Safiya Husseini, a poor mother from Sokoto state in Nigeria, was spared the death penalty by a higher shariah court in March. While she was spared, a lower shariah court sentenced Amina Lawal to death by stoning for adultery. Lawal’s case is now at a second appeal court hearing.
The experience of northern Nigerians, especially women and religious minorities, and the constitutional crisis produced by the introduction of so-called ”full shariah” is bound to remain a major and unresolved issue in Nigerian politics.
The establishment of ”shariah states” (by the governors of 12 states with Muslim majorities) in Nigeria, a country just emerging from nearly two decades of military rule, has come to define shariah since late 1999, but the proclamation of a ”shariah state” in Sudan in 1983 had already drawn attention to this phenomenon in Africa.
Since 1983, and indeed from the 1970s already, there have been complex developments across the continent in which shariah has been a significant social and political issue.
Highly distinctive local conditions have shaped demands for laws that are apparently more appropriate to the lives of the Africans making these demands. But shariah, which Amina Lawal would probably know as dokokin musulunci, has meant different things to different groups in different places.
Even among proponents of ”full shariah”, but definitely among legal scholars, the sources of shariah are subject to a variety of interpretations. It would not be difficult, for instance, even within the framework of the Maliki school of Islamic law used in Nigeria, that Lawal’s case might never have happened.
The present appeal court may well be persuaded by strictly Maliki shariah arguments that the Lawal case should be dismissed. While there is sincere belief and a good deal of lip service to shariah as the ”unchanging holy law” of Islam, in fact it has historically been flexible and more open to change than conservative and literalist proponents assert. But among ordinary people there is a whole range of popular claims and fantasies about shariah. It often appears that it is as much about popular lore as law. Northern Nigeria is going through a period in which shariah is open to manipulation by populist politicians and they are using its populist appeal to the full among masses of people not educated in scholastic jurisprudence.
Throughout the Sudanic belt what is called in Arabic ”shariah” in various forms, and to a different extent in each case, has a very long history. It goes back to well before the spread of European colonial rule in the late 19th century and the imposition of either French civil law or English common law traditions as the dominant legal system. Between 1500 and 1900 (and today) legal manuals proliferated and there is plenty of evidence of arguments between and within various schools or sub-traditions of law. Instead of applying legal thinking to current problems and changes brought on by modernity the vast majority of judges today go on regurgitating the axioms and opinions of these law books.
When actual judgements reflect innovative thinking ”innovation” itself is disavowed by the innovators. Almost as if to protect a legal tradition against the legacy of colonialism and impact of modernity there has been a collective response to conserve ”the law” in the face of imposed change.
Colonial authorities also wanted ”order” out of legal diversity and fluidity and so a fixed, ”unchanging” tradition was presented to them by conquered Muslim authorities. The French and the British relied to varying degrees on local ”customary” law administered by appointed chiefs and sheikhs. Custom was in fact very much a product of the colonial era.
Shariah law was accepted and on certain occasions promoted by the secular colonial powers. In the British case, the colonial state accepted ”Mohammaden law” as the customary law of Muslims unless it conflicted with their notion of ”justice and good conscience”.
In northern Nigeria the British told the emirs in 1903 to abrogate shariah penal law, but in fact it remained in place. But because of the extreme rarity of amputations and death sentences issued by the shariah courts the British were not perturbed that it was not actually abandoned. (There is, for instance, only one peculiar case of stoning for adultery between the rise of the Sokoto Caliphate in the early 19th century and today.)
In 1999 northern regional governors supportive of Sani Abacha immediately declared shariah law with the fall of Abacha’s regime. This was possible because of a perception that official law was ineffective, its administration in shambles, judges corrupt and lawyers an expensive waste of time.
Among ordinary northern Muslims the argument went: every solution tried since independence has failed and a total return to ”God’s law” would be good for people individually and for governance — the public sphere would be cleaned up and Allah will reward dutiful believers; embrace shariah fully and corruption will be rooted out, justice will be quick because expensive lawyers won’t be necessary and it will be cheap because corrupt intermediaries and judges would be replaced.
Astonished observers found that the call to ”full shariah” by the governor of Zamfara state in late 1999 was hugely popular with the masses; he had little option but to concede to mass demands, he claimed. Subsequently, in other states the populist appeal has worked equally well.
Thus it was possible for northern governors once associated with the Abacha regime to hold on to power through effective use of the symbol of shariah. They were now in opposition to the regime of President Olusegun Obasanjo and they could claim that they were steered by overwhelming northern public opinion.
Young vigilantes came out on to the streets beating up people seen not to be following the new northern state law. These youths have been organised into an informal police force in Zamfara to enforce shariah since the regular police are governed by the federal government and are torn between what is happening in front of them and their allegiance to Abuja.
Symbols of religion and power are closely linked in African public life. The rapid growth of all types of religious movements in recent years is connected to the crisis of authority in African societies.
The intermittent dramatic appearance of local prophets, Pentecostalism and other forms of Christian evangelism are powerful and growing presences in many countries. There is no more powerful ”traditional weapon” in Africa than religion. At one level the resort to shariah represents a search among indigenous cultural roots for meaning and a way to overcome powerlessness. Since shariah is not a Western import it can be appropriated as a ”traditional” and legitimate weapon for people who have suffered from colonial modernity and post-colonial development. But stirring passions with populist shariah slogans has its limits. With time, and there is already evidence of this, the emerging edifice of shariah law and state could fall to the same corruption that it is supposed to work against. Nigerian Muslim intellectuals have said that there is a desperate need for rethinking the enduring and complex legacy of shariah and approach it holistically instead of the current obsession with punishments. In the hands of incompetent judges, demagogues and populist politicians shariah is a one-size-fits-all fossil opportunistically unearthed for short-term mobilisation. In this process women, especially the poor ones, suffer — as in the case of Safiya Husseini and Amina Lawal whether she finally faces lapidation or not.
Shamil Jeppie teaches African and Middle Eastern history at the University of Cape Town