The Advocate
By Onikepo Braithwaite
L ast week, two incidents caught my attention, along with a response to my article of 13/10/26 “The North, Sharia Applications and Investment Limitation” – 1) the arrest of 22 year old Umar Maradun, a member of Jama’atu Izalatil Bid’ah Wa Iqamatis Sunnah (JIBWIS) by Zamfara State Police subsequent upon a video of him which went viral, leading youths in some sort of match, singing a jingle asking for AK 47s for them to kill Christians in Enugu and Jos; and 2) Governor Uzodinma running for Senate.
Umar Maradun’s Arrest
Certainly, the actions of Umar Maradun fit hand in glove with counselling people to commit murder, which under the Penal Code Act (PCA) applicable in Northern Nigeria, would be the offence of abetment, inter alia, instigating a person, in this case, people, to commit the offence of culpable homicide (murder) – see Sections 83 & 84 of the PCA. Section 85 of the PCA provides that if the offence is committed consequent upon the abetment, the abettor will be punished with the same punishment prescribed for committing the actual offence – see Sections 220-221 of the PCA. Section 91 of the PCA also provides that, if the offence abetted isn’t committed, the abettor is still liable to up to seven year’s imprisonment upon conviction. See Suleiman v State (2022) LPELR-57577 (SC) per Mary Ukaego Peter-Odili, JSC on the ingredients to be proved by the prosecution, to secure a conviction for abetment under Section 85 of the PCA.
Maradun’s actions, instigating, inciting, encouraging, promoting and procuring the youths to kill Christians, were direct and explicit enough in the video; there is however, no evidence that the third ingredient – a killing as a consequence of Maradun’s abetment, took place. However, the Apex Court stated that these ingredients need not be cumulative – see Suleiman v State (Supra).
But, my concern is that, politicians whose actions bear a great deal of similarity to that of Maradun, such as Senators Fadahunsi and Omo-Agege, are walking the streets, free as birds! – see Sections 7 & 319 of the Criminal Code Act (CCA) applicable in Southern Nigeria. Again, even if no death can be linked to the Senators’ utterances, their statements still raise a prima facie case under Section 324 of the CCA, which prescribes a 14 year imprisonment upon conviction for an attempt to counsel or procure others to commit murder. Additionally, aside from the fact that what is good for the goose (Maradun) is good for the gander (the Senators and others who have been seen on video) (see the Preamble and Sections 15(2) & 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) on equality, equity, fairness and the prohibition of discrimination, it seems that in Nigeria, the value of life is diminishing with every passing day – life is regularly dispensable for politics, religion, illegal harnessing of mineral resources and even, livestock.
Governor Uzodinma’s Senatorial Ambition
Governor Uzodinma’s quest for the Imo West Senate seat in the 11th National Assembly (NASS) which will be inaugurated around June 2027, a good six months before his tenure as Governor of Imo State expires on January 15, 2028, isn’t different from that of his fellow Governors who jump from Governorship to Senate (or vice versa) like his main rival today, Senator Rochas Okorocha, except, of course, for the fact that, Imo State Gubernatorial election became an off-cycle election since Uzodinma wasn’t sworn in as Governor till January 15, 2020 after winning his court case at the Supreme Court, and consequently, there’s the slight issue with the timing. Uzodinma obviously cannot be a Governor and a Senator simultaneously – Section 183 of the Constitution prohibits a Governor from holding any other executive office or paid employment.
Barring a negative final outcome of his case with Senator Rochas Okorocha, in which though Uzodinma lost Round 1 at the Federal High Court, there’s still Round 2 at the Court of Appeal & Round 3 at the Supreme Court, assuming that the Apex Court affirms him as the APC Candidate, the question is, when will Uzodinma resign as Governor – 30 days before the January 16, 2027 election as per Section 66(1)(f) of the Constitution? In Dada v Adeyeye 2005 6 N.W.L.R. Part 920 Page 1, the Court of Appeal held that the Governor, Deputy Governor, Speaker and other political office holders are not in the public service of the State, within the meaning of Section 318(1) of the Constitution. It appears that this 30 day rule is applied only to career public servants, not political appointees or elective office holders – see Modibbo v Usman & Ors (2019) LPELR-59096 (SC); Ogwuche v Agbo & Ors (2023) LPELR-60207(SC) per Emmanuel Akomaye Agim, JSC. In Adamu v Takori & Ors (2009) LPELR-3593(CA) per Abubakar Abdulkadir Jega, JCA, the Court of Appeal held that “….the sole determining factor in determining a public servant is the mode of his appointment….an officer like an Attorney-General who does not owe his appointment to the Civil Service Commission of the State, but to the Governor of the State, cannot reasonably be regarded as being in the public service of the State….The 1st Respondent was indeed, a Public Officer as Attorney-General in the Government of Zamfara State, but one has to get down to the real nitty-gritty difference between a “public officer in the service of a State” and a public officer employed in the Service of a State”. The two are definitely not the same though, the latter includes the former, but not the other way round. It must be understood and appreciated that only a public officer employed in the service of the Federation or a State, is caught by the provisions of Section 318(1) of the Constitution….”.
If Uzodinma then wins the election, will he resign when INEC declares him winner, or just before he receives the certificate of return, or before they are sworn in, as Senators in the 11th NASS?
If Uzodinma is fielded as the APC Candidate for Imo West and he wins the election, it will be yet another test for Nigeria’s democracy and upholding the rule of law. Any manipulation or arrangement that seeks to keep in him in his Governorship position till his tenure expires in January 2028, while the Senate seat waits for him, will clearly be a breach of Section 183 of the Constitution.
Argument about “The North, Sharia Applications and Investment Limitation”
One of my readers argued with me that Section 4(7) of the Constitution allows the State Houses of Assembly to make laws for the peace, order and good government of their States, which I guess he believes includes endowing their Sharia Courts which they have the authority to create, with criminal jurisdiction (also see Section 6(5)(k) of the Constitution). He also likened the Area and Sharia Court in the North, to the Magistrate Court. He said that if the Lagos State House of Assembly can endow the Magistrate Court with criminal jurisdiction, what stops Kano State from giving its Area and Sharia Court the same? Respectfully, I disagree.
Firstly, the Magistrate Court isn’t a religious court like the Sharia Court, or a court guided by customs and traditions like the Customary Court. And, when the Constitution refers to the two superior courts in this cadre, the Sharia Court of Appeal and the Customary Court of Appeal, it only mentions civil proceedings and Islamic Personal Law.
My reader also asked me, if I have heard of the Magistrate Court in the Northern States? Yes. I have, because they exist there. The Northern States have Magistrate Courts to exercise criminal jurisdiction at that lower level, from which the appeals then lie to the State High Courts. I therefore submit that, the Sharia Court cannot be likened to a Magistrate Court, but only to the Customary Court, and they both lack criminal jurisdiction.
For instance, when you watch classic Igbo traditional movies on Africa Magic, you will see where sometimes, a chronic thief or someone that commits a heinous crime, is banished from the village under Customary Law. Today, a thief in the Southeast would be charged before a Magistrate or High Court (whichever is applicable to the offence alleged to have been committed), and not a Customary Court, and the punishment would probably be imprisonment, and not banishment which is contrary to Section 41(1) of the Constitution which guarantees the right to freedom of movement.
Similarly, a thief of any religion, who steals a cow in the North, should be charged before the Magistrate Court, and given the appropriate punishment – see Section 286-290 of the PCA on theft, with punishments ranging from fines to 14 years imprisonment. Taking such thief, even if he is a Muslim, before a Sharia Court, is unconstitutional, and cutting off that person’s right hand from the wrist for stealing, if it’s a first offence (‘Hadd’ punishment) isn’t just repugnant, but a breach of Section 34(1)(a) of the Constitution which entitles individuals to respect of their person, and prohibits torture and inhuman treatment. In Odiong v Asst. IGP (2013) LPELR-20698(CA) per Joseph Tine Tur, JCA, the Court of Appeal held that “Torture is the “infliction of intense pain to the body or mind to punish, to extract a confession or information or to obtain a sadistic pleasure….. Torture is forbidden under Section 34(1)(a) of the Constitution of the Federal of Nigeria, 1999 as altered. It is a violation of one of the fundamental rights of every individual in the universe or in Nigeria”. Obviously, amputation of body parts as punishment for stealing, is torture, degrading and inhuman treatment. Under Sharia Law, punishment for a second theft would be amputation of the left foot from the ankle; third, amputation of the left hand from the wrist; fourth, amputation of the right foot from the ankle; fifth, imprisonment not exceeding one year, no further amputation – see Section 144 of the Harmonised Sharia Penal Code Law 2002.
It is even more bizarre that some seek forgiveness for so-called repentant criminals who may have stolen much more than a cow, demanded for ransoms in mind boggling amounts, killed, raped and maimed the innocent, including children, while sentencing someone like Sharif Yahaya Aminu to death for blasphemy instead of charging him for insult to religion at most, which is a misdemeanour, for whatever blasphemous song he was accused of singing; and Amina Lawal (2003) for adultery/having a child outside marriage and pregnancy and Safiya Hussaini (2001) for pregnancy after divorce (both convictions overturned by the Katsina/Sokoto Sharia Court of Appeal, but not for reason that the Sharia court of first instance lacked jurisdiction), when they both enjoy the right to privacy, freedom of thought, conscience and association under Sections 37, 38(1) & 40 of the Constitution.
Conclusion
The three narratives examined in this piece, converge on a single, uncomfortable truth: the Constitution is too often treated as optional, rather than supreme. Section 1(1) is unambiguous – the Constitution is supreme, and its provisions are binding on all persons and authorities. That supremacy was suspended, in whole or in part, under military rule. It is no longer suspended. Citizens, State governments, and the courts, are therefore under a continuing obligation to observe it in full, not selectively.
Elective and appointive office holders, and judicial officers, have each sworn the oaths prescribed in the Seventh Schedule of the Constitution, to uphold and defend it. Those oaths are not ceremonial. They require equal application of the law. When a young man is promptly arrested for counselling others to kill Christians, while Senators and other public figures who have made comparably direct and recorded incitements remain untouched, the equality guaranteed by Sections 15(2) and 42 is reduced to rhetoric. When a Governor may be allowed to straddle two elective offices in disregard of Section 183, or when a Sharia Court is permitted to exercise jurisdiction and impose punishments that the Constitution itself prohibits, the same selective fidelity is at work.
We cannot continue to cherry pick the provisions of the Constitution we like, while we observe those which we do not care for, in their breach. The Constitution is not a menu. Until that elementary principle is restored – in the treatment of incitement, in the regulation of