CORRESPONDENCE
| Published date | 01 March 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02206.x |
| Date | 01 March 1962 |
Tiia
Ennun,
The
Yodsrn
Law
Rdow.
NORTHEEX
NIQBBXA
PEXAL
LAW
SIR,
The account of the criminal law
as
now being administered in Northern
Nigeria given by Mr. Justin Price
l
was interesting, and
so
were the comments
of Professor
J.
N.
D.
Anderson.’ The procedural code
there
seems
to
have
drawn liberally on the Code of Criminal Procedure,
1908,
which obtains in India
and which was adopted by Pakistan at Independence. The articles are there-
fore of
special
interest
to
us.
But
it
~l~rrm
that
a
balanced view
lien
midway
between the two
articles
and that Mr. Olu Odumwu is unduly apologetic for
some of the provisions in the Code of his Country.S
Before the specific provisions of
the
Nigerian
Code
are
examined
a
refer-
ence
may
be
made to Professor Andereon’s condemnation of criminal
justice
according
to
Muslim law. His criticism
is
no doubt justified, in some respects,
but
it
must be remembered that what passes
for
Muslim criminal law had no
sanction in the Qur‘Sn which, apart from prescribing punishment for some
offences,
is
understandably silent
as
to its main provisions and in particular the
procedure. Criminal law must in the nature of things vary from time to time
and clime to clime. The
Qur‘Bn
picked up
only
a
few outstanding offences, and
even then prescribed only the extreme penalty
(had)
for
them,
i.e.,
where the
offence occurs in ii most aggravated form. The cutting
off
of
the right hand for
theft has
its
basls in this approach.
The
Muslim jurists, however, soon
elaborated the details of penal law and procedure and by
a
quaint quirk of
history these became
frozen.
One
reason
was that these jurists came up soon
after the Prophet and what they
said
was supposed
to
be sacrosanct. Again,
the Khalifa or the Sultan, when he came
to
have the actual administrations
of
law in his pocket, was quite satisfied with the provisions formulated,
so
that
it
became impossible for
a
genuine scholar like Professor Anderson
or
a
humble
practitioner
like
the
present writer
to
raise
a
voice in
protest.
In the
&Id
of
civil law the Qur‘iin laid down far-reaching provlsions, but even there where
any room was to be found the jurists clamped
a
dead
hand.
It
must
alao
be
ranemberrd
that in the background of the new-found
fntellectud
pursuit
the
Arab lawyers were highly technical. In evolving unnecessary refinements
they merely took the same line
of
approach which the common lawyers, for
instance, followed in medieval times.
Moreover
they wove the law on
tribal
custom: aodot (custom) remains
a
powerful source
of
law
to
this day.4
Although Professor Anderson looks down on the principle of compensation
for
murder,
to
any unprejudiced student
it
is
clear that historically
this
was
a
great
improvement gn the principle
of
revenge which obtained
in
the time
of the Prophet.
Mr. Price has found the provision of sending
F.I.R.
(8.
118)
8
to the court
as
detracting from “judicial detachment.” However, we have found this to
be
a
salutary check on the arbitrariness of the police, and it is the experience
of most countries that the police tend to be arbitrary. Indeed, the complaint
1
(1961) 24
M.L.R.
604.
2
(1961)
24
M.L.R. 616.
a
(1961) 24
M.L.R.
612.
4
The theme is developed in
the
writer’s Muslim
Marriage,
Dower
and
Diuorcs
and
The
New
Pakistan
Constitution.
CIArreRponding provision with
us
ie
8.
168
(1).
268
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