"Questioning the ‘Secular’ / 'Federal ‘State : The Islamic Legal System and the Constitutional Dilemma of the Nigerian State."
Paper prepared for the 10th General Assembly of CODESRIA, Kampala, Uganda, December, 8-12, 2002
Chris O. Uroh (Ph.D.)
Department of Philosophy
University of Ibadan,
Ibadan, Nigeria
E-mail:chrisuroh@hotmail.com
AbstractIn less than one year since the adoption of the Islamic (sharia) legal system by some states of Northern Nigeria, 20 people have had their limbs amputated for offenses ranging from stealing of cattle, goats, wheat and so on. In addition, three people, one of them a pregnant woman, have been sentenced to death by stoning for adultery.
This development continues to elicit condemnations and commendations, as well. Condemnation, for the 'backwardness' of the practice, its unconstitutionality with regards to the 'secularity' of the Nigerian state, the inherent injustice in its procedures, especially the fact that victims do not normally have legal representations and so on. On the other hand, some Muslims have commended the adoption of sharia on the ground that the sharia is part of Islam and that without it the practice of Islam is not complete. Therefore, to deny Muslims the practice of sharia amounts to infringing on their right to practice their religion to the fullest. This paper is not interested in the morality or otherwise of the practice of the sharia legal system. It concerns itself with the fundamental philosophical issues raised by the adoption of a 'religious code' in some parts of a 'federal' state whose constitution provides for freedom of religion for citizens as well as the secularity of the state.
Questions therefore, examined by the paper are: does the adoption of an Islamic legal system by a section of a federal state negate the principle of federalism or is this actually in conformity with the idea of 'local autonomy' of federating units? Is there anything conflictual in the simultaneous constitutional affirmation of the secularity of the state and the right of the citizen to religion, especially with regard to Islamic religion? What would secularity mean in an Islamic state? Is a secular Islamic state possible? For how long would Christian states which produce the bulk of the Nigeria oil revenue continue to allow such revenue to be used in funding Islamic states? In other words, what is the future of Nigeria's 'fiscal federalism' in the face of the continued talibanisation of northern Nigeria? These are some of the issues examined by this paper.
Introduction
In less than one year since the adoption of the Islamic (Shari’ah) legal system by some 12 states in Northern Nigeria, 20 people have had their limbs amputated for offenses ranging from stealing of cattle, goats, wheat and so on. In addition, three people, one of them a pregnant woman, have been sentenced to death by public stoning for adultery. Note that the adulterous men in these cases are not charged or sentenced.
This development continues to elicit condemnations as well as commendations: Condemnation, for the ‘backwardness’ of the practice; its "unconstitutionality" with regards to the question of the ‘secularity’ of the Nigerian state, the inherent injustice in its procedures, especially the fact that victims do not normally have legal representations and so on. On the other hand, some Muslims have commended the adoption of the Shari’ah on the ground that its practice is part and parcel of Islam and that without it the practice of Islam is not complete. They contend that to deny Muslims the practice of Shari’ah amounts to infringing on their right to practice their religion to the fullest.
While some critics have seen the Shariah advocates as mischief makers who want to truncate Nigerian fourth attempts at democratic rule; others have blamed the Federal Government of Nigeria for its lukewarm attitude to what is considered as a breach of the Nigerian Constitution. As a commentator recently puts it; ‘the Obasanjo government has been dishonest in tackling the Shari’ah challenge. It remains so far a test of the constitution; to allow a section of the country to violate the Constitution so brazenly and to be allowed to get away with it is further confirmation of the failure of the Nigerian state’(Abati, 2002). The expectations of those who share this view point is that the Federal Government should have stopped the move by challenging it in the Supreme Court, the moment it realised that Zamfara, the first state to introduce it, was getting serious and to contest the constitutionality of the introduction of the a religious code by any section of the country. While political solution to the Shariah conflict are also desirable, write the authors of The Talibanization of Nigeria (Center for Religious Freedom, 2002); the government of should "seek constitutional rulings on the new shariah TO ENSURE THE RIGHTS OF ALL Nigerians under international human rights standard and Nigerian Constitution."
In a recent book, Shari’ah Under Western Democracy in Contemporary Nigeria, Hakeem B. Harunah (2002) points out the contradiction inherent in the implementation of full-fledged Shariah legal system in a western-oriented kind of democracy; noting further that a true Shari’ah as prescribed by the Prophet Mohammed, can only be practiced by truly theocratic regimes of Mullahs, that is not a popularly elected government. It does follow that the Shari’ah, strictly speaking, can only be properly practice within the context of a ‘state religion.’ The problem, according to him, is how to reconcile the practice of the Shari’ah under the Nigerian Constitution whose orientation is pro-Christian in terms of values. Even at that, there is the vexed question of what happens when a Christian and a Muslim are involved in conflicts and the Muslim insists on being tried at the Shari’ah court while the Christian, naturally refuses?
This paper is not interested in the morality or otherwise of the practice of the Shari’ah legal system. It concerns itself, instead, with the fundamental philosophical issues raised by the adoption of a ‘religious legal system’ by some sections of a ‘federal’ state whose Constitution also provides for freedom of religion for citizens as well as the ‘secularity’ of the state.
The questions examined by this paper therefore, are: does the adoption of an Islamic legal system by a section of a federal state negate the principle of federalism or is that actually in conformity with the federal principle of respecting ‘local autonomy’ of federating units, and therefore a furtherance of the ideal of federalism? Is there anything conflictual in the simultaneous constitutional affirmation of secularity of the state and the right of the individual citizens to religion, especially with regard to Islamic religion? Another way of putting this is to pose the question; what would secularity mean, if it means anything at all, in an ‘Islamic’ state by which I mean a state with sizeable Muslim population? In other words, is a ‘secular Islamic state’ possible? Within the context of the Nigeria socio-political economy, the question may also be put; considering the fact that for now how, the bulk of the Nigeria’s oil revenue comes from Christians-dominated Southern states, for how long would they continue to allow such revenue to be used to fund ‘Islamic states’? In other words, what is the future of Nigeria’s ‘fiscal federalism’ in the face of the apparent and continued ‘talibanisation’ of northern Nigeria? These are some of the issues examined by this paper.
The Secularity Question in Nigerian
Let me start by noting that studies on the subject-matter of secularity/secularisation as well as the notion of secular states and societies, have yielded to a variety of definitions, conclusions and continue to elicit interesting debates among intellectuals and clergy. Even now, there is hardly any consensus as to what a secular state or society is or should be as different people continue to give different interpretations to it. Thus, after an elaborate review of the various studies of secularisation, Larry Shiner concludes that ‘the lack of agreement on what secularisation is and how to measure it stands out above everything else.’ There are many things that have come to be characterised as indicative of the secularity of states or societies. Haralambos (1980) has noted that the major source of the problem is the unavoidable religious content of secularity: ‘Any research on secularisation must begin with a definition of religion,’ he declares; but ‘because of the absence of a generally accepted definition,’ problem necessarily arises at this point for differing views of religion will result in differing views of secularisation.
But even at that, Harry Cox (1965), in his study of The Secular City, identifies some principles, including pragmatism and profanity, as marks of a secular society. He explains further;
By pragmatism we mean secular man’s concern with the question of ‘Will it work?’ Secular man does not occupy himself much with mysteries. He is little interested in anything that seems resistant to the application of human energy and intelligence. He judges ideas … by the results they will achieve in practice. The world is viewed not as a unified metaphysical system but as a series of problems and projects.
By profanity we refer to secular man’s wholly terrestrial horizon, the disappearance of any supramundane reality … He views the world not in terms of some other world but in terms of itself.
In addition to pragmatism and profanity, Cox also recognises pluralism and tolerance as part of the defining characteristics of a secular society. According to him, in a secular society, ‘different "world-views," including different "religions," peacefully coexist without the fanaticism which has been so disruptive in the past.’ Following this, Vernon Pratt(1970) concludes that a secular society is one characterised by pluralism , tolerance, pragmatism, and profanity. It is therefore, what Bryan Wilson(1969; 112) describes as a society where ‘the sense of the sacred, the sense of the sanctity of life, and deep religiosity are … absent.’ Secularisation is ‘the process whereby religious thinking, practice and institutions lose social significance’(Ibid.; 14). MacIntyre (1967; 7-8) agrees. In his book, Secularisation and Moral Change, he describes secularisation as ‘simply the transition from beliefs and activities and institutions presupposing beliefs of a traditional Christian kind to beliefs and activities and institutions of an atheistic kind.’ Put another way, secularisation is ‘the function of modern state in which secular norms, that is a framework of rules rather than divine injunction, become the foundation of political community.’ In that circumstance, ‘law replaces religion as the common organising principle of political life.’ It could also be further characterised as the ‘social process involving a decline in the membership, social influence, wealth and prestige of religious organisations, as well a reduction in religious fervour (religiosity) expressed by membership of religious groups.’
Two questions beg for definitive answers here. First, is Nigeria really a secular state in the sense of distancing itself from religious matters? Second, can Nigeria, in view of its socio-cultural composition be a secular state in the true sense of the word? Let us start with the first query. Section 10 of the 1999 Nigerian Constitution states unequivocally that ‘The Government of the Federation or of a State shall not adopt any religion as State Religion.’ Section 38 elaborates further:
Every person shall be entitled to freedom of thought, conscience and religion, including freedom (either alone or in community with others, and in public or private) to manifest and propagate his religion or belief in worship, teaching, practice and observance. (2) No person attending any place of education shall be required to receive religious instructions or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance relates to a religion other than his own, or a religion not approved by his parents or guardian.(3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination.
Now, if secularity is taken to mean non-involvement of state in religious matters in whatever form, that is, if we take secularity of a state to mean that ‘religion should not intrude into secular (worldly) affairs," then many would readily affirm that there are enough evidence to the effect that the Nigerian state has not really acted as a proper secular state in the real sense of the word. In other words, it has not insulated itself enough from religion or activities of religious organisations.
To begin with, Nigerian governments, Federal and States, do observe and so declare religious holidays as public holidays when governments officials and workers are not expected to go to work. These holidays include the Christmas and Easter, for Christians, and idel Kabir, idel Fitri, and idel Malud, for Muslims. The argument has been made that the fact that these days are officially declared public holidays by the Nigerian Government is enough an official recognition for them by the Nigerian State. Ordinarily, the argument goes, if the Nigerian state was serious about its secularity it should not have recognised any religious holidays; that ‘the religionists are allowed to do their own things their own way, without any form of state patronage.’ Furthermore, the various Nigerian Governments not only subsidise annual pilgrimages by Christians and Muslims but also usually appoint official government ‘representatives’ to accompany the pilgrims to their various ‘holy lands.’ Added to this is the fact many government public functions are preceded with prayers in either of the two religions’ mode of worship or both. A truly secular state should keep religion out of official functions it should be "atheistic,"so to say, in its official dispositions. This way, religion would truly be a "private affair."
But this idea that the state should be divorced from the religious, that is, the separation of the secular from the sacred, has been seriously challenged by some Nigerian Muslims who have argued, not only that the idea of secularity is alien to Islam, but that it is wholly a Christian concept which ought not to be imposed on non-Christians. This was the line of argument of most Muslims who spoke on this matter during the debate on the issue at the 1978 Constituent Assembly which ratified the 1979 Constitution – the first constitution to formally recognise Sharia. As expected, the issue polarised members along religious line, with Muslim members arguing for the adoption of Shari’ah and the redefinition and recognition of Nigeria as a multi-religious, rather than secular state. On the other hand, Christian members argued that secularity is the only solution to the problem of religious conflicts which Nigeria has had a lot to contend with. Secularity, they maintain, give all faith a level-playing ground. Shehu Shagari, Nigeria’s Second Republic president, contributing to the Shari’ah debate on the floor of the Constituent Assembly said;
I think that enough has been said already to prove that the practice of Islamic Religion and therefore the Sharia, is within the rights of all citizens who professes to be Muslims. What has not been made so clear however, seem to me that the Muslims of this country have already made so many sacrifices and compromises in the interest of Nigerian unity.
A Christian member of the Constituent Assembly had argued from the opposing point of view. According to Abubakar Jalingo;
Sharia has provoked considerable controversy. There is nothing peculiar about this because Nigeria, after all, is a multi-religious and multi-ethnic community where the affairs of State are customarily decided and operated on the basis of secularity … In a country of only one religious system, this can be simple, but in a multi-religious society with everyone having his own prescribed ways of life and belief all of which contradict and antagonise one another, such a fusion is bound to provoke the type of controversy which is now raging.
As the debate rages Lateef Adegbite (1994) the secretary general, Grand Council for Islamic Affairs in Nigeria declares: ‘Secularism is alien to Islamic doctrine. Islam is a way of life and subsumes both spiritual and temporal under its doctrine. Islam necessarily regulates adherent’s conduct politically, socially and economically.’ This position is affirmed Ibrahim Sulaiman (1986) who opines that;
Historically and in practice, secularisation is a development peculiar to Christian civilisation. It is a child, albeit a bastard of Christianity … Secularism has become a sinister but convenient mechanism to blackmail Muslims and impede the progress of Islam and reduce it to the level of earthly concepts and ideology
The Muslim Students Society, MSS, expressed similar view in a memorandum to the Political Bureau in 1986. According to them, ‘The argument that Nigeria is heterogeneous is undeniable. But it is also true that Muslims have no choice but to abide by the Holy Koran and Sunnah.’ This is the crux of the matter to which I shall return later.
Federalism and ‘Local Autonomy’
Available statistics shows that about one third of the world population is governed by one form of federal system or the other. But what does it really mean for a state to be a federation? Like many social science concepts and, coupled with the fact that there are variations in the way federalism has been perceived, domesticated and so, practiced over time in many countries of the world, federalism has had a career of shifting meanings. According to K. C. Wheare, a leading authority on the subject of federalism, a political system is federal when it has adopted what he calls ‘the federal principle.’ He explains further; ‘by the federal principle I mean the method of dividing powers so that federal and regional governments are each, within a sphere, coordinate and independent.’ Put another way, federalism is about the devolution of powers among tiers of government in such a way that ‘each set of authorities being coordinate, is not subordinate to others within its own prescribed sphere.’ It is against this background that most federal constitutions spell out the areas of legislative and executive competence of the various levels of government within the federation.
But beyond constitutional provisions, Williams Livingstone has noted that ‘the essence of federalism lies not in the institutional or constitutional structure but in the society itself. Federal government,’ he concludes, ‘is a device by which the federal qualities of the society are articulated and protected.’ To him differences in the composition of people living in the different territories of a federation are usually the major considerations in a particular society opting for the federal system instead of any other system of government. He states further:
Furthermore, these diversities may be distributed among the members of a society in such a fashion that certain attitudes are found in particular territorial areas, or they may be scattered widely throughout the whole of the society. If they are grouped territorially, then the society cannot be said to be federal … But in the former case only can this take the form of federalism or federal government. In the latter case it becomes functionalism, pluralism or some form of cooperativism.
The choice of federalism against other systems is therefore, to ensure that the identities of the minority groups are not subsumed in the bigger union by those of the majority, both demographic and political. Thus, we can further conclude that the hallmark of federalism is to build unity among diverse people, form a political union without hurting the diversities and the Imperative of self-determination of the peoples who make up the federation. This explains why a federation has been characterized as the ‘coming together of a number of established political communities which nevertheless wish to preserve their separate identities and, to some extent, their autonomy.’ This is the case of the United States of America, incidentally, the world’s earliest federal state. Each of the 13 former British colonies that formed the first federation no doubt, ‘possessed a distinctive political identity and a set of traditions that it was determined to preserve within the new, more centralised, constitutional framework.’ This explains why the former colonies were reluctant to support the establishment of a strong national government at the Philadelphia Constitutional Convention of 1787.
It is in fact, well known that the ratification of the US constitution by most of the states took take place only in 1798 after the Bill of Rights, and in particular, the 10th Amendment, which guaranteed that powers not delegated to the federal government would be "reserved to the states respectively, or to the people," had been effected.
Another county which had a similar experience was German. After the unification of 1871 a federal structure of administration helped to allay the fears of the rest 38 Germanic states, which had had a long tradition of political independence, against the growing influence of the Prussian State. Though this regional autonomy was briefly interrupted during the Nazi period, it was however formalized in the 1949 constitution of the Federal Republic of German. This constitution gave each of the 11 ‘Lander’ (provinces) its own constitution. It should be note that following the 1990 unification of the east and west German, the number of the Lander has been increased to 16.
One of the distinguishing features of a federal system of government, in line with our discussions so far, is the principle of power devolution among the various levels or tiers of government. Wheare calls this the "criterion of federal government", which simply means "the delimited and coordinate division of governmental functions", According to Wheare, "to the extent to which any system of government dose not conform to this criterion, it has no claim to call itself federal". Wheare explains further the essence of power devolution in a federation:
First, of all since all federal government involves a division of function and since the state forming the federation are anxious that they should not surrender more powers than they know, it is essential for a federal government that there be a written constitution embodying the division of powers, and binding all government authorities throughout the federation. From it, all state and federal authorities derive their powers and any action they perform contrary to it are invalid.
In the second place, if the division of power is to be guaranteed, and if the constitution embodying the division is to be binding upon federal and state government alike, it follows that powers of amending that part of the constitution which embodies the division of powers must not be conferred either upon the federal government acting alone or upon the state government acting alone. It is preferable, though not essential, to federalism that it should be exercised by the federal and state authorities acting in cooperation…
Thirdly,… in case of dispute between federal and state government as to the extending of powers allocated to them under the constitution, some body other than the federal and state government must be authorized to adjudicate upon those disputes. Finally, if the governmental authorities in a federation are to be really coordinate with each other, in actual practice as well as in law, it is essential that there should be available to each of them, under its own unfettered control, financial resources sufficient for the performance of the function assigned to it under the federal or state authorities and devising legal safeguards so that each should be limited strictly to the performance of its respective functions, unless at the same time adequate provision has been made so that each authority can afford to do its job without appealing to the others for financial assistance.
The last statement above is very important to us here because, as we shall see in due course, one area in which the principle of devolution of power and therefore, the practice of federalism in Nigeria has been compromised is in the way financial ‘allocations’ to the tree-tiers of government in the country have been carried out. But before we do that, let us allow Wheare to conclude this rather incisive analysis of what should be the financial relationship between the various tiers of government in a federation. He continues:
… if the state authorities … find that the services allotted to them are too expensive for them to perform, and if they call upon the federal authority for grants and subsidies to assist them, they are no longer coordinate with the federal government but subordinate to it. Financial subordination makes an end of federalism, in fact, no matter how carefully the legal form may be preserved. It follows therefore that both State and Federal authorities in a federation must be given the power in the constitution each to have access to and control its own sufficient financial resources.
What the above implies is that in a truly federal political setting, the ideal is that all the levels of government should be semi-autonomous of one another; by which it is understood that within their areas of constitutional competence there should be no unwarranted intervention by the other tier(s).
Conclusion
As I stated at the introduction, the idea behind this paper is not a moral criticism of the introduction of the Shari’ah legal system by some 1é Northern states in Nigeria,; a concern which I must say, has continued to dominate the Shari’ah controversy so far. Our concern rather is with the apparent philosophical contradictions first, in the simultaneous affirmation of freedom of religion as a fundamental human right to all its citizen, and the demand that a section of the Federation should not practice their religion to the fullest because doing so would be against the notion of secularity of the state. On this matter we raised two questions, first, can Nigeria afford to be a truly secular state? Second, what would secularity mean in a society with Muslim population? There is also the second dilemma, which is that Nigeria is a federal, not a unitary state. If the principle of regional or local autonomy which is the hallmark of federalism is to be strictly applied, would it be proper for the Federal Government to intervene in the affairs of the state, more so, the Shari’ah legal systems were supposedly debated and approved by members of the State Houses of Assembly of the various states.
The first conclusion that we can draw from the foregoing is that in a much as Shari’ah is part of a Islamic religion, it would be contrary to the right of religion as guaranteed by the Constitution of Nigeria, to deny a Nigerian Muslim the practice of Shari’ah if s/he so desires. But there is a caveat here, the principle of localized autonomy equally means that every Shari’ah state, must recognize the right of individuals who constitutes the last base of locality.
Thus, it would be wrong to subject a non-Muslim to Shari’ah legal system, as it had been reported. That would amount to a negation of the principle of right to religion on which the justification of the introduction of Shari’ah is being sought. It also follows that Muslims who do not want to be tried in the Shari’ah courts should, in the spirit of freedom of religion and principle of fair hearing be allowed to go to regular court. Another way of putting it is to say that protagonists of the Shari’ah legal system should come to term with the fact that no state in Nigeria is a theocracy, and that being a democracy, certain rights and privileges naturally belong to the citizens and that the managers of the states have the constitutional duty to protect them.
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