THE ISLAMIC CRIMINAL JUSTICE SYSTEM: A CASE FOR THE APPLICATION OF HUDUD OFFENCES IN NIGERIA

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THE ISLAMIC CRIMINAL JUSTICE SYSTEM: A CASE FOR THE APPLICATION OF HUDUD OFFENCES IN NIGERIA

Abstract:

Islamic Criminal Justice System i.e. the Hudud is an aspect of the Sharia which has been villified and misrepresented as archaic, inhuman, harsh, cruel and barbaric etc and above all outmoded. This aspect of the sharia has been unceremoniously ousted from the Islamic Legal System, because of ignorant and the grotesque manner of its presentation. The application of the sharia especially, the aspect of the Islamic Criminal Law, is not only absolutely necessary but is the panacea to our emerging problems which are not amendable to our present legal systems. Islamic criminal justice system can never be more relevant at any time of human history than today, crime has virtually forced our society to Its knees. It is in view of the above,the choice of this topic, is necessary so as to clear the misconceptions surrounding it and the relevance of its application. Chapter one of the thesis is the general survey on the Islamic Criminal Law. It discusses the 3 (three) types of punishments namely hadd, Qisas, and Ta’azir. Put together, Hadd, Qisas, and Ta’azir constitute the whole of the Islamic Criminal justice system which in its comprehensiveness and beauty, no other legal system can match. Hudud is the plural form of Hadd, and apply to seven crimes namely zina (adultery or fornication); Qadhf (slander or false accusation); Shurb ul-khamr (wine drinking); Sariga (theft) Riddah (Apostasy); Hirabah (Robbery or Brigandage) and Baghyy (Treason or Rebellion). The punishments by way of Hadd are of the following forms: Death by stoning or crucifixion, amputation of a hand, flogging by one hundred (100) or eighty (80) lashes. Qisas (Retaliation) is known as the law of equality. It is the punishment prescribed for murder and infliction of injury. where retaliation has not taken place the payment of Diyya (blood-money) is effected. Ta’azir (discretionary punishment) is applicable to all cases of Hadd and Qisas which have not been established beyond reasonable doubt, and to all other cases. Infact, the bulk of the Islamic Criminal Law with the exception of Hadd and Oisas fall under Ta’azir. The range of punishment under Ta’azir extends from mere warning, to fines, flogging, imprisonment, banishment and death penalty. Chapter two discusses the features of the Islamic Criminal Justice System and which noble features makes it distinct from any other legal system. The reason for this, uniqueness is its concept of equality before the law, which makes no distinction between the rich and the poor, ruler and the ruled. Also, other reasons are the strict adherence to the rules as enshrined in the Holy Qur’an and Sunnah, and faith was firmly entrenched in the minds of the Muslims. The features of Hudud offences are specifically discussed, the prescribed punishment is inflicted neither lightened nor made heavier, not subject to any amendment or alteration as result of change in time, place and situation, or anyone having the power to waive it. It is only prevented in cases of doubt. Also, discussed are factors that vitiate criminal responsibility as far as the commission of the Hudud offences are concerned. Infancy or minority, insanity, coercion, self defence etc are some of the factors responsible for the vitiation. Chapter three discusses crimes against human body. i.e. zina and Oadhf. They are the two hudud crimes for which failure to establish one will lead to the infliction of the other. Where a case of zina is not established,it will result in the commission of Qadhf. Zina is condemned by all systems as religiously sinful, morally wicked, socially evil and objectionable, where the disagreement arose,is in relation to what are considered unlawful and punishable relations. Under Islamic Law, no such distinction for the purpose of waiving the punishment. In other legal systems, only when adultery is with a married woman, that is considered the real and major crime. Even then, the situation is tackled in most cases’ by the payment of compensation. The standard of proof for zina is made so high i.e. evidence or testimony of 4 (four) witnesses so as to protect and bring about peace and tranquility in the society. It is also proved by confession or pregnancy of the woman concerned. The punishment for Zina is either Raim (stoning to death) for the married or 100 lashes plus one year in exile for the unmarried. No such or similar provisions existed in other legal systems, except in the Penal Code,where the punishment is imprisonment for 2 years with or without fine. In addition, there is Haddi lashing of 12 strokes for a Muslim who commits the crime. Qadhf, on the other hand, is an accusation that involves accusation of zina or contesting ones paternity. Before, the punishment of 80 lashes is inflicted, there are certain conditions on the part of the accuser, I slandered person and the act of Qadhf itself, which must, be satisfied. These conditions distinguishes slander in Islamic law and slander in other legal systems. The area covered by slander in Islamic Law is restrictive, compared to that, under other laws. It is also differentiated by the Punishment. Under the Sharia, apart from the 80 lashes,the offender is treated as a liar and transgressor. This is not found in other laws. Chapter four discusses crimes against the property i.e. Sariqa (theft) and Hiraba (robbery or brigandage). Thieves and armed robbers are a menace to the peaceful society and naturally looked upon with terror. It is in order to put them under guard that stricter measures are prescribed. The punishment for theft is cutting the hand, and before it is inflicted, there are conditions relating to the thief, and the stolen property which must be satisfied. There are juristic differences as to whether the property or its value is returned to the owner of such stolen property. The punishment for theft under the criminal and penal codes ranges from 2, 3, 4, 5, 7 and 14 years of imprisonment. Hiraba is a very heinous crime which involves the killing of innocent persons and work havoc with their honours and properties. This accounts for why Islam prescribed the severest and deterrent punishment for those who commit Hiraba. This is one of the crime which takes place, mostly in the absence of people who witnesses the incident. Witnesses may have to come from the victims themselves, opinions of jurists are divided as to the admissibility of evidence of such victims. There are several alternative punishments i.e. execution, crucifixion, amputation of hand and foot, and exile, depending on the form the crimes take. In Nigeria, despite the provisions contained in the two codes, i.e. Penal and Criminal Codes as regard robbery,the 1970 Robbery and Firearms. Act No.47 of 1970 was promulgated to cater for. robbery cases which are committed at an alarming rate. This Act of 1970 amended 5 times, all, in an effort to curb incidences of robbery in Nigeria. Chapter five discusses on crimes against the Islamic State. Shurbul Khamr (wine drinking) is regarded as the mother of all evils. Islam forbids wine drinking and anything that intoxicates. Wine drinking is a bad habit formation and it is because of that it is prohibited in phased and measured stages. If it is proved by the evidence of 2 witnesses or confession, 80 lashes is inflicted. In Nigeria, the contradiction lies in legalizing wine drinking and a person is only punished when, in a state of voluntary intoxication, crime is committed. The only attempt made to punish mere wine drinking is contained in the Penal Code, where the accused is a Muslim, even that the punishment is inadequate to deter offenders of this crime. Baghyy is an act of treason or rebellion against the state by a collective action of a group of Muslims. Even, where rebellion sets in, the rights and liabilities of the rebels have been spelt out to ensure their humane treatment. The punishment, for this crime, is death sentence. In Nigeria, the concept of treason is different from the position under Islamic Law. No taking over of a government outside the constitution, mutiny or rebellion and it is punished with death. But, the contradiction lies in the military take overs through coups. Riddah is regarded as one of the seven destructive crimes that may be committed by any Muslim and Is punishable by death. This will not negate the recognized principle of freedom of thought arid religion. The Qur’anic verse let there be no compulsion in the religion will not be in conflict with the tradition of the Holy Prophet Muhammad (S.A.W) which indicates that ‘whoever changes his religion kill him. The two are in agreement with each other. The verse is a pointer that no one shall be forced to accept Islam, but the moment one freely accepts it. cannot back out: of it. Where he does, the tradition will be invoked. In Nigeria, Apostasy is not a crime, and has no premise. The constitution of Nigeria has given this stance legal backing, where it is stated that there is the right to freedom of thought, conscience and religion. The case of Maitatsine in Kano, is a good example of apostasy, and punishment, could have been invoked if Sharia is applied in Nigeria. Chapter six is ttie conclusion. It summarises what has been discussed in the 5 earlier chapters. It also made some observations and then proffer some useful suggestions that will dispel the misconceptions surrounding the application of Sharia specifically the Islamic Criminal Justice System.

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