vol_4_4_chapter_4_part_III

CILS HARMONISED SHARIA PENAL CODE ANNOTATED
THE SHARIA PENAL CODE LAW 200_
A BILL FOR A LAW TO ESTABLISH A SHARIA PENAL CODE
FOR ……………….. STATE
BE IT ENACTED by the ……………… State House of Assembly as follows:
1. This Law may be cited as the Sharia Penal Code Law, 200_ and it shall come into
operation on the ....... day of .................... 1
2. The provisions contained in the schedules to this Law 2 shall be the law of the State 3
with respect to the several matters therein dealt with and the said schedules may be cited as 4
the Sharia Penal Code.
3. Every person who is a Muslim and/or every other person who voluntarily consents to
the exercise of the jurisdiction of any of the Sharia Courts established under the Sharia
Courts Law, ………. shall be liable to punishment under this law for every act or omission
contrary to the provisions thereof of which he shall be guilty within the State. 5
1 PC: “This Law may be cited as the Penal Code Law”. Kebbi enacted its Sharia Penal Code by a
“Penal Code (Amendment) Law 2000” which amended its former Penal Code Law, the new Sharia
Penal Code becoming the first Schedule, and the former Penal Code becoming the Second Schedule
thereto. PC and Sokoto specify the date of commencement by a separate un-numbered notation
preceding the first section.
2 Katsina adds here: “and the Islamic Penal System (Adoption) Law 2000”, referring to the statute of
that name enacted on 31 st July 2000, see Supplement to Katsina State Gazette No. 5 Vol. 11 of 10
August 2000 pp. A97-A98. That statute enacts that: “3. (1) Notwithstanding any provision contained in
the Penal Code and the Criminal Procedure Code, proceedings for the determination of any civil or
criminal matter before any Sharia Court shall be governed in accordance with the primary sources of
Islamic Law, that is to say – (a) Qur’an; and (b) Hadith. (2) Subject to the provisions contained in the
texts mentioned in subsection (1) of this section, a Sharia Court is empowered, in any proceedings
before it to refer to and utilise the texts in the Maliki School of Law: Provided that they are in
consonance with the Qur’an and Hadith. 4. Offences committed on or after the date of
commencement of this Law shall be tried in accordance with the provisions of this Law”. There were
objections, at the time, that this enactment did not comply with §36(12) of the Nigerian Constitution
of 1999, which provides that “a person shall not be convicted of a criminal offence unless that offence
is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law
refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument
under the provisions of a law.” The full Katsina State Sharia Penal Code Law annotated here was then
enacted in 2001; but offences under the Islamic Penal System (Adoption) Law were still triable, see n.
to §7 below.
3 PC: “law of Northern Nigeria”; and in general, where in this Draft Harmonised Code and in the
SPCs references are made to “the State”, PC has “Northern Nigeria”; this will not be specially noted
subsequently. Gombe, Kebbi: “the law of [Gombe or Kebbi] State”.
4 PC and all SPCs except Gombe, Kano, Katsina add here: “and is hereinafter [or hereby] called”.
5 PC: “(1) Every person shall be liable to punishment under the Penal Code for every act or omission
contrary to the provisions thereof of which he shall be guilty within Northern Nigeria. (2) After the
commencement of this Law no person shall be liable to punishment under any native law or custom.”
All SPCs, on the contrary, agree in limiting their application to Muslims or to others who voluntarily
consent to the jurisdiction of the Sharia courts in which the SPCs are to be applied; those not subject
to the SPCs then go under the old PC. Katsina omits the concluding phrase “for every act or omission
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