GOVERNMENT & SHARÎ`A IN NIGERIA
Response to paper of Ruud Peters:
“The enforcement of God’s law: Sharia in the present world of Islam”at
CONFERENCE ON
COMPARATIVE PERSPECTIVES ON SHARIA IN NIGERIA
The University of Jos,
Faculty of Law and Department of Religious Studies
15-17 January 2004Published in Published in Philip Ostien, Jamila Nasir and Franz Kogelman (eds.),
Comparative Perspectives on Shariah in Nigeria, Ibadan: Spectrum Books Limited, 2004.
When Muslims demand to be governed by Sharî`a, their intention is clear and simple: They want to be governed by God’s law as revealed in the Qur’ân and the Hadîth. Who could object to that? We can only applaud it.
Yet when it comes to the implementation of Sharî`a, the matter becomes very complicated. Ruud Peter’s paper shows us some of these complications. I will point to some of them and add other considerations:
The meaning of Sharî`a
There is frequent confusion between fiqh and Sharî`a. Fiqh is a human interpretation of Sharî`a. It enjoys human, not divine authority. A sign of this is the abundance of ikhtilâf among and within the different madhâhibs, stemming from different approaches to the four usûl al-fiqh. But there are no usûl ash-sharî`a, since Sharî`a is itself the asl, the heavenly word of God which has no discrepancy within itself. Fiqh only approximates, reflects, interprets and applies Sharî`a, always remaining on the human level.
In spite of this, the majority of Sharî`a proponents take the fiqh positions that have prevailed for some centuries in certain areas as representing divine law. This may be because the standard Mâlikî fiqh texts in West Africa: the Risâla of Ibn-abî-Zayd al-Qayrawânî1 and the Mukhtasar of Ibn-Khalîl, unlike the fiqh works Peters cites, do not present different opinions on a question, but take a single definite stand on every matter. They thus carry the aura of an uncontestable orthodox expression of divine Sharî`a.
A number of Muslim reformers challenge the authority of traditional fiqh. They argue that traditional fiqh masters have not only overstepped their bounds by claiming divine authority for their opinions, but also that the legal rulings of the Qur’ân itself must be understood in their historical context and not universalized to cover all circumstances for all time.2 They decry the the zealous self-assurance of some Islamists who insist that their understanding of Islam is pure orthodoxy and any other way of thinking is wrong. These have no sense of historical criticism, or any sociological and anthropological perspective on how Muslim opinion and fiqh are conditioned by political, economic and other historical currents. In view of the tremendous variety of interpretations of Sharî`a and the chaos that would result if it were left to the discretion of rulers, judges and an oligarchy of `ulamâ’ to choose which interpretations to follow, codification has become inevitable. This is what has been done in Zamfara and the other Sharî`a states. Codification does not necessarily mean that the State assumes supreme authority and pushes God out of the picture. Most codes drawn up for Muslim areas, even the criticized 1960 criminal code for Northern Nigeria, are Sharî`a-inspired. It should be hoped that the ijtihâd required for codification will give serious consideration not only to the latitude of classical fiqh, but also to the contextual intent of Qur’ânic laws and the general maslaha of society.
Beware of government
Almost all places throughout Islamic history where Sharî`a has been the law of the land in the form of one or another fiqh school, the cry of pious Muslims has been that the governments were not righteous and did not in fact follow Sharî`a, but were worldly and oppressive. And they condemn the court `ulamâ’ who are yes-men to the powers that be. During the recent Taliban experiment with Sharî`a, Muslims cried out again against their rigid anti-worldliness and oppression. Has there ever been a place where true Sharî`a has been implemented? Some answer: In the time of the Prophet and the khulafâ’ ar-râshidûn, but others dispute even that.
Any government that ensures security, order, justice, opportunity, development, welfare and religious freedom for the citizens is conforming to Sharî`a, just as it is conforming to the Gospel. That is quite distinct from formal government enforcement of Sharî`a. What are the problems with government Sharî`a?
First, it amounts to the government coercing Muslims to practice their faith, or to conform to government Islam. Are Muslims so uncommitted and lax that they need coercion? I do not think so.
Secondly, although the Sharî`a states officially restrict Sharî`a enforcment to Muslims, full Sharî`a, in the form of fiqh, (which many aspire to) includes many provisions that affect the rights of non-Muslims as well.3 In claiming that Sharî`a does not affect Christians, the northern states have opted for a truncated Sharî`a. Do they really mean to truncate it? In practice, Christians are stopped from selling alchololic drinks even among themselves. Churches have been destroyed, such as St. Dominic’s Church, Dashi (where years back I used to celebrate Mass), knocked down at the order of Governor Sani, and Christians are not given equal opportunity and see themselves as second-class citizens.
Thirdly, Islamic history in many ways corroborates Christian history in showing that government sponsorship and control of religion are the kiss of death. As independent unestablished churches are more vigourous than established ones, so also we find Muslim communities and Islamic organizations thriving in places where the government assures them liberty of practice and nothing more, whereas state-sponsored organizations have greater incidence of corruption and scandals. Why let politicians take charge of your religion, when it is glaring that they have a different, worldly agenda and only manipulate religion to suit their personal advantage?
Ibadan and Lagos have initiated Sharî`a courts administered by the Muslim community themselves, without bringing in the government. I have always encouraged Muslims to set up such courts and congratulated them when they did so. These resemble the canon law courts which the Catholic Church runs for its internal affairs, although their scope is wider. These courts are not empowered to order stoning or amputation, but nothing prevents them from settling disputes with provision for diya and other forms of compensation. The government should give legal recognition to some of these courts’ enactments, as it does to marriages conducted by the churches.
Final point
Much of the discourse about Sharî`a has to do with image making. It is not so much about the truth of what Islam stands for, but about how it is publicly perceived. Sharî`a commonly appears as the symbol of an Islam eager to parade its dominance, to grab and hold the organs of government and exclude others. Nigerian proponents of Sharî`a seem to feel no need to package it in a way that will attract outside support, unlike Muslims in Europe or America who use the most professional advertizing methods to present their religion in a way that meets and captures the public mind.44 Why try to persuade when you are in a position to impose yourself? The result is only apprehension on the Christian side.
Apart from this negative image, anyone with his eyes open can also observe an Islam that fights for justice, combats corruption, promotes development and welcomes the cooperation of others. This can only attract people and win their support. In another paper I document an encouraging trend in this direction in Nigeria.5
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NOTES
1. See my work, The Risâla of Ibn-abî-Zayd al-Qayrawânî, an annotated translation (Minna: Islamic Education Trust, 1992).
2. A few contemporary authors thinking in this vein are Muhammad Arkoun (notably his من فيصل التفرقة إلى فصل المقال: ما هو الفكر الإسلامي المعاصر, 1995), Muhammad\ Talbi, Muhammad Sa`îd Ashmâwî, and Nasr Hâmid Abû-Zayd.
3. This is documented in my Views on Muslim-Christian relations (Lagos: Dominican Publications, 1999). See also my 1984 work: Shari’a in Nigeria. Bulletin on Islam and Christian-Muslim Relations in Africa (Birmingham), 4:1, 1-21. and the French: (1986) La Shari’a au Nigeria: Aperçu historique, Bulletin - L’Islam et les relations islamo-chrétiennes en Afrique, 4:1, 1-22. Written for Consultation of the Christian Councils in West Africa on Christian-Muslim Relations, Monrovia, 25-28 November 1984, in partial proceedings edited by N. Idarous, pp. 71-76. “The Shari’a question in Nigeria: A historical survey,” Ch. 11 in E. Ikenga Metuh (ed.), The gods in retreat: Continuity and change in African religion (Enugu. Fourth Dimension Publishers, 1986), 245-256. Association of Episcopal Conferences of Anglophone West Africa, Christianity and Islam in dialogue (Cape Coast, 1987), pp. 30-37 (followed by my “Sharî`a: Implications for the Church in West Africa”, pp. 37-50. In C.S. Momoh (ed.), Religions & their doctrines, vol. 1 of Nigerian Studies in Religious Tolerance (Lagos: Centre for Black and African Arts and Civilization, & National Association for Religious Tolerance, 1989), 337-345. Incorporated in (1993) Sharî`a and Christianity in Nigeria: Islam and a ‘secular’ state, Part I: Sharî`a and Islamic revival in Nigeria.
See also my “Sharî`a and Christianity in Nigeria: Islam and a ‘secular’ state,” Journal of Religion in Africa, 26:4 (1996), 338-364.
On various aspects of Sharî`a in Nigeria since Independence, see my series “Nigeria Chronicle” in http://nig.op.org/kenny/nigeria.
4. A good example of professional “packaging” of Islam is the Newsletter of International Institute for the Study of Islam in the Modern World (ISIM). Cf. www.isim.nl".
5. “Interreligious dialogue in Nigeria: Personal reminiscences of forty years,” forthcoming in David O. Ogungbile & A.O. Igenoza, Muslim-Christian relations in Nigeria.