The introduction of Islamic Penal Codes by a few states in the north is one of the many controversies confronting the present dispensation and threatening our fledgling democracy. Since its inception, Sharia (as it is widely known) has been criticized as being unconstitutional. The political stage has witnessed varying passionate arguments for and against its continued existence in a multi - cultural and diverse entity like ours. The inability of our leaders to tactfully resolve this issue has led to many violent clashes between muslims and followers of other religions (mostly christians). Thousands of lives have been lost as a result and property worth millions destroyed. Against this back drop, many have continued to ask the same questions (one whose answers have eluded many Nigerians) which is whether there is any legal or constitutional basis for the Sharia to exist in the first place. Or whether the House of Assembly of a state has the legislative competence to make such a law? And if the answer to the latter is no, then what would become of a law so passed?

As cited above, so much has been debated on the justification of the recent institutionalization of the controversial Islamic Legal code. On the one hand, proponents of Sharia (such as Governor Yerima ofZamfara, the first state to pass the Code) claim that the 1999 Constitution of the Federal Republic of Nigeria ( hereinafter referred to as "the constitution" ) provides the legal foundation for its introduction. They further aver that that should be the meaning to be inferred from the provisions of Sections 38 (1) & 275 (1) regarding the right and freedom to manifest and propagate one's religious belief, teaching, practice, and observance. It is also claimed that the same provisions grant any state of the Federation exclusive discretion in establishing a Sharia Court of Appeal. However, their opponents have vehemently posited to the contrary though with little recourse to the constitution, the grund norm of our legal system.

The failure of past discussants in finding answers to these questions is likely to be a deliberate attempt to further confuse an already difficult issue rather than the result of innocent ranting of a bunch of ignoramuses. For instance, while some proponents of the Sharia refer to the constitution in justifying their position, they are quick in rejecting the same constitution where the meanings of certain sections in the constitution run contrary to the provisions supporting their arguments. Whereas, it is the sections being rejected, when read together with the other sections, that readily dispel the false inference a layman would necessarily draw from the relevant sections of the constitution. No doubt, such proponents are merely engaged in a face - saving attempt, using half - truths to preserve and protect their selfish interests.

The reasoning and argument of those against the Sharia neither provide any significant answer to the question as they are often involved in what legal logicians call inductive reasoning -- an argument whose premises build up from the specific to a generic conclusion. Such arguments are not deductively valid; nevertheless, it is improbable that their conclusions are false. You could call them arguments based on selective reasoning which may be true but illogical.

The present writer begs to keep a safe distance from both sides of the debate by steering a middle course in order to make up for the inherent prejudices and deficiencies of the other two.

Section 1 (1) of the Constitution declares the supremacy of the 1999 Federal Constitution, stating, in no equivocal terms, that its supremacy is over and above all persons and authorities. In subsection (3) of the same section, the Constitution emphasizes the effect of any law found to be inconsistent with the provisions of the Constitution: " ... that other law shall, to the extent of the inconsistency, be void. "Therefore, the joint effect of the above provisions is to render void and of no legal effect any law that contradicts the spirit and intent of the Constitution.It is important at this point to know at what stage a law could be declared null and void.

A law can be ultra vires (literally, beyond the law) and also a nullity both in content andprocedure of its passage. In the case of the former, it is called substantive ultra vires while in the latter case, it is procedural ultra vires.As a result, any bill being deliberated by the National Assembly or by the House of Assembly of a state could be challenged in the court of law and declared void by the court if the procedure stipulated for the successful passage of that bill is ignored. The court could also take such actions even after the bill is being passed into law and the court is satisfied that the procedure of its passage is not in accordance with the law. In the same vain, a bill already passed into law may be impugned based on its content, in which case the court, after finding that such a law is in pari materiawith relevant provisions of the Constitution or other enabling enactment, declares it null and void. It therefore behoves the legislative arm, which under a democratic milieu is responsible for making laws, to discharge that function with the utmost diligence and care without any recourse to tribal,ethnic,or religious sentiments.

On the question of the constitutionality of the Sharia, it should be pointed out that Sharia is given some recognition in the Constitution.S. 6 which defines judicial powers also establishes Sharia Courts of Appeal among other courts of the federation. By this provision, it bares mention that there cannot be a Sharia Court of Appeal ( an appellate court ) without Sharia courts at the state level from which appeals might rise to the former. Following this logic therefore, it could be said that the Constitution,by creating the Sharia Court of Appeal,has,though not explicitly, reserved a discretion for states to create their own Sharia courts since the appellate court lacks original jurisdiction to hear most of the cases to be brought before it, and also because the cases are of such a nature that they are so unique and cannot be entertained in a regular court. Thus on the face, the Constitution upholds the application of the Islamic Legal Code but to what extent is left to be seen.

S. 6(5)(f) & (g) replicated in SS. 260, 275, 262, 277 outline, in clear and unambiguous terms, the jurisdiction of the Sharia Court of Appeal which by implication and by the same reasoning as the one used above, applies to all state Sharia courts.

A close study of S.277(2) (a) - (e)would also reveal that Sharia courts shall be competent to decide only questions of islamic personal law which cases were extensively enumerated in paragraphs (a)through (e) to include,among other things,marriage,guardianship of infants and of other persons of unsound mind,foundling,wakf,gift,will,and succession.However, S.277 (2) (e) requires that for the provision to apply, the parties must be muslims who must have requested the court at first instance to determine their case in accordance with islamic personal law. The inference to be drawn from this is that the ultimate question of jurisdiction and application rests with the parties who must first determine whether or not they intend their trial to be by Sharia.Interestingly, nothing in the above section or the accompanying subsections suggests that members of other faiths are mandated to appear before a Sharia court (the only exception is when such a party,in spite of his religious difference,opts to be tried under the Sharia), neither is a muslim so obligated if he or she indicates in the contrary.

Further more, the constitution provides for the creation of a Customary Court of Appeal for any state that so desires (the definition of states here also includes the Federal Capital Territory ). The effect of this is to equate Sharia Courts of Appeal with Customary Courts of Appeal.Since the jurisdiction of the Sharia Court of Appeal is limited to islamic personal law -- religious and moral laws which guide the social relations of muslims,it becomes clear that Sharia courts are to muslims what Customary courts are to non-muslims,adjudicating only in civil matters in so far as they involve the social and customary aspects of the live of disputing parties.

It is contestable therefore for any state, through its house of Assembly,to ascribe criminal jurisdiction to its Sharia courts. This is a clear act of affront on the Federal Constitution and can not even be justified by the opening words of S.277(1):" The Sharia Court of Appeal ofa state shall,in addition to such other jurisdiction as may be conferred upon it by the law of the state ... exercise such appellate and supervisory jurisdiction in civil procedures ... " ( italics added ). It is submitted that it is a false notion that the constitution empowers the states to expand the jurisdiction of Sharia courts ( beyond civil matters ) to include criminal matters; it also bares mention that the other jurisdiction to be so conferredmust be such that could be exercised in proceedings regarding islamic personal law ( which the court is competent to apply in the first place in accordance with subsection (2) of S.277. Evidently, subsection (1) does not extend the jurisdiction of the Sharia courts beyond the limits of subsection (2). The wording of S.277 is so clear and unequivocal and should be given a literal interpretation. An important rule of constitutional interpretation is that where-ever particular words are accompanied by general words, the general words(in this case ... " in addition to ... ") must be limited to the same kind as the particular (or enumerated ) words. The latin maxim for that is ejusdem jeneris (of the same kind or nature).Thus when the constitution says: " ... in addition to such other jurisdiction," it refers to the particular, original jurisdiction conferred on the Sharia courts in matters enumerated in subsection (2). Since all the enumerated cases are civil in nature, by implication Sharia courts are exempt from criminal proceedings and incompetent to hear any criminal suit.

The legality of Sharia courts to participate in criminal proceedings could also be evaluated from the stand-point of federalism. Federalism is a system that upholds and recognizes the legislative supremacy of both the National Assembly and the Houses of Assembly of the respective states, ensuring the smooth running of the various governments in the polity and also to eliminate conflicts that may arise between federal and state legislation. The latter is achieved through the provision of two legislative lists known under the constitution as the exclusive and concurrent legislative lists. The position of the constitution on a law that may be the subject of conflict between the two legislative bodies is very clear.S.4(5) provides:" If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly,the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void. "Such a law therefore, will have the same effect as one made contrary to S.4 (7) (c), that is to say matters with respect to which a House of Assembly is not empowered to legislate in accordance with the provisions of the constitution.

Additionally, under a federal system, legislative practice is guided by the doctrine of covering the field.Under this doctrine, where the federal legislature makes a law whose wording is so wide as to be construed as covering an entire subject, it should be understood that the legislative body intends to " cover the whole field, " that is extending to all matters incidental and supplemental to the subject in question, and this precludes any state House of Assembly from legislating on the same subject. It is thus important to note that where this is breached, S.4(5) will apply, rendering such a law void. However, if the law by a state House of Assembly is merely repeating the provision of a law passed by the National Assembly, the former shall be suspended and ceases to be of any legal effect as both laws can not operate concurrently.

In the states that the Sharia Code is being upheld today, there appears to be an obvious conflict between the Penal Code and the Sharia Penal code.Since the Sharia Code acknowledges the free will of non-muslim parties to resent the application of Sharia in the course of their trial, it goes without saying that the Penal Code, which had been in operation long before the Sharia, is still in force today. As a result, there are two separate sets of laws for the residents of those states. While it is applauded that non-muslims can exercise their free will in this regard, it would be better appreciated if the same right is extended to muslims who, by virtue of their religious affiliation,are compelled to be tried by the Sharia courts. This obvious discrimination runs contrary to both the intent and spirit of the constitution and one of the tenets of federalism -- equality before the law.

Many have argued that S.38 (1) which provides for freedom of thought, conscience, and religion clearly justifies the enactment of the Sharia penal code. According to those supporting this argument, since the constitution gives some latitude for an individual to freely practice his religion, it is right for the same individual to elect to be guided by the Sharia because true islamic virtues can only be attained through the Sharia. This reasoning has led them to criticize S.10 (of the constitution) which they say contradicts S.38 (1). The present writer humbly disagrees with this view.

Section (10) which prohibits state religion is designed to prevent the imposition of one religion or religious belief on the adherents of other religions; a breach of this section would necessarily deny the spirit and intent of S.38 (1). Additionally, S.38 (1) seeks to promote freedom of worship, and this includes the freedom to change one's religion or belief, either alone or in community with others. This is the true meaning of S.38 (1) and no contradiction should be read into S.10.

In the light of the above, it is clear that the Islamic legal code is not in line with the 1999 Constitution of the Federal Republic of Nigeria, and the Attorney General of the Federation should,in all fairness, take the necessary steps to challenge it in the Supreme Court.