THE ISLAMIC CRIMINAL JUSTICE SYSTEM: A CASE FOR THE APPLICATION OF HUDUD OFFENCES IN NIGERIA BY
THE ISLAMIC CRIMINAL JUSTICE SYSTEM: A CASE FOR THE APPLICATION OF HUDUD OFFENCES IN NIGERIA BY
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Date
1999-09
Authors
BAMBALE, YAHAYA YUNUSA
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Abstract
Islamic Criminal Justice System i.e. the Hudud is an
aspect of the Sharia which has been villified and
misrepresented as archaic, inhuman, harsh, cruel and
barbaric etc and above all outmoded.
This aspect of the sharia has been unceremoniously
ousted from the Islamic Legal System, because of ignorant and
the grotesque manner of its presentation.
The application of the sharia especially, the aspect of
the Islamic Criminal Law, is not only absolutely necessary
but is the panacea to our emerging problems which are not
amendable to our present legal systems.
Islamic criminal justice system can never be more
relevant at any time of human history than today, crime has
virtually forced our society to Its knees.
It is in view of the above,the choice of this topic, is
necessary so as to clear the misconceptions surrounding it and
the relevance of its application.
Chapter one of the thesis is the general survey on the
Islamic Criminal Law. It discusses the 3 (three) types of
punishments namely hadd, Qisas, and Ta'azir. Put together,
Hadd, Qisas, and Ta'azir constitute the whole of the Islamic
Criminal justice system which in its comprehensiveness and
beauty, no other legal system can match.
Hudud is the plural form of Hadd, and apply to seven
crimes namely zina (adultery or fornication); Qadhf (slander
or false accusation); Shurb ul-khamr (wine drinking); Sariga
(theft) Riddah (Apostasy); Hirabah (Robbery or Brigandage) and
Baghyy (Treason or Rebellion). The punishments by way of Hadd
are of the following forms: Death by stoning or crucifixion,
amputation of a hand, flogging by one hundred (100) or
eighty (80) lashes.
Qisas (Retaliation) is known as the law of equality. It
is the punishment prescribed for murder and infliction of
injury. where retaliation has not taken place the payment
of Diyya (blood-money) is effected.
Ta'azir (discretionary punishment) is applicable to all
cases of Hadd and Qisas which have not been established
beyond reasonable doubt, and to all other
cases. Infact, the bulk of the Islamic Criminal Law with the
exception of Hadd and Oisas fall under Ta'azir. The range
of punishment under Ta'azir extends from mere warning, to
fines, flogging, imprisonment, banishment and death penalty.
Chapter two discusses the features of the Islamic
Criminal Justice System and which noble features makes it
distinct from any other legal system.
The reason for this, uniqueness is its concept of
equality before the law, which makes no distinction between
the rich and the poor, ruler and the ruled. Also, other reasons
are the strict adherence to the rules as enshrined in the Holy
Qur'an and Sunnah, and faith was firmly entrenched in the
minds of the Muslims.
The features of Hudud offences are specifically
discussed, the prescribed punishment is inflicted neither
lightened nor made heavier, not subject to any amendment or
alteration as result of change in time, place and situation,
or anyone having the power to waive it. It is only prevented
in cases of doubt.
Also, discussed are factors that vitiate criminal
responsibility as far as the commission of the Hudud
offences are concerned. Infancy or minority, insanity,
coercion, self defence etc are some of the factors
responsible for the vitiation.
Chapter three discusses crimes against human body. i.e.
zina and Oadhf. They are the two hudud crimes for which
failure to establish one will lead to the infliction of the
other. Where a case of zina is not established,it will result
in the commission of Qadhf.
Zina is condemned by all systems as religiously
sinful, morally wicked, socially evil and objectionable,
where the disagreement arose,is in relation to what are
considered unlawful and punishable relations. Under
Islamic Law, no such distinction for the purpose of waiving
the punishment. In other legal systems, only when adultery
is with a married woman, that is considered the real and major
crime. Even then, the situation is tackled in most cases' by
the payment of compensation. The standard of proof for zina
is made so high i.e. evidence or testimony of 4 (four)
witnesses so as to protect and bring about peace and
tranquility in the society. It is
also proved by confession or pregnancy of the woman
concerned.
The punishment for Zina is either Raim (stoning to
death) for the married or 100 lashes plus one year in exile
for the unmarried. No such or similar provisions existed
in other legal systems, except in the Penal Code,where the
punishment is imprisonment for 2 years with or without fine.
In addition, there is Haddi lashing of 12 strokes for a
Muslim who commits the crime.
Qadhf, on the other hand, is an accusation that
involves accusation of zina or contesting ones paternity.
Before, the punishment of 80 lashes is inflicted, there are
certain conditions on the part of the accuser, I slandered
person and the act of Qadhf itself, which must, be satisfied.
These conditions distinguishes slander in Islamic law and
slander in other legal systems. The area covered by slander
in Islamic Law is restrictive, compared to that, under other
laws. It is also differentiated by the Punishment. Under
the Sharia, apart from the 80 lashes,the offender is treated
as a liar and transgressor. This is not found in other laws.
Chapter four discusses crimes against the property
i.e. Sariqa (theft) and Hiraba (robbery or brigandage).
Thieves and armed robbers are a menace to the peaceful
society and naturally looked upon with terror. It is in order
to put them under guard that stricter measures are
prescribed.
The punishment for theft is cutting the hand, and before
it is inflicted, there are conditions relating to the thief,
and the stolen property which must be satisfied. There are
juristic differences as to whether the property or its value
is returned to the owner of such stolen property. The
punishment for theft under the criminal and penal codes
ranges from 2, 3, 4, 5, 7 and 14 years of imprisonment.
Hiraba is a very heinous crime which involves the
killing of innocent persons and work havoc with their
honours and properties. This accounts for why Islam
prescribed the severest and deterrent punishment for those who
commit Hiraba. This is one of the crime which takes place,
mostly in the absence of people who witnesses the incident.
Witnesses may have to come from the victims themselves,
opinions of jurists are divided as to the admissibility of
evidence of such victims. There are
several alternative punishments i.e. execution,
crucifixion, amputation of hand and foot, and exile,
depending on the form the crimes take.
In Nigeria, despite the provisions contained in the two
codes, i.e. Penal and Criminal Codes as regard robbery,the
1970 Robbery and Firearms. Act No.47 of 1970 was promulgated
to cater for. robbery cases which are committed at an
alarming rate. This Act of 1970 amended 5 times, all, in an
effort to curb incidences of robbery in Nigeria.
Chapter five discusses on crimes against the Islamic
State. Shurbul Khamr (wine drinking) is regarded as the
mother of all evils. Islam forbids wine drinking and anything
that intoxicates. Wine drinking is a bad habit formation and
it is because of that it is prohibited in phased and measured
stages. If it is proved by the evidence of 2 witnesses or
confession, 80 lashes is inflicted.
In Nigeria, the contradiction lies in legalizing wine
drinking and a person is only punished when, in a state of
voluntary intoxication, crime is committed. The only
attempt made to punish mere wine drinking is contained in
the Penal Code, where the accused is a Muslim, even that the
punishment is inadequate to deter offenders of this crime.
Baghyy is an act of treason or rebellion against the
state by a collective action of a group of Muslims. Even, where
rebellion sets in, the rights and liabilities of the rebels
have been spelt out to ensure their humane treatment. The
punishment, for this crime, is death sentence. In Nigeria,
the concept of treason is different from the position under
Islamic Law. No taking over of a government outside the
constitution, mutiny or rebellion and it is punished with
death. But, the contradiction lies in the military take
overs through coups.
Riddah is regarded as one of the seven destructive
crimes that may be committed by any Muslim and Is punishable
by death. This will not negate the recognized principle of
freedom of thought arid religion. The Qur'anic verse let
there be no compulsion in the religion will not be in
conflict with the tradition of the Holy Prophet Muhammad
(S.A.W) which indicates that 'whoever changes his religion
kill him. The two are in agreement with each other. The verse
is a pointer that no one shall be forced to accept Islam,
but the moment one
freely accepts it. cannot back out: of it. Where he does,
the tradition will be invoked. In Nigeria, Apostasy is not
a crime, and has no premise. The constitution of Nigeria has
given this stance legal backing, where it is stated that
there is the right to freedom of thought, conscience and
religion. The case of Maitatsine in Kano, is a good example
of apostasy, and punishment, could have been invoked if Sharia
is applied in Nigeria.
Chapter six is ttie conclusion. It summarises what has been
discussed in the 5 earlier chapters. It also made some
observations and then proffer some useful suggestions that
will dispel the misconceptions surrounding the application
of Sharia specifically the Islamic Criminal Justice System.
Description
A THESIS SUBMITTED TO THE POST GRADUATE
SCHOOL AHMADU BELLO UNIVERSITY, ZARIA IN
PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR
THE AWARD OF PH.D (LAW).
DEPARTMENT OF ISLAMIC LAW
FACULTY OF LAW INSTITUTE OF
ADMINISTRATION AHMADU BELLO
UNIVERSITY ZARIA
SEPTEMBER, 1999
Keywords
ISLAMIC, CRIMINAL, JUSTICE SYSTEM, APPLICATION, HUDUD, OFFENCES, NIGERIA