Liberties of the faithful

Back from the north and middle belt of Nigeria, Margot Badran writes on current religious-political debates six years after the emergence of “shariah states”

It is only recently that Nigerian Islam appeared centre stage as states in the north of the country declared rule by shariah law, the hallmark of which was the re-introduction of hudud punishments for criminal offenses, including stoning to death for those convicted of zina (adultery and fornication) and amputation of the hand for theft. (During British colonial rule hudud penalties had been restricted and with independence a state Penal Code and a new Criminal Procedure Code were introduced in the country.)  Unlike before, hudud have now been re-introduced as codified law; they are no longer determined by a qadi (religious judge) in a shariah court, according to his understanding of fiqh (jurisprudence).

In 1999 the Governor of Zamfara State was elected after pledging to support shariah rule and resume hudud.  Before long, other states in the Muslim-majority, Hausa-Fulani dominated north had followed suit; they became known as “shariah states”. With these developments, a heady mix of politics, media attention and women’s rights-human rights activism drew attention to Islam in Nigeria, the country with the largest population of Muslims in Africa. A broad cross-section of Nigerian Muslims reportedly welcomed the “shariah state” package.  Women activists, were quick to voice concerns over the reinstatement of the hudud (not shariah per-se), since experience elsewhere – in Pakistan and Iran, for example – has shown that women and the poor are easily victimised as a consequence. Many non-Muslims in Nigeria and in an Islam-wary wider world grew alarmed by what they saw as evidence of re-Islamicisation.

The shariah, often referred to as Islamic law, is a “path” illuminated by divine guidance.  Many Muslims in Nigeria are quick to point out that the shariah, as part and parcel of Islam, has always been integral to their personal and communal lives. The difference now is the assumption by the political leadership in northern states of a self-assumed mandate to implement shariah, making the codified hudud its centre-piece. The pivot of the new “shariah state”, what might called Nigeria’s “political shariah”, is the imposition of law and order. As Nigerian women activists feared, it was not long before women were accused of zina. Lower shariah courts in their respective home states of Sokoto and Katsina convicted Safiya Husseini and Amina Lawal (both of whom were pregnant and unmarried), sentencing them to death by stoning. It escaped no one’s attention that it was women who were made to paid the price, while the men involved faded into the background, getting off scot-free. Lamido Sanusi, a well-known, public intellectual, quipped: the womb has been charged while the sperm is acquitted. Notable also was the fact that it was poor women who were dragged before the law. Nigerian women activists, Muslims and non-Muslims alike – together with some concerned men – promptly swung into action. They offered the two women legal support, mounting wide-ranging publicity campaigns as well. The women were eventually acquitted in higher shariah courts of appeal in their respective states.

While Muslims at home and abroad celebrated the delivery of justice through shariah courts, the (non-Muslim) West failed to realise or admit that justice was being rendered within rather than in spite of the shariah system. As evidenced in the media, Westerners took credit for their campaigns on behalf of the accused, even though Nigerian activists had to ask outsiders to halt their intervention, which often included deprecating Islam, and which was becoming a distinct liability. The high-profile legal cases occasioned a fresh wave of Islamophobia – or rather what might now be termed “shariah-phobia” – a recognizable brew of clichés and fears with the familiar trope of “Muslim women as victims of their own religion.”  It was not until the successful resolution of the two cases when the anti-Islamic hoopla had already run its course, that the outside world began to turn its attention elsewhere.

Inside Nigeria life went on.  What has the renewed attention to Islam and shariah brought about? How are women faring? And the poor?  I recently set off to Nigeria to find out. I visited several “shariah states” in the north: Kano, Kaduna, Katsina, Niger, Sokoto, and Zamfara. By way of a comparing and contrasting, I also journeyed through the middle belt to the non-shariah Plateau State, where Muslims are not the majority.
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What exactly is a “shariah state”? On asking I was told that the term originated among the local Christians of Zamfara State, who used it pejoratively in reference to the governor’s declaration of the reinstitution of hudud. The press were quick to pick it up, granting it wide circulation, before the so-called shariah states themselves appropriated it and began to brandish it. “Shariah state” as a state within the federation of states that constitutes Nigeria is not to be confused with a sovereign self-designated Islamic state, declaring its constitution and all its laws and policies to be based on shariah.  “Shariah state” is a term peculiar to Nigeria.

The “shariah state”, with its focus on law, interestingly, emerged in a place where (unlike Muslim-majority countries in North Africa and the east Mediterranean) Muslim ahwal shakhsiyya, or personal status (often called family) law, remains un-codified. Personal status cases (marriage, divorce, maintenance, custody, inheritance) are heard by a qadi (alkali in Hausa, religious judge) who renders verdicts based on his interpretation of fiqh in accordance with the Maliki school of jurisprudence, which predominates in Nigeria and the rest of West Africa. (The English word “judge”, in this widely Anglophone society, refers only to a judge or magistrate in common-law – i.e. national – courts.)  Not only does personal status law remain un-codified in Nigeria’s “shariah states” but no other areas of Islamic law have been codified except hudud.  Nor is it solely a question of personal status law in Nigeria’s “shariah states”, no other areas of Islamic law have been codified except hudud.. There is a recent move, however, in some quarters, for the codification of personal status law.  So far this has yet to gain a base of support.

The inception of the “shariah state” created a new context and a new politics, shifting the terrain of debate. A distinctly new political phenomenon in northern Nigeria, the term “shariah state” has had the problematic effect of merging two notions of shariah as religious guidance and as political governance. The conflation of shariah and state is such that it is now common to hear Muslims in the north of Nigeria claim that it is impossible to have shariah without a “shariah state” – a declaration that ignores the existence of shariah as a living force in Nigeria prior to the “shariah state”, wedding shariah firmly to government. It also suggests that Muslims who live in non-Muslim majority states in Nigeria, where it is impossible to create “shariah states”, do not have (or live by) the shariah.  However, shariah courts continue, as in the past, to serve Muslims throughout Nigeria.  Moreover, it is to be noted that within the “shariah states”, common-law or state courts likewise continue to function, hearing the cases of non-Muslims as well as of Muslims in a variety of domains (e.g., cases involving property disputes, inheritance, etc.)

Some claim that the governor of Zamfara State was driven by political expediency to declare his intention to install the rule of shariah and to re-instate hudud, and in so doing, to appeal to the Islamic sentiments of a vociferous element clamouring for ‘a return to religion’ in a home-grown version of political Islam that soon set off a chain reaction in other northern states and that his decision was at bottom intended to appeal to vociferous Islamic sentiments – the drive towards “a return to religion”, in the homegrown version of political Islam, which soon set off a chain reaction in other northern states.] There are other historical explanations as well. Last century the British colonial rulers of northern Nigeria left the prevailing Islamic legal system intact, except for the hudud, which they outlawed as “inhuman and degrading” forms of punishment. It might be noted, in this context, that while many Muslims in different parts of the Islamic world today will readily agree with this characterisation; they are also concerned that (Islamic) due process may not be met in meting out punishments. The forced suppression of hudud and the removal of criminal law from Islamic jurisdiction with independence, were old grievances ripe for politicisation. 

The growing politicisation of religion through the 1970s and 80s, in Nigeria as elsewhere – along with the widespread religious revivalist movements, among both Muslims and Christians – also, helped pave the way for the “shariah state.”  Many Muslim Nigerians often claim that state law, or common law, deriving from English common law is based on Christian principles and values, and hence is “Christian law” and not religiously-neutral law.  This has led to the demand of Muslims to be subject to “their own law” – the secular concept of a shared national domain being more or less absent among Muslim Nigerians and problematic, as well, among their Christian counterparts. Nigeria remains, to both parties, a multi-faith rather than secular country. By the start of the 21st century, the time was ripe for a move to restore the hudud in a quick win-win for Islamists and the state. Taking advantage of a loophole in the federal constitution, governors in Muslim-majority states in the north introduced the hudud as codified law in their states. And while the constitutionality of this has been debated, the law now prevailing has not been challenged.

Whatever the “bigger politics” involved, Muslim women in Nigeria were not about to be bartered on the block of hudud. Women and the poor form the bulk of the Nigerian population, and the Muslims among them are in greater danger of falling prey to the new Islamic penal laws. At the same time there is a sizeable group of women, both Muslims and non-Muslims, active on the scene as public intellectuals, scholars, professionals and activists.  They are highly concientized (to borrow a term from the South African Struggle) about gender, Islam and justice; they are poised and deeply committed to defending and protecting the rights of women and the poor. Women activists were educated in the 1970s and 80s, simultaneously with the very incubation of political Islam. Muslim women typically received both an Islamic (Islamiyya) and a state education (often referred to in Nigeria as “western” rather than “secular” or “public”). Islamiyya education has ranged from after-school madrasa lessons in religion and Arabic to full-time Islamic schools set up and run by local Muslim communities.  Since the 1970s, the Nigerian Islamist group known as Izala (the Jama‘tu Izalat al-Bid‘a wa Iqamat al-Sunna, meaning “the Society for the Removal of Innovation and Re-establishment of Tradition”) have set up a spate of religious schools where, despite (perhaps because of) conservative religious curricula, they inadvertently trained future gender activists.  Intensive exposure to religious texts, including the Qur’an, which girls were taught to read in Arabic, gave them tools that would lead to some of them rejecting the prevailing patriarchal interpretation of Scripture in favour of a new liberationist reading.

It is striking, especially to those familiar with northern Africa (where there tend to be separate educational tracks, secular and religious, typically aligned with separate classes of the population) how well educated some Nigerian Muslims are in both religious and secular spheres. The lack of the religious v. secular dichotomy so often seen elsewhere is indeed striking. Muslim women activists in Nigeria, unlike their counterparts in many other places, operate within the broader parameters of holistic Islam. At the very time when Nigerian political Islam with its conservative gender agenda was on the upsurge, woman activists were joining forces to create their own organisations. In 1985 (that was the year the UN Decade of Women ended at the UN International Forum in Nairobi, having attracted the largest ever numbers of Africans), the Federation of Muslim Women’s Associations in Nigeria (FOMWAN) was formed. Later, Muslims and Christians together founded BAOBAB for Women’s Human Rights, an affiliate of the international network of Women Living under Muslim Laws (WLUML), which spearheaded the trans-national women and law project, as well as Women’s Rights Advancement and Protection Alternative (WRAPA). By the late 20th century, as a result of all such efforts, a whole generation of seasoned activists, both Muslim and cross-faith, were already poised for defending women’s rights and social justice.

Triggered by efforts to overturn the convictions of the two aforementioned women (accused of zina), activism within the new shariah state dispensation required intense scrutiny of fiqh. When qadis in the lower shariah courts in the states of Sokoto and Katsina sentenced Safiya Husseini and Amina Lawal to death by stoning, they along with the higher political authorities of their respective states did not expect their judgments to be questioned. As hudud had not been implemented for a long time, the chapters on crime and punishment in fiqh books had to be revisited. Religious knowledge by now is no longer the exclusive preserve of a small clerical class; rather there is a wide community of religiously literate and socially sensitive men and women.  BAOBAB and WRAPA organised legal defence teams comprising mainly women lawyers, which brought to the higher shariah courts of appeal an array of stunning arguments solidly grounded in Islamic jurisprudence and due process. The legal defence also managed to move beyond the restrictive confines of the Maliki school of law to present arguments gleaned from other major schools as well. The two aforementioned acquittals became landmark events in the modern history of the fight for gender justice in Islam, demonstrating the capacity of Islamic jurisprudence to protect gender justice.

Theoreticians of gender in Islam have called attention to how the corpus of the major schools of jurisprudence (consolidated in the late 8th and 9th centuries) bears the imprint of the thinking and practices of its day. This is especially true of personal status matters, in which the patriarchal model was a major influence. 

The high-profile zina cases in Nigeria highlighted the fact that, in the criminal realm, the patriarchal model does not prevail. The dicta of the four major schools of Islamic jurisprudence indicate that it is virtually impossible to convict individuals – whether women or men – of zina, because of the virtually impossible evidence requirements (including testimony by four upright Muslim males that were witness to the sexual act).  Islamic jurisprudence indicates that the two genders are equally protected in cases involving zina, and expresses a reluctance to mete out the death penalty, whether to women or men, for an act of illicit sex. The severe hudud are seen primarily as deterrents, not as bludgeons to be used by those with a thirst for vengeance, to teach women a lesson or intimidate the poor. The two zina cases, as well as cases of theft (including amputation carried out for the theft of a cow, against a social backdrop in which agents of big-time corruption are left to their [own] devices) brought to attention a renewed focus on poverty and the injustice it entails. I heard many people reiterate the notion that the implementation of shariah, and the imposition of hudud, require, a priori, the existence of a just Islamic society – defined as one in which members of the umma or Islamic community enjoy a decent livelihood as well as adequate social and health services. It is incumbent on the umma through wise governance and responsible distribution of zakat or religious tithes to ensure the wellbeing of its more vulnerable members. Before hudud can be justly applied it is necessary first to create a just society (in which economic desperation does not tempt women to engage in illicit sex or lead to necessitate theft as a means to basic survival). Like their other compatriots, most Muslims in Nigeria live in conditions of severe poverty. And people are finally making it clear they want more than a law-and-order Islam imposed by the state; what they want, rather, is a society that makes viable social and gender justice.

At the end of my stay I was invited to attend the “National Conference on Promoting Women’s Rights through Shariah in Northern Nigeria”, organized by the Centre for Islamic Legal Studies at Ahmadu Bello University in Zaria, as well as the Security, Justice and Growth Programme held at Arewa House in Kaduna. During the two days of the conference the voices of women (and various men) I had met in my travels in the north were coming together in a grand crescendo – they clamoured for the delivery of women’s rights as a necessary aspect of justice in the new shariah dispensation. Women and men participated in the conference in equal numbers. High government officials, traditional leaders, Islamic scholars of both genders, qadis and judges, lawyers, academics, health professionals and activists all came together.  Both women and men led prayers, delivered plenary addresses and spent long sessions deliberating in an interplay of theory and practice with careful attention to mu‘amalat – societal conditions specific to contemporary Nigeria. In the discussion groups I also heard women speak of their own experiences of gender injustice and men admitting injustices perpetrated against women. Such candid discussion, I was told, was unprecedented in a dual-gender public forum. At the opening plenary the governor of Zamfara, who had risen to power six years earlier pledging to implement shariah, informed the assembly of the structures and measures he had put in place to this end.  His wife, a medical doctor, incanted a litany of women’s rights and duties. 

The stakeholders assembled in the following sessions – and “stakeholders” is how they describe themselves – aired the perspectives of civil society, focussing on the model of a just and compassionate Islam in a social-economic setup marked by justice. They offered suggestions for shariah implementation both in discussions and in the Communique they issued at the end of the conference. The first of nine observations in the Communique declared that “the Shariah has provided adequate rights for women”. Another observation decried the lack of “a comprehensive policy for the promotion of women’s rights as provided by Shariah in most northern states.” At the head of a separate list of ten recommendations was a call for educating “members of the public on the status, dignity, rights, and obligations of women in Islam, and discouraging negative cultural practices in society that adversely affect women”.  The second recommendation drew attention to the importance of engaging “ulemah in a meaningful dialogue in order to articulate various effective means of discussing and disseminating issues of women’s rights in the Shariah”. There was a discernable, productive tension between women and men, between mallams or Islamic religious teachers, ulemah and ‘alimat (respectively, male and female religious scholars) and qadis and common-law legal practitioners, as well as public intellectuals, academics, activists. As I listened to plenary speeches and moved around discussion groups, I saw Muslim society in Nigeria in deep conversation with itself. Stakeholders appeared intent on realising women’s rights as society’s rights, and rights enjoyed by the poor as the umma’s hope.  It looked to me as if the people were taking the implementation of the shariah into their own hands and that social justice, not hudud, was centre-stage.

POSTSCRIPT. Just as the conference in Kaduna was ending a call came from the well-known and highly respected scholar of Islam, Tariq Ramadan, a voice of the African diaspora, and the grandson of Hasan Al-Banna, the founder of the Muslim Brothers in Egypt) – for a general moratorium on hudud until the requisite just societal conditions prevail in Muslim societies, so that the risk of committing injustice through wrongful application is avoided. The starting point, he insisted, would be the creation of (living) social justice – something I heard Nigerians repeatedly affirming.

Originally published on the Al Ahram Weekly website at http://weekly.ahram.org.eg/2005/743/index.htm and reprinted with permission of the author.