Thursday, 7 June 2007


Codification of Islamic Family Law
CODIFICATION OF ISLAMIC FAMILY LAWTHE CASE FOR CODIFICATION ON MARRIAGE AND DIVORCE IN NIGERIA The current implementation of Shar’ia in northern Nigeria is highly problematic for women’s human rights. Although Islam allows women full human rights, and in many situations Shar’ia provides special protections to ensure that women’s human rights are respected, the personal status laws as currently applied in Nigerian Shar’ia courts violate both the letter and the spirit of Shar’ia. At present, Shar’ia courts selectively apply only some elements of Islamic law, while giving force of law to non-Islamic customs, many of which contradict the letter or spirit of Shar’ia. The result is an anti-Islamic ‘patriarchal/authoritarian’ social model that ‘has not only been very detrimental to women, but…has also caused serious damage to society as a whole’. An effective solution to this problem is codification of Shar’ia personal status laws. Codification of Shar’ia will ensure that women know their rights under Islam, and that they can successfully assert those rights in court before judges who know the law. With the guidance of a written code, judges can be sure that they are applying Shar’ia personal law in a consistent and equitable manner. Moreover, codification can ensure that Shar’ia personal law is consistent with the Qur’an, state public policy goals, national secular law, and Nigeria’s international legal obligations. Many Islamic countries that apply Shar’ia personal status law have found codification an integral part of modernization, because it allows for reform and reinterpretation of Shar’ia personal law, in accord with Qur’anic principles, in light of social changes that accompany development and transition to democratic rule. The proposed code, discussed herein, would provide a well-researched codification of Shar’ia laws of marriage and divorce. The code would articulate, in written form, Islamic marriage and divorce laws that address the modern social reality of Nigeria. Many provisions of the code would be modelled on the Islamic laws of other Muslim countries, and all provisions would have their basis in the Qur’an and the Sunnah (the words and deeds of the Prophet). The code would also be consistent with the constitutional and international legal principles relevant to rights within marriage and at divorce. Therefore, the code is an attempt to harmonize national and international law with the divine dictates of Islam. Some of the most grievous problems women face under the current Shar’ia law system include forced marriages, domestic violence, and arbitrary divorce without recourse. These problems can be traced to two major flaws in the system: a) women are unable to effectively assert their Islamic rights in court because neither judges nor the people generally are aware of women’s rights under Islam, and b) because judges do not understand that Islam is compatible with women’s constitutional and international human rights, the courts fail to uphold these rights. Codification is an appropriate method of addressing these flaws. Specific provisions of the code would be designed to address problems currently afflicting Nigerian women, and describe the international and Islamic support for these provisions. II. SPECIFIC PROBLEMS FOR WOMENMuslim women and girls in northern Nigeria are victims of serious harm in violation of their fundamental rights. Young girls are often coerced into marriages to which they do not consent, or to which they cannot consent because they are below the age of majority. Women and girls are subject to seclusion within the home immediately after they are married. During marriage they are denied the right to work, learn, or otherwise participate in the social and cultural life of their communities. They must ask permission from their husbands to visit their families or to make the required pilgrimage to Mecca, a duty required of every Muslim. Women who suffer beatings, acid burnings, and other violence at the hands of their husbands have no recourse to escape the marriage and ensure their own safety. This is because women are forced to pay exorbitantly high sums in return for their right to divorce their husbands (khul). Even if they can pay for their freedom, women are deterred from seeking a divorce because they are not provided with any means of support after divorce. They are also deterred by the fact that men almost always seize the children upon divorce, leaving the woman with no access to her children. When men want to divorce, they can do so easily through arbitrary ‘triple talaq’, without notifying the court or even the wife. Women are often subject to this practice and can be left destitute and homeless as a result. All of these inequalities are inconsistent with Islamic protections for women; they also violate national and international law. Moreover, these inequalities lead to tragedy, injustice, and social instability. Iran, the leading nation in the modern Islamic revolution, learned this to its detriment. The Iranian government found that the ‘social reality’ of policies such as ‘lowering the minimum marriage age for girls…and reinstatement of the man’s right to polygamy and unilateral divorce’ meant there were ‘physical and health dangers for very young brides, [and] poor, pregnant young women divorced by their husbands for no apparent reason and left in destitution’. Nigeria has just emerged into a period of democratic rule, but democracy is meaningless if women, one half of the population, are subject to violence, coercion, enslavement and abandonment in the very place they should be the safest: their homes. To deny women their human rights is to subject them to the brutalities of a dictatorship within a democracy. The following sections describe in further detail some of the problems that women face in northern Nigeria. These are the specific problems that the provisions of the proposed code address.II. A. COERCED AND UNDERAGE MARRIAGECoerced and underage marriage poses serious health and human rights risks to girls and women in Nigeria. Young girls and women are forcibly married off against their wills, often to men many years older than they. Although the Qur’an enjoins men to treat their wives with kindness, young girls forced into marriages are often subject to extreme cruelty and abuse by their much older husbands, who often use the girls’ youth as an excuse to mistreat them. Forced marriages essentially force young girls and women into slavery: their families give them in marriage, but keep the dower that should be the woman’s gift alone; and their husbands take advantage of the girls’ ignorance to violate their Qur’anic and human rights such as education, work, and freedom from cruelty. The problem of underage marriage is widespread and poses serious risks to the life and health of girls in northern Nigeria. Girls who marry before they have reached full adulthood are at risk of grave and potentially lethal health problems, are more likely to be victims of cruelty and domestic violence, and are subject to myriad other violations of their basic human rights to life, health, education, freedom of movement, equality within marriage, and choice about the nature and size of their families. A recent study found that women in the northeast tend to marry as early as age 15. An earlier study conducted in the 1980s revealed that one-quarter of girls in Nigeria were married by age 14. This indicates that a large proportion of northern Nigeria’s girls and women are seriously at risk. II. A. i. Underage marriage puts girls’ health at riskGirls who marry before they have attained physical maturity are in danger of grave health problems, including death, HIV/AIDS, and fistula. Early pregnancy is closely tied to maternal mortality, with girls under 18 three times more likely to die in childbirth than girls 18 and older. In Nigeria, the numbers are even more disturbing: Nigerian girls of 15 years are seven times more likely to die in childbirth than Nigerian women between the ages of 20 and 24. Young girls who survive pregnancy are likely to be seriously injured. Nigerian medical authorities reported in 1987 that the problem is severe in northern Nigeria, where ‘as many as 20,000 girls in Northern Nigeria had been injured by having babies at too young an age’. A common injury is fistula, a tear in the birth canal or rectum that allows urine or faeces to leak into the vagina. Fistula happens when a girl’s under-developed pelvis and birth canal are too small to allow a baby to pass through normally. With many girls in Nigeria marrying before their bodies are fully developed (for most girls, age 16 or older), fistula is a significant problem: at least 150,000 and as many as one million Nigerian women are victims of fistula. These women and girls often face stigma and social ostracisation. ‘Women with VVF [vesico-vagina fistula] often work alone, eat alone, use their own plates and utensils to eat and are not allowed to cook for anyone else. In some cases they must live on the street and beg.’ They are also subject to divorce or abandonment as a result of their condition. Eighty to ninety percent of Nigerian women with vesico-vaginal fistula are divorced by their spouses, according to a study by the Obafemi Awolowo University in Ile-Ife. II. A. ii. Underage and forced marriage increases the risk of domestic violence and abandonmentYoung girls and women forced into marriage without their consent are in danger of domestic violence, arbitrary divorce, and abandonment. Often, young girls are married off to older, wealthier men who can afford large dowers and are thus desirable husbands in the eyes of marriage guardians. Powerless in the face of economic dependence on a much older husband, young brides are more likely to be victims of physical violence, cruelty and abuse. When they have been forced into marriage without their consent, these girls cannot even turn to their families for help. ‘Some desperate girls and women who have been forced into marriage try to run away or take other avenues to leave their spouses, others are abandoned by their spouses.’ In addition to leaving women without support, this can have devastating effects on children of the marriage. Girls who marry young are unlikely to have completed their education, often have never worked, and have no way to provide for their children. ‘[T]he girls and women are left with the responsibility of raising children without the husband or family's financial support, thus making them more likely to live in poverty.’ Codification can ensure that young girls and women are not forced into marriage and thus will address a root cause of domestic violence and abandonment. II. B. DOMESTIC VIOLENCEII. B. i. Domestic Violence has serious consequences for women in NigeriaDomestic violence has reached appalling and epidemic proportions in Nigeria. ‘Reports of beatings, torture, acid attack and killing of women in the family…are a regular feature in the media and undocumented reports.’ In many cases this violence leads to death. UNICEF reports that in ‘one tragic case in Nigeria, a 12-year-old girl unhappy with her new husband ran away so often that he cut off her legs to prevent her absconding. She subsequently died.’ Even when women survive, they often suffer devastating injuries. In August of this year, Mrs. Amina Adamu, a Nigerian mother of ten, was attacked by her husband, who attempted to murder her with a knife and succeeded in completely cutting off her leg at the knee, leaving her unconscious in a pool of blood. Mrs. Adamu survived, but she must now perform her duties as a mother without the use of one of her legs. Studies confirm the alarming prevalence of domestic violence in Nigeria. A recent study reports that 68 percent of Nigerian women have said that their husbands have attacked them at some point. A report from 2000 estimates that Nigerian women face abuse in at least 20 percent of adult relationships. Other estimates from the same year vary from 20 percent to 81 percent of all married women reporting some form of verbal or physical abuse by their husbands. Domestic violence causes physical harm and creates psychological burdens for victims. In 1993 the World Bank estimated that ‘violence against women was as serious a cause of death and incapacity among women of reproductive age as cancer’. They further reported that violence against women was ‘a greater cause of ill health than accidents and malaria combined’. Women tolerate the abuse, even when it is particularly brutal, because they believe it is an appropriate way for their husbands to reprimand them. This belief comes from the societal stereotypes that keep women in a submissive position with respect to men. Codification will address the problem of domestic violence by regulating the age of marriage and marriage relations, and providing various accessible grounds for divorce that relate to domestic violence. II. B. ii. Women are trapped in abusive relationships because of cultural and legal impediments to divorceMany times a woman is not able to escape an abusive marriage because of the impediments to getting a divorce that exist in northern Nigeria. Some of these impediments are due to cultural practices, such as the father seizing any children from the mother upon divorce. If it is not possible for the father to take the child, his nearest male relative does so because of the belief that children belong to the husband’s family. The practice of husbands seizing their children upon divorce is so prevalent that women in northern Nigeria practice ‘first child avoidance’, that is, they do not become emotionally attached to their first child because they will lose that child in the event of a divorce. Islamic law clearly stipulates that children should be in the custody of their mother after divorce, but this requirement is not followed in northern Nigeria. A northern Nigerian woman always loses her children upon divorce, and in many cases a woman will stay in an abusive marriage because of her desire to keep her children. Other impediments are due to the insufficiency of legal protections for women in the area of divorce. In particular, women who try to leave an abusive marriage by exercising their right to khul (payment of a sum in return for her release from the marriage) are unable to so because their husbands require them to pay exorbitant amounts as the khul payment. Given the economic reality of northern Nigeria, and the fact that women are not allowed to work when they are married, the requirement of high payments for khul nullifies the woman’s ability to divorce her husband, even if her life or her children’s lives are in danger from a violent husband. A woman in an abusive marriage is not able to earn or save money and so is trapped in a physically harmful, and potentially life threatening, situation. Also, a woman is not provided for financially after divorce and in the event of divorce must return home to live with her parents or live on the street. She is denied a place to live, food to eat, and clothes to wear. Islamic law provides that women are to be supported in such a manner by their husbands at least during the three-month waiting period after the initiation of divorce (iddah). Women are also supposed to be compensated financially in the event the husband exercises talaq. Men in northern Nigeria do not adhere to these stipulations. The result is that women are afraid to leave their marriages because they will have no means of support and will have to return to their families, who many times cannot support them either. Thus, the difficulties in obtaining divorce in northern Nigeria result in many women remaining in abusive and harmful marriages. Codification can eliminate these impediments to divorce and allow women to escape such abusive marriages.II. C. ARBITRARY TRIPLE TALAQMuslim women in northern Nigeria are subject to arbitrary divorce at the whim of their husbands, without judicial supervision to ensure that the men deal justly with their wives, as required by the Qur’an. Men in northern Nigeria practice ‘triple talaq’, which is the triple pronouncement in one sitting of the words ‘I divorce you’. In this way, men may unilaterally divorce their wives at any time – without reason, without regard to the wife’s feelings on the matter, and without notifying the court or, in some instances, even the wife herself. In a recently reported instance, a woman was thrown out of her matrimonial home because her husband had taken an interest in another woman. Her husband then wrote to her employer, asking the employer to terminate her employment, effectively leaving the woman homeless and with no way of providing for herself. Her husband refused to allow her even to retrieve her personal belongings from the home. While the Qur’an allows divorce over a three-month period in the form of talaq, no provision exists in the Qur’an or Sunnah allowing the practice of immediate, extrajudicial triple talaq. Triple talaq is a pre-Islamic Arabic custom that has become integrated with, and is mistaken for, a part of Islamic tradition , despite the fact that it violates Qur’anic principles enjoining men to divorce their wives with kindness. In northern Nigeria, the divorce rates are almost as high as the marriage rates, suggesting men abuse their right to talaq. Indeed, divorce by talaq is the most common form of divorce in northern Nigeria. The social and financial ramifications of arbitrary and abusive talaq are severe. If a woman remarries after her husband pronounces talaq without witnesses, ‘her ex-husband, either for revenge or financial reasons, may later deny he pronounced talaq, at which point the woman can be tried for adultery (with the new husband) for which she risks being stoned to death’. In a recent case in Pakistan, where the husband had pronounced talaq and then failed, allegedly on purpose, to notify his wife, the court found ‘the ex-wife and her new husband guilty of adultery and fornication and ordered them flogged and imprisoned for seven years’. Additionally, in a society where women do not earn an income of their own, arbitrary talaq can leave women homeless and penniless. Codification can create protections for women by regulating talaq.III. THE NEED FOR REFORM: THE SHAR’IA COURTS DO NOT PROTECT WOMEN’S HUMAN RIGHTSIII. A. THE SHAR’IA COURTS OF NORTHERN NIGERIA DENY WOMEN THEIR ISLAMIC RIGHTSAlthough coerced and underage marriage, domestic violence, and arbitrary or extrajudicial talaq are contrary to both the letter and the spirit of Islamic law, the Shar’ia courts of northern Nigeria do not protect women from these problems, nor guarantee them their rights under Islam. Women do not know their Qur’anic rights, and Shar’ia courts do not correctly apply Islamic law to protect these rights. Unjust and un-Islamic decisions force women and girls into underage and abusive marriages, keep them trapped in the home where they are unable to fulfil their religious duties of education, social participation and pilgrimage, and deny them the right to leave an abusive marriage – even when their lives are at risk. Women are unable to address the illegal and un-Islamic abrogation of their rights because they do not know what their rights are. ‘The greatest problem is that the majority of women are not aware of their rights under the Shar’ia, and consequently there are many who do not go to court to claim their rights.’ For example, when a man seizes his children upon divorce, in accordance with Nigerian customary law, his wife does not know that under Shar’ia, custody of children goes to the woman, so she does not go to court to seek custody. Similarly, both men and women in Nigeria mistakenly believe that veiling and seclusion are sanctioned by the Qur’an, and thus believe these practices are part of Shar’ia law. This ignorance of true Islamic law has plagued the Muslim community for many years, particularly in societies where women’s illiteracy is widespread and among peoples struggling to achieve democratic rule. Women who do go before the courts cannot be sure that their true Shar’ia rights will be enforced. Shar’ia judges lack the specialized training necessary for proper Qur’anic exegesis, and are often unaware of ahadith or secondary sources that clarify and guide interpretation of the Qur’an. Without this specialized training in Shar’ia, judges often conflate Nigerian indigenous traditions with Islamic law. Although the laws of personal status applied to Muslims are supposed to derive from Shar’ia, judges currently have no written law to follow and therefore are free to apply an inconsistent, hybrid conglomeration of customary law, non-legal tradition, and individual Qur’anic interpretation. This is a problem in both lower courts and Area Courts. In the lower courts, which are most accessible to Nigerian women, ‘[t]here are … instances where cases … are decided by the judge more by local custom than by Shar’iah …. This is deviation on the part of the judge, since he is employed to judge Muslims in accordance with Shar’iah and not with anything else’. In the Area Courts, which do not specialize in Shar’ia law, judges often do not have a proper knowledge of, or training in, the intricacies of Islamic source methodology. Many judges do not even know how to read and write Arabic, the language in which most classical and modern Islamic jurisprudence is written. Judges’ failure to properly distinguish Shar’ia dictates from local customs and pre-Islamic Nigerian traditions leads to incorrect conclusions and often results in unjust and inconsistent decisions. Therefore, even women who are well versed in their rights under Shar’ia cannot be sure they will obtain a just outcome in a court of law.Shar’ia personal law contains many protections for women, including protections not found in customary law and other Nigerian traditions. However, when individuals in society – particularly judges, who are entrusted with the vital task of interpreting Shar’ia – do not properly understand Shar’ia, these protections are watered down or eliminated. Changing popular understanding of the law requires codification. Without a written document defining a woman’s rights regarding marriage, divorce, and other personal status issues, the woman cannot easily assert her rights by pointing to a provision in a written legal code. Instead, she must go to a court to seek a judicial ruling – a time-consuming, expensive, and difficult process, and one likely to exacerbate marital difficulties between husband and wife. When she does go to court, the lack of codification means that any decision she receives is likely to be arbitrary and inconsistent with other rulings on similar cases.III. B. THE SHAR’IA COURTS OF NORTHERN NIGERIA DENY WOMEN THEIR INTERNATIONAL HUMAN RIGHTS AND THEIR CONSTITUTIONAL RIGHTSIn addition to abrogating women’s Islamic rights, Shar’ia courts routinely deny women their fundamental human rights of freedom from discrimination, equality before the law, and effective equal protection of the law. In doing so, they contravene Nigeria’s international and constitutional obligations to protect women’s human rights. This is not to say that Islamic law is incompatible with Nigerian constitutional or international law. Rather, judges who are not familiar with international law, or who do not fully understand the requirements under Nigeria’s Constitution, mistakenly apply the law in a way that violates women’s international and constitutional rights. This is sometimes true even when an alternative outcome that meets international and national legal standards is available under Islamic law – or when Shar’ia itself requires a decision that accords with international and federal standards for women’s human rights. Constitutional and international law, in addition to Shar’ia, are binding in northern Nigeria. For this reason, interpreting these systems of law as complementary, as far as possible, would increase justice and reduce litigation time and costs for the parties, the individual states, and the nation. It would also help counter questions about Shar’ia’s legitimacy from the international community. For example, in the case of Amina Lawal, a Nigerian woman sentenced to stoning for zina (fornication or adultery), the Islamic court that sentenced her ‘disregarded an earlier ruling by the federal courts, which deemed the death penalty unconstitutional for offences such as adultery’. To resolve this conflict, the case must go all the way to the Supreme Court of Nigeria, involving considerable time and expense for the state. Codification would allow the legislature to pre-emptively articulate Shar’ia in a manner consistent with the Constitution and Nigeria’s international legal obligations.IV. WHY CODIFICATION IS AN APPROPRIATE SOLUTIONIV. A. WOMEN’S RIGHTS CANNOT BE PROTECTED WITHOUT LEGISLATIONIn the absence of a written code, women have no way of knowing – and thus asserting – their rights. A written code provides an explanation of rights for both men and women, which fosters greater marital harmony and understanding. When both spouses are clear on their rights and responsibilities within a marriage, families are stronger and more stable, and women do not have to fear they will be subject to cruelty, physical injury, or abusive arbitrary talaq for exercising their rights and duties as Muslims. In the many countries where Shar’ia personal law has already been codified, women’s rights and family unity have both benefited. ‘Women activists living in countries where Islamic law is upheld in matters of personal status note that the codification and unification of the legal codes and practices [of Shar’ia] at the very least provides a legal guarantee of women’s rights.’ As we have seen in Nigeria, without a written code, governmental mechanisms such as courts ultimately fail to safeguard women’s rights. When judges fail to accord women their divinely ordained rights as expressed in the Qur’an – when Shar’ia courts fail to protection women’s corresponding constitutionally and internationally guaranteed human rights – when the stability of the family, which is the warp and weft of the very fabric of society, is undermined because the people do not understand their rights and responsibilities – then it is the duty of the legislature to step in. Unlike the courts, the legislature is charged with the mandate of devising overarching solutions to societal concerns. While courts strive to resolve the problems of individuals in a manner consistent with the ideals of equity and justice, they can only work with the tools that lawmakers provide. In a democratic society, the legislature is uniquely empowered to create the frameworks necessary to ensure justice for all. Moreover, the legislature is the modern institution best suited to promulgate laws based on ijma’, or the consensus of the community. Islamic jurisprudence has long embraced the concept of ijma’. ‘The doctrine of ijma’, which simply means that whatever is accepted by the Islamic community is acceptable to God, had been considered by Muslim jurists as key to development and change in Islamic law.’ In the modern democratic state, the consensus of the community is expressed through the institution of the legislature. Legislators are those whom the people of the state have chosen, to guide and speak for them. Therefore, the legislature is empowered to pass laws on the basis of ijma’ that address the current situation of the Islamic community. The current situation of women in Nigeria cries out for legislative intervention. Women are suffering assault and death at the hands of those who should care for them, their husbands. Young girls are forced into marriage and subjected to the devastating effects of early pregnancy by their walis– the very people the Qur’an designates as their protectors. Women face domestic violence for seeking health care or attempting to carry out their religious duties of education and Hajj. When they turn to the courts for relief, they are prevented from escaping abusive or unhappy marriages by exorbitant khul requirements, lack of judicial grounds for divorce, and the absence of protections to ensure they are not left penniless, homeless, and unable to care for their children. The legislature’s codification of Shar’ia would ensure that the courts are a resource to protect women, rather than a weapon to further oppress them. Codification is an important step in guaranteeing the rights and responsibilities of a democratic society to all citizens, female and male. ‘[T]he masses in Islamic states…need to be made aware of the Islamic position on issues regarding women’ so that anti-democratic, oppressive forces ‘cannot legitimise their rule at home…by advocating domestic legislation which worsens the position of women as “Islamic”, when their policies are in fact contrary to the Islamic position’. Providing citizens with a written code helps to educate them as to their rights in the Qur’an and Sunnah. In a society striving for democracy, this ‘is vital, as it removes the opportunity for many governments’ – those that would deny fundamental rights like religious freedom, equality, and justice – ‘to legitimise their regimes and it exposes the Ullamah supporting these regimes as individuals who are politically, and not divinely, inspired’. By codifying Shar’ia, the legislature can fulfil its mandate to protect the people of Nigeria. IV. B. CODIFICATION WILL BRING NIGERIA IN LINE WITH OTHER MUSLIM COUNTRIESThere is a trend among Muslim countries to codify Islamic personal status laws. One source lists thirty-eight countries with predominantly Muslim populations. Of these thirty-eight, only seven (18 percent) have not codified any part of their personal status laws. Twenty-five (66 percent) have codified all parts of the law regarding personal status for their Muslim citizens. The remaining six (16 percent) have codified the Islamic personal status laws in part. The numbers show that the vast majority of Muslim countries have completely codified, or have begun to codify, their personal status laws. Many of these countries did not limit the exercise to the codification of their particular school of law, but borrowed principles from other schools that appeared more equitable or appropriate given the circumstances of their citizens. In some cases, such as Senegal and Tanzania, the legislatures have abrogated classical Islamic law and replaced it with civil family laws that incorporate basic Islamic principles, such as the requirement that a husband financially support his wife during the waiting period (iddah) following divorce. In the process of codification, the governments of these Muslim countries have created codes that are more consistent with international human rights law. Many countries have re-evaluated the classical jurisprudence of their respective schools of law (either Hanafi, Maliki, Shafi’i, or Hanbali) and replaced extreme principles with provisions that more adequately respect and uphold the fundamental human rights of their citizens, particularly their female citizens. The following statistics highlight the laws that relate to some of the particular problems that have been identified earlier in this memo as important to northern Nigerian women. Among the thirty-eight countries with majority Muslim populations studied for this memo, two countries have completely abolished the practice of polygamy and 22 countries have instituted restrictions intended to limit and/or regulate the practice. With regard to a minimum marriage age, 18 countries stipulate that girls below the age of 16 may not marry, while eight more require a girl be 18 or older to marry. With regard to a woman’s consent to marriage, 15 countries require that both parties consent to the marriage for it to be valid. With regard to equality of men and women upon the dissolution of marriage, four countries have legislated equal grounds of divorce for both parties, seven countries allow women to petition for a divorce without her husband’s consent (khul), and eight countries have either abolished or instituted regulations of the practice of unilateral repudiation (talaq). With regard to the custody of children after divorce, five countries allow the judge to decide which parent should get custody based on the best interests of the child and the remaining countries grant presumptive custody to the mother upon divorce. With regard to maintenance of women after divorce, twenty countries have included provisions in their codes that create financial obligations for husbands with respect to their former wives. The proposed code in this memo follows the general trend in Muslim countries towards codification. It also follows the trend towards increased compliance with international human rights standards. IV. C. CODIFICATION WILL ENSURE COMPLIANCE WITH NIGERIA’S CONSTITUTIONAL OBLIGATIONSNigeria’s new Constitution is committed to the elimination of discrimination on the basis of sex. Part II of the Constitution states as one of its ‘Fundamental Objectives and Directive Principles of State Policy’ that ‘discrimination on the grounds of…sex…shall be prohibited’. It goes on to state that ‘every citizen shall have equality of rights, obligations, and opportunities before the law’. Section 13 of Part II directs all organs of government to ‘conform to, observe, and apply’ these two policies, among others. Codification will enable the principles of equal protection and non-discrimination as embodied in the Constitution to be effectively observed and applied.In addition to observing the general principles embodied in Part II of the Constitution, the legislatures of northern Nigeria must uphold the fundamental rights of the citizens living in their territories in accordance with constitutional requirements. As discussed below, the current practices of Islamic personal law violate a number of rights that are guaranteed protection in the Constitution. Examples include the Section 33(1) right to life, the Section 34(1) right to ‘respect for the dignity’ of person, the Section 34(1)(a) prohibition of torture and inhuman or degrading treatment, and the Section 42(1)(a) requirement that the citizens of Nigeria of a particular sex not be subjected to disabilities and restrictions to which citizens of the other sex are not made subject. These rights are violated especially when women are subjected to abuse by their husbands. In addition to these protections, the Constitution requires state organs to ‘observe and apply’ a ‘respect for international law and treaty obligations’. This means that the rights guaranteed for women under international treaties to which Nigeria has acceded are required to be respected by all government organs. A judge on the Enugu Court of Appeals has already recognized this requirement when he argued in a recent case that Nigeria must abide by its international obligations as well as the Constitution. Codification will aid women’s constitutional rights to be given the protection required by the Constitution and that Nigeria’s treaty obligations are respected.IV. D. CODIFICATION WILL ASSIST NIGERIA IN COMPLYING WITH INTERNATIONAL HUMAN RIGHTS OBLIGATIONSNigeria voluntarily assumed international legal obligations regarding the protection of women’s human rights by ratifying the fundamental human rights conventions discussed below. The standards articulated in these conventions embody basic human rights norms designed to ensure a just social order – the very goal that underlies the principles of Shar’ia. ‘[N]ot only can Sharia accommodate and effectively implement international human rights standards, but the principles upon which Sharia is based, are entirely consistent with international human rights standards.’ Codification will allow Nigeria to move in the direction of full compliance with the standards that these conventions articulate, while simultaneously serving the ultimate purpose of Shar’ia – to achieve social justice. The human rights conventions Nigeria has ratified include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Universal Declaration of Human Rights (Universal Declaration), the Convention on the Rights of the Child (Child’s Convention), and the African Charter on Human and Peoples’ Rights (the African Charter). ICCPR, ICESCR, and CEDAW all have related institutional bodies that assist in clarifying the scope and nature of the provisions contained in the conventions. Specifically, the Human Rights Committee (HRC) issues General Comments interpreting ICCPR provisions; the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) issues General Recommendations explaining CEDAW provisions; and the Economic, Social and Cultural Committee (ECOSOC) issues guidelines on the ICESCR. Recommendations and guidelines promulgated by these committees indicate the official understanding of the proper interpretation of relevant treaty provisions. Although guidelines and recommendations are not binding, following them will ensure that Nigeria is in compliance with the binding provisions of the treaties themselves. The rights guaranteed under ICCPR and CEDAW are especially important because the HRC and the CEDAW Committee have the power to issue legal decisions in cases where an individual’s rights have been violated. The Child’s Convention is unique because it has been ratified by all but two member nations of the United Nations, indicating that its provisions express universal norms and leading to a general consensus that the Child’s Convention is now customary international law. The African Charter is important because its provisions have been explicitly incorporated into Nigeria’s laws. These international human rights treaties stipulate that women and girls enjoy all human rights and fundamental freedoms equally with men and boys. Discrimination on the basis of sex is prohibited under all of these treaties. Under CEDAW, which focuses on eliminating sex-based discrimination in particular, women and girls cannot be subject to any ‘distinction, exclusion or restriction’ that prevents women from enjoying human rights and fundamental freedoms in ‘political, economic, social, cultural, civil or any other’ aspect of life. Of particular significance is ICCPR art. 4, which allows derogation from the obligation to protect certain rights during times of ‘public emergency,’ but never permits states to derogate from their obligations of non-discrimination on the basis of sex. The African Charter and the international human rights treaties (ICCPR, CEDAW and ICESCR) not only legally guarantee the rights of women, but also impose a duty on Nigeria to protect women’s human rights through positive state action – in particular, legislative measures to ensure that women’s rights are effectively protected. In a common law legal system such as Nigeria’s, the legislature is the branch of government particularly entrusted with implementing domestic laws to give effect to the nation’s international obligations. The Nigerian government has already publicly affirmed its commitment to protecting the rights enshrined in these conventions, and has explicitly stated that ‘competent administrative institutions have been directed to give recognition to the enjoyment of human rights’. Legislators at both state and national levels, therefore, are under a legal obligation to undertake specific action to protect women’s human rights. Codification of Shar’ia laws is an eminently appropriate and effective way for state legislatures to fulfil this obligation. In particular, Nigeria is obligated to effectively protect women’s human rights in the area of marriage and divorce. CEDAW requires that women and men be equal in matters pertaining to marriage and family relations. The African Charter echoes this requirement, strengthening it by stating that women and the family are entitled to the protection of the state. All treaties mentioned above explicitly give women and men equality before the law, and CEDAW specifically states that this includes equal rights in the formation of contracts. Because marriage in Islam is a contractual matter, women and men must have equal rights to contract marriage, including equal rights to consent and equal rights to stipulate terms in the contract, as part of the right to equality before the law. Moreover, men and women must be equal within contracts, meaning that women’s rights within marriage cannot be restricted by contract without violating Nigeria’s international obligations. Under the African Charter, the right of women and men to equality within marriage may permissibly entail the reduction of privileges that men currently enjoy, or the imposition of duties on men, as part of men’s duty to respect their ‘fellow beings’ and ‘to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.’ This provision captures the interrelated nature of rights and responsibilities within marriage, acknowledging that each spouse has a duty to accord respect and dignity to his or her partner. CEDAW explicitly requires states to guarantee women’s human rights through legislation and effective protection in the courts. Other international legal documents discussed above leave the state free to determine the specific type of action it will take. Legislation, however, is within the types of state action contemplated by these documents, and is an appropriate way of safeguarding human rights in a federal democratic system such as Nigeria’s. Thus, codification of Shar’ia law on marriage and divorce will allow Nigeria to provide protection of women’s rights through legislation, a method of action permitted under ICCPR, ICESCR, the African Charter, and the Child’s Convention, and expressly mandated under CEDAW.IV. E. CODIFICATION WILL FURTHER STATE PUBLIC POLICY GOALSA written code allows states to guide judges in making decisions that further public policy. Where the Qur’an and the ahadith neither prohibit nor require a specific action, the state has an interest in ensuring that the doctrine of al-masalih al-mursala, translated as ‘public welfare’ or ‘public policy’, guides Shar’ia court decisions. A written code will guide judges in determining what outcome would be in the best interest of society, and will thus comport with the Islamic doctrine of human welfare (maslaha or masalaha) – a concept derived from the Maliki school of jurisprudence. The Maliki emphasis on public welfare is consistent with Nigeria’s international legal obligation to ‘modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’. Many practices currently allowed or encouraged under colour of Shar’ia law are not Islamic, but rather cultural or social practices based on outdated stereotypes. By modifying these practices through codification, northern Nigerian states will help Nigeria comply with international legal obligations while improving public welfare in accordance with Maliki doctrine. Although a Maliki concept, the doctrine of public policy has historically proved so important that other schools of Islamic jurisprudence adopted it early on. ‘The general consensus of Muslim jurists…has always been that the Shar’ia is concerned with human welfare and based upon justice and equality.’ Moreover, ‘[p]ublic interest or human welfare (masalaha) was accepted as a source of law’ in the early Muslim community, ‘provided that the case was suitable and relevant to either a universal legal principle or specific textual evidence.’ Therefore, the universal legal principle of equal rights for women (found in the Qur’an and in international human rights documents) should dictate that any interpretation of Shar’ia should improve the status of women or otherwise advance their public interest. Many Muslim scholars have said that judgments that promote the public interest are valid as long as they are not inconsistent with the Qur’an. Moreover, the four Sunni schools ‘generally agree that Islamic laws (1) change with the passage of time and with the change of place or circumstance; (2) must avoid harm; (3) may be discarded if they are based on a cause (‘Illah) which itself has disappeared, and (4) must serve the commonwealth (“public maslaha”)’. This consensus among the schools indicates the enduring wisdom of the doctrine of public policy – wisdom relevant to Nigerian state legislatures today. Applied to northern Nigeria, the four principles of Islamic law identified above 1) permit Nigerian state legislatures to codify Shar’ia in a manner appropriate for the time, place and circumstances of Nigerian society today, provided the codified provisions 2) avoid harm; 3) allow the legislatures to discard Islamic laws that no longer apply to current social situations; and 4) most importantly, require the legislatures to promote good public policy – policy that avoids harm and promotes the common good (maslaha) – in codifying Shar’ia. V. THE PROPOSED CODE PROVIDES SOLUTIONS TO PROBLEMS AFFLICTING NIGERIAN WOMEN THAT ARE CONSISTENT WITH ISLAM AND INTERNATIONAL LAWThe code proposed draws on authoritative Islamic sources and the codes and practices of other Islamic nations. At the same time, it moves toward accommodating international legal principles within the framework of Shar’ia. Using this methodology, the code articulates solutions for some of the most serious problems afflicting Nigerian women – and the whole of Nigerian society – today. V. A. THIS PROPOSED CODE DRAWS ON AUTHORITATIVE ISLAMIC SOURCES To protect women’s rights in a way that adheres to Islamic doctrine, drafters of the code looked to Islamic primary and secondary sources, drawing on the work of respected modern and classical Muslim scholars, the most authoritative interpretations of the Qur’an and the Sunnah, and the practices of other Islamic countries, particularly those in similar situations to Nigeria. In codifying Shar’ia provisions setting forth the laws of marriage and divorce, the proposed code has drawn from among the most authoritative modern and classical sources available, while remaining cognizant of the ways in which Islamic law was designed to adapt to changing social realities. Sources include the Qur’an itself, Sunnah set down by the most respected of scholars, modern Islamic jurisprudence and the actual codes of countries similar to Nigeria – northern African nations with Muslim populations, who look to the Qur’an as the source of divine guidance on marriage and divorce. In particular, we have relied heavily on the codes of Tunisia, Algeria, and Morocco, all countries that have traditionally followed the Maliki school of Qur’anic exegesis.Despite their traditional reliance on Maliki doctrine, Tunisia, Algeria, and Morocco have also borrowed concepts and interpretations from the other Sunni schools, namely, Hanafi, Shafi’i, and Hanbali. This approach is in line with classical Islamic scholarship in all four schools, which historically held the ideas of jurists from other schools in high regard. Imam Malik himself ‘prohibited early Muslim leaders Khalifa Abu Ja’far al-Mansour and Khalifa al-Rashid from ordering their people to follow the Maliki school of thought’. One of the striking features of traditional Islamic law is its general tolerance of diversity. The Prophet Muhammad is reported to have said, ‘Diversity of opinion in my community is a blessing.’ Historically, Muslim scholars have tended to exhibit a generous respect for different interpretations of Islamic law. In the Sunni world the once numerous legal schools have coalesced into four, all of which are regarded as equally orthodox. Thus, a student at Cairo’s prestigious al-Azhar University, the world’s oldest university and the traditional centre of Islamic religious and legal education, can choose to study law as taught by the Hanafi, Maliki, Shafi’i, or Hanbali schools. Although congruent in broad outline, the schools are different enough in their specifics that a variety of legal outcomes may result, depending on which school is followed. Because the four Sunni schools are broadly congruent and each is considered orthodox, Nigeria is free to adopt the aspects of each that are most suited to current social conditions. Indeed, because the Prophet himself regarded diversity of opinion as a strength within the Muslim community, selecting the provisions that will best achieve desirable legal outcomes is given highest sanction in Islamic law. Accordingly, while many of the code’s proposed provisions are based on the provisions in the codes of other Maliki school countries, provisions from countries following other schools have been borrowed when they would provide a more equitable solution to a particular problem facing northern Nigerian women. In addition, when no existing code addressed a problem directly, provisions were written using arguments from the Qur’an and public policy as justifications. Each provision is also justified through reference to specific Shar’ia, national and international legal principles. The proposed code would be annotated giving an explanation of the bases for choosing each particular provision.V. B. NIGERIA MUST PROTECT WOMEN’S RIGHTS BEFORE AND DURING MARRIAGEThe Qur’an repeatedly emphasizes that men and women are equal. ‘In Islam there is absolutely no difference between men and women as far as their relationship with God is concerned.’ Moreover, marriage as contemplated by the Qur’an is an equal partnership between women and men, based on love and mercy and intended to ensure the tranquillity of both partners. International law takes a similar approach to marriage. For example, CEDAW and ICCPR specify women’s equal rights with men within marriage and as pertains to the family, while the African Charter emphasizes the importance of the family as a fundamental social unit. The viability of this vital social unit depends upon strong relationships within the family and between husband and wife. To comply with the Qur’an and the international legal requirement of equality within marriage, Article 1 of the proposed code sets out the goals and purposes of marriage – including mutual respect, dignity and just dealing – and is explicitly intended to guide interpretation of all other provisions. Subsequent provisions of the code are designed to keep women safe from the problems we described above – domestic violence and cruelty, forced marriage of young girls, and arbitrary abandonment with no way to provide for themselves and their children. By enacting this code, the legislature will effectively solve these problems, and will protect women’s Islamic, constitutional, and international human rights. V. B. i. Nigeria must legislate a minimum marriage age and prohibit forced marriagesSetting a minimum marriage age and legislating against forced marriages will protect women from the health dangers and human rights violations associated with young marriage and early pregnancy, ensure that women only enter into marriages to which they have consented, and protect women from domestic violence. Specifying a minimum marriage age will bring Nigeria in line with many other Muslim countries, including Algeria, Egypt, Iraq, Jordan, Lebanon, Libya, Morocco, Palestine, Syria, Tunisia , and Yemen, all of which have legislated a minimum marriage age. Prohibiting forced marriages will ensure that a woman’s right under Islam to freely enter into contracts applies in the area of marriage as well as in the area of commerce. Moreover, specifying a minimum marriage age and prohibiting forced marriages are important steps in ensuring women’s constitutional rights and complying with Nigeria’s international obligations. The principle of a minimum marriage age is well supported under constitutional and international law. Setting a minimum marriage age that corresponds to physical adulthood safeguards women’s health, increases their life expectancy, and raises the likelihood that their children will survive infancy. It also helps to decrease the increased domestic violence and abandonment that accompanies early marriage. International law mandates that Nigeria implement policies that will protect women’s health ; permitting or condoning practices that decrease life expectancy, raise infant and maternal mortality rates, or lead to increased domestic violence are violations of the rights to life and to health. Additionally, the Nigerian Constitution guarantees all citizens the right to life. Therefore, setting a minimum marriage age of 17, an age at which most girls are physically mature, will assist Nigeria in protecting women’s international and constitutional human rights. A minimum marriage age helps to ensure that all marriages are entered into with the free and full consent of both spouses, as required by international law. A young girl is not capable of giving consent until she has reached the age of majority. The age of majority is presumptively defined in the Child’s Convention as 18 years. To accommodate the current societal situation in northern Nigeria, however, the proposed code sets the minimum age of legal majority as 17 years. While the designation of 17 years as the age of marriage and majority is a justifiable deviation from the presumptive age set in the Child’s Convention, a greater deviation would undermine the Convention’s foundational principle of special protection for children, put girls at physical risk before their bodies are mature and encourage the already prevalent practice of forcing young girls into marriage when they are too young to protect themselves. For women who have reached adulthood, Nigeria must ensure that they cannot be forced into marriage. Islamic law, the practices of other Muslim countries, the Nigerian Constitution, and international legal instruments that Nigeria has ratified are in agreement that forced marriages are legally prohibited. Marriage in Islam is a contract that requires the consent of both parties. Despite practices to the contrary, Islam is clear on the place of the woman’s consent to a marriage. Traditions hold that ‘if a man gives his daughter in marriage in spite of her disagreement, such marriage is invalid’ and ‘a matron should not be given in marriage except after consulting her daughter; and a virgin should not be given in marriage except after her permission’. Prohibiting coerced marriages is also consistent with Islamic principles giving women full legal rights to conclude contracts, which imply that no third party may conclude a contract for a woman without her consent. More broadly, the very definition of the term ‘wali’ is a guardian authorized to act only on behalf of ‘a minor or any person not qualified to act in legal matters on his own behalf’. Because adult women are authorized under the Qur’an and the Sunnah to make contracts, transact business and lead nations, they cannot be bound to contracts concluded by a guardian or anyone else without their consent. Many Muslim countries have addressed the problem of forced marriage through legislation. A majority of Middle Eastern and African countries that have codified Islamic marriage and divorce laws have explicit prohibitions on coerced marriage; Muslim countries around the world use registration and notarisation requirements as a way to prevent coercion and to safeguard women’s other rights. ‘[C]ountries as diverse as Algeria, Bangladesh, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Somalia, Syria, Tunisia and Yemen require registration or notarisation of marriages and divorces, through either a judge or the courts.’ Worldwide, ‘the overwhelming majority of modern legal codes forbid marriage guardians, even fathers, from compelling women into marriages or giving them in marriages without their consent.’ The proposed code forbids marriage guardians from forcing their wards to marry (Article 3), and requires registration of marriages (Article 8) to ensure that forced marriages – as well as underage marriages and other illegal practices – are effectively prohibited. Legislating against forced marriage will help bring the northern Nigerian states into compliance with constitutional and international law. Constitutional law forbids a father from forcing his daughter to marry: The Nigerian Constitution stipulates that ‘It shall be the duty of every citizen to - … respect the dignity of other citizens and the rights and legitimate interests of others’ – arguably, most especially other family members. International law obligates Nigeria to protect women and girls from forced marriage, because ‘a woman’s right to choose a spouse and enter freely into marriage is central to her life and to her dignity and equality as a human being….a woman’s right to choose when, if, and whom she will marry must be protected and enforced at law’. Safeguarding women from forced marriage is also part of Nigeria’s general duty to establish effective equal protection of the laws. To effectively protect women and girls equally with boys and men, Nigeria must prevent the forced marriage of females. Effective equal protection requires ensuring that forced marriage does not occur de facto despite a legislative prohibition – for example, by mandating registration of marriages. Mandatory marriage registration is a permissible activity of the state under Shar’ia, because historically, secular or state authorities have always had the right under Islam to order administrative matters. Moreover, mandatory registration ensures that a public official charged with upholding the law will witness that both parties are entering into marriage with free and full consent, in accordance with international law. V. B. ii. Nigeria must prohibit the marriage guardian from impeding a woman’s right to contract her marriage.Just as Nigeria must ensure that a guardian does not coerce a woman into marriage, so it must also ensure that a guardian does not prevent a woman from marrying. Islam empowers a woman over the age of majority to make her own contracts. In particular, it gives an adult woman the ability to enter into a contract, whether for business or a real estate purchase or to form a partnership. To be consistent with the spirit of Shar’ia, the codified law must give an adult woman the power to enter into a marriage contract even if her wali objects. Many Muslim countries have recognized that a guardian may not impede a woman’s right to marry. In the Middle East and northern Africa, Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Syria, Tunisia, Yemen and Morocco all have in some way limited a guardian’s power to control a woman’s marriage. This is consistent with the Shar’ia understanding of ‘adl’, or ‘prevention of a woman from marrying (usually by her wali)’, which is unlawful for a woman of full ahliyya (‘legal capacity to act in legal or financial transactions’). International law requires that women must be free, as men are, to choose a spouse and enter into marriage. In addition to the explicit right to marry “when, if, and whom” she chooses, however, a woman also has international rights that echo Islamic injunctions giving women the right to enter into contracts generally. International law mandates that states ‘give women equal rights to conclude contracts’, and the right of a woman to recognition as a person before the law has been interpreted to include the freedom to enter contracts. The HRC has explained that states should make sure that cultural, religious, historical or traditional attitudes are not used to justify violations of women’s right to equality and the equal enjoyment of all ICCPR rights, which includes women’s rights to equality before the law and as regards contracts. To afford women equal contractual rights with men, and as a step toward upholding women’s freedom to marry and found a family, Article 4 of the proposed code ensures that adult women, like adult men, cannot be prevented from forming a marriage contract if they so desire. V. B. iii. Nigeria must protect the right of men and women to agree on the terms of a marriage contractThe right of women and men to include specific terms in a marriage contract is one of the most important and best-established safeguards for women in Islamic law. ‘Muslim jurists have always recognized the validity of including certain conditions in the marriage contract,’ such as a woman’s right to divorce her husband at will or to refuse to leave her town in order to move with him. This is based in part on a Sunnah describing the marriage contract for the third marriage of Sukaynah, the Prophet’s granddaughter, which included the conditions that her husband could not prevent her from doing what she wished, could not contradict her wishes, and could not touch another woman while married to her. Furthermore, it is consistent with the general Islamic principle that women can enter into contracts on their own behalf, and supports the interpretation that women’s right to contract extends to the contracting of marriage. The right to include specific marriage contract terms is explicitly upheld in Islamic personal status codes around the world. Many Muslim countries, including Algeria, Bangladesh, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Syria, and Tunisia, ‘all specify the right of both spouses to stipulate conditions in the marriage contract that they consider to be beneficial, provided that they do not contradict the law or the purpose of marriage’. By upholding this right, these countries not only give effect to a long-standing Shar’ia principle, but also ensure compliance with newer international human rights norms. Article 2 of the proposed code enables Nigeria to follow the lead of these other Muslim countries by allowing women and men to stipulate terms in the marriage contract to which both intending spouses must agree. V. B. iv. Nigeria must ensure a woman’s financial freedom within marriage by regulating dower and protecting earnings. To keep women from being trapped in abusive or violent marriages, and to prevent the forced marriage of young girls in exchange for dower, Nigeria must regulate dower and protect women’s financial independence. Nigeria must protect women’s right to dower. The Qur’an is clear that dower is the exclusive property of the woman to be married. Dower is intended as a financial safeguard for the woman, as it enables her to protect herself and her children if, for any reason, her husband does not provide for her. Dower also gives the woman the financial ability to fulfil her rights and duties as a devout Muslim: to educate herself, to become a businesswoman like Khadija, or to perform the Hajj. If the woman’s marriage turns violent, and she or her children are in danger, dower provides a way for her to pay for khul and escape the marriage. Permitting the giving of dower to anyone other than the woman to be married violates specific Qur’anic provisions and defeats the Qur’anic intention that dower serve as a financial safeguard for women. Allowing receipt of dower by someone other than the woman to be married also encourages families to force girls to marry, often at a very young age, in exchange for dower. Forcing a girl to marry in exchange for dower is a form of illegal trafficking in women. It also violates women’s equal rights to property under the African Charter, and to ‘administer property’ under CEDAW. The proposed code ensures that women receive the financial safety net of dower by stipulating that a marriage is only valid upon specification of a dower (Article 9), setting a minimum dower of 5,000 niara (Article 10), and giving the woman to be married exclusive property rights over her dower (Article 10). In addition to receiving a dower when entering marriage, a woman must have control over her finances during marriage. Provisions safeguarding a woman’s dower rights upon entrance into marriage are meaningless if her husband can subsequently squander her money or property. Therefore, Nigeria must ensure that a husband has no control over his wife’s money. This is consistent with the Qur’an and the stated goals of the Nigerian government, and has already been implemented by many Muslim countries. The proposed code gives a married woman rights over her dower (Article 15), her money and other property (Article 16), any money she spends to maintain herself if abandoned by her husband (Article 19), and any money she earns from working (Article 22). These provisions ensure that, if forced to leave her home to flee domestic violence, or if abandoned by her husband due to arbitrary triple talaq, a woman will not be left penniless or deprived of the money and property to which she is rightfully entitled. V. B. v. Nigeria must legislatively give women the right to move freely, both within and outside Nigeria, and to leave the house without their husband’s permission. To protect women’s ability to fulfil their Qur’anic duties, and to comply with international law, Nigeria must make illegal cultural and pseudo-religious practices that restrict women’s free movement, association with others and assembly in public places. As part of this right, Nigeria must ensure that women are able to a) access healthcare ; b) receive an education equally with men ; c) work ; d) participate in political life ; and e) participate in cultural and recreational activities. Additionally, Nigeria must give adult women the freedom to travel outside the country without permission of their husbands or other family members, to further enable them to access education, healthcare and cultural activities (including the Hajj, an obligation of devout Muslims) and to ‘ensure to women…the opportunity to represent their Governments at the international level and to participate in the work of international organizations.’ Protecting these rights will bring Nigeria into compliance with the Qur’an, international law and the Nigerian government’s stated policies, all of which call for the protection of women’s freedom of movement and related rights. According to the Qur’an, women are the khalifa (vicegerents) of Allah on earth, and thus have a duty to educate themselves, to perform Hajj, and to work for their own financial gain and for the achievement of God’s will on earth. International law requires that states protect women’s ability to fulfil this duty, by ‘accord[ing] to men and women the same rights’ regarding movement, association, and assembly. In particular, the HRC has expressly said that states must protect women from the laws and practices that restrict their freedom of movement because of a husband’s power over his wife. When a woman cannot move freely – when her right to fulfil her religious obligations is subject to the whims of her husband – she may be forced to choose either to fail in her duty to God, or to suffer potentially violent harm as her husband prevents or “punishes” her for following her conscience and divine dictates. Therefore, the state must legislatively protect women’s right to freedom of movement. V. B. v. a Nigeria must protect women’s right to educationEducation is a fundamental obligation of all Muslims, male and female. Indeed, the first divine revelation to the illiterate Prophet was the command, ‘Read.’ ‘The rest of the Qur’an is replete with verses that emphasize the importance of the pursuit of knowledge’ by women as well as men. ‘There is a general agreement among Muslim scholars that educating women is a duty, not just an option or a luxury.’ The state must legislate to protect a woman’s right to education. When a woman is not allowed to leave her home, even the best state-sponsored educational opportunities are beyond her reach. To effectively protect a woman’s right and duty to obtain an education, Nigeria must provide not only educational opportunities, but also legislative guarantees that she can access these opportunities – including laws allowing her to leave the house without requiring her husband’s consent. In addition to international law, there is strong Islamic precedent for Nigeria’s affirmative duty to ensure that women have legal and practical access to education: As early as the tenth century, prominent jurist Al-Qabisi said that ‘if parents are financially unable to educate their children, the community must pay to educate them instead.’ V. B. v. b Nigeria must protect a woman’s right to work, access healthcare, and participate in political and cultural lifeMuslim women are divinely obligated to work for the achievement of God’s will on earth. To do so, however, their rights to political and cultural participation, healthcare, and work must be protected. When a woman cannot go to the mosque, she cannot learn about God’s will. When she cannot take part in cultural life, she cannot promote God’s will in civil society institutions. When she cannot participate in political life, she cannot work to implement God’s will through political avenues such as legislation. When she is in poor health, she has no strength to lend to the achievement of God’s will, either inside or outside the home. When she is denied the right to work, she is denied the ability to provide for herself and her children, to keep herself alive and in good health so that she is better able to fulfil God’s will. Therefore, the state must ensure that women are able to move freely so that they can undertake their religious obligations. Only the legislature has the power to enact laws that will guarantee these rights to all women. And only when women are guaranteed the right to move freely, both inside Nigeria and beyond its borders, can their other fundamental human rights be truly protected. V. B. vi. Nigeria must legislate against domestic violenceInternational law condemns domestic violence as a violation of numerous fundamental rights. To begin with, the Human Rights Committee recognizes domestic violence as a violation of the right to be free from cruel and inhuman treatment in General Comment 28. Furthermore, the Committee’s General Comment 20 recognizes that cruel treatment includes not only acts that cause physical pain, but those that cause mental suffering as well. Cruel and inhuman treatment has been condemned and prohibited in several international agreements including Article 5 of the Universal Declaration, Article 7 of the ICCPR, and Article 5 of the African Charter. In addition, domestic violence violates many of women’s internationally recognized rights. The CEDAW Committee has addressed violence against women in general, and domestic violence in particular, in several of its General Recommendations. General Recommendation 12 recognizes domestic violence as discrimination within the meaning of Article 1 of CEDAW as well as a violation of various fundamental rights. The Recommendation states further that violence against women in the family is ‘one of the most insidious forms of violence against women’ and that it puts their health and their lives at risk. The Committee identifies the various internationally recognized rights that are violated by gender-based violence in General Recommendation 19. They include: the right to life, the right to be free from torture and cruel, degrading and inhuman treatment, the right to equality in the family, and the right to health. The rights listed in the Recommendation are guaranteed in several international treaties, such as the African Charter, the ICCPR, and the Universal Declaration. Furthermore, CEDAW Recommendation 19 identifies violence against women as a major health concern. The International Covenant on Economic, Social and Cultural Rights also guarantees the right to ‘enjoyment of the highest attainable standard of physical and mental health’. The rights in the ICESCR must be guaranteed for all people, without regard to sex. Because domestic violence, and the incident health problems, affects women disproportionately, it constitutes discrimination on the basis of sex with regard to the right to the highest standard of health.The committees overseeing the implementation of the various international conventions have made it clear that the obligation to protect women from gender-based violence extends to both public and private persons. In addition, it requires States to take appropriate measures to remedy the problem of domestic violence. In particular, CEDAW General Recommendation 24 explains that the obligation to protect women from domestic violence requires States to take action to prevent violations by both public actors and private persons and to impose sanctions when a woman’s right is violated. In CEDAW General Recommendation 19, the committee reiterates the requirement in the Convention to take appropriate measures to eliminate all violence against women. The Recommendation further states that the law should give effective protection from domestic violence to all women and to implement measures to overcome violence against women, such as access to a civil remedy in cases of domestic violence. The HRC, in General Comment 28, states that the duty to end discrimination with respect to the rights guaranteed in the ICCPR extends to both the public and the private sector. The Committee on Economic, Social, and Cultural Rights also issued a resolution mandating States to take immediate measures to punish violence against women appropriately. Islamic doctrine repudiates violence against women as well. The Qur’an is clear that men must treat their wives kindly. While the Qur’an provides that men may ‘beat their wives lightly’, the provision was not meant to sanction violence and was meant as a last resort only, after all other attempts at reconciliation, such as discussion and arbitration, have failed. Furthermore, Muhammad himself detested cruel treatment of women and frequently told his followers that he had never raised, and would never raise, a hand against his wives. At the time of the Revelation, men frequently beat their wives and Muhammad desired a flat ban on striking one’s wife. Muhammad sought an answer on the matter and verse 4:34 was revealed to him. It was not the full ban that Muhammad desired but it was a clear limitation of the practice, as it existed at the time. Given the latitude the Qur’an provides for the gradual abolition of certain deplorable practices, such as slavery, this limitation was meant to be a step in the gradual abolition of striking women. This is especially true given the negative view Muhammad himself had of beating women. It is now time to finally abolish such cruelty and violence against women. Thus, it is clear that Nigeria must take measures to eliminate violence against women and to provide a remedy in situations where it occurs.V. B. vii. Nigeria must abolish polygamyInternational law clearly prohibits polygamy. The CEDAW Committee has stated explicitly that a ‘[p]olygamous marriage contravenes a woman's right to equality with men’. Supporting this interpretation, the HRC has also stated that polygamy discriminates against women in violation of the equality provisions of ICCPR. In addition to international law, the Qur’an itself also prohibits polygamy. Allah said, ‘If you fear that you shall not be able to deal justly with the orphan girls, then marry (other) women of your choice, two or three or four; but if you fear that you shall not be able to deal justly (with them), then only one.’ However, the intent of this verse was to prohibit polygamy entirely – for no mortal man can deal justly with more than one wife. The idea that no one except the Prophet could deal justly with more than one wife is borne out by widely respected Sunnah and has been understood as a basic tenet of Islam since the days of the classical scholars. Bukhari recounts two ahadith consecutively: First, a companion of the prophet is told by another that he must marry, because the greatest Muslim of all, the Prophet Muhammad, had the greatest number of wives. Second, a companion relates that the Prophet said, ‘The rewards (of deeds) are according to the intention, and everybody will get the reward for what he has intended. So whoever emigrated for Allah’s and His Apostle’s sake, his emigration was for Allah and His Apostle; and whoever emigrated for worldly benefits, or to marry a woman, then his emigration was for the thing for what he emigrated for.’ These two ahadith, taken together, tell us that having a large number of wives for personal pleasure is not sanctioned by the Qur’an; only the Prophet, who was the greatest Muslim of all, and who did everything for the sake of Allah, could have a great number of wives. Just a page later, Bukhari recounts a story of Anas bin Malik, in which the Prophet tells ‘Abdur-Raman bin ‘Auf, a man with no wives, to take one of Sad bin Ar-Rabi’ Al-Ansari’s two wives – further evidence that the Prophet believed ordinary men should have only one wife. (Moreover, when the Prophet heard that Auf had given his new wife only one stone’s worth of gold for her dower, he instructed Auf to give his wife a banquet, ‘even with one sheep’. )Muslim scholars have argued that polygamy, like slavery, is contemplated in the Qur’an only because of societal conditions at the time of its revelation. During the time of the Prophet, some men had as many as twenty wives. Limiting the number of permissible wives to four was a significant step forward for women because it ensured that men would be better situated to provide for all of their wives. Like slavery, which was too entrenched in society at the time of the Prophet to abolish immediately, polygamy was meant to be eliminated gradually. Additionally, the precise text of the Qur’anic verse 4:3 indicates that it was intended to apply to a particular set of circumstances, specifically a post-war society where large numbers of female orphans were left without protection. To accommodate the great imbalance in the female-male ratio, and to provide protection for the many female orphans, the Qur’an permitted limited polygamy. In circumstances where the ratio of women to men is roughly equal, however, this justification for polygamy does not exist. In accordance with the argument or practical necessity that polygamy should be gradually eliminated, 22 of 38 countries with majority Muslim populations have instituted restrictions intended to limit and/or regulate the practice. Two more have outlawed polygamy entirely. Although outlawing polygamy imposes a duty on men to honour their first marriage by refraining from taking a second wife, imposition of this duty is perfectly consistent with international law. In fact, as the African Charter explicitly notes, ‘the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone’. As a newly-emerged democracy, and in particular in northern states striving to create a just society in accordance with the purpose and goal of Shar’ia, Nigeria should take a bold step toward the implementation of the Qur’anic ideal – and compliance with international law – by prohibiting polygamy. V. C. NIGERIA MUST PROTECT WOMEN’S RIGHTS AT DISSOLUTION OF MARRIAGEV. C. i. Nigeria must address domestic violence by ensuring women can leave an abusive marriageV. C. i. a Nigeria must ensure that a woman can realistically obtain a judicial divorceDomestic violence is a problem in all parts of Nigeria. Women in northern Nigeria as of now have no remedy against domestic violence or any means of escaping an abusive marriage because they do not have realistic access to divorce, in law or in fact. As discussed immediately above, international law recognizes domestic violence as a violation of fundamental human rights. If a woman is being abused in a marriage, Nigeria has the obligation to provide a means of escape, in order to protect her health, dignity, and in extreme cases, her life. Nigeria also has the obligation to provide the woman with access to a civil remedy in accordance with its international obligations. Article 27 of the proposed code provides several grounds under which a woman can petition for divorce because of abuse on the part of her husband. Proposed Article 27(a)(5) provides for divorce on the grounds of cruelty as defined in Article 16 of the proposed code. Given the international recognition of domestic violence as cruel treatment, and given the definition of cruelty in proposed Article 16, a woman should be able to obtain a divorce because of domestic violence using this ground. Proposed Article 27(a)(7) provides for divorce on the grounds of legally recognized harm or injury. Again, as discussed above, domestic violence is internationally recognized as harmful. In addition, national law provides for legal remedies when a husband injures his wife by inflicting hurt or grievous hurt. Thus, provision (a)(7) can be used to grant a woman a judicial divorce when she shows that she has been harmed or injured according to northern Nigeria’s own standards. However, because the standards include only particularly violent and egregious incidents of harm, such as breaking limbs or knocking out teeth, other provisions are needed to allow women who are being subjected to less visible forms of physical abuse as well as psychological and sexual abuse.Proposed Article 27(a)(8), which allows a woman to petition for divorce based on her husband’s contravention of any other provisions in the proposed code, is specifically designed to give women the opportunity to escape an abusive marriage even when they cannot obtain a divorce based on cruelty or legally recognized harm or injury. Article 14 in the proposed code prohibits a husband from harming his wife in any way because it is contrary to the injunction in the Qur’an to deal justly with, and be kind to, one’s wife. If the husband does harm his wife in some way, then she can seek a divorce on the ground that he contravened the code by harming her in a way that is recognized by the code provisions. This provision can be used in the event provisions (a)(5) and (a)(7) cannot be used because Articles 13 and 14 of the proposed code define abuse by a husband and harm in broad terms and a woman can more easily show a contravention of these articles than the narrower grounds of cruelty and legally recognized harm.Proposed Article 27(b) is also necessary to ensure that a woman can prove at least one of the grounds listed in the article in her attempt to escape an abusive marriage. This proposed article addresses the evidentiary hurdles that a woman will have to overcome in order to obtain a judicial divorce based on harm, cruelty, or the contravention of a code provision. The first two options, that proof be adduced by the testimony of two witnesses or the notoriety of the act, are accepted standards of proof in the Maliki School as understood by the Shar’ia courts of northern Nigeria. The first option, which requires the wife to produce two witnesses to prove her claim will many times be almost impossible for a woman to meet, especially since domestic abuse is something that occurs in the privacy of a couple’s home. The problem is further exacerbated by the fact that many women in northern Nigeria are kept in seclusion and are not able to leave the home to be a witness on someone else’s behalf. The second option allows the notoriety of the abuse or harm to be shown by the neighbours’ knowledge of a husband’s abuse towards his wife or the general reputation of a husband as someone who abuses his wife. This standard could be easier to meet (provided the judge is active in his search for the truth), but would still present problems because women may be afraid to talk about the abuse or may have no opportunity to, again because of the practice of seclusion. The third option, li’an, is necessary to ensure a woman can prove harm or cruelty based on her testimony alone. Li’an, or mutual imprecation, is a situation whereby the marriage is dissolved after the husband has accused his wife of adultery and she has denied it four times and then both take an oath as to the truth of their claim. Li’an is used in cases where adultery cannot be proved because of the four-witness requirement. Adultery is similar to abuse and cruelty in that it is a private act that is seldom witnessed by other people, which makes it necessary to rely on the testimony of the husband and wife alone. If they each swear to the truth of their statements, then their testimony, in a sense, cancels each other out and the marriage is dissolved. In this way, a woman can claim abuse by her husband, and if he denies it they can both take an oath and have the abusive marriage dissolved.V. C. i. b Nigeria must ensure a woman’s ability to exercise khulWomen in northern Nigeria cannot realistically exercise khul because their husbands require that they pay exorbitant sums in return for their freedom. In addition, if the husband does not agree to khul, then a woman cannot leave a marriage that is no longer beneficial to her. According to Nigeria’s international obligations, women should have the same rights as men to petition for and be granted a divorce. Furthermore, the HRC in its General Comment 28 specifically states that the grounds for divorce should be the same for men and women. If a husband is allowed to petition for divorce at his will, and without his wife’s consent, then the same right to petition for divorce at-will, and with-out her husband’s consent, must be granted to women. Indeed, this form of khul is the only way the practice of khul and talaq will be consistent with international law since it corresponds to the husbands right to divorce at-will. The sum to be paid in return for a woman’s release from the marriage must not be so large that it nullifies the woman’s right to exercise khul. The sum should not exceed the amount of the mahr/dower, which is a gift to the wife upon consummation of the marriage. Sums in excess of the amount of the mahr/dower will make the payment a ‘ransom’ instead of the return of a gift. Requiring a woman to pay a ‘ransom’ makes the likelihood of the woman being able to get out of the marriage very small, especially in northern Nigeria where women do not have their own income source. It also violates Nigeria’s constitutional obligation to not subject some citizens to a disability that other citizens are not subject too because requiring the payment of an amount of money that no woman in northern Nigeria could possibly obtain puts a financial disability on them with regards to obtaining a divorce. Thus, the proposed article is consistent with international and national law because it allows divorce at-will, requires that the divorce take place in court, and requires a payment of some form (return of the mahr/dower in khul and compensation in talaq). It is the same ground for divorce in different forms.The Qur’an allows divorce by khul for women. In addition, several countries of the Maliki School allow divorce by khul, including Morocco, Algeria, and Libya. In Algeria, the judge sets the amount of the payment of reparation in accordance with a statutory limit at the value of the mahr/dower/dower. While other codes do not make such a stipulation, many jurists support limiting the khul payment to the mahr/dower amount. Also, a judge in northern Nigeria has held that there is much support for in Maliki doctrine (including Malik himself) for limiting the payment to the value of the mahr/dower. Thus, a similar provision has been included in the proposed code because it is necessary to give effect to the right of the woman to exercise khul. V. C. i. c Nigeria must ensure a woman’s access to custody of her childrenIn northern Nigeria, women often lose custody of their children because of the erroneous local belief that Islamic law grants men custody of their children upon divorce. As discussed supra, international law requires that women and men have the same rights and responsibilities upon dissolution of the marriage. This requirement extends to matters of custody as well. Article 16(1)(d) of CEDAW ensures the same rights and responsibilities of men and women as parents in matters relating to their children. Also, the HRC General Comment 19 interprets Article 23(4) of the ICCPR to prohibit any discriminatory treatment with respect to custody of children. Allowing custody to always go to the husband discriminates against women and denies them their international right to contribute to the upbringing of their children.The practice in northern Nigeria also denies the right of the children to ‘know and be cared for by his or her parents’ because when the father takes custody of the children, they often do not interact with, or even see, their mother again. The CRC also guarantees the right of children ‘to maintain personal relations and direct contact with both parents’ regularly. Because these international conventions require that each parent have a personal relationship with their child, the practice in northern Nigeria of denying women custody, and in many cases all contact with the child, contravenes Nigeria’s international obligations.Traditional Maliki doctrine provides that women shall have custody of their children upon divorce until the age of puberty for both boys and girls. Some Muslims believe that there is no support for ending a mother’s custody at a particular age because there is no verse in the Qur’an that substantiates arbitrarily choosing an age at which custody should end. The proposed code gives the mother presumptive custody of her children in accordance with traditional Maliki doctrine (Article 31). Proposed Article 31(b) also provides for an extension of custody if the judge determines that it is in the best interest of the child. Proposed Article 31(b) is borrowed from Egypt’s code, but the concept of extending the age limits of custody beyond that of traditional Islamic doctrine is found in the codes of many Muslim countries including Somalia and Sudan. Proposed Article 31 is in accordance with Nigeria’s international obligations even though it grants presumptive custody to the mother and thus is not neutral on its face. Article 4(1) of CEDAW allows states to take special, affirmative measures to remedy past discrimination. Given the reality that fathers typically seize their children upon divorce, in the belief that it is their right to do so, the proposed provision will help rectify strong judicial preferences towards granting men custody and ensure women are not prevented from exercising their right to divorce out of fear of losing their children.V. C. i. d Nigeria must provide for the financial security of women after divorceIn northern Nigeria, women do not receive financial support upon divorce. This is particularly problematic because, as discussed above, most women do not work while they are married and thus have no means of financial support outside of marriage. The result is that women do not seek divorce because they cannot financially survive outside of marriage. This nullifies their right to seek a divorce and discriminates against them with respect to divorce because men can seek divorce unhindered by financial concerns. International covenants require that the rights therein guaranteed be effective. CEDAW Article 2(c) and ICCPR Article 2(2) mandate that Nigeria must make the right to equality in matters of divorce effective. The proposed code provides for various forms of financial support for women upon divorce. First, Article 30(a) provides for the classical requirement that men continue to maintain their wives during the waiting period (iddah). This requirement is clearly stated in the Qur’an. Almost every Muslim country with codified personal status laws contains a similar provision. In particular, Nigeria’s fellow African Maliki School countries, Algeria, Tunisia, and Morocco have provisions that are nearly identical. The requirement that this maintenance include, at the very least, retention of the matrimonial home is supported as well by the Qur’an which prohibits men from throwing women out of the home until the divorce is final (after iddah). Second, Article 30(b) provides for compensation for a woman who is divorced from her husband by talaq without any fault on her part. The Qur’an requires a husband to pay such compensation to his wife (mutaa), in the event he divorces her without any reason, in order to ease the bitterness of the separation. The compensation will also ensure that women have some form of financial support after the waiting period expires. Many Muslim countries have provided for post-divorce maintenance in their codes in order to comply with international human rights norms. The post-divorce maintenance varies in form from granting compensation if the husband arbitrarily exercises talaq (Algeria) to the granting of maintenance for an unlimited time after divorce in the form of alimony payments (Tunisia). In all, twenty countries have created some form of financial obligation for the husband to support his former wife. Proposed Article 30(b) follows this trend. Proposed Article 30(b) follows this trend. The judicial determination of the amount of such compensation will ensure that it is not an unrealistic obligation on the husband (given the economic reality in northern Nigeria). Third, proposed Article 30(c) provides for compensation for the housework a wife performs during the marriage. Again, the compensation will ensure that a woman have some means of supporting herself upon divorce, making her more able to exercise her right to divorce. The provision is based on verses in the Qur’an that say that Muslim women, like Muslim men, are entitled to the fruits of their labour. In addition, Islamic tradition holds that a woman is not required to work in her husband’s home ; even the act of breastfeeding a child entitles a woman to payment from her husband. This is so because the marriage contract is a contract for the marriage bond, not for services and therefore all housework is voluntary rather than required. Thus, because women contribute to chores voluntarily, they must be compensated for it. Article 30(c) is inspired by a law passed in 1991 in Iran, the first of the modern Islamic theocratic states. The law, which was passed as a result of lobbying by women’s rights activists, allows a judge to award a woman reasonably calculated ‘wages’ for housework. There is also a requirement in international law of putting a monetary value on domestic activities by women. In this way, by directing the judge to put a monetary value on housework performed by the wife during the marriage, the proposed article will provide women with a legitimate means of support after divorce, especially given the reality that all women in northern Nigeria perform such housework. This article will thereby ensure that women are not deterred from seeking divorce because of the fear of not being able to provide for themselves or their children.V. C. ii. Nigeria must regulate talaqTalaq as practiced in northern Nigeria is in contravention of Nigeria’s international obligation to ensure the ‘same rights and responsibilities during marriage and at its dissolution.’ By simply repeating the phrase ‘I divorce you’ three times, a husband can repudiate his wife without providing any justification and without filing a petition with the court. A wife has no corresponding right to unilaterally repudiate her husband and her consent is not needed to give effect to talaq. Under this practice of unilateral divorce, men can easily abandon their wives. Because the practice can take place outside of the court, women have no way to obtain maintenance, compensation, or custody of her children. The HRC in its General Comment 28 clearly identifies unilateral repudiation as a violation of the ICCPR Article 23(4) requirement of equality of rights at dissolution of marriage. The Committee states further in General Comment 28 that states should ensure equal rights in custody and care of children in marriage and upon dissolution. In General Comment 19, the Committee stipulates that any discriminatory treatment in regard to child custody and maintenance must be prohibited. Furthermore, Article 2(c) of CEDAW requires Nigeria to take appropriate means ‘to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination’. Article 24 of the proposed code ensures that Nigeria abides by these international obligations by requiring all divorce to take place in a court. If divorce can only take place in court then a woman’s rights with regard to maintenance, custody and compensation will be observed.Furthermore, allowing a husband to repudiate his wife outside of the judicial supervision of the court imposes a disability on women who cannot seek redress for any violation of their rights. As discussed above, Section 42(1)(a) of the Nigerian Constitution stipulates that a citizen of Nigeria of a particular sex shall not be subjected to disabilities and restrictions to which citizens of Nigeria of the other sex are not made subject. In addition, as demonstrated above, unilateral repudiation violates a woman’s right to ‘equality of rights, obligations and opportunities before the law’ as required by Section 17(2)(a) of the Nigerian Constitution. Presence of both parties in court is necessary to ensure that both parties are aware of their rights upon divorce as well as the final outcome of the proceedings. According to one prominent translation, the Qur’an clearly stipulates that divorce is to take place in a court rather than in the home. In addition, prominent jurists argue that the practice of ‘triple talaq’ is not even sanctioned by the Qur’an because the practice comes from a misunderstanding of verse 2:229. Still others recognized the practice but state that Maliki doctrine does not recognize its validity. Several of the Muslim countries of the Maliki School have included in their codes the requirement that divorce take place only in a court of law, thus making ‘triple talaq’ unavailable as a form of divorce. The additional requirement that both parties be present upon dissolution of the marriage is taken from a similar provision in Libya’s code. Although Libya is unique in this requirement, it is a provision that would further the interest of fairness, to both the husband and the wife as well as ensure that Nigeria is in compliance with its international obligations to provide women and men with equal grounds for divorce. VI. CONCLUSIONWomen in northern Nigeria face many problems under the current practice of Islamic law, including coerced and underage marriage, domestic violence, and arbitrary triple talaq and discriminatory courts in all matters of marriage, custody, and divorce. These problems are severe and the present situation requires immediate reform. Women are not being accorded the rights that are due to them under Islamic law, much of Nigerian constitutional law, or international human rights law. This is unfortunate because Islamic law arguably provides many more affirmative protections for women than the Nigerian courts are providing. Since neither the women relying on the courts nor the judges are aware of these protections, rights that are guaranteed under Islamic law are being systematically ignored, degrading Islam, its people and further depriving Muslims in Nigeria protection of their constitutional and international rights.Codification is an appropriate solution for this problem. A written code will allow women and judges to know what their rights are under Islam. It will ensure that their rights are protected. A code will also bring Nigeria in line with the majority of other Muslim countries who have already codified all or part of their personal status laws. A code will also ensure that Nigeria is in compliance with its constitutional and international rights by mandating what rights women have and requiring judges to protect and enforce those rights. Additionally, a code will allow northern Nigeria to articulate and further important public policy goals.


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