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A CRITICAL ANALYSIS OF HUMAN RIGHTS IN NIGERIA’S ISLAMIC SHARIA PRAXIS_ IMPLICATIONS FOR THE NATION’S CONSTITUTIONAL DEMOCRACY (1999 – 2011).

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CHAPTER ONE

INTRODUCTION

1.1 Background to the Study

The question of the compatibility, or otherwise, of Islam with human rights has been in recent years the focus of attention of numerous scholars who have produced varying responses and advanced conflicting and competing views. Ezzat (2005:n.p) holds that “sharia law is not only compatible with human rights but also the most effective way to achieve human rights”. However, according to Fadl (2010:114), “of all the moral challenges confronting Islam in modern age, the problem of human rights is the most formidable”. Lupp (2004:n.p) also observes that “Islamic fundamentalism in its various modern forms poses a challenge to international human rights norms”. However, this is not to hold that Islam alone is the only religion that harbours the seed capable of causing or inducing behaviour that disregards or violates the rights of human beings. Surely, instances abound of where some Christian practices, for instance, are in conflict with some human rights concerns, discussion of which is nevertheless beyond the scope of this research.

Be that as it may, although Ezzat (2005:n.p) argues that “human rights violations in Muslim countries are not due to sharia law but are mainly exercised by the state and dates back to the post-colonial era”, relatively recent happenings around the world to which Islam is connected seem to fuel the hotly debated issue of whether or not Islam is amenable to human rights idea. Fadl (2010:114) adumbrates some of these happenings. The death sentence issued against Salman Rushdie for the publication of the Satanic Verses; the stoning and imprisoning of rape victims in Pakistan; the public flogging, stoning and decapitation of criminal offenders in Sudan, Iran, and Saudi Arabia; the degradation of women by the Taliban; and the destruction of the Buddha statues in Afghanistan are some of the recent Islamic practices that have struck the world as offensive and even shocking. Other similar events include the sexual violation of domestic workers in Saudi Arabia; the excommunication of writers in Egypt; the killing of civilians in suicide attacks; the shooting in 1987 of over four hundred pilgrims in Mecca by Saudi Police; the senseless taking of hostages in Iran and Lebanon; the burning to death in 2002 of tens of school girls in  Mecca because they were not allowed to escape their burning school while not properly veiled; the demeaning treatment that women receive in many an Islamic enclave, and above all the tragedy of “9/11” among many other events. Added to this is the recent bomb-killing of fifty-eight Christians by Muslims in Iraq (Cable Network News, 2010, 3/11/10). One cannot also afford to skip the spiral upheavals and revolts spreading around the Muslim Arab world today as a result of sundry human rights violations and anti-democratic policies of especially sit-tight and repressive regimes. This situation certainly plays out in Tunisia, Egypt, Libya, Yemen, Bahrain, Syria, Jordan, Saudi Arabia, Algeria, Djibouti, and so on. Hence, it does not seem that Islam-motivated forms of terrorism are on the wane in spite of the demise of the al-Qaeda leader, Osama Bin Laden. All these seem to constitute a long Muslim saga of ugliness in the modern world’s sensibility on human rights, which idea and discourses have not only been globalized but also have become a significant issue for international relations (Fadl, 2010:116).

In Nigeria, the eve and the dawn of the new millennium have witnessed an unprecedented resurgence of Islam especially in the application of Sharia. Several states in the North have enacted an adapted version of the Sharia Criminal Code, which is a set of legal provisions based on the principles and morals of Islamic religion. The Sharia Penal Code, as adopted and applied in Nigeria is the subject of recent controversy among scholars and diverse groups who, among other opinions see the implementation as antithetical to the respect for some fundamental human rights. Although Sharia criminal law provisions safeguard some internationally and nationally protected rights in certain circumstances, such as Muslims’ freedom of religion, Zarifis (2002:n.p) still observes that “the implementation of sharia law violates other fundamental rights such as the right of minorities to practise the religion of their choices, the right to life, and the right to be free from cruel, inhuman or degrading treatment or punishment, which attitudes in turn, violate Nigeria’s international human rights obligations”. The victims especially the minorities have sometimes reacted to infringement on their right to religious freedom with violence, which incident had occasioned inter-religious conflicts that have claimed thousands of lives and property worth huge amount of money since the adoption of sharia in 1999. Besides, the recent post-election violence in Northern Nigeria, which claimed the lives and property of many, among other human rights assaults, are not unconnected with religious sensibilities. This state of affairs is in concert with the recent and constant incidents of bombings taking place almost always in the northern parts of the country, with the resulting destruction of lives and property. Recently too, Nigeria was branded one of the fourteen terrorist countries alongside Somalia, Afghanistan and so on, when in December 2009 the Nigerian born teenager, Umar Farook Abdulmuttalab, was picked by al-Qaeda to blow the American Airline en route to Detroit though he was stopped aboard the Airline in Holland. It had to take a lot of pleas, lobbies, supplications and diplomatic strategies by the Yar’Adua-Jonathan government for the American deed to be undone only recently. All these have always been connected to Islamic attitude to Human rights.

The adoption by Zamfara State and later by some other eleven northern states (Jigawa, Kaduna, Kano, Katsina, Sokoto, Kebbi, Niger, Bauchi, Bornu, Yobe, and Gombe) expectedly elicited many reactions. Human rights scholars, lawyers, jurists, political analysts, moral theologians, right-based non-governmental organizations and also religious scientists demonstrate intense interest on the implications of the adoption for the nation’s constitutional democracy and its tenets. Certainly, some national and international dust has been raised.

Richardson (2010:n.p) observes that in 2001 Safiyatu Huseini, a 35-year old woman from the northern Nigerian State of Sokoto became the subject of international media attention and scholarly debate when sentenced to death in a Sharia criminal court as punishment for adultery. This is not an isolated case, for immediately on the heels of Safiyatu case, Amina Lawal was in 2002 charged and convicted for the same offence of adultery. She was sentenced to death by stoning (Babaji and Dankofa, 2003: 118 -121). Ever since, many other convictions have been made and punishments such as amputation, haddi-lashings and so on inflicted on the convicts. The bottom line of the discussions on the determination of these cases no doubt touches on the question of human rights.

Too in Nigeria, attitudes towards the introduction of the sharia regime vary. Sometimes, the variation exists along Muslim – non-Muslim divides. Yadudu (2003:1) notes that “no single issue has galvanized the Muslims of Nigeria into a cohesive and vocal force as the Sharia and no other issue has evoked the hostility of, compounded and left bewildered, non-Muslims in the country”. Many Muslim scholars view sharia as the God-sent panacea to the mosaic of socio-economic and ethical problems of Nigerians including the poor human rights record (Ladan, 2003; Abdelsalam, 2003; Uthman, 2003). Further, sharia is seen as a positive social force that could contribute to greater stability (Richardson, 2010: n.p.).  Accordingly, it is often shown that sharia and Islam promote and protect individual rights based on the dictates of divine revelation to and the traditions of Prophet Muhammad. However, other scholars especially non-Muslims understand sharia as prone to infringing and actually does infringe on the socio-economic and political rights of non -Muslims (Odey, 2000; Okike, 2000). This understanding has frequently labeled the sharia justice system a form of militant religious extremism which is often discriminatory (Kirwin, 2009). Further, this approach stresses the divisive potential of sharia law and characterizes its implication as a step on the path to religious and social conflict on par with that existing in states such as Sudan and Chechnya (Kirwin, 2009). It is in accordance with this notion that Marshall (2002) refers to the adoption of sharia as “Talibanization” of Nigeria. Yet some other observers have characterized sharia as a political vertical created and supported by elites seeking short-term political benefits (Last, 2000; Miles, 2003; Paden 2005; Loimeier 2007). No wonder such phrases like “political sharia”, “politicization of sharia” and so on continue to make newspaper headlines.

While the above outlines constitute the background to this study, our concentration is on how the practice of sharia in all its aspects touches on human rights, whether of Muslims or non-Muslims, which matter is a basic feature of constitutional democracy in Nigeria today.

 

1.2 Statement of Problem

Nigeria is a federation consisting of the Federal Capital Territory, Abuja and 36 multi-religious states. It harbours the Muslims, the Christians, and adherents of traditional religions. Byang (1988:23) notes that “some Muslim apologists argue that Muslims are in the overwhelming majority in Nigeria”. This is arguable; yet population is hardly an issue when considering questions of human rights. Even if Muslims are well in the majority, it seems that the importance of the respect for individual rights and freedoms will vitiate any attempt to adopt a particular religion’s legal system in the whole or any part of Nigeria. It goes without saying that it is to avoid this anomaly that Nigerian constitution adopts a secular federalism for maintaining peaceful co-existence, discouraging religious conflicts, and encouraging religious tolerance.

In the light of the above scenario, this research concerns itself with investigating the possibility or otherwise of advancing the course of Nigerian democracy in general and protecting fundamental rights of citizens in particular in the face of full application of sharia. In other words, the research seeks to study the human rights implications of adopting a wide scale Sharia justice regime in a multi-religious and pluralistic state and juxtapose the fruits of the study with the basic features of constitutional democracy in Nigeria. Pursuant to this, the researcher inquires how the practice of Islamic religion with its sharia can go hand in hand with the observance of the fundamental right guarantees in the Nigerian constitution. In other words, the study examines the possibility of the compatibility of the application of Islamic law with the basic tenets of democracy especially as it relates to human right issues. The thesis examines the effects of sharia on non-Muslims given that sharia is a particular religion’s legal framework. It also considers the meaning or the consequence of the secularity posture of the nation in relation to religious and other freedoms. This research equally probes into whether the application of Islamic law as in Zamfara and other eleven northern states can promote the social roles religion is expected to play in a multi-religious Nigerian society today. Again, this work searches into how sharia law with its stringent and harsh penal practices can go together with constitutional and democratic stipulations. It further questions the propriety of using religious texts as blue prints for the structure of modern societies. Indeed, this project seeks the possibility of separating religion and the state among Islamists. It equally investigates the possibility of reforms and progressive re-interpretation of the sharia law to suit the demands of modern society given the fact that the sources of these laws originated from within a given religio-cultural circumstance and particular social milieu. Finally, this study considers which of sharia law and the constitution can take the pride of place in the entire nation’s political and socio-economic arrangement and enhancement of the common good regarding its pluralistic nature. These and other related issues constitute the problem, and thus will be the researcher’s guide in the development of this thesis.

 

1.3 Objectives of Study

The broad objective of this study is to critically examine the human rights implications of recent sharia practice and enforcement in relation to the tenets of constitutional democracy in Nigeria. In line with this purpose, the specific objectives of the study are:

  1. To study the nature and sources of sharia and seek to evaluate their provisions on human rights.
  2. To demonstrate how sharia is practically enforced in Nigeria before and after the adoption of Islamic criminal law in 1999, and highlight its relevance to human rights.
  3. To explore the possibility of implementing sharia without infringing on the rights of individuals and corporate bodies in Nigeria.
  4. To examine the nature and functions of religion and its laws in a human society generally and Nigerian society in particular.
  5. To study the debate on the secularity of Nigeria and draw a response vis-à-vis the sharia and human rights questions.
  6. To examine the consequences of Sharia enforcement on the rights of Muslim women and children in Nigeria today.
  7. To juxtapose the notion of an Islamic state with the idea and practice of a modern constitutional democracy with a perspective on Nigeria.
  8. To investigate the human rights practices of other Muslim nations and contrast them with the situation in Nigerian Islamic practice.
  9. To make useful suggestions that may remedy the observed anomaly.

 

            1.4 Significance of Study

Islam and its practice of sharia in Nigeria surely constitute an important index in any consideration of the nation’s democracy today. It is therefore envisaged that the study will have both theoretical and practical relevance to the building and development of Nigerian democracy generally. The study will also be significant as it educates and provides relevant information to the general public and policy / law makers in particular on the adequate role of religion in a society. The work will equally contribute significantly to raising the poor human rights record in Nigeria today and in turn constitute an added fillip to the global efforts in enhancing human dignity and worth. This project may also form a serious challenge to religious fundamentalism in Nigeria and hence useful in stemming the tide of religious conflicts that are becoming prevalent especially in the northern parts of Nigeria today. Again this work is an addition to the relatively scarce scientific sources and documentation of how religion can contribute to or thwart efforts in Nigerian nation building.  Finally, if the suggestions and recommendations are adhered to, the work shall have played a serious role in the promotion of national peace, harmony and co-existence.

 

1.5  Scope of Study

This study is limited to human rights implications in Nigerian Islamic practice vis-à-vis the provisions of the Constitution of the Federal Republic of Nigeria 1999. It does not set out to deal with all issues relating to Islamic law generally. This work is also limited basically to roles of religion in human society and in particular in Nigeria. Thus, our study is not necessarily legal even in the face of the difficulty to separate law and religion in Islam. The scope of this study is equally limited to the period between 1999 and today which arguably can be described as the golden age of Islam in Nigeria in modern times. This does not preclude the possibility of making references to the entire historical moments of Islam in Nigeria or elsewhere when the need arises. Even as the study of our subject-matter, namely, human right question, is triggered off by the adoption of Islamic criminal law, considerations on the subject will also extend to such other areas of sharia civil and personal jurisprudence as they affect human rights within the specified period under study.

 

 

1.6 Methodology of Study

This study is a qualitative research. It is an attempt to critically and constructively review the Islamic sharia practice and its effect on the human rights of the individual Nigerian citizens in the relevant enclaves within the specified time frame. It is not deliberately an attack or otherwise speak ill of Islamic faith. This thesis is based on the rigours of logic and argumentation. The work seeks to be as objectively and scientifically critical as possible in its analysis of the Islamic legal regime and its implication on human development and national integration. To that extent, the work is descriptive and analytical.

Methodologically, the study employs a number of scientific approaches. First and foremost, the researcher uses the analytic technique. On the heels of this, the study employs the social science approach of structural-functional analysis and evaluation of the data collated in view of achieving national integration and cohesion. Furthermore, since there is a considerable wealth of literature on issues on human rights especially in relation with Islam, some of which views are based on the Koran and other sources of Islamic law and practice, a lot of interpretation is needed. Hence, the hermeneutical approach would be employed. This would be an invaluable tool in this research in which some aspects of the Koran, sharia penal codes, enormous literature especially ones written by Islamic scholars, and also the 1999 Constitution would be deeply studied and interpreted. More, a little bit of comparative analysis would be used in comparing and contrasting the practice in Nigeria with what obtains in other societies in relation to the subject matter of our discourse.

The resource and database of this study are limited to the relevant literature that includes monographs, articles, Internet sources, reports, relevant scriptures, statutes and textbooks. The researcher has the privilege of the advantage of a considerable training in civil law and in philosophy that may enable him manage his data and information and put them in their proper perspectives. The nature and extent of both the primary and secondary sources are fully indicated in the references and bibliography. It is hopeful that the work would be enriched if the above methodological approaches are fully utilized in the collation and analysis of data.

 

1.7  Theoretical Framework

The study employs the social science approach of structural-functionalism as the underlying theoretical framework in view of achieving Nigerian national integration and cohesion. Structural-functional approach emphasizes order, equilibrium, and interdependence. According to Strasser (1981: 133),

Structural-functionalism …attempts to place the focus of determinacy in the attributes of collectivities. Not only is the focus of determinacy placed in attributes of collective entities rather individuals, but a functional explanation also implies the assumption that systems of relations between human actors, in their own right, are capable of exercising a determining influence upon their behaviour. It is this form of holism derived from physiology that became central to the structural-functional approach.

 

This framework was particularly handy to the works of Spencer, Durkheim, Malinowski, Radcliffe-Brown, Parsons, Weber, Pareto, and so on (Strasser, 1981: 130 & 133). Sociological functionalism is an organismic theory. According to Lidz (1981: 212), structural-functionalism “has arisen largely as an effort to work out fruitful analogues of theories of homeostasis developed in biology”. It is a landmark attempt to embody the biological analogy in technical but non-reductive concepts of the objects of social scientific study….” This research employs this technique in seeking for ways of still maintaining the organic unity of the different parts of the Nigerian constitutional democracy in spite of the differences in religion and belief systems. Hence, by way of this approach, the effect of the Islamic sharia practice and human right perception would be evaluated in the light of the social functions of religion in Nigerian democratic society that is based on the 1999 Constitution. This is all the more germane as the researcher’s field of study is religion and society.

 

1.8   Definition of Key Terms

Rights

There is considerable disagreement about what is meant precisely by the term ‘rights’. It has been used by different groups and thinkers for different purposes, with different and sometimes opposing definitions. Hence the precise definition of the concept, beyond having something to do with normative rules of some sort or another, is controversial. Be that as it may, the Modern English word ‘right’ derives from Old English ‘riht’ or ‘reht’, and in turn from Proto-Germanic ‘rixtaz’ meaning ‘right’ or ‘direct’, and ultimately from Proto-Indo-European ‘reg’-to’ meaning ‘having moved in a straight line’. Many other words related to normative or, regulatory concepts derive from this same root including ‘correct’, ‘regulate’, and ‘rex’ (king) ruler, ‘rule’, ‘regal’, ‘royal’, ‘erect’ (as in upright), ‘rectangle’ (literally ‘right angle’), are therefore normative rules that direct what is allowed of or owed to the beneficiary, to some legal system, social connection, or ethical theory. (Wikipedia,The Free Encyclopedia,2009). The concept of right is often fundamental to civilized societies, and it is of vital importance in such disciplines as law, religion and ethics especially theories of justice and deontology.

However, in this work, ‘rights’ refers to the legal, social or ethical principles of freedom or entitlement. Even though ‘rights’ does not exclusively pertain to human beings for arguably, there can be animal rights, state rights, corporate rights and so on, the concept of right in this study is limited to human rights.

 

Human Rights

Craston (1967:52) defines human right as “something of which no one may be deprived without a great affront to justice”. For Dorwick (1979:8-9) human rights are “those claims made by men, for themselves or on behalf of other men, supported by some theory which concentrates on the humanity of man, on man as a human being, a member of human kind….”. Hence, human rights are “rights and freedom to which all humans are entitled merely by reason of being human” (Wikipedia, The Free Encyclopedia, 2009).

Although there is no unanimity on what precisely constitute human rights, this work sees them as those right guarantees in the Constitution of the Federal Republic of Nigeria 1999 and in other human rights instruments which Nigeria is obliged to observe by virtue of its constitutional provisions. Such rights would include those provided in the African Charter on Human and People’s Rights 1981 and the Universal Declaration of Human Rights 1948. These include the civil, political, economic, cultural and social rights of individuals and persons.

 

 Islam

Shorter Encyclopedia of Islam (1953:13) describes ‘Islam’ as a technical term used to denote “the system of beliefs and rituals based on the Koran”. Wikipedia, The Free Encyclopedia (2009) refers to Islam as a belief system extending beyond that based on the Koran to other sources. Hence, Islam is described as “a religion articulated by the Quran …and by the Islamic Prophet Muhammad’s demonstrations and real life examples…” (Wikipedia, The Free Encyclopedia, 2009: http://en-wikipedia.org/wiki/women_and_Islam). As an Arabic term, “Islam” derives from the recurrent use of the verb “aslama” meaning ‘to submit oneself’ (Shorter Encyclopedia of Islam, 1953:13). The term is equally seen as a “homograph having multiple meanings, and a triliteral of the word “salaam” which directly translates ‘peace’ (Wikipedia, The Free Encyclopedia, 2009:n.p.). When the two root words are put together, the word Islam gives the meaning peace acquired by submission to the will of God.

In this paper however, Islam is seen as one of the three main religions in Nigeria which adherents are predominant in the North. Its teachings are founded on the Koran, life of Muhammad and some other sources. An adherent of Islam is called a ‘Muslim’, which is the active participle of the same verb of which ‘Islam’ is the infinitive.

 

Sharia

Ubaka (2000:11) notes that “sharia is Arabic word that literally means a drinking place or a path leading to a watering hole”. It is interchangeably used with the phrase “Islamic law”. For Nzomiwu (1989:117) ‘sharia’ or ‘shariah’ connotes “the clear path to be followed and which is technically referred to as the canon law of Islam”. Farlex (2009:n.p) describes sharia as a “code of law derived from the Koran and from the teachings and examples of Mohammed”.  Johnson (2009:n.p) expands the meaning of sharia to a rule “inspired not only by Islam and Koran but also by Arabic traditions and early Islamic scholars”. No wonder sharia is often regarded as the “totality of Allah’s commandments as revealed in the Quran and elaborated in the Hadith and Sunna and interpreted by Ijma” (Nzomiwu 1989:117). For Aliyu (2007:142), “sharia jurisprudentially means a clear and straight path designed by Allah the creator of man to walk on”. Several studies show that Muslims claim that Sharia governs the entirety of a man’s life from cradle to the grave (Nzomiwu, 1989:117; Aliyu, 2001:3-4; Ozigbo, 1988:48).

Be that as it may, in this paper, Sharia is understood as constituting those rules of conduct derived from different sources of Islamic religion and codified into a body of law by relevant legislatures with the intention of getting them enforced through state machinery. It is equally understood as that body of Islamic law as interpreted by the Maliki School of Islamic jurisprudence which is the only acceptable version in Nigerian Islam.

Adoption of Sharia Criminal Justice

The idea of adoption of Sharia criminal justice would be better understood in the light of the constitutional guarantee of the extent of enforcement of Sharia law in Nigeria. Presently, the Constitution of the Federal Republic of Nigeria 1999 limits the jurisdiction of Sharia Courts of Appeal to “questions of Islamic personal law” (ss 262 & 277). Personal law pertains to issues of marriage, family relationship, guardianship of infants, gifts, will, succession and intestate (C.F.R.N., 1999, s. 277, para. a – d). The implication is that the entirety of Sharia criminal justice lies outside the jurisdictional scope of the Sharia Courts of Appeal.

In this paper therefore, ‘adoption of Sharia criminal justice’ means those attempts by Muslims in Nigeria to widen the scope of application of Islamic law to include the whole of criminal justice system. This is the situation in those northern states that are today dubbed ‘Sharia States’.

 

Religion

Okwueze (2004:1-2) perceives religion as a social fact. He defines it as “a regulated pattern of life of a people in which experiences, beliefs and knowledge are reflected in man’s conception of himself and in relation to others, his social world, the physical as well as the metaphysical world”.

In this paper, religion is understood as not only a worshipful vertical relationship with the divine but also its horizontal implication of co-operating with the members of the society among whom one finds himself. This is probably why Adibe (2008:116) notes that “religious social life must be within the confines of the higher law of the land where it is established; otherwise it would be antisocial to the setting of the generality of the community which is often pluralistic”. It seems that in Nigeria, such a higher law of the land would not be anything different from the constitution.

Society

Eliot (1969:300) defines society as “a group of human beings co-operating in the pursuit of several of their major interests”. However, just as Okwueze (2004:4) notes that society is “no longer limited to a group of people who are related or who belong to the same profession but now extends to those who live together within a geographical location”, the society which this paper refers to is the Nigerian society unless the context states otherwise.

 

Nigeria

Nigeria is a country that is situated on the West Coast of Africa, on the shores of the Gulf of Guinea. Burns (1969:16) notes that “Nigeria emerged as a single political unit on January 1, 1914 when the former Colony and Protectorate of Southern Nigeria was amalgamated with the Protectorate of Northern Nigeria to form the Colony and Protectorate of Nigeria”. Nigeria attained independence on October 1, 1960 and became a Republic on October 1, 1963. Now, Nigeria is made up of 36 states and an independent capital territory called Abuja. Perhaps for political reasons, Nigeria is divided into 6 geo-political zones three of which are in the North and the remaining three in the South. Ekwunife (1992:17) discovers that Nigeria houses “more than 250 ethnic nationalities with different cultural and religious orientations”. However, there are three main religions in Nigeria: Islam, Christianity and Traditional religions. While Islam predominates the Northern Nigeria, Christianity is prevalent in the South. As a single entity, Nigeria has enormous human and natural recourses, and is the most populated black nation.

For the purpose of this paper, the terms ‘Northern Nigeria’ and ‘Southern Nigeria’ are respectively in tandem with the areas covered by the old Protectorate of Northern Nigeria and Protectorates of Southern Nigeria.

 

Democracy

The Oxford Pocket Dictionary of Current English (2009:n.p) defines democracy as “a system of government by the whole population or all eligible members of a state, typically through elected representatives”. Similarly, Wikipedia, The Free Encyclopedia (2009:n.p) regards democracy as “a political government either carried out by the people or the power to govern is granted to elected representatives”. The term is derived from the Greek ‘demokratia’ which in turn is coined from two other Greek words ‘demos’ (people) and ‘kratos’ (rule or power). Therefore, etymologically, democracy means ‘rule by the people’. Appadorai (1975:187) thus describes democracy as “that form of government in which the ruling power of the state is legally vested not in any particular class or classes but in the members of a community as a whole”. These definitions are quite expressive of Lincoln’s (1965:239-240) definition of democracy as “government of the people, by the people and for the people”.

In spite of the several conceptions, most scholars agree on certain fundamental features of democracy. They include constitutionalism “which expresses the idea of the supremacy of a constitution over each arm of the government especially the legislature” (Achara, 2003:14). Other features include respect for the rule of law (Dicey, 1959:190-256), separation of powers (Oraegbunam, 2005:n.p.), popular sovereignty (Nwuzor, 2002:15), respect for human rights, freedom and dignity  (Chukwudozie, 2000:11), transparency and accountability (Nze, 1998:51), checks and balances (Njoku, 2005:109-118), equal opportunity and justice (Nwuzor,2002:13), dialogue and participation (Achara, 2003:14), promotion of common good (Kukah, 1999:216), periodic election (Nwuzor, 2002:15).

In this paper ‘democracy’ is understood as embracing the above features whose characteristics are clearly provided for in the 1999 constitution. Hence, the democracy referred to in this paper is a ‘constitutional democracy’.

 

Constitution

The Oxford Pocket Dictionary of Current English (2009:n.p) sees the constitution as “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed”. In the same manner, the Blacks Law Dictionary (1999:306) views constitution as “the fundamental and organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and the manner of its exercise”. Hence, it is of the nature of a constitution, whether written or unwritten, that it has a special legal sanctity which sets out the framework and principal functions of the organs of government and declares the principles governing the operation of those organs (Wade, 1960:1).

In our present study, “the constitution” refers to the Constitution of the Federal Republic of Nigeria (C.F.R.N) 1999. By virtue of its section 1, it is “supreme and its provisions shall have binding force on all authorities and persons throughout the federation”. C.F.R.N 1999 states that “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” [section 1 (3)].

Criminal Justice

The term “criminal justice” is a branch of legal justice system. It refers to the collection of legal procedures and institutions that are used to give effect to the system of criminal law. In its widest context, the process of criminal justice can be traced from its earliest stages in the elaboration of the laws to be enforced, through investigation and prosecution of offending conduct including trial and conviction, and culminating in the later stages of sentencing and implementation of those measures decided upon by the courts. In this paper, the phrase ‘criminal justice is synonymous with ‘penal justice’ since, as Okonkwo (2002:37) notes, “the object of any criminal law is punishment”.

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