sexual health and human rights in the african region - The ICHRP

[54] Shari’ah refers to the entire system of, or the framework for, the dispensation of
Islamic law in the public and private lives of Muslims. It includes the laws
themselves as well as the institutions for interpreting and applying Islamic law
according to the belief and practice Islam as derived from the primary sources,
namely – the Qur’an, 162 the Sunnah, 163 ijima 164 and qiyas. 165
[55] The Maliki school derives from the work of Imam Malik ibn Anas. Two texts in
particular are regarded as the principal literal sources for Maliki jurisprudence,
namely, the Al-Muwatta and the Al Mudauwanah. 166
[56] Islamic laws have the most visible impact in African countries that are part of
North Africa. 167 In this region, Islamic religious law has its highest status in
Algeria. Under the Constitution of Algeria of 1976, as amended, it is stated that
Islam is the religion of the state. 168 The implication of the foundational status that
Islam has under the Algerian Constitution is that Algerian laws that have a close
relationship with sexual health such as the Algerian Family Code 169 seek in part
to be faithful to Shari’ah law rather than secular notions of civil law. As such,
they contain many features that are incompatible with provisions in international
human rights instruments, including the Women’s Convention, especially to the
extent that they countenance gender inequality. They necessarily enjoy
protection under the constitution except where it can be established that they
deviate from the religious tenets of the constitution. An illustration of a religious
law that has the implicit sanction of the Algerian constitution is the practice of
polygny and family law that generally enshrines gender inequality. The notion of
men and guardians over women 170 is a fundamental tenet of Islamic Shar’iah and
reflected in the Islamic laws relating to entry into marriage, subsistence of
marriage and annulment of marriage
[57] For the purposes of this study, however, the focus will be on the place of Islamic
law in Nigeria. Over and above North Africa, Islamic law is also a very visible
feature of countries in West Africa, including Nigeria. In recent years, especially,
162 Qur’an 45:18, 42:13; 42:21; 5:51.
163 The Sunnah of Muhammad refers to the words, actions and practices of the Prophet Muhammad.
164 ‘Ijima’ refers to the notion of reaching decisions through consensus from the community of Muslims or
followers of Islam.
165 ‘Qiyas’ refers to reaching decisions through reasoning by analogy.
166 There are other literal sources that are also considered as main sources, including the following: Al-
Utbiyyah, Al-Wadhiba, and Al-Mawaziyyah.
167 The following countries comprise North Africa according to the UN regional definitions of Africa:
Algeria, Egypt, Libya, Morocco, Sudan, Tunisia, Mauritania and Western Sahara. However, a
geographical entity North Africa can be larger as to include bordering countries.
168 Article 2 of the Constitution of Algeria of 1976 as amended; The preamble to the Constitution of
Mauritania of 1991 accords Islam a foundational status and article 5 provides that Islam is the religion of
the people and the state.
169 Algerian Family Code of 1984.
170 Qawama
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