SHARÎ`A ON STATE LEVEL

The articles in The Vanguard by Justice A. Lemu (24 March 2002) and Dr. Lateef Adegbite (the same and 29 March), as well as the Governor of Niger State (25 March), replying to the Federal Attorney General, repeat positions these learned jurists have been articulating for many years. I am not writing to quarrel with what they say, but only to enlarge the perspective of Sharî`a in Nigeria with additional considerations:

1) The constitutionality of extending Sharî`a to criminal law

This is a matter I am not competent to address, but on which many legal experts have written. A resolution of this question is urgent. In any case the supposition is that the Constitution must be upheld, and not that Sharî`a is above the Constitution and must in any case prevail.

2) The restriction of Sharî`a to Muslims only

Practically all public statements by Muslim leaders in Nigeria are categorical that Sharî`a does not apply to Christians. They therefore ask why should CAN and Christian leaders oppose it.

If Sharî`a is really restricted to Muslims, I readily agree that Christians should keep out of the question, since it is an internal affair of Muslims. The last thing we should want is a Christian-Muslim confrontation over the kind of penalties Muslims choose to meet out to Muslims, if Muslims are satisfied with that arrangement.

But in propounding Sharî`a, Muslim leaders generally fail to take cognisance of and attempt to allay some real and widespread fears among Christians. These concern two matters:

• Sharî`a proponents ignore the position of classical Sharî`a treatises. While saying that Sharî`a applies only to Muslims, Sharî`a proponents also demand nothing less than full and complete Sharî`a. Yet one does not need to read juridical classics, such as Mawardi, Turtushi, as-Sarakhshi, Muhammad ibn-al-Azraq al-Andalusi etc., but can find out quickly from current literature that Sharî`a (as commonly understood) does affect Christians. For example, if a Muslim should choose to become a Christian, that Christian must be put to death, as well as those who received him. Countless other restrictions in the classical treatises ensure that Christians are second-class citizens. Proponents of Sharî`a must clearly repudiate these well-known provisions, and not pretend that they do not exist, if they want to allay Christian apprehension.

• Incidents on the ground are not reassuring. Where Sharî`a has been established, there has been an increase of anti-Christian incidents, e.g., the destruction of St. Dominic's Church, Yashi (near Gusau), the occupation of part of the Sisters' compound in Gusau, the punishment of Christians for drinking beer under the guise of preventing drunkenness, even though the classical treatises permit Christians to consume alcoholic beverages and sell them among themselves, and the Catholic Church teaches that drinking in moderation is legitimate.

Christians need to experience Sharî`a as non-threatening if they are to relax and rejoice that their Muslim brothers and sisters are enjoying Sharî`a

3) Sharî`a or fiqh?

It has been said that Sharî`a and Islam are the same thing. That is correct, when Sharî`a is rightly defined as the law revealed by God. The problem in present-day Nigeria is that the word Sharî`a is not distinguished from fiqh, the interpretation and application of Sharî`a as formulated by jurists who are only human beings. Must the adulteress be stoned? The Qur'ân does not say so; it only prescribes a number of lashes. But there is a widely reported Hadîth prescribes stoning. How surely authentic is this Hadîth? Even if authentic, how categorical must its application be, taking into account all the circumstances? These are questions I do not pretend to answer, but I have read and heard widely diverse opinions by Muslim scholars.

The last thing I would want to see Muslims do is to abandon or compromise divine law by bowing to international pressures, but I would suggest, for the good interest of Islam, that Muslim spokesmen should be careful not lightly to pronounce something as Sharî`a (with all its serious implications), when it is really within the realm of fiqh, and hence negotiable in practice.

The fact that fiqh is much wider than Sharî`a is the reason why governments that try to follow Sharî`a have found it necessary to codify which interpretation of Sharî`a they are going to follow. For instance, in the year 2000 Egypt passed a new law on the family, defining the mutual rights of husbands and wives. There were many opposing opinions on the law, but the government selected what it thought most faithful to the Islamic ideal in today's circumstances.

4) Religious courts: private or governmental?

Muslims in Nigeria seem to take it for granted that they cannot have a Sharî`a court unless it is set up by the government. Do they know that each diocese of the Catholic Church has a Canon Law court, chiefly to try marriage cases? These courts are entirely Church organized and financed, and their decisions are accepted by the parties involved simply because of their loyalty to the Church, and not because of any governmental coercion. This leads to three questions:

• Why are Canon Law courts not financed by the government? Muslims would certainly say they should be, in parity with their own Sharî`a courts.

• Secondly, in the non-Sharî`a states, why do Muslims not set up their own private Sharî`a courts, at least for personal matters? Who is stopping them? Such courts might give Muslims in these areas considerable satisfaction and, if they prove popular, they could be upgraded.

• A more serious question is, should not a Muslim in a Sharî`a state, on the basis of religious freedom, have the choice of being tried outside a Sharî`a court? You may say if he does so he is being false to Islam. But is the government there to force Muslims to practice and adhere to Islam? What kind of Islam is that of those who practice it from fear? Would not Islam gain from a situation where Muslims practice simply because of conviction or the persuasion of preaching, rather than because Sharî`a police are breathing down their shoulders? It would be frivolous to think that without government and social control, people would run out of Islam. But if they are given the impression that they are under pressure, they may look for a chance to escape.

5) Public relations

The difference of tone in public speeches by Muslims in the U.S. and Nigeria is astounding. Muslims are a minority in the U.S. That does not make them timid, but they realize that all they hope to gain must be by way of persuasion. Many of them strongly denounce Muslims who practice terrorism, and try to project an image of Islam as a benign religion that is well suited to a pluralistic democracy. You never hear them clamour for cutting off the hands of thieves or stoning an adulteress. Is this taqiyya (pretence) or a different conception of Islam prompted by very different circumstances than those that prevail in Nigeria? Whatever the case, their efforts to make Islam more respected and achieve greater recognition have paid off handsomely.

In Nigeria, on the other hand, Muslims have long been in a position of power. They have not experienced the necessity of a serious public relations or marketing strategy. Why try to persuade, when you are in a position to impose? The unfortunate thing is that the thirst for hegemony is a Nigerian factor that applies not only to Muslims, but also to Christians in some localities and to many ethnic groups that are at loggerheads.