Responsibility in Crisis: Knowledge Politics and Global Publics
Sacred Truth and Secular Agency: Separate Immunity or Double Jeopardy? Sharí'ah and National Politics in Nigeria: Lessons for the National University
Lamin Sanneh

Introduction

In making provision for Sharí'ah personal law in the administration of justice in north Nigeria, the new British colonial authorities agreed to a policy of "open borders" of power sharing with the Muslim leaders. It prevented the secular monopoly of power and produced a hybrid legal tradition combining African customary law, English common law, and Sharí'ah law to set up a vibrant civil society that welcomed new ideas and influences. It resulted in a reduced, modified role for the state in Muslim religious and social life.

Following national independence in 1960, this colonial concordat came under increasing scrutiny, with mounting demands by fundamentalists for Sharí'ah criminal law as part of the federal constitution. A Sharí'ah state would provide immunity for the divine law and stem the onrush of the West's secular fundamentalism. Twelve of the thirty six states in the predominantly Muslim north eventually adopted Sharí'ah. Moderate Muslim opponents, however, protested the move, arguing that, far from granting immunity to God's truth, and against its Western foe, a Sharí'ah state amounts to double jeopardy in the sense of secular breach (or takeover) of sacred truth and a diminished role for civil society. Both secularism and theocracy show the flip-flop role of the state, now as friend and now as Page  204foe of religion, leaving the moderate position of pragmatic, unmeddlesome secularism as a plausible third way of dialogue and encounter. That, in brief, is the central thrust of this chapter.

The Background: Confrontation, Containment, or Dialogue?

The terrorist attacks in the United States on September 11, 2001 prompted a great deal of reflection on the deeper issues involved in the violent collision of East and West. Assuming confrontation to be inevitable in a world of irreconcilable hostility, many see military response and vigilant security measures to be sufficient in disposing of the radical fundamentalist challenge. It is, admittedly, not difficult to see how the military solution should be attractive to people who learnt to cut their teeth on the predigested rusk of Cold War moralizations, yet, at the same time, hard to see how that can substitute for long-term engagement on the scope and cogency of liberal democratic values confronted with a radical fundamentalist ideology. Military strikes alone are unlikely to take care of that ideology, because for the terrorists the two wrongs of infidel hegemony abroad, compounded by infidel affluence at home, do not make a right. It is, accordingly, the 'closed borders' of fundamentalist ideology, the charmed circle of its self-reinforcing logic that we should place under unflinching scrutiny.

Subject and Method

In this light, Islamic radicalism should be viewed as something deeper and wider than a merely visceral rejection of the West. [1] That complicates matters for us, for it sidesteps the U.S. administration's expedient call to take sides. The heavy weather view of the terrorists as the epitome of hatred and of intolerance of everything Western overlooks the other directions from which the wind of change is blowing in general mainstream religious life and practice. The Israeli/Palestinian crisis, for instance, is a cause célèbre in popular anti-Western diatribe, as also in the chemistry of fundamentalist grievances, yet, the merits of the cause duly acknowledged as with a road map to peace, it is not an attack on Islam's truth claims.

What today goes by the name of religious radicalism had in earlier times often taken the form of rigorous intellectual inquiry, unflinching spiritual discipline, and unsparing personal scrutiny, all of that assiduously expressed Page  205in the creation of alternative communities and congregations of practice and devotion. [2] Such were the demanding hijrah enclaves and zawáya retreat centers, both designed for optimum personal and collective purification, and the mosques that were also hostels and hospices (ribát, ribátát) devoted to cultivating hospitality and friendship for the footloose and earth-bound (lil-musáfirín wa-l-fuqará'i), as well as to fostering scholarship and study for the gifted poor and the diligent stranger, "per l'amore di Dio." [3] There were, in addition, the prayer cells that called people away from worldly cares and distractions.

These hinge communities constituted a moral repudiation of what John Locke calls "the pretense of religion," and of the parasitic, cutthroat values of a heedless generation. They were a radical call for a life of liminal transition, of hijrah-bound dedication, in a moral vocation of faith, humility, self-examination, and trust, rather than of animosity, violence, and destruction. It was tantamount to a rupturing of hard-set tradition and to an unsparing appraisal of the standard and the conventional. The personal risk and sacrifice involved in such undertakings were considered a small price to pay to uproot the moral turpitude of an indolent status quo. It was, for example, the poet-king of Seville, Mu'tamid (1069-1090), who, presiding over an age of stylish extravagance, signaled the approaching end of Umayyad Spain with a fin de siècle frivolous call to his people: "Fling yourself into life as onto a quarry; it lasts no more than a day." [4] The pillaging Almoravids became the King Stork he conjured up. [5]

As a contrast in study we may consider the career of Shaykh Shiháb al-Dín al-Suhrawardí (d. 1234), a famous Qádirí spiritual master and missionary pioneer (murshid, muqaddam), who adopted a radical but nonviolent path, appropriating the language of effort, striving, and personal uprooting to commend his demanding program of spiritual awakening and moral renewal. In a guide for his disciples, al-Suhrawardí instructs them to tear themselves from native land, from friends and familiar things, and to exercise patience in calamity, and to expunge from their hearts all that causes obstinacy, intolerance, and blindness. Dead skins, he says, like corrupt regimes, coarsen and turn inflexible with time, and can be restored to their potential of softness and of supple delicacy of texture by the rotation of fasting, prayer, devotion, and moral rectitude, and just so can hardened hearts, and their corrosive traits of natural corruption and innate coarseness, be smoothened by the "tanning of travel." [6] That metaphor describesPage  206 with laconic clarity the transformative power of movement with purpose, of work as a growing vocation. There can be no turning back, no retreat into shrunken boundaries.

The liminal image of travel as intellectual "tanning" might stand for the "threshold" mission of the University community as a frontier of liberal learning where teachers and students traverse and cross the departmental boundaries of knowledge in order to participate in the means and fruits of their work. Knowledge is not just about hoarding facts and objects, or about their yield and use, valuable as that is, but about engagement and commitment. People can thus critique prejudice, proprietary claims, and the disciplinary borders that frame them. Minds are broadened, sympathies deepened, and the spirit of open inquiry refined. The national University should not be the designated metronome, the public register, of adopted national mandates, but a dynamic environment for shaping humane, cosmopolitan ideas and values that bear directly on the national agenda in a critical way. Theprophylacticbelt of black-and-white moralizations with which a breached nation girds its loins in defense of its innocence conflicts with the open borders, with the "heretical" intrusions, that define the academic mission of the national University. We should in the concluding remarks return to that theme in light of al-Suhrawardí's teaching of the radical path of ceaseless quest offering release from the confinement of habit, with unimagined benefits for those who choose it, the obstacles and momentary setbacks notwithstanding. Truth is in the daring, not in retreat or inertia.

Sharí'ah and Colonial Advocacy

We may bring these insights of open and free inquiry to bear on the contemporary religious debate on the Muslim response to the secular West. In spite of the slogans and rhetoric, the debate has roots in a broad and venerable intellectual tradition, as the example of the Sharí'ah debate shows. The debate is concerned with an ongoing historical challenge about what Sir Muhammad Iqbal called the "reconstruction of religious thought." [7] Using Nigeria as a case study, we should pay close attention to the critical Islamic tradition as a subtle feature below and behind the turbulent polemics of the moment, a scrutiny that should resonate with the University's mandate of public scrutiny.

Sharí'ah penal code is being promoted as the constitutional right ofPage  207 Nigerian Muslims, including the right of establishing an Islamic state and abrogating the secular constitution regarded as incompatible with the Sharí'ah. Fundamentalists oppose secularization, or so they claim, and the Western powers that spread it. Instead, they back Sharí'ah, understood here as the divine law and its accompanying tradition of jurisprudence and legal scholarship, known as fiqh. Anti-secular fundamentalism tries to ground itself in orthodox religious sources, tracking the adopted course of political change with the help of rules of guidance and precedent available to Muslims. While it is true that such opposition feeds anti-Western radical sentiment, it is not always the case that it leads to violence, though sometimes it does, admittedly.

Sharí'ah civil law is in the main a routine and conventional quotidian code, concerned primarily with ritual laws, and with guidance, encouragement, reconciliation, and assurance, and widely observed as such in the Muslim world. Colonial rule, for instance, made the decision to engage Islam's intellectual tradition by concluding that nowhere is that intellectual tradition better represented than in Islamic legal science. One such colonial assessment described it as "a vast science [representing] the genius of the same people which gave arithmetic, algebra, trigonometry, astronomy, optics, chemistry and medicine to the Western world, and generally stood at the cradle of modern science." It is in legal scholarship that the genius of Islam "has exhibited itself in all its power and exactitude." [8]

Sharí'ah was administered in Islamic Qádí courts headed by trained Muslim magistrates. In 1956, a Muslim Court of Appeal was set up in Kaduna, the then northern capital, later upgraded to have jurisdiction in Sharí'ah appelate cases. Law manuals were translated from Arabic and placed in the hands of justices; schools and institutes were founded by the government to train Muslim officials; students were recruited to enroll in these places of higher learning; tribunals were set up to handle Muslim issues; Islamic appellate procedures were instituted; and budgets created to underwrite the costs of implementing the Sharí'ah code. What emerged from the synthesis of classical Islamic law and the customs and exigencies of Muslim African societies under Western colonial rule represents an important venture in comparative law. With a possible few exceptions, there is little earlier evidence of such hybrid legal work being carried out anywhere in the modern Muslim world. [9]

The motivation for such legal work was the colonial government'sPage  208 interest in investing in the local legitimacy and stability of alien suzerainty over Muslim populations, looking to the ink-pot rather than to the gun for long-term acceptance. In the process, Muslims were trained and equipped to run a modern state, the sort of political apprenticeship administrators were unwilling to extend to Christian subjects except as trustees of the secular state. [10] This policy disparity would have an important bearing on the divergent attitudes of Muslims and Christians towards secularism.

The colonial authorities were, notwithstanding, opposed to Sharí'ah as penal law because of their desire to preserve the distinction between criminal and civil law, with the state as the sole repository of criminal justice. [11] Officials desired to maintain uniformity in the administration of justice throughout the colonial territories, and, accordingly, restricted Sharí'ah to the status of customary law, leaving the state free to design and enforce the criminal code. The state legislated and levied taxes; customary law, including Sharí'ah personal law, filled the permitted gaps. A principle of great importance was involved in this arrangement of the British willing to divide state authority between them and their Muslim subjects. Sharí'ah law intervened, in effect, to prevent state monopoly of power, while at the same time accommodating itself to an adjustment of the normative boundaries of Islamic jurisprudence. Colonial directives and African customary law combined with Sharí'ah stipulations to broaden the scope of Muslim civil society.

This modus vivendi created an identity of interest between administrators and Muslim officials, and allowed the Muslim objection to Western infidel power to be modified in favor of accommodation. In appreciation, colonial officials embraced their Muslim protégés as partners and future heirs, turning a Nelson's eye to peculiar domestic practices like slavery and polygamy.

The Roots of Controversy: The Politics of Sharí'ah Enforcement

Once colonial rule ended, a debate erupted about the north's political participation based on Sharí'ah prescriptions about the integration of religion and politics. Nationalist politics had no stomach for pragmatic conciliation lest that detract from the logic of sovereignty. [This writer remembers an interview in the 1970s with the Wazirin Junaidu, a scion of the ruling house of Sokoto, in which the Wazirin spoke of the duty not to surrender the north's Islamic legacy to secular influences emanating from Lagos in the south. Islam,Page  209 he felt, should not be gambled in the cause of national sovereignty.] Military rule under the repressive regime of Sani Abacha (1993-1998) kept the lid on Sharí'ah sentiments. The 1979 Constitution had recognized Sharí'ah courts by giving them jurisdiction over civil matters, a reversion to the colonial status quo. This provision was confirmed in the 1999 amendment to the Constitution which now contained an ambiguous reference to "other jurisdiction as may be conferred upon [Sharí'ah courts] by the law of the State."

Abacha's predecessor, General Babangida (ruled 1985-1993), [12] gave an international twist to the controversy when it changed Nigeria's observer status by enrolling it as a member of the Organization of Islamic Countries (OIC) (Ar. Munazzamah al-Mu'tamar al-Islámí). It sparked local unrest, prompting a decision to form the Christian Association of Nigeria (CAN) in 1986 as an ecumenical grouping of Protestants, Catholics and African Independent Churches. CAN issued a statement protesting the federal government's backing for Sharí'ah courts in north Nigeria and asking for an identical public status for Christianity.

Yet CAN's strategy of demanding privileges for Christians comparable to those being offered to Muslims placed it on the Muslim side of the fault line, with Christians wheeling and dealing on a stage Muslims constructed for their own purpose. The gauntlet Muslims have thrown down is theological in nature, namely, that the business of government is not unrelated to what it means to believe in a God who rules and presides over human affairs. That gauntlet Christians have been unwilling or unable to pick up, saddling them with a deus absconditus and a theology of subjective individual piety. For example, the Kaduna Branch of CAN published a statement asking the government to offset any concessions to the Sharí'ah with similar concessions to Christians by establishing a Christian constitution based on ecclesiastical courts. [13] Muslims called CAN's bluff by challenging them to say which they preferred, Ecclesiastical canon law, English Common Law, or secular law.

The Council of 'Ulama in a press statement in May, 1990, pounced on CAN's charge that as a member of the OIC, Nigeria had become an Islamic country by pointing out that Nigeria's secular constitution prescribes a secular state, the OIC notwithstanding. The 'Ulama persisted: "Strictly speaking, the government [of Nigeria] has more to do with Christianity than [with] Islam[,] since secularism as practiced by the government is an extension of the churchPage  210 concept of government. In Islam, politics and religion are inseparable. For a government to be Islamic, Allah has to be the legislator through the Qur'án and the Sunna of the Prophet." [14] The idea of secularism as church doctrine leaves the field to the 'ulamá to make the religious case.

The first Secretary General of the OIC was Tunku Abdur Rahmán, who resigned as Prime Minister of Malaysia to assume that position. The OIC was registered with the United Nations in February 1974. A number of Islamic agencies were established within the OIC whose religious mandate was stated as the commitment "to propagate Islam and [to] acquaint the rest of the world with Islam, its issues and aspirations." [15]

Membership in the OIC was limited to independent nation states that are Muslim by definition, although several states with minority Muslim populations have joined, including Benin, Sierra Leone and Uganda. However, somewhat inconsistently, India and Lebanon, states with significant Muslim populations, have not been allowed to join. In other respects the OIC seems committed to pursue an Islamist cause by the manner in which it decides on the venue of its meetings, in granting economic assistance from its $2 billion development fund, and in awarding scholarships.

The Sharí'ah Debate: Round Two: National Unity and Religious Difference

A second uncompromising round of controversy erupted, coinciding with the election in May 1999, of Retired General Olusegun Obsanjo, a southerner, and a Christian to boot. The Sharí'ah issue assumed explosive force with the announcement on October 22, 1999, of the inauguration of Sharí'ah rule in Zamfara State by its youthful governor, Alhaj Ahmed Sani Yerima, to the alarm of Nigerian federal authorities and civil rights groups. Yerima had shelved his clean "corporate" image [16] and instead sprouted a shaggy beard that highlighted his handsome face as that of a medieval religious crusader. He declared that the Sharí'ah announcement was the culmination of the hopes, ideals and aspirations of Nigerian Muslims, the long-delayed awakening of the dormant ummah from its silence and inactivity. National independence in 1960, Yerima charged, had given the north's Muslim majority only a partial victory, leaving the way open for the full implementation of the Sharí'ah code some day. That day had now arrived with his announcement, he declared. As a corollary, a controversial dhimmí status was implied for non-Muslim fellow Nigerians.

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Yerima received the support and endorsement of the Arab world. [17] He obtained a grant equivalent at the time to N500 million from the Arab states to underwrite his program of de-laicization of state structures and institutions. The grant was more than the total state revenue. Yet even such substantial outside involvement failed to move the federal government to action. President Obasanjo temporized, hoping against hope for the problem to go away.

Yerima, meanwhile, moved swiftly to consolidate the gains of his religious revolution. He created a council of 'ulamá leaders, and, with their blessing, recruited Islamic preachers at a monthly salary of N10, 000 to teach Islam among the peasants and dispossessed. He set up mobile youth brigades as foot soldiers of Sharí'ah rule. He allocated N240 million of the state's estimated revenue of N400 million to the Ministry of Religious Affairs to buy food to feed the masses during the fast of Ramadan (November/December), and granted Islamic preachers, the regime's mouth pieces, N3million for their personal use during Ramadán. Some N23.3 million was set aside for the building of new mosques. He purchased vehicles for use as public taxis for women only, and distributed one hundred motorcycles to unemployed youths and hundreds of bicycles to messengers on state service. He imposed a N5,000 minimum wage in the state. He established a preacher's council, a zakát poor alms collection and distribution board, and the vigilante youth groups, the Zamfara Youth Council and the Zamfara State Vigilante Group. One report described these groups as "bands of vigilantes in frayed red uniforms, armed with homemade machetes, whips, and clubs," who roam the streets, "detaining anyone suspected of misconduct." [18] These vigilantes have become the terror of the civilian population, acting with state approval as enforcers of Sharí'ah law.

Basking in the glow of his success, Governor Yerima was greeted with cheers when he went on tour in Egypt, Pakistan, Qatar, Sudan, and Saudi Arabia. [19] The governor has dismissed complaints against Sharí'ah law, saying popular support for Sharí'ah seals it against outside objections. The case for Sharí'ah law became now a matter of consumer confidence index, "a dividend of democracy," in the words of Hamza Y. Kurfi, the Solicitor General of Katsina State. [20]

Jolted by Yerima's excesses, and unassured by the federal government's foot-dragging, national human rights and civil liberties groups decided to undertake a detailed study of the fast developing events in the state, and soPage  212 from 11 to 13 February, 2000, a series of meetings took place in Gusau, the state capital. The list of the groups involved in the meetings shows the broad spread of concern in the country: the Civil Liberties Organization (CLO), Huri-Laws, Center for Criminal Justice Reform and Citizen Awareness, Women in Nigeria (WIN)-Kaduna Chapter, Women Empowerment Program, Justice Development and Peace Commission (JDPC), and a team of journalists.

The state officials interviewed by the human rights delegation declared support for the introduction of Sharí'ah as public code. The justifications offered were based on a mixture of expedience, popular grassroots Muslim demand, electoral promises, proprietary religious rights, and Islamic exceptionalism. The objection of theocratic, or, to be accurate, nomocratic, rule in Zamfara being in open conflict with a laicized federal constitution has been met with the riposte that the same constitution guarantees freedom of religion, a freedom Nigerian Muslims are entitled, and obliged, to invoke to promote Islam. A similar objection that Sharí'ah legislation violates the rights of non-Muslims in the population is met with the insistence that non-Muslims are exempted or protected as ahl dhimma under the Sharí'ah, even if such exemption or protection takes matters out of their hands. [21]

In December 2000, acting under the powers of the recently adopted Sharí'ah penal law, the Kano authorities hauled in hundreds of people, most of them women, deemed guilty of the offense merely of 'speaking in public to members of the opposite sex.' A pregnant, unmarried and illiterate teenager, Ms. Bariya Ibrahim Magazu, claimed to have been raped by three men from her village, who denied the charge. Arraigned before the court for fornication, she was found guilty and sentenced to 100 lashes, instead of stoning by death for guilty married women. [22] The sentence was carried out before a crowd of some 500 onlookers, a few weeks after the birth of her baby. In March 2000, a cattle thief's hand was amputated. [23] A man in Sokoto state had his right hand amputated for stealing a goat. The attorney general of Sokoto applauded the judgment by rewarding the judge with a new Mercedes car. [24] Amputations have taken place in other states. Not surprisingly, Sharí'ah vigilantism has not distinguished between Muslims and non-Muslims, as numerous reports make clear. There were riots in June 2001, in Bauchi State after a bus driver asked his Christian passengers not to mix with the women passengers.

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Islamization of the State and of Society

Yerima is adamant that Sharí'ah law does not breach the boundary between the islamization of the state, which he opposes, and the islamization of society, which he favors. This crucial distinction has roots in a broader Islamic tradition, such as in Turkey, but its specific source in this context comes from other Nigerian Muslim leaders. One such was Alhaji Abubakar Gumi (d. 1992), Grand Kadi of Northern Nigeria and leader of the influential Wahabbi-inspired Izala reformist movement, [25] and another is the Iranian-inspired cleric, Shaykh Ibrahim Yaqoub El [Az-] Zakzaky, the Shí'ite head of the Islamic Brotherhood (sometimes Muslim Brothers) Movement based in Zaria, with a branch in Kafanchan, according to some reports. [26] According to El Zakzaky, who visited Teheran in 1990, the state superstructure must be islamized first on the pattern of the 1979 Iranian revolution before Sharí'ah could be introduced. In that argument the constitution creating the state, presumed to be infidel, must be replaced with an Islamic one based on majlis and shúra (religious counsel and consultation). Only then can the state be considered halál (licit) and acceptable. What exists now, instead, is a schedule of constitutionally mandated popular elections that has no foundation in Islamic law. El Zakzaky, an economics graduate of the University of Zaria, has acquired national prominence as an opponent of the constitution regarded as an instrument of secularization. He declared: "Islamic law is meant to be applied by an Islamic government in an Islamic environment. If you introduce Islamic laws under [sic] an un-Islamic environment, under a system of government which is not Islamic, then it is bound to be an instrument of oppression." [27]

Fed in part by the Sunní-Shí'ite rivalry, this aspect of El Zakzaky's disagreement with Yerima is also motivated in part by the tactical issue of popular elections having given Yerima the power that would likely revert to someone else under the majlis and shúra protocol. The controversy splinters on fine points, but concurs on the main issue of the need for a prescriptive religious state.

On its own terms, however, the distinction between the islamization of society and the islamization of the state offers a potentially productive way of re-framing the debate on the proper relationship between religion and statehood in Muslim thought in general and among Nigeria Muslim leaders in particular. ItsPage  214 great intellectual merit is to shift the focus from the role of the state exclusively to the role of civil society in dealing with issues of tolerance, diversity, and pluralism. The distinction does not deny the challenge of secularism, but instead mitigates it by restructuring it as a matter of the civil order. As a general matter, modernist Arab thought, for instance, has tended to oppose a public role for religion as something outside the purview of public reason, and instead to embrace secularization as the proper domain of democracy. [28] The reasoning is that religion is incompatible with freedom while secularization is conducive to freedom, a polarized dichotomy that sets a collision course for religion and secularism.

The Council of 'Ulamá in Nigeria allows for such a collision course by insisting that secularism advances democracy which is incompatible with true religion. That is why, the Council asserts, Christians have backed both secularism and democracy as part of the "church concept of government." Muslims should, accordingly, oppose secularism and democracy, as illegitimate. [29] In the particular case of its advocates, however, the islamization of society in Nigeria would not politicize religion or oppose democracy in the way that the islamization of the state would. Furthermore, the islamization of society, involving a code of strict personal standards of religious observance, such as prayer, pilgrimage, zakát, and devotion, could proceed with the dual affirmation of a laic state, on the one hand, and, on the other, of the role of Muslims in promoting Islam without denying a similar role for members of other religions. In other words, the effects of civil agency could moderate combative secularism.

Thus could Alhaji Aliyu, the Magaji Gari, a senior political councilor of the Sokoto Sultanate, dismiss the idea of political Islam as mere academic diversion, as "the view of radical academics" who ingratiate themselves with the government. [30] Aliyu's argument allows for the islamization of society by preventing the Sharí'ah from being turned into a bullyrag and instead enhancing the civil scope of society by promoting human community, and enjoining moral standards for conduct and behavior without state authorization. In that way Muslims may embrace a mild form of secularization by supporting the separation of 'church and state' and taking their rightful place in national affairs alongside others.

The proponents of the islamization of the state, on the other hand, favor a different course of action. Shaykh Gumi spoke for such proponents when hePage  215 said that politics was more important than prayer or pilgrimage for reasons of scale. [31] A delinquent Muslim at his or her prayer and devotion brings harm only to themselves, whereas a politically remiss Muslim implicates the larger Muslim community, both present and future. On this philosophical issue, El Zakzaky was proposing to assume the mantle of Gumi, a Sunni, unlike himself, and who, as such, has greater legitimacy in the north's political culture. Yet El Zakzaky's pro-Iranian rhetoric has echoes in unrest elsewhere in the north.

Thus, in May 1979 the Muslim Students Society at Ahmadu Bello University set upon members of a palm wine drinking social club, gutting the Senior Staff Club and attacking the office and residence of the Vice Chancellor before seeking refuge in the campus mosque. When in 1982 churches were attacked in Kano, the authorities, recalling the 1979 riots, blamed the incident on the Muslim Students Society, saying the Society's ideological links with the Iranian revolution were to blame. The smoking gun in the Kano disturbances was a stray pamphlet picked up by a journalist on the streets of Jos, and emanating from the Iranian Ministry of Islamic Guidance. [32] The general point of the authorities that the Iranian link was with factions committed to the islamization of the state connects only partially with the evidence in picking up on a cleavage that has northern roots. El Zakzaky stepped into that breach trailing Iranian colors, but the field was by no means his own. [33]

Gumi in that light advocated islamization of the state even though he had no known Iranian Shí'ite sympathies or links. It may be nothing more than fortuitous that there is a resemblance between the approach of Gumi and that of by El Zakzaky's Iranian-inspired, even if the cause of advancing northern Muslim rights is their common cause. That common cause may explain why Gumi, for instance, could make the pronouncement, without risk of repudiation or sanction, that politics (siyásah) is more important than prayer (salát) even though prayer, unlike politics, is one of the five pillars of faith. For all his reputation as a religious maverick, El Zakzaky has stirred a fiercer controversy without going that far.

The debate about secularism has deep roots in Muslim circles, and is not just the pet theme of Nigerian academic radicals, as has been claimed. [34] It is in that context that El Zakzaky's objections, in spite of their marginal Shi'ite significance, have deepened existing fault lines in a common attempt by all interested parties to shift power from the south to the north. For all intentsPage  216 and purposes, and declarations to the contrary notwithstanding, Yerima, with foreign aid and succor, has in fact turned Zamfara into an Islamic state. He admitted as much in giving evidence to the members of the human rights commission. He said he had been upfront on the matter when he campaigned in the elections. To quote him, "when I was campaigning for this office [of governor], wherever I go, I always start with Alláhu Akbar ('Allah is most great') to show my commitment to the Islamic faith. Therefore, as part of my programme for the state, I promised the introduction of Sharia." [35] The reference, however, to the takbír in the context of constitutional national elections that never administered or invoked the shahádah scarcely constitutes a safe religious foundation for government and public order in Islam: it might attest to nothing more than a self-help personal mandate. Other states pondered Zamfara's example, with Kano, Kaduna, and Niger States, for example, declaring their intention to adopt Sharí'ah law. [36]

Throughout Nigeria, the announcements led to heightened tension, and riots erupted in Kaduna where over 400 people, mostly Igbos, were killed. The killings provoked reprisals in the town of Aba in Abia State in the south where over 450 people, mostly Hausa, were massacred. A temporizing President Obasanjo, laboring under northern suspicions for his southern political ties, was finally dragged into the fray with an act of public hand-wringing over the killings. "I could not believe," he said, "that Nigerians were capable of such barbarism against one another." He then proceeded to a gloomy assessment: "This has been one of the worst instances of bloodletting that this country has witnessed since the civil war [1967-1970]." [37] He gave out a general assurance to Nigerians of "the firm determination of our government to resist any attempt from any quarter to pursue a line that can lead to the disintegration of our country." [38] As if to make penance for his southern connections, Obasanjo proceeded to crack down on the unrest in the south, mobilizing police and military units to rein in vigilante groups, such as the Oodua Peoples Congress (OPC) in Lagos State, whom the federal government accused of acts of "ethnic cleansing." The crisis was threatening to assume an ethnic guise in the south. [39]

Wole Soyinka, the Nigerian Nobel Laureate, gave voice to this ethnic sentiment in a statement in which he was quoted as saying that, being neither a Christian nor a Muslim, [40] he wished to assert the virtues of what he called "traditional Orisa" as something authentically African and as such equallyPage  217 entitled to the primary loyalty of Nigerians like himself. He imputed political motives and moral duplicity to those advocating Sharí'ah penal law. In the final analysis, claims Soyinka, these advocates are wolves in sheep's clothing, hiding their political ambitions behind a smokescreen of pious pretense. As an argument, the statement is conspicuous more by what it opposes than by what it advocates. In any case, by the same logic traditional Orisa may be a cover for the south's own political ambition. Which all amounts to saying the statement is tantamount to an evasion of the deep challenge the country faces. Defending "traditional Orisa" in the name of indigenous rights soon runs out of steam against the heavy artillery of cumulative Islamic legal scholarship ranged against it, and may explain why Muslim Yoruba have not rushed to Orisa for refuge, or to Soyinka for solidarity. At any rate, here is Soyinka's statement:

I am neither a Christian nor a Moslem. Definitely, if I have any religion at all it is our traditional [Yoruba] Orisa. As far as I am concerned, both Islam and Christianity are interlopers in Africa spiritually. That is my position. Even though I say I am neither a Christian nor a Moslem, let me make it clear that I studied comparative religions and so I know quite a bit of the Qur'án. We are not totally ignorant even though we are "infidels" and "Kafirs." We are not totally ignorant about the provisions of the Qur'án. And we are saying that some of these people [Sharí'ah advocates] are lying, misusing and abusing the Qur'án. And we also know that we have studied the religious sociology of many countries even in contemporary times and we know very well that their own interpretation of the Sharia is at least different from the one which is being imposed on this country...So let them stop claiming some kind of very special knowledgibility [sic]. They are abusing knowledge. They are abusing faith. They are abusing piety and they are showing themselves to be nothing but real impious secularists who are merely manipulating religion for political ends. [41]

Religion has superseded ethnicity in the north as the driving force of the debate. [42] Exhibiting all the classic symptoms of religious privatization, press and media reports emanating from the south have tended to downplayPage  218 religion and to look instead for a similar ethnic interpretation of the unrest in the north. And so reports spoke of Obasanjo's slowness in taking similar action in areas of Muslim unrest in the north, though they also noted his failure to take on the Sharí'ah issue as a root cause. The Catholic Bishops Conference of Nigeria (CBCN), responding to the religious nature of the crisis, nevertheless looked for a solution short of the long-term challenge of Sharí'ah legislation. It issued a statement regretting the slowness of the federal government to respond to the troubles in Kaduna and elsewhere. Archbishop John Onaiyekan, the vice president of the Bishops Conference, said in a public statement that the government should have acted much sooner than the Kaduna riots and taken decisive military action in October 1999, when Yerima was in full tilt mobilizing his followers in Zamfara. [43] Like others in the debate, Onaiyekan was looking to government to overcome the handicaps of government.

The federal government in the end was propelled by events to act, faced as it was with the threat of widespread civil disorder and the break down of law and order. And so there was a concerted, and largely ineffectual, effort at the federal level to demand that the affected northern states renounce Sharí'ah rule. On March 2, 2000, the governor of Niger State, Abdalkadir Kure, announced in Abuja, the federal capital, that his state has renounced the Sharí'ah, though Zamfara remained defiant. At the time, Kure was moved to act by the threatened mass exodus of non-Muslims, mainly Igbo, from Minna, the state capital. Serious economic damage would have been inflicted on the state with the flight of Igbos who make up a significant portion of the middle class. The Emir of Minna, Alhaji Faruk Bahago, met with the leaders of the Igbo community to appeal to them to stay. In spite of such appeals and assurances, and of the amenability of Igbo leaders, Islamists refused to back down and vowed to press with their campaign for Sharí'ah. As late as August, 2000, the Sharí'ah agitation had not abated. The Agence France-Presse reported on August 2 that Katsina had become the fifth state to adopt Sharí'ah law. [44] That notwithstanding, a powerless federal government, handicapped with defending secularism, was reduced to looking to the Islamists for concessions. [45]

The State: Friend or Foe? Civil Society and the Bounds of Sovereignty

The northern strategy to advance its political ambition by deployingPage  219 theological arguments, namely, that religion is too important to abandon in private hands as personal choice, evades the other half of the argument, namely, that religion is too important to entrust to the state, whether religious or not. Gumi's defense of the northern theocratic strategy perpetuates the problem even if it resonates with the pious sentiment that sound religion requires collective state endorsement, for without public enforcement the ideals of religion are empty and pander to wrongdoers and the wicked. [46] The law of God, in that view, demands the law of the state for support and safeguard. Gumi, accordingly, conceded that Muslims and non-Muslims, including Christians, could not be equal under one government. Muslims would not, on principle, accept the authority of a non-Muslim ruler except under special circumstances, such as military rule. [47] Gumi saw partition as the radical answer for Nigeria, though it is not clear whether he meant by that secession by the Muslim north or a loose confederal system allowing for local autonomy. El Zakzaky, for his part, has come at the same issue from a purist angle. The secular state, according to El Zakzaky, is the illegitimate child of the secular constitution, and to overthrow the state it is necessary to overthrow the constitution that gave it birth. Only so can Muslims save themselves from what El Zakzaky calls the idolatrous worship of the secular state. [48] A sovereign secular constitution and a sovereign national state represent a double assault on revealed law and the chosen ummah. The constitution and the national state are an unholy combination, and must be opposed.

These arguments of the religious right, however, are laden with the flaws they wish to remedy. The argument against compromise with the secular state, for example, spirals into the requirement of a shahádah-based state that Sharí'ah government makes obligatory. The religious or secular anointing of the state does not solve the problem of the state; they merely exacerbate it. A religious state is another name for government as political expedience, as the ideological doublette of the secular state as sovereign national dogma. It is in that sense revealing that both Shaykh Gumi and Shaykh El Zakzaky have offered little theological critique of the history of military rule in Nigeria in spite of the doctrinaire secular state military rule fostered and in spite of the conspicuous absence of a religious warrant either for military rule or for an ideological state, both vanguards of secularism.

The Muslim opponents of Sharí'ah law, for their part, have insistedPage  220 that state sponsorship of religion is only political manipulation of religion, [49] and threatens Islam's position on faith as tasdíq, sincerity, and obedience as moral commitment (la ikráha fí-d-dín Q. ii: 256), and that, far from solving the secular challenge within, Sharí'ah rule would leave Muslims helpless before it. For these opponents, if religion is too important for the state to ignore, it is equally too important for the state to co-opt. Sharí'ah belongs with the end and purpose of our temporal and eternal felicity, not with the strategem and means of state control. Responding to the criticism, Governor Yerima has argued that popular support entitles him to the mantle of religious immunity.

Disagreeing with Yerima's claim is Dr. Suleman Kumo, a Muslim lawyer in private practice in Kano and a prominent Sharí'ah activist since 1978. He belongs to the loose circle of critics of the politicization of Sharí'ah. Although known for his pro-Iranian leanings, Dr. Kumo, nevertheless, has stated his objections to Sharí'ah law, saying incompetent and corrupt judges, many of whom would fail a simple character test, are meting out justice. Abuse has been prevalent in these courts. "They are the worst courts. Ninety percent of the area judges, if you were to apply the Sharia rules that witnesses must be upstanding citizens, would not even be competent to testify." [50] Called to serve on a state government appointed committee called the Kano Forum, Dr. Kumo opened a dialogue with members of the militant Ja'amutu Tajidmul Islami (Ar. Jamá'ah Tajdíd al-Islámí), a breakaway group from Zakzaky's Muslim Brothers. Kumo noted that the members were well educated: engineers, medical students, and university-age young men. These people wanted to be self-reliant, to be independent of the government, but felt nevertheless that Islam should have a public role, though they have not said what that role is.

In any case, Tajidmul is an example of the roots of secularization spreading among the fundamentalists, their assertions to the contrary notwithstanding. In the meantime, fundamentalists face formidable obstacles. Thus Maitama Sule, a Kano power broker and friend of the emir, wants to scotch any signs of militant Islam lest a political stampede ensue and religion becomes mere fodder. He was taunting of El Zakzaky's Muslim Brothers, calling them "a group of disgruntled elements who are out to vent their anger and who are joined by undesirable waste products of humanity." [51]

Another example of opposition to the political misuse of Sharí'ah is Mohammed Sani, a tailor and reportedly a devout Muslim. In August 2000,Page  221 Sani preached at an open air meeting to a crowd of fellow Muslims about the banners, bumper stickers, and posters featuring governor Yerima's photograph. He pointed out that such partisan displays were a mockery of the claim that all this was about Sharí'ah. "This is a political campaign, not sharia," he protested. Sharí'ah, he assured his audience, is from God, not from a governor. For his pains Sani was thrown in jail for four months, his enemies charging him with disloyalty to the government. Said Abdul Kadir Jelani, a leading Muslim scholar and an advisor to the government, "Islam does not permit someone to criticize the government." [52] The sentiment echoes the statement of the Council of 'Ulamá, to the effect that, "for a government to be Islamic, Allah has to be the legislator through the Qur'án and the Sunna of the Prophet." Public dissent is anathematized in such a government. Few should miss the irony that it was a secular constitution that sanctioned public dissent and allowed Sharí'ah advocates to mobilize in the first place.

This loose coalition of dissidents has in a city like Zaria a liberal environment, a hinge community of the disaffected that is most hospitable to their reform ideas. Zaria has been a stronghold of anti-establishment sentiments that challenge the government and those who set themselves up as champions of Islam, as if being champions of justice for the common person is less worthy or desirable. Exemplary of this attitude is Sabo Bako of the Ahmadu Bello University. He castigates those in power as feudalistic and corrupt. "The only way you can remain in power," he charges, "is by keeping people down. You must not allow people to know what you are doing and how much money you have. So don't give them education, don't give them fertilizer, don't establish industries for them." [53]

Classical Jurisprudence: Structural Impetus and Local Variation

Perhaps as a tacit attempt to avert such personal use of Islam as political expedience, Muslim jurists elsewhere have sought to give institutional support to the idea of Sharí'ah as civil code in order to deal with the vexing gap between local custom and universal doctrine, between anecdotes and principles. These jurists point out that the Sharí'ah code originated in local practice in which differences of doctrine and emphasis were regarded as natural and as something to be expected. It was the 'Abbásid policy of structural centralization, however, that called for deliberate harmonization between, say, the practices of Medina andPage  222 those of Kúfa in Iraq. The effect on local practice was its being sequestered and systematized so that it could be accorded the status of universal validity. Instead of the fragmentation, polemics, and controversy that hitherto accompanied the work of opposing systems of law bent on pressing general theories from the ad hoc and miscellaneous, the 'Abbásids yielded to their own form of polemics (they flogged and tortured Imám Málik (d. 796) for his scrupulous independence) and presided over an intellectual movement of standardization led by Muhammad ibn Idrís al-Sháfi'í (767-820), justly called the colossus of Islamic legal history. Al-Sháfi'í's simple but potent rule that the sunnah of the Prophet, protected by divine warrant, cannot be set aside by the Qur'án on the pretext of the Qur'án's revelatory primacy, as was prevalent in much local practice, reversed the drift of differences and polemics that threatened to cut Muslims off from a common authority. It is flawed procedure, al-Sháfi'í insisted, to put God and His Prophet at loggerheads. Instead, God's prophet is the key to God's Word.

This rule galvanized the ummah around the recovery and reinstatement of the Prophet's sunnah, and gave legal scholars a standard, variable as it was, of proven consensus and reasoned inference (ijma' and qiyás) against whimsical fragmentation and divergent local practices. Although that was not al-Sháfi'í's stated intention, his new jurisprudence, on account of its sheer intellectual power, nevertheless downgraded historical practice in favor of canonical unity and observance. By subordinating context to normative primacy, al-Sháfi'í successfully gave Islam an essential systematic apparatus, in nominalist terminology. [54] His has been an enduring legacy. [55]

Yet such were the historical roots of Muslim legal theory and practice, of the acts and transactions that have shaped and were in turn shaped by religious life and understanding, that later jurists returned to the issue by building a theoretical framework of the law to connect persuasively with the open and advancing borders of the ummah and its dynamic historical character. [56] These jurists stressed the view that Sharí'ah law, developing in three stages, is a dynamic construction based on the principle of human welfare, defined as five basic interests: religion, life, reproduction, property, and reason. These basic interests form the core of Sharí'ah jurisdiction. A second stage concerns those laws and practices not directly related to the core but assimilated into Sharí'ah on the basis of public convenience (maslaha). One example is silent partnershipPage  223 in trade with its origins in pre-Islamic Arabia. It was a practice in which the Meccans deposited ('invested') cash and goods with traders who set out on commercial ventures. The profits from such ventures were shared with the investors. Though strictly against the Sharí'ah, the practice was eventually so successfully assimilated into the Sharí'ah that many modern Sharí'ah advocates assume it had always been so and offer it as an alternative to capitalist and socialist modes of operation.

The third stage concerns the more pervasive and finer elements of social and cultural practices such as modesty, truthfulness, cleanliness, hospitality, and respect. These have been assimilated into Sharí'ah on the basis of reasonableness and cultural convenience. Under that understanding, the veiling of women in contemporary society, for instance, could be considered dispensable. Cultural adaptation falls under the rubric of 'adát, not 'ibádát, duties owed only to God. A social good, such as the ethic of pluralist co-existence, can be promoted under 'adát, in which case 'adát would determine what is good and desirable, with Sharí'ah endorsing the result. Muslim jurists have tried by such means to avoid the extremes of religion as cast iron code and religion as shifting whim. [57]

As suggested in the title of this paper, general warrants cannot alone uphold sacred truth, nor can specific political enforcement avoid the risk of jeopardizing the moral intent of the religious code. The jurists have recognized in their methodology, for example, that theocracy and ideological secularism pose a common threat to religious truth claims as well as to political legitimacy. The dynamic nature of human existence, the open borders that frame our 'sacred spaces,' defies utopian oversimplification, religious or secular. The hardships and discomforts of life, according to these jurists, are not an argument for jettisoning the religious code, but for its flexible and imaginative adaptation to life. That was how many laws, even though they seem to originate in the Qur'án, had their genesis in local practice. Qur'ánic law on inheritance as pointed out by Noel Coulson, for example, reflects norms and practices familiar to the ancient Arabs once considered heretical and outlandish (jáhilí), and warrants the view that historical practices have given concrete shape and identity to the tradition people held dear and sacred. Precisely on the basis of their open-ended character, such practices became a source of valorization. [58] That notwithstanding, the uses of law should not be confused with the sources of law, just as expedience of enforcement must be distinguished from demandsPage  224 of conscience. Justice is not just a problem of implementation; it is an issue of the moral conscience. [59] An important high point of this stream of Muslim jurisprudence was in the fourteenth century, and it brought to a culmination a development well underway by the ninth century with the evolution of the madháhib, the schools of law, as the work of al-Shaybání (d. 805) shows.

Immunity or Double Jeopardy?

Given the prominence of the religious voice in the debate, it is tempting to assume that all of it revolves around the case for individual tasdíq against that for public enforcement of Sharí'ah penal law. Yet the heart of the issue seems to be the role assigned to the state by each side. One side feels that the islamization of the state, with religion and government united in a single source, will assure immunity for God's truth, while the other side feels that such a step represents double jeopardy for political stability and religious integrity.

This intellectual cleavage has driven much of the momentum of the debate. The demand by Nigerian secularists, mostly from the south, for a constitutional separation of religion and government provokes in the Muslim north criticism on two fronts, first, that separation is a ruse to hand government a carte blanche to embark on innovation, and, second, that religion would be reduced to a personal and private option, having no standing in the public square. It is the major reason why the Council of 'Ulamá allege that secularism is a Christian Trojan horse deployed to attack Islam from within. The allegation, however, befuddles Christian Nigerians and others who have not the slightest notion of 'Christendom' as a political system. Typically, Christian Africans, such as Archbishop Onaiyekan of Kaduna, defend political secularism on pragmatic grounds of equality under the law, national stability, and participation in public life, not for religious reasons. The prominence, in contrast, of such religious reasons in the Muslim case creates a serious imbalance in the national debate, and polarizes attitudes. That secular pragmatism has been the Christian failure, though Muslims misunderstand it by attributing it to theological self-interest. Pragmatism as a relative ethic is its own reward.

Political innovation is the handmaid of secularism, and, for that reason, remains deeply suspect among Muslims. In Islamic terminology, 'innovation' is a code for heretical adding, subtracting, or alteration. Muslim activists recall that the Prophet Muhammad discharged his mission by claiming only that itPage  225 was a confirmation and continuation of earlier messages rather than a break with them. His successors felt they had, and should have, no different mandate with respect to his legacy.

In the secular scheme, by contrast, political innovation is the prerogative of the sovereign national state, with the elected legislature the inviolable shrine of the people's will. The argument by the secularists for constitutional separation belongs with that of popular sovereignty, and, as such, provokes among the Islamists a counterproposal of state-sponsored piety. Given the reality of weakened and ineffective government institutions and structures at both the federal and state levels in Nigeria and elsewhere, and of the accompanying widespread popular disenchantment with failed reforms, it is easy to see why Sharí'ah law has grass-roots appeal among the rank and file. The question, though, is whether even a Sharí'ah-mandated state can do better by offering a solution to the existing failures of mismanagement, public incompetence, judicial corruption, social injustice, the absence of safety and security, falling standards of living, and widespread loss of morale, or whether, instead, Sharí'ah would add just another twist to the discontent, and become thereby compromised. In the end, whatever the moral merit of a cargo, it cannot save a ship out of trim.

Government, by common consent, is necessary, and especially as necessary evil, for otherwise anarchy and mutual hostility would menace life and property. In the pragmatic view, say, in that of Oliver Wendell Holmes, Jr. (1841-1935) or of Roscoe Pound (1870-1964), government is normative to the degree that it is publicly effective, or perceived to be effective, and not the other way round lest, as Holmes put it, puritan prudes muscle in to prevent pigs from putting their feet in the trough. (With that statement Holmes Junior disavowed all remaining traces of filial obedience to the humorous but also devout Holmes Senior (1808-1894), composer of the hymn, "O Love divine, that stooped to share.") Yet effectiveness does not insure against tyranny, and so theocratic power, as a reaction against secular monopoly of power, risks making effectiveness a sacrament of prescribed obedience, with prayer and politics commodities of widest common appeal. For sound religious as well as secular reasons, it is essential to separate obedience to God from submission to the instruments the state employs to enforce such obedience, [60] so that claims about God do not get reduced to matters of public enforcement, of impositionPage  226 of belief, and so that doctrine and political expedience do not become fused as constituency leverage. A predictable outcome of that gallery view of truth claims is the demagogic state, with or without religion. Those obfuscate the issue who fault religion for the despotic and intolerable consequences of its interchangeability with politics, and of politics with religion.

The plight of the much revered and pre-eminent jurist, Imám Málik ibn Anas, under the theocratic rule of the 'Abbásids, is instructive on this point. For his refusal to be sycophantic and for his scrupulous adherence to principle Málik brought on his head the wrath and fury of the rulers of the day. He received a severe flogging and was tortured by having his arm drawn out till his shoulder became dislocated, his moral stature being of no avail to him. [61] Such theocratic excesses against the keepers of the flame suggest that imposition of belief wrought under a theocracy is merely the flip side of the suppression of belief obligatory under an ideological national state, theocracy's secular nemesis, and represents little advantage, moral or political. Religion doing the bidding of the secular state as private disposition is little different from the state as public agent doing the bidding of religion. It should make Sharí'ah advocates pause; for it is Málik's legal tradition they now wish to make the rule of government in Nigeria. The current bitter anti-secular campaign is unlikely to spare the religion that inspires it.

The legal and normative tradition that has helped shape and define Islam's historical identity has depended crucially on the open borders the religious community has shared with its neighbors whose achievements and insights were reformulated and transcribed into the code. Customs and ideas that were once regarded as alien and remote, or as confusing and irrelevant, became by virtue of their proximity and familiarity no longer heretical and strange, and no longer feared and ignored, and so the canon expanded from cumulative experience and observance. Sharí'ah evolved in the crucible of life and experience.

New Eggs and Old Nests

Earning its spurs in the rough and tumble of competitive peer pressure and emerging as a national asset, the University is now confronted with the suspicions of political mobilization in the aftermath of 9/11. To maintain its integrity, it must cut against the grain by refusing to take sides and by beingPage  227 daring and probing. The national University's overlap with the political community leaves it as an easy target for the patriotic enterprise, but the open borders that frame its academic enterprise have brought it into larger horizons, vindicating its intellectual mandate against a pressing narrow national agenda. It is from embracing the virtues of complexity, diversity, tolerance, from unflinching resolve in the face of new challenge and difficulty, and from cultivating a 'borderless' suppleness of mind, that the national University can continue to discharge its time-honored responsibility of changing minds and refining the spirit of open inquiry.

In its successful apotheosis as the unassailable bearer of the torch of learning the University has long moved beyond the dim utility view of it as purveyor of the genre of adult education through the media and the press, and blazed the trail of unstifled search for knowledge and truth. The present achievements in education did not come about from chasing newspaper headlines and offering enrichment courses, but from an unswerving commitment to the pursuit of truth and to an environment, "a sacred space," so to speak, commensurate with it. The vocation of the University may be likened to the process of inculcating the insight that old nests can still incubate new eggs, as Cervantes affirms in his Don Quixote, in the sense of old ideas and habits being pressed to the service of new ends and purposes, of neglected premises revitalized by fresh perspectives. As we may learn from the Sharí'ah, it is when it has come under pressure and challenge and has been shaken by the gusts of public controversy, not when it has been ignored or taken for granted, that the University has incentive enough to take in both hands the mandate of its ancient critical heritage, to the benefit of its wider liberal mission. Unchallenged, old values tend to mold away and new insights get thwarted. Uncertain times can bring unexpected opportunities.

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Notes

This paper was commissioned by the International Institute, University of Michigan, Ann Arbor, as part of its international faculty and graduate student workshop entitled "Sacred Spaces and Heretical Knowledge: National Universities and Global Politics," August 2002. I am grateful to Owen Fiss of the Yale Law School for his comments on an earlier draft of this paper.

1. In an uncannily prescient statement, A. J. Arberry, an eminent life-long student of things Muslim and Islamic, reflected on the challenge of Islam to the West, saying it is an old one. "Present-day Oriental contempt for Europe, to my way of thinking the most terrible and menacing aspect of contemporary politics, is not to be dismissed simply as a triumphant reaction against a defeated or a penitent imperialism. Doubtless there is much of that in it; but the roots go deeper. Underneath all of it persists the challenge flung down more than thirteen centuries ago, and taken up again and again by" leading Muslim thinkers. "Islam claims specifically to be the final revelation of God to mankind, and an overthrow of all other religions...The tables have been turned. Christian Europe, adventuring into the East upon its self-appointed civilizing mission, is now informed that it is itself in need of civilizing anew from the East....If the threatening and so unnecessary conflict is to be avoided, it is imperative that we should make a renewed and unremitting effort to understand each other's viewpoint, and to study what possibilities exist for, first, a diminishing of tension, next, a rational compromise, and, ultimately, an agreement to work together towards common ideals." Arberry's Preface to his edition and translation of Muhammad Iqbal, The Mysteries of Selflessness: A Philosophical Poem (London: John Murray Publishers, 1953), xivff.

2. Jalál al-Dín al-Suyútí, the great medieval Egyptian scholar, noted for his robust views, did not flinch from controversy, for, he wrote, "people will excuse us for opposing our contemporaries, and will know that it is not our intention to be aggressive or bigoted, on the contrary, our intention is to pursue truth and avoid bias in (matters of) religion" Jalál al-Dín al-Suyútí, vol. I: Biography and Background, ed. and trans. E. M. Sartain (Cambridge: Cambridge University Press, 1975), 61. In his Kashf al-Mahjúb, al-Hujwirí (d. c. 1072 c.e.) writes that it would be dishonest to allow what we would today call 'political correctness' to prevent him from recognizing the due merits of the controversial Súfí, al-Halláj, executed for his heresy. Al-Hujwirí says he would Page  229"honour him according to the token of the Truth which we have found him to possess." Kashf al-Mahjúb, 150.

3. The system of education pursued in much of the Muslim world comes close to the evocative picture Jacob Burckhardt draws of the situation in Renaissance Italy. He writes: "To form an accurate picture of the method of instruction pursued at that time, we must turn our eyes as far as possible from our present academic system. Personal intercourse between teacher and pupils, public disputations, the constant use [of language tools], the frequent changes of lecturers and the scarcity of books, gave the studies of that time a color that we cannot visualize without effect. [Some teachers are said to have educated] the gifted poor 'per l'amore de Dio.'" The Civilization of the Renaissance in Italy (New York, 1961), 168.

4. G. E. von Grunebaum, Classical Islam: A History: 600-1258 (London: George Allen & Unwin, 1970), 175.

5. The allusion is to the ancient fable in which the frogs, dissatisfied with their effete King Log, appealed to Jupiter. Jupiter sent them King Stork who devoured them all.

6. Shiháb al-Dín al-Suhrawardí, Al-'Awárif al-Ma'árif (The Bounties of Divine Knowledge), ed. and trans. H. Wilberforce Clarke (Calcutta: Government of India Central Printing Office, 1891); reprinted as A Dervish Textbook (London: 1980), 26.

7. That was the title of Iqbal's influential book published in 1934. It became a national charter for the posthumous state of Pakistan, created in 1948. In the book, Iqbal wrote that the Muslim community, now scattered perforce in a multiplicity of free independent units must strive to have their "racial rivalries adjusted and harmonized by the unifying bond of a common spiritual aspiration. It seems to me that God is slowly bringing home to us the truth that Islam is neither Nationalism nor Imperialism but a League of Nations which recognizes artificial boundaries and racial distinctions for facility of reference only, and not for restricting the social horizon of its members." His was a voice for open borders of intellectual exchange. More than half a century later the Egyptian scholar, Mona Abu-Fadl, returns to the theme of reconstruction when she writes: "The changed historical context, together with trends and directions inherent in contemporary civilization, demand and allow for a radical restructuring of the historical encounter away from its conventionalPage  230 rigid polarities to a more accommodating and dynamic complementarity...The politics of technology is steadily engendering a demand for a new ethics [sic] of responsibility." Mona Abu-Fadl, Where East Meets West: The West on the Agenda of the Islamic Revival (Herndon, VA: International Institute of Islamic Thought, 1992), 81.

8. Alexander David Russell and Abdullah al-Ma'mún Suhrawardy, First Steps in Muslim Jurisprudence, 1906, reprinted (London: Luzac & Co. Ltd., 1963), viii.

9. At about the same time similar efforts were going on in Egypt. Sir Norman Anderson's book, Law Reform in the Muslim World (1976) offers a comprehensive overview and summary of developments in the field. See also his Islamic Law in Africa (London: H. M. Stationery Office, 1954); reprinted (London: Frank Cass Publishers, 1970). Anderson, it should be pointed out, was not, however, concerned with issues of normative or prescriptive coherence in the administration of law.

10. Some Muslim spokesmen have contended that secularism has divested the Muslims of their right to Sharí'ah law while imposing no similar disability on Christians, a contention that does not accurately reflect the fate that, according to R. H. Tawney, had befallen Christianity when it was subjected to privatization in early modern Europe, with the church removed from having any public role in society. R. H. Tawney, Religion and the Rise of Capitalism: A Historical Study (Harmondsworth, U.K.: Penguin Books, 1998), 272. Under much of colonial rule, accordingly, the churches were severely restricted by being privatized, Nigeria not excepted.

11. Hadd (pl. hudúd) is the sphere of Sharí'ah criminal law, and comprises i) sariqa (cutting off the hand for theft), ii) zinà (caning or execution for fornication and adultery), iii) qadhf (slander or false accusation for fornication and adultery punishable by caning), iv) haraba (highway robbery or rebellion, for which the punishment is amputation of the right hand and left foot, exile, imprisonment, or sometimes execution by crucifxion, v) shurb al-khamr (alcohol consumption, punishable by caning), and, sometimes vi) al-ridda (apostasy, which is punishable by death).

12. For a study of contemporary Nigerian politics, including the regime of Babangida see Eghosa E. Osaghae, Crippled Giant: Nigeria Since Independence (Bloomington: Indiana University Press, 1998).

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13. Report in Nigerian Tribune, October 21, 1988.

14. Birai, "Islamic Tajdid," 1993, 190. The implication here is that there is no ground for dialogue with Christians. They are responsible for secularism.

15. Cited in The Guardian, January 27, 1986.

16. Yerima was appointed as an official participant at the August, 2000 Democratic National Convention in Los Angeles, California, a measure of his range and appeal.

17. There is a long history to the involvement of the Arab world in the sponsorship of islamization projects in north Nigeria, going back to the 1960s immediately after Nigeria's independence. John Paden, Ahmadu Bello, Sardauna of Sokoto: Values and Leadership in Nigeria (London: Hodder and Stoughton, 1986), 543ff.

18. Rena Singer, "The Double-edged Sword of Nigeria's Sharia," The Christian Science Monitor, February 22, 2001.

19. Christian Science Monitor, February 22, 2001.

20. "As Stoning Case Proceeds, Nigeria Stands Trial," New York Times, January 26, 2003, A3.

21. For a treatment of this subject in classical Islamic sources, see A. S. Tritton, "Islam and the Protected Religions," Journal of the Royal Asiatic Society, 1928, and R. Marston Speight, "The Place of Christians in Ninth Century North Africa according to Muslim Sources," Islamochristiana, 4, Rome (1978): 47-65. In Kano State, a Christian trader claimed in January 2001, to have been flogged by a Muslim vigilante group called Hisbah, whose members monitor compliance with strict Sharí'ah.

22. Amina Lawal of Katsina received the death sentence for a similar offence. She was previously married, though not at the time of the offence. New York Times, January 26, 2003. Examining the use of Sharí'ah in Sudan, 'Abdel Salám Sidahmed argues that enforcement has discriminated overwhelmingly against women. 'Abdel Salám Sidahmed, "Problems in Contemporary Applications of Islamic Criminal Sanctions: The Penalty for Adultery in Relation to Women," British Journal of Middle Eastern Studies, 28, 2 (2001): 187-204.

23. "The double-edged sword of Nigeria's sharia," Christian Science Monitor, February 22, 2001. Caning as punishment is quite widespread. The subject leapt into the headlines when in May 1994, an American youth, Michael Fay, was caned in Singapore as punishment for vandalism. Caning or paddling is widelyPage  232 used in the United States. Twenty-seven states permit corporal punishment in schools, with Texas and Arkansas the states with the most incidents. Congress has repeatedly thwarted attempts to ban corporal punishment, saying it is a local issue. In the Caribbean flogging with the cat-o'-nine tails, consisting of nine knitted cords or hide thongs attached to a handle, is legal punishment for a variety of offences, including rape and other sex crimes, as well as drug infractions. "Beyond Singapore: Corporal Punishment, A to Z," New York Times, June 26, 1994. It is hard to distinguish between caning in schools or by secular courts as retribution and caning under Sharí'ah as moral exculpation.

24. "Woman who was raped faces death by stoning," report in the Independent newspaper, London, January 7, 2002.

25. The name, Izala is Arabic for "eradication" and occurs in the name of the movement, the Society for the Eradication of Heresy and the Establishment of the Prophet's Sunnah, founded in 1978.

26. For a report on El Zakzaky and the 1996 religious riots in Kafanchan and Kaduna he inspired, see "Bloody Riots in the North," Tell magazine, September 30, 1996. According to the magazine's report, the government crackdown commenced on September 12, 1996 in Zaria, when El Zakzaky gave himself up to the authorities. The following day after the Friday Jum'ah prayer, his followers mounted public demonstrations in various parts of the country, including Katsina and Kaduna, and Zaria, demanding his release. There was bloodshed from these demonstrations. On the background to El Zakzaky, see also Ousmane Kane, "Mouvements religieux et champ politique au Nigeria septentrionale: le cas de réformisme musulman au Kano," Islam et Sociétés au Sud du Sahara, 4 (1990): 7-24.

27. Muyiwa Akintunde, "This Isn't the Sharia We Know," Africa Today, December 1999.

28. Some Egyptian modernists follow Leo Strauss and Karl Popper in making this distinction. Among them was Faraj Fúda, assassinated in 1992. He accused Sharí'ah advocates of offering a false panacea for present ills. Like Mamadou Dia, one time Prime Minister of Senegal, Fúda called for a dynamic understanding of Sharí'ah and Islamic history. See Ibrahim M. Abu-Rabi', Intellectual Origins of Islamic Resurgence in the Modern Arab World (Albany: State University of New York Press, 1996), 255ff. In this respect, a report on Iran says that the clerical leaders of the revolution there have climbed down from their high theocraticPage  233 positions and opted for "a minimalist" approach in order to reduce the risk of popular backlash and to connect with the youth. But this is not surrender to secularists who also admit that Islam has a role in society. Thomas L. Friedman, "Iran and The War of Ideas," Op-Ed article, New York Times, June 19, 2002. This sentiment is in line with the distinction being made in Nigeria in the contrasting roles of state and society which promises a more fruitful avenue of thinking, if only because it accepts the coexistence of islamization and secularization. The issue of democracy and Sharí'ah rule was taken up also by the influential Pakistani scholar, Maududi, but with unsatisfactory results. S. Abul A'la Maududi, Political Theory of Islam (Lahore: Islamic Publications Ltd., 1980), 21-25, 34-42. See, too, James Piscatori, Islam, Islamists, and the Electoral Principle in the Middle East (Leiden: International Institute for the Study of Islam in the Modern World, 2000).

29. Maududi's influential opinions include guarded support for "theo-democracy," i.e., democracy qualified by Islamic restrictions. See Piscatori, Islam, Islamists, and the Electoral Principle in the Middle East, 20-21. Several Islamic bodies take a restricted view of freedom of religion and human rights. See Mohamed Eltayeb, "Legal protection of the right to freedom of thought, conscience, and religion or belief in muslim countries," in Freedom of Religion: A Precious Human Right: A Survey of Advantages and Drawbacks, ed. Jonneke M. M. Naber (Assen, The Netherlands: Van Gorcum & Co., 2000), 100-118.

30. Interview, This Week, April 6, 1987. This condemnation of those 'ulamá who are under the thumb of temporal rulers is a well-rehearsed subject in the literature. As far back as Jalál al-Dín al-Suyútí (d. 1505) we hear of attacks on religious scholars who ingratiate themselves with rulers.

31. Report in Quality, Lagos, October 1987, and cited in S. Ilesanmi, Religious Pluralism and the Nigerian State (Athens, Ohio: Center for International Studies, 1997), 186.

32. Elizabeth Isichei, "The Maitatsine Risings in Nigeria, 1980-85: A Revolt of the Disinherited," Journal of Religion in Africa, 17, 3 (1987): 202-203.

33. Kano was the site of major disturbances in 1991 following the abortive evangelistic campaign there of Rev. Reinhard Bonnke, the German head of Christ For All Nations evangelistic organization. The experience strengthened Zakzaky's resolve "to create a paramilitary force to confront the police." KanoPage  234 again erupted into violence in 1994 following rumors that the wife of an Igbo trader, Gideon Akaluka, had desecrated the Qur'án by using its sacred pages to clean her baby. Gideon was mobbed and killed, his severed head paraded on a pole. Karl Maier, This House Has Fallen: Nigeria in Crisis (London: Penguin Books, 2000), 167, 169.

34. The example of Dr. Mohammed Tawfiq Landan, senior lecturer in law and Head of the Department of Public Law at Ahmadu Bello University, Zaria, is a case in point. In a major dissenting article, he attacked the method of Sharí'ah implementation as flawed and "violative of the rights of life and security" of the poor. The Guardian, January 8, 2002.

35. Report of the commission: "Sharia and the Future of Nigeria: Report of the Trip by the Civil Liberties Organization, CLO, Hurilaws and other NGOs to Zamfara State," 9.

36. BBC reports of December 23, 2000, spoke of continuing public campaigns demanding Sharí'ah law in other parts of the north.

37. Obasanjo wrote on the civil war in his book, My Command: An Account of the Nigerian Civil War 1967-70 (London: Heinemann Publishers, 1981).

38. AFP Report, March 2, 2000.

39. Ethnicity has been a factor in unrest in parts of the petroleum-producing areas of the south. The Ogoni Crisis: A Case-Study of Military Repression in Southeastern Nigeria (New York: Human Rights Watch, July 1995), and The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria's Oil Producing Communities (New York: Human Rights Watch, February 1999).

40. Mr. Soyinka's own justifiable protestations notwithstanding, the northern Muslim leaders prefer to consider him a Christian for the purposes of legal classification. Thus, when he received the 1986 Nobel Prize for Literature, Shaykh Gumi was awarded by Saudi Arabia an Islamic equivalent created for the occasion.

41. "This is Prelude to War," Soyinka interview, The News, Lagos, March 6, 2000. One must allow for some editorial shoddiness in this copy. See also the same author's The Open Sore of a Continent: A Personal Narrative of the Nigerian Crisis (Oxford: Oxford University Press, 1996). Only academic essentialism, understandable in trying to answer one absolutism with another, would make us persist with equating sharí'ah with Orisa: the two have Nigeria fortuitously in common; otherwise in historical range, scale, and claim, they move in veryPage  235 different spheres altogether.

42. See Mathew Hassan Kuka, Religion, Politics and Power in Northern Nigeria (Ibadan: Spectrum Books, 1993). For all practical purposes, the ethnic distinction, for example, between Fulani and Hausa has been submerged under Islam, though Christian Hausa have hewed close to their Hausa identity. The Fulani or Fula language for this reason has been virtually obliterated in areas of Fulani settlement in north Nigeria, though surviving pockets remain in Adamawa. In Niger and Camroun, however, the Fula language remains in wide use, and is given a special role in local Islamic scholarship.

43. The Guardian, February 29, 2000.

44. Reported in the New York Times, August 2, 2000. In an extended report the Times listed twelve of the thirty-six states as having adopted Sharí'ah law: Sokoto, Kebbi, Zamfara, Niger, Katsina, Kaduna, Kano, Jigawa, Bauchi, Yobe, Gombe, and Borno, all northern states. "Rising Muslim Power in Africa Causes Unrest in Nigeria and Elsewhere," New York Times, November 1, 2001, A14.

45. Under Sharí'ah law civic agitation could grow, fed by the religious status quo. Thus in Kano State a militant Muslim group, called Yandada, threatened to disrupt the National Sports Festival planned to take place in Kano in November, 2000. The group objected to the participation of women, and required also that men conform to the Muslim dress code. The chairman of the local organizing committee, Alhaji Ibrahim Galadima, under a death threat from the militants, resigned, leaving the future of the festival in doubt. Vanguard Daily, Lagos, September 5, 2000. The signs may have been ignored, for two years later in November 2002, the staging of the Miss World pageant in Lagos was abruptly halted amidst bloody riots ignited by a casual remark by Isioma Daniel, a twenty-one-year-old female Nigerian journalist that the Prophet of Islam would have been glad to take a wife from among the contestants. Some 300 people died in the ensuing civil unrest. Miss Daniel was placed under a fatwa of death by Zamfara state. To show what little cultural background knowledge went into the planning, Julia Morley, the English pageant organizer, confessed, "To tell you the truth, before I left [England] I thought Sharia was a girl's name." The pageant was moved to London where Miss Turkey won the crown. Judy Backrach, "Bikinis, Bosoms, and Blood at the Miss World Pageant—It's a Mad, Mad Miss World," Vanity Fair, March 2003.

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46. The Qur'án declares the public responsibility of Muslims to be the "duty of commanding the good and restraining from evil" (amal bi-ma'rúf wa nahy 'an al-munkar) (Qur'án iii: 104). See also Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press, 2000).

47. Umar M. Birai, "Islamic Tajdid and the Political Process in Nigeria," in Martin E. Marty & R. Scott Appleby, editors, Fundamentalism and the State: Remaking Polities, Economies, and Militance (Chicago: Chicago University Press, 1993), 184-203, 196.

48. Birai, "Islamic Tajdid and the Political Process in Nigeria," 197.

49. See Yusufu Bala Usman, The Manipulation of Religion in Nigeria 1977-87 (Kaduna: Vanguard Printers and Publishers, April 1987).

50. Maier, This House Has Fallen, 178.

51. Maier, This House Has Fallen, 170-171, 172. The leader of Tajidmul, Shaykh Abubakar Mujahid, is a self-declared uncompromising admirer of the Iranian Revolution and of the Talibans. He expressed disquiet about Iran's reformist president, Mohammad Khatami, saying Khatami was slipping from the old moorings, was "getting loose," as he put it. He wishes to use Western education, including its technology, to inculcate Islamic values. Tajidmul ran a small school in Kano, a pharmacy, and a wholesale food store for its members, showing secular inroads in fundamentalist ideology.

52. Christian Science Monitor, February 22, 2001.

53. Maier, This House Has Fallen, 172-173.

54. For a seminal study of al-Sháfi'í's jurisprudence see Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950). See also Wael Hallaq, who offers a revisionist argument for al-Sháfi'í's role, "Was Sháfi'í the Master Architect of Islamic Jurisprudence?," International Journal of Middle Eastern Studies 25 (1993), 587-605.

55. Some six hundred years later, the Egyptian scholar and judge, Jalál Page  237al-Dín al-Suyútí (1445-1505), an axial authority in his own right who defended ijtihád against its taqliíd critics, counseled his peers to follow al-Sháfi'í. He wrote: "People of our century have erred because they think that mutlaq, unrestricted, and mustaqill, independent, are synonymous, whereas this is not so...we follow the Imám al-Sháfi'í, may God be pleased with him, and adopt his method in ijtihád, in obedience to his command, and we are counted among his adherents." Jalál al-Dín al-Suyútí, vol. I: Biography and Background, ed. and trans. E. M. Sartain (Cambridge: Cambridge University Press, 1975), 65. Al-Suyútí had reason to keep his distance from rulers, for one such ordered his arrest and threatened his life, forcing him into hiding (Sartain, 98, 102, 103-106). Al-Suyútí consulted closely with Muslim West Africans on details of social and political reform. The king of Songhay, Askia Muhammad, returning from the pilgrimage, visited him in Cairo in 1497/98, and received political advice from him. Al-Suyútí received deep homage from Muslim West Africans "in the way they trust, venerate, and love him, and readily accept his learning," in the words of al-Shádhilí, his biographer (Sartain, 51, 52). See also John Hunwick, "Notes on a late fifteenth century document concerning 'al-Takrúr'," in African Perspectives: Papers in the History, Politics, and Economics of Africa Presented to Thomas Hodgkin, ed. Christopher Allen and R.W. Johnson (Cambridge: Cambridge University Press, 1970).

56. Ibn Khaldún (1405/06), pioneering historian and sociologist of Islam, affirms the importance of variety and difference in Muslim jurisprudence as follows: "It should be known that the jurisprudence described, which is based upon religious evidence, involves many differences of opinion among scholars of independent judgment. Differences of opinion result from the different sources they use and their different outlooks [methodologies], and are unavoidable....(These differences) occupied a very large space in Islam." Ibn Khaldún, The Muqaddimah: An Introduction to History, ed. and trans. Franz Rosenthal (Princeton: Princeton University Press, 1958) 3 volumes, vol. iii, 30-31.

57. For a summary see Muhammad Khalid Masud, Muslim Jurists' Quest for the Normative Basis of Sharí'a, inaugural lecture, University of Leiden, 2001.

58. Noel Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964), 9-20.

59. Thus has Suleman Kumo, a private lawyer in Kano and a former law professor at Amadu Bellow University in Zaria and since 1978 a campaigner in the Sharí'ah cause, pointed out in a Voice of America statement that, in the rush to enforce Sharí'ah, miscarriage of justice has resulted. The rights of the accused, he charges, have been imperiled by the decision beforehand to exact punishment. Maier, This House Has Fallen, 169-171.

60. For a discussion of some of these issues, see Wael Hallaq, "From Fatwas to Furú': Growth and Change in Islamic Substantive Law," Islamic Law Page  238and Society i, i (1994): 29-65; and the same author's Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001).

61. It is important to remember that Muslim clerics had long been ambivalent about government involvement in religion. The sixteenth-century author of the Songhay chronicle, Ta'ríkh al-Fattásh, Mahmúd al-Ka'tí, for example, described the grim fate the 'ulamá suffered under the capricious policies of the king, Sonni 'Alí. The number that survived the ruler's sanguinary repression could be gathered under the shade of an acacia tree, he stated laconically. The lesson was not lost on the 'ulamá of Timbuktu who adopted a policy of religious separation from politics to avoid state enforcement. The city was placed out of bounds to the ruler, except during the annual Ramadan lent when the ruler came for penance.