Imperative of Shari’ah court of appeal in Yorubaland

South-Westernstates are comprised of Oyo, Osun, Ogun, Lagos, Ondo and Ekiti. They are all Yoruba-speaking states. Muslims lived and coexisted with other people to such extent that traditional rulers would prefer a mosque to situate closely with the palace. That is one of the reasons most of central mosques situate side by side with palaces in major cities in the region.

Since Islam is not only a religion, but a complete way of life, earlier Muslims and the entire Yoruba race understood the necessity for total obedience to the dictate of Islam and abiding by the Shari’ah. The word shari’ah was so understandable to the Yoruba people and became a daily usage. Statement like ‘e da Sharia fún’ i.e judge him with shari’a’ is popular among Yoruba people.

Some Yoruba traditional rulers who ruled over some towns and cities in Yorubaland operated shari’ah law to govern their people. Example of such traditional rulers is Oba AbibuLagunju of Ede, Oba MamaduLamuye of Iwo among others. Therefore, there is no way we will talk about Yoruba traditions and culture without mentioning shari’ah.

However, when the colonial masters came to Nigeria with Christian evangelists, they came with their own legal system. Gradually, the Shari’ah legal system which was fully operational in the north in a very coordinated manner and partially in the south as well as Yoruba customary law was pushed to the background. Shari’ah criminal law in the north was replaced with Penal Code, which was everything but Islamic law.

Before and after the independence, Muslims in Nigeria continued to agitate for establishment of shari’ah courts. At the 1978 Constituent Assembly, it became an issue of controversy that led to the Muslims working out in protest. Chief M.K.O. Abiola of blessed memory was one of the vocal Muslims in support of full shari’ah legal system at the Constituent Assembly that brought about 1979 Constitution. At the end of the day, a compromise was made for the establishment of Shari’ah Court of Appeal in any state that desires it. That clause has continued to be in the subsequent constitution – 1989 and 1999. Section 275 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which is in force states thus:

“There shall be for any State that desires it a Shari’ah Court of Appeal”. Section 277 of the Constitution goes further to state the jurisdiction of the Court, which is to take appeal on issues of Islamic personal law such as marriage, divorce, inheritance, waqf, succession etc. The jurisdiction of Shari’ah Court of Appeal does not transcend appeal on Islamic personal law. When an issue of Islamic law siplicita is raised, it is the high court that has jurisdiction.

Despitethe provision for it in the constitution and despite the majority population of the Muslims in the South-West, successive governments of the states of the region have continued to marginalise the Muslims and deny us of our fundamental right to be governed by the Shari’ah.
It was this failure of the governments of the South-Western states to put legal frameworks in place for operation of shari’ah to legislate on Islamic personal law such as marriage, inheritance, waqf, succession etc among Muslims that led to establishment of independent shari’ah panels in some places in Lagos, Oyo and Osun. For over twenty years now, the panels have done remarkably well to settle issues of Islamic personal laws, which would have otherwise continued to overburden our already congested conventional courts. This, the governments, should ordinarily commend.

It then becomes not only surprising but also annoying when some faceless individuals acting some scripts became vociferous in their attack against establishment of Shari’ah panels in Oyo town and Ekiti State. More worrisome is the positions of those who are expected to know better such as Attorney General of Ekiti State, the governor of Oyo State, Engr SeyiMakinde and the governor of Ogun State, Dapo Abiodun joining the bandwagon in the opposition to independent shari’ah panels. This is clearly a conspiracy of some non-Muslims in public offices using their position to subjugate and undermine Islam in Nigeria. Can it be a coincidence that Ewi of Ado Ekiti, A.G of Ekiti State, Governors of Oyo and Ogun; all Christians are leading crusades against operation of shari’ahpanels? One finds it so difficult to believe! It looks like a well-planned conspiracy against the Muslims.

While the Muslims have tried their best to compromise the opportunity granted us in the constitution and settle for lesser independent shari’ah panels without commensurate understanding and appreciation of our position by those who should know better, is it nowexpedient we speak in one voice to ask for establishment of shari’ah courts of appeals and other necessary courts for adjudication of cases of Islamic personal laws in Yorubaland in line with the provision of the constitution. Afterall, a state with substantial Muslims that have disputes bothering on Islamic personal laws in court cannot be said not to be desirous of establishment of shari’ah courts of appeal.

This was the reasoning of His Lordship, Justice O. F. Oloyede of Osun State High Court in HLR/1/2010: Sheu Usman Kolawole & Others v Alh Hameed SalahudeenOkoto and Another. High Court of Lagos has also held in AyisatuAjisefinni’s case that a marriage contracted under Islamic law, customary court has no jurisdiction over it.

It is therefore time to raise our voices loud and in unison to agitate for establishment of Shari’ah courts in all states of South West. I therefore use this opportunity to call on the Muslim Ummah of South West Nigeria(MUSWEN) to lead the struggle with all Muslim communities of the six states and with the support of all Islamic organizations and individuals. Nigeria belongs to all of us and no one is second-class citizen. And we are equally not less Yoruba than any other person.
Odedeji, a legal practitioner and advocate of Shari’ah hails from Amosun compound, Ede, Osun State.