts

and creation of a distinctively Sharia court of appeal at the federal level.

         Some degree of agitation for Sharia has occurred in states where Muslims are in

the minority. But, this has been largely half-heated and easily contained. In the 1976

Constituent Assembly deliberation on Sharia became bitter and polarized between two

incommensurable conceptions of the role of religion in politics. Alhaji Yusufu Ban, a

northern Muslim dele gate to the assembly articulated a pro-Sharia position on the ground

that, unlike other religions, “Islam is a way of life. If you take away Sharia from a

Moslem, you are taking his religion away”. To refuse to create the Federal Sharia Court

of Appeal is to violate the freedom of religion of the Muslim since Sharia is a divine

component of the Holy Quran whose observance is integral to a ‘true and complet e’

experience of Islam. 24 Non-Muslim southern delegates countered: “Sharia is authenticity”


23
   Justice Sambo, The Sharia Debate, Verbatim Report of the Constituent Assembly, excepted in Daily
T imes, August 27, 2000 page 14
24
   The legitimate status of Sharia in Islam is a matter of great controversy. Islamic reformers like Abdullahi
Ahmed An-Na’im disfavors Sharia as a public law of Muslims because of its human origins. He argues that
Islam contem plates a separation between state and religion and the notion of their fusion is a fiction which
has no correct historical precedent in the life and the teaching of the prophet. See An-Na’im, Toward an
Islamic Reformation 1990. In a very perceptive article, the Nigeria Islamic scholar and banker, Sanusi
Lamido Sanusi surveys four different conceptions of Sharia and political Islam identified with four leading
scholars: political Islam as autocracy; political Islam as obliteration of Jahiliyya (ignorance); p olitical Islam


                                                                                                              11
with “authenticity is personal”. As Sam Mbakwe put it, the right to freedom of religion

means that “You can go on and worship your God and pray to him in any way you like.

There is nothing wrong in that which should be the concern of anybody else. Whatever

you have between you and your God is nobody’s business and it should not be allowed to

come in at a place where it will cause disharmony and disunity in this country”. That is,

religion should be privatized to the extent that it should not underlie or motivate or justify

the use of the coercive power of the state. At the end, the secularists did not convince the

Shariarists. But, perhaps, in a classic case of an “incompletely theorized agreement” the

status quo largely remained. 25 Sharia as authenticity was once more shelved away waiting

for another day of battle. And surely, that day came with the return of democracy in

1999.



Politics, All Too Familiar Politics

         Amina’s trial and what it says about the emerging crisis of liberal

constitutionalism and human rights in Nigeria are apt to be misunderstood except we re -

familiarize ourselves with its historical contexts and political currents. Knowledge of the

political context and history of sharia in Nigeria is necessary for proper understanding of

the case and its challenges . Human rights are products of politics and depend on politics




as liberal democracy; and political Islam as class struggle. Sanusi, “Shariacracy in Nigeria: The intellectual
Roots of Islamist Discourses” paper on file with author
25
   In two recent books (Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996)
and Designing Democracy: What Constitutions Do (New York: Oxford University Press, 2001)) famous
American constitutional theorist, Cass R. Sunstein makes a case for a less than perfect settlement of knotty
issues of political morality where the language of constitutional law does not satisfactorily settle the moral
conflicts. In such instance the court may maintain the golden silence on moral issues and settle the dispute
on other pragmatic ground or simply avoid determination .


                                                                                                           12
both for their substantiation and interpretation.26 The quality and kind of rights people

enjoy in reality depend on the character of their political institutions and culture. As the

Holocaust and other ‘barbarity’ of Europe led to the search for a supra -national

framework to protect the natural rights of humans they equally led to the recog nition of

the importance of national rights and citizens for the protection of rights. We can see the

turn to national rights in the works of Hannah Arendt and Judith Shklar. 27 It is also

through the political process, the demand and supply of power, that rights are also

violated. Although both pragmatists and idealists allude to the political context in which

rights are debated and affirmed, they often fail to sufficiently acknowledge this insight in

the analysis of such human rights problematic as Sharia criminal law in Nigeria. If

politics matters, it matters in understanding why a claim of right is justified and why

certain deviation from the ideal framework might be overlooked.

         Nigerian politics is built on the appeasement of religion. Religion is a deit y that

proves difficult to be overpowered and equally incapable of decisively breaking out of

the constraints of liberal legality. The British colonialists , as a ploy to extend their

mercantilist interests in what later became Nigeria , promised the Emirs in the feudal

north to leave their religious and social institutions unaltered as a bargain to enter into the

Nigerian colony. Although they breached faith by the subtle disintegration of Sharia in

guise of accommodation, the bargain more or less survived. Post-independent nationalist

governments continued this appeasement. The constitution permits the government to



26
   Michael Ignatieff articulates one aspect of the politics of human rights as the unavoidable fact that human
rights claims spark off conflict because they invariably involve challenge to entrenched power that hold
down the victims of human rights. See, Michael Ignatief, Human Rights As Politics and Idolatry (New
Jersey: Princeton, 2001)
27
   Hannah Arendt, The Origin of Totalitarianism (New York: Harcourt and Brace, 1973) and Judith N.
Shklar, American Citizenship The Quest for Inclusion (Cambridge MA: Harvard, 1991)


                                                                                                           13
meddle in religious affairs in many ways, yet, at the same time proclaims a subdued

secularity.28 The result is a country with dual legal systems and social culture s. Religion

is so powerful that even military dictators in spite of their heinousness never clamped

down on religious groups, except Gen Sani Abacha, ironically, the most brutal dictator.

General Babangida, under pressure from religious leaders surreptitiously got Nigeria into

the membership of the Organization of Islamic Countries (OIC). This irresponsible move

sparked riots and religious distrust across the nation. Like Sadam Hussein in Iraq, Gen.

Abacha did not brook the interference of religious leaders. He sent the fiery preacher and

religious fundamentalist, El-Zaky Zaky to jail. 29

         Appeasement and the Deep Pluralism

         Colonialism left behind, and nationalists consolidated, the legacy of dualism and

pluralism. Dualism operates to create a social schizophrenia in the body polity. Citizens

are divided between the civil law and its identification of the population as citizens, and

customary (and in the case of northern Nigeria , Sharia law) and its constitution of

Nigerians as “subjects” or “native”.30 Mahmood Mamd ani has made a major contribution

to expose the bifurcation of identity and socialization occasioned by the colonial legacy

of divide and rule. This crisis is complicated by deep pluralism. Deep pluralism, in this

28
   Nigeria’s constitutional secularity is does not erect a wall of separation between religion and politics,
rather it attempts to hold out a fair balance between religions- namely Christianity and Islam. Government
sponsors religious pilgrimages for believers. Recently, President Obasanjo led an endowment launch to
raise money for the Christian community to build an ecumenical center in Abuja. As a way of balancing his
support for the two religions he has accepted to be the Chairman of a commit tee to rebuild the national
Mosque in Abuja
29
   See Charlotte A Quinn and Frederick Quinn, Pride, Faith, and Fear: Islam in Sub - Saharan Africa (Oxford
University Press, 2003) chapter I: Islam in Nigeria
30
   The concept of ‘natives’ and ‘settlers’ reappeared into Nigeria’s political lexicon in 2004 after a
gruesome inter-communal conflict between ‘indigenes of Plateau State and Muslim Fulani ‘setters’. The
President declared a state of emergency to stem the tide of violence. Many Nigerian political commentators
related the course of the violence to continuing legacy of ‘indigene-settler’ bifurcation. See my “Colonial
Legacy, Elite Consensus and the Making of Biafran Genocide” a chapter in “Stepping from the Brink:
Studies in De-escalation of Group -Targeted Violence (forthcoming from the US Holocaust Memorial
Museum. See also Okwudibia Nnoli, Ethnic Politics in Nigeria (


                                                                                                         14
context , would describe a situation where two fundamentally opposed moral systems co-

exist in a body polity. From a legal point of view deep pluralism usually describe the

situation where state law (common law-oriented) co-exists with customary law. The
                                                                                          31
result being that cit izens are exposed to two different bodies of legal norms

         The crisis of deep pluralism in Nigeria manifests in the politics of

incommensurability. Worldviews and normative references for politics are difficult –

though not impossible - to align.32 The basis of constitutional democracy, notwithstanding

variations, is the equal rights of citizens. In a liberal formulation of equality, treating

citizens are equals entails, among others, that public policy is not shaped by religious or

comprehensive personal moral convictions of some of the citizens. And this roughly

translate to religious convictions not become the basis of legislation and policy-making.33

The exclusion of religious convictions in political discourse and legislation is see n as

axiomatic to protect freedom of conscience and legitimize the use of coercive state

power. This fundamental notion of democracy poses grave difficult y to religious legal

system both at ideological and institutional levels. The ideological problematic is

increasingly coming under the discursive prism of liberal reformers of Islam like the

Sudanese human rights scholar and Islamic reformer An-naim whose recent efforts aim at

31
   See Gordon R. Woodman, “Legal Pluralism and the Search for Justice”, Journal of African Law (1996)
Vol. 40, No. 2 152 -167 for a discussion of how legal pluralism obstruct the realization of justice.
32
   Fundamental Islamism has moved moderates to contest the terrain of Islamic political democracy. There
are growing scholarly assertions about the reality of this alignment in the case of Sharia and democratic
rights. One recent such efforts is by Khaled Abou El Fadl in Islam and the Challenges of Democracy (New
Jersey: Princeton University Press, 2003) where he argues at pages 5 -9 that because Islam is premised on
“pursuing justice through social coop eration and mutual assistance… establishing a nonauthocratic,
consultative method of governance; and institutionalizing mercy and compassion in social interactions’ and
democracy offer “the greatest potential for promoting” these ideals, then democracy is compatible, even
recommended by Islam.
33
   John Rawls and Ronald Dworkin are deservedly the most famous modern Anglo -American advocates of
this liberal understanding of equality. In Political Liberalism (New York: Columbia University, 1996)
Rawls presents a framework for social justice that respects the moral pluralism in the world by bracketing
comprehensive moral doctrines and building consensus on the political doctrines of democratic institutions.
See also Ronald Dworkin, Sovereign Virtue (Harvard University Press


                                                                                                        15
building a synergistic relationship between religion, secularism and human rights.34

Nigerian Muslim scholars are also stepping to the plate in the discourse. Sanusi Lamido

Sanusi is one of a growing Islamic intellectual voices arguing for an understanding of

Sharia as comp liant with democratic politics. 35

         It might well be that the opposition between the polit ical philosophies of Sharia

and liberal democracy can be resolved if either value system is reinterpreted or

discursively infused with the tenets of the other, as all the major propon ents of this

synergy seems to be doing, yet when it comes to the design of political and legal

institutions of democracy we re -encounter the crisis deep pluralism. The old question

reoccur: to what extent can liberal legality share the same political space with Islam?

         Nigeria political history does not offer much hope for real, rather than imaginary ,

normative co-existence of the legalisms of Sharia and secularism. During the negotiation

of a new constitution in 1979 the crisis became pronounced. Justice Sambo presented a

radical view of the place of Sharia in the new constitut ion. Such a constitution in his view

should include (1) that the state is responsible for both secular and religion education of

Muslims; (2) Sharia shall apply to both civil and criminal proceedings involving a

Muslim, since it contains the ultimate injunctions of Allah; (3) the moral norms of Sharia

should be incorporated in the constitution; and (4) the constitution should not characterize

the Sharia as customary law, but as a divine law.




34
   Abdullahi Ahmed An-Na’im, “The Synergy and Interdependence of Human Rights, Religion, and
Secularism: Prospects for Islamic Societies”. This is still in draft form and subject to revision. But the ideas
in this article draw from his magisterial Towards an Islamic Reformation: Civil Liberties, Human Rights
and International Law (Syracuse: Syracuse University Press, 1990)
35
   See particularly Sanusi Lamido Sanusi, “Sharia and the Women Question” Weekly Trust Newspaper,
September 18, 2000 where he argues that the restriction of the rights of women in Muslim societies does
not find justified accommodation in Islam as a religion, but is a form of social practice.


                                                                                                             16
       Justice Sambo’s articulation may not be paradigmatic of Islamic au thenticity as

expressed in Nigeria; nevertheless, it captures some of the underlying intuitions behind

the clamor for full-fledged Sharia. Some of the advocates of Sharia criminal law

understand the place of Sharia as prior to basic laws of the state in the sense that where

there is obvious conflict between prescriptions of Sharia, say with regard to treatment of

women, and the secular law, they would opt for Sharia. Governor Ahmed Sani of

Zamfara State, the first Governor in northern Nigeria to declare Sha ria criminal law,

when pressed on the incompatibility of Sharia and the constitution, bluntly told a

delegation of human rights activists that he would still go ahead with Sharia even if it

conflicted with the Constitution since Sharia is the law of God. Most advocates of Sharia

will be more suave in reacting to the constitutional challenge. The point is not to deny

that the Qu’ran can be interpreted to avoid such conflicts. It can, and if the sort of

interpretation urged by An -Na’im and other is widely accepted, we might get there. But,

the point is that until such an interpretation becomes accepted (it is not yet accepted by

many of the clerics and jurists in Nigeria, and for that matter much of Islamic world)

deep pluralism which the co-existence of Sharia and secular law creates will continue to

pose challenges to democratic citizenship and it s legal institutionalization in the form of

fundamental human rights.

       Thus, what the crisis of deep pluralism means is that in trying to settle the conflict

between different legal norms unleashed on the Nigeria society by colonial legal dualism,

we must either subordinate Sharia to the secular law in a way that authenticity wi ll be

denied the average Muslim (at least such authenticity that take Sharia as moral

obligation) or we face up to divergence in legal norms. Islam and democratic politics may




                                                                                          17
share similar grand values like human dignity and respect, but they disagree when it

comes to what these values means in terms of social institution and human relationship.

For instance, both systems may affirm their faith on abstract and general notions of

human dignity and freedom. But when it comes to concretes like how to treat a woman’s

testimony, fundamental conflict arises. Affirming human dignity and respect in one

system might prohibit particular treatment of women which may be okay in the other36

         Sharia: Conscience of Politics?

         There are two levels of politics to keep in mind to understand Sharia as a

phenomenon in Nigeria. The first is the politics of deploying Sh aria as a tool of bargain

with the Christian south in Nigeria’s largely ethno -religious politics. The second is the

politics of internal exegetic and theological struggle within Nigerian Muslim community.

The immediate political context of the Sharia crisis is the election of Chief Olusegun

Obasanjo, a Christian Southerner, as president in 1999. Muslim northerners have held

executive power in Nigeria since independence .37 Although Religion has always been the

meat of Nigerian politics it did not play any direct role in the election.38 It was felt that

Obasanjo a Yoruba should become president to compensate the Yorubas for the

invalidation of the 1993 presidential election won by Chief Abiola, a Yoruba. Obasanjo

was preferred to his fellow Yoruba, Olu Falae, because he was seen as able to protect the




36
   In the article in Weekly Trust, Sanusi Lamido Sanusi shows how the leader of the Islamic Jihad in
Nigeria, Shehu Usman Dan Fodio treated women gracefully and thereby leaves an example and moral
about treatment of women in Islam. But, this sort of revisionism does not nullify adultery as an offence or
the prima facie discriminatory burden of proof in the Maliki School of Islamic law.
37
   In 1960 Nigeria became independent with Dr. Nnamdi Azikiwe, a Southern Christian as a ceremonial
President. The Prime Minister, Sir Abubakar Tafawa Belewa, a northern Muslim, exercised executive
power following the British model of Parliamentary Democracy.
38
   Matthew Hassan Kukah, in Religion, Politics and Power in Northern Nigeria (Ibadan: Spectrum, 1994)
discusses in details how Islam has shaped the struggle for political power in northern Nigeria.


                                                                                                          18
interest of Hausa-Fulani oligarchy that has ruled Nigeria for the better part of four

decades of self-rule.

        Earlier in his reign Obasanjo was believed to have betrayed the powerful

oligarchy that brought him to power. As soon as Obasanjo became president, Pentecostal

Christians made it clear that they would play important role s in guiding the presidency.

Obasanjo himself made heavy weather of his conversion. He claimed to be born again

and organized a big evangelistic meeting as part of his inaugural ceremonies. The

perception of the overbearing influences of Pentecostal Christianity on Obasanjo’s

Presidency, elicited fears of domination from Muslim leaders in Northern. The nepotistic

nature of politics in Nigeria ma de such fear reasonable. Sharia was found as a veritable

tool of political blackmail and bargaining by Northern Governors .

        In the hands of aggrieved and affrighted northern Governors, Sharia becomes a

cynical exploitation of Islamic religiosity and the nostalgia of ordinary northern Muslims

for the fabled social justice of classical Sharia , to unnerve President Obsanjo. Kukah gets

to the point:” What is happening is really a contest of power; who lost power, who won

power, and who wants power back… The pro cesses that threw up Obasanjo were

intimately bound up with the political crisis that has gripped the northern political class.

Obasanjo whom they had supported refused to play their game, and let himself be

appropriated by the South -West politicians, so they claim”. 39 Furthermore, the Governors

who enacted Sharia penal law in 2000 all from the rival political party, the All Peoples’

Party (APP) and considered their action a strategy to tap into the growing Islamism of



39
  From the report of proceedings on a conference on ‘Beyond Sharia: Interpreting Recent Religious and
Ethnic Clashes in Nigeria’, organized by the Center for Democracy and Development in London. See
report on http://www.cdd.org.uk/sharia .htm


                                                                                                        19
Northern Muslims for political gains. Thus, it is not only politics at play. But politics

riding on the waves of Islamic resurgence.

        The second level of politics is connected to the resurgence of Islamism in

northern Nigeria. The failure of democratic politics in Nigeria (as rudimentary and

dis rupted as it is) to produce good enough social goods has led to a nostalgic return to the

rule of piety rather than policy. The ruinous military dictators failed woeful ly and

tragically to maintain security and welfare. There was no justice, especially for the poor.

In that context, people began to look up to Sharia as answer to social anomie. The crisis

of the state in Nigeria impacted differently on different people. But on the whole it bred

the quest for authenticity through a totalizing vision, which as Karl Popper observed is

the consequence of social uncertainty.40

        One recent manifestation of the importance of Sharia in the quest for social justice

in Northern Nigeria is the use it is being deployed lately to ensure democratic

accountability. In Jigawa State, one of the northern states that have implemented Sharia

penal law, a former minister of government took the state governor to a Sharia court on a

charge of corruption. The minister justified resort to Sharia because it is the only system

of justice that has not been corrupted. In the suit the former minister wanted the court to

compel the Governor to account for how he spent federal allocation of over N30billion

for the development of the local governments in the state. The Nigerian constitution

grants the governor of a state immunity from persecution while in office. At least one

Governor has taken advantage of this provision to escape criminal prosecution for




40
  Karl Popper, The Open So ciety and its Enemies quoted in Sanusi, “The Hudood Punishments in Northern
Nigeria: A Muslim Criticism” page 1


                                                                                                   20
forgery.41 In his ruling on the case, the presiding Judge of the Dutse Upper Sharia Court,

relying on the provisions of the Sharia held that with Sharia there is no immunity. He

rejected the argument that the court lacked jurisdiction over the Governor, but

nevertheless asked the petitioner to supply further particulars so that the case can be t aken

on its merits. This case gladdens the heart of many ordinary Muslims. In the first place, it

helps portray Sharia as a just legal system that is far from the barbarism its antagonists

make it to be. But, more importantly, it turns the tables against the Governors who

manipulated Sharia to cuts off the arms of petty thieves without bothering about the

widespread and more damaging corruption in government.42

         The quest for authenticity is underwritten by a struggle within Islamic discourse

and northern politics. The two tendencies -discursive and ethnic politics - merge together

in the dialectics of Sharia in Nigeria. Even as politicians employ the quest for Sharia to

gain political power, clerics and scholars quarrel about theology. The contest by various

Islamic traditions and schools of thought to gain ascendancy makes the Sharia saga an

intensely political struggle and throws light on the future of secular constitutionalism in

northern Nigeria. Charlotte Quinn and Frederick Quinn identify the changing categories

of Islamism in Nigeria . There are those who stress issues of identity; those who stress

‘Jihad of the word’ emphasizing training and education; and those- usually the poor and

their radical advocates , who emphasize revolutionary transformation. As Sanusi observes,

this struggle is not happening in an intellectual vacuum. He identifies four broad



41
   In a celebrated case that went up to the Supreme Court, the Nigerian Police refused to investigate and
prosecute the Governor of Lagos State, Bola Tinubu, for alleged certificate forgery citing the constitutional
immunity the President and Governors enjoy. The Supreme Court upheld this immunity.
42
   Yakubu Musa, At Last, Sharia for Governors” published by ThisDay Newspaper in Lagos; see also
Maryam Iman, “Punishment Under Sharia and their Significance”, Newswatch Magazine, November 3,
2002


                                                                                                           21
scholarly canvasses on which this discursive battle takes place as (1) political Islam as

autocracy of the Ulama, (2) political Islam as obliteration of Jahiliyya (ignorance); (3)

political Islam as liberal democracy; and (4) political Islam as class struggle. 43

         Borrowing Isaiah Berlin’s parable of the ‘fox and the hedgehog’44 Sanusi

observes that the struggle over Sharia pits the traditionalists against the progressives.

While the traditionalists focus on the legalism of the Sharia the progressives focus on the

principles. As a progressive, Sanusi cautions against much emphasis on the code so as not

to enthrone “state and clerical despotism, and the infringeme nt of individual liberties

based on the fatwas”. Juxtaposing elite contention for power and fractious exegesis of

authenticity in the Sharia discourse provides the best lens to perceive the p ower dynamics

and political incentives that define the context of the sharia crisis and the Amina’s trial.

But, unfortunately, both evaporate in the discourse of the case under the overwhelming

urge to sensationalize Islam or demonize sub-Saharan Africa.45



The Problematic of Human Rights under Sharia Legal Norms

         Brian Barry in his critique of multiculturalism plays up the difference between

Islam and liberal democracy. As he puts it, “Although the Koran does not (as is

sometimes supposed) underwrite a theocracy, it does contain a set of prescription for the

way in which the community of faithful is to be organized that has no counterpart in the

Gospel”. He goes further to say that this body of doctrine sets up a conflict between Islam



43
   Sanusi, Shariacracy in Nigeria: the Intellectual Roots of the Islamist Discourses”, on file with author and
posted on the net at www.gamji.com
44
   Isaiah Berlin, “The Hedgehog and the Fox” in Henry Hardy (ed.), Isaiah Berlin, The proper Study of
Mankind: An Anthology of Essays (New York: Farrar, Straus and Giroux, 1997)
45
   Sam Amadi, ‘Repositioning the Sharia Debate’ Thisday Newspaper, September 19, 2002. Online source:
http//www.thisdayonline.com/comment/20020919com02.html


                                                                                                           22
and liberal democracy. And to clinch his point, he offered the evidence that there is no

stable and flourishing democracy in the Muslim world. 46 This constructed strain between

Islam and liberalism is bound to be disputed. So many scholars are on the field just to

disprove this claim. But, the chief argument of these well intentioned scholars is usually

how Sharia ought to be (not is being) interpreted and applied in a modern Islamic state or

a state with majority Muslim population. This argument is so widely and variedly

articulated that I cannot rehash it here.47 But, some scholars like Katerina Dalacoura think

differently. She thinks Islam and western human rights are morally non-equivalent. The

two systems have different moral and metaphysical orientations but can converge only by

reinterpreting Islam. 48 Let’s consider some levels of manifestation of this conflict in the

Sharia crisis in Nigeria



        (a) The Problem of Individualism vers us Collective Self-determinism

        If Islamism in Nigeria is a story about authenticity, it is also a story about

liberation. Liberation from a tyrannical state, a state that fails to protect the individual

from the hounding of poverty and social injustice. But, liberation from the oppression of

the state may mean a return to the tribe, the ethnic or religious collective. It does not

always mean an escape into abstract individualism. The dilemma foreign human rights

NGOs face in attempting an intervention in the Amina case is where to strike the balance

between protecting the human rights of an individual woma n who may be suffering

46
   Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge MA: Harvard
University Press, 2001) page 27
47
   For few samplers, see Mahmood Monshipouri, Islamism, Secularism and Human Rights in the Middle
East (1999); Bassam Tibi, “Islamic Law/Sharia, Human Rights, Universal Morality and International
Relations”, Human Rights Quarterly, Vol. 16, 1994, 258 -289; and Islam and the Ch allenge of Democracy
(edited by Joshua Cohen and Deborah Chasman) (Princeton: Princeton, 2003)
48
   Katerina Dalacoura, Islam, Liberalism and Human Rights (1998) chapter one: Human Rights and
Authenticity


                                                                                                     23
indignity and oppression and recognizin g claim of sovereignty and self-determination of

a religious group.

        This dilemma is more troubling because any alternative likely works against the

other. Intervening to protect Amina’s individual rights might mean trumping the claim of

collective self-determination or religious exceptionalism. Deciding on the trade -off

requires clear understanding of the conflicts. The first conflict is between universalism

and relativism, that is, the conflict between individual claim of entitlement and collective

claim of right to self-determination. Human rights exist to protect differences. They are

as much the differences of an individual as well as the differences of a community.

Making the call in Amina’s case would not be that difficult for liberal activists if it was a

straight case of an oppressed woman wanting to exit a suffocating social system.

Probably, in that case we could argue, as some liberals argue in the bid to avoid the

charge of ethnocentrism, that what human rights protects is agency, the right, as Ignatief

puts it, following Isaiah Berlin, to follows one’s rational intention without let or

hindrance, not the imposition of an ideology, western or non-western.49

        But, the image of Amina Lawal that emerged from the trial is that of a

courageous, though poor and uneducated, rural women, who is confirmed in her faith and

was prepared to fight within the system. Amina may have been a victim of male

conspiracy, of cynical manipulation by male clerics ,50 but not exactly a woma n divested

of her agency in the classic way Isaiah Berlin laid out ‘negative liberty’. One image of



49
   Michael Ignatief, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001)
page 57
50
   Mrs Maryam Iman, a Muslim female lawyer argues for a Sharia that focuses on welfare of the people,
not the Sharia that is manipulated by male clerics to serve their own interests. See Maryam Iman,
“Punishment Under Sharia and their Significance” Newswatch, November 3, 2002 and Sanusi, Sharia and
the Woman Question” Weekly Trust, September 18, 2000


                                                                                                       24
Amina Lawal sticks in my mind. An American film-maker had finished interviewing her

and was about to leave. Amina prayed that “Allah will grant you children and husband”.51

I also interviewed some of the women who supported Amina’s defense and fought

against the use of Sharia against women. They are optimistic of the possibility of

obtaining justice through the Sharia process. None of them was emphatic about exiting

the system or challenged the normative principles of Sharia justice.52 This is not

romanticizing Islamism in northern Nigeria or valorizing Amina Lawal. But, the point is

that if human rights are neither imperial nor metaphysical then the basis for intervention

in Amina Lawal’s should be as morally thin as a clear violation of agency. It should not

be to promote a morally thick notion of individualism. This is the only way the claim can

be borne out that human rights affirms many different visions of human good and see

western individualism as just one version of that good.53

         The tension between individual right and the claim of collective religious identity

in this case is predicated on the claim that criminalizing adultery in the manner of the

Sharia Penal codes breaches the human rights norm of nondiscrimination on the ground

of sex, a core and invio lable human rights guaranteed under both the International

Covenants on Civil and Political Rights (ICCPR) and the Convention on the Elimination

of All Forms of Discrimination Against Wome n (CEDAW), 54 and both ratified by


51
   The Road North, a PBS documentary on the Miss World Riot in Kano, Nigeria, 2003
52
   In course of research I spoke to several Muslim women activists, including Alhaja Zainab Ahmed
Suleman, President of National Council of Women Society, Kano Branch, and Alhaja Saudatu Shehu
Mahdi, Executive Secretary, Women Rights Advancement and Protection Alternative (WRAPA). Suleman
stated that the Sharia implemented in northern Nigeria does not unduly constrain women.
53
   Michael Ignatief, page 74; but see Brian Barry supra at pages 285 -295 that human rights do not claim
that this is how we do things here, rather this is h ow things ought to be done, thereby restating the
universalism of human rights and liberalism.
54
   The CEDAW defines ‘discrimination against women’ as “any distinction, exclusion or restriction made
on the basis of the basis of sex which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women irrespective of their marital status, or on the basis of equality with men


                                                                                                         25
Nigeria. The Nigerian constitution also guarantees equality and non-discrimination in

similar language as the ICCPR. This is an international human rights issue for two

reasons. Nigeria having ratified the CEDAW and the ICC PR is obligated to protect the

rights guaranteed in the treaties . When she fails to guarantee those rights to any of its

citizens she becomes liable to international scrutiny and reprimand. Again, the right to

equality is a universal human right, which is not dependent on the acts of states.55 A

universal human right of this sort is an entitlement that inheres in a person by virtue of

his being a human being and inures to perpetuity, except in limited exceptions.56

         The strongest proposition of human rights is that there are rights that are not the

creation of legal or political institutions of a state, even as states recognize them through

domestic law making. But admitting that foreign nations and NGOs are entitled to inquire

about the trial does not settle the conflict inherent in the claim to non-discrimination and

equality of treatment. It rather opens up a philosophical disputation as to the universality

of these human rights.

         Take the issue of sharia prescribing different evidential standards for male s and

females on proof of adultery. It apparently violates both rights of equality and fair trial

under international human rights law. But this ‘inequality’, assuming the distinction in

and women, of human rights and fundamental freedoms in the political, economic, social, cultural, ci vil or
other field” Art.1, Part 1. For online copy visit http://www.un.org/womenwatch/daw/cedaw/
55
   Dennis J. Driscoll, “The Development of Human Rights in International Law” in Walter Laguer and
Barry Rubin (eds.), Human Rights Reader (New York: New American Library, 1979), page 44, quoted in
David Little, “Religion, Human Rights, and Secularism: Preliminary Clarifications and Some Islamic,
Jewish, and Christian Reponses” paper delivered at the 2003 Sharpe Lectures, University of Chicago
Divinity School, October 21-23, 2003.
56
   It must be observed that there exists confusion as to the basis of justifying human rights. The tendency of
deriving human rights from an essential human nature seems to have fallen into intellectual dishonor dating
from David Hume’s naturalistic fallacy, even as theorists intuitively expression themselves in the language
of natural law. Rawls, Dworkin and other constructivists have attempted to derive rights from either the
idea of rationality, Kantian moral imperative, basic human needs or functional capability. See MacIntyre,
Beyond Virtue: A Study in Moral Theory 1984 for a bold claim that there is no moral basis for human
rights; and Outka and Reeder, ed., Prospects for a common Morality 1993 for attempts to fashion a post -
natural law foundation for human rights.


                                                                                                           26
probative evidence amounts to inequality, is predicted on religious beliefs. Admittedly,

the interpretation and application of some tenets of Islam are fraught with controversy.

Some Islamic theorists argue that since Islam is a religion without established priesthood

unlike Christianity, and the fact that the principles of Sharia are sourced from

indeterminate recollections of what Prophet Mohammed and his descendants did and

hermeneutic discourses about the true character of the Dar al-Islam-the territory of Islam,

the validity of norms that discriminate against women in Islam is questionable and they

are more likely to be cynical manipulations of discursive power to the detriment of

women.57 This proposition, even if true, does not dispose of the conflict. 58

         Religion from social policy perspective is more about how the commun ity of

believers has through the mediation of power and rhetoric appropriated the text and

deplored it to build social life, and less about textual hermeneutics. The ‘Sharia’ is what

the community says it is. Notwithstanding the efforts of reformers like An-Na’im59 to

align Islam with human rights , it can be argued, following the thesis that religion is not

the text but the social practice, that Islam’s philosophical tradition controverts the

individualistic and humanistic basis of the enlightenment conception of equality and

autonomy.60 Islam, by deriving human entitlement from submission to the will of Allah


57
   Nigerian Muslims join in this critique. Sanusi and Maryam Iman who I referred to above proffer
interpretations of Sharia that recognize textual as well as normative indeterminacy. They will agree with
Weiss that “Although the law is of divine provenance, the actual construction of the law is a human
activity, and its results represent the law of God as humanly understood Since the law does not descend
from heaven ready -made, it is the human understanding of the law- human fiqh [literally meaning
understanding] - that must be normative for society”. See Bernard Weiss, The Spirit of Islamic Law
(Athens: University of Georgia Press, 1998) page 116
58
   See Richard W. Bulliet “The Individual in Islamic Society” in Bloom et al ed. Religious Diversity and
Human Rights 1996 p. 175
59
   Abdullahim Ahmed An -Na’im, Towards an Islamic Reformation: Civil Liberties, Human Rights and
International Law, Syracuse University Press 1990
60
   The so -called enlightenment origins and individualistic orientation of human rights seem to come under
heavy attack these days. The point is to say human rights properly understood does not legislate moral
individualism. Under circumstances of liberty, communitarian moral system can protect human rights. The


                                                                                                        27
and obligating obedience to the will of Allah, takes a starting point different from liberal

theory of right. As Prof. Raz puts it, the “[R]uling idea behind the ideal of personal

autonomy is that people should make their own lives. The autonomous person is a part

author of this life.” 61 Carolyn Evans argues that Islam is in practice inconsistent with

religious freedom understood in the western sense, “Unlike the Christian Churches, the

idea of free will is a weak one in Islam, which rather emphasizes that the object of human

life is submission to God and that the State (in so far as this is a meaningful concept in

Islam) and individuals should dedicate themselves to this purpose”.62 Of course, there are

other conflicting views of the relationship between liberal autonomy and Islam.

         The point is that even such seemingly well-settled constitutional issue like non-

discrimination remains problematic if we intend to pay regards to non-western cultural

and religious traditions. Scholars pretend as if the cultural relativist challenge to universal

human rights has been finally overcome by focusing on a certain global consensus

evidenced by international conventions and state practice. But if we search further afar in

moral theory we still encounter the challenge. This challenge persists because notions of

rights hinge on conceptions of the person. So what rights we attribute to persons or

community depend largely on our conception of the person As Michael Sandel puts it,

“As a political matter, our deliberation about justice and rights cannot proceed without

reference to the conception of the good that finds expression in the many cultures and



problem is that human rights advocate are confused as to whether human rights regime implies moral
individualism. Recently, Ignatief, in spite of avoiding universal moralism still ends up arguing that “the
core of the Universal Declaration is the moral individua lism for which it is much reproached by non-
Western societies” Ignatief, page 66
61
   Joseph Raz, The Morality of Freedom 1986, p. 369
62
   Carolyn Evans, Freedom of Religion Under the European Convention on Human Rights 2001 p. 27 for a
refutation of this argum ent see Richard W. Bulliet ‘The Individual in Islamic Society’ in Irene et al ed.,
Religion Diversity and Human Rights 1996.


                                                                                                        28
traditions within which those deliberations take place”,.63 It follows also that

philosophical controversy about rights bedevils policy intervention.

        The conflict between the moral individualist and the crushing community is not

merely philosophical in western society. But in northern Nigeria, it is, at least, with

respect to the Amina and Safiyyatu of Nigeria. In the first place, none of the women who

have been tried for adultery has conceived their ordeal and struggle as extricating

themselves from the web of the collective. At best, they have seen themselves as agents

who should take up the challenge of reforming Islamic justice to conform to its pristine

virtuous qualities. It is noteworthy that those who have taken aught against Sharia as

implemented have not challenge the legal norm that makes adultery a sin and punishable.

They have either deplored the implementation of the penal rigor of Sharia without

entrenching an egalitarian Islamic state,64 or, like Professor Anderson characterized the

implementation of Sharia many years ago, they hallow Sharia as inviolable and urge

departure based on the doctrine of necessity (darura). 65

        If the protection of agency is the basis of external intervention in context of

alleged violation of human rights, and the determinant of the mode of in tervention, then

the tension between moral individualism and collective identity should be taken

seriously. In the present case it is made difficult by the incommensurable social

moralities that legitimize social behaviors . The western human rights activis ts who

63
   Michael Sandel has restated the critique he offered to Rawls’ A Theory of Justice to his latter work,
Political Liberalism (New York: Columbia University Press, 1996) to the effect that a comprehensive moral
or religious conception of the person is inevitable in a theory of justice - whether of the Kantian
comprehensive liberalism or Rawls’ political liberalism. See Sandel, Liberalis m and the Limit of Justice
(Second Edition) (Cambridge: Cambridge University Press, 1998) page 186.
64
   El-Zak Zaky, and his Izala movement believe that until a true Islamic society without falsehood and
corruption emerges it is unrealistic to implement Sharia (personal interview in 2003)
65
   Anderson, Law Reform in Muslim Word, page 36, quoted in An -Na’im, “Islamic Foundations of
Religious Human Rights” in John Witte, Jr. & ors. (eds.), Religious Human Rights in Global Perspective:
Religious Perspective (The Hague: Kluwer Publishers, 1996) page 346


                                                                                                      29
perceived Amina’s travails as illegitimate prosecution on account of expression of sexual

liberty were essentially thinking from the ideological standpoint of individualist morality.

It is not about being right and wrong about a woman’s use of her sexuality. It is being

willing to go the whole hog and tell the community we think your religious doctrines of

sexuality are wrong and you ought not to treat women in that light. If international human

rights intervention does not want to be that imperial or judgmental, then it can only be

effective by foregoing arguments about the definition of offences and focusing on the

procedural issues of due process and the politics of resurgent Islamism. 66

         (b) Religion in Politics: The Crisis of Liberal Constitutional ism

         Another human rights conflict is the state and religion dilemma, a problem that

straddles both constitutional law and human rights. It is difficult to arbitrate the

conflicting claims of Sharia and human rights proponents without touching on the

delicate relationship between religion and human rights in liberal theory. Liberalism has

accommodated religion by privatizing religion and limiting it to the private sphere. 67 As

Stephen Carter will say, liberalism treats religion as a hobby.68 This accommodation is a

product of the history of religious conflict in Europe and the settlement struck in the spirit

of the enlightenment.69 The enlightenment and the triumph of individualism have in

many ways reduced religion to matter of conscience. So the right to relig ious expression

66
   I need not say that most human rights scholars and activists disfavor the imperial and judgmental stance.
In the crisis of incommensurability, the only way out will be to concede to community morality or
condemn it on something akin to Rawls overlapping consensus. Problem is: how do we justify the
consensus. See Chapter 3 of my doctoral dissertation, “Freedom of Religion and Plural Democracy: Sharia
as a Critique of Liberal Legality, 2004, Harvard Law School Library, Cambridge MA.
67
   See Ronald Thiemann, Religion in Public Life A Dilemma for Democracy (Georgetown Univ. Press)
1996 for an elaborate argument of liberalism and religion.
68
   Stephen Carter, Culture of Disbelief: How American Law and Politics Trivialize Rel igious Devotion
(New York: Anchor Books, 1994)
69
   For a special insight that shows the history of western philosophy as a history of the avoidance of the
claims of authority by the church and a search for a secular legitimacy of political authority see Pie rre
Manent, ‘An Intellectual History of Liberalism’ 1995.


                                                                                                          30
recognized by Article 18 of both the UDHR and the ICCPR relates more to religion

conceived as freedom of individuals to hold beliefs and conscience. Protecting freedom

of religion means protecting the individual and his right to hold religious views. Both the

discourse and practice of religious freedom drives a wedge between belief and

observance. Whereas belief per se is absolutely protected, observance is protected as

much as it is “intimately linked to religious beliefs” and not that it is “motivated or

permitted by religious beliefs”. 70

         The Nigeria constitution follows this approach by declaring itself a secular state

and prohibiting the adoption of state religion. The constitution also grants state

assemblies the power to make law subject to the supremacy of the constitutional bill of

rights. It is in exercise of this constitutional power that Katsina enacted the Sharia

religious law as a penal code. The real question here is to what extent in a federal state

one of the units can make laws that recognize the religious particularities of its citizens.

The problem assumes more complexity in the context of self-determination. Can

members of such state, who are overwhelmingly Muslims, ‘democratically’ decide to

recognize adultery as a crime and the discriminatory method of proving it?

         A constitutional law solution may be for federal law to override Sharia. 71

Nevertheless, the human rights dilemma remains. The African Charter provides the right

to self-determination. In the language of the Charter the right belongs to “peoples”.72 The

question is whether an ethnic or religious group, rather than the state itself, claiming


70
   W. Cole Durham Jr., in J.D. van der Vyver and J. Witte Jr. (eds.), Religious Human Rights in Global
Perspective: Legal Perspectives (The Hague: Kluwer, 1996) page 31
71
   The constitutional entrenches its provisions above any other legislation and the Supreme Court has power
to declare any such law unconstitutional. In the case of Sharia, the Supreme Court is yet to have
opportunity to do so. The case filed by the author on the question is yet to get that court for final
determination.
72
   Article 24 of the African Charter on Human and Peoples’ Rights


                                                                                                        31
cultural distinction, can claim the right to self-determination under the charter. The point

is that within a democratic country that allows the federating states the power to make

law for the welfare of its citizens a law that makes adultery a crime may arguably be

justified as a legitimate exercise of democratic power. This is what Dr. Lateef Adegbite, a

leading Muslim jurists me ant when he stated that the enactment of Sharia was

constitutional because, if the people “through democratic means, feel that they want to

punish certain offences it is within their constitutional rights”. 73

           The issue of federal versus state laws interlocks with the secularism and religion

conflict. Liberal theorists devise many ways to solve the latter dilemma. One approach,

‘Justice as Impartiality’, tries to resolves it by excluding religious arguments on the

ground that if you claim a right to religious worship you must concede the same to other

people according to their idea of the good.74 Notwithstanding how these theories resolve

the problematic of religion and the public sphere theoretically, it still presents problem to

interventions to protect huma n rights in contexts like Amina’s case.



           The Right to Life and Human Dignity

           Sharia offences elicit claim of violation of the right to life and the dignity of the

human person. Amnesty International and other human rights groups argue that the

sentence of death by stoning passed against Amina Lawal violates the right to life and the

protection against inhuman and degrading punishment. A sentence of death is not

unconstitutional in Nigerian except passed in violation of regular law, but any form of




73
     Dr. Lateef Adegbite, Tell Magazine, 15 November 1999
74
     Brian Barry, Justice as Impartiality 1995 pages 80-86


                                                                                              32
inhuman treatment is forbidden by the constitution.75 Sharia law can prescribe death as a

punishment for adultery but the mode of execution of sentence should not be inhuman.

Stoning the convict at ‘the back and the front but not the face and private part’ 76 until she

is dead seems as cruel and degrading as anything could be. In Safiyyatu’s case, the Sharia

Judge pronounced: “The convict should be stoned at his b ack and front but not at the face

and private part. She should be stoned to death. Later to be bathed and prayed and taken

to her last home of Muslim”. 77 This sounds like real horror to many people .

         The Nigerian Supreme Court has set the standard for determining whether Sharia

punishments violate the rights to life and human dignity. First, sentence of death is

permissible as long as there are sufficient due process safeguards. The decisions of Sharia

appellate courts so far indicate that the proceeding would satisfy formal due process.

Both in Amina and Safiyyatu’s cases the appellate Sharia courts reversed the judgments

of lower courts because procedural safeguards were not followed. On the torture claim,

the Supreme Court suggested as an aside in the first case in which the issue arose that if

the process was cruel, then a violation will likely arise. 78

         The legal challenge will be the standard to apply to determine what constitute

‘torture’. The bulk of the cases from common law jurisdiction have followed a “physical

pain” approach which considers infliction of physical pains to a person without her

75
    Section 34 of 1999 constitution
76
    Sharia Judge Mohammadu Bello Sanyinnawal in COP v. Yakubu Abubakar Tungar Tudu & Safiyyatu
Hussaini Tungar Tudu USC/GW/CR/F1/10/2001 Cited by Obe, The Meshing of Legal Systems: The
Challenge of Sharia, paper delivered at Nigerian Conference, Kennedy School of Go vernment 2002
77
    Judgment delivered by Mohammed Bello Sanyinnawal in Case No. USC/GW/CR/F1/10/2001,
Commissioner of Police v. Yakubu Abubaka Tungar Tudu & Safiyyatu Husaini Tungar Tudu on October 9,
2001 quoted in Ayo Obe, “The meshing of Legal Systems: The Challenge of the Shari’a” paper presented
at a conference on “Unity, Governance, Law, and Conflict” at the Kennedy School of Government,
Harvard University, 12-14 December, 2002, (not paged).
78
   In Onuorah Kalu v. the State, the Supreme Court declined to determine the issue of the constitutionality
of death row phenomenon and directed that the case proceeds from the lower on the question of
constitutionality of hanging of condemned prisoners.


                                                                                                        33
consent as cruel. In this approach, the European Court of Human Rights has condemned

corporal punishment as cruel and inhuman punishment. The idea of torture may be

universally precluded yet there is a disagreement about the fact of torture. European

ideals may consider spanking children inhuman, while Africans may see it as an aspect of

moral training. It should be borne in mind that no execution by stoning has been

committed by Nigerian Muslims. No one can remember if it was done even during

colonial rule, and it is doubtful if it would be done now, especially, since the sentence

permits the victim to escape amidst hails of stones. The real fear is that insensitive

meddlesomeness of some non-Muslim activists may drive government to act tough and

accede to the urgings of fringe extremists who want a cataclysmic therapeutic effect from

Islamic revivalism. 79



The Weakness of the “individual rights and autonomy” Approach of Foreign NGOs



         The starting point of intervention by foreign human rights groups is to focus on

violation of individual rights. This approach seems to follow from the presupposition of

western notions of human rights, that is, that human rights are foremost the entitlements

of individuals against the collective and derive from the conception of the person as a

project pursuer.80 The Human Rights Watch press release challenging the conviction of

Safiya Hussaini Tungar-Tudu, the first women to be sentenced to death for adultery by

79
   During the height of international campaign against Amina’s sent ence, BOABAB for Women Human
Rights, a leading human rights group in Nigeria issued a statement calling on international activists to
soften their critique, on the ground, amongst others, that such trenchant attack on Sharia may result in an
unintended con sequence of strict enforcement or vigilante justice. See Ayesha Iman and Sindi Medar -
Gould, “The Hidden Dangers of Letter Campaign” dated May 15, 2003 and circulated via the web.
80
   The concept of ‘project pursuer’ is the governing idea of human rights in l iberal theory, even when it is
not articulated it hovers in the background. See Loren E. Lomasky , Persons, Rights, and the Moral
Community 1987 for a robust defense of this justification of human rights.


                                                                                                            34
the Sharia court, captures this bias. It quarrels with the conviction because it violates a

woman’s right over her body. According to the group , “Women have a basic right to

control their sexual autonomy. When a woman is punished so severely for having pre -

marital sex, her right to make free decisions regarding her body is violated”. 81

        Framing the issue this way is to step into a crisis. First it invokes the problem of

different conceptions of the good. Secondly it abstracts from the questions of power and

sociological dialectics behind the implementation of Sharia. Notably, domestic women

rights groups and Islamic women organizations react differently. They focus on the

questions of politics and social justice within the structures and institutions of Islam and

the Nigerian states. For example, the news release from the BAOBAB for Women

Human Rights, a Nigerian group, focuses on the asymmetry of power and the gender and

class orientation of application of Sharia rather than the notions of autonomy and

individualism. It emphasized the social status of the convicts and the lack of judicial

training of Sharia judges.82 These groups understand the so cial dialectics of the ‘Sharia

justice’ better than the ‘missionary ’ foreign NGOs. They understand that the undefined

rules and contexts are more pernicious than the express provisions of the Sha ria codes.

They also understand that real outcomes depend more on mechanism of implementation

and less on legal provisions. For example, there is no woman Khadi Muslim judge in

Nigeria. Even women lawyers need the company of male counterparts to appear in some

cases.83



81
   HRW World Report 2002 ‘Nigeria: Woman Sentenced to Death under Sharia’. Source:
http://www.hrw/org/press/2001/10/nigeria1023.htm
82
   Press Release of March 3, 2002
83
   Umar Habila Dadam Danfulani, “Women Under the Sharia in Northern Nigeria: The Issue of Zina,
Adultery, Who Will Cast the Stone”, a paper presented at an international conference on “The Shaping of
Muslim Christian Identities in Nigeria Since 1999” held at the University of Bayreuth, Germany, July 11-


                                                                                                       35
         Amina Lawal’s lawyer, a devout Muslim and a woman, u nderstands the

importance of social context and cultural norms in defense of human rights. She

consciously refused to focus on divisive issues like individualism, sexual rights and

autonomy. Instead she challenged the judgment on legal grounds and on an alternative

interpretation of the ‘Sunna’ of the prophet. She understands that underemphasizing

paradigms and events in Islamic history that prescribe alternative policies carries out the

politics of religion. In the life of Prophet Mohammed and his descendants there are

instances and rhetoric that can invalidate the imposition of death sentence for adultery in

the circumstances of Amina Lawal’s case.

         Another group that abandons the ‘autonomy’ approach in fighting for women

rights is the Federation of Muslim Women’s Association in Nigeria (FOMWAN). They

quote authoritative texts in the Qur’an that declare the equality of women and the

importance of social justice. Instead of conceiving rights as individual claims they see

them as aspects of social justice and communal welfare. 84 This conception undercuts the

views of cynical manipulators of culture and religion, which easily stigmatize advocacy

based on autonomy as propagation of western liberal morality and sexual norms, and

provides strong cultural and social grounds for contesting deprivations and violations. 85




12, 2003 p. 16 quoted in Gwamma Dogara Je’adayibe, Sharia, Gender and Rights of Non-Muslims in
Northern Nigeria (draft paper on file with author) page 9
84
   Alhaji Lateefah Okunnu, “Women, Secularism and Democracy: Women’s Role in the Regeneration of
Society” Paper delivered at a conference on sharia in London. Source:
http://www.shariah2001.nmnonline.net/okunnu_paper.htm. See also Maryam Imam, “Punishment under
Sharia and Their Significance NewsWatch November 3. 2002. Online source:
http://allafrica.com/stories/printable/200211040748.htm
85
   Some liberals may have problems with this sort of ‘organic’ approach to human rights protection for fear
it may imprison the person in the ideological lock of the community. The tension between community and
individual can be settled at the level of abstracts. We must pay attention to the context and look at the
relationship between the individual and the community and mark off acceptable practices by grand ideas.


                                                                                                         36
        The problem with ‘individual right and autonomy’ approach of western

intervention is not only that it invokes controversial conception o f rights; it also leads to

wrong-headed strategies. It alienates the women whose rights they claim to defend from

the campaign. It continues and perpetuates the memory of colonialism and cultural

imperialism. The approach betrays ignorance of the realism of international politics and

the dark shadows it casts on human rights intervention. The common belief outside the

West is that human rights are western notions and the promotion of these rights is post-

cold war equivalent of colonialism. This belief is re inforced by the politics of hypocritical

engagement with human rights violation around the world by western powers.

        Although foreign NGOs may be motivated by charitable considerations devoid of

hidden agendas the suspicion lingers. In this context it is counter productive to respond to

human rights programs in these post-colonial states by ‘urging individual rights as

universal virtues that override specific cultural norms”. As Miriam Cooke and Bruce

Lawrence argue, when non-western countries or groups tra ce their sovereignty or social

order to a conception of religious and cultural duties that supersede individual rights, it

might be a proxy struggle to define their political space in a post -colonial world

dominated by western powers.86 The politics of huma n rights in this case is a response to

another politics of human rights. The individual violation becomes a turf to fight for

cultural and political supremacy.

        Because of political perception the tired style adopted by Amnesty and others

could result in unintended bad consequences. It could harden the determination of local

despots who conceive foreign intervention as cultural and political domination. Asking


86
   Miriam Cooke & Bruce Lawrence, “Muslim Women Between Human Rights and Islamic Norms” in
Irene Bloom et al ed. Religious Diversity and Human Rights (Columbia University Press 1996) p. 315


                                                                                                     37
Americans and other westerners who live far away from Kaduna and do not understand

both the social and political contexts to petition public officials in Nigeria is, in the least

ineffective and at worst, dangerous. It invokes the idea of ‘do-gooders’ who conceive

others as savages. In the Nigerian case it was clearly a dumb strategy. Already local

Islamic women groups were at the forefront of the struggle against the manipulative use

of religion. An appeal court had voided the early adultery judgment. The federal

government had granted protective custody to Lawal and had promised she would not be

stoned to death. Strong internal critique was going on among Muslim clerics and

theologians on the idea of classical Islam. Some have started to argue that the notion of

Sharia law in a human state is not Islamic. So, there was no real and imminent threat of

grievous violation to justice pressing the red button.

        The fixation with the ‘shaming’ strategy in this case is both a result of mental

block and a concern with organizational reputation and profit to the detriment of Amina’s

welfare. It is a result of the p ressure to ‘do something’ even when there is no need for it.

It is one shortcoming of an enforcement and adversarial oriented approach to human

rights protection. It was this sort of ‘good work’ that nearly endangered Mrs. Safiy yatu

Hussaini who was spirit ed out to Rome to receive a national award. The Sokoto State

government accused the Federal Government of conniving with the papacy in Rome to

honor a confessed adulterer. Giving a national award to a woma n convicted of adultery in

Rome-the citadel of Roman Catholic- could be perceived as a challenge and critique of

Islamic morality. Why should Safiyyatu be turned into a rock star in the city of Rome?

Why should anyone sneak a rural woman out of Nigeria, dress her in royalty and present

her as a symbol of womanhood? This was provoking. This unnecessary provocation




                                                                                            38
could undermine the work of Muslim women and activists working within the cultural

and religious tradition to save Amina and other women from male domination through

religion.

        Alternative Policy Fr amework

        How can such human rights issues like the Amina case be resolved without the

‘autonomy and individual rights’ approach of most western human rights groups? It must

be conceded that the main concern of human rights intervention is to protect the

individual from harm or deprivation. But individual welfare can be protected without

necessarily pitting the individual against the community. Even in western societies there

are strands of human rights discourse that proceed from communitarian assumptions.87

Also, alternative policy perspectives that will be effective in Amina’s case will

emphasize the importance of political context and power dialectics in determining

intervention. In the present case, the proper role for foreign NGOs and government s is to

support local human rights groups, especially Muslim women movements. It must be

understood that the interests that rights seek to protect can be protected outside the

framework of adversarial claim of rights. Dignity, life and social and economic welfare

can be contested and negotiated within communal and solidarity networks.

        As Annette C. Baier puts it “Rights must be constantly balanced and adjusted -that

is part of their nature, and it expresses the nature of us their creators. We are not merely

claimants and contestants, we are plea bargainers, compromisers, fixers, and adjusters”.88

The problem with the ‘enforcement’ framework of human rights intervention is that it

87
   See Mary Ann Glendon, Rights Talks: The Impoverishment of Political Discourse (The Free Press 1991)
and Michael Sandel, Liberalism and the Limit of Justice (Cambridge University Press 1998) for defense of
rights that respect community and sociality.
88
   Annette C. Baier, “Claims, Rights, Responsibilities” in Gene Outka and John P. Reeder, JR. ed.
Prospects for A Common Morality 1993 p. 152


                                                                                                     39
denies the importance of politics and method s of negotiating power in a society and

naively invests so much faith in the power of legal and constitutional declarations. A

proper understanding of the importance of politics and context in Amina’s case will

change the dynamics of intervention from counter-cultural and legalistic to cultural and

dialogic.

        A critique to the cultural approach is that it compromises the welfare and

entitlement of the individual. It needs not be so. Rather it may be an economic and less

disruptive approach to human rights enforcement. It proceeds from the assumption that

violations are usually consequences of inequitable power relations in a society and

locates the proper site of remedying these inequities within the institutions and structures

of violation. Obviously, at some point the violated may cry out for externa l support. But

external support should be anchored on local context to be effective. This approach is

most important in situations like Amina’s case where there are active local contestations

and negotiations. Supporting local right activists is the best way to respect their human

agency and be effective in removing the structures of violation built on dis -

empowerment.

        I also stress another policy approach: dialogue and negotiation. By this I mean

that rights should be enforced in situations of conflict and social instability through

political negotiation. It is difficult to settle the problem of the validity of sharia in Nigeria

through legal action. The illusion of public law resolution should be exposed. Most rights

activists resort to the role of Supreme Court in determining public rights in the US and

model it as an example in other contexts. But it should be remembered that the same

social norms and cultural legitimacy of the US Supreme Court might not obtain in some




                                                                                              40
other countries. It’s doubtful if a Supreme Court ruling in Nigeria would necessarily

settle the sharia dispute. Such polycentric issues are better subjected to a process of

national dialogue and negotiation instead of seeking a formalistic legal solution.89 I

would suggest that instead of challenging the constitutionality of Sharia in the court, in

the political context of the emergency of the Sharia, political negotiation may be a more

effective solution. The downside of this approach is that it seems to compromise the

ideals of the rule of law and constitutionalism. But it is important to bear in mind that

constitutions are first notional before they become textual. If the idea of a constitution as

unimpeachable is absent or at least not as mythical as in the US, then text and judicial

elaborations of it may be less availing during serious crisis.

         Abandoning the ‘individual rights and autonomy’ approach in cultural and

political contexts like Islamic Nigeria may be problematic because it appears like

abandoning the fundamental premise of universal human rights, that is, the protection of

the individual. But if examined closely in the culture sensitive approach I advocate here ,

it may be more efficient and effective for foreign NGOs. It saves resources wasted in

dealing with avoidable cultura l and contextual resistance and also serves the ultimate end

of human rights: helping people to live self-rewarding lives in their different

communities.



         Conclusion




89
   Even in the mythic case of the United States legal scholar are awakening us to the limitation of court
jurisprudence in settling policy disagreement in matters of religion or comprehensive moral ity. The recent
attempt by the Bush administration to entrench the meaning of marriage in the constitution to frustrate any
judicial interpretation is a chastening lesson on the frailness of the court as the settler of last resort in some
contests.


                                                                                                                41
          Since Sharia courts of appeal quashed the conviction and sentence of death on the

two women alleged to have committed adultery, many more persons have been tried for

the same offences in northern Nigeria. Although no one has been executed yet for the

offence, it is not certain that no one would. Interestingly, the political tension generated

by the introduction of criminal Sharia has eased up. The federal government has backed

down from its rhetoric and the Sharia Governors, having satisfied the political

expectation, are less passionate about ‘Islamic justice’. Politics seems to have taken care

of the conflict. But not quite. The contradiction between liberal democracy and the deep

pluralism entrenched in Nigeria political culture is yet to be settled. How religion and

secular law should share political space in Nigeria is yet uncharted. The po wers of the

state vis -à-vis the federal government in the context of legal pluralism is still shrouded in

confusion. The future of liberal democracy in Nigeria remains troubling.

          The reversal of Amina’s conviction was greeted with joy across the world. Both

critics and proponents of ‘Sharia justice’ praised the judgment. Gani Fawehinmi,

Nigerians foremost human rights lawyer and the Chairman of the Nigerian Bar

Association, Wole Olanipekun, “hailed the verdict as victory for justice” 90 In the same

vein, Bola Tinubu, the Governor of cosmopolitan Lagos State and a Muslim, praised the

Sharia judges for making the “crucial point that the Sharia is a well-developed legal

system that places emphasis on objectivity, respect for evidence, serious regard for the

truth and a holistic perspective that combines morality and legality”. 91 Who won: western

human rights or ‘Islamic justice’? And what does that matter? The crisis is not yet over.




90
     “Sharia: Amina Lawal Freed at Last”, Daily Champion, September 26, 2003
91
     “Appeal Court Quashes Death Verdict on Amina Lawal” Vanguard, September 26, 2003


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