Kano Hisbah: A Clear And Present Danger?

By Onikepo Brathwaite

“First they came for the Socialists, and I did not speak out
–
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak
out –
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out –
Because I was not a Jew.

Then they came for me – and there was no one left to speak
for me.”
Martin Niemöller, 1946

This poem by Martin Niemöller, pretty much embodies the attitude
of Nigerians to many things – we feel totally unconcerned about
things which do not affect us directly, oblivious of the fact that
one day, we too could be faced with a similar situation. “Boko
Haram is in the North East, far away from me in Benin or Lagos, so
it doesn’t concern me whether the military annihilates the
insurgents or not; Maiduguri is also thousands of kilometres away
from Owerri”. By the time insecurity gradually spread all over the
country in different forms – whether by kidnapping, herdsmen crisis
or otherwise, everyone suddenly felt concerned about insecurity. As
far as religion is concerned, “they are operating Sharia law in the
Northern States, I’m in Abeokuta, it doesn’t concern me”. But, it
does! Because, gradually this is how it starts, and then it spreads
like wild fire. When you give the enemy an inch (in the context of
this discussion, by enemy, I mean those who disobey the
Constitution), he not only takes a yard, he takes uncountable
miles. After all, there are plenty of Muslim faithfuls in the South
West (both Northerners and Southerners), even in Edo State. Spurred
on by the declaration of Sharia law by Zamfara State in 1999, in
the early 2000s, there was a push for the establishment of Sharia
Courts in Lagos. And, in 2002, a private arbitration panel, the
Independent Sharia Panel of Lagos State (ISP) was established for
Muslims to take their disputes to, for adjudication (there’s
nothing wrong with that, as long as it is lawful).

The moral of Martin Niemöller’s poem, is that we should be our
brother’s keeper and love our neighbours as ourselves; therefore,
we must speak out, even if the injustice is not done to us
directly, so that those who are directly affected are not consumed
by the injustice; and in the event that injustice finally reaches
us, there will still be others left to speak out and support us. I
would go a step further to add that, we must also take into
consideration our neighbours when we make certain decisions. It
seems that Kano State Government/Kano State Hisbah Board (KSHB) has
not taken the non-Muslims in Kano and their fundamental rights into
consideration, nor the constitutional provisions, in issuing some
of its directives.

1999 Constitution: The Grundnorm

The 1999 Constitution of the Federal Republic of Nigeria (as
amended)(the Constitution) is the supreme law of our country, and
is binding on all persons and authorities in Nigeria, including the
KSHB (Section 1(1)). Furthermore, any other law that is
inconsistent with this grundnorm, is void to the extent of its
inconsistency (Section 1(3)). See AGF v Abubakar 2007 8 N.W.L.R.
Part 1035 Page 117. I submit that, several of the KSHB and Sharia
Court actions are inconsistent with the Constitution, and
therefore, null and void ab initio. For example, sentencing Yusuf
Sharif Aminu to death for blasphemy, when the Sharia court doesn’t
have criminal jurisdiction in the first place (and the Holy Quran
does not even prescribe the death penalty for blasphemy).

Section 6(6)(b) of the Constitution confers jurisdiction on the
courts to determine all matters (except those excluded by Section
6(6)(c)). It is the duty of the courts to interpret the
Constitution when called upon to do so, and to rule against any law
that conflicts with the Constitution. Also see AG Ondo State v AGF
2002 9 N.W.L.R. Part 772 Page 222; Balonwu v Governor, Anambra
State S.C.233/2008 2009 18 N.W.L.R. Part 1172 Page 13 at 39-40. I
think the time has come for Constitutional Law gurus and Human
Rights Activists to proceed to court to seek the interpretation of
Sections 10, 38(1),(2) & (3), 262(1) & (2)(a)-(e), and 277(1) &
(2)(a)-(e) of the Constitution once and for all, and for the courts
to fulfil their constitutional mandate of nullifying the laws,
directives and actions which conflict with the grundnorm, before
the issue of religion becomes an additional catalyst that divides
us as a country completely.

As far as I’m concerned, the constitutional provisions in
respect of the jurisdiction of the courts are crystal clear and
unambiguous. But, since controversies have arisen with the
observance of the Constitution in its breach, especially on the
issue of Sharia law and the extent of its jurisdiction, questions
like whether Sections 262, 277, 282 of Constitution endow Sharia
and Customary Courts with criminal jurisdiction, must be answered.
I have searched the Constitution high and low, and I have failed to
find any provision in this document which confers Sharia and
Customary Courts with criminal jurisdiction; because they simply
are not vested with criminal jurisdiction. My dear colleagues, I
stand to be corrected.

‘One Nigeria’

This is my country, Nigeria, and I firmly believe in ‘One
Nigeria’ on the basis of respect for fundamental rights and the
rule of law, equity, equality, equal opportunity and justice. I do
not want to wake up one day, and become the last victim in Martin
Niemöller’s poem. So, forgive me for being tiresome or repetitive
or sounding like a broken record, but, I must be brutally honest
when I say this issue of religion in Nigeria seems to be
escalating, and if Government is not willing to put a stop to the
illegality, we, the people should speak out and insist that it is
unacceptable for religion to be anywhere other than where the
Constitution, the grundnorm, allows it to be; if not, the
consequences of non-adherence may be grave for us all. Religious
disagreements and intolerance, can end up destroying any entity.
And in a multi-ethnic, multi-religious country like ours, it is
dangerous for Government to allow any one religion to take
precedence over others when the Constitution donates no such
rights, and maintains that neither our nation or any State is
permitted to adopt a National or State religion.

A State religion, is simply a religion that is endorsed or
favoured by the State. I need not bother to state the obvious –
that the Northern States that are implementing Sharia law have
endorsed Islam, and favoured this faith over and above all others.
Here lies the issue – Islamic law does not separate State from
religion, and that is why it can only be workable in a country
where everyone is of the Muslim faith and there is a ‘consensus ad
idem’ (meeting of the minds).

Customary Law and Islamic Law are different. It was the British
by virtue of Section 2 of Native Courts Ordinance of 1914, that
grouped Islamic law as Native law and custom. In Alkamawa v Hassan
Bello & Anor 1998 6 SCNJ 127 the Supreme Court held that “Islamic
law is not the same as Customary law, as it does not belong to any
particular tribe. While Customary law differs from tribe to tribe,
community to community, Islamic law has a more unified system”.
Customary law is not uniform, it is flexible and elastic, derived
from the usages of a particular people. Islamic law is religious
law. It does not change. It is based on the teachings of the Holy
Quran and the Hadith.

Kano State Hisbah Board

When it comes to some of the activities of the KSHB, you see
that because there is no separation between the State and religion
in the Muslim faith, the KSHB is trying to apply Sharia law to most
facets of their lives seeing as Islam is a way of life. But, some
of the activities of the KSHB are clearly unconstitutional, and we
must speak out against them – first, as Nigerians, whether Muslim
or Christian; second, as Lawyers, who in order to qualify to become
legal practitioners, were all students of Nigerian Constitutional
law at one time or the other, and are therefore, familiar with
Section 10 of our Constitution which prohibits Nigeria or any State
herein from adopting a National or State religion. The drafters of
the Constitution, were wise enough to realise that adopting any
religion, whether State or National, would not only be problematic,
but result in the fundamental rights of citizens being breached,
especially those who do not belong to whichever faith is adopted.
They went a step further to include Section 42 in the Constitution,
which prohibits discrimination against any person on the basis of
religion.

Recently, the KSHB banned the use of mannequins “to display
clothes by tailors, supermarkets and boutique owners”, in shops and
even private homes in the State, on the ground that it violates
Islamic provisions and could be a fertile ground for breeding
immoral thoughts. Aside from the fact that Section 37 of the
Constitution guarantees the privacy of citizens, their homes,
correspondence, telephone and telegraphic communication, therefore,
making it unconstitutional for Hisbah to decide that people cannot
have mannequins in their homes, such pronouncement runs foul of
Sections 16 and 41 of the Constitution, as such directive will
impact negatively on the clothes selling business in Kano; and with
the draconian directives that are being given these days,
Southerners and non-Muslims who enjoy freedom of movement and have
made their homes in Kano and other Sharia States through several
generations, may be constrained to leave for more conducive
environments, seeing as their fundamental rights are being
infringed upon, more and more.

I have relatives who live in Kano; octogenarians, Christians,
who have lived in Kano for over 50 years. That is their home. As
the Hisbah directives get more and more stringent, there is
pressure from family members for them to relocate down South. Are
they expected to leave their life long home in Kano, and head to
unfamiliar places like Lagos or Ibadan to start a new life at this
age? What of the clothes sellers in Kano, whose businesses have
been truncated with the clamp down on cosmopolitan wears which they
sell, and now the ban on mannequins which is the tool used
worldwide to advertise clothes for sale? What about those that are
arrested on the streets by Hisbah for non-compliant haircuts,
hairstyles and dressing?

Conclusion

The bottom line is that, just as true Federalism is possibly the
most appropriate system for a heterogeneous country like Nigeria as
opposed to the Unitary system which we are running, so also
political secularism (“separation of State from religious
institutions”) is the best system to adopt in a multi-religious
society like ours. That does not preclude anybody, from practicing
his or her religion. In fact, that is the spirit and purport of
Section 38 of the Constitution – that every person is entitled to
freedom of thought, conscience and religion (as long as it is
lawful), and to propagate same in worship, teaching, practice and
observance.

Tribalism destroyed Rwanda in the 1990s. The incessant conflict
between the Israelis and Palestinians, apart from being political
and territorial, is religious. By the time the other Sharia States
decide to follow Kano and implement these directives, more
non-Muslims and Southerners may be forced to relocate down South.
If this happens, this may in turn, make the cries for secession
louder. We should learn from the mistakes of others, instead of
taking active steps towards a path, which we have observed from
their own experiences, will only lead to destruction.

By Onikepo Brathwaite

“First they came for the Socialists, and I did not speak out
–
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak
out –
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out –
Because I was not a Jew.

Then they came for me – and there was no one left to speak
for me.”
Martin Niemöller, 1946

This poem by Martin Niemöller, pretty much embodies the attitude
of Nigerians to many things – we feel totally unconcerned about
things which do not affect us directly, oblivious of the fact that
one day, we too could be faced with a similar situation. “Boko
Haram is in the North East, far away from me in Benin or Lagos, so
it doesn’t concern me whether the military annihilates the
insurgents or not; Maiduguri is also thousands of kilometres away
from Owerri”. By the time insecurity gradually spread all over the
country in different forms – whether by kidnapping, herdsmen crisis
or otherwise, everyone suddenly felt concerned about insecurity. As
far as religion is concerned, “they are operating Sharia law in the
Northern States, I’m in Abeokuta, it doesn’t concern me”. But, it
does! Because, gradually this is how it starts, and then it spreads
like wild fire. When you give the enemy an inch (in the context of
this discussion, by enemy, I mean those who disobey the
Constitution), he not only takes a yard, he takes uncountable
miles. After all, there are plenty of Muslim faithfuls in the South
West (both Northerners and Southerners), even in Edo State. Spurred
on by the declaration of Sharia law by Zamfara State in 1999, in
the early 2000s, there was a push for the establishment of Sharia
Courts in Lagos. And, in 2002, a private arbitration panel, the
Independent Sharia Panel of Lagos State (ISP) was established for
Muslims to take their disputes to, for adjudication (there’s
nothing wrong with that, as long as it is lawful).

The moral of Martin Niemöller’s poem, is that we should be our
brother’s keeper and love our neighbours as ourselves; therefore,
we must speak out, even if the injustice is not done to us
directly, so that those who are directly affected are not consumed
by the injustice; and in the event that injustice finally reaches
us, there will still be others left to speak out and support us. I
would go a step further to add that, we must also take into
consideration our neighbours when we make certain decisions. It
seems that Kano State Government/Kano State Hisbah Board (KSHB) has
not taken the non-Muslims in Kano and their fundamental rights into
consideration, nor the constitutional provisions, in issuing some
of its directives.

1999 Constitution: The Grundnorm

The 1999 Constitution of the Federal Republic of Nigeria (as
amended)(the Constitution) is the supreme law of our country, and
is binding on all persons and authorities in Nigeria, including the
KSHB (Section 1(1)). Furthermore, any other law that is
inconsistent with this grundnorm, is void to the extent of its
inconsistency (Section 1(3)). See AGF v Abubakar 2007 8 N.W.L.R.
Part 1035 Page 117. I submit that, several of the KSHB and Sharia
Court actions are inconsistent with the Constitution, and
therefore, null and void ab initio. For example, sentencing Yusuf
Sharif Aminu to death for blasphemy, when the Sharia court doesn’t
have criminal jurisdiction in the first place (and the Holy Quran
does not even prescribe the death penalty for blasphemy).

Section 6(6)(b) of the Constitution confers jurisdiction on the
courts to determine all matters (except those excluded by Section
6(6)(c)). It is the duty of the courts to interpret the
Constitution when called upon to do so, and to rule against any law
that conflicts with the Constitution. Also see AG Ondo State v AGF
2002 9 N.W.L.R. Part 772 Page 222; Balonwu v Governor, Anambra
State S.C.233/2008 2009 18 N.W.L.R. Part 1172 Page 13 at 39-40. I
think the time has come for Constitutional Law gurus and Human
Rights Activists to proceed to court to seek the interpretation of
Sections 10, 38(1),(2) & (3), 262(1) & (2)(a)-(e), and 277(1) &
(2)(a)-(e) of the Constitution once and for all, and for the courts
to fulfil their constitutional mandate of nullifying the laws,
directives and actions which conflict with the grundnorm, before
the issue of religion becomes an additional catalyst that divides
us as a country completely.

As far as I’m concerned, the constitutional provisions in
respect of the jurisdiction of the courts are crystal clear and
unambiguous. But, since controversies have arisen with the
observance of the Constitution in its breach, especially on the
issue of Sharia law and the extent of its jurisdiction, questions
like whether Sections 262, 277, 282 of Constitution endow Sharia
and Customary Courts with criminal jurisdiction, must be answered.
I have searched the Constitution high and low, and I have failed to
find any provision in this document which confers Sharia and
Customary Courts with criminal jurisdiction; because they simply
are not vested with criminal jurisdiction. My dear colleagues, I
stand to be corrected.

‘One Nigeria’

This is my country, Nigeria, and I firmly believe in ‘One
Nigeria’ on the basis of respect for fundamental rights and the
rule of law, equity, equality, equal opportunity and justice. I do
not want to wake up one day, and become the last victim in Martin
Niemöller’s poem. So, forgive me for being tiresome or repetitive
or sounding like a broken record, but, I must be brutally honest
when I say this issue of religion in Nigeria seems to be
escalating, and if Government is not willing to put a stop to the
illegality, we, the people should speak out and insist that it is
unacceptable for religion to be anywhere other than where the
Constitution, the grundnorm, allows it to be; if not, the
consequences of non-adherence may be grave for us all. Religious
disagreements and intolerance, can end up destroying any entity.
And in a multi-ethnic, multi-religious country like ours, it is
dangerous for Government to allow any one religion to take
precedence over others when the Constitution donates no such
rights, and maintains that neither our nation or any State is
permitted to adopt a National or State religion.

A State religion, is simply a religion that is endorsed or
favoured by the State. I need not bother to state the obvious –
that the Northern States that are implementing Sharia law have
endorsed Islam, and favoured this faith over and above all others.
Here lies the issue – Islamic law does not separate State from
religion, and that is why it can only be workable in a country
where everyone is of the Muslim faith and there is a ‘consensus ad
idem’ (meeting of the minds).

Customary Law and Islamic Law are different. It was the British
by virtue of Section 2 of Native Courts Ordinance of 1914, that
grouped Islamic law as Native law and custom. In Alkamawa v Hassan
Bello & Anor 1998 6 SCNJ 127 the Supreme Court held that “Islamic
law is not the same as Customary law, as it does not belong to any
particular tribe. While Customary law differs from tribe to tribe,
community to community, Islamic law has a more unified system”.
Customary law is not uniform, it is flexible and elastic, derived
from the usages of a particular people. Islamic law is religious
law. It does not change. It is based on the teachings of the Holy
Quran and the Hadith.

Kano State Hisbah Board

When it comes to some of the activities of the KSHB, you see
that because there is no separation between the State and religion
in the Muslim faith, the KSHB is trying to apply Sharia law to most
facets of their lives seeing as Islam is a way of life. But, some
of the activities of the KSHB are clearly unconstitutional, and we
must speak out against them – first, as Nigerians, whether Muslim
or Christian; second, as Lawyers, who in order to qualify to become
legal practitioners, were all students of Nigerian Constitutional
law at one time or the other, and are therefore, familiar with
Section 10 of our Constitution which prohibits Nigeria or any State
herein from adopting a National or State religion. The drafters of
the Constitution, were wise enough to realise that adopting any
religion, whether State or National, would not only be problematic,
but result in the fundamental rights of citizens being breached,
especially those who do not belong to whichever faith is adopted.
They went a step further to include Section 42 in the Constitution,
which prohibits discrimination against any person on the basis of
religion.

Recently, the KSHB banned the use of mannequins “to display
clothes by tailors, supermarkets and boutique owners”, in shops and
even private homes in the State, on the ground that it violates
Islamic provisions and could be a fertile ground for breeding
immoral thoughts. Aside from the fact that Section 37 of the
Constitution guarantees the privacy of citizens, their homes,
correspondence, telephone and telegraphic communication, therefore,
making it unconstitutional for Hisbah to decide that people cannot
have mannequins in their homes, such pronouncement runs foul of
Sections 16 and 41 of the Constitution, as such directive will
impact negatively on the clothes selling business in Kano; and with
the draconian directives that are being given these days,
Southerners and non-Muslims who enjoy freedom of movement and have
made their homes in Kano and other Sharia States through several
generations, may be constrained to leave for more conducive
environments, seeing as their fundamental rights are being
infringed upon, more and more.

I have relatives who live in Kano; octogenarians, Christians,
who have lived in Kano for over 50 years. That is their home. As
the Hisbah directives get more and more stringent, there is
pressure from family members for them to relocate down South. Are
they expected to leave their life long home in Kano, and head to
unfamiliar places like Lagos or Ibadan to start a new life at this
age? What of the clothes sellers in Kano, whose businesses have
been truncated with the clamp down on cosmopolitan wears which they
sell, and now the ban on mannequins which is the tool used
worldwide to advertise clothes for sale? What about those that are
arrested on the streets by Hisbah for non-compliant haircuts,
hairstyles and dressing?

Conclusion

The bottom line is that, just as true Federalism is possibly the
most appropriate system for a heterogeneous country like Nigeria as
opposed to the Unitary system which we are running, so also
political secularism (“separation of State from religious
institutions”) is the best system to adopt in a multi-religious
society like ours. That does not preclude anybody, from practicing
his or her religion. In fact, that is the spirit and purport of
Section 38 of the Constitution – that every person is entitled to
freedom of thought, conscience and religion (as long as it is
lawful), and to propagate same in worship, teaching, practice and
observance.

Tribalism destroyed Rwanda in the 1990s. The incessant conflict
between the Israelis and Palestinians, apart from being political
and territorial, is religious. By the time the other Sharia States
decide to follow Kano and implement these directives, more
non-Muslims and Southerners may be forced to relocate down South.
If this happens, this may in turn, make the cries for secession
louder. We should learn from the mistakes of others, instead of
taking active steps towards a path, which we have observed from
their own experiences, will only lead to destruction.