Page - 49 - in Austrian Law Journal, Volume 1/2017

ALJ 1/2017 Non-State Law in Nigeria 49 who practice or are versed in that religion. Moreover, people of other faiths are (arguably) out- side the scope of its application. The facilities are provided by the state: the judges (Kadi), the “hishba”, and other workers are paid by the state. Finally, the law is not subject to repeal or amendments by the temporal reasoning of the generality of the people to reflect the realities of their everyday cross-cultural interactions among citizens residing in the area, as it is based purely on the contents of that religion and the practices of its adherents. It has therefore generally been argued that with all of these facts present, one can only subscribe to the conviction that the movement is seeking to either re-establish a state religion in those parts of the country in violation of the constitution or (worse still) to secede from the rest of the country, which is an infringement on the territorial integrity of the sovereign nation as one entity.45 It has also been argued that, apart from the concerns raised by non-Muslims regarding the dis- crimination against them in many areas, the Muslims themselves are not left out. The fact that the law applies only to Muslims or to those who wish to be bound by it means that the right to equality of all before the law is thus negated. Let us consider two hypothetical criminal cases involving Mr. A, a non-Muslim, and a Muslim, Mr. B. Let us also presume that both of them have been found guilty (albeit by different courts) of stealing, for example, a bicycle. In sentencing, Mr. A is given a 6-month prison sentence and the reason for reaching such decision is based on the fact that Mr. A practises a religion other than Islam, or that he does not align himself with any religion at all. On the other hand, a Sharia court condemns Mr. B to have his right wrist amputated. It must be borne in mind that they are both convicted for the same offence within the same country and all circumstances of both cases are presumed the same, except the proceedings that led to the sentencing were done at two differ- ent courts. Many legal practitioners know that the positive outcome of any legal tussle is not guaranteed by a lawyer’s mere interpretive skills; it is also partly dependent on the provisions of the law that is being applied. In that regard therefore, can a nation beleaguered by overt conflict of laws, both in theory and in practice, be considered a nation with rule of law? Furthermore, can individuals be said to be guaranteed the right of equality before the law in a society where discriminatory puni- tive measures are purposively handed down on the ground that the legal system makes it a mat- ter of choice (i.e. depending on the religion or culture of the defendant) as to the choice of the penalty? What does such verdict tell of a country that prohibits discrimination under its constitu- tion? Does that not establish a prima facie case of discrimination, even though, owing to his reli- gious beliefs, Mr. B may have agreed to be given such discriminatory sentence? What does the law (constitutional law) say in this respect? It stipulates: ”A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or po- litical opinion shall not, by reason only that he is such a person: (a) be subjected either express- ly by, or in the practical application of, any law in force in Nigeria or any executive or adminis- trative action of the government, to disabilities or restrictions to which citizens of Nigeria of 45 Although the principle of territorial integrity applies mainly in cases of international relations, it is a legal order under international law as echoed particularly in Article 2, paragraph 4 of the U.N. Charter that encourages na- tion states not to violate one another's territorial makeup. The same goes for ethnic groups within a sovereign state.