CRITICAL APPRAISAL OF THE PRACTICE OF CODIFICATION OF ISLAMIC CRIMINAL LAW IN THE MUSLIM WORLD: A CASE STUDY OF NORTHERN NIGERIA
CRITICAL APPRAISAL OF THE PRACTICE OF CODIFICATION OF ISLAMIC CRIMINAL LAW IN THE MUSLIM WORLD: A CASE STUDY OF NORTHERN NIGERIA
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Date
2014-09
Authors
SHU’AIB, Usman Muhammad
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Abstract
In the year 2000 Zamfara State Government initiated re-introduction of the
application of Islamic Criminal Law on the Muslim subjects of the State. This was
followed by other states of Northern Nigeria, either willingly or in response to
popular pressure mounted by their subjects. The initiative of re – introduction of
the Shari’ah led to the codifications of Shari’ah offences. The codification was
necessitated by constitutional requirements on fair hearing which provide that acts
or omissions amounting to criminal responsibility must be reduced into legislation
of either National Assembly or States’ Houses of Assembly. However, codification
of Islamic Criminal Law is, on the other hand, alien to the classical tradition of
Islamic Law. Judges under the Ideal Islamic settings are expected to refer to the
primary sources consisting of Qur’an and the Sunnah as well as the secondary
sources which are, bye and large, the products of Ijtihad such as Ijma’ Qiyas,
Masalihul Mursala, Sadduz – zaree’ah, Amalu Ahill Madina, etc for adjudcation.
Based on this some Muslim Jurists vehemently opposed the codification of Islamic
Criminal Law contending that it stagnates the Shari’a Law, deprives it of its
dynamism as it prevents judges from making recourse to the original sources of
the law. On the other hand, another group of Muslim Jurists, considering the
caliber of the people manning the Shari’ah Courts, whose credentials are far
below those of Mujtahidun support the codification viewing it as a child of
necessity (darura) that has to be embraced. This dissertation critically examines
the contending views on the codification of Islamic Law generally but with
particular reference to Islamic Criminal Law. In doing this, the primary source
materials of Islamic Law - Qur’an and Sunnah – as well as the classical
expositions and commentaries on the same as contained in the authoritative
classical works known as Turath and other related library and on – line materials
were utilized. The major finding of this dissertation shows that the view supporting
codification is more in keeping with the spirit of Islamic Law. This is because
codification, if carried out by qualified Individuals, could be treated as a modern
form of Ijtihad that upholds the dynamism of Shari’ah and its suitability for
application at all times and in all places including the Northern Nigeria where the
codification of Islamic Criminal Law is a constitutional imperative. The
dissertation mainly recommends that the codification of Islamic Criminal Law as
contained in the various Shari’ah Penal Codes should be periodically reviewed on
a continuous basis in order for Islamic Criminal Law to be in tune with the rapid
development in the society. To achieve this it is further recommended that the
Shari’ah Implementing States should institute a Commission comprising of
Ulama’, Legal Experts and other stakeholders involved in the administration of
Islamic Criminal Law to handle this responsibility on behalf of the Muslim
Ummah.
Description
BEING A DISSERTATION SUBMITTED TO THE SCHOOL OF
POSTGRADUATE STUDIES AHMADU BELLO UNIVERSITY, ZARIA IN
PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE AWARD OF
DOCTOR OF PHILOSOPHY DEGREE IN LAW PH.D
DEPARTMENT OF ISLAMIC LAW,
FACULTY OF LAW,
AHMADU BELLO UNIVERSITY, ZARIA
SEPTEMBER,2014
Keywords
CRITICAL,, APPRAISAL,, PRACTICE,, CODIFICATION,, ISLAMIC,, CRIMINAL,, LAW,, MUSLIM,, WORLD:, CASE STUDY,, NORTHERN,, NIGERIA.