Criminal Law

The Legality Or Otherwise Of The Hisbah Police In the Northern States In Nigeria

Religion can be said what humans relate to that which they regard as holy, sacred, absolute, spiritual, divine, or worthy of especial reference. Adherents thus participate in performing devotional or contemplative practices like prayers, meditation, or rituals.

Religions vary in their expression; they are either spiritual or humanistic.

  1. Spiritual: expressed in terms of one’s relationship with or attitude towards gods and spirits
  2. Humanistic: expressed in terms of one’s relationship with or attitude towards the broader human community or natural world.

Nigeria is a multi-cultural society with over 250 ethnic groups each with its unique practices, culture, and religions; However, the advent of colonialism somewhat eroded these practices, even though they still exist they are left at the fringes.

 The two main religions in Nigeria are the Christian religion with the majority of its adherents domiciled in the Southern part of Nigeria, while the majority of the adherent of Islamic religion domiciled in the northern part of Nigeria.

The 1999 constitution of the federal republic of Nigeria, which is the grund norm and law which other laws derives validity expressly states in section 10 thus:

The government of the federation or of a state shall not adopt any religion as state religion”

This above section has brought about two schools of thought; one school a) Secular school of thought: this school of thought interprets this section to mean that Nigeria has no official religion and no religion shall define the state

b) Pluralistic school of thought this school of thought interpret this section to mean that the law recognizes all kinds of religion in Nigeria

The focus of the essay will be on the Hisbah Police, a creation of the states in Nigeria, particularly states that have adopted the sharia law (Northern Nigeria).

Firstly, an understanding of the concept of sharia is pertinent, Sharia laws are institutions ordained by Allah to guide the individuals in their relationship to God, his fellow Muslims, his fellow man, and the rest of the universe. These ordinances Allah has ordained for his worshippers so that they stay faithful and strive towards their salvation here in this life and hereafter.

Sharia laws draw their origin from two (2) distinctive sources

  1. PRIMARY SOURCES:
  2.  the quar’an; the book of knowledge and guidance
  3. the Sunnah: the deeds and words of the Prophet Muhammed (S.A.W)  
  • SECONDARY SOURCES:
  • Ijma: these are rulings that are deduced by the scholars resulting from their efforts in understanding and interpreting the text of the qur’an and Sunnah
  • Qiya: the individual opinion of popular Muslim jurists
  • Urf: customs, norms and traditions of the people which are not in contravention of the qua’an and Sunnah
  • Istihans: these are juristic references
  • Istishah: these are presumption of continuity
  • Masalih Al-mursalah: these are consideration of public interests.

Although many may contend that the constitution of Nigeria makes Nigeria a secular country by design, however, the constitution provides a lee-way for the application of sharia

The combined reading of sections 262 and 272 of the 1999 constitution respectively conferred appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law on sharia court of appeal of the federal capital territory and the sharia court of appeal of the state respectively in the following matters.

  1. Any question of Islamic personal law regarding marriages which are concluded in accordance with that law
  2. Where are the parties to the proceedings are Muslims, any question of Islamic law regarding questions of Islamic personal law regarding marriage, the validity or dissolution of that marriage
  3. Any question of Islamic personal law regarding a wakf, a gift, will or succession  where the endower, donor testator or deceased person is a Muslim
  4. Any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a Muslim or the maintenance or the guardianship of a Muslim who is physically or mentally infirm
  5. Where all the parties to the proceedings, being Muslims, have requested the court that hears the case in the first instance to determine the case in accordance with Islamic Personal law.

From the sections referred to above, it can ascertain that the recurring theme is that all the parties in the proceeding are Muslims.

Now to the crux of this article which is the Hisbah police, The word Hisbah is an Arabic word that means an act which is performed for the common good, or with the intention of seeking a reward from God. This is a concept with its origin from a set of Qur’anic verses and the Hadith. This is an obligation placed on every Muslim to call for what is good or right and prevent or denounce what is bad or wrong.

The distinctive feature of the Hisbah in Nigeria

  1. In theory the hisbah are not to be state-initiated, its membership is voluntary in nature
  2. The Hisbah in each state are unique and distinctive, no two organisations are the same
  3. Hisbah vary institutionally; states like kano and zamfara provides funding for this institutions and these institutions have foundation in state laws, the Hisbah have legally sanctioned board or commission with state-wide powers.

Functions of Hisbah  

In accordance with the dictates of the Holy Quar’an they perform the following service

  1. Social services functions like dispute resolution, marriage counselling, match-making, drug control, traffic control,
  2. Religious functions like evangelism through sermons, conversion of people to Islam, repair of Mosque, protection of people at religious functions etc
  3. Coercive disciplinary functions Like preventing the mixing of sexes on public transport system, enforcement of dress code, preventing the performance of music and films, seizing and destroying alcoholic drinks and putting pressure of deviant youth, prostitutes and the LGBT community

 In recent times, the news and social media has been replete with accounts of the Hisbah police enforcing some of them including banning and destroying alcoholic drink contrary to section 43 of the 1999 constitution which guarantees the right to own movable property without fear of compulsory acquisition, even Christians are not exempted from their enforcement which is contrary to section 38, which guarantees freedom of thought conscience and religion    

Some have argued that since the Hisbah police are a creation of the state legislation (kano and zamfara) then it has the right to enforce some of these rules.

By section 4 of the 1999 constitutions, the National assembly and the house of assembly of the state are vested with powers to make laws for peace, order and good governance in respect of matters in the exclusive list and concurrent list respectively.

It should be noted that any laws enacted by the house of assembly of the state which is inconsistent with that of a national assembly will be void to the extent of its inconsistency by virtue of section 4 (5) of the 1999 constitution.

The power to enforce laws in Nigeria is vested on the Nigerian police and the state is within the exclusive preserve of the National assembly hence the operation of the hisbah in kano and zamfara is unconstitutional and void to the extent of their inconsistency.

The media has been filled with stories of atrocities committed by the hisbah police and their blatant disregard for the fundamental human rights of citizens. Case in point, in 2003 at Nasarawa local government in Kano state, the hisbah disrupted a wedding party on the grounds that it was an immoral gathering and that music was being played and because of that beating and injuring several guests and musicians, smashing and vandalizing musical instruments and vandalizing vehicles

The hisbah police have also prohibited males and females from sitting together in vehicles and also prevented them from interacting with each other in public places.

In Niger state, the hishbah police formed a liquor board which prohibited sales of alcohol for an 80-kilometer radius, which covers about nine (9) towns within which alcohol could not be sold at all and outside these towns there were licensed areas within which alcohol could be sold after obtaining the requisite license and paying certain fees which were prohibitively high, impeding on the constitutional right of these business owners to own moveable property.

The hishbah police are notorious for carrying out extra-judicial arrests

In 2020, the kano state hishbah police board carried out the destruction of more than one million bottles of alcohol bottles worth over two hundred million naira.

In the same 2020, trucks carrying alcoholic beverages belonging to non-Muslims were destroyed and bars were raided by the hishbah.

Section 44 of the constitution of the federal republic of Nigeria 1999 as amended prevents the compulsory acquisition of property or immovable property in Nigeria, this act of the hishbah police is therefore illegal.

This contravenes the provision of section 35 of the 1999 constitution of Nigeria as amended which provides for the protection of personal liberty of citizens of and individuals in Nigeria.

In 2020, the same kano state hishbah police board shaved off Mohawk hairstyles of young men in the kano metropolis. This also contravenes the provision of the 1999 constitution of Nigeria, particularly section 34 (1) (A) which states that no person shall be subject to torture or to inhuman or degrading treatment.

Obviously, all these are infringements on the fundamental human rights of citizens, to the uninitiated, fundamental rights have been defined by the court to be derived from the fundamental law such as the constitution and are therefore important or significant rights the encroachment of which are rigorously tested by the court to ascertain the soundness or justification.

REFERENCES:

SECTIONS

Section 34(1) (A) of the 1999 constitution of the federal republic of Nigeria as amended

Section 35 of the 1999 constitution of the federal republic of Nigeria as amended

Section 38 of the 1999 constitution of the federal republic of Nigeria as amended

Section 44 of the 1999 constitution of the federal republic of Nigeria as amended.

CASES

Elrufai v Senate of the National Assembly (2016) I NWLR (pt 1494)

LITERATURE  

An overview of the jurisdiction of sharia court by Hon. Justice Abdullateef Kamaldeen htttp://nji.gov.ng 

Daniel E. Agbiboa: sharia and the Nigerian constitution: strange bedfellows? htttp://www.constitutionnet.org/news/sharia and Nigeria constitution strange bedfellows

Political sharia? Human rights and Islamic law in northern Nigeria: VIII the enforcement of sharia and the role of Hishbah http://www.hrw.ord?reports/2004/Nigeria0904/8 htms

Sharia implementation in Northern Nigeria over 15 years, policy brief no.2 the case of Hishbah www.nsrp-Nigeria.org

www.wikipedia.com/sharia in Nigeria

Yusuf Ali (SAN): The legal status of politics of sharia in Nigeria https://yusuf ali.net

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About Joshua Owie

My name is Joshua Owie, I am an associate with Legal Assent, a full-service law firm based in Abuja, I hold a master's degree in investment law and policy from Nasarawa state university, keffi Nasarawa State, I hold a bachelor's degree from Igbinedion University Okada 2015 and I was called to the Nigerian Bar in 2017 . I have worked across all spheres of the legal practise, from litigation to commercial and property law.