BETWEEN THE SHARIAH AND "BARBARISM"



BY

SANUSI LAMIDO SANUSI

http://www.nigerdeltacongress.com/barticles/between_the_shariah_and.htm


My father died on May 8, this year. He left behind one wife, four sons and three daughters. His debts were settled within one week of his death. What is left forms the Estate which is to be shared as follows: His wife gets one-eighth. The rest is shared among the children with each son getting twice the share of each daughter. In precise arithmetic terms, my father’s estate will be shared into eighty-eight equal parts. Eleven parts go to his wife. Each son gets fourteen parts. Each daughter gets seven parts making up the total {(11x 1) + (14 x 4) + (7x3) = 88}.

None of my father’s children is subjected to the ignominy of a DNA test to establish his paternity. None of our mothers is subjected to the humiliation of having to prove she was not an adulteress. No product of an illicit union, if any, can share in the estate. No son gets more than the next son. No daughter gets more than the next daughter. Had he left 2, 3, or 4 wives, the eleven parts given to his one wife would have been equally divided/shared between/among his wives. No party will go to court and defame my father’s loving memory. No scandals follow. No litigation that serves to split this family after his death. My father could not have denied any of his children or wives a share of his estate. He could have made a will, but his power in this regard is delimited by two clauses: He could will nothing to any one who already has a share of his estate by right, (so he could not, for instance favour a particular child or spouse over others). He also could not will away more than one-third of his estate and thus deny his family the inheritance. A son gets twice the share of the daughter because he is expected to take care of her and his own wife and kids. The daughter who is cared for by her brother and her husband takes half the share of a son.

This is the Shariah, the Divine law of Allah which some persons have taken to calling "barbaric". The wisdom of this Law, as exemplified in the law of inheritance, can be seen in each and everyone of its aspects: In the law of personal status, in contract, in criminal law etc. It is within the context of what is civilised and what is barbaric that I write this essay. I will not discuss the constitutionality of the Shariah as adopted by some states since our constitution says everyone is innocent until proven guilty. Pronouncements on the constitutionality or otherwise of Shariah are, going by the same constitution, the preserve of the Judiciary. Until we have a contrary judgment, we shall take it that the actions of Zamfara, Sokoto and Kano States are constitutional.

This leaves us with the following questions, which underpin the debate and need to be thoroughly discussed.

What are the limits of personal liberty and when can the state be said to be infringing on individual rights?

What is the yardstick for judging a law as "barbaric" or "civilised" ? and

Is it the duty of the State to enforce "piety" and does it make sense even to try?

Many of those who parade themselves as prophets of "liberalism" do not acknowledge that it is a relative concept, in their case derived from known foundation in western secular philosophy. The most often-cited basis for defining "liberty" in the Western World in John Stuart Mill’s maxim: "over his own mind, and over his own body, man is complete master provided he causes no harm to another." A society which accepts this maxim builds a whole body of laws around it. It defines its conception of liberty and human rights and the limits of state intervention based on this maxim. But it is nonetheless a maxim, proposed by a man at a point in time living in a particular socio-cultural milieu. To insist that all societies must be governed by this maxim at all times is at best self-centred, at worst an insult to other cultures.

This is not the place to discuss the merits and demerits of Mill’s maxim, or his own personal religious inclinations. The point is that "human rights", "freedom", "liberty" etc are not objective, universal concepts. Underlying their contemporary usage is the value-judgment that anyone can do anything and say anything which makes him happy so long as he "harms" no one else. But what is the nature of this "harm"? To date, it has been problematic. If a couple chose to have sex on the Marina does the act "harm" passers-by if their sensibilities are offended? If two homosexuals choose to kiss each other on the beach in front of your twelve year-old son is there harm in that? Where do you draw the line and who decides this? These are subjective questions.

The same principle underlies the determination of the role of the state in Islamic Law. The Islamic delimitation of personal liberty is clearly narrower than that of Western Liberal Democracy. Yet it has two advantages: First, it is more clearly defined than Mill’s maxim and second, Muslims believe the line is drawn by a Divine Law-Giver, and not subject to negotiation by Muslim peoples in time and space.

In Islamic Laws every thing prohibited by God and His prophet is a crime. Unlike in Western law where only that which has a specified punishment is a crime, in Islamic law every crime is punishable but not every punishment is specified. The role of the State is to ensure that, in a person’s public conduct, he does not commit a crime or any act likely to lead to one . Islamic law does not empower the State to infringe on the right of an individual citizen. It cannot break into a man’s room and punish him for adultery. It can not plant a camera in a hotel room and punish a man based on a recording of a sexual act or drinking spree. But if a man and a woman choose to have sex where four eye witnesses actually see coitus, or if a man chooses to drink his beer in front of his house instead of inside his living room, the act immediately leaves the realm of private conscience to one of public morals and the state punishes this severely.

There is an interesting anecdote in Islamic Law relating to the Second Caliph of Islam, "Vmar. It is said that, having received information that on a particular house in which people gathered to brew and drink wine, he surprised the party one night by scaling the wall from the back and announcing: " I have caught you !". According to the anecdote, the persons so caught were completely unperturbed. They said: "O! Commander of the Faithful! You have caught us in one crime, but in the process you committed three! Allah says (Qur’an XXIV:27) ‘O ye who believe! Enter not houses other than your own without first announcing your presence and invoking peace (salam) upon the folk thereof" You did neither. Allah says (II:189), ‘it is not righteousness that ye go to houses by the backs thereof---- so go to houses by the gates thereof!’ You entered our house by the back. Finally, Allah says (XLIX:12) ‘and spy not’ You have spied on us." On this the Caliph was said to have taken his leave and was unable to do anything. Like all anecdotes, questions has been asked about the authenticity of this one. But that is not the point here.

The pedagogical point is that the Shariah does not give the state limitless powers to infringe on personal liberty. It however gives the state the right to limit personal liberty to the purely personal realm.

Having accepted this principle, just like the West accepted Mill’s , Muslim Society considers any laws built around it and consistent with it proper and rejects the suggestion that they infringe on personal freedom.

The State does not stop a woman from wearing what she likes inside her house but it stops her from dressing publicly in a manner that is likely to attract an ordinary man, as this is one of those things leading to another and up to adultery. When a man drinks in his house and sleeps that is his problem. When he comes out and mingles with people, or drives, others are at risk from his actions since he is not in complete control of his senses etc.

This brings me to second point: what, exactly is the yardstick for declaring a law barbaric or civilized? A few people have made the point that to say the electric chair, for instance is civilized while cutting off a thief’s hand is not, is a purely subjective matter. I think we can go beyond that and have a rational basis for making comparisons. A body of laws is only good as the type of society it creates. Take Nigeria today, where the Shariah is not in force. In Lagos, all of us are victims of thieves and robbers. In broad daylight we move round wound up windscreens, held hostage by Area Boys. The spread of AIDS, unwanted pregnancies, abortions, sexual harassment in Schools and other vices is a result of an implicit acceptance of the Western principle of sexual liberation and belief that illicit sex is not a vice so long as the parties are happy doing it. This is not just in non-Muslim areas. The values of the Muslims have also been eroded through constant contact with what was once viewed with dismay. Pregnancy before marriage has become the norm in certain cultures which fifty, even twenty years ago considered it a scandal. There are many violent crimes resulting from drug-addiction and alcoholism.

Now compare this society with ‘totalitarian’ Islamic states like Saudi Arabia and Iran. You find there that people are safe and secure and the only persons who need fear are the criminals. Instead of citizens living in perpetual fear of criminals, it is the criminals who live in perpetual fear of the law. The thought of losing a limb, or a hand and foot is a strong deterrent. Women of easy virtue still exist, but they do not advertise it and certainly do not tempt a man who is not himself positively looking for them. You can send your daughter to school without fear for her virtue. Today, some Nigerian "elders" are asking their children not to go to states implementing Shariah for NYSC. The Shariah will evidently stop their sons and daughters from "having a good time" dressing indecently, enjoying free sex, drinking at parties etc. May be this is what some people call civilization, in which case the Shariah law is "barbaric". For many men of religion this is called barbarism and the state which takes decisive steps to check it is civilized.

I will go beyond that and take the example of theft. Islamic Law cuts of the hand of a thief once his crime meets all the stiff conditions defining it in law. The law cuts of what Bola Ige calls " the offending instrument," and frees the man to go and live with his family. What does our "civilized" law do? It gives him accommodation and feeds him for months or years in a place called a "prison" it keeps him in the company of "experts" with "varied experience" who teach him more sophisticated and more violent techniques for his craft. In addition to petty theft, he probably now learns how to procure a weapon, and is likely introduced to the "joys of homosexual relations" in the cell. After this period of accommodation and first-class training at the expense of the state, he is brought out to a society in which he is stigmatized. This frustrated character is unleashed on innocent citizens. This is our civilized law.

The Shariah’s position is that a criminal who has been punished (say, by cutting off the hand) has been purified from his crime. He carries no stigma. Besides, he alone bears the brunt of his punishment. In our ‘civilized’ law, we punish the thief’s wife and children by separating them from their husband, father and bread winner for no crime of theirs. Which law, tell me is more just? Which one is more barbaric?

Now to the final question in this debate. Is introduction of Shariah an attempt to enforce personal piety? Is religion not a personal matter, which means the State should try to enforce piety? You can force a woman to dress modestly; you can not change the desire in her heart to be a harlot by force. You can deter a man from stealing in Zamfara, this does not mean he will not steal in Abia. You can deprive a man of access to prostitutes in Kano, he can always choose to have a good time in Lagos. The State, by enforcing Shariah laws does not pretend to manufacture good Muslims. What it does is the following:

First, it creates an environment conducive to all Muslims who wish to live according to their faith to do so without temptation, distraction or trepidation. Second, it forces everyone to keep his personal decision not to comply with the moral codes governing society to operate according to his conscience but in a personal environment. No one should undermine public moral through indecent exposure. Third, it provides one of the bulwarks, but not the only or even the best one, for creating a pious community. To the law must be added preaching, admonition, good example, and the effort to create a welfare state- the eradication of poverty, illiteracy and disease. In short, the Shariah law does not enforce "religion". It however creates an environment conducive to its development.

Now you understand why I said 8 months ago, that Sanusi is a better candidate for the iman of Ibuja central mosque than the governor of CBN.