Case Summary and Outcome

The Nigerian Court of Appeal upheld the constitutional validity of a State Sharia Law offence of blasphemy. A singer had been convicted by a Sharia Court of blasphemy against Prophet Muhammad, through a song shared on WhatsApp, and sentenced to death by hanging. The High Court quashed the conviction on procedural issues and ordered a retrial. The Court of Appeal held that Section 10 of the Nigerian Constitution only prohibits adopting a State religion but does not invalidate Sharia-based laws for Muslims, reasoning that the Constitution itself incorporates Sharia Courts, and found that retrial was necessary in the interest of justice and public order. One judge dissented and would have found the Sharia Law offence unconstitutional and would have acquitted the singer.

The case is pending appeal before the Supreme Court of Nigeria. 

Facts

On March 4, 2020, Yahaya Sharif-Aminu, a 22-year-old singer and resident of Kano State, Nigeria, circulated a song via social media, including WhatsApp. The song, which he personally composed, contained expressions considered blasphemous against the Prophet Muhammad, particularly within the Tijjaniyya Sufi order. In the audio, Aminu said, “There is no great pagan like Prophet Muhhamad (PBUH), he is a complete pager, he brought an unforgivable sin to the world” and “I will not hold Prophet Muhammad (PBUH) and leave Inyass”.

Following widespread public outrage, a group of protesters attacked and burned down Sharif-Aminu’s family’s house. Sharif-Aminu was arrested by the Kano State Hisbah Board (Islamic Police) and handed over to the Nigeria Police Force for investigation. He was later arraigned before the Upper Sharia Court, Hausawa Filin Hockey, Kano, on charges of blasphemy under Section 382(b) of the Kano State Sharia Penal Code Law, 2000, which is derived from the Maliki School of Islamic jurisprudence.

The trial was presided over by Judge Mallam Aliyu Muhammad Kani. On July 27, 2020, the Court permitted the prosecution to play the alleged blasphemous statements in audio form. Sharif-Aminu admitted he had made the audio recording, confirmed the transcript was accurate, and pleaded for leniency. The Court admitted both the audio and transcript as exhibits. The prosecutor urged the Court to convict and sentence him, noting that he had not denied the commission of the offence. The Court stated that blasphemy can be proved either through the testimony of two witnesses or by admission, and that admission had superior evidentiary value. The Court emphasized that “making an admission on something is the strongest.” The Court rejected the defense of mistake, ruling that blasphemy against the Prophet Muhammad cannot be excused, even if made in error. Accordingly, the Court found that Sharif-Aminu committed the offence as charged.

On August 10, 2020, the Court convicted and, relying on Section 382(b) of the Kano State Sharia Penal Code Law 2000 and the authority of the Supreme Court of Nigeria in Dan Shalla v. The State (2007) 12 MJSC 53, sentenced him to death by hanging. The Court informed Sharif-Aminu of his right to appeal and Sharif-Aminu filed an Appeal to the High Court of Kano State, where the case was heard by the Chief Judge, Nuraddeen Umar, and Justice Nasiru Saminu. On January 21, 2021, the High Court quashed the conviction and death sentence on grounds of procedural irregularities, particularly the denial of Sharif-Aminu’s right to legal representation, and ordered that he be retried before another Sharia Court of competent jurisdiction.

Sharif-Aminu filed an Appeal to the Court of Appeal, Kano Division, arguing that the High Court ought to have discharged and acquitted him, and that the Kano State Sharia Penal Code Law 2000 was unconstitutional.

Decision Overview

Justice Abubakar Muazu Lamido, J.C.A., delivered the majority opinion, with Justices Ita George Mbaba and Boloukuromo Moses Ugo concurring, and Justice Ita George Mbaba, J.C.A., delivered a dissenting opinion. The primary issue before the Court of Appeal was whether the Kano State Sharia Penal Code Law 2000, particularly Section 382(b) on blasphemy, was constitutional and whether the order of retrial after nullifying the first trial was proper.

Sharif-Aminu argued that Section 382(b) of the Penal Code, under which he was convicted, was inconsistent with the 1999 Constitution of the Federal Republic of Nigeria (as amended) and that his conviction and sentence at the Upper Sharia Court were also unconstitutional and void. He maintained that the law effectively adopted Islam as the State religion in Kano, contrary to Section 10 of the Constitution, which prohibits the adoption of a State religion. He submitted that the law violated his right to freedom of thought, conscience, and religion under Section 38 of the Constitution and international human rights instruments, including the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. Sharif-Aminu also argued that the trial was procedurally flawed as he was not represented by legal counsel at the Upper Sharia Court despite facing a capital charge, in violation of Section 36(6)(c) of the Constitution and Section 269 of the Administration of Criminal Justice Law of Kano State 2019. He submitted that his plea of guilty could not be validly accepted, since under Nigerian law, a plea of guilty to a capital offence is deemed a plea of not guilty, thereby requiring the prosecution to prove its case beyond a reasonable doubt.

The Attorney General of Kano State argued that the Kano State Sharia Penal Code Law 2000 was validly enacted under the powers of the State House of Assembly under the Constitution. He submitted that the law does not amount to adopting Islam as a State religion, but merely provides for the regulation of conduct in accordance with the values of the majority Muslim population in Kano and relied on Section 6(5)(f) and (g) of the Constitution, which recognizes Sharia Courts and Sharia Courts of Appeal, as evidence that the Constitution itself incorporates Sharia law into the Nigerian legal system. The Attorney General maintained that Sharif-Aminu’s conviction was based on his own admission and on credible evidence presented before the Upper Sharia Court, which found him guilty of blasphemy under Section 382(b) of the Penal Code. He emphasized that offences carrying the death penalty cannot be trivialized, citing the Court’s own observation that “the offence created under Section 382(b) of the Sharia Penal Code Law of Kano, which upon conviction carries the death penalty, cannot be regarded as trivial” [p. 41] He submitted that the High Court was correct to quash the earlier conviction for procedural irregularities but equally correct in ordering a retrial in the interest of justice.

The Court of Appeal affirmed the supremacy of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and emphasized that all laws derive their validity from the Constitution, and any law inconsistent with the Constitution will be void to the extent of the inconsistency. The Court held that the Kano State Sharia Penal Code Law 2000 did not contravene Section 10 of the Constitution as, although Section 10 prohibits the adoption of a State religion, it does not forbid the enactment of laws inspired by religious traditions applicable to adherents of that religion. The Court explained that the Constitution does not expressly declare Nigeria to be a secular State under the Constitution, but that the Constitution entrenches religious neutrality by prohibiting the adoption of any one religion as the official State religion. It explained that “[w]hat the Constitution did is to prohibit the adoption of any religion as a State religion by either the Federal or State Governments; it only entrenches religious neutrality of the State and this cannot be termed secularism”. [pp. 20–22] The Court referred to Tobi, JSC’s scholarly commentary in Law, Religion & Justice: Essays in Honour of Justice Obaseki, which explained that Section 10 prohibits official adoption of a religion, but does not amount to secularism in the strict sense.

The Court also held that the Kano State Sharia Penal Code Law did not violate Section 38 of the Constitution, which guarantees freedom of thought, conscience, and religion. The Court found that Section 38 empowers citizens to practice their religion, including Muslims in Kano who may choose to have their lives regulated by Islamic law. The Court held that Sharia law, recognized in Sections 6(5)(f)(g) of the Constitution and entrenched in the judicial structure of Nigeria, cannot be deemed unconstitutional and underscored the necessity of interpreting related constitutional provisions together rather than in isolation.

On the validity of Sharif-Aminu’s conviction, the Court held that the trial at the Upper Sharia Court was procedurally defective because Sharif-Aminu was not represented by counsel in a capital case, contrary to Section 269(1), (3), and (4) of the Administration of Criminal Justice Law of Kano State, 2019. It also reiterated that under Nigerian law a plea of guilty to a capital offence is deemed a plea of not guilty, requiring the prosecution to prove its case beyond a reasonable doubt.

Regarding the order for retrial, the Court held that an appellate court may properly order a retrial even where the lower court’s decision is declared a nullity. The Court discussed the guiding principles for retrials: (a) that there must have been an error in law or procedure; (b) that the evidence discloses a substantial case against the accused; (c) that no special circumstances exist rendering a retrial oppressive; and (d) that refusal of retrial would occasion greater miscarriage of justice. Applying these principles, the Court held that the seriousness of the offence, the gravity of the punishment, and the need to forestall mob justice justified the order for retrial. The Court stated that “[t]o refuse an order of retrial would definitely occasion greater miscarriage of justice. Retrial will safeguard instances where the people in the community may choose to take laws into their hands”. [p. 43]

Accordingly, the majority found that the Kano State Sharia Penal Code Law 2000 was not unconstitutional, and the retrial order was lawful and in the interest of justice.

Justice Mbaba dissented and would have found that Sharif-Aminu ought to have been discharged and acquitted outright. He disagreed with the majority’s finding that Section 10 of the Constitution is not justiciable as Section 10 is part of Chapter I of the Constitution, not Chapter II, and therefore enforceable which meant that “no government, either at the Federal or State level, can declare or adopt any religion as State Religion”. [p. 125] He would also have held that any legislation purporting to adopt religious law as State law was unconstitutional and void.

Justice Mbaba also dissented on the order of retrial and would have held that once the trial was declared a nullity due to denial of fair hearing and absence of legal representation, subjecting Sharif-Aminu to retrial would amount to double jeopardy, contrary to Section 36(9) of the Constitution. He noted that Sharif-Aminu had already undergone incarceration, trial, and sentence under grave irregularities, and a retrial would be oppressive and persecutory and that “to subject him to fresh or another trial (or retrial) therefore would amount to going back to the drawing board, to reconstruct a valid charge… That, to me, would amount to persecution and oppression”. [p. 117]

Justice Mbaba questioned the justice of enforcing religious precepts that impose the death penalty for blasphemy and stated that “[o]ne should be concerned or worried about introduction and enforcement of religious precepts that allows for killing of a citizen of Nigeria, for insulting a religious creed leader or God, when the leader/God is always tolerant, merciful and forgiving, allowing the errant soul to repent!” [p. 133] He concluded that he would have found that Sharif-Aminu should have been discharged and acquitted, and that Section 382(b) of the Kano Sharia Penal Code was unconstitutional.