Sunday, July 31, 2011

USA Africa Dialogue Series - Is Sharia Law above Nigerian Constitution? Islamic Banks in Nigeria--Seprating the Myths from the Facts


If I were to argue on this topic, I would be explaining to Nigerians why we should introduce this at this time. I would be assuring them that even though it is called Islamic bank, it will not receive preferential treatment as to eventually overshadow the conventional banks in the country, that it is only a bank and that it is not an attempt to project islam at the expense of other religious cultures in Nigeria, that even though Boko Haram is asking to turn everything in Nigeria into islam, the bank shall distance itself from such extreme views, that even though a governor just wanted to ban women from wearing trousers, the bank will not espouse such intolerance. That's what you need to be saying to calm down the anxiety of the nation on this subject.--Attorney Emeka Ugwuonye

Emeka:

I am glad you agreed with the main thrust of my argument not withstanding
some of your reservations which I will address later in this submission.
 
The CBN will be better off having legal minds of your caliber on their payroll.
This time I will advise that you ask for a retainer upfront--knowing from your personal
experience how hard it is to collect from Nigerian government officials unless you're prepared
to play by their rules.

Now I wish to address your reservations on my take on the Islamic Banking issue and others:

a) you objected along with my esteemed brother Pius Adesannmi about my use
of the word 'educated' to describe Prof. Salisu Mustafa,(aka
Mallam Wayne) former VC,
Bayero University, Kano.)

Who am I to describe Mallam Wayne, a Nigerian Professor,
a member of the Nigerian Academy of Science
and a former Vice Chancellor of a prominent Nigerian University as uneducated?
Let us face the facts, He is educated --paper wise or degree wise.
What he has not demonstrated is 'enlightenment' on this issue and many others.
I have never met or spoken to Mallam Wayne. But I have met and worked successfully with
Dr Chima Ahanotu, who is also a Professor on many occasions.
Chima is a fellow NIDOite and current board member of NIDO A. He also believes that women
should not wear trousers. I wouldn't be true to myself if I choose to describe Chima as uneducated
just because we disagree on the issue of what is appropriate attire for a woman.
I would only describe Chima's views on this issue as being unenlightened, notwithstanding
his claim that his beliefs on thie matter are derived from some passages in the Holy
Bible.

b) I disagree with your opinion that the adoption of Sharia Law in some northern Nigerian
states has elevated the Sharia Law and its tenets over and above the Constitution of
Nigeria. It has not. Sharia Law would have been struck off the books by the Supremo
Court if any entity had protested its adoption to its level if it was deemed to be above the Nigerian
constitution. But no one did--at least to my
knowledge or that I can remember.

I know my limits as a layman on legal matters. I believe that what the proponents
of the Sharia Law did was to successfully maneuver the issue through some loopholes
in the current Constitution of Nigeria (1999). I do not agree that the Sharia Law should
apply to every citizen in any state that has declared Sharia Law. Based on my limited knowledge,
I cannot say for sure whether or not the Sharia Law in place in some states in northern Nigeria
applies to every resident, Muslims and non Muslims alike without  a non-Muslim accused being given
the option to be tried by a regular criminal court. A guilty verdict of Murder punishable by death through
stoning rendered by a Sharia Court cannot to my knowledge be executed without recourse initially to the Appeals Court
and ultimately to the Supreme Court of Nigeria. If this is true, the idea that the Sharia Law is above the constitution
remains a false interpretation of the law. I will leave the rest of the matter to legal minds like yourself!

I do not deliberately choose to be in the middle of any issue. My professional practice requires that
before making a decision on any case (e.g. render a diagnosis) in what could be a life and death
matter--for example designating a tumor as either benign (indolent) or malignant (cancerous) that
I explore fully the reasons for either side of the equation, in an unemotional manner while exploring
current medical knowledge. This is what we refer to in Medicine as
rendering a differential diagnosis. Even after rendering a differential diagnosis--an astute physician
who knows his/her onions
must still make a decision one way or the other or refer the patient or tissue slide to another physician with more expertise
in the specific area.

I always endeavor even after my somewhat lengthy examination of the pros and cons of any issue end up with a firm
decision. I do not waiver on such decisions once they are made unless I come across a more compelling evidence or argument
to the contrary!:

Some recent examples

a) --I support Islamic Banking on the principle that all Nigerians deserve to be served in a manner
they prefer as long as it is legal and does not impinge on the rights of other Nigerians, even though
I am unlikely ever to patronize such banks.

b) I do not like Sharia Law--because I consider some of its tenets and prescribed punishments primitive
but I would recognize the rights of any jurisdiction in Nigeria instituting such laws as long as they are
in keeping with the Nigerian constitution and non-Muslims are not compelled to live under these laws
and when arrested they are given the option to be tried in a regular court. As I hve written before I would
never live under Sharia Law!This is the reason why I ininitially opposed the institution of Sharia Law
by Gov. Ahmad Sherima of Zamfara state. However, after many months of studying the constitutionality
of the issue, I had no choice but to accept what I would ordinarily wish had not been adopted.

Bye,

Ola

-----Original Message-----
From: Emekaugwuonye@aol.com
To: OlaKassimMD@aol.com; NigerianID@yahoogroups.com; lawoffice@rogers.com; nyedik2000@yahoo.com; NIDOCANADA@yahoogroups.com; omoodua@yahoogroups.com; NaijaPolitics@yahoogroups.com; NIgerianWorldForum@yahoogroups.com; USAAfricaDialogue@googlegroups.com
Sent: Sun, Jul 31, 2011 12:05 pm
Subject: Re: NigerianID | Islamic Banks in Nigeria--Seprating the Myths from the Facts

 
Dear Ola,
I have stayed away from the debate on the Islamic Banking topic, which I agree have been largely misinformed. But even your own comments attempting to tow a reconcilliatory middle line seem to be hugely off the mark both on facts and analysis. Let's try to focus on the core implications or tendencies of the introduction of islamic banking in Nigeria AT THIS PERIOD. Everybody knows that the quarrel is not just on the name, 'islamic bank'. Everybody knows that it is not the same as 'interest free bank' or 'sango bank', etc. The fact is that the CBN Governor does not worship Sango and does not hold his highest educational qualification on Sango Studies obtained from Egypt. So, we cannot fear that he might be biased in favor of Sango Bank applicants.
Also, Ola, your other comments that Sharia Law has been part of our legal system, though true, only begs all the questions. That's never the issue. Our customary laws have also been part of our legal system, actually on the same jurisprudential hierarchy as the Sharia law. But never ever did a chief or traditional ruler or a governor in Imo State, for example, gone about trying to force everybody in Imo State under the customary law practices of that state. Never has anybody in Nigeria attempted to elevate customary law above the Constitution. Indeed, the legal validity test for the customary law remains captured within the phrase, "valid only to the extent of consistency with the Constitution and laws made by the federal and state legislatures". Would you apply such validity test to the Sharia law today?
So, my friend, either you don't really understand this topic, or you are bending over to please everybody or you are desperate for an appointment in the Nigerian government, none of which is bad anyway.
If I were to argue on this topic, I would be explaining to Nigerians why we should introduce this at this time. I would be assuring them that even though it is called Islamic bank, it will not receive preferential treatment as to eventually overshadow the conventional banks in the country, that it is only a bank and that it is not an attempt to project islam at the expense of other religious cultures in Nigeria, that even though Boko Haram is asking to turn everything in Nigeria into islam, the bank shall distance itself from such extreme views, that even though a governor just wanted to ban women from wearing trousers, the bank will not espouse such intolerance. That's what you need to be saying to calm down the anxiety of the nation on this subject. Misstating the case to deny it's urgency or referring to the silly Governor Waine (or whatever you call him) as educated actually undermines you sincerity and credibility. That's just my own uninformed view, not on the subject, but only on your comments. Thank you, my brother, and keep up the good work.
Sent via BlackBerry from T-Mobile

Date: Sun, 31 Jul 2011 11:19:20 -0400
Subject: NigerianID | Islamic Banks in Nigeria--Seprating the Myths from the Facts

 

Dear Brothers Dike and Oyenubi et al:

I am delighted that Attorney Oyenubi has weighed on this matter by providing
some legal opinion gratis on this important issue of Islamic Banking in Nigeria.

I believe what we are dealing with here is a matter of perception. Whether a perception
is true or false does not usually matter considering it is almost always considered
as close to 99.99% of the truth.

 Unfortunately, an antagonistic stand against Islamic Banking, which started as a knee jerk reaction
 by some Christian leaders in Nigeria led by Rev. Ayo Orietjiafor President CAN) has now percolated
 into the mainstream where it continues to feed on ignorance rather than knowledge
 and on emotions rather than rational thought.

The matter was unfortunately further muddled by a poor description of Islamic Banking as the
only form of 'Interest free' banking that is allowable in Nigeria as was presented in the initial
draft of Guidelines for Islamic Banking.

If Islamic Banking had been called simply "Interest Free Banking" or by any other name other
than Islamic I doubt if there would have been so much 'noise' and confusion of the matter.
If let's say it had been presented as Ahmadiyya, Ansarudeen or Arab banking it would
probably not have provoked as much angst amongst some Nigerian Christians.

A lot of falsehoods and misinformation continue to be spread on this matter even
by otherwise well educated Nigerians who are normally well informed and are
enlightened on other matters.

These same people find the combination of Islamic Banking and Sharia Law
too scary to fathom. But are they?

Facts:

**8haria Law has always been a component of Nigeria's judicial system; it was in place
before amalgamation in 1914 and transcended into the Nigerian constitution at independence
and was retained in the 1999 Constitution. The maintenance of Sharia Law was guaranteed
to the Sultans and Emirs of northern Nigeria just as other forms of Common Law were
guaranteed to the traditional rulers
of the colonized regions of southern Nigeria (the Southern Protectorate).
Thus Sharia and other forms of Common Law have always
existed side by side with the basic Nigerian jurisprudence which was derived from Westminster.
Laws of Great Britain.
The only difference between then and now is that the traditional rulers and political leaders
of northern Nigeria originally limited Sharia Law to civil matters even though they 
had reserved the rights to also introduce Sharia into criminal matters whenever they wanted to do so.

**Islamic Banking is only one form of Interest Free Banking. There is nothing under current
Nigerian laws that forbids Christian organizations and representatives of our native religions
e..g. Sango, Ayelalala, Oro, Ogboni, Okija etc, from applying to set up their own forms of interest
free banking in the country. Once the Governor of the CBN receives such applications he would be
expected as part of his fiduciary duties to ensure that the proposed entities are legal and that
they are acceptable under the rules governing banking in Nigeria. Once deemed acceptable
the governor of the CBN would then set up guidelines and procedures for setting up such banks.

**The process of introducing Islamic Banking started during the tenure of Prof. Soludo and long
before Mallam Sanusi took over as governor of CBN. It was Prof. Soludo who approved the setting
up of Islamic Banking and it was under his tenure that the initial draft of the guidelines was prepared.

**Prof Soludo still supports the concept of Islamic Banking; Dr Mrs Okonjo Iweala our current
Minister of Finance also supports Islamic Banking, just as her predecessor Mr Aganga.
The aforementioned individuals are Christians with vast knowledge in the financial field than
most of us.

**The idea that Mr Sanusi is using state funds to promote Islamic Banking is false.
Mr Sanusi is not promoting Islamic Banking. He is presenting Islamic Banking, its underlying
principles and the proposed guidelines he is about to put in place for such entities
to Nigerian political leaders and through them to all Nigerians.He is doing the job
we ordinary Nigerians are paying him to do.

**Some have suggested that since Islamic Banking was legal under Nigerian laws
 that Mr Sanusi should just simply approve them and allow them to start doing business in Nigeria,
considering that he does not need legislative approval to do so. I disagree.
I believe that Mr Sanusi has acted wisely as he would have been in hot water if he had discreetly
sanctioned Islamic Banks without first increasing public awareness about such financial institutions.

Prof Soludo, former governor of the CBN was chastised for attempting to re denominate the Naira by the Yar'adua
government even though the Banking Act gave him the power to do without resorting to
the Presidency or the Legislative Assemblies/

 **No Nigerian citizen would be forced to patronize the Islamic Banks against their will.

 **Islamic Banking is just an alternative form of banking that is guided by different rules
and principles in the same manner that rules governing traditional banks are different
from those governing Credit Unions.

We must learn as Nigerians to live and let live. It is unlikely that a financial institution which
operates as an Islamic Bank would open a branch in a jurisdiction where it is unlikely
to attract customers, business and deposits.Thus the fear that islamic Banks could be used
as a ruse to Islamize Nigeria is unfounded. Nigeria can not be Islamized any more than she
can be Christianized. The secular status of Nigeria was never compromised by over a century
of Christian Missionary Schools  which were later followed the establishment of schools by
denominations of the Islamic religion.

Bye,

Ola




-----Original Message-----
From: A.O. Oyenubi <lawoffice@rogers.com>
To: nyerere dike <nyedik2000@yahoo.com>; NIDOCANADA@yahoogroups.com
Sent: Sun, Jul 31, 2011 9:05 am
Subject: Re: Re: NIDOCanada | Islamic banks in Canada?

 
NOISE! NOISE!! NOISE!!! The Constitution of the Federal Republic of Nigeria makes provision for Sharia law(try changing that if you can) and the Sharia Council/Expert/Board is supposedly made up of persons versed in Islamic law, finance the Quran (try getting the Christian et al committed knowledgeable in this area too before making so much noise). Common law is still applicable in Nigeria, just like in Canada UK. You can always avail yourself of the common law system if its your preference. A contract is still a contract, anywhere on the face of the earth. Sharia Banking is not being forced down anybody's throat. There is no compulsion here, my friend!. If the Constitution allows it, why can't the CBN spend state money to promote it?...for crying out loud!!!
A.O. Oyenubi
Sent from my BlackBerry device on the Rogers Wireless Network

From: nyerere dike <nyedik2000@yahoo.com>
Date: Sat, 30 Jul 2011 09:52:19 -0700 (PDT)
Subject: Fw: Re: NIDOCanada | Islamic banks in Canada?

 



This is a very serious moment for us as a nation. It's a time, I think everyone must think seriously before doing anything or saying anything. Let me begin by saying that what happened in the House of Representatives was a shock. I think to most well-meaning Nigerians, it was a shock because an issue that has generated so much controversies was not well handled.

I appeal to social activists and well-meaning Nigerians not to be quiet. They may think this is an issue they are not too interested in, but tomorrow, another issue is still going to come that they will be interested in. If this issue can be treated like this in the House of Representatives, then, they should be prepared for greater things that are going to happen in the House of Representatives. I am highly disappointed.

Let me again make it abundantly clear, we are not against the Muslims, they are Nigerians. There are some Nigerians who are Muslims, some are Christians, we are Nigerians and we have known each other for years and we will always be here. I'm a bit puzzled when I listen to what is coming out from different angles. We are not basically against Muslims wanting a bank that would meet their needs. You can have a bank that will meet your needs.

What we are saying is this, does the law of this country permit the CBN Governor to spend state money promoting a sectional banking system? We are not against the non-interest banking; after all, it started from the Bible. It is the Bible that every other person has imitated or got it from. You see, it's like someone or some persons are trying to blindfold Nigerians, but what we are against is the sectional non-interest banking.
The CBN is the CBN of Nigeria and not CBN of Northern Nigeria or of Islamic Nigeria. It's a CBN of the Federal Republic of Nigeria that comprises everybody. Now, how do you take state funds running into billions to be promoting one kind of non-interest banking? That is a question that must be answered. It is absolutely wrong.
Number two, why must you have one set of guideline for Islamic banking and then probably you will now have another set of guidelines for other non-interest banking? That is wrong and discriminatory. For example, I have used this example severally, the education sector, we have uniformed guidelines for any person who wants to start school. Today, in this country, there are universities that lean towards Islam and Christianity, nobody is quarreling with that, but do we have separate guidelines for them? No. The ministry of education has one set of guidelines that covers the entire school system.

Do you mean there is a separate guideline for Islamic banking?
it is wrong. You are discriminating and then, you now say within CBN, you will have what is called Sharia Council of Experts, but now, after a lot of pressure, we hear that he changed it to Council of Experts. Those are just words, now this council of experts, will it include Christians? That is the question. Who are these experts? They are Islamic experts. What we expect from the CBN is one set of guidelines.
The CBN is saying non-interest banking is good for Nigeria, so, these are the guidelines. The argument from the CBN is that the United Kingdom also practices Islamic banking, does the exchequers office in Britain have a Sharia Council of Experts? Please go and find out. Now, Islamic banking in UK is a very small part of what goes on in banking industry in the UK, you and I know that. So why make a big deal out of this?
I have said it again and again, Saudi Arabia is the headquarters of Muslims; we all know them for what they are and what they stand for, we are not against them, but even in Saudi Arabia, the most important industry there is the oil industry, but do they even run the oil industry by this Sharia banking? Go and find out. How are they running it? Is it not with the regular banking?

Why are they not telling Nigerians all other kinds of non-interest banking? Or is it that our CBN Governor doesn't know there are other non-interest banking? He should ask. Why promote Islamic banking and not other non-interest banking?

For instance, you don't expect me to stop selling pork because I want to do business with an Islamic bank because if I go there, the operation is based on Sharia law and the Sharia law says you can't touch pork and automatically, I'm disqualified. So, if I want to do anything with the bank, I either convert to Islam or close down my business. There are implications to these things and we should look deeply into them


--- On Thu, 7/28/11, OlaKassimMD@aol.com <OlaKassimMD@aol.com> wrote:

From: OlaKassimMD@aol.com <OlaKassimMD@aol.com>
Subject: NIDOCanada | Islamic banks in Canada?
To: nigerianid@yahoogroups.com, NIgerianWorldForum@yahoogroups.com, omoodua@yahoogroups.com, edo_global@yahoo.com, USAAfricaDialogue@googlegroups.com, NIDOCANADA@yahoogroups.com
Received: Thursday, July 28, 2011, 9:09 AM

 


World
 
Islamic banks in Canada?

http://www.arabamericannews.com/news/index.php?mod=article&cat=World&article=180

Friday, 09.28.2007, 03:52am


The Canadian Office of the Superintendent of Financial Institutions is considering two proposals to open sharia-compliant banks. Such institutions would neither give nor charge interest and would not engage in speculative transactions. As well, they would not be involved in transactions having to do with pork products, alcohol, pornography or gambling. The Office of the Superintended is aware of another four interested parties as well.
Regulators studying the proposals have raised concerns about several issues. For example, can directors of such a bank really direct, or are they controlled by external religious scholars? Problems have also been identified around ability to audit and monitor such banks and about possible liquidity problems. Rather than giving a loan, for example, the bank becomes part owner of an undertaking, taking a profit when their interest in the undertaking is sold back. Hence, possible liquidity problems might arise.
In spite of the problems posed by these proposed ventures, there is considerable interest on the part of banking officials, as Islamic financial institutions may have the potential to provide an increased participation in the financial sector, though the extent of the demand in Canada is not clear.
Great Britain is trying to take the lead in becoming the world center for Islamic finance.
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