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

Islamic Shari’ah has become an important feature of the legal system of states in
the northern part of Nigeria and is administered by Shari’ah courts. 171 The well
publicised case of Commissioner of Police of Katsina State v Amina Lawal and Yahaya
Mohammed 172 where Amina Lawal was convicted of the offence of Zina (adultery)
and sentenced to death by stoning 173 is an illustration of the application of
Shari’ah in a sphere that has implications for sexual health.
[58] In the other West African countries, the recognition of Islamic law is limited to
personal laws and does not extend to areas governed by criminal law. The same
approach is taken by countries in East and Southern Africa. In any event, in all
African regions, save for North Africa, religious law is constitutionally
recognised not as part of the religion of the state, but only as part of recognising
religious diversity. However, it is not in all countries that one finds equal
recognition of the diversity of religious laws. Namibia and Zimbabwe are
examples of countries where there is no provision for the recognition of Islamic
in any sphere of law, including family law.
[59] Nigeria provides an illustration of both a strong recognition of Islamic law as
well as its ultimate subordination to the constitution. In northern parts of Nigeria
Shari’ah has been institutionalized and it enjoys higher status than customary
law in that it comes with state written legal precepts as well as a system of state
courts. At the same time, under section 1 of the Constitution of Nigeria, it is
constitutional norms that are supreme over any other contrary legal norms,
including religious norms. It also follows that ultimately, the non-discrimination
clause in section 42 of the Nigerian Constitution applies to Shari’ah to nullify any
contrary provisions. It is significant that under section 10 of the Nigerian
Constitution, no state can, therefore, declare Islam as a state religion.
1.15 Limitations of the Study
[60] There are two main limitations in the study. Firstly, as alluded to earlier, for
pragmatic language considerations, the study focuses predominantly on
Anglophone Africa with Cameroon as lone of exception of a jurisdiction which is
both Anglophone and Francophone. The implication in terms of mapping human
rights jurisprudence is that the study falls short on mapping norms emanating
from, or gaps that exist within, Civil law as opposed to Common law. A second
limitation is that while this is a regional rather than a country study, nonetheless,
171 See for example: Sharia Courts and Related Matters Law No.5 of 2000 of Zamfara State; Sharia State
Law No 6 of Sokoto State.
172 Case No 9/2002 delivered on March20, 2002 (Sharia Court).
173 The conviction and sentence were quashed on appeal on the ground that the defendant’s right to a fair
trial had been violated.
55