CHAPTER ONE

INTRODUCTION

1. BACKGROUND OF THE STUDY

The primary objective of Islamic penal system is to protect society from the dangers of crime. Society must be protected from the activities of criminals and hoodlums. Social life must be peaceful and devoid of insecurity. The severity of Islamic penal system is aimed at discouraging criminal behavior.

If the criminal knows the anguish and pains he will bring to himself, he/she may abstain from committing the crime. The convicted criminal who has passed through the judicial process once may not willingly dabble into any criminality after the painful experience.

Herein lies the philosophy of deterrence in Islamic penal system. While it is not reasonable to pity criminals in the hands of the law, there is a powerful and logical argument that Islamic criminal system is due for reforms to fit into the thinking of the 21st century.

While fundamentalists are collectively opposed to any reforms, the progressives are pushing their case across the world. Islam cannot operate with a medieval penal system.

A great religion like Islam cannot live in the past. Islam cannot ignore all the progress that humanity has made in the past hundred years. The outcome of the agitation for reforms should not be seen as victory for the progressives.

What is needed for the resolution of the impasse is a broad consensus which is the outcome of dialogue. Dialogue between all the contending forces is the only solution to end the isolation of Islam in international community.

Criminal behaviour and actions are broadly divided into three categories in Islamic criminal jurisprudence. Hudud offenses are crimes against God whose punishment is clearly stipulated in the Quran and the Sunna.

Quesas are physical assault and murder that are punishable through retaliation. The victim or the surviving heirs may decide to waive the punishment, and demand compensation (blood money or diyya). The victim may also decide to pardon the offender. Ta’zir punishments are not prescribed in the Quran or Sunna, and are executed under the discretionary powers of the judge.

Capital offences in Islamic criminal justice system are called hudud (the plural for hadd) , meaning “restraint” or prohibition. These are offences that are specified in the Quran and Sunna. Hudud crimes are often seen as criminal behavior against Allah, or public justice.

Islamic courts do not have any discretionary power in the execution of hudud penalties. Once a prima facie case is established with evidences, and the conditions for applying the punishments are fulfilled, the Islamic court is divested of discretionary powers. There are exceptions to this rule. The Quran and the Hadith did not stipulate punishment for all offences.

Islamic jurisprudence has therefore established discretionary punishments (ta’zir) to accommodate minor offences. Ta’zir is applied to either qisas, or hudud for example theft of an item, which the value is below nisab and sexual offences that cannot be interpreted as intercourse.

Ta’zir may be applied to doubtful and probable circumstances, or want of credible evidence or certainty. Ta’zir covers acts that are prohibited in the Quran or Hadith, or acts that constitute violation of public morality and welfare that are not classified under qisas or hudud, like usury, embezzlement, bribery, false testimony, consumption of pork, breach of trust by a public officer et cetera.

Any action that deliberately violates Islamic norms such as nudity, seductive dressing or wife’s disobedience to the husband is adjudicated under ta’zir at the discretion of the judge. The types and categories of punishments under ta’zir include flogging, banishment, public condemnation and reproach, (tashir), while in some cases ta’zir sentencing may be just a warning, others may be death sentence.

If the accused is convicted of spying for the enemy, homosexuality, heresies or divination, the punishment shall be a death sentence. In the Maliki School of Islamic jurisprudence, amputation of the right hand is the punishment for forgery of documents.

1. STATEMENT OF THE PROBLEM

Islam is more than a religion, it encompasses faith, culture, law and the social order. Islam proposes a society of righteousness and justice. Criminal behaviour is not tolerated in the Islamic order of society. Criminal behaviour is breach of God’s sovereignty, hence stiffer penalties are prescribed.

In the Islamic law, it is noticed that punishments that are prescribed in municipal penal code does not conform to international criminal jurisprudence. Finally, several research has been carried out on the reintroduction of Islamic criminal law in Nigeria but not even a single research has been carried out on the concept of Hudud (capital punishment) under the Islamic law in Nigeria.

1. AIM AND OBJECTIVES OF THE STUDY

The main aim and objectives of the study is to examine the concept of Hudud (capital punishment) under the Islamic law. Other specific objectives of the study include;

1. to determine the factors affecting Hudud (capital punishment) under Islamic law in Nigeria.
2. to determine the effect of Hudud (capital punishment) on Islam faithful.
3. to determine the relationship between Islamic law and international criminal law.
4. to proffer possible solutions to the problems.

1. RESEARCH QUESTIONS

1      What are the factors affecting Hudud (capital punishment) under Islamic law in Nigeria?

2      What is the effect of Hudud (capital punishment) on Islam faithful?

3      What is the relationship between Islamic law and international criminal law?

4      What are the possible solutions to the problems?

1. RESEARCH HYPOTHESIS

Ho:  Hudud capital punishment has no significant effect in Islamic criminal law.

Hi:   Hudud capital punishment has a significant effect in Islamic criminal law.

1. SIGNIFICANCE OF THE STUDY

The study on the concept of Hudud (capital punishment) under Islamic law will be of immense benefit to the entire Islam in Nigeria in the sense that it will enable them to know that the position of the Islamic Law on any international human rights issue, such as the call for the abolition of death penalty for example, will only become appreciable when the contextual approach and conception of human rights in the Islamic Law is properly understood.

This is clearly spelt out by Oba10 when he says: Firstly, the notion of ‘rights’ under Islam is much broader than the western human rights contemplation.

In Islam, the rights analogous to the human rights’ concept in the West will under the Islam fall into three distinct categories of rights: the rights of Allah the Creator over the man His slaves; the rights of other living creatures; and the right of one over oneself.

Secondly, Islam cannot accept the separation of human dignity from human rights as both form part of the same concept of doing justice to all. Thirdly, there is a great difference in the manner of couching rights.

The western approach is the declaratory approach whereby rights are declared without reference to those who have the duty to observe or protect these rights, or the rights are to be enforceable before an official organ or tribunal.

The Islam approach protects human rights by couching rights in form of duties incumbent upon someone. Fourthly, rights are contextual under the Islamic law rather than general nebulous statements whose ambits are never predictable.

Islam puts the rights and duties within the context of human relationships and thus tackles the problem of “otherness” effectively. Finally, the study will contribute to the body of existing literature and knowledge to this field of study and basis for further research.

1. SCOPE OF THE STUDY

The study on the concept of Hudud (capital punishment) under Islamic law is limited to Nigeria.

1. LIMITATION OF THE STUDY

Time Constraints: One the challenges experienced by the researcher is the issue of time; the research will simultaneously engage in departmental activities like seminars and attendance to lectures. But the researcher was able to meet up with the deadline for the submission of the project.

Financial Constraints: Every research work needs funding; however lack of adequate funds might affect the speed of the researcher in getting materials for completion of the project.

DEFINITION OF TERMS

Concept: An abstract idea.

Hudud:    Hudud is an Arabic word meaning "borders, boundaries,

limits"

Capital Punishment:      Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial.

Islamic Law:    Refers to the diverse legal systems that have been and continue to be produced with the objective of being in accord with the Islamic faith.