CONFLICT BETWEEN SHARIA LAW AND THE RULE OF LAW ON RIGHTS OF WOMEN. AN APPRAISAL
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- NGN 3000
Background of the study
The practice of Islamic law in Nigeria, by northern states, raises a number of constitutional questions and questions the supremacy of the constitution. The activities of these states have shown that the federal government do not really have the interest of its citizens and have refuse to strictly enforce the spirit of the letters in the Nigerian constitution which provides for the unity, peace, principle of freedom equity and justice – in Nigeria. Thus, no discrimination is envisaged by the constitution. This lack of enforcement is more burdened on women who are said to be governed under Islamic law, especially, as it relates to fair hearing towards them. Thus, instances have shown that fair hearing is not for women. This is one of the greatest threats in democracy and more so, the nation’s constitution. The civil liberties organization reports that: an 18-year-old nursing mother Tawa Bello was subjected to ten stroke of canes after being convicted by a Sharia Court in Guassau Capital of Zamfara States, for wandering and prostitution. This court did refuse to hear her side of the story and did not give her legal representation.
Discrimination against women is institutionalized in parts of the Islamic criminal legislation, which has resulted to lack of fair hearing towards women.
There are two main provisions in the law, which discriminate against women. The first is the inequality in the weight of testimony. According to the sharia penal codes, a woman’s testimony as evidence in a trial is worth half of a man or the testimony of one male witness equals that of two female witnesses.
Another aspect of discrimination, which can lead to lack of fair hearing, is the inequality in standard of evidence in cases of Zina. Women have been adversely affected in these cases under the sharia codes in force in Nigeria, based on the maliki school of thought; pregnancy is considered sufficient evidence to convict a woman of adultery. For the male defendant, the sharia penal code requires that the act of adultery must have been witnessed by four independent individuals before the man can be convicted - a standard of proof which is usually impossible to obtain and has not been obtained in any of the cases which have been arisen so far. This glaring discrimination in standards of evidence has had serious consequences for women charged with Zina. It has resulted in situations such as those of Bariya Magazis. Safiya Husseni and Amina Lawal. There have been also been cases when men have been convicted for adultery but these conviction have usually been based on the man’s own confession. The intriguing thing about this kind of society or judicial system is that, women are very vulnerable and they suffer from this form of human right abuse and violations.
This paper is written to address the problem of lack of fair hearing towards women who are governed by Islamic law (Sharia) in Nigeria. From this paper, it will be shown how injustice have been meted on the woman governed under Islamic law (Sharia) in relation to fair hearing as it contradicts the provision of section 36 of the Nigeria constitution of 1999 (as amended).
Statement of the problem
Fair hearing is a very important, in every legal system. It tells a lot about a particular society or brings bad light or image about a particular society that does not practice it or adhere to it.
Lack of fair hearing or the non-observance of the principle of fair hearing especially as it relates to women govern under Islamic law in Nigeria can ensure a lot or problems which include:
- Lack of public confidence in the legal system which can lead to anarchy in the country
- It will affect the economic development of that part of the country because of the inhuman laws that is applicable.
- Devalues the force behind the constitution.
- Paves way for high level of illiteracy towards women due to the realistic intimidation before them.
Objectives of the study
In the course of this short essay, my intensions, is to exposes the contradictory provisions of the Islamic laws (Sharia) as it regards to fair hearing toward women, in the Nigerian constitution 1999 (as amended). Also, examine the extent to which it can affect the regions of the country.
Consequently, to examine how it impedes human development to that part of the country that do not adhere to the practice of fair hearing.
Furthermore, to investigate the extent to which the practice of not adhering to the principle of fair hearing towards women, has eaten deep into the Nigerian legal system.
Lastly, to suggest solutions on the need to repeal some of these laws that is contradictory to the provisions of the constitution regarding the subject matter.
Significance of the study
This study will firstly, add to the wealth of literatures existing in this subject matter of law for educational purposes. However, the work will be more valuable to lawyers and Islamic law judges. The reason is that the beginning and end of a matter or case in court rest on how well the principle of fair hearing have been used in the adjudication of a matter. Any breach of this principle results to the nullity of the entire process no matter how well conducted it may appear.
The Nigerian population is largely uneducated especially women in the northern part of Nigeria, this study will be an eye opener to civil rights group and NGOs to do more in their pursuit for human rights.
Likewise, the executive arm of government, to know the way women are being treated in the northern part of country and what can be done about the situation.
To the legislators, to know the laws that are not intandem with the constitution and see how these laws can be amended or reflect the spirit of the constitution.
And lastly to the general public especially women in the north, to know the realities to steering them before their eye and possible ways to go about this reality.
Scope of the study
This work will span through the unconstitutionality of Islamic law in Nigeria especially as it relates to the lack of fair hearing towards women who are govern under Islamic law in Nigeria. This will involve an examination of specific cases where the Islamic law court have gone contrary to the principle of fair hearing which is more burden on the woman.
Research methodology
In sourcing for materials for this work, the law library was of immense help in sourcing for materials as it availed me a variety of opinions and argument from different Islamic laws scholars and lawyers and civil groups as continued in both articles, publications and books written by Nigerian authors. Also given the computer age, it is no doubt that the internet facility was in no small helpful as there were plethora of materials that came handy as online articles.
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