ISLAMIC AND CUSTOMARY LAW
But while the new legislation in Northern Nigeria has largely eliminated conflicts between the Islamic law and the English law, this is by no means true of conflicts between Islamic and customary law.
Such conflicts arise to some extent, of course, in every Muslim land; but prior to 1956 the statute law of Nigeria gave ample scope for ad hoc solutions. This was because Islamic law was invariably subsumed in Nigeria, up to that date, under the capacious umbrella of ‘native law and custom’—an expedient which allowed for an almost unlimited series of gradations from a comparatively rigid application of the Islamic texts, in staunchly Muslim areas, to an exclusively pagan customary law, in the areas into which Islam had never penetrated. But in 1956 the mistake (as I see it) was made of setting up a ‘Moslem Court of Appeal’ as yet another appellate court for cases ‘governed* Except that the Maliki law, alone, regards the pregnancy of an unmarried woman, or the smell of alchohol in a Muslim’s breath, as constituting a prima facie case against them.
2 New recommendations regarding these sections of the Penal Code have recently been made by the ‘Panel of Jurists’, on a return visit at the invitation of the Northern Nigeria Government.
by Moslem law’, which were broadly defined as those cases ‘to the determination of which it is lawful and appropriate that the principles of Moslem Law shall be applied to the exclusion of any other system of law or of native law and custom’;1 and in such cases the Moslem Court of Appeal was required to ‘administer, observe, and enforce the observance of, the principles and provisions of Moslem Law of the Maliki School as interpreted at the place where the trial at first instance took place....’2
This may sound reasonable enough. It was obvious from the first, however, that the effect of this innovation would be an increasing tendency towards rigidity and uniformity in the enforcement of the principles of the Maliki texts even in those respects, and those regions, where local customary law had hitherto prevailed.
I stressed this in an article I wrote in 1957 entitled ‘Law and Custom in Muslim Areas in Africa: Recent Developments in Nigeria’.3 Part of this article was concerned with the criminal law and procedure, which have, of course, now been replaced by the new legislation. The Panel of Jurists recommended, indeed, in 1958 that Islamic law, as such, should in future be confined to the personal and family law of Muslim litigants, although it might also be applied, on occasions, as the law under which some contract had in fact been concluded or as the law of tort locally recognized as valid; that the Moslem Court of Appeal, as then constituted, should be abolished; and that a Shari'a Court of Appeal should be instituted as the final court in matters of personal status and family relationships under the Islamic law.4 Even so, the question still remains at large as to what cases, precisely, should be so classified.A few examples will illustrate the problems involved. A disputed point, just at present, concerns litigation regarding rights of inheritance in land. In the past questions of land tenure have been regarded as governed throughout Northern Nigeria—except, perhaps, in the province of Zaria, on the shores of Lake Chad, and to some extent in the immediate environs of Kano and Sokoto—by customary law; and litigation on this subject has normally been handled by the Emirs’ Councils rather than the alkalai or, at a lower level, by administrative rather than judicial authorities.3 Today, however, the alkalai and the
1 Moslem Court of Appeal Law, sect. 3(3), and Native Courts Law, sect. 62(2), both of 1956.
1 Moslem Court of Appeal Law, sect. 15(1).
3 Civilisations, VII (1957), I, pp. 17-31.
* Except that an appeal would still lie to the Federal Supreme Court in any case which involves ‘fundamental rights’ or other constitutional issues.
3 Cf. Islamic Law in Africa, pp. 184 ff.
Shari'a Court of Appeal are increasingly insistent that they should themselves administer, under the Islamic law of inheritance, land ‘owned’ by deceased Muslims.
This contention is challenged by the Emirs—partly, no doubt, because they regard questions of land tenure as a vested interest, but also on the ground that rights in land in Northern Nigeria do not, generally speaking, amount to full ownership, but rather to a right to the use and enjoyment of land in which the ultimate title vests in the Government. As such, of course, its legal position might be regarded as similar to that of‘Miri’ land in the Ottoman Empire, rights in which became progressively assimilated to full ownership in so far as contractual dispositions were concerned, but in regard to which the Islamic law of inheritance was never applied. And it is curious, in this context, to observe that the special law of inheritance enacted for such land in the Ottoman Empire* has now been adopted in Iraq as the law of intestate succession applicable to all property, real and personal, to the total exclusion of the Islamic law.1In Northern Nigeria, on the contrary, the tendency is to extend the application of Islamic law in regard to land cases; and it will be interesting to observe how the present conflict of interests and opinions is solved. One possible solution would be for a Native Authority which doubted whether the courts were applying the right law in land cases to make a declaration, under the Native Authority Law, 1954, of the customary law which is locally applicable in this matter.
But besides questions of land, there are parts of Northern Nigeria where the local tribe or community follows its customary law of inheritance regardless of the fact that a few individuals may have embraced Islam. This phenomenon raises problems in many parts of Africa. From the point of view of Muslim orthodoxy, of course, the estate of anyone who has embraced Islam, however rudimentary his knowledge may have been of all that this would entail, should be governed exclusively by the Islamic law—including the rule that all his non-Muslim relatives, however dose, should be totally excluded in favour of any Muslim kinsman.
From the point of view of tribal opinion, on the other hand, this seems a preposterous requirement. It is interesting to observe that in Tanganyika this dilemma has given rise to a legislative requirement that the estate of a member of a native tribe ‘shall be administered according to the law of that tribe unless the deceased at any time professed the Mohammedan* Ottoman Land Law, 1858, as finally amended in 19H.
! Cf. my article ‘A Law of Personal Status for Iraq’, in The International and Comparative Law Quarterly, October i960, pp. 559 ff. religion and the court exercising jurisdiction over his estate is satisfied from the written or oral declarations of the deceased or his acts or manner of life that the deceased intended his estate to be administered, either wholly or in part, according to Mohammedan law.. but that the estate of a ‘Swahili’, on the other hand, ‘shall be administered according to Mohammedan law unless the court... is satisfied from the written or oral declarations of the deceased or his acts or manner of life that he intended his estate to be administered, either wholly or in part, according to any tribal law... The same enactment also explicitly provides that no one shall ‘be deprived of a right to succession to property by reason of that person having renounced or having been excluded from the communion of any religion’.2 In Kenya, again, the position is somewhat similar; but there the criterion as to whether the Islamic law of succession should be applied is the fact that the deceased must not only have professed Islam but either be the child of a Muslim marriage or have himself contracted a marriage according to Islamic law—which presumably means that he must either be a second generation Muslim or have given proof of a desire to follow the law of Islam in practice? But no such criterion has been adopted in Northern Nigeria, and the question seems very much at large. Unless, therefore, the Native Authorities of the more predominantly pagan areas make suitable declarations of their customary laws of inheritance, there will always be the possibility of a Muslim relative trying to displace all nonMuslims and appropriate the entire estate of a deceased Muslim; and it is exceedingly dubious whether the Shari'a Court of Appeal would regard even a declaration of this sort as ousting their jurisdiction over the estate of anyone who had professed to embrace Islam.
Other cases of actual or potential conflict are provided by questions of marriage and divorce. Of these three examples must suffice.
When a woman is dissatisfied with her marriage, and wants a divorce, customary law in fact prevails over the strict requirements of Maliki law even in the most rigidly Muslim areas in Northern Nigeria? As a consequence a woman who is able and willing to refund her ‘bride-wealth’ can always in practice secure a dissolution of marriage, regardless of whether her husband is prepared to agree. This has, no doubt, been facilitated in West Africa by the fact that the Maliki law,
* Administration (Small Estates) (Amendment) Ordinance, 1947, sect. 18(1). 2 Sect. 18(4).
5 Mohammedan Marriage, Divorce and Succession Ordinance, 1920, sect. 4.
4 Cf. Islamic Law in Africa, pp. 209 ff.
alone, itself allows this solution of marital discord to be forced on a husband if family ‘arbitrators’ have been appointed, have concluded that the reconciliation of the parties is impracticable, and have decided that the wife is at least partially to blame. It has also been facilitated by the fact that a recalcitrant wife will never, in West Africa, be forcibly taken back to her marriage home by the police. But the real reason for this phenomenon lies in die customary law, to which even the most rigid alkalai in Northern Nigeria have in practice capitulated in this matter.
Recently, however, die Grand Qadi—himself at that time a Sudanese —has persuaded the Commissioner for Native Courts to issue, as a Circular addressed to all the courts, a statement1 which sets out, in contradistinction, first the current practice in this matter and then the strict requirements of the Maliki texts. Under these a woman should be given a judicial divorce, without repayment of her dower, if she can prove that she has been cruelly treated. If, on the other hand, a dispute has arisen but she cannot prove such cruelty, then arbitrators should be appointed to attempt to reconcile the parties or, if this proves impossible, to bring the marriage to an end—with or without a refund of dower as circumstances may require.
But, in default of either proof of cruelty or a decision by such arbitrators, she should never be given a divorce without the husband’s consent. It appears, moreover, from this circular that cases have occurred in which a woman has been given a divorce by an alkali under the customary law, and has in due course remarried; then, on appeal by the husband to the Shari'a Court of Appeal, this judgment has been reversed and the second marriage annulled—even, on occasions, after the woman has become pregnant by her new husband.This is clearly a complex question. It is obviously undesirable that a woman should remarry after a divorce which is likely to be reversed on appeal; and it is certainly preferable that a woman who can prove cruelty should not be forced to make any repayment of dower (for the desire for such repayment might well be the motive for the cruelty), and also that the stability of marriage should be safeguarded in any practicable way. But it may pertinently be urged that what is sauce for the goose is sauce for the gander, so while a husband can divorce his wife at any moment and for any (or no) reason, it is difficult to speak convincingly about the sanctity, or stability, of marriage; and it seems highly dubious how far it is wise for the Shari*a Court of Appeal to attempt to override in this matter the customary law which prevails throughout the whole of West Africa.
* Dated August 14,1961, and prepared by the Grand Qadi himself.
Cases occur, moreover, particularly in areas which are predominantly pagan, in which persons who are at least nominally Muslims contract a marriage under native law and custom. A case of this sort has recently been the subject of litigation, I understand, in the High Court of the Northern Region. Here the court was satisfied that two Muslims in Benue Province had in fact concluded their marriage under customary rather than Islamic law; so it dealt with the marriage —very rightly, I would observe with the utmost respect—on the basis of the law of the contract. It is obvious, however, that had this case come before the Shari'a Court of Appeal the result might have been very different—for the Shari'a Court of Appeal Law not only gives that court competence to decide ‘any question of Moslem law regarding a marriage concluded in accordance with that law...’,* but also, where all the parties to a marriage are Muslims or where the deceased was a Muslim, ‘any question of Moslem law regarding a marriage... will or succession’.2
It is clear, however, that this form of words would not give the Shari'a Court of Appeal any competence in those cases—comparatively frequent in provinces such as Ilorin—where a Christian man marries a Muslim girl. Such a union is, of course, absolutely void under Islamic law, for a Muslim girl may never be given in marriage to any nonMuslim. Litigation arising under such unions is, in practice, taken sometimes to this court and sometimes to that, and the judgments probably vary almost as much as the courts which give them. It seems clear, however, that where the parties to such a union intend their marriage to be governed by customary law, as would almost invariably be the case, no other system of law is properly applicable.
It should, too, be noticed in this context that the Shari'a Court of Appeal Law also gives that court competence to decide any other questions where ‘all the parties to the proceedings (whether or not they are Moslems) have by writing under their hand requested the court that hears the case in the first instance to determine that case in accordance with Moslem law’? This presumably means that the litigants can, by their unilateral decision, decide that a case should be governed by Islamic law even where a quite different law would
* Sect. 12(a).
* Sect. ii(4) and (c). Originally, indeed, these sections did not include the words 'of Moslem law’, which were added by the Sharia Court of Appeal (Amendment) Law, i960, with just such circumstances in view. But the Shari'a Court of Appeal might well take a very broad view of how these words should be construed.
1 Sect. 12(e).
normally be applied. This seems to be wrong in principle; for it should be for the legislature, rather than the individual, to decide the law that shall be applicable to this matter or that.