Ulama’s role and appeal procedures under Islamic perspectives
BY (BABA) JIBO IBRAHJM
babajibo2OO@yahoo.com
In parallel with the formal Shari’a Court System, the Ulama or Islamic scholars, play a significant role in some of the critical decisions in Shari’a Criminal Cases. In cases, they may have the power of life and death over the accused persons. The Ulama, who play an influential role in social and political life of the people in Northern Nigeria, are consulted for advice and guidance by a number of actors, including Shari’a Court Judges and state governors. In the absence of any thorough training, Shari’a Court Judges often refer to such learned scholars for advice if they are uncertain on the appropriate course of action.
The states where Sharia is implemented overruling of the governor’s frequently seek advice on specific case and he is expect to be guided by the Fatwa, particularly on cases of amputation and death sentences. The Ulama can advice the governors on whether to confirm or commute the sentences. The advice provided in this regards are not based on clearly formulated criteria, nor is it governed by any legislation Ijima or recognized regulatory framework. The lack of definition of the Ulama’s role and lack of transparency on their decisions also favor corruptions.
There are three types of Shari’a Courts dealing with criminal cases at the state level. They are the lower and upper Shari’a Courts of which there are several in all Muslim dominated states.
The Upper Shari’a Court also have appellate jurisdiction and are able to hear appeals from matters tried in the lower Shari’a Courts. The third is the Shari’a Court of appeal which each state has its own. This court hears appeals on cases tried by the Upper Shari’a Courts.
In the cases of the Lower and Upper Shari’a courts only one judge sits which is a cause for concern in the cases of crimes that carries death sentences or amputation. While in the Shari’a courts of appeal three to five senior judges who are more experienced than those in the first two Shari’a Courts sit together to pass judgement.
After being sentenced by the lower or upper Shari’a Courts, the accused is given thirty days in which to appeal. In practice, appeals filed after the thirty days period had elapsed, were sometimes accepted. Once dependents have exhausted their avenues for appeal within the state and if the Shari’a Court of appeal has confirmed the sentence, they can then appeal to the Supreme Court. These are both federal institutions and are not Sharia Court, although they have jurisdiction to hear appeals from Shari’a Courts and their appeal panels are supposed to endure judges with expertise in knowledge of Shari’a Legal system.
Although some advocates of Shari’a have complained about the absence of a specialised Sharia Court of Appeals at the federal level, arguing that the judges of the Federal Courts of Appeal and Supreme Court are not well-versed in Shari’a. Some also fear, perhaps, that these institutions are too close to the federal government, whose liberal approach to the fundamental human right charter has made it impossible to give the Shari’a legal system any regards and therefore likely to opposed Shari’a.
If a death sentence or amputation is confirmed by a state Shari’a Court of appeal and the defendant chooses not to appeal to the Federal Courts of Appeal, the state governor must personally authorize the execution of the punishment before it can take place, or can choose to pardon the convicted person.
Instances abound that where death sentences had been passed by the Shari’a Courts in Zamfara and Katsina states, some International Nongovernmental Organizations (NGO) attacked the court decisions and influenced the federal government to intervened which ultimately succeeded in mitigating the sentences. As this was not enough the accused persons were even taken to European countries and be lavished with parties, gifts and granted migrant status. All these were actions calculated to undermine and relegate the spirits of the Shari’a in comparison with supremacy of the constitution.
At the time of writing this piece, no death penalty cases tried under Sharia have yet reached the Federal Court of Appeals or the Supreme Court. Only one amputation sentence is known to have reached the level of the Federal Court of Appeal i.e Yahaya Kakale from Kebbi State. This will be a test case and, depending on the outcome of the appeal, could set an important precedent for other cases.
Some Lawyers are hoping that this case and any other Shari’a case, which reaches the federal level, will force consideration of the broader question of the constitutionality of Shari’a. Should the federal Court of Appeal or the Supreme Court rule that the Shari’a Court did not have the jurisdiction to hear criminal cases under the constitution, this and potentially all other cases could be thrown out, leading to the collapse of the whole basis of the Shari’a criminal system in its current form.
To date, some Lawyers preparing the grounds for appeals in Shari’a cases have concentrated on technical and procedural matters. Some of these grounds have been accepted by the Shari’a state Courts of Appeal who have rules in favor of the defendants on the basis of these procedural points. Most Lawyers have so far shy away from challenging the jurisdiction of the Shari’a Courts and their constitutional right to try criminal cases, so no Court of appeal has yet had to rule on these issues.
Baba Jibo Ibrahim
Secretary General Court Registrar’s Association of Nigeria, Kano state.