Is Blasphemy a Legally Recognized Offence Under Nigerian Law?

CASE TITLE: DAUDA v. STATE (2024) LPELR-62160(CA)

JUDGMENT DATE: 26TH APRIL, 2024

JUSTICES: MUHAMMED LAWAL SHUAIBU
BOLOUKUROMO MOSES UGO
USMAN ALHAJI MUSALE

DIVISION: KANO

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

FACTS:

This appeal borders on the offence of blasphemy.

This appeal emanated from a judgment delivered by the High Court of Kano State on June 4, 2018.

The Appellant faced charges in the Shariah Court, Rijiyar Lemo, Kano for using blasphemous words against the Prophet Muhammad and inciting an uprising and arson. Despite pleading not guilty, the accused was convicted and sentenced to death based on witness testimonies and evidence presented during the trial. Dissatisfied, the Appellant appealed to the High Court, which upheld the conviction, stating that insulting a Prophet in Islamic Law is a strict liability offense, focusing solely on whether the accused uttered insulting words, regardless of intent.

Consequently, the High Court dismissed the appeal, affirming the earlier decision. Unhappy with this outcome, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues, viz:

1. Whether the lower Court rightly affirmed the trial Court’s decision convicting and sentencing the Appellant to death by hanging for violation of Section 615 of THE CPRL 2000, Kano State, and Section 275 of the SCPR 2000 of Kano State, or any offence known to law at all?

2. Whether the lower Court rightly evaluated the evidence and the law before affirming the decision of the trial Court convicting and sentencing the Appellant or rightly came to the correct conclusion not to interfere with that finding of fact by the trial Court.

COUNSEL SUBMISSIONS:

​Learned Appellant’s counsel submitted that the offences under which the Appellant was tried, convicted, and sentenced are unknown to any written law and therefore contravened the provisions of Section 36 (8) and (12) of the 1999 Constitution as amended. He contends that throughout the judgment of the trial Court, nowhere is any law or statute mentioned or described the charge. It was thus submitted that there is no law known as CPRL 2000 or Sections 615 and 382(b) of the SPC Law as reflected in the judgment. Assuming the said sections were even the same as Sections 275 and 382(b) of Sharia Penal Code Law, the words used therein are incitement caused or disturb breach of peace, insult, contempt, or abuse, and not blasphemy.

In further argument, Counsel submitted that apart from the fact that blasphemy is not an offence under any of the sections under the Sharia Penal Code Law, the same negates the provisions of Sections 38 and 39 of the Constitution, which guarantee the right to freedom of religion, thought, conscience, as well as freedom of expression. In aid, Counsel also relied on the cases of OMATSEYE V. FRN (2017) LPELR-42719 (CA), IDAKWO V. NIGERIA ARMY (2003) LPELR-5617 (CA), and IDRIS V. FRN (2018) LPELR-44713 (CA) to the effect that no person shall be charged and convicted of an offence not prescribed and defined by a Written Law.

On behalf of the Respondent, learned Counsel argued that the issue as regards the constitutionality of the charge was neither raised nor canvassed before the lower Courts and that same cannot be entertained on appeal, relying on APGA V. UMEH (2011) 3 SCNJ and LABOUR PARTY V. YAHAYA BELLO & ORS (2016) LPELR – 40848 (CA). Assuming without conceding the fact that the issues now being raised are competent, they do not have any relevance as the Appellant was tried and convicted under Sections 382(b) and 275 of the Sharia Penal Code Law 2000.

On the constitutionality of Sections 382 (b) and 275 of the Sharia Penal Code Law, 2000, Counsel submitted that the said sections are not only Constitutional but in tandem with Sections 36 (12) and 4 (6) and (7) of the Constitution aforesaid. He referred to A. G. OGUN STATE v. A. G. FEDERATION (1982) LPELR (SC) to the effect that the making of law for the maintenance of law and order is the joint responsibility of both the National and the State House of Assembly.

It finally submitted that the offence of blasphemy as contained in Section 382 of the Sharia Penal Code Law, 2000, is statutorily recognized and fully described and does not violate any Constitutional Provisions. Counsel referred to SHALLA V. STATE (2007) 12 MJSC 65-66.

DECISION/HELD:

In the final analysis, the Court dismissed the appeal.

RATIO:

CRIMINAL LAW AND PROCEDURE –  OFFENCE UNKNOWN TO LAW:   Whether the offence of blasphemy is known to law

“The next germane issue is whether the charge of blasphemy is unknown. As rightly posited that no person shall be charged and convicted of an offence not prescribed and defined by the Written Law. The provisions of Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), explicitly states:

“(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore, is prescribed in a Written Law, and in this subsection, a Written Law refers to an Act of the National Assembly or a law of a state, any subsidiary legislation or instrument under the provisions of a law.”

As stated elsewhere in this judgment, the Appellant was charged and convicted mainly for uttering blasphemous words against the Holy Prophet Muhammad (SAW). “Blasphemy” is an act of irreverence or contempt toward a god or toward something considered sacred and thus an impious act or utterance. In SHALLA V. STATE, also reported in (2007) 18 NWLR (PT. 1066) 240 at 297–298, the apex Court has held that under Sharia Law, any sane and adult Muslim who insults, defames, or utters words or acts which are capable of bringing into disrepute, odium, contempt of the person of Holy Prophet Muhammad (SAW), commits a serious crime which is punishable by death.

It is pertinent to note at this juncture that the provisions of Section 382 of the Kano State Sharia Penal Code Law, 2000 criminalizes insulting or exciting contempt or religious creed. Section 382(b) in particular provides:

“(b) Whoever by any means publicly insults by using word or expression, written or verbal, by means of gesture, which shows or demonstrates any form of contempt or abuse against the Holy Qur’an or any Prophet shall, on conviction, be liable to death.”

In light of the above, it is preposterous to argue, as done by the Appellant’s Counsel that blasphemy is an offence not known to any law. It is indeed an offence prescribed and defined by a Written Law that is, Kano State Sharia Penal Code Law 2000, and hence satisfied the litmus test of Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).” Per SHUAIBU, J.C.A.

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