It is Wrong to Consider Islamic Law as Customary Law, both Constitutionally and Jurisprudentially

INTRODUCTION

Islamic law is a written and divine law from the almighty Allah which has primary and secondary sources. The primary sources of Islamic law are: the Holy Qur’an, Sunnah of the prophet (Hadith) while the secondary sources are: Ijma and Qiyas (the opinion of Islamic jurists). The opinion of Islamic jurists can only be used when there is silent issue in the primary sources and the jurists made it clear that whenever their views contradict any provision of the Holy Qur’an or sunna of the prophet, their views should void and not to be used.

However, customary law has no universal accepted definition but it can be considered as unwritten law which is derived from the customs of the people.

In differentiating between the Islamic and customary law, I must quote my humble lecturer, Dr. D.J. Usman of the Faculty of Law, Bayero University, Kano, who made it clear that “classification was done during the colonial era through legislation (as in Section 2, Native Courts Ordinance, Cap 142, Revised Edition of the Laws of Nigeria, 1948) and was not limited to Nigeria alone, it was the same in all British colonies where Muslims were the majority. In most of these colonies, Shari‘a was made incompatible with the so-called modern laws in the area of codification and implementation in order to degrade the legal jurisdiction of shari‘a to Muslim family matters alone.”

Many legal luminaries have shared their opinion in separating the above mentioned two laws.

Justice Niki Tobi in Alkamawa Vs Bello supra enumerated the differences between Nigerian customary laws and shari‘a thus:

“Islamic law, unlike customary law, is not flexible, Islamic law, unlike customary law, is written.Islamic law is rigid, precise with divine ossification and rigidity. There is no basis for any speculation or conjecture as in the case of customary law. The acceptability of Islamic law is a divine command by the Almighty Allah and therefore spontaneous on the part of all Muslims.Islamic law is therefore does not depend on its acceptability by Muslims because that is taken for granted. Any person who disobeys the divine words of the Qur’an cannot call himself a Muslim. Such a person is not with Allah and he will be regarded as an unbeliever.”

Justice Niki Tobi further claimed that classifying Islamic law as customary law was motivated by religious intolerance and prejudices when he concluded that:

“One other issue we would like to take by way of introduction is whether Islamic law is customary law. Colonial legislation generally regarded and treated Islamic law as “native law and custom” which had no separate and distinct existence. For example, Section 2 of the Native Courts Ordinance 1914 provided that “Native Law and Custom includes Islamic law.” This resulted from their negative and uncompromising approach to Islamic law particularly as a distinct and separate religion from Christianity, based on the Qur’an and not the Bible. The Colonial approach merely reflected their Christian background.“

Constitutionally, according to the provisions of Sections 261 (3) and 276 (3) of 1999 Constitution has separated Islamic law from customary law by making separate provisions for the administration of Islamic law and customary law in which the Shari‘a Court of Appeal and the Customary Court of Appeal are created separately while with distinction, the qualifications of Shari‘a Court of Appeal’s judges (kadis) and the judges of Customary Courts of Appeal are quite different. It is obvious here, even an ordinary layman will understand the difference.

In Lewis v. Bankole (1908) a customary law was defined as an “unwritten law of an ethnic group”, the Islamic law can never be called a customary law because the Muslim law is written in the Holy Qur’an and other sources.

Finally, the sacredness of shari‘a as non-customary law was admitted by the Supreme Court of Nigeria itself in the famous case of Ila Alkamawa v. Alhaji Hassan Bello and Another (1998) 6 SCNJ 127) where Honourable Justice Bashir Wali JSC pronounced that:

“The Islamic law is not the same as customary law as it does not belong to any particular tribe. It is a complete system of universal law, more certain and permanent and more universal than the English common law.”

This Article Was Written By: Mohammed Ibrahim Abdullahi, COL
LL.B 5, Bayero University, Kano
08164165759
jawawumeri@gmail.com

Source: @Loyalnigerialawyer