Sharia Court Research Articles

Binding Precedent and Shari'a/Islamic Law in Nigeria: An Attempt at a Civil-Criminal Distinction

Two eminently outstanding cases in Nigeria that have touched on the issue of precedent in Shari'a are Karimatu Yakubu Paiko & Another v. Yakubu Paiko & Another and Chamberlain v. Abdullahi Dan Fulani both of which were civil cases. Karimatu was a case on the question of ijbar (the right of a father to marry off a virgin daughter with or without her consent) in which the Court cited with approval the earlier decision of a Sharia Court of Appeal. Professor Auwalu Hamisu Yadudu and Professor Muhammad Tawfiq Ladan have criticized the Federal Court of Appeal for relying on an earlier decision to reach its own decision. Their individual conclusion is that this reliance has deviated from Sharia/Islamic law principles. Chamberlain is significant because it presents an opportunity to observe the difference between Common law and Islamic law systems on the issue of precedent. With the re-introduction of the Hudood in some states of Northern Nigeria, it has now become inevitable that precedents will be established and courts in the hierarchy established by the Penal Law must abide by them. This is likely to produce some conflicts that may resemble the conflicts which were experienced in the 1950s which gave rise to the ousting of criminal jurisdiction from the so-called customary courts. It should be noted that the Nigerian legal system seems to treat Islamic law as customary law. This paper examines the likely distinction between civil and criminal matters in Shari'a courts in Nigeria and how the concept of precedent plays or is likely to play a part in the development of the law.

Reading Lohaidan in Riyadh: Media and the struggle for judicial power in Saudi Arabia

Along with a reported one in seven viewers across the Arab World, Saudis were glued to their television sets during 2008 watching a Turkish soap opera called Noor.[i] The show was dubbed into Levantine Arabic and broadcast three times daily during Ramadan by MBC, a pan-Arab satellite network owned by Walid al-Ibrahim, a brother-in-law of the late Saudi king Fahd bin Abdelaziz Al Saud. Starring an economically independent, unveiled female lead and her tender Casanova of a husband, Noor was so popular that it spurred a large number of Gulf Arab tourists to visit Turkey, including the Saudi first lady Princess Hissa Al-Shaalan, and its blonde and blue-eyed star Kivanc Tatlitu became a heart-throb for Saudi and other women. The drama had a particular grip on the public because, unusually, it was dubbed into colloquial rather than classical Arabic, and its Turkish milieu had a familiarity for Arab audiences that other foreign soaps lack. The popularity of Noor prompted some Saudi ulama to warn that “secularism” was making its subversive way into Saudi society through the cathode ray. “It is not permitted to watch the Turkish series...They are replete with wickedness, evil, moral collapse and a war on virtues that only God knows the truth of,” Sheikh Abdulaziz Al al-Sheikh, the official voice of the government on religious affairs, said in July.[ii] In this context, public comments made last Ramadan by one of the most powerful Wahhabi clerics of all, Sheikh Saleh al-Lohaidan, head of Saudi Arabia’s Islamic Sharia courts, seemed calculated to create the perfect storm of media controversy. Speaking on a religious radio show, Lohaidan claimed that owners of television networks who broadcast “indecent programming” could be executed if tried for their celluloid crimes.[iii] Pan-Arab, self-styled liberal outlets such as MBC’s al-Arabiya and Elaph, whose owners have strong connections to the royal family, breathlessly relayed the story with the implication that Lohaidan was inciting vigilante violence against media moguls. Western media, in turn, quickly picked up the story, eager to trumpet what they framed as simply yet another case of the whacky excesses of Saudi Arabia’s puritanical Wahhabi doctrine.

Review: Where War Lives

WHERE WAR LIVES Paul Watson Toronto: McClelland and Stewart, 2007. 367pp, $34.99 cloth (ISBN 0771088221)If you do this, I will own you forever. Those were the words journalist Paul Watson heard in his head as he took a picture of the desecrated body of Staff Sgt. William David Cleveland, Jr. Cleveland was one of the casualties of operation Gothic Serpent, the ill-fated 1993 mission in Somalia to capture warlord Muhamed Farah Aideed that claimed the lives of 19 American soldiers. The loss prompted a hasty US retreat. Watson's image, which featured Cleveland's body surrounded by jeering Somalis after the downing of his Black Hawk helicopter, exemplified the dangers of interventionism in the post-Cold War era.It also shaped the Canadian journalist who snapped the shutter that fall day. Watson chronicles his involvement in almost of all the significant conflicts of his era in an honest and gripping new memoir, Where War Lives. The book is framed as an attempt to restore some the honour that [he] stole in that second when [he] pressed a button (xiii). Watson's physical and emotional journeys around the globe are deftly woven together in an attempt to find meaning in the string of assignments that led him to his current post as the bureau chief of the Los Angeles Times in Jakarta.Watson got his journalistic start at the Toronto Star, where he was first assigned to scan the police radio waves for breaking stories. Using his vacation time from the paper, he traveled to Eritrea, and later Angola during its civil war, to do his first war reporting. These early experiences whet his appetite for more field assignments. A print journalist by training, Watson earned a master's degree from Columbia University's school of international and public affairs.After his time in Somalia, Watson became bureau chief in South Africa and covered the Rwandan genocide. In Kigali, upon meeting Romeo Dallaire, commander of UN forces, he realized how the Cleveland photo affected policymakers reluctant to deploy troops into the unfolding genocide there. I'm sure he [Dallaire] had no idea that I'd helped make certain that he, and Rwanda, would be abandoned by the (113).Even if the moral imperative for action was obvious in Rwanda, for much of the book, Watson breaks down the image of the world at war as a conflict between the forces of good versus evil. He also shows how the journalist's desire to make the right choice isn't always clear. The decision not to document proved conflicting as well. Invited to a show trial of two rapists in a small town north of Mogadishu in a sharia court, he describes the stoning of the convicted men surrounded by a bloodthirsty crowd. When he later relayed the incident to a researcher from Amnesty International in London, she lost interest in the story in the absence of photographic evidence. They [the court officials] wanted me to take some [pictures], so I didn't (164). He refused to be a cog in their propaganda machine. …

‘Moderate Islam’: Defining the Good Citizen

On 23 August 2005, John Howard, then Prime Minister, called together Muslim ‘representatives’ from around the nation for a Muslim Summit in response to the London bombings in July of that year. One of the outcomes of the two hour summit was a Statement of Principles committing Muslim communities in Australia to resist radicalisation and pursue a ‘moderate’ Islam. Since then the ill-defined term ‘moderate Muslim’ has been used in both the political and media discourse to refer to a preferred form of Islamic practice that does not challenge the hegemony of the nation state and that is coherent with the principles of secularism. Akbarzadeh and Smith conclude that the terms ‘moderate’ and ‘mainstream’ are used to describe Muslims whom Australians should not fear in contrast to ‘extremists’. Ironically, the policy direction towards regulating the practice of Islam in Australia in favour of a state defined ‘moderate’ Islam signals an attempt by the state to mediate the practice of religion, undermining the ethos of secularism as it is expressed in the Australian Constitution. It also – arguably – impacts upon the citizenship rights of Australian Muslims in so far as citizenship presents not just as a formal set of rights accorded to an individual but also to democratic participation: the ability of citizens to enjoy those rights at a substantive level. Based on the findings of research into how Australian Muslims and members of the broader community are responding to the political and media discourses on terrorism, this article examines the impact of these discourses on how Muslims are practicing citizenship and re-defining an Australian Muslim identity.

If Amina Lawal had Failed: Issues in Constitutional and Islamic Criminal Law in Nigeria

Following the acquittal of Amina Lawal by the Katsina State Sharia Court of Appeal of the offence of adultery, many commentaries have applauded the courage of the Sharia Court for reaching the decision it did. Most of the commentaries, like that of Ojeih of the Nigerian Law School, fail to acknowledge the efficacy of the Islamic law and the Islamic legal system. Instead, the issues they raise bother on constitutional conflicts between a religious (religiously-inspired) law and the laws of a secular state like Nigeria, which is a state party to several International Human Right Conventions. The penalty for adultery under Islamic law is stoning to death. The issues in Ojeih's material, 'Amina Lawal - Sharia Law and the Constitution: A Struggle for Supremacy?', published in a collection of constitutional essays in honour of Chief Bola Ige, Nigeria's former Minister of Justice, allude to many potential conflict areas with the Constitution if Amina's Sharia Court appeal had failed. This paper attempts to analyse those possible areas of conflict which Ojeih identifies and isolate probable and possible approaches for the resolution of any constitutional conflicts that a religiously-inspired law like the sharia law may bring about in Nigeria. This paper maintains the position that so long as the constitution allows religious freedom, it is unlikely that a conflict will arise between the secular state and any kind of religiously-inspired law.

Zina (Adultery) in Islamic Criminal Law in Nigeria: The Gender Issues in Amina Lawal's Case

Amina Lawal is the divorcee found guilty of the crime of zina (adultery) by two sharia courts but acquitted of the charge at appeal. The lower courts had grounded their conviction on the evidence of the birth of a baby girl, which by itself was, prima facia, proof of illegal sexual activity. Substantive (procedural) issues were later discovered to have been ignored and upon these discoveries, the Katsina State Sharia Court of Appeal discharged and acquitted Amina of the offense. This case provided one of the best springboards for looking at the ability of the Sharia legal system to safeguard the rights of individuals especially in cases with prescribed corporal and capital punishments. What happened in the wake of the events of Amina Lawal's case instead was an inundation of the media with gender related pleadings in the light of this case. Several Nigerian women organizations, who facilitated Amina's appeal, failed to utilize the opportunity of their involvement to do any constructive engagement and build some resource base that will assist in the understanding of Islamic law doctrines. For, there is no gainsaying the fact that it was certainly not any kind of pressure that caused Amina's acquittal, but the courage of the Katsina State Sharia Court of Appeal to read the relevant laws and apply them judiciously. To hold otherwise would be unfaithful to the fact of the existence of law. Nigeria is a multi-legal society. It is my contention in this paper that the punishment for the crime of zina (adultery) is not just for the female convict; the fact that the incidence of female defendants and of convicts is high is due to the ease with which elements creating suspicion as to the commission of the crime manifest in them. I will show that reducing the discussion in respect of the crime of zina (adultery) under Islamic law to gender issues is dysfunctional and will in no way advance the cause of women rights especially in countries with substantial and significant Muslim populations. In the alternative, I explore likely approaches that gender issues could be pursued under Islamic law and emphasize the need for women organizations to redefine their objectives and move away from merely challenging an 'immutable' law to explaining its implications within a wider perspective. I conclude that it will be a great disservice to womanhood to continue on the path of seeking that Islamic law treats zina (adultery) the same way the common law does.

‘Moderate Islam’

‘Moderate Islam’

The Future of Somalia's Legal System and its Contribution to Peace and Development

This article argues that the distressing situation in Somalia offers an opportunity to introduce new legal institutions with less colonial path-dependence and greater sensitivity to the security and development needs of Somalians. Peace and stability could be enhanced by allowing customary law and Islamic courts to operate within the framework of the Transitional Federal Charter (TFC). A civil law system with the judicial discretion and selection of a common law system would help to enhance economic development by attracting foreign direct investment. A single court system which unifies ordinary and Sharia courts would create a more enabling legal environment for law and order and economic development than the dual court system. Moreover, as international human rights law is mainly in the form of conventions and treaties in the style of civil law, promotion and protection of human rights may be better served predominantly through a civil law system in which a judge applies particular provisions of specific conventions and treaties. Such a system would also help to harmonise a legal system which is cobbled together from five different sources of law.

Social Identity and Patterns of Interaction in the Sharia Court of Kastamonu (1740-44)

AbstractIn this article I introduce quantitative techniques and procedures to analyze how various social groups in mid-18th-century Ottoman Kastamonu experienced the court process. By processing the information found in three Kastamonu court registers, I attempt to determine the group identities of court clients and to compare the choices made by different groups in various legal circumstances. I will identify the kinds of issues brought to court by different segments of the social hierarchy, and the legal adversaries and/or contracting parties brought to court by these court clients; and I will assess how these groups fared in their disputes. My analysis confirms the existence of diverse patterns of court use by various groups in 18th-century Kastamonu and the differential use of the court's services by clients with different social and economic backgrounds.

The Practice of Writing Curricula Vitae among the Lower Government Employees in the Late Ottoman Empire: Workers at the Şeyhülislâm’s Office

The personnel records collection of the Ottoman Seyhulislâm’s Office contains the dossiers of the ancillary workers who served at the bureaus and the Sharia courts in the early twentieth century. Drawing on these rare materials, this article examines the practice of writing curricula vitae (CVs) among the workers to understand to what degree and in which manner they had access to and made use of written words, with special focus on the workers from Puturge in the Kurdish speaking regions of Eastern Anatolia. The language skills and the education of the workers expressed in their CVs indicate that most of them acquired some sort of literacy, which was different from the literacy required to write official documents. Thus, they usually had scribes write their CVs on their behalf. While the involvement of the scribes in the process of writing CVs belies the general assumption that writing is an individual act, this and other practices of the workers undermined some of the basic principles of the working of the Ottoman bureaucracy based on the written documents. Still, they knew the value and usage of written documents and thus were able to deal with the written culture of the Ottoman bureaucracy.

Divorce Reform in the Sharia Court of Appeals in Israel (1992-2003)

In this article, I study Article 130 of the Ottoman Family Law, which is still applied in Israel, with special attention to developments within the Sharia Court of Appeals between the years 1992 and 2003. I argue that this Court has encouraged reform regarding the issue of niza wa-shiqāq (quarrel and disagreement). This reform has four main components. First, it entails a weakening of the patriarchal concept that limits a woman's role within Muslim society, her authority over her body, and her movements. Second, it eases the burden of proof by lowering evidentiary requirements. Third, it improves the procedure of arbitration by better defining the suitability of the arbitrators and supervising the methods of their work. Fourth, it enables the Sharia Court to nominate arbitrators and control their decisions. This reform has improved women's rights to divorce and has made divorce a relatively easy option. The reform also makes it easier for both men and women to obtain divorce, particularly as compared to other religious minorities in Israel.

The Malaise of Islam

��� magine that the senior religious authorities, the most experienced Sharia court judges, and the most prominent Islamist politicians, dissidents, and modernizing reformers from Egypt, Iran, Saudi Arabia, Pakistan, Indonesia, and Algeria are gathered in a conference hall with the intention of defining an Islamic state. Their assignment is to write a universal constitution for Muslim societies, creating a governance model by which all Muslims would live, in the Islamic state to which they profess to aspire. The constitution is to be specific, laying out details as to form of government, choice of leader and succession, economic structure, courts and judiciary, and the role of the state—if any—in family and personal status matters. It is to specify whether the zakat is to be collected by the state or left to volunteer contributions, and whether the imams of mosques are to be employees of the state. It is to spell out who is to have the authority to say whether traditional practices in some Muslim communities such as honor killings, female genital mutilation, and death for apostasy are required, permitted, or prohibited, and how such rulings are to be enforced. The delegates have no deadline, but are to stay in conference until they reach consensus on a document that will put an end to centuries of disputation about the proper way for Muslims to conduct their affairs. In truth, they are unlikely ever to emerge because the probability that such a consensus could be achieved is close to zero. Nearly 14 centuries after the death of the Prophet Muhammad and decades after the end of colonialism, the world’s Muslims have failed to achieve what the scholar Fazlur Rahman called “a conscious vision of an Islamic sociopolitical order.” 1 The tortured quest for constitutional consensus in Iraq demonstrated anew the difficulties Muslims face in defining the terms of their governance, and it is still too early to predict whether that country’s people—mostly

The Domestic Relations Bill in Uganda: Potentially Addressing Polygamy, Bride Price, Cohabitation, Marital Rape, Widow Inheritance and Female Genital Mutilation

The Domestic Relations Bill is a crucial piece of legislation for Ugandan women. It addresses women's property rights in marriage and women's right to negotiate sex on the grounds of health, sets the minimum age of marriage at eighteen, prohibits FGM and criminalizes widow inheritance. As a compromise measure, bride price will not be prohibited, but the payment of bride price will no longer be essential for the formalization of customary marriages, and any demands for the return of marriage gifts will be an offence. The bill criminalizes marital rape and provides for civil remedies, such as compensation and restricting orders. The grounds for divorce are equally applicable to both spouses and alimony is provided for. The Domestic Relations Bill continues to exclude cohabitation from the presumption of marriage, but provides parties to such relationships with certain rights, including the right to register the fact of cohabitation and particulars of any monetary or non-monetary contributions made. A competent court may then distribute the property equitably in accordance with those contributions, and may do so even when registration has not taken place. Polygamy is also strictly regulated by guidelines that provide for the economic support of all wives. The bill also provides for equal sexual rights and establishes more equitable grounds for divorce. The paper discusses domestic and international law and Islamic Family Law in arguing that the reforms, while a step forward, do not go enough, offers arguments and alternatives and examines the particular situation of Muslim women. It questions the wisdom of promoting Khadi Sharia courts and discusses the Indian Shah Bano case as germane to Uganda's dilemma on issues of religious rights conflicting with issues of gender equality in contexts of Sharia personal law.

Stoning, Sharia, and Human Rights Law in Nigeria

Stoning women to death for sexual relationships outside marriage is a barbaric and medieval practice. Women's Rights Protection and Advancement Alternative (WRAPA), a Nigerian NGO successfully represented Amina Lawal in 2003 and prevented her death by stoning. Amina Lawal was a divorced woman sentenced to death by stoning by a Nigerian Sharia Court for her alleged commission of zina, a capital crime under the recently adopted Shari'a penal code of Katsina State in Northern Nigeria. Since women are not allowed to argue in Sharia Courts, WRAPA contracted with Barrister Aliyu Musa Yawuri, to represent Amina Lawal in her appeals. WRAPA and its Nigerian collaborators were pleased that the outcome vindicated their position that the provisions of the Shari'a legal system can safeguard justice based on its own principles, procedures and precedents from the life of the Prophet. WRAPA maintains that the judgment will have a far reaching, positive impact on the protection of women from arbitrary arrests and convictions. Two new stoning cases, concerning two women, Hajara Ibrahim and Daso Adamu, represented by BAOBOB, Nigeria, now exist in Nigeria. Those working to defend the accused will rely on the Amina Lawal precedent. WRAPA believed that going to the Sharia court and winning the appeal there was the best way to advance Islamic jurisprudence, and protect other Muslim women from similar ordeals. The strategy was also aimed to encourage Muslims to be less powerless in the face of the religious right by proving that abuses perpetrated by the unscrupulous in the name of Islam can be challenged in a way that the Islamic court system can be relied on to issue a judgment comporting with true Islamic principles. Remaining in the Sharia system permitted WRAPA to contest Sharia's interpretation by the lower courts, and criticize its implementation. Understandably, Muslim lawyers or lawyers living under Muslim laws may not wish to challenge Sharia. Arguing for equality between men and women, a principle some argue is not recognized in Sharia, could target them as westernized betrayers of their culture and religion. But the problem with failing to address that Sharia discriminates against women and permits violence against them, is that Sharia reform is thwarted. WRAPA's and the other Nigerian NGOs' attempt to facilitate the progressive interpretation of Sharia law is commendable, but the decision to work within the Sharia framework drew some criticism. The cases that have been won in the Sharia courts are not helpful in diminishing violence against women as a group inasmuch as the cases are overturned on technicalities with limited application to preventing other unfair prosecutions. The strategy was also criticized for failing to publicly acknowledge that some provisions of the new Sharia penal codes, subjecting all Muslim women in northern Nigeria to live under an imminent death sentence, clearly violates the Nigerian Constitution and international human rights law. This discussion paper deals with developing and presenting possible grounds of appeal in stoning cases under the Nigerian Constitution and international human rights law that would go beyond Sharia Courts in the event of an adverse decision for the current cases.

Women's History and Ottoman Sharia Court Records: Shifting Perspectives in Social History

AbstractThis paper revisits some methodological and conceptual aspects of scholarly works on the social history of Middle Eastern women based on Ottoman court records that were published in the last three decades. It discusses the main approaches employed by historians in the field for analyzing court records, and the circumstances that shaped these patterns. It shows that, during the 1970s and 1980s, this body of scholarly works on women's history, as part of Middle Eastern social history, adhered to historiographical approaches that did not follow the "cultural turn" characterizing West European and North American historiography. This situation, however, has recently changed.

Lawyers, Legal Education and the Shari’ah Courts in Nigeria

In the pre-colonial era Islamic law existed in northern Nigeria as a fully-fledged, independent legal system with its own supporting educational system. When the colonial authorities took over this judicial system, they gradually modified and directed it to accord with their own notions of justice. The colonial authorities also introduced their own common law into the country. Yet Islamic law and common law are two radically different legal systems. The colonial imposition of common law and its personnel over Islamic law and its administration generated serious legal, political and religious tensions which have persisted even in the post-colonial era, because independent Nigeria inherited the colonial judicial structure.The post-colonial era generated its own tensions and conflicts also. Legal education was patterned exclusively along lines obtaining in England. Thus, Islamic law and the existing traditional Islamic educational system had no place. It was only in the mid-1970s that combined law degree programmes in common law and Islamic law were introduced in some universities in Northern Nigeria. In 1985 lawyers gained the right of audience (which they had lacked throughout the colonial era) in Area Courts and the Sharia Courts of Appeal, which are courts of Islamic law jurisdiction. Lawyers who have no training in Islamic law are now actively involved in the administration of Islamic law as counsel and judges. This paper argues for a separation of the administration of Islamic law from common law in terms of courts and personnel, and demonstrates the imperative for the professionalisation of the practice of Islamic law.

The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction

The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction

KADIS (JUDGES) OF THE SHARIA COURT OF APPEAL: THE PROBLEMS OF IDENTITY, RELEVANCE, AND MARGINALISATION WITHIN THE NIGERIAN LEGAL SYSTEM

Abstract The position of Kadis reflects well the inferior position of Islamic law in relation to the common law in the Nigerian legal system. The general attitude of many legal practitioners to the Sharia Court of Appeal and the Customary Court of Appeal is that these courts will eventually disappear and their jurisdiction will merge into that of the High Court. Kadis are considered as aberrations within the judicial system. However, the Zamfara State initiative revived Islamic law and the status of Kadis. This article examines the position of Kadis before and after the Zamfara State initiative, and suggests what remains to be done to give Kadis a befitting place within the Nigerian legal system.

Interpreters of the Court in the Ottoman Empire as seen from the Sharia Court Records of Cyprus

AbstractAlthough the question of interpreters (tercüman) in the Ottoman empire has been a popular subject in recent writing on Ottoman history, the interpreters of the courts of the qadi (mahkeme tercümanlarι) have remained a mystery. Pioneering researchers of the sijills have mentioned their presence in court, but have been unable to establish their existence or explain the silence of the records about their position. In this essay, I analyse documents found in the sijills of the province of Nicosia, Cyprus, in order to explore the work of the translators who were charged with helping people on trial who did not know Ottoman Turkish. The court interpreters assisted the qadi and played an important role in the administration of justice, especially with regard to non-Muslims. The presence of interpreters in the qadi court of Nicosia helped the qadi to administer justice among dhimmis and gain their confidence, which may explain the frequency of references to them. Based on some berats (documents issued by the diwans) recorded in the sijills, I examine the identity, appointment, and the legal status of court interpreters.

Medical Records, Patient Outcome, and Peer Review in Eleventh-Century Arab Medicine

The practice of medical record-keeping dates back to the fifth century BC, when medical practice was dominated by Hippocrates and his followers. In the Hippocratic literature, medical records were used to demonstrate the cause and course of a disease. It was not until the 20th century that clinical records were routinely used as a tool to assess the quality of medical care, to educate physicians, and to evaluate the outcome of therapy 1,2 and management. Because of the increasing significance of medicolegal issues and their implications, the medical record has become an important means of evaluating the quality and outcome of patient care and of identifying errors and deficiencies in patient management with the subsequent legal responsibilities. 1,2 It has been generally assumed that the clinical record was not used as a legal and educational tool before the middle of the 19th century, with most physicians relying on memory for the details of patient history and treatment and later describing them anecdotally. The authors became interested in the history of informed medical consent and medical record-keeping for legal purposes after finding a document of legal medical consent dating