CLASS, GENDER AND A POLITICAL ECONOMY OF "SHARIA"

BY

SANUSI LAMIDO SANUSI

The emergence of radical Islam in Northern Nigerian politics and the implementation of Shariah by some Northern states is considered a welcome development in our evolving federalism which guarantees the constituent groups that represent the pot pourri of Nigeria's political landscape the right to freedom of worship and conscience. It is however necessary at all times for Muslim intellectuals to take a break from the perennial battle against non-Muslims where implementation of Sharia is concerned, and critically examine the conceptualisation and implementation of Sharia with a view to ascertaining its conformity or otherwise with Islam. This task involves an intellectual effort aimed at transcending the propaganda value of fundamentalist rhetoric and separating the religious element of Islamic law as codified by the northern states and exemplified by the statements of politicians on the one hand from what I call the politico-ideological element of this praxis and discourse on the other.

In this paper, I intend to subject a number of public and uncontested court decisions, statements and actions of Zamfara state government and its governor who have been in the forefront of the Shariah project to the above test. At the end I will argue that these public examples are really an indicator to an underlying ideology of political reaction camouflaged by the glitter of piety. Specifically, I will show that the choices made by the Zamfara state government from the range of alternatives open to it in a number of cases reflect a predisposition towards the oppression of women, the alienation of the masses and a perpetuation of the culture of corruption, waste and aggrandisement of public funds. The ideology so unveiled does not need explicit verbal or written articulation. As recognised by sociologists today, ideology often does not need open advocacy, especially if its more obvious elements run contrary to an emergent culture of political correctness. All it requires is a subtle resistance to counteractive forces or, in some cases, a certain cruel, complicitous silence.

Before I proceed let me make the following clarifications. All Muslims believe that religion can not be separated from our political life and a Muslim's life should be governed by the law of Allah as revealed to his prophet Muhammed (S. A. W). We affirm the right of Muslim peoples to be governed by the Shariah and voluntarily subject ourselves to its rulings. We also believe that the prime referent for our conduct should be the Sunnah of the holy prophet, the Imitatio Muhammadi or Muhammadan example.

However, this very set of beliefs generates its set of intellectual problems. The integration of politics and religion leads to the corruption of the pristine neutrality of religion by the vested political interests of political actors. As soon as a government seeks to implement Shariah, what it does is to transform a set of metaphysical values into a concrete component of real life action. The conceptualisation, articulation, selection and implementation processes which are a necessary part of this transformation invariably reflect the concrete political ideology of the politicians in government. In reality, the Shariah project gives a concrete expression to the position and aspirations of the dominant classes within the context of extant contradictions in the social formation. To divorce this self-interest from the process and pretend it does not exist is an exercise in self-deception.

As we all fight for the right to have Shariah we are conscious of a renewed unity of the Muslim Ummah and a greater awareness of our collective heritage reflected in the increased usage of religious language and symbols in public and private life. There is nothing wrong with this. However, the consciousness of this unity of faith is not the logical equivalent of a unity of interest. The profession of common faith by corrupt politicians, retired generals, feudalists, traditional Ulama and the masses (male and female) ought not make us oblivious to deep rooted and irreconcilable contradictions in the interests of these groups in the northern social formation. The Shariah project and religion in general are used to create a mythical sense of correspondence between the long term interests of our popular masses and women on the one hand and the interest of those whose ultimate objective is to leave them in perpetual penury, illiteracy and deprivation while securing their complicity in a wider battle fought against other oppressors from other parts of the country.

I intend to illustrate the class character of the "sharia" so far applied in Zamfara State by contrasting the government’s attitude towards petty theft with its attitude towards corruption on the part of public officers. I will then turn to the gender bias of the law under which a teenager, Bariya Magazu was convicted for fornication on the basis of the fact of pregnancy.

The attitude of the governor of Zamfara state to public sector corruption is summed up in his own words in an interview he gave the journalist Karl Maier which the latter quoted in his book "This house has fallen: midnight in Nigeria" (pg. 185). Governor Sani makes this stunning revelation:

"I warned in the presence of the public that I am going to remove any commissioner as soon as I learn that he is taking money from the contractor before the contract has been implemented. After the execution of the contract I don’t care what happens between him and the contractor. If the contract was for N5 million and the contractor went around to give the commissioner N200,000.00, I don’t care".

To the best of my knowledge, Sani Yarima has not denied this quote since the publication of the book. Let us compare this statement of Governor Sani with a Hadith reported by al – Bukhari, Muslim and Abu Dawud (see al – Mundhiri, Targhib wa’t – Tarhib vol. 1, pg. 277) from Abu Humayd as - Sa’idi who says the prophet (S. A. W) appointed a man from the tribe of al – Azd named Ibn al Lutabiyya for sadaqa collection. When he came back he said "This is yours and this was given to me as a gift". The messenger of Allah stood, addressing the gathering and praised Allah and thanked Allah, then said, "I employed a man from you to do a job that Allah gives me control over. Then he comes and says, "this is yours and this was given to me as a gift". Why does he not sit in his parents’ house and see if this gift will be brought to him? By Allah there is nothing which any of you takes without true right which will not be carried by you when you face Allah on the day of judgement. Let me not recognise any of you coming before Allah carrying a camel that is bellowing, or a cow that is lowing or a sheep that is bleating".

This is Islam. The prophet gives a yardstick for determining what is corruption in public office. A man should not receive, for carrying out a legitimate duty for which he is employed, any gift from anyone unless such persons would have given such gifts to him even if he were not a public officer. As a simple arithmetic exercise based on the example given by the governor, it means if the Capital Budget of the state government this year is say N4billion and contractors executing the projects gave commissioners N160million as bribes the governor does not "care" so long as the bribes are paid after the completion of the job! It is this mindset that led the governor into offering Ulama large contracts which were rejected early in his administration. It also underlies the huge expenditure of the state on large delegations going frequently on hajj and umrah even though the hajj is not binding on any Muslim who can not afford it.

Now compare this attitude with the governor’s attitude towards crimes of the poor. When Buba Jangebe was convicted of theft the governor ensured, with fanfare, that the man’s hand was amputated with alacrity. The issue here is not as simple as it seems. In the reign of the second Caliph, Umar, he suspended implementation of amputation in a year of famine, a position adopted by latter-day jurists. The significance of famine in an agrarian economy is that it leads to widespread poverty and economic adversity. A famine in Saudi Arabia today, for instance will not necessitate such a step since the country’s economy does not depend on rainfall and the Saudi oil resources will ensure that there is no major decline in standards of living.

However a sudden drying up of the oil wells may precipitate such widespread hunger and poverty as to make the rulers unsure of how to separate a man who steals due to deprivation from one who steals due to greed. The logic Umar employed was one that took cognizance of the ubiquitous nature of this doubt and advised suspension in keeping with the instruction of the prophet to set aside the hadd punishment in the presence of doubt.

What we learn from this is that the Muslim leader, Hakim, is at liberty to exercise judgement on whether or not the economic situation is such as to make the fear of that ubiquitous doubt legitimate. In view of the number of beggars lining the streets of northern cities, indeed migrating to fill the streets of southern cities due to poverty and deprivation it is a sad commentary on Sani’s sense of judgement that he did not consider it appropriate to follow Umar’s example and suspend the extreme penalty pending alleviation of widespread poverty. He had the option, in law, to be more compassionate in consideration of the economy but he opted to come down hard on the poor.

The overall profile that emerges is one of a government that has an "I don’t care" attitude to the crimes of the rich but hastens to deal harshly with the poor even where it is possible to give the benefit of doubt. As a result, the Shariah implemented is one which cuts off the hand of a petty thief but obviously does not consider bribery to be an offence so long as it is given after the contract, not to talk of prescribing a punishment for it.

I conclude this section with an interesting Hadith narrated by Bukhari,Muslim,Tirmidhi,Abu Dawud and Nasai from Aisha as well as Tabarani from Umm Salamah (see Jami’ al-Usul 4:314, Majma’ al-Zawa’id 6:259) in which the Prophet (S.A.W.) said: " Those who went before you were destroyed because when a noble one among them stole, they left him but when a a weak one among them stole they cut off his hand" and in one version " they effected the hadd on him".

The case Bariya Magazu, the teenage single mother convicted of fornication on account of her pregnancy and given 100 lashes of the cane after she had put to bed is by now well known. The issue was the focus of uproar from Human Rights groups and foreign governments, not to talk of Muslim NGOs like BAOBAB, an association committed to defending the rights of women living under Muslim law.

Muslims in general are aware that the punishment for fornication in Islamic law is 100 lashes for each party to the act. They also know that in the Qur’an the evidence for convicting suspects is the testimony of four up – standing male eye witnesses to the act of fornication. The Sunnah also accepts the voluntary confessions of an individual to the crime, a confession which he/she is free to retract at any point before or even during the execution of the sentence. These two sorts of evidence are therefore admissible as proof of fornication by unanimous consent. Beyond this there is much that Muslims do not know, which is why organisations like BAOBAB are easily dismissed in Islamist circles as NGOs acting in the interest of America or the West. In fact the arguments put up by BAOBAB against the caning of Bariya were based on sound and established principles of Islamic jurisprudence.

The first point is whether the fact of pregnancy is evidence of fornication making a single girl liable to the hadd punishment on account of pregnancy. On this, one says, on the first count, that there is no evidence to support it in the Qur’an and Sunnah. Secondly, of the four schools of law in Sunni Islam only the Maliki school accepts this position (see Ibn Qudamah’s Al – Mughni, 10:192, also Al-Jaza’iri, Kitabul Fiqh ala’l Mazahib al – Arba’ah 5:94; and M. Abu Hassaan, Ahkam al Jareemah wa’l ‘Uqubah fil shari’atil Islamiyya, pp 257 – 8).

The reason for rejecting pregnancy as evidence of fornication by the majority of jurists, among them Abu Hanifa, Al – Shafiee and Ahmad is simple; pregnancy is evidence of intercourse but not of consent. The woman may have been raped. Also, she may have erroneously consented to a relationship she believed was legitimate as in one who contracted a temporary marriage since this was considered lawful by Ibn Abbas, or one who gave herself in marriage without a guardian since this is in certain circumstances permissible according to Abn Hanifa. In sum, the act of intercourse, which may be established by pregnancy, is not in law identical in meaning to fornication. Because of this doubt (shubuha) a pregnant woman without a husband can only be convicted of fornication based on her voluntary confession to the act. Any uncertainties in her testimony set her free. In fact Ibn Qudamah in al – Mughni (10:193) actually says pregnancy is not evidence of intercourse, if this is defined as coitus. In his own words "a woman can be pregnant without coitus if a man’s sperm goes through her vagina either by her own design or those of another party …….." And this is true. Indeed an interesting discussion on NTA’s Newsline of Sunday 18^th March 2001 involved a ten year old virgin girl who was pregnant.

Although the Maliki position is based on rulings or statements from Umar, Uthman and Ali, there have been other rulings and statements from these same companions and others which contradict this position (see al – Mughni 10: 193 – 194). Also, it is a matter of consensus among jurists that if four eye witnesses testify to coitus but two of them, for instance, have doubts about consent of the woman she is not convicted (Al Mughni 10:184 – 186, Kitabul Fiqh 5:73) and in fact, according to some jurists, the two who testified to fornication are given 80 lashes for slander! So the first point of criticism of the law is that it is based on the fact of pregnancy which does not prove fornication. It places the burden of proof on the woman that she was not a consenting party which violates a fundamental law in Islam that all persons are presumed innocent until guilt is proven. This is the precise basis for BAOBAB’s criticism.

A second criticism based on a view held by Dr. Abul Ma’ati in his book Al – Nizam al – Iqaabi al – Islami (pp 268) is that in all hadd crimes like theft and fornication circumstantial evidence is inadmissible as a basis for hadd. By definition these crimes including acceptable evidence and punishments are defined and fixed in the Qur’an and Sunnah. Circumstantial evidence may be used to justify a lesser punishment under Ta’zeer (deterrence) but not for hadd, in principle.

A final criticism is that only women get pregnant. By accepting pregnancy as evidence of fornication, the state has adopted a law under which only women can be convicted. In the Qur’an we read (see Al – Nur: XXIV: 2). "The fornicatress and the fornicator whip each of them with a hundred stripes".

If pregnancy is accepted as evidence of fornication for women then in this day and age evidence of paternity such as DNA tests should serve as a basis for also convicting the fornicator. Otherwise the law is not just.

The standard response to these points is for the state to argue that Northern Nigeria is essentially Maliki and this is Maliki law. First one says Muslim people of Northern Nigeria are Muslims first, Malikis second. Maliki law binds them only where Maliki’s view is established as closest to the letter and intent of the Qur’an and Sunnah.

Second, Imam Malik himself rejected an offer by the Abbasid Caliph in his time to adopt his mazhab as the law for the entire state. A true disciple of Malik will always weigh his rulings against the Book and the Sunnah and accept those which are correct.

The law under which Bariya was convicted is a law under which any unmarried woman who becomes pregnant even if she was raped can be convicted (because she did not report the rape). Meanwhile, the rapist goes scot – free. This injustice of the law on women is obvious to all but those in whose consciousness woman is nothing but a paradigm of difference.

Since the Sharia project started in Northern Nigeria there have been criticisms which one can classify broadly into two:

The first class I call invalid criticisms such as "amputation is a violation of human rights" or "flogging is immoral". These criticisms try to present a value-judgement as a statement of fact, even though it emanates from a different world – view. As pointed out by the British analytic philosopher A. J. Ayer in his book Language, Truth and Logic, to say someone has "a distorted or undeveloped moral sense….signifies merely that he employs a different set of values from our own." Thus when Archbishop Carey, for instance, says "amputation is immoral before God" it is no different from his saying "I am a Christian priest". The statement is lacking in factual content. Had he been a Muslim he would not say it. These criticisms are therefore criticisms of Islam as a religion and a world – view which we reject and continuously respond to in defence of our faith.

The second class I call valid criticisms. Such as to say it is unjust to cut off the hand of a poor thief while condoning large-scale corruption from public officers and before taking measures to successfully eradicate poverty. Or to say that it is wrong to convict a pregnant girl for fornication based on the fact of pregnancy without even trying to identify and convict the father of the expected baby. This is especially where the girl due to her youth, deprivation and lack of parental care is vulnerable to exploitation .

These criticisms are really addressed at those implementing the sharia not at Islam. Although the punishment for theft is amputation, Islamic history shows us that the leader (Hakim) is at liberty to judge if the environment is suitable for effecting the extreme penalty. Under Maliki law the leader has the liberty to decide the appropriate punishment for corruption under ta’zeer, and it can be as severe as the death penalty. In the case of Bariya, the leader was at liberty to adopt the view of the majority of jurists (and should indeed have). The same goes for laws on Ijbar, under which fathers can force their daughters into marriage, and the obsession with excessive confinement of women.

The essence of this long article is to show that the governments implementing Sharia have made conscious choices reflecting an ideological pre-disposition. This predisposition is one that protects the powerful and oppresses the poor and women. The task of the Muslim intellectual is to continue to expose these ideological leanings and ensure that Islamic language and symbols are not exploited by politicians, scholars and the feudal establishment to legitimate, validate and entrench the relations of exploitation and suppression by class and gender which exist in the Northern social formation.

It is my view, however, that it is not too late to address these issues. For this to happen will require the support of elements of the dominant classes, particularly some traditional rulers, ulama and politicians who are genuinely committed to a just application of Islamic law. It is to these persons, in Zamfara and elsewhere, that this article is addressed. Islam started as a religion of liberation. In the wrong hands it can be turned into one of oppression. It is quite likely that this article will be dismissed, as usual, as one more "controversial" article. Of one thing I am sure. No matter how strong a people’s faith, no matter their commitment to Islamic Law, they will turn away from it if it is used to subject them to poverty; if they are able to perceive blatant injustices.