NAULR Commercial and Legal Practice Team September Monthly Task
NAULR Commercial and Legal Practice Team September Monthly Task : The Constitutionality or otherwise of the decision of court in the case of Yahaya Aminu Sharif.
--Abstract—
Over the years, since from the reintroduction of the Sharia Law on 2001 in the Northern Nigeria, the Sharia courts have severally sentenced people to death on charges of blasphemy. The same occurred in 2016 when another young man in Kano was sentenced to death for a song considered to be blasphemous. Also Mubarak Bala was arrested at his home in Kaduna State and handed over to police in Kano State in early May after a group of Muslim lawyers accused him of insulting the Prophet Mohammed on his facebook page. Just to mention but few here. Early this year, Yahaya Sharif- Aminu, a 22-year-old singer sentenced to death. In February 2020, Yahaya Sharif-Aminu composed a song that allegedly contains derogatory comments against Prophet Muhammad. This prompted his arrest in March. Also, his family members were forced to flee their home. On 10 August, Yahaya Sharif-Aminu was arraigned before an Upper Sharia Court in Kano and convicted of blasphemy. He remains remanded in Kano prison. The court ruling in the Sharif Aminu's case has raised a dust and provoked stronger reactions outside of the predominantly Muslim North parts among individuals and religious bodies in Nigeria as activists feels that the decision is not in tandem with constitutional provisions and failed to appreciate the sentencing objectives in ACJA.
This research work attempts to argues that the judgment of Khadi Yaliu Mohammed on Yahaya Sharif-Aminu is barbaric and unconstitutional for gross violation of section 10, 38, 39, 40 of the constitution and lack of due procedures. Therefore, should be disposed in a legal dustbin to avoid bad precedent just like in as it will make up a bad law if allowed.
Keywords: Blasphemy, Constitution/Constitutionality, Blasphemy/Blasphemy Law
I. Definition of Key words.
•I{i} Constitution/Constitutionality:
The term constitution as defined by the Merriam Webster dictionary means the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it; more so, a written instrument embodying the rules of a political or social organization . Inveterately, Constitutionality means Consistent with the constitution; authorized by the constitution; not conflicting with any provision of the constitution or fundamental law of the state
•I{ii} Blasphemy/Blasphemy Law
The legal dictionary defines Blasphemy as the malicious or wanton reproach of God, either written or oral. Blasphemy law is a law prohibiting blasphemy , where blasphemy is the act of insulting or showing contempt or lack of reverence to a deity , or sacred things, or toward something considered sacred or inviolable.Blasphemy is a criminal offence in both the Nigerian civil law and shari'a law.
Introduction
This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria. It has severally received a judicial blessing from the court of justice that the constitution of the land which is the grundnorm, protects our rights, freedom and place limits to governmental powers for them not rule arbitrarily through the doctrine of separation of power. It remains the fons et origo, not only to our jurisprudence but also to our legal system of the nation. It is the beginning and the ending of our legal system. In Greek language it is the alpha and omega. It is the barometer which all statutes are measured. In line with the kingly position the constitution, all the three arms of government are servants to it not because of they are inferior, slave or in servitude but in sense of obeisance and loyalty to it. All arms of Government must dance to the tone and chorus that the constitution beats and sings, whether the melody of it sounds good or bad they have no choice. If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
One of the major functions of the constitution is to protect the inalienable rights of citizens from the tyrannical, arbitral, and despotic power of a ruler over the populace or citizens. The constitution of FRN provides for Fundamental Human Right in Chapter 4 from section 33-44. However, it is not absolute there are limitations to it. The court (judiciary per se) is the defender and upholder of the constitution. This is evident in the writing of our judicial ancestor, Nnamani, JSC where he wrote
it has been generally acknowledged that the judiciary is the guardian of our constitution, the protector of our cherished governance under the rule of law, the guardian of our Fundamental rights, enforcer of all laws without which the stability of society can be threatened, the maintainer of public order and public security, the guarantee against arbitrariness and generally the only insurance of a just and a happy society
The question is to what extent have judiciary protects the citizens right in the administration of criminal justice?
There is no society without a crime, mechanisms and legal instrument are enacted to bring redress in a bid to achieve a sanity society where citizens will not live in fear and carry out their business. Nigeria is not an exception to such type of society that have several laws like the Constitution, Criminal Code Act, Penal Code Act, Code Of Conduct, Money Laundry Act, ICPC Act, EFFC Act etc. are put in place in order to bring the accused person to justice. The administration of criminal justice involves how the accused person is brought to justice within a purview of a written law. In bringing the accused the state should ensure due compliance with the law in protecting his constitutional rights from been violated, furnish the accused person necessary facilities to assist him set-up his defence, frontload his confessional statement if any as ACJA demands, along together with the charge sheet and ensure that he has a legal representation more especially in capital offence that may likely squeeze out life out of him if convicted. This is because there is always a presumption imposed by the constitution that the accused person is presumed guilty until otherwise is proven or such presumption is rebutted. It has been held in Godwin Josiah V. State that justice is a tripartite concept. Justice for the accused person, justice for the bereaved person and justice for the society whose public moral has been grossly violated.
In this work we will be arguing that the decision/judgement given by Khadi Aliyu Mohammed Kani of the Upper Sharia Court in the case Yahaya Shariff-Aminu v. Attorney general of Kano state governor of Kano state (unreported) upper sharia court is with due respect unconstitutional, unfounded, baseless and hold no water in the legal arena due to the fact, it is devoid of transparency, proceedings conducted in a Nazi-like approach equivalent to Adolf Hitler concentration camp. It was a secret trial and there is no record of proceeding showing compliance of due process. How would one imagine been charged of such capital offence with death sentence without been assigned of a legal representation even though there is an existing legal framework in Kano not only that was placed in the state of incommunicado after arrest that when some group of lawyers from Nigerian Bar Association came to see the accused they were denied access. Nigeria is secular state with constitutional democracy, the court failed to recognize the constitutional rights like Section 10, 38, 39, 40 of the 1999 Constitution as Amended 2011 of the accused. These rights will be discussed ad sertiam.
YAHAYA SHARIFF-AMINU V. A G OF KANO STATE & ORS (UNREPORTED) UPPER SHARIA COURT
2.(i) Facts:
An upper Sharia court in the Hausawa Filin Hockey area of Kano state headed by Khadi Aliyu Mohammed Kani in his judgment relying on section 382[b] of the Kano Penal Law 2000 convicted and sentenced Yahaya Sharif-Aminu, 22years old on August 10, to death by hanging for the crime of Blasphemy for the song he circulated through Whats App social media on March, early this year. . Sharif-Aminu allegedly blasphemed the Prophet Muhammad in a song praising an Imam to the extent that it elevated him above the Holy Prophet. The song was viewed as completely acceptable by some fellow followers of the Tijaniya Muslim brotherhood. Offended members of the community took to the streets and burned down the singers family home. Marching to Islamic police headquarters, known as the Hisbah, they demanded action against him. Thus following the outrage, the Governor of Kano state has issued a press release stating his willingness to sign the death warrant once the date of appeal lapses.
The Unconstitutional Judgment Giving By Khadi Aliyu Mohammed of Upper Sharia Court In the case Of Yahaya Aminu Shariff.
The diverse nature of the Nigerian Legal System is one that allows for the existence of a multiplicity of systems under it. This system comprises of the English Common law system, Customary law system and Sharia law system. Although all these laws operate independently of the other, their provisions are largely made subject to English law system. The penal code is applicable under Sharia law, and it currently operates in twelve northern Nigerian states as part of their justice system however, it is limited to Muslims.
Under the Sharia system, which also has its own Court of Appeal, handles both civil and criminal matters involving Muslims and its judgments can also be challenged in Nigerias secular Courts of Appeal and the Supreme Court,¹ a death sentence is theoretically possible for 'insulting Prophet or the Qur'an under the code. According to section 382(b) of the Kano state penal code law 2000.
"Whoever by any means publicly insult by using word or expression in written or verbal by means of gesture which shows or demonstrate any form of contempt or abuse against the Holy Qur'an or any Prophet shall on conviction be liable to death."
The Upper Sharia Court headed by Khadi Aliyu Mohammed convicted Yahaya for the offence of Blasphemy on August 10, 2019 in his decision. This judgment have divided the society in two antagonistic groups, on one side are the core and ardent Muslims society, who based on their convictions and having relied the case of Shalla V. State hailed the court for it been a good judgment as it will act as deterrent to the prospect offenders while some Petitioners and activists have challenged the constitutional validity of Section 382(b) of the Kano state penal code law 2000 based on Section 39 of the Nigerian Constitution by arguing that the said provision is in breach of the constitution which states that Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference”. We are of the view that the lyrics used in the music amounts to an exercise of the accused constitutional right to freedom of speech. They're also of the view that the sentence is antithetical to section 38 CFRN which protects his freedom of thought, conscience and religion, including freedom to change his religion or belief.
We must point out here that, we are not concerned with the arguments on the harsh penalty that comes with the offence of Blasphemy and despite the various moving claims contained in the Appellant's notice of appeal, there are several grounds which the decision of the Sharia court can be held to be constitutional valid. On grounds of constitutionality of the penal code, all states have criminal codes irrespective of the source of that code. section 7 of the CFRN states that, 'The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State.' Thus the Penal Code of Kano state being a legislative enactment of the Kano state house of assembly is a valid piece of legislation. According to Mr Ahmed Adetola -Kazeem, a lawyer, he said Blasphemy is a crime under the laws of most states in northern Nigeria. Anyone who violates the law can be tried and punished according to that law. The question is: was the law validly passed by the state assembly? The answer is yes."⁴ several court decision have upheld the state's right to make legislative enactments based on section 7 CFRN so we only concerned to check the whether the decision was caught by any forms of unconstitutionality.
Before commencing our journey in exploring the constitutional rights of the accused person grossly violated, in the constitution. Let’s take a cursory glance to section 10 of CFRN which basically establishes the constitution principal of separation between government and religion, the validity of the Kano state penal code law, has been called into question as it attempts to adopt a religious law for a state within the federation. Thus it provide The Government of the Federation or of State shall not adopt any religion as a state religion The word shall when used in a statutory provision imports that a thing must be done, and when the negative phrase shall not is used, it implies that something must not be done. It is a form of a command or mandate see Ugwu v Ararume 2007 12 N.W.L.R. Part 1048 Page 367 at 441-442 per Tobi JSC so it goes to say that Nigeria is not in a religious State, but a secular democracy, and therefore, there is a need to examine the constitutionality of the decision handed down by the Sharia Court vis-a-vis sections like 1(1), (3), 10, 38 and 39(1) of the Constitution. No state should be found compulsorily imposing or proposing any religion to be adopted. In the predominantly Muslim State in the North and Northwest Nigeria where Sharia is applied, Blasphemy since 2001 when Sharia were reintroduced in Northern. These state are Zamfara State, Kano State, Sokoto State, Katsina State, Bauchi State, Borno State, Jigawa State, Kebbi State, Yobe State, Kaduna State, Niger State, Gombe State. We cant argue that its enforcement is the adoption of Sharia law in the state but Penal law should not be forced on every resident in the are mentioned. So the idea that the penal code attempts to prescribe a religion for a state is generally a false one, as only Muslims are subject to the law. Also the law prescribed an option for appeal of cases to lie from the Sharia court to the high court, making the Sharia system subject to the secular court system.
We have also vehemently faulted the decision of the court in this case on grounds of impropriety of judicial process. How could one ever imagine it, that in a purported capital offence trial, the state failed to provide the accused with legal representation before and during the trial, the accused was not given the opportunity to be heard, while on detention he was denied of having access to family members and denial of access to justice amongst others. According to the Appellant's notice of appeal, "The trial was not transparent, not conducted in an open court, and there was no record of proceedings indicating any compliance with due process in violation of the appellant's constitutional right to fair hearing as enshrined at section 36 of the 1999 constitution as amended." it is evident that from the very facts and the proceedings of Yahaya Aminu-Shariffs case, the doctrine of fair hearing has not been judiciously followed. Fair hearing means that an individual will have an opportunity to present evidence to support his or her case and to discover what evidence exists against him or her. During a fair hearing, authority is exercised according to the principle of Due Process of Law. The ultimate test of fair hearing is the impression of a reasonable person who was present at the trial; whether from his observation, justice has been done in the case. See Mohammed V. Kano Native Authority (1968) 1 ALL NLR 422 and Adigun v. Attorney-General Of Oyo State (1987) 1 NWLR (53) 678. "What is oppressive cannot be said to be fair. PER J.E. EKANEM J.C.A
This also goes against the doctrine of Audi alteram partem meaning that no one should be condemned unheard which is one of the foundational doctrines of equity upon which the judicial system stands. .See Hart V. Military Government Of Rivers State (1976) 11 SC 211, Legal Practitioners Disciplinary Committee V. Fawehinmi (1985) 7 SC 178, 251 and Adigun V. Attorney-General Of Oyo State (1987) 1 NWLR (53) 678.PER J.E. EKANEM, J.C.A. Even God did not just convicted Adam on his disobedience he allowed him to enter his defence. This principle is a sine qua non of every civilized society. Corollary deduced from this rule is Qui Aliquid Statuerit, Parte Inaudita Altera Aeuquum Licet Dixerit, Haud Aequum Facerit i.e. he who shall decide anything without the other side having been heard although he may have said what is right will not have done what is right. The rule of fair hearing is a code of procedure, and hence covers every stage through which an administrative adjudication passes, starting from notice to final determination. See further the case of OPARA V. MORECAB FINANCE LTD & ANOR (2018) LPELR-43990(CA). Section 36(1) CFRN provides that everyone is entitled with the right to fair hearing within a reasonable time by a court or other tribunal established by law. Subsection (6)(c) of the provision goes ahead to state that every person is entitled to defend himself in person or by legal practitioners of his own choosing. To the extent whereby this condition was not met by the extent case, the court decision cannot be said to be constitutional valid since it is in breach of a fundamental right in the constitution.
Conclusion
Blasphemy is a criminal office and a person can be convicted given the applicable circumstances. However for the criminal trial to be justifiable, the fundamental principles of fair hearing and due process must be put into place. It is not in issue whether or not The law of Blasphemy under which the Defendant, Yahaya Shariff-Aminu was convicted and sentenced to death by hanging exists or not. The law is in existence and is contained under section 382(2) of the Kano Penal Code law of 2000 and section 406 of the sharia penal code law. However, the essence of this article is to buttress the fact that the Constitution of the federal republic of Nigeria being supreme and from which all other laws emanate was not duly followed and obeyed as regards sections 10, 36,38, 46 of the CFRN 1999 as amended.
More importantly, this may be as good a time as any for the issue of Section 10, the adoption of State religions and the enforcement of Criminal Sharia law to be challenged properly up to the highest court of the land, once and for all. Section 10 of the Constitution must be strictly adhered to, in the interest of a peaceful and progressive Nigeria. The practice of religion is a personal matter, and must remain so. Our country is a multi-ethnic multi-religious one, and to fulfil one of the main objectives of the Constitution which is to promote equality amongst Nigerians, no religion whether Islam or Christianity which are considered to be the majority religions must be given pre-eminence, especially as such pre-eminence is discriminatory and offends Section 42(1)(b) of the Constitution. The only situation in which adopting a State or National religion works, is one in which everybody practices the same religion. This is certainly not the case in Nigeria. While it is true that Sections 38 and 39(1) of the Constitution guarantee our right to freedom of thought and expression respectively.
The death penalty for blasphemy is against the laws of many international bodies to which Nigeria belongs to such as The African Charter for Human and People's right also known as the Banjul Charter, the Universal Declaration of Human Rights amongst others.
Furthermore, this article calls for a review of the Sharia laws applicable to the northern part of the country, particularly wiping out the death penalty imposed on blasphemy as it goes contrary to the fundamental right of freedom of expression as espoused under section 39 of the CFRN 1999 as amended and for it to emulate it's southern counterpart which is the Criminal Code Act in sentencing.
It is the aim of this article that the state governor of Kano state , Abdullahi Umar Ganduje delay the signing of the death warrant even in the midst of political outrage as it relates to this judgment, in order words, a moratorium should be imposed on the sentencing of the defendant, Yahaya Sharif - Aminu.
The diverse nature of the Nigerian Legal System is one that allows for the existence of a multiplicity of systems under it. This system comprises of the English Common law system, Customary law system and Sharia law system. Although all these laws operate independently of the other, their provisions are largely made subject to English law system. The penal code is applicable under Sharia law, and it currently operates in twelve northern Nigerian states as part of their justice system.
