By Eric Teniola
CERTAIN consequences follow and then there is a particular court to which you go for these consequences. The second one is the customary marriage. If you do customary marriage, your marriage is potentially polygamous and the divorce, testate and intestate succession follow the customary way.
The third one is the Islamic law system. If you marry under the Islamic system, your marriage, your divorce or succession-testate and intestate-follow that. So, it is not a valid argument to say that we are creating a new legal system.
We are not. If you look at all our case laws and all our courts, you find that the distribution of estate under the first heading- the Received Law-has been laid down as high as at the Supreme Court and if you look at the customary law system, the system as followed in those areas, it is as laid down by the Supreme Court; whether it is ori oju ori or idi igi system. Now to the Islamic system.
The problem arose from what I said earlier on that we have different constitutions for different states, and I am sure many people have never read constitutions of other states, particularly in the old Northern Region. In the olden days, there was only one Region and, therefore, there was no need to create an appellate court beyond the Region for that area which had this Islamic law system. Before I go on, may I make it clear that in the Draft, as provided, there is no criminal jurisdiction whatsoever, so that the question of using it to persecute anybody does not arise. People have stopped me outside and asked: If this is approved, will it not be used to persecute people?
We were very, very careful to restrict it to personal law only-marriage, divorce and the questions of testate and intestate; and you go there only as of choice. You are not even forced to go there even on matters of personal law. So the question of persecution does not arise. Two, if you look at the provisions, particularly of section 180, of the Draft, those areas which do not want Islamic law system will never have it. It will not be forced upon them. I mean, it is unthinkable that in Oyo State we are going to have Sharia. As a matter of fact even those areas in the North who do not want the Islamic law system could abolish it through their legislature.
They do not have to have it. So, it is not forced on anybody. Anybody who feels or alleges that this country is being turned into a Moslem State is simply being mischievous. It is not true at all. My Lord, …I am a Christian. As I said, Mr. Chairman earlier on, we had Appeal Courts at the Regional level before, but with the creation of more states, this was the trouble that faced the CDC. What do we do ?
Now, under the old – two matters used to go to the Supreme Court – matters which pertain to fundamental rights and matters which pertain to interpretation of the Constitution-so that from the Sharia Court of Appea1 in the old North, appeals used to go to the Supreme Court on those two grounds.
What lawyers used to do, I am not letting out any secret, is that if we are briefed on a particular matter that we know will not normally go to the Supreme Court, all we have to do, by ingenuity, is to find grounds which will lead to interpretation of human rights or interpretation of the Constitution so that the Supreme Court will have the jurisdiction to review the matter.
With the creation of more states, what do we do? Nobody is saying that the North should not have what they had before, but what do we do ? You have 11 courts, or let us even assume only five or six state courts at the appellate level, where do appeals go?
Since the creation of the states, we have already got the Federal Intermediate Appeal Court which is between the High Court and the Supreme Court, so that the State Sharia Court of Appeal, you cannot go straight to the Supreme Court because you cannot jump that gap.
Something just has to be done. No matter on what line of argument you are, there has to be an appeal somewhere between the Supreme Court and State Sharia Court of Appeal. I will not now go to the semantics of the details of that, but I have a proposal which I will submit at the Committee Stage. But honorable members of this House, Mr Chairman, we cannot – it will be unfair and improper under the federal system to allow a group of states to gang together to enact laws which will govern them. That will not be permissible.
It has to be done by the federal authority, it has to be done by the National Assembly and it has to be done in the Constitution. I do not want to widen the area of conflict, matters of details or how it is to be done will come forward at the Committee.
Now, honourable members, somebody has raised the argument of interaction, and this is my distinguished friend, a nominated Member, (Professor J.I. Tseayo), who is from the University of Jos not from Ahmadu Bello, University contrary to the press reports.