NORTHERN NIGERIA
The obvious place to start, I suppose, is Northern Nigeria. But here the whole situation has completely changed within the last few months.
It was in Northern Nigeria, in the past, that the major clash occurred between Islamic law and English law—chiefly, though by no means exclusively, in the important matter of homicide cases.
A number of attempts had been made, ever since Tsofo Cuba's Case1 in 1947, to devise legislation which would reconcile the irreconcilable, and eliminate any injustice resultant from the trying of homicide cases, almost indiscriminately, under two totally different legal systems. But these expedients had not proved very satisfactory in practice.This situation has now been radically altered by the decision of the Northern Nigerian Government totally to exclude the application of Islamic law—whether substantive or procedural—from the administra-
1 Tsofo Guba v Gwandu Native Authority, West African Court of Appeal, XII, 141. Cf. my Islamic Law in Africa, pp. 181 ff. and 198 ff. The case was not reported until 1956.
tion of criminal justice in the Region, and to substitute a new Penal Code and Criminal Procedure Code, both based on the corresponding codes in the Sudan (which were themselves inspired by the relevant Indian legislation). This bold and unexpected decision was taken on the recommendation of a ‘Panel of Jurists’ (four out of six of whom were Muslims) on which I had the honour to serve. As a result the clash between Islamic and English law in Northern Nigeria has been virtually eliminated.
It should, perhaps, be remarked at this point that the Panel fully realized that it would be impossible to transform all the native courts in the Region, overnight as it were, from courts accustomed only to Islamic principles of crime and procedure to courts which applied the radically different principles of the new codes.
So it suggested that, for an interim period, the native courts should be ‘guided’ by these codes rather than strictly bound by their provisions; and it explained that this meant that a genuine attempt must always be made to apply them, but that an appellate court should take a lenient view of any minor lapses.1 To allay the misgivings of the non-Muslim minorities, moreover, the Panel adopted a suggestion of the Minorities Commission and proposed that non-Muslims should be given the right to ‘opt out’ of trial by Muslim courts, and vice versa, until the Government felt that all courts had adequately mastered the new legislation?In the event the progress made in the intervening months seems to have been eminently satisfactory, and to reflect the greatest credit on the Commissioner for Native Courts and the team of instructors who have been training the personnel of these courts in the new systems. But it is inevitable, of course, that much still remains to be done. It is regrettable, therefore, that the Northern Nigerian Government should already have felt compelled to bring the opting-out procedure to an end. The reason given for this action was that the procedure had been manifestly abused—both by false declarations of religious affiliation and by the delays and unnecessary expense often deliberately caused by an insistence on the reference of litigation to distant tribunals. This was deplorable; but action designed to remedy these abuses had already
* For a discussion of this question, cf. my article ‘Conflict of Laws in Northern Nigeria: A New Start’, in International and Comparative Law Quarterly, Vol. 8, Part 3, 1959; two articles on the recent legislation in Northern Nigeria by Mr Justin Price and myself in The Modern Law Review, September 1961; and correspondence in the next two numbers of the same journal.
1 Cf. Statement by the Government of the Northern Region of Nigeria on the Reorganisation of the Legal and Judicial Systems of the Northern Region.
Kaduna. December 1958.been taken by the Native Courts (Amendment) Law, i960, which somewhat restricted the scope of the option as originally interpreted, and empowered a Resident to reject it where, in his opinion, it was not exercised in good faith. It seems clear, however, that this compromise proved ineffective in practice, and that there was no feasible alternative to bringing the opting-out procedure to what might otherwise appear to be an untimely end.
But the Penal Code Law, as promulgated in 1959, was by no means a mere adoption of its Sudanese model. On the contrary, it was adapted to the needs and circumstances of the Northern Region of Nigeria in a number of different respects. Local Muslim opinion, for example, was by no means satisfied with provisions which penalized drunkenness in public or, in certain circumstances, even in private, and insisted on the inclusion of an article penalizing anyone who ‘being of the Moslem faith drinks anything containing alcohol other than for medicinal purpose’.1 Similarly, under ‘Offences relating to marriage and incest’, Muslim opinion insisted that sexual intercourse with one whom the man or women concerned ‘knows or has reason to believe’ is not his or her lawful spouse should be punishable in respect of any person who is ‘subject to any native law or custom in which extra-marital sexual intercourse is recognized as a criminal offence’? For both these offences, moreover, the ‘haddi lashing’ of Muslim law might be imposed, in addition to any other punishment, on Muslim offenders?