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 Daily Independent Online.
* Monday, July 26, 2004.
Sharia, Nigeria and the West
By Ibrahim
Shekarau
The name ‘Nigeria’ was adopted
from a recommendation made by Lady Lugard in 1897 in reference to a vast
land to the north and south of the two great rivers of Niger and Benue,
under the tutelage of Britain through a chartered firm known as Royal
Niger Company. The territories to the south of the two rivers were the
abode of great empires of Oyo and Benin, as well as the states of
riverine enclave and the republican settings of the Igbo. For cultural
and administrative purposes, the area was, in 1900, demarcated into Lagos
island protectorate, with the Yoruba as the major ethnic entity, and
Niger coast protectorate with the Igbo being the prominent group. In
1906, the two protectorates were merged to become the protectorate of
southern Nigeria. This is the first area to taste the pains of
colonialism by virtue of its accessibility to the Atlantic Ocean. Its
early contact with European missionaries opened it to the influence of
Christianity, though a section of it has a significant Muslim population.
Currently, this segment contains seventeen of the thirty-six states in
Nigeria; four of which have substantial Muslim population.
The portion of land north to
Rivers Niger and Benue was designated northern protectorate. It comprised
polities, which include the Sokoto Caliphate, the Borno Empire and other
ethno-political entities along and between the rivers. Its incorporation
into British dominion dates back to 1903. The area is distinguished by
its predominant Islamic culture and tradition, and by the prevalence of
Hausa as the lingua-franca. It comprises nineteen states of the Nigerian
Federation, more than two thirds of which is overwhelmingly Muslim. Of
the remaining six, three have substantial percentage of Muslims and the
other three have Muslims in the minority.
Expedience on the part of
colonial government necessitated the amalgamation of the administration
of the two protectorates, which later became known as regions, to form a
united Nigeria in 1914. The affected administrative departments in this
exercise included those related to finance, customs, telecommunications
and land and survey. Aspects relating to education, judiciary and police
were left to be conducted in accordance with the dictates of each
regional administration.
Pre Colonial
Period
History suggests that Islam
came to today’s Nigeria at different times: for Borno Empire and Hausa
land, the dates go back to 11th and 14th centuries respectively. Its
arrival in Yoruba land was put at 17th century, while it reached Igala
land and the Ebiras in the 19th. It was not, until the 20th century when
some communities in Edo State accepted Islam.
The acceptance of Islam in
many such areas of central Sudan was based on certain objective
circumstances. For example, in Kano, Islam found abode largely due to the
role the Muslim scholars played in the politics that crippled the power
of Sontolo, Kano’s erstwhile rival to the south. The Shari’a was adopted
as the legal system because of the sympathetic nature of its teachings,
which bestowed on humanity some fundamental rights. Such rights include:
The Right to Life: Allah has
made human life sacred. The Holy Qur’an says: “Do not kill a soul, which Allah has made sacred
except through due process of law”. (6:51) Prophet Muhammad (PBUH) has
expounded this in clear terms when he says: “The greatest sins are to associate something with
Allah and to kill human beings”.
It should be stressed that this right to life extends to entire
humanity, irrespective of race, religion and/or nationality.
The Right to
Safety of Life:
In connection to this the Holy
Qur’an says, “And whosoever
saves a (single) life, (it) is as though he has saved the lives of all
mankind”. (5:32)
The metaphoric symbolism of
‘life-saving’ in this Qur’anic verse is the universally acclaimed dictum
that all human beings must recognise the prescriptive rule of preserving
life. In his Tafsir (the meanings of the Holy Qur’an), Al-Muntakhab says:
“He who deprives an honoured
or an innocent life, not implicated in a charge of criminal homicide or
of spreading corruption or mischief on earth, will have committed, as it
were, massacre of all communities of innocent people. And he who
preserves it and defends it, will have protected, as it were, all
communities of innocent people”.
In the eyes of Islam,
therefore, the efforts being made by the western world to provide medical
and food aid to the sick and the undernourished in Ethiopia, Rwanda,
Burundi, Somalia, Uganda and Liberia etc. is an obligatory duty that is
automatically expected of them.
The right to
basic standard of life:
This matter of rendering
assistance from one to another has appeared in Qur’an severally. One such
reference is where Allah (SWT) says: “And in their wealth there is acknowledged right for
the needy and the destitute”. (5:12)
The extent of the value
attached to the practice of almsgiving is attested to by the references
it received in the traditions of the Prophet Muhammad (PBUH). At one time
the prophet of Allah says;
“Give ye something as alms,
though it be a dried date; for it will supply somewhat of the want of the
hungry”.
The right to
freedom:
Islam detests the practice of
capturing free men and putting them into slavery. There are several
verses in the Qur’an that encourage people to emancipate slaves as mark
of repentance to some acts of transgression committed. The prophet has
illustrated this when he says:
“There are three categories of
people against whom I shall myself be a plaintiff on the day of
judgement. Of these three, one is he who enslaves a free man, then sells
him and eats the money”. (Bukhari & Ibn Majah).
The right to
freedom of religion:
Though Islam encourages
Muslims to stand fast and convert people into their religion, the Holy
Qur’an has clearly shown that such effort should not take the form of
compulsion when it says: “For there is no compulsion in religion”
(2:206).
The right to
justice:
This is an invaluable bounty
of Allah to humanity. The Qur’an says: “Do not let your hatred of people
incite you to aggression.” (5:3)
In another incidence the
Qur’an states that: “… and do not let ill-will towards any folk incite
you so that you swerve from dealing justly. Be just; that is nearest to
heedfulness”.
Equality of
human beings:
Islam teaches the equality of
human beings irrespective of their religion, race and/or nationality. It
is for this reason that the Qur’an states: “O mankind, we have created you from male and female.
And we set you up as nations and tribes so that you may comprehend each
other. Verily, the noblest amongst you before Allah are the most heedful
of you.” (49:13).
It is also narrated that one
day, Abu Dharr AlGhifari, one of the companions of the prophet, talked to
a dark-skinned slave in deference. The prophet registered his disapproval
by cautioning him that the son of a white woman is not better than the
son of a black one.
The right to
cooperate and not to cooperate:
Islam encourages humanity to
partake in ventures that would uplift its welfare and to refuse to
associate with agents of vices and aggression from any quarter. The
Qur’an says:
“Cooperate with one another for virtue and heedfulness and do not
cooperate with one another for the purpose of vice and aggression. (5:2).
Based on these egalitarian
principles provided by Islam, the Hausa society of Kano was reorganised.
The Emir (Sarki) Muhammad Rumfa (1463 - 1499) was credited with setting
up a structure of government along the lines prescribed by the Shari’a.
He established two categories of courts: one to be presided over by a
judge (alkali) with jurisdiction over both criminal and civil offences of
first instances. Its power, however, did not extend to homicide and land
matters. The other was an appellate court to be presided over by the Emir
himself. It entertained cases outside the power of the alkali.
Accessibility to courts,
application of simple procedure and respect for time facilitated the
acceptability of the Shari’a among the population. Again, the invocation of
the principle of restitution in matters of homicide and other physical
injury, which the Shari’a considers as private or civil wrong, for which
the wronged person may claim damages was in many ways similar to the
provisions of the traditional law to which the people were accustomed.
Colonialism
This is not to suggest that
traditional law was totally replaced by the Shari’a. Far from that; in
fact traditional courts and Shari’a courts coexisted side by side.
However, since Islam had the advantage of enjoying the patronage of the
ruling class, litigants who were offered the choice of being treated as
non-Muslims or as Muslims often tended to prefer the latter. The changing
social conditions in an increasingly heterogeneous society gave rise to
problems, which required new regulations and the Shari’a readily filled
that vacuum. Exposure to new cultural ideals made it quite advantageous
for litigants and offenders to distance themselves from traditional
courts and to patronise new source of law and justice, which is provided
by the Shari’a. This is particularly so where the provisions of the
Shari’a recognise the genuineness of new types of claims and protect them
against the demand of customs.
It was based on this relative
order that the society of Kano flourished. The jihad of the 19th century
was an attempt to enhance that order following the threat it received
from the growing preponderance of syncretism in mixing Islam with
traditional beliefs. The jihad gave additional momentum to the influence
of the Shari’a and paved the way for Kano’s commercial pre-eminence so
that an European explorer, Heinrich Barth who visited Kano in 1855 had
cause to attest to its prosperity and welfare of its citizens in the
following words:
“How great this national
wealth is will be understood by my readers when they know that with from
fifty to sixty thousand kurdi (cowries) or from four to five thousand
sterling year, a whole family may live in that country with ease,
including every expense, even that of clothing; and we must remember that
the province is one of the most fertile spots on earth, and is able to
produce not only the supply of corn necessary for its population, but can
also export; and that it possesses, besides, the finest pasture grounds.
In fact if we consider that this industry is not carried here as in
Europe, in immense establishments, degrading man to the meanest condition
of life, but that it gives employment and support to families without
compelling them to sacrifice their domestic habits. We must presume that
Kano ought to be one of the happiest countries in the world”.
The conquest of Sokoto
caliphate was predicated upon the premise of checking and ultimately
stopping the trading in slaves. With colonialism imposing its rule on
Kano, the traditional contempt of the West against Islamic values
resurfaced. In flagrant disregard of the system of law in existence, the
colonial administration was quick to abolish Shari’a, prescribed
punishment on criminal offences on, among others, homicide, theft and adultery,
on the ground of repugnance to natural justice and good conscience. The
excuse of protecting human rights was just used as a camouflage. This
could be attested to, especially if one considers the Qur’anic
requirements of mandatory proofs on matters of adultery, and safeguards
in cases of theft before offenders were punished. For example, in the
case of adultery, four witnesses have to be produced each of which has to
testify, at the danger of losing his integrity, credibility or social
recognition, of having caught the offenders in the act.
Secondly, the selective way at
which the implementation of the enactment was carried out could also
testify to other ulterior motives. Response of Muslims to colonial
conquest took the form of uprisings. Therefore, on homicidal offences the
government allowed the Shari’a punishment to continue; partly to deceive
the populace that the Shari’a was still in place, but largely as a means
to empower traditional rulers in the region to invoke the diplomacy of
politics to put the tension under control. In one such incidence in 1906,
the sultan directed the wiping out of the entire population at Satiru. A
prominent and respected British missionary activist, Dr Miller, had to
write a letter to Lugard to lament this brutal act.
The measure taken to check the
enforcement of the Shari’a, following the consolidation of colonial rule
in the 1930s, was also not guided by human right considerations as it was
by the urgent desire to vigorously forge ahead with plans to integrate
Nigerian administrative structure. This was sought to be achieved in the
promulgation of 1933 native court ordinance, which extended the channels
of appeal from native courts to high courts on criminal matters involving
homicide. This resulted in the celebrated West African Court of Appeal
(WACA) judgment on a case involving Tsofo Guba versus Gwandu Native
Authority in 1947, which dealt a devastating damage to the influence of
the Shari’a on homicide in northern Nigeria.
Similarly, the argument that
the Shari’a will not respect the rights of minorities could not hold.
Ever since the introduction of Islam in Kano, over six hundred years ago,
there still exists pockets of non-Muslim population in the region and
nothing is denied them. The Shari’a is only applicable to them at their
own request; otherwise the judge has to be assisted by an assessor on
matters involving their affairs. When, at the inception of colonial rule,
non-Muslims of southern Nigeria origin frequented Kano, a settlement at
Sabon gari was established for them in 1916, and their affairs were put
under the jurisdiction of the magistrate court. Increased contact with
the indigenous Muslim population led to a change of policy. Mixed courts
were created in 1931 to attend to legal issues arising from their
day-to-day affairs. The courts were composed of three members; a
Christian as president of the court, and a Hausa and a Yoruba as members.
Where the need arose, assessors were employed by the court. The law
applied at the court was, according to Anderson, appeals went to the
Babban Alkali (native court’s chief judge) where the Shari’a was
involved; otherwise they went to the magistrate court.
The closing decade of the 20th
century, witnessed the increasing impetus of globalisation. This
phenomenon refers to the growing interdependence and interconnectedness
of the modern world. It represents the increasing ease of movement of
people, goods, services and information across national borders. It also
reflects on the spread of global norms and values on matters pertaining
to democracy, environment and human rights. The attempt by Kano and some
other states in northern Nigeria to extend the application of the Shari’a
to criminal spheres is wrongly interpreted to go against this new global
order. Islam possesses internal mechanism that would make it adapt to
changing situations. Moreover, the punishment that it provides for
criminal offences and which the West and many human rights groups term as
harsh and degrading to humanity could be seen from the viewpoint of
deterrence.
For example, the proof
required to convict the offence of adultery is, to say the least,
unattainable. Similarly, the conditions to be satisfied to administer the
punishment of amputation in the case of theft are indeed difficult to
prove. After all, the Prophet Muhammad (PBUH) has demonstrated the degree
of precautionary measures that one would take before a penalty could be
invoked.
In a tradition reported by
Imam Bukhari (one of the earliest and most credible collectors of the
traditions of the prophet), it is narrated that a man named Mirz bin
Malik once approached the prophet, and at four instances, confessed
committing adultery. On each of the four occasions, the prophet turned
his face away to the opposite direction, indicating his un-readiness to
register Mirz’s confessions. Upon the insistence of Mirz, the prophet, in
an effort to devise a leeway to allow Mirz to escape the punishment,
cautioned that he did not actually commit adultery; he was only involved
in romance, consequent upon which he satisfied himself. However, Mirz
insisted that he actually committed adultery. Thereupon, the prophet
inquired from the companions around whether Mirz was mentally sound. It
was only on receiving the answer in the affirmative that the prophet
passed the verdict of rajm (stoning to death) on Mirz.
The general perception of the
period of colonialism to the present day in Kano is that western concept
of human right is deficient in ethical content; it emphasises individual
freedom and liberty at the detriment of communal security, prosperity and
values. Its application in Nigeria is abused to the extent that it leads
to moral degeneration and even social chaos. An example from Kano could
illustrate this better: Inheritance of landed property in Kano used to
cut across the barrier of gender. With the advent of colonialism,
especially in the early 1920s, some of the female folk took advantage of
the liberty provided for in the new social order to turn such inherited
houses into near brothels. This development necessitated Emir Usman (1919
- 1926) to issue a fatwa (Islamic legal opinion) prohibiting female heirs
from inheriting landed property; instead their portion of such properties
was monetised and paid in cash. However, when it became clear that the
level of societal degeneration was only escalating rather than receding,
and extended family tie was gradually weakening with the female gender
worst hit by this, reconsideration of the earlier fatwa was made by Emir
Muhammadu Sunusi (1953 - 1963). Hence, a reversal was made to the earlier
arrangement.
Similarly, the creation of
Sabon gari as a settlement for non-Muslims of southern origin and its
exemption from the jurisdiction of the Shari’a turned it into an enclave
of unrestricted freedom, consequent upon which it became an abode of all
social vices to this day. A famous Kano popular singer, Hamza Caji, used
to lament the situation especially in the 1940s when it escalated. The
song reads as follows: Sabon
gari za mu koma: Inda yaro za ya zagi babba - Meaning: We are going
to settle at Sabon gari;Where disrespect and indecency is the order of
the day.
Post colonial era has done
little to reorganise the ever increasing social decadence. What obtains
today is indecency in culture, arbitrariness and corruption in
leadership, widespread crimes in social relations, breach of trust in
contractual dealings and apathy in communal affairs. The resolve of Kano
to revert to the Shari’a in all aspects of human endeavour therefore is
predicated upon the conviction that it is the only instrument that would
stand as a bulwark against social inequity and moral degeneration. We
recognise the Shari’a as a code of conduct that inculcates enterprise,
civility, morality, peaceful co-existence, fulfilment of obligation,
selflessness, and abhors all acts of wickedness and selfishness. Thus our
passion for the Shari’a is rooted in the prospect that when successfully
implemented, it will render the courts quiet, rather than busy condemning
poor souls. As a compendium of morally edifying values, it would be used
to restore a sense of community through promoting virtues of
neighbourliness, cooperation, fairness, moderation and contentment in
Allah.
Let me conclude my address by
pointing out that the issue of Shari’a has been very central to the lives
of people in Hausa land for at least five hundred years. Its adoption as
the legal corpus is informed by its egalitarian appeal and its ethical
contents. Colonialism compromised it on the basis of nonconformity with
international standards. The result was structural dislocation of the
Hausa Muslim Society consequent upon which the entire environment got
infected by social vices. Human right agitations could not provide
solutions to this problem due to their preoccupation with individual
freedom and liberty even when this runs counter to community norms and/or
societal legitimate institutions.
Herein lay the reasons why
Kano State in Nigeria found it expedient to recognise Shari’a as its only
option for societal rejuvenation, and an instrument for social justice.
• Text of a lecture by
Governor Ibrahim Shekarau of Kano State at the Conference on Africa
organised by Evert Vermeer Stichting in Amsterdam, Netherlands
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