In 1958, as negotiations over Nigeria’s impending independence from the British Empire were underway, the colonial government invited the muftī of Sudan, Sheikh Mohammed Abul Gasim, to Northern Nigeria. The purpose of the invitation was for Sheikh Abul Gasim to partake in ongoing talks over replacing Islamic criminal jurisprudence with a penal code derived from English law. Although Islamic criminal jurisprudence had witnessed fundamental transformation since the inception of formal colonialism in 1903, the attempt to replace the entire corpus of Islamic criminal jurisprudence with a penal code legislation was unprecedented in the colonial state. As noted in my previous essay, the formal existence of Islamic criminal law marked Northern Nigeria apart in the British Empire since nowhere else other than the Aden Protectorate did empire’s ceremonial deference to Islamic jurisprudence produce a similar need to maintain appearances of Islamic law’s existence in public law. The 1958 proposal to upend this arrangement by introducing a statutory penal code was therefore highly significant.
The muftī was not the only foreign scholar the colonial government had invited to persuade Northern Nigerian political and juristic elites to accede to the proposal. Other international jurists invited to the talks to facilitate the colonial government’s plan included the Chief Justice of Sudan, Syed Muhammad Abu Rannat, chairman of the Pakistan Law Commission and retired judge of the Pakistani Supreme Court and Justice Mohammed Sharif, and professor of Oriental Laws at the School of Oriental and African Studies of the University of London, John Norman Dalrymple Anderson. What these other jurists shared was their training in both Islamic law and English law. Sheikh Abul Gasim was, however, different in that he was of the ulamā‘ class and solely trained in the Islamic sciences. The colonial government was convinced that this characteristic gave the muftī a legitimacy that far surpassed those of other invited experts and was certain to win over Northern Nigerian elites.
Sheikh Abul Gasim was late to the penal code negotiations; indeed, the colonial government had only resorted to inviting the jurist when the talks stalled over a particular provision in the proposed penal code that would have precluded diya (compensation) and ‘afw (forgiveness) as a response to unlawful killings or bodily injury in the administration of criminal justice. When Northern Nigerian elites insisted, despite all entreaties and propitiations, the colonial government invited the respected Sudanese muftī to mollify these local elites and (what colonial officials regarded as) their “persistent Muslim pride.” As such, the colonial government summoned Sheikh Abul Gasim specifically to facilitate the obliteration of diya in Northern Nigeria. In arguing that the abolition of diya was legitimate under Islamic law, Sheikh Abul Gasim set out a view of constitutional authority that contextualizes the late colonial state’s penal code project and situates that proposal in the longer imperial process of governing Islamic law since Northern Nigeria became a British Protectorate in 1903.
In what is preserved of the records,[1] Sheikh Abul Gasim informed Northern Nigerian political and juristic elites that the political authority, the “Imām’s,” siyāsa authority entailed a jurisdiction over the domain of diya; the muftī further noted that jurisdiction entailed the authority to preclude diya and to substitute in its place, another punishment, without any limitation whatsoever. The import of this argument was that since the proposed penal code’s preclusion of diya was authorized by siyāsa jurisdiction—of the colonial state—it was sharī‘a compliant.
Northern Nigerian jurists such as Mālikī law expert and recent graduate of the University of London, Haliru Binji, regarded Abul Gasim’s argument with incredulity. After all, the education of these jurists had steeped them in the teaching that diya belonged to the domain of qiṣāṣ (retribution laws), one of the three branches of what may be loosely described as the Islamic criminal law (the other two domains being ḥudūd—those offenses that infringe on the rights of God with punishments prescribed in the texts and ta’zīr, discretionary punishments prescribed by the ruler). For Northern Nigerian jurists, Sheikh Abul Gasim’s view of expansive siyāsa jurisdiction was reflective only of the ta’zīr branch of criminal law under which the state could enact legislation, and political authorities exercise limited jurisdiction over lawmaking and judging as mandated by the public interest (maslaha). As noted in the widely studied Usul-al-Siyāsa, the famous 19th-century treatise of Muhammed Bello, scholar and early political authority of the precolonial Sokoto caliphate, ta’zīr jurisdiction was the residual jurisdictional authority of the state to legislate in the domain of crimes; yet, it was far from expansive. Bello notes that the ruler’s exercise of jurisdiction to establish ta’zīr offenses and to impose penalties was required to be motivated by “piety and support of Islam” and had to be in furtherance of the goal of promoting deterrence and the protection of society. As such, siyāsa jurisdiction to impose ta’zīr penalties was far from unconstrained. In essence, Bello expressed the view (supported by not a few surviving accounts of the precolonial caliphal discourse) that siyāsa jurisdiction had to be within sharī’ limits as expressed by jurist’s fiqh.
In accordance with this account, political rulers in precolonial Sokoto were vested with siyāsa authority to govern, whereas jurists exercised authority over the domain of fiqh, expositions of the law. To be clear, the siyāsa authority of rulers included certain lawmaking and judicial powers toward maintaining public order and promoting the public interest. Nevertheless, that authority was not unconstrained—siyāsa jurisdiction had to align with the sharīʿa—as jurists expounded upon it. This did not mean that what the sharīʿa required was always clear; indeed, since precolonial authority permitted and even encouraged diversity in juristic thought and the political and juristic classes were not separated by clear boundaries (several early political authorities like Bello themselves had juristic credentials and license), the sharī’ limits of political power were not always apparent. Moreover, tracts like those of the caliphate founder, Uthman Dan Fodio’s Wallahi Wallahi,[2] reveal that violations were not hard to find. Nevertheless, those limits were understood as ultra vires and not a negation of the existence of constitutional boundaries. In constitutional terms, siyāsa was conceived as siyāsa shar’iyya to invoke the canonical exposition of 13th-century jurist Ibn Taymiyyah (d. 1328).[3] This view of the proper bounds of constitutionalism shaped Northern Nigerian juristic and political discourse on ta’zīr jurisdiction.
To be sure, jurists understood that political authorities could sometimes impose a punishment in addition to diya. Indeed, this view had a basis in Mālikī thought, which was popular (though by no means the only school of jurisprudence) in the precolonial caliphate. However, such ta’zīr punishment could never be in lieu of diya and could not amount to the capital penalty; otherwise, such ta’zīr penalty would be an exercise of siyāsa jurisdiction to set aside a fundamental principle of Islamic jurisprudence and would therefore be at odds with the sharīʿa. In essence, to do so would be for siyāsa to violate its sharī’ constitutional limits, a violation that several jurists regarded as “un-Islamic.” The purport of Sheikh Abul Gasim’s view was the opposite—that the state could exercise siyāsa authority to overrule fiqh doctrine on diya, and that such a siyāsa jurisdiction, although at odds with existing fiqh, was well within the expansive authority conferred on the ruler—the Imām. Northern Nigerian elites may have received Muftī Abul Gasim’s reasoning (that the late colonial state was the “Imām” and thus could exercise siyāsa authority, including when that jurisdiction overrides jurists’ expression of fiqh) with stupefaction; yet, that argument was hardly new to colonial discourse.
The notion that the colonial reform project ought to be legitimated in the name of the state’s siyāsa jurisdiction had been expressed by School of Oriental and African Studies Professor Anderson in an advisory commissioned by the Colonial Office a year before Sheikh Abul Gasim’s invitation to the Northern Nigerian talks. Not a few European officials in late colonial Nigeria viewed the colony as a problem, given its odd (formal) retention of Islamic law in public law. This feature had been a point of contention since the earliest colonial years due to the sustained critique of European missionaries in Northern Nigeria. Missionaries regarded the colonial arrangement as a “Muslim sub-imperialism”[4] and an “unblushing bolstering up of Islam”[5] and criticized this arrangement as anathema to what they insisted ought to be the Christianizing goal of empire. If these missionaries were slow to succeed due to the anti-missionary attitude of early senior colonial administrators, they wielded significant influence, and by the final decade of empire, they had won many hearts in the colonial office in their efforts to rid the colony of the last vestiges of Islamic law. This was the context in which the colonial office sought and received the expert advice of Anderson, himself an erstwhile missionary in Egypt, on what to do about what administrators regarded as the “problem” of Islamic law.
In the 1957 advisory memorandum to the Colonial Office,[6] Anderson urged the outright elimination of Islamic criminal jurisprudence (especially diya) through the “procedural” tool of siyāsa. Citing the practice of “modern Muslim states,” Anderson argued that “the difference, therefore between the way in which criminal justice is administered in Northern Nigeria and other Muslim countries is not so much a matter of fundamental principle as of the way in which the siyāsa jurisdiction of the state is exercised.”[7] Anderson argued that the state’s invocation of siyāsa jurisdiction would legitimize the state’s lawmaking even when at odds with fiqh. Later affirmed by Sheikh Abul Gasim, Anderson’s proposition was indeed reflective of the practice of states like Sudan. However, this statist siyāsa vision was at odds with the precolonial caliphate constitutional thought that key local jurists like Haliru Binji sought to advance into an impending independent Nigeria. Regarded by the colonial government as paradigmatic of the “pre-modern” nature of Islamic law while Muslim jurists insisted that it was a cornerstone of Islamic jurisprudence, the institution of diya became the contested terrain for experimenting and testing the limits of the Anderson and Abul Gasim-championed siyāsa project.
Notes:
[1] Attorney General H. H. Marshall to the Panel of Jurists, September 10, 1958, S.MOJ/12/S.1, vol. I. National Archives, Kaduna, Nigeria. See also Suleiman Ismaila Nchi and Samai’la Abdullahi Mohammed, eds., Alhaji Sir Ahmadu Bello, Sardauna of Sokoto: His Thoughts and Vision in His Own Words: Selected Speeches and Letters of the Great Leader (Makurdi, Nigeria: Oracle, 1999), 202–09.
[2] Danyaya Shehu Muhammad, Nura Bello, and Ahmad Musa Madawaki, “Hausa-Ajami Poetry in the Study of the Sokoto Caliphate: The Anatomy of Wallahi-Wallahi,” African Journal of Culture, History, Religion and Traditions 6, no. 2 (2023): 25–34; Mervyn Hiskett, The Sword of Truth: The Life and Times of the Shehu Usuman dan Fodio (New York: Oxford University Press, 1973), 105.
[3] Taqī al-Dīn Ahmad Ibn Taymiyya, al-Siyāsa al-Shar ‘iyya fī Islah al-Rā‘ī wa-al-Ra ‘iyya (Beirut: Dār -al Kutub al ‘ilmiyyah, 1988).
[4] Church Missionary Society, Report of Sub-Committee of Group III of the Church Missionary Society on Difficulties with Nigerian Government, January 26, 1916, CMS/B/OMS/A3/CL/1916, University of Birmingham Cadbury Special Collections.
[5] Walter Miller to Miss Gollock, September 27, 1917, CBMS/IMC 271, School of Oriental and African Studies Special Collections, UK.
[6] J. N. D. Anderson, “The Application of Islamic Law in Northern Nigeria,” May 8, 1957, CO 554/1941, 17E, 33. NA, UK.
[7] Ibid.
(Suggested Bluebook citation: Rabiat Akande, Siyāsa Authority in the Colonial State, Islamic Law Blog (Oct. 12, 2023), https://islamiclaw.blog/2023/10/12/siyasa-authority-in-the-colonial-state/)
(Suggested Chicago citation: Rabiat Akande, “Siyāsa Authority in the Colonial State,” Islamic Law Blog, October 12, 2023, https://islamiclaw.blog/2023/10/12/siyasa-authority-in-the-colonial-state/)