Blasphemy: Kano musician asks court to quash retrial order, hearing holds today

A 22-year-old musician, Yahaya Sharif-Aminu, who got a judicial reprieve from the death penalty passed on him by a Sharia Court for blasphemy, has urged the Court of Appeal in Kano to make an order against his retrial for the same alleged offence.

Mr Sharif-Aminu’s lawyer, Kola Alapinni, confirmed to PREMIUM TIMES that the Kano Division of the Court of Appeal slated Thursday (today) for the hearing of his client’s appeal.

The Kano State governor and the state’s attorney general who are the respondents to the appeal refused to file their responses to the appeal, according to Mr Alapinni.

The appellant’s legal team will likely be urging the Court of Appeal to decide the appeal on merit based on their arguments alone as the case comes up for hearing today (Thursday).

Background

Mr Sharif-Aminu, a resident of Sharifai in Kano metropolis, was arrested and charged for contravening Section 382 (B) of the Sharia Penal Code Law of Kano 2000 and for allegedly committing blasphemy against the prophet of Islam in a song he circulated via WhatsApp in March 2020.

He was taken to the Upper Sharia Court in Kano where he was tried without a legal representative.

On August 11, 2020, the Upper Area Court sentenced him to death for the alleged offence.

Dissatisfied with the verdict, his lawyers appealed to the appellate division of the Kano State High Court.

Delivering their judgement on January 21, 2021, two judges who sat over the appeal, unanimously ruled that the trial at the Upper Area Court was characterised by procedural irregularities.

Although the High Court set aside the conviction and the sentence passed on Mr Sharif-Aminu, it sent the case file back to the Upper Area Court for him to be tried afresh.

‘No retrial’

Mr Sharif-Aminu had immediately appealed against the High Court’s verdict, asking the Court of Appeal to issue him an order for his total acquittal and also quash the order for his retrial.

His lawyers filed two grounds of notice of appeal.

In March 2022, they filed a brief of argument elaborating on the two grounds earlier raised in their notice of appeal.

Mr Sharif-Aminu had filed an appeal over the court judgment on March 22, 2021 after the appellate division of the High Court of Kano State had on January 21 quashed the death sentence passed on him by an Upper Sharia Court in August, 2020.

The appellant, through his lawyers, asked the Court of Appeal to not only rule that the High Court was wrong to have ordered a retrial but to also issue an order discharging and a quitting him.

He also asked the Court of Appeal to declare the Kano State Sharia Penal Code Law 2000 null and void as it is “inconsistent with the Constitution of the Federal Republic of Nigeria.”

Mr Sharif-Aminu argued in his appeal that the High Court judges erred in law when they overturned the trial court’s decision and ordered a retrial in the Shari’a court.

“The High Court was wrong to have ordered a retrial. Rather, the appellant was entitled to a discharge and acquittal. The High Court was wrong in not declaring the Kano State Sharia Penal Code Law 2000 inconsistent with the Constitution of the Federal Republic of Nigeria,” his lawyer’s brief of argument read in part.

Mr Alapinni stated that when “the prosecution fails to prove his case beyond reasonable doubt, the defendant is entitled to a discharge and an acquittal” under the Nigerian criminal law.

He said under Nigerian laws, a person cannot be prosecuted twice for the same crime for which he has already been convicted.

Mr. Alapinni said Sharia law, which the trial court used to sentence his client to death for blasphemy, was unconstitutional, and that the High Court judges’ decision not to declare Sharia law unlawful in Nigeria was incorrect.

He argued that Sharia law only applied to Islamic countries that practice theocracy, not Nigeria, which is a secular state with a constitutional democracy.

He contended that because Sharia rule is unlawful, the crime of blasphemy is likewise invalid under the Nigerian Constitution.

“The constitutional principle of separation between government and religion enshrined at section 10 and 38 of the Constitution prohibits government from adopting religion or making laws restricting religious freedoms and prohibits government from making laws to advance or promote any religious interest,” Mr Alapinni added.

Citing section 1(3) of the Nigerian constitution, Mr Alapinni added, “The Penal Sharia Code Law 2000 of Kano State, or any other Penal Sharia Code Law in Nigeria, is incompatible with sections 10 and 38 of the Federal Republic of Nigeria Constitution”.

He quoted the constitutional provision as reading, “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and any other law shall be void to the extent of the inconsistent.

“The Court of Appeal is urged to resolve this issue against the respondents and in favor of the appellant.

“We hereby urge this court to declare that the Kano State Sharia Penal Code Law is unconstitutional,” the lawyer prayed.

Similar case

The Upper Area Court had, similarly, on August 10, 2020, convicted 13-year-old Omar Farouk of blasphemy and sentenced him to 10 years imprisonment.

Mr Omar, a resident of Sharada quarters of Kano metropolis, was sentenced to 10 years imprisonment with hard labour for “making derogatory statements concerning the Almighty Allah in a public argument.”

The verdict triggered an international outcry especially because it involved a minor who also did not have a legal representation during his trial.

The United Nations Children’s Fund (UNICEF), through its Country Representative in Nigeria, Peter Hawkins, said Farouk’s sentencing was wrong and negated “all core underlying principles of child rights and child justice that Nigeria – and by implication, Kano State – has signed to.”

The body called on the Nigerian government and the Kano State Government to “urgently review the case with a view to reversing the sentence.”

Mr Alapinni, the lawyer handling Sharif-Aminu’s case had also approached the appellate division of the Kano State High Court over Omar’s case.

The two-man panel of the High Court unanimously discharged and acquitted the boy in its judgement delivered on January 21, 2021.

The High Court’s verdict was in recognition of the facts that Omar was a minor and had no legal representation during the trial.