Curva especie-área

7.3.1 Context

Constitution of the Federal Republic of Nigeria

After decades of military regimes since the country’s independence in 1960, shortly interrupted by the Nigerian Second Republic between 1979 and 1983, the 1999 presidential elections marked Nigeria’s return to civilian rule (Encyclopædia Britannica, 2016). The constitution that accompanied this return is still the most recent constitution of the Federal Republic of Nigeria, dating from 29 May 1999 and forming the foundations of the Fourth Republic. Several of its sections and articles pertain to religion, section 10 arguably being the most important one. Placed under the constitution’s general provisions, it states: “The Government of the Federation or of a State shall not adopt any religion as State Religion” (Constitution of the Federal Republic of Nigeria, 1999, p. 7). In other words, this particular section defines Nigeria as a secular state, in which the constitution takes precedence over everything else, including affairs and laws related to religion. The constitution, in section 1.3, clearly states: “If any other law is inconsistent with the provisions of this Constitution, this

Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void” (Constitution of the Federal Republic of Nigeria, 1999, p. 1).

Besides these general provisions, other constitutional sections mention religion as well. Placed under the constitution’s chapter devoted to fundamental objectives and directive principles of state policy, section 15.2 prohibits discrimination on the grounds of religion and section 23 determines ‘religious tolerance’ to be one of Nigeria’s eight national ethical principles. With regard to citizens’ fundamental rights, section 38 determines that every individual is entitled to freedom of religion, including the freedom to change his religion, as well as the freedom to manifest and propagate his religion in either worship, teaching, practice, and observance. Furthermore, the section states that no individual attending a place of education shall be forced to receive religious instruction if such instruction relates to a religion other than his own. Section 42, also placed under the chapter devoted to fundamental rights, states that a Nigerian citizen of a particular religion shall not be subjected, by any law or administrative action, to restrictions to which citizens adhering other religions are not subjected. At the same time, a Nigerian citizen of a particular religion shall not be accorded any advantage that is not accorded to citizens adhering other religions. In short, all citizens, regardless of their religion, should be treated equally. The last reference to religion in Nigeria’s constitution is made in section 222. It pertains to political parties and prohibits associations to function as political parties in case their names, symbols, or logos contain any ethnic or religious connotation (Constitution of the Federal Republic of Nigeria, 1999, p. 63).

Sharia law

Nigeria’s legal system is largely influenced by the country’s colonial history. Before the introduction of English Common Law by the British colonial administration, customary laws were already in place throughout the country, depending on the nature and background of the people that resided in a certain area. Consequently, in the Muslim Northern part of Nigeria, these customary laws, which included both civil and criminal laws, were based on Islamic principles (Nmehielle, 2004, pp. 735-736). These principles are part of the Sharia law system, its interpretation varies per school of jurisprudence and its doctrine. The Maliki school is the prevalent school in (Northern) Nigeria (Peters, 2003, p. 1). Furthermore, contrary to modern popular belief, Sharia entails more than just a criminal code that dictates inhumane punishments. It encapsulates the entire moral-ethical structure of Islam, which Muslims understand as Allah’s will and the right path to salvation (Hansen, 2015, p. 8). The British colonizers allowed these customary laws to exist beside English Common Law, albeit inferior

to English Common Law and, regarding criminal laws, under British restriction. This basically resulted in the British Criminal Code to govern criminal conduct, irrespective of the area to which it was applied (i.e. both North and South). Particular Northern Nigerians felt increasingly uncomfortable with this course of events, since they believed the British Criminal Code was incompatible with their Islamic lifestyle. However, introducing the entirety of the Sharia law system would have upset the non-Muslim community. Therefore, a compromise was proposed, as was previously done by the British in India and Sudan. For Nigeria, it meant the adoption of the Penal Code for Northern Nigeria (Nmehielle, 2004, p. 736).

In October 1999, only five months after Nigeria’s new constitution came into force, Zamfara State governor Ahmed Sani proclaimed Sharia Law as the controlling Islamic legal system for the state when cases occur in which Muslims are involved, existing side by side with the secular system that pertains to cases where non-Muslims are involved. Before this proclamation, Islamic law was already present in several Northern states. However, it was applied only to cases regarding civil matters, like marriage and succession. From the October 1999 proclamation onwards, criminal were are also covered by Sharia law (Nmehielle, 2004, pp. 731-732). Eleven other Northern states followed Zamfara State’s example: Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, and Yobe. To varying extents, these states’ Houses of Assembly have established State Sharia Courts where the Sharia Penal and Criminal Procedure Codes are applied, tax collection bodies, Hisbah militias for the enforcement of Sharia, and State Sharia Commissions (Comolli, 2015, pp. 20-21). Sharia courts do not have the authority to compel participation by non-Muslims, but in the past some non-Muslims voluntarily took cases to Sharia courts, because of their relatively high speed and low cost (Bureau of Democracy, Human Rights, and Labor, 2014, p. 3) (Ehrhardt, 2016, p. 85).

Proponents of Sharia law argue that the secular law system only services Nigeria’s corrupt elite, who are believed to get away with anything. The notion, especially propagated by anti-innovation movements such as Izala, of the secular state’s inability to uphold the law and to tackle (its own) corruption, resonated well among northern Muslims. Sharia law, in their opinion, addresses the grievances of and pursuit of justice for the poor, contrary to its secular counterpart (Forest J. J., 2012, p. 87). Furthermore, proponents claim that “Muslims in Nigeria truly believe that the profession of the Islamic faith (…) is inchoate if it is not accompanied by submitting totally to dictates of Allah as expressed and embodied in the Sharia legal system” (Nhmehielle, 2004, p. 738). With that, proponents mean the entire

implementation of Sharia law, to all matters imaginable. Dealing with affairs partly according to secular laws, would make one essentially a hypocrite Muslim, an accusation often directed at traditional Muslim leaders.

The issue of Sharia criminal law has been highly politicized since talks commenced prior to its reintroduction in 1999. Having sensed popular discontent with the status quo, northern governors saw an opportunity to increase popular support for their positions. Keen on acquiring this support, they portrayed themselves as ‘protectors of faith’ when they advocated and eventually incorporated Sharia law in their states’ constitutions. Thus, they may have advocated and reintroduced Sharia law mainly to gain electoral benefits from it, rather than addressing the actual religious interests of their constituencies. They promised the implementation of Sharia, but ended up disappointing the community, for the Sharia was mainly a political tool for them. This disappointment among northern Muslims is believed to be one of the factors contributing to the increased popular support for and increasingly resonating narrative of Boko Haram. The Sharia as it was implemented, was not what the majority of northern Muslims had in mind when they voted for politicians who advocated Sharia, who turned out to be rather insincere about its proper implementation (Tertsakian, 2004, p. 90; Badejogbin, 2013, p. 245; Ehrhardt, 2016, p. 84).

7.3.2 Government responses

Constitution versus Sharia law

Article 1.3 of Nigeria’s current constitution states: “If any other law is inconsistent with with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void” (Constitution of the Federal Republic of Nigeria, 1999, p. 1). Article 277.1 states: “The Sharia Court of Appeal of a State shall (…) exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic personal Law…” (Constitution of the Federal Republic of Nigeria, 1999, p. 75). Of specific interest here, is the passage that mentions the type of proceedings that are to be brought before a State’s Sharia court. The constitution explicitly only refers to civil proceedings. However, since 1999, twelve Northern states have, with varying degrees, extended the jurisdiction of Sharia courts to criminal matters as well. The constitution also prohibits the involuntary participation in Sharia courts. However, Zamfara State’s law requires all cases involving Muslims to be brought before the Sharia court. Clearly, this practice is far from compatible with the federal constitution. In response to this contradiction, the federal government

generally has remained silent (Bureau of Democracy, Human Rights, and Labor, 2014, p. 3). Right from the moment that Northern states started to extend the Sharia law system’s jurisdiction, President Obasanjo and his federal government could have contested the development, but they chose not to (Akinyoade, 2016, p. 77). Years later, the same president still avoided the issue and still had not taken a clear stance in the ongoing debate (Tertsakian, 2004, p. 96).

Terrorism-related legislation

As to counter-terrorism legislation, again little progress had been made. Until 2010, efforts to revise or create, for that matter, Nigerian (counter-)terrorism related legislation had not been a priority for the country’s legislative bodies. Although both executive and legislative leaders expressed their intentions to speed up the passage of a counter-terrorism legislative act, it was not until May 2010 before the National Assembly had conducted a final reading of the bill regarding Nigeria’s first piece of counter-terrorism legislation (Office of the Coordinator for Counterterrorism, 2011, p. 22).

The proliferation and intensification of Boko Haram attacks since Shekau took over the group’s leadership in April 2010 and external pressure exerted by the U.S. after a failed bombing attempt of a U.S. airliner approaching Detroit from Amsterdam by a Nigerian citizen in December 2009, for which al-Qaeda in the Arabian Peninsula (AQAP) claimed responsibility, have both contributed to the development of the first terrorism-related legislative act in Nigeria (Onuoha, 2014, p. 175). In May 2011, the National Assembly passed the Prevention of Terrorism Act 2011. On 3 June 2011, President Jonathan signed the bill into law. The act is based on international standards and UN guidelines. It includes, inter alia, the prohibition of acts of terrorism, it defines proscribed organizations, and it describes a variety of terrorism-related actions, such as (financial) support and obstructing investigations, which are from now on punishable (Prevention of Terrorism Act 2011, 2011). However, this first piece of Nigerian terrorism-related legislation did not clearly outline which agency would take the lead in investigating suspected acts of terrorism. Due to this ambiguity, very few Boko Haram members were convicted based on the act’s provisions: only 10 by August 2013 and 40 by February 2014 (Comolli, 2015, p. 138). However, according to former Attorney General Adoke, these efforts should nevertheless be called ‘considerable’ (Ajasa, 2014). Noteworthy, despite the small number of convictions, on 14 October 2011, Borno State senator Ali Mohammed Ndume (ruling PDP) was charged with four counts under this newly enacted legislation, for collaborating with Boko Haram (Bureau of Counterterrorism, 2012, p.

26). The 2011 Act also fell short in providing due process safeguards for human rights, it lacked severe punishments for terrorist offences, and it was limited to within Nigeria’s borders, making extra-territorial efforts hard to pursue (Badejogbin, 2013, p. 244).

The adoption of the Terrorism (Prevention) (Amendment) Act 2013 in June 2013 constituted Nigeria’s next step in its limited history of counter-terrorism legislation. Among the problems that deterred or hindered more effective law enforcement and border security by the Nigerian government were a lack of coordination and cooperation between Nigerian security agencies; a lack of biometrics collection systems and the requisite databases; corruption; misallocation of resources; the slow pace of the judicial system, including a lack of 46 timely arraignment of suspected terrorist detainees; and lack of sufficient training for prosecutors and judges to understand and carry out the Terrorism (Prevention) Act of 2011 (CRT15, p. 45-46). Its purpose was to strengthen the weaknesses of its 2011 predecessor, the country’s first counter-terrorism related legislative act. The ambiguity concerning agencies involved in terror investigations and the expediency of the overall judicial system are two examples that the 2013 amendment aimed to improve (Comolli, 2015, p. 138). Therefore, the 2013 amendment appointed the National Security Adviser (NSA) as the coordinator for all counter-terrorism intelligence activities. Besides, the attorney general was appointed as the responsible body for the law’s enforcement. Although the NSA was formally appointed to coordinate the variety of involved security agencies, the level of interagency cooperation and information sharing remained limited (Bureau of Counterterrorism, 2015, p. 43).

Law enforcement

The recently introduced terrorism-related legislative acts aimed at, among other things, strengthening Nigeria’s capabilities in terms of law enforcement. Based on the 2013 amendment, on 30 September 2014, the Federal High Court in Lagos sentenced three Boko Haram members to 25 years in prison. They were convicted on several charges: conspiracy to commit terrorist acts, possession of firearms, and Boko Haram membership. However, apart from sporadic convictions such as these, in general, the government’s prosecution of Boko Haram members is either very slow or non-existent. Some suspected Boko Haram members were held indefinitely, without knowing whether or not (and when) the legal proceedings would commence (Bureau of Democracy, Human Rights, and Labor, 2014, p. 5). A variety of factors impedes effective law enforcement in Nigeria. Firstly, resources are often misallocated. Secondly, there is a deeply rooted lack of coordination between the involved law enforcement agencies. Thirdly, there are simply not enough judges and prosecutors who

are adequately trained to deal with the newly adopted legislation (Bureau of Counterterrorism and Countering Violent Extremism, 2016, p. 45).

Overall, the government’s criminal justice institutions are not strong enough to operate effectively. All Country Reports on Terrorism between 2010 and 2015 notice that, despite UK sponsorship and assistance regarding procedures of investigating and prosecuting suspects, the institutions were still not capable enough to manage their tasks correctly. However, in May 2015, the Nigerian Administration of Criminal Justice Act came into force. This agency is intended to regulate the procedures of all terrorism-related investigations and trials (Bureau of Counterterrorism and Countering Violent Extremism, 2016, p. 44). It is yet too soon to see the fruits of this newly emerged government agency and response regarding law enforcement.