By

This paper seeks to examine the possibility of the existence of the shari’ah in a secular constitution. I will argue, based on a review of key elements of Muslim legal theory, that Muslim laws cannot be completely secularized and so the shari’ah, strictly understood, is incompatible with secularism, strictly defined. I will however also seek to articulate some reflections on the Seerah, or biography, of the prophet of Islam and the inferences that may be drawn on the possibilities and character of the co-existence of Muslim communities ruled by the shari’ah in multi-religious milieux. Within the general theme that examines the place of shari’ah in secular constitutions, the paper seeks to correct the general misconception that the assertion of Muslim religious identity is incompatible with citizenship in a religiously pluralistic state. My aim is to show that, based on the example of the prophet as documented in Muslim historical sources, the peaceful existence of Muslim communities in a "federal structure" side by side with other communities, the guarantee and protection of freedom of religion and recognition of the principle of citizenship common to nationals irrespective of religious persuasion are integral to Muslim teaching. It is therefore not the aim of this paper to make normative comparisons between religious and secular constitutions, nor to undertake a comparative assessment of "Islamic" and "secular" systems. Its purpose is limited to an investigation of the two questions mentioned above viz: Is full implementation of shari’ah compatible with a fully secular constitution? And is the implementation of shari’ah, correctly understood, responsible for religious conflicts in plural societies?

Let me begin by stating that I am fully conscious of the fact that the "national question", as it were, is a controversial one in the literature. One of the major criticisms leveled by fundamentalist thinkers against the so-called contemporary Muslim "Intellectual School" (al-Madrasah al-‘Aqliyyah) is that it believes, to quote Salman al-‘Audah, in a "national unity" that "brings together all nationals irrespective of religious difference." Muslims who are unduly influenced by the puritanical ideology of Wahhabism are therefore a major source of instability in plural societies. The equilibrium established among adherents of various faiths through the agency of a common citizenship based on respect for each group and equality of individuals is undermined by the call to a superior and exclusive religious identity that rejects common citizenship. Very often, the groups that preach religious hatred and discrimination also make the most vociferous claims to orthodoxy and to adherence to the true traditions of the prophet and the early companions. It is for this reason that I intend to treat in some detail this question, relying on primary sources of Muslim legislation.

The rest of the paper is arranged into two sections and a conclusion. The first section discusses the shari’ah, as a body of laws, and its intrinsic/theoretical compatibility or otherwise with secular law. It explores a potentially controversial point in legal thought: the secular content of Muslim laws. I will argue that certain immutable theoretical constants will always ensure the incompatibility of these laws with outright secularism, where the latter is defined as the complete excision of religion from the legal and political process. The shari’ah is however not incompatible with legal pluralism, nor with modern constitutional arrangements which seek not so much to deny the relevance of religion as to ensure the maintenance of a just balance between affirmation of religious rights and infringement on the equally fundamental rights of other groups and individuals in the polity.

In the second section I discuss the question of shari’ah in a religiously pluralistic setting. I examine the "Madinan Constitution" or rather the "document of Madina" (Watheeqah al-Madinah), which was according to biographical sources, drawn up by the prophet as a guide to the relations in Madinah between the Muslim tribes among the "immigrants" from Makkah (the Muhajirun) and the indigenous Muslim "helpers" (Ansar), as well as between Muslims as a whole and the indigenous Jewish tribes of Madinah. This document will be analyzed with a view to determining the tradition of the prophet on the question of legal and political pluralism, as well as common citizenship in a multi-religious nation.

The paper is then concluded with a discussion of how distortions and misconceptions about Islam- by its adherents and opponents alike- rather than the law itself, are to blame for the general belief that Muslim communities are incapable of peaceful co-existence with adherents of other faiths in modern constitutional democracies. I argue that it is the responsibility of all Africans committed to peace and harmony to reject and oppose the forces of extremism and intolerance each in his/her own religion and ethnic group. These forces, be they Muslim or Christian fundamentalists or advocates of ethnic irredentism and bigotry, constitute a dangerous virus in the fabric of their host communities, leading them inexorably to mindless carnage and destruction under the influence of false ideologies. This we have seen in the Sudan, Rwanda/Burundi, Uganda and Ivory Coast, among other nations ravaged and often decimated by ethnic and religious conflicts.

In discussing the nature of shari’ah in a secular constitution one needs a theoretical, as opposed to a dogmatic, framework. The question that must be answered first is one of whether Muslim laws are in their totality sacred, or if, as some suggest, they are essentially secular. An excursus into Islamic Legal Theory (Usul al-Fiqh) provides an insight into this perplexing question.

Any student of the complex field of legal theory understands the strong influence of the subjectivity of individual jurists or schools in the production of Muslim laws. All Muslim jurists agree on the Qur’an as a source of legislation. Traditional orthodoxy in both Sunnite and Shiite Islam also recognizes the prophetic tradition, or sunnah, as a second source-although the definition of what constitutes "authentic sunnah" is not the same in the two sects (and often scholars differ even within sects and schools as to the conditions, or shurut, for accepting narrations (mutun), narrators (rijal) or chains of transmission (asanid) in authenticating traditions). The consensus of scholars, or Ijma’, is a third source recognized by both schools (although for Shiites the consensus only has meaning if endorsed by their Imam). A fourth major source is qiyas, or analogical deduction for Sunnites and ‘aql, or the ratio for Shiites.

At this point already a few issues emerge. Within these broad categories it is possible to assert that the Qur’an and the sunnah represent the words of God and His prophet, respectively, while qiyas/’aql and consensus represent the fruit of human rational or logical reasoning. Also, even where a text is established as part of the Qur’an, for example, its interpretation may differ from scholar to scholar or school to school depending on the particular set of rules adopted to guide linguistic and legal reasoning. To the extent that the Qur’an and the sunnah are documented in a language (Arabic), their interpretation is subject to questions familiar to students of literary criticism. The matter is compounded by disputes over the validity and application of other sources of law, such as public interest (maslaha), opinion of a companion (qaul al-sahabi), propriety (istihsan), the practice of the "people of Madinah" (peculiar to Malikites), local traditions (‘urf), or deliberate preference for erring on the side of caution (sadd al-dharee’ah). Scholars and schools differed in their acceptance of these sources, in their definition of them and in the conditions under which they are acceptable, as well as the appropriate line of action in the event of asymmetry (ta’arudh) between one source and another. Indeed, as noted earlier, they differ on the criteria for acceptance or rejection of the authenticity of traditions, the role, if any, of "weak" traditions in jurisprudence, and the significance of multiplicity (tawatur) in channels of narration for tradition, and the problem of abrogation (naskh)- its existence and forms-among other issues.

The bulk of the corpus of knowledge called shari’ah is therefore a product of reasoning based on subjective choices made among these and other areas of dispute. Those choices are human, and represent elaborate epistemological frameworks that are brought to bear on the process of legal induction and reasoning. In general, the larger the number of sources accepted by a scholar or school (and the more expansive the definition and scope of non-textual sources) the greater the human content, so to speak, of the law. This is a fact recognized from the earliest days of jurisprudence. For instance, Shafii insisted in his Risala that no legal ruling could be propounded if it was not ultimately anchored in the Qur’an and/or Sunnah. Accordingly, he had a restrictive definition of qiyas and consensus, as he consciously argued for a law "that would be exclusively divine in its origin." On the other hand the philosophical theologians (Mu’tazilites), the Shiites and the Hanafites gave a more expansive role to human reason or opinion (ra’y) in legislation. The Malikites gave recognition to the "general interest" and to local customs. Ahmad Ibn Hanbal, at the opposite extreme, went even further than Shafii in his emphasis of the centrality of scripture. He did not favour qiyas, unless it was absolutely necessary and where there was absolutely no textual evidence for a ruling. His focus on tradition and mistrust for the ratio led to some scholars categorizing him, implicitly or otherwise, as a traditionist in the Shafii school rather than an independent founder of a school of law. He also adopted a literalist approach to exegesis, which, in the case of God’s attributes, veers dangerously towards anthropomorphism. This tendency is present in contemporary Islam in the Wahhabi/Salafi tradition, one that is of primarily Hanbalite genealogy. Dawud al-Zahiri went beyond Ahmad on the question of qiyas by rejecting it completely. His tradition was followed by later Zahirite scholars, particularly Ibn Hazm, even though the latter rejected Hanbalite proto-anthropomorphism in his theology, opting instead for Ash-arite tropology (ta’weel). The point here is that jurists and schools differed in the "secular content" of their theorization. For this reason we find that among Sunnites for instance, the Malikites, Shafiites and Hanbalites referred to themselves as ahl al-hadith (the people of tradition)- as opposed to the Hanafites, labelled as-hab al-ra’y (adherents to subjective reasoning), on the one hand, and the Zahirites or extreme literalists on the other.

If we return to the question of language, choices are also made in adopting the rules of textual exegesis. Decisions have to be made, for instance, as to whether a text contains a command (amr) or a prohibition (nahy); then if the command is obligatory (wajib/fardh), recommended (mandub) or simply permissible (mubah) and in the case of a prohibition if it is discouraged (makruh) or outrightly banned (haram). Is the text of general/universal applicability (‘amm) or exclusive (khass)? Is it unrestricted (mutlaq) or restricted (muqayyad)? Are the words to be taken in their literal sense (haqiqah) or as tropes/metaphors (majaz)? Is there any implied but unspoken ruling (mafhum) deducible from the spoken one (mantuq)? Is the text of clear univocal meaning (nass) or is it ambiguous (mushtarak)? These and other questions are dealt with and rules for dealing with each often differ from school to school.

A final class of items in legal theory are the general rules of jurisprudence (al-qawa’id al-fiqhiyyah), the so-called "comparables and similes" (al- ashbah w’ al-nadha’ir) which aim at regulating the use of reason and providing it with a logical framework. The rules themselves draw from the choices made by the various schools on sources, prioritization and linguistic rules, and we can see the difference by comparing major works in this area by jurists of different schools, such as the Malikite al-Qarrafi, the Shafiite al-Suyuti, the Hanafite Ibn Nudaym and the Hanbalite Ibn Rajab.

The point in all this is to show that there is great deal in Muslim jurisprudence that results directly from subjective choices of epistemological frameworks. Furthermore, the cognitive structures that determine and influence our understanding do not have an existence independent on the historical, economic and social conditions of our existence as such. Most of the modernist onslaught on traditional thought has focused on the twin factors of epistemological relativism and embodiment, demanding a return to Islamic jurisprudence as a dynamic and ever-changing process, rather than an event. Once Muslim jurisprudence is understood as a process of understanding God’s will from the sacred texts, its contents are open-ended and amenable to change in time and space. By treating the law as a historical event, the understanding of a specific jurist or class of jurists is conferred with the attribute of complete objectivity. In effect, that which the jurist is able to understand is separated from the jurist himself, a separation that may have held sway in pre-modern Islam but which seems untenable in the light of modern cognitive theory with its clear demarcation between the thinking subject and the thought object. Although most of the work in this area seems to have been in the world of Sunni Islam, recent work by the Iranian intellectual AbdulKarim Soroush has shaken the epistemological foundations of Shiite legal theory as well. Ashk Dahlen has just published a major work breaking new ground in Shiite legal philosophy in which he interrogates the dynamic relationship between Islamic law, epistemology and modernity.

We do not mean by the above discussion to say, as some may suggest, that all of the law is therefore secular. And it is precisely in those areas that may never be delegated to human reason that the incompatibility of shari’ah with secularism is thrown into relief. The term "secularism" is itself controversial, particularly in western democracies. Secularism, understood as a deliberate policy of separating religion from state, morality, education, etc is a product of the history of Europe, and the tempestuous relations between the Christian Church as embodied in the papacy and the political heads of European nations and empires. The rejection of the political influence of the church was accompanied by an emergent intellectual tradition in the wake of the progress made possible by natural science. Advances in science increased faith in its essentially empiricist epistemology and a general mistrust for metaphysics, mythology and superstition. Archaeological discoveries, as well as advances in astronomy, physics and cosmology, undermined the belief in the literal truth and Divine origins of the bible. Biblical stories were now considered fables of the Jews, and religion was either a bundle of superstitions (albeit with some utility)- a la Russell- or an "opiate" designed to deceive the poor and make them blind to their state of alienation- a la Marx.

Philosophy and culture took on a distinctly anti-metaphysical, anti-religious character. Thomas Paine’s The Age of Reason was a massive blow to institutional religion and the belief in revelations and angels, even though the writer believed in God’s existence. Dostoevsky’s The Brothers Karamazhov contained strong arguments for philosophical atheism, specifically where Ivan declares his doubts about God’s existence and offers to return his "ticket" to the Creator. Although Dostoyevsky tries to put up counter- arguments through the agency of Father Zosima, he set out from the beginning to do this without the use of polemics. On this point, Saul Bellow remarks with characteristic wryness: "the degree to which you challenge your own beliefs and expose them to destruction is a test of your worth as a novelist". Voltaire’s Candide caricatured certain arguments central to scholastic theology. Leo Tolstoy’s criticism of German pietism is evident to readers of Anna Karenina. One is somewhat surprised at the appearance of this subject in what is, after-all, the tragic story of the extra-marital love life a lady of exceeding pulchritude. The dialectical materialism of Marx was explicitly atheist. Hume’s empiricist skepticism led to serious doubts about the feasibility or authenticity of miracle stories. Neo-Kantianism excluded metaphysical propositions, which are not sensible manifolds (the beginning of all empirical experience), from the sphere of knowledge. Then, of course, Nietzsche and his irreverence for Christian morality; the linguistic turn of Wittgenstein and the Vienna School, supported by the Oxford philosophers including Bertrand Russell and, most particularly, A. J. Ayer and his brilliant and uncompromising articulation of logical positivism; and finally contemporary post-modernism with its almost anarchic anti-foundationalism. Thus deists, agnostics, atheists and liberal intellectuals somehow combined to undermine faith and confidence in religion, especially as many previously held religious truths fell one by one before the advance of modern science. The arguments were diverse, the objectives often mutually incompatible, but each tendency ultimately undermined the authority of metaphysical paradigms.

The result of all this is a system of thought in which religion is viewed with hostility, or at best, mistrust and skepticism. But it also seems to have produced over time a flexible and fluid definition of secularism that is bent to the whims and interests of politicians. The Christian "Right" continues to play a major role in American politics. Officially secular, the US government is, as for example we see today under George Bush, sometimes an instrument of Christian evangelism. Franklin Graham, known as a basher of Islam, which he calls "a very evil and wicked religion," is George Bush’s favourite preacher. In 2001,U. S. Attorney General John Ashcroft declared: "Islam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you." These may seem nothing but personal opinions, but they add confirmation to the open secret that Christian fundamentalism is integral to the politics of the American Right. President Bush explicitly referred to his war on terrorism as a "crusade." Although the secular constitution of the US binds the government to respect for human rights, it seems these principles are jettisoned when it comes to the prisoners on Guantanamo bay. In Britain, the queen is head of state and head of the Anglican Church. The French government not too many years ago supported the decision of a school to ban two Muslim girls who insisted on wearing head-scarves to class in the name of "secularism". But apparently it is permissible for girls to wear crucifixes on their necks. The "secularism" of Western European nations and Russia did not prevent these countries from giving open support to Croats and Serbs in an openly religious war aimed at exterminating the Bosnian Muslim population. Even Turkish secularism, at least as promoted by Kemal Ataturk and the Kemalists, appears to mean eradicating all manifestations of Islamic culture and civilization from public life.

Secularism makes humanity its prime focus and treats all human beings as equal under the law. Yet, to quote another example, the greatest allies of the United States in the Middle-East, such as the feudal monarchies of Pahlavi Iran and Saudi Arabia, the ruthless government of Egypt or the Zionist state of Israel, are among the greatest abusers of human rights known to man. It is all well to accuse the Iranian clergy of human rights violations today, but these pale into insignificance when compared with the gross abuses meted to Iranian people by the SAVAK, the dreaded secret police of the Shah of Iran, trained and supported by the CIA. Saddam Hussein is attacked because he is alleged to hold weapons of mass destruction today, but Robin Cook, the former British minister, announced on the floor of the parliament that the US government was the first to give Saddam his anthrax agents and British companies built the munitions factories. Having made the profits from services well rendered, those same governments now destroy the monster they built. The next stage is to make profits from rehabilitation and reconstruction contracts, paid for by Iraqi oil. A day after Saddam gassed the Kurds of Halabja, George Bush senior wrote a memo to the State department affirming the strategic importance to the US of an alliance with Iraq. It is difficult to define what precisely European states mean by secularism, when one considers these confusing signals. It is indeed difficult to imagine a fully secular state, in so long as the most influential citizens and groups hold on to certain religious beliefs. It may be possible to separate religion from state in many spheres, but often the religious character of the state emerges in the face of a "clash of civilizations."

In consequence, secularism sometimes seems to Muslims an acronym for anti-Islamism, particularly when raised in the matter of implementing Muslim Laws. Even in its theoretical conceptualization as separation of religion from state or public morality, secularism is incompatible with the shari’ah. First, as we have seen, some schools consciously adopt frameworks that tie rulings closely to scripture, and thus increase the "sacred" or "divine" content of the law, while others give freer reign to reason and thus end up with a more secular law. Also, in matters of civil and commercial law, there is generally a larger amount of secularism than in matters of criminal law, or at least those aspects to do with hudud (fixed punishments) and qisas (retribution). No jurist, for instance, may abrogate or propose a legislation that effectively abrogates capital punishment, or rejects flagellation, or denounces physical injury in retribution for similar injury, at least as options. There is also the question of deep linkage in Islam between law, on the one hand, and morality and theology on the other. It is possible to argue, for example, that Islam requires of women only that they protect their chastity and dress modestly, and that specific modes of dress like the khimar (head-covering) and the jilbab (outer garment), even if explicitly mentioned in the Qur’an, are not essential and reflect culture of Arab society at the point of revelation. Such an argument for instance has been made by contemporary scholars like Muhammad Asad and attributed to earlier jurists like Al-Qiffal. But can a Muslim jurist ever arrive at an interpretation of the law that makes the mutual consent of adults the basis for legalizing extra-marital sexual relations, thus legalizing adultery? Is there any interpretation of the sacred texts that will lead to recognition of same sex marriages? Can acts declared morally reprehensible and prohibited, such as alcoholism and gambling and homosexuality be somehow considered lawful in Muslim laws? Can a Muslim decide for himself what to believe and what not to believe in the sacred texts and still remain a Muslim in law? The answer in all these cases is emphatically negative.

It is in understanding this that one sees the incompatibility of shari’ah with outright secular constitutions. A Muslim community will never accept a constitution that, for example, outlaws capital punishment, which is why on-going efforts by the Nigerian government to abrogate the death penalty will most likely lead to a major constitutional crisis. Also, the dividing line in Islam between sin and crime is very thin. Adultery and intoxication are moral sins, but when certain conditions of proof are met, they are punishable by the courts of law. We can debate, rationally and with justification, the question of whether those conditions have been met, and whether or not there are sufficient mitigating circumstances or arguments. But no Muslim jurist may place an "iron curtain" between the sphere of religious sin and that of criminal law.

For Muslim communities, respect for the theoretical constants of the law is integral to religious freedom. But subject to those absolutes and constants being respected, the shari’ah lives side by side with other laws, and adjusts itself to changes in spatio-temporal environment. Muslim communities are known to move from one epistemological framework to another, particularly with increasing modernization, thus adopting more and more secular versions of the law within the bounds of its theoretical constants. Many of the legal reforms that took place in Egypt, Tunisia, Pakistan and Malaysia, for example, have only been made possible by this flexibility in adopting or rejecting the subjective, thus secular and variable, elements in legal theorization. As noted by Coulson, the entire project of legal modernism in Islam is an attempt at determining the irrevocable limits and principles of the divine command or, conversely, the limits to which the changing needs and aspirations of society can provide a basis for altering Muslim legislation.

In conclusion, the shari’ah is not a secular law to the extent that it affirms an explicit commitment to being rooted in sacred texts. It does contain many elements that are not fixed and immutable and may be adapted to changing circumstances, which means it contains a heavy dose of secularism. But the primary attribute of embodiment of theology in Muslim law makes the latter incompatible with secular constitutions, strictly defined. It is however fully capable of surviving in a multi-religious milieu where the constitution recognizes, and guarantees, the fundamental rights of all citizens to their beliefs and religious laws.

The Madinan Constitution: Multi-religious Federalism?

After over a decade of preaching his faith secretly and openly to his people in Makka, and after suffering much persecution at the hands of his opponents, the prophet went into emigration, or Hijrah, to Yathrib (or Madina), along with those who had accepted the new faith. This group of immigrants, mainly from among the Makkan Quraysh, were referred to as Muhajirun (or emigrants). In Madina, the prophet joined Arab tribes that had already embraced the faith and who welcomed their brothers in the faith and offered sanctuary and help. The Muslim people of Madina were called the helpers (or the Ansar). Their major tribes were the ‘Aws and the Khazraj. Also settled in Madina were Jewish tribes, principally the Banu Nadhir, the Banu Qaynuqa’ and the Banu Qurayza, who did not convert to Islam. Thus the town of Madina, with the entry of the prophet, contained three broad communities: The two Muslim groups –the Muhajirun and Ansar- and the Jews. One of the first things the prophet did on arrival was to draft a document, later known as the Madinan Document (Watheeqah al-Madinah) or even the Madinan constitution, which regulated the relations among these groups.

This document is recorded in detail by Ibn Hisham (and, according to some, by him only) among early sources, although contemporary scholars in the Muslim tradition implicitly affirm its authenticity. It is thus reproduced in full or in summarized form by major contemporary researchers on the biography of the prophet, including Muhammad al-Ghazali, Muhammad Haykal and Safiur-Rahman Mubarakpuri. It is to the contents of this document, as they relate to the organization of a religiously plural society, that we turn for lessons.

The document established the distinct identity of the Muslim ummah, separate from other communities of faith. This is not subject of this paper. Our interest lies in the portions of the treaty dealing with the Jews and their relationship with Muslims. The following points are the major ones:

1. The Jews of Banu ‘Auf are a group of believers and they shall have the inviolable right to keep their religion and law just as the Muslims. This guarantee also applies to the Jews of Banu al-Najjar, Banu al-Harith, Banu Sa’idah, Banu Jusham, Banu al-Aws, Banu Tha’labah, Jafnah and Banu al-Shutaybah;

2. The Jews shall be responsible for their financial expenditure, and the Muslims for theirs;

3. If attacked by a third party, each shall come to the aid of the other;

4. Each party shall hold counsel with the other; mutual relations shall be founded on righteousness; no one shall be punished for the sins of another;

5. The victim of injustice shall be aided by all;

6. The Jews shall contribute to the cost of war so long as they are fighting alongside the Muslims;

7. Madinah must remain sacred and inviolable for all signatories to the treaty;

8. Each shall rise and defend Madinah in the event of attack by a third party;

9. No one is prevented by the treaty from seeking lawful revenge for a wrong; and

10. No one is to be persecuted for choosing to leave Madinah or to stay, so long as he does not threaten its security.

These are thus, in summary, the principal elements of this document, which would in modern political thought be considered a federal constitution. As noted by al-Ghazali, the prophet instituted tolerant and indulgent laws to guide this multi-religious milieu in a manner never known before "in a world filled with racism and prejudice." This same principle is explicitly stated in the Qur’an in a series of verses in the fifth chapter (al-Ma’idah), in which God enjoins Jews to live by the law He gave them in the Torah, Christians to live by the law He gave them in the Gospel, and Muslims to live by the law He gave them in the Qur’an.

In the course of this discussion we read in the Qur’an: "To each among you have We prescribed a law and a path. If Allah had so willed He would have made you a single people, but (His plan is) to test you in what He has given you (of your respective revelations and laws). So strive as in a race to all virtue!"The last sentence indicates the wisdom of God in preserving pluralism. Muslims, Christians and Jews are in a "race" to virtue, each community is to prove its worth by racing to virtue and striving to be better than the others. The competition for excellence in things of virtue (al-khairat) improves the whole of mankind.

The lesson here is that Muslims are not required-indeed not permitted- to impose Muslim laws on non-Muslims or to prevent non-Muslims from living under their own religious laws. Muslims are however required to live by their own law and resist systems that prevent them from implementing it. If we combine the verses referenced above with the Madinan document we can glean the essential features of the constitution that is compatible with shari’ah:

It is therefore evident that the minimum requirement for the implementation of shari’ah is a multi religious constitution that allows Muslims to have their law without in any way imposing it on others. It is not in keeping with Muslim law that the state should impose on non-Muslims a law, moral guidelines, or even a lifestyle or dress and dietary code that is not required of them by their religion. Any conflict therefore that arises as a result of such attempts is the product of a misunderstanding of the requirements of Islam in this regard.

I have tried to establish, thus far in this paper, two principal points. First, that although the shari’ah as a body of laws contains many elements that are secular, its legal tradition is at a certain level intimately tied to the Qur’an and Sunnah, which are sacred to Muslims. It is therefore, at least at that level, incompatible with secular constitutions, strictly defined. Second, drawing from the Qur’an and Sunnah, it seems evident that citizenship in a multi-religious nation and, not just peaceful co-existence but also mutual co-operation to further the common national interest, are in keeping with the letter and spirit of the theoretical constants of Muslim law.

The following provisos are here made before the paper is concluded. On the first point above, one must note that the determination of what precisely is sacred and what is divine is often subjective, and many secular views-in the sense of their being products of the epistemological framework of an embodied subject-have been (and still are) presented as eternal and unchallengeable. The task of modern (critical) scholarship must remain focused on unpacking this epistemological framework and explaining the historically conditioned character of the understanding of the jurist, as epistemic subject.

On the second point, one stresses that the relationship between Muslim and non-Muslim groups and nations has varied from peaceful and friendly to one of outright war depending on time and place. The United States today has bombed and occupied the Muslim country of Iraq. The same United States in the last decade sent in troops to save the Muslim populations of Bosnia from extinction when European nations failed to protect them and indeed supported (in some instances) the Serbs and Croats. Russia may have opposed the recent war in Iraq, but we must not lose sight of what Russian troops are doing in Chechnya and what the USSR did in Afghanistan. While Muslim are pleased with the position taken by France and Germany today on the Iraqi question, the attempt to place the matter as an American-European divide is misleading. Italy and Spain have emerged as nations whose governments are deeply Islamo-phobic, and there are disturbing signs of an emergent Christian fundamentalism in many nations of Eastern Europe in what may be the historical process of swinging from one extreme to another like a pendulum. After a century of living under atheist communism, the newly "liberated" countries will find a new religion in Christianity and assert the new faith with the vigour and fanaticism of new converts before finding a moderate middle ground. This fact, coupled with fundamentalist governments in America and Israel-and the relative poverty of emergent European nations- will produce an intoxicating cocktail of religious intolerance and aggression. The point is that not every conflict between Muslims and non-Muslims is a simple matter of "religious war". The historically specific, economic, social and geo-political issues must form part of the complex analysis of the situation.

The attempt by some scholars to present the Muslims and non-Muslims as being in a perpetual state of divinely ordained war possibly results from the failure to understand revelation or legal rulings in their historically specific contexts. We cannot, for instance, understand Ibn Taimiya’s strong views against non-Muslims, unless we remember that he was living in the late Abbasid period, with the caliphate facing disintegration and subjected to attacks from Christian crusaders and Mongol invaders. This, I believe, is the principal intellectual failing of Wahhabism, a puritanical and intolerant ideology sponsored by Saudi Arabia and nurtured on the writings of this otherwise great mediaeval scholar. The criticism of Sufi tolerance, the dislike for other religions and the aversion to other cultures and civilizations- all of these are reflective of the socially diffused paranoia and schizophrenia associated communities under siege. Britain and the United States are today reproducing these mental conditions and thus strengthening the fanatical elements considered to be on the lunatic fringe of the Muslim world. It is a short-sighted policy that has seen, over the last one century, the transmutation of a minority world-view rejected for its tradition of intolerance into the Islamic orthodoxy, par excellence, admittedly helped along by massive oil wealth in the hands of desert princes. The face of Islam which is now turned to the US and Britain, its Wahhabi/Salafi face, is the face cultivated, nourished, empowered and enriched by Britain and America and turned to Muslim nations that the west wanted to destroy. The Taliban, Bin Laden, Al-Qa’eda and all the real and imagined threats to western civilization are Frankenstaeins created by the CIA and MI6 to server western interests. Muslims will not allow the west to pretend this fact away, and its acceptance is the starting point for meaningful dialogue. Intolerance and fanaticism are not characteristic of mainstream Islam, but introduced into it by fringe groups serving the interest of the west, or forced on Muslims as a reaction to unjust and oppressive regimes supported by the west.

It is my proposition, to turn to the specific example of Nigeria, that the implementation of shari’ah in itself, however defined, is not incompatible with our constitutional arrangement, since by recognizing the shari’ah as one of the sources of law, the Nigerian constitution establishes its character as multi-religious rather than secular. However, a few points must be borne in mind in attempting to avoid conflicts while implementing the shari’ah.

First, the Nigerian federation is not a federation of religions, but of states. Whereas states with overwhelming Muslim majorities may legislate for themselves shari’ah laws for their Muslim populations, the non-Muslim indigenes of those states are equal in every respect to the Muslim majority. Their complete freedom of religion, including freedom from harassment for non-conformity to the tenets of Muslim law in their choice of dress or food or drink etc. must be guaranteed and protected. In this regard, the various groups set up under the name of Hisbah corps must be restrained from interfering in any manner with the lifestyle of non-Muslims, particularly where the offence they are accused of is only an offence under shari’ah law. Such incidents as attacks on bars or beer-trucks or hotels arguably represent an attempt to force non-Muslims to live by the dietary or moral laws of the shari’ah.

Second, even in mediaeval Islamic states where non-Muslims were considered dhimmis or protected citizens, it was not a crime for them to say things consistent with their religious identity, even if those things constitute blasphemy in Muslim law if uttered by a Muslim. For example, it is a fact that a Christian does not accept Muhammad as a prophet of God, that he does not believe the Qur’an is the Word of God, that he believes Jesus is the Son of God and that he died on the cross etc. If his beliefs were otherwise he would not be a Christian. Recognition of the right of a citizen to be Christian entails recognizing his right to believe and say these things. A Christian in Sokoto who says Muhammad is not God’s prophet is like a Muslim in Enugu who says that Jesus did not die on the cross or that belief in the Trinity undermines monotheism. It is therefore an established principle in Muslim law that a non-Muslim is not liable for statements he may make which are expressions of that in which his non-belief rests.

However, this right is not limitless. As the popular saying goes, one is free to swing his arms around but that freedom ends where his neighbour’s nose begins. Freedom to disbelieve in the prophethood of Muhammad, for instance, is not the same as freedom to abuse him or slander him or denigrate him. The recent unfortunate riots that took place during the Miss World imbroglio were, at least so it seems, the result of a newspaper article slandering the prophet. Freedom to say the Qur’an is not God’s word is not freedom to desecrate it, as a Christian did in Kano in the 1990’s leading to his unfortunate death. It is striking that balance that is critical on both sides and the responsibility lies with religious leaders and opinion moulders to educate the citizenry on the need to claim and protect religious freedom while respecting the sacred beliefs of adherents of other faiths.

Finally, in addition to incomplete understanding of religious laws, perhaps the most important source of conflict is the failure of the state. Nigeria is an African country blessed with a large population and tremendous natural resources but the living conditions of the majority of that population are not better than those of poorer nations. Low literacy rates, low per capita income, high unemployment, endemic public sector corruption, starvation and disease, poor public services, drug trafficking in high places- all the symptoms of social collapse are present in Nigerian society. Many of those who claim to be in the vanguard of religious reform-on the Muslim and non-Muslim side alike- are actively involved in the processes accelerating this decay. In such an environment, every emotional issue is an excuse for violence, an opportunity to release pent up anger and frustration. This may be in the name of religion, or of ethnicity, or of whatever presents itself as a credible excuse.

Given the forgoing one must conclude by commending the Germans for initiating and encouraging this African-European dialogue. One must however add the following caveat: Dialogues and seminars are good. However, they must be part of a wider effort that addresses the many faces of this hydra-headed monster called religious violence. Germany and France must continue resisting the tide of religious fundamentalism fuelled by the religious right in the US and Israel and sweeping across some European nations. It is possible to engage fundamentalists at an intellectual level, but their appeal rests not so much on their intellectual sophistication as on the fertile environment being created for the growth of radical movements.

Secondly, African Muslims and Christians must fight the fanatical elements in their societies to a standstill. In places like Nigeria, Muslim intellectuals must stand against the corrupt and incompetent, half-educated elements that seek to appropriate religion as a cover for the failure of the Nigerian state. Christian Nigerians must also take responsibility for reversing the emergent trend of Christian fundamentalism in the south and the middle-belt, a trend that is ideologically strengthened by American and European "born-again" evangelists.

Thirdly, good governance and improvement in living conditions of African people is the most critical factor. Indeed my theory is that the more overtly religious the political leaders of a nation the more corrupt they are. In Nigeria, Muslim leaders have raised the flag of Islam and defied the world in their march toward implementation of shari’ah and Islamisation of society. Christian leaders, beginning from our president, make public shows of church and prayer services. Indeed the president is a self-declared "born-again" Christian who only contested elections after holding private discussions with God almighty. Yet the latest report of Transparency International ranked Nigeria as the second most corrupt country in the world. (The joke in Nigeria is that we are actually the most corrupt, but we bribed Bangladesh to accept the gold medal on our behalf). Nigeria has churches, mosques, Imams, bishops (even cardinals), shari’ah laws etc. But in the conduct of government neither Islam nor Christianity is in evidence.

This brings me to one final point, a logical conclusion from the analyses above. Can there be a dialogue between "Africa" and "Europe" or "Islam" and the "West", if these terms have no meaning in the sense of representing a univocal position on world affairs? I personally do not think so. What is clear to me is that there are two opposing positions: One favours moderation, peace, respect for other values and civilizations and tolerance. The other is fundamentalist, fanatical, intolerant, aggressive and violent. Each of these positions has representatives in all religions, all cultures, all governments, all armies and all parts of the world. Those who believe in world peace must seek and find persons of a similar disposition in other cultures. Peace loving European Christians may find Arab Muslims who hold views closer to theirs than their next- door neighbour who attends the same church. The dialogue should aim at setting up a moderate coalition that confronts the forces of destruction and extremism all over the world-and these include Islamic, Christian, Jewish and Hindu fundamentalisms, among others. This view challenges our conventional conception of common cultures or brotherhoods. It is a clash of cultures, to be sure, but of the culture of moderation and the culture of extremism. One sees religion as a force for peace, liberty, justice and the better life. The other uses it as an instrument of hatred, destruction, backwardness and oppression. The fanatics, be they Christian, Muslim, Hindu or Jewish, rarely are changed through dialogue, especially if they have secured positions of privilege through the agency of the gospel of intolerance. They must be defeated intellectually and politically. Unfortunately, in some cases, they resort to violence, in which case they must be defeated through the use of force. In such situations, conflict is inevitable as the only guarantee to peace and stability. Our task is to avoid this by proactively managing the situation through the promotion of justice, good governance and proper education and enlightenment.

[Being text of a paper presented at the International Conference on Conflict and Religion: An African-European Dialogue organized by the Goethe Intitut Internationes, Accra and the Accra daily Mail. Accra, Ghana, Tuesday, October 7, 2003]

October 2003