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Nigeria, Sharia in

By:
Philip Ostien
Source:
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Nigeria, Sharia in

Introduction.

The Islamic sharia as classically conceived comprises an “all-embracing body of duties” (Schacht 1964, p. 1). But only some of these are legal duties, enforceable in the courts. Others are purely religious, relating to worship and ritual (ibadat). Still others are meant to guide the policy and behavior of Muslim rulers in Islamic states (siyasa sharia). These three sub-divisions of sharia have fared differently in different parts of Nigeria at different times. They are discussed here under the headings of “Islamic religion,” “Islamic rule,” and “Islamic law.” Nigeria’s own principal divisions are shown on the map: the Northern, Eastern, and Western Regions into which the British divided it; the thirty-six states and the Federal Capital Territory of Abuja into which it has subsequently been sub-divided; and the twelve northern states which undertook programs of “sharia implementation” beginning in 1999 (“sharia states”). Nigeria became an independent nation in 1960, as a federation of the three regions. It is now a federation of the thirty-six states, under a constitution that came into force in 1999.

Islamic Religion.

Islam came to Nigeria’s far north beginning in the eleventh century, with the arrival in the Borno region of Muslim traders across the Sahara Desert from North Africa (Hiskett 1984). It came to Hausaland somewhat later, notably Katsina and Kano, across the Sahara, but also across the Sahel from the medieval empires of Mali and Songhay. Muslim traders from afar established settlements in the principal towns, which grew into communities of Muslims including scholars and preachers. They proselytized among the local peoples, increasing numbers of whom, in due course, were led to abandon their former religious practices and become Muslims themselves. By 1750 Islam was the nominal, if only loosely observed, religion of the ruling and merchant classes across the northern parts of the country. It received a new impulse there in the late eighteenth and early nineteenth centuries, through the work of the Fulani revivalist and reformer Shehu Usuman dan Fodio. From the north, Islam spread south and southwestwards into other parts of present-day Nigeria, principally through trade but sometimes through warfare and conquest. When the British annexed Lagos in 1861 they found a vibrant Muslim community there. When they seized control of the Northern Region in 1900, large parts of it were dominated by Muslims.

Under British colonial rule, Islam held its own in the competition with Christianity for the souls of Nigeria’s pagans (as they were known: African Traditional Religionists). According to the 1963 census—just after independence—the population was then 47% Muslim, 34% Christian, and 19% “other.” The distribution of the 1963 Muslim population by current state is indicated on the map (allocation of 1963 population to current states, per Ostien 2012b). Unfortunately no census since 1963 has gathered information on religious affiliation, but the percentages of Muslims by state today are probably mostly still within the wide bands shown.

Today the population of Nigeria is between 160 and 170 million, by far the largest in Africa. About half of all Nigerians—say 80 million—are Muslims. This puts Nigeria sixth in the world in terms of total Muslims, ahead even of Iran and Turkey (Pew Forum 2011). At the same time, about the other half of all Nigerians—say another 80 million—are Christians, putting Nigeria also sixth in the world in terms of total Christians (ibid.). Nigeria is unique in having such large numbers both of Muslims and of Christians, and in being so equally divided between them. Combine this with extreme ethnic diversity (the linguists list over five hundred living languages, though many of these are now vanishingly small, see Lewis 2009), and, increasingly during the twentieth century, with dispersion of Nigerians of all ethnic and religious persuasions throughout the country, though unevenly; and no wonder the politics of sharia have been complicated in Nigeria.

Most Nigerian Muslims are Sunnis of the Maliki school. But there are non-Sunnis, including some Shia or quasi-Shia, some Qurʾaniyyun (followers of the Qurʾan only, to the exclusion of Hadith), some Ahmadiyya, and no doubt other small sects. The Sunnis are also divided among themselves: among two main groups of Sufis, the Qadiriyya and the Tijaniyya; anti-Sufis, notably Jamaʾatu Izalatil Bidʾa Waʾikamatis Sunnah, the Society for the Removal of Innovation and the Reinstatement of Tradition (JIBWIS or Izala); and “independents,” people belonging neither to any Sufi nor anti-Sufi group, but identifying themselves neutrally as Sunni Muslims. Which group predominates varies by location and by ethnicity. Sometimes discrete sects form around special sets of ideas. One example is Boko Haram, which began in mainly-Kanuri Borno in the early 2000s, taking extreme positions within Sunni Islam on many questions of what is halal and what is haram; today it is conducting a campaign of terror over much of the north. Within most groups there are individual variations along the scale from “cultural Muslim” to true believer. In short, there is considerable diversity of Muslim religious belief and practice in Nigeria. (For a fuller discussion, centered on Nigeria’s North Central zone, see Ostien 2012a.)

Islamic Rule.

Rule by Muslims began in Borno in the eleventh century, and in Kano in the fifteenth. Already in the late fifteenth century, Muslim jurists were producing for northern rulers books on siyasa sharia, Islamic rulership (cf. Maghili 1932). The jihad led by Shehu Usuman dan Fodio in the first years of the nineteenth century was aimed specifically at the ouster of corrupt and oppressive Hausa rulers who claimed to be Muslims, and their replacement by more Islamic, mostly Fulani, regimes. Continuing well into the nineteenth century, the jihad resulted in the “Sokoto Caliphate” (Last 1967), a loose confederation of Muslim emirates, about thirty in all, covering much of what became the Northern Region, all owing suzerainty to the new commander of the faithful, the Sultan of Sokoto, in a line beginning with the Shehu himself. Manuals for the emirs on siyasa sharia were produced and distributed, many written by the Shehu or by his brother Abdullahi (Shagari and Boyd 1978). Among other things, the emirs were to take advice from councils of ulama. They were to appoint imams and preachers to teach the people about Islam; qadis to administer Islamic law; public morals officers, hisba, to enjoin good and forbid evil; zakat officials to redistribute wealth from haves to have-nots. At least under its first leaders a serious effort was made in the Sokoto Caliphate to purify society of un-Islamic practices and to live wholly according to the sharia. A lasting legacy was the widespread displacement, within the emirates, not only of the old indigenous religions by Islam, but of the old laws and customs of the people by Islamic law. These transformations were by no means complete (and still are not today), but they went further in the Sokoto Caliphate than anywhere else in Nigeria, with the possible exception of Borno. Borno fought off the Fulani jihad and maintained its independence as a Muslim empire in its own right. With its ancient traditions of scholarship, Borno has long been recognized as a leading center of Islamic learning in West Africa.

The British conquered the northern emirates “with the sword,” as they said. They brought an army with a Maxim gun, defeated the forces of emirates that offered resistance in pitched battles, and accepted the submission of the rest. Non-Muslim sovereignties elsewhere in the north were likewise subdued. British rule was imposed. But British policy was a robust version of “indirect rule,” whereby the regimes they had just overturned, often with the very same rulers, were reinstated, and told to carry on much as they had been doing before, though subject now to British regulation (Perham 1937). Hence it was that the same emirate rule over much of the north, with most of its Islamic trappings intact, was continued for another sixty years. The effect was the further spread and purification, within the emirates and into other parts of the north, of the practice of the Islamic religion and the application of Islamic law. It was only after independence in 1960 that all of Nigeria’s “traditional rulers,” including the emirs, were gradually divested of their civil authority, in favor of democratically-elected state and local governments. The level of Islam in government then noticeably declined, even in predominantly Muslim jurisdictions. Part of what the “sharia states” did, beginning in 1999, was to restore more siyasa sharia to their governments. This is discussed further below in the section on sharia implementation.

The experience in Nigeria’s Yoruba southwest provides an instructive contrast. One part of Yorubaland—present Kwara State—was conquered by the Fulani and ruled as an emirate of the Sokoto Caliphate and subsequently of the Northern Region. The rest of Yorubaland (present Oyo, Osun, Ekiti, Ondo, Ogun, and Lagos States) fought off the jihad. In Kwara, under emirate rule, not only were many converted from the Yoruba religion to Islam, but many also switched from following Yoruba law to following Islamic law in the affairs of their daily lives. In the other Yoruba states, where the jihad did not penetrate, the old Yoruba rulership structures were never replaced with something more Islamic. The religion of Islam spread widely among the people there, but not Islamic rule. Muslims became rulers, but according to Yoruba traditions, not siyasa sharia. Courts were established, but (with some exceptions, soon extinguished) they were the courts of Yoruba chiefs and elders, not qadis, and the law they applied, even in cases involving Muslims, was Yoruba law and custom, not Islamic law. Indirect rule confirmed and perpetuated all this, and it still exists today. The Yoruba southwest presents an interesting example of a modernizing population of West African Muslims, devout in their practice of the ibadat of Sunni Islam, but not of its classical forms of government or law (Gbadamosi 1978; Peel 2000).

Islamic law.

We come then to Islamic law proper: the part of sharia administered in the courts. For purposes of the discussion, this must be divided into three parts: (1) “Islamic personal law,” governing family law, inheritance, and gifts and endowments; (2) “other Islamic civil law,” governing business relations, commercial transactions, property, finance, torts, etc.; and (3) “Islamic criminal law,” namely what in Islamic jurisprudence is divided between hudud, qisas, and taʾzir. The discussion focuses on the courts of Northern Nigeria, where Islamic law has always been most widely and most extensively applied. Parts of it have been (and are) applicable in East and West, but little applied. That is an interesting story in itself, especially as it concerns the Yoruba southwest, but cannot be gone into further here (but see Makinde and Ostien 2011; 2012). The story of the application of Islamic law in the North is outlined here under two headings: its completeness of application, and the autonomy of its application from review by English courts.

Completeness.

Under the British, 1900–1960, administration of Islamic personal law, other Islamic civil law, and Islamic criminal law continued in Northern courts much as it had gone on before the British came. Existing courts were regularized pursuant to statute as “Native Courts” (Keay and Richardson 1966). The substantive and procedural law applied in Native Courts, including criminal law and procedure, varied from court to court, depending on what was the “native law and custom prevailing in the area of jurisdiction of the court.” Across the Northern emirates this was Islamic law of the Maliki school, as inflected from jurisdiction to jurisdiction by local custom. The judges were alkalis [Hausa for al-qadis], or the emirs themselves sitting in their judicial capacities. No part of any body of native law and custom anywhere in the country, Islamic or ethnic, civil or criminal, was codified; Islamic law was found in the mostly-Maliki books of fiqh that the alkalis and emirs consulted. Not every detail of Islamic law was applied even in the emirates. For instance, the customary land law of the northern peoples had never been displaced by sharia, and under the British it “remained valid and was enforced by the councils of the sultan and of the emirs” (Schacht, p. 86). The British also laid down that no native law or custom should be enforced which was “repugnant to natural justice, equity and good conscience”. Penalties in particular were regulated under this rule. Mutilation—in the North whether as hudud or as qisas—was abolished. Death sentences had to be carried out in a humane manner. Nevertheless, right up to the end of the 1950s, Islamic law, including Islamic criminal law, was “more widely, and in some respects more rigidly, applied in Northern Nigeria than anywhere else outside Arabia” (Anderson 1954, p. 219).

As to Islamic criminal law, this came to an end in 1960. In the negotiations leading up to Nigerian independence, the North was prevailed upon to make modifications to its legal system. The most important of these was abrogation of all bodies of native criminal law and custom theretofore applied in the Native Courts, in favor of uniform Penal and Criminal Procedure Codes applicable in all courts to all persons irrespective of locality, ethnicity, or religion. From 1960, therefore, Islamic criminal law was no longer applied in Northern courts. This left Islamic personal law, and other Islamic civil law, applied throughout the colonial period and still today, still uncodified, in courts in every Northern state, wherever it is the law prevailing in the area of jurisdiction of the court, or, since 1956, where it is the law binding between the parties to particular cases.

But Islamic criminal law was not quite finished yet. What was abrogated in 1960 in the Northern Region, was reinstated in 1999–2003 in the twelve sharia states. All of them brought Islamic criminal law back into the repertoire of Islamic law applied in their Native Courts, now reconstituted as Sharia Courts. Thus, besides restoring more siyasa sharia to their governments, the sharia states also increased the completeness of the Islamic law applied in their courts, by adding back Islamic criminal law. This, too, is discussed further below.

Autonomy.

Beginning in 1933, the British allowed appeals from Native Courts to English courts. This meant that cases decided under Islamic law in the courts of the Northern alkalis and emirs could be reviewed, and the judgments interfered with, by British judges, trained in and sometimes applying an entirely different legal system. Only one class of cases was excepted: personal law. Thus a case decided under Islamic personal law in an alkali’s court could be appealed only as far as the court of the local emir or of his Chief Alkali, designated as a “final native court of appeal.” The autonomy of Muslim courts to administer this part of Islamic law within their territorial jurisdictions, without English court interference, was preserved. But cases decided under other Islamic civil law, or Islamic criminal law (still in force until 1960), could and did go on appeal to the English courts, and this was a source of dissatisfaction to Northern ulama.

The history of the systems of appeals from Northern Native Courts and their descendants, to English courts and their descendants, since 1933, is long and complicated. It has been a fraught issue and is still being negotiated today. Three highlights are mentioned here.

The Northern Sharia Court of Appeal.

One highlight was the establishment in 1960 of the Sharia Court of Appeal of the Northern Region—the second major modification made to the North’s legal system in run-up to independence. Northern Muslims gave up Islamic criminal law, but they gained a prestigious Muslim court. The Sharia Court of Appeal heard appeals from Native Courts all over the North, as to all questions of the application of Islamic personal law. As to such questions, its appellate jurisdiction was exclusive and its judgments were final, without recourse to any other court (but constitutional questions could be appealed further to the Supreme Court, though it appears none ever was). The autonomy of Muslim courts to administer this part of Islamic law, governing the personal lives of millions of Muslims across the North, without English, or increasingly “Nigerian-English” court interference, was again preserved. The perhaps hidden cost was the imposition, at least in theory, of a new uniformity of doctrine across the North where before there had been a diversity long honored in local practice.

The Great Sharia Debate of 1976–1979.

But then, secondly, even this limited measure of autonomy was lost in 1979, when a new Nigerian constitution came into effect. Nigeria had by then been ruled by the military for thirteen years (1966–1979); been through a civil war (East [“Biafra”] vs. North and West, 1967–1970); and been subdivided into states—nineteen by 1976, ten of them in the ex-North. Each of the new northern states had inherited a Sharia Court of Appeal along with the rest of the North’s legal system. The judgments of all of them were final. This raised the possibility of conflicts: inconsistent rulings on points of Islamic personal law, made by the Sharia Courts of Appeal of different states, irreconcilable because each court’s judgments were final. This possibility evidently seemed untidy to some. To forestall it, a new Federal Sharia Court of Appeal was proposed: to be placed above the Sharia Courts of Appeal of the states, sitting to hear appeals from them on issues of Islamic personal law only, with the old finality now transferred to its judgments. The ancient Muslim autonomy as to adjudication of this class of cases would thus be preserved at a higher level of the legal system, and doctrinal uniformity, the new ingredient, would also be continued. In late 1975, as part of its program to return the country to civilian rule, the military government appointed a Constitution Drafting Committee (CDC), charged to draft a new constitution for later consideration by a Constituent Assembly. The idea for a Federal Sharia Court of Appeal was endorsed by constitutional lawyers from all parts of the country, and provisions for it were included in the CDC’s draft constitution. This was published in September 1976. It was then subjected to a year of public debate (1976–1977), before being deliberated on, article by article, by the mostly-elected Constituent Assembly (1977–1978). The proposed new Federal Sharia Court of Appeal, a relatively minor point of legal architecture one might have thought, became the great issue as to which public opinion, and opinion in the Constituent Assembly, polarized and hardened. The proposed Federal Sharia Court of Appeal was anathematized by virtually all Nigeria’s Christians; it became a point of honor for virtually all Muslims to support and defend it. In the end the Christians had the votes in the Constituent Assembly. The Federal Sharia Court of Appeal was voted out. The “untidy” constitutional alternative—leaving finality with the state Sharia Courts of Appeal and letting them differ ad hoc on the details of Islamic personal law as applied within their jurisdictions—apparently was attractive to no one. Instead, appeals from the state Sharia Courts of Appeal, as to all questions decided by them, were for the first time allowed to be taken to the federal Court of Appeal, and thence to the federal Supreme Court. From 1979, therefore, when the new constitution came into force, these distinctly non-Muslim courts have become involved in the administration of Islamic personal law among the north’s Muslims, whose last shred of autonomy in the application of their law was thus lost. This was a victory for the Christians, but perhaps also “an opportunity missed” by them to settle with the Muslims the place of Islamic law in Nigeria on reasonable, honorable, and stable terms (Ostien 2006). Between 1979 and 1999 the Muslims tried many times to correct the resulting perceived anomaly in the appellate system, to no avail. Then, a third thing the sharia states did, beginning in 1999, was to try to correct it themselves, by restoring more autonomy to the new systems of Muslim courts they created in their states.

Sharia Implementation.

Three aims of the sharia implementation effort begun in twelve northern states in 1999 have been mentioned: restoring more siyasa sharia, bringing back Islamic criminal law, and increasing the autonomy of the Muslim courts. This section briefly discusses how these aims were realized, and with what lasting success (for details see Ostien ed. 2007 and Ostien and Dekker 2010).

Restoring More Siyasa Sharia.

This was done by creation of new organs of state government charged to administer one or another aspect of siyasa sharia, including Ministries of Religious Affairs, Councils of Ulama, Sharia Commissions, Sharia Courts, and Hisbah and Zakat Boards and Commissions, among others (Ostien ed. 2007, vol. VI). Most of these bodies, created in 1999–2003, continue in being in the sharia states today. They have indeed brought more siyasa sharia into the governments of the sharia states, in theory at least. Performance varies from state to state. For instance, the Hisbah Commission in Kano State is very active and is much in the news, as it battles alcoholic drinks, prostitution, and other un-Islamic activities within the state. On the other hand, in Gombe State, only nominally a sharia state, even the Sharia Courts provided for by 2001 statute have never been established, and the Sharia Penal and Criminal Procedure Codes then enacted have never been applied.

Bringing Back Islamic Criminal Law.

Since 1960 all Nigerian constitutions have laid down that “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law.” Islamic criminal law has therefore been brought back in the sharia states, not uncodified as before, but in the form of new Sharia Penal and Criminal Procedure Codes enacted as positive law (Peters 2003; Ostien ed. 2007, vol. IV). These new codes are running in parallel with the old Penal and Criminal Procedure Codes of 1960, which are still also in force in the sharia states (often with different penalties for the same crime). The sharia codes are applied in the Sharia Courts; the codes of 1960 are applied in the Magistrate’s and High Courts. Which court you are charged in theoretically depends on your religion. All the classical crimes and punishments associated with hudud and qisas are there in the sharia codes, for application in the Sharia Courts to Muslims. In the early enthusiasm for sharia implementation, many were sentenced to mutilations for theft (hudud) or as retaliation for injuries they had inflicted on others (qisas), and put in prison to await execution of their sentences (Weimann 2007). Several were convicted of zina (roughly, sex out of wedlock) and sentenced, if they were or had ever been married, to death by stoning (Kalu 2003; Ostien ed. 2007, vol. V). The hands of two or three thieves were actually cut off. A great outcry arose against this, in Nigeria and in other parts of the world. Intense pressure was put on the sharia states to desist. The Sharia Penal and Criminal Procedure Codes remain in effect today in all sharia states. But since the initial two or three amputations, no more such punishments have been carried out; the Sharia Courts impose them as sentences less and less; and those sentenced are quietly dealt with in other ways (Ostien and Dekker 2010). In consequence the controversial aspects of Islamic criminal law as embodied in the new sharia codes have faded from the public consciousness.

Increasing Autonomy of Muslim Courts.

The sharia states all tried to do this by directing all appeals from their new inferior Sharia Courts, in all classes of cases, to their Sharia Courts of Appeal. Formerly, only cases involving Islamic personal law went there. Now cases involving other Islamic civil law plus the newly-restored Islamic criminal law were sent there as well, instead of to the High Courts where all such matters had been going since 1933. This expansion by the sharia states of the jurisdictions of their Sharia Courts of Appeal increased Muslim autonomy, by making cases involving other Islamic civil law and Islamic criminal law pass through an additional layer of purely Muslim appellate adjudication before getting, if ever, to any non-Muslim court. But it is probably unconstitutional: the High Courts of two sharia states, and the federal Court of Appeal, have so held (Ostien 2012a, n. 63 and authorities cited). In the states affected by those decisions, the appellate channels have reverted to what they were before: appeals from the inferior Sharia Courts in cases decided under Islamic personal law go to the Sharia Courts of Appeal; appeals in all other cases go to the High Courts. This reversion is likely to spread to all sharia states. Sharia Court of Appeal jurisdiction is laid down in the constitution: it will take more than state legislation to change it.

Conclusion.

Ever since Nigeria’s different parts and peoples were bolted together by the British, the politics of sharia have been complicated there. This was inevitable. The solution arrived at so far, however imperfectly, is democratic federalism, distributing constitutionally defined and limited legislative, executive, and judicial powers among many different federal, state, and local officials and their appointees. This has worked better with thirty-six states than it did with just three regions. The politics of sharia have thus been localized, regulated, and mostly defused. Constitutional adjustments respecting Islamic law, as to Sharia Court of Appeal jurisdiction in particular, are likely to be mooted in the future. This might stir up the national debate again; but perhaps with less fervor and more reason the next time around, information and experience having accrued on all sides.

Sharia implementation, enacted by elected officials in twelve northern states, did cause a great uproar when it started. But that subsided after two or three years, and sharia implementation has now become largely irrelevant to the national discourse. There are two main reasons for this. One has already been mentioned: the harsh punishments reinstated in the sharia states for some crimes, even where they are (decreasingly) being imposed on Muslims as sentences, are not being carried out. Secondly, Islamic law is not being applied to non-Muslims in the sharia states, so they have had little to complain of despite their early fears (Ostien and Dekker 2010).

Trouble-spots remain. In some places there is sporadic communal conflict between Muslims and Christians, not, it seems, over anything to do with sharia but for other reasons: cattle herders versus farmers, or rival ethnic groups contesting for control of local governments (Ostien 2009). And then there is Boko Haram, with its radical ideology and murderous agenda. Boko Haram’s avowed aims include total implementation of siyasa sharia and of Islamic law in its entirety, unfettered by the constraints of the Nigerian constitution and laws. But this is a fringe group with which few Nigerian Muslims in any part of the country agree. There is every hope that once the problem of Boko Haram is cleared up, the politics of sharia will continue to evolve peacefully within Nigeria’s many jurisdictions, diverse as they are in so many ways.

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