The tussle over diya (compensation for unlawful killing) was one over the locus of sovereignty in the colonial state. For colonial officials, the colonial state and, ultimately, the British Empire was the source of all sovereign power. Moreover, these officials regarded the institution of diya as a threat to that power; the most marked prerogative of the sovereign is, after all, the power over life and death, and by vesting the right of response to killings in the aqillah (agnates of the victim), diya stripped the state of this power. For Muslim jurists and political elites in Northern Nigeria, however, God was the source of sovereignty and the fons et origo of laws. Hardly a homogenous or cohesive class, these indigenous elites were nevertheless uniform in insisting that diya was integral to the Islamic criminal justice administration system. Given these stakes, the stage was set for a protracted contestation over the fate of diya.
Although the colonial state commissioned Muftī Sheikh Abul Gasim to legitimate the planned introduction of a penal code that precluded diya in the last years of empire, the obliteration of diya had begun since the early days of colonial rule. Moreover, the vehicle of that effacement of diya was “siyāsa,” the same idea invoked by Sheikh Abul Gasim and before him, by Anderson, to legitimate the penal code proposal in the late colonial state.
Discerning the hardly apparent early governance of diya through siyāsa requires adverting one’s mind to the workings of indirect rule, the British colonial mode of governing in Northern Nigeria. Indirect rule is the well-known technique of governance that the British Empire came to adopt to govern its colonial holdings in the aftermath of the 1857 Indian revolt; interpreting the revolt as a rebellion against empire’s anglicizing (and Christianizing) efforts, empire turned to govern colonized populations through indigenous institutions. Given the importance that Northern Nigerian political and juristic elites–the intermediaries through whom empire governed–attached to diya, an outright statutory abolition of diya would have been impolitic in the earlier decades of colonial rule. Nevertheless, empire’s maintenance of appearances of deference to what remained of the precolonial caliphate should not be conflated with preserving those institutions. After all, indirect rule was not merely governance through so-called indigenous institutions but also the governance of those institutions. This governance project sealed the fate of diya since the early colonial years, even if that demise only became apparent in the final years of colonial rule.
The genus of the early colonial governance of diya was to move it from the realm of qiṣāṣ (individuals’ jurisdiction over retaliation and compensation for interpersonal crimes), in which jurists classified it, to the domain of ta’zīr (the state’s residual jurisdictional authority over crimes). As I noted in the previous essay, ta’zīr was not absent from precolonial responses to interpersonal crimes; the favored Mālikī thought in the precolonial polity gave the ruler the discretion to impose a ta’zīr penalty in addition to diya – as long as such a penalty was less than the capital penalty. However, the colonial state’s employment of ta’zīr jurisdiction to govern diya went beyond this—the colonial state sought to displace diya with state-imposed penalties, including the capital penalty. Notably, early colonial officials had the task of legitimating this deviation from established fiqh as a justifiable ta’zīr penalty authorized by political authorities’ siyāsa jurisdiction.
In the early colonial years, this expanded siyāsa jurisdiction was ostensibly vested in emirs, local political elites. This expansion of siyāsa jurisdiction took the form, first, of expanding the direct, supervisory, and appellate judicial jurisdiction of emirs and then of “instructing” these emirs to either directly preclude diya when presiding over cases or to exercise their supervisory jurisdiction over alkalai (judges) by directing these alkalai to do so.[1] Colonial officials, many of whom were Oxford graduates self-trained in poor English and French translations of Mālikī law texts, legitimated these efforts as the rightful exercise of emirs’ ta’zīr jurisdiction. Emirs were not unwilling to embrace this expanded ta’zīr jurisdiction when feuding with political opponents (who intensely criticized what they regarded as emirs’ complicity in the colonial project.) It is, however, striking that regardless of the inflated powers that emirs had (and not infrequently enjoyed) with the expansion of siyāsa jurisdiction, these political elites joined jurists in opposing the colonial government’s efforts to abolish diya (and afw–forgiveness). These elites regarded the assumption of siyāsa authority in the case of diya as particularly fraught, given the clear prescriptions of the Qur’ān, Sunna, and the long-established body of fiqh. Emirs also expressed a concern that the state’s substitution of its punishment in lieu of the one that enjoyed popular legitimacy would fail to resolve what the colonial population continued to see as an interpersonal (and interfamily) dispute and lead to blood feuds outside of the formal system of justice administration. There is, in fact, some evidence to suggest that this was the case. Therefore, emirs would refuse to follow the instruction to preclude diya. This left the duty to the colonial official, usually the resident and, in some cases, the governor, to exercise the power to substitute a punishment instead of diya.
Given this long history of the gradual preclusion of diya since the early colonial years, why did the colonial state move from its previous furtive approach to overtly move to obliterate diya through a penal code legislation? One must look to another prominent bloc of actors in the colonial state beyond Muslim elites and colonial officials–Christian missionaries–to understand this shift. If early colonial years had seen missionaries sidelined by colonial officials fascinated with what remained of the caliphate, however much they worked to transform its institutions indirectly, the late colonial state saw the rise in stature of these missionaries globally and, ultimately, in the colony. In part oblivious to and in part dissatisfied with the transformations that imperial rule had engendered in Northern Nigerian law Islamic institutions, these missionaries were unflinching in their criticism of a colonial indirect rule that they equated with “Muslim sub-imperialism.” As these missionaries gained influence due to a confluence of factors in the years following the Second World War, their ideas began to find reception in the senior echelons of the colonial administration.[2] Expressing the thinking that came to be pervasive among senior imperial administrators, British Prime Minister Harold Macmillan called in those late colonial years for the active making of colonies “in which men are given the opportunity to grow to their full stature” – on the foundation of “Christianity and the rule of law.”[3] Such a vision was clearly at odds with the Northern Nigerian situation in which diya continued to exist in theory, only to be set aside on a case-by-case basis in negotiation with (and through gentle compulsion of) emirs who enjoyed ceremonial deference. As imperial thinking about the place of caliphate institutions in the colonial enterprise shifted, prominent administrators began to insist that diya, with its curious blurring of civil and criminal law and its unforgivable challenge to imperial sovereignty, had to be eradicated.
Beyond these changes in imperial thought and strategy, the practical workings of diya itself posed challenges. The fact that Northern Nigeria had non-Muslim populations, at least some of whom regarded diya as conflicting with their customs, raised significant challenges. In one recorded trial of a killing, for instance, a Muslim defendant avoided both a corporal penalty and the payment of compensation due to this conflict.[4] The key witness at the trial was the victim’s relative; to testify, that witness requested that the Muslim defendant perform a ritual demanded by the non-Muslim’s custom as a prerequisite for entering into the presence of his relative’s “killer.” The Muslim defendant refused, citing sharīʿa prohibitions. At the same time, the victim’s family refused the diya in place of punishment because their custom prohibited the receipt of such compensation. Unable to convict in the absence of the witness or to order compensation, the alkali discharged the defendant.
Another challenge raised by the everyday working of diya was the distinctions in the juristically assignable sums based on religion and gender. Originally indicative of a monetary prediction of earnings and life expectancy, those disparate sums came to be the subject of much critique in the colonial state. Missionaries and jurists like Anderson criticized those disparities, pointing out that they indicated the undue favor enjoyed by Islamic institutions and Muslims and the second-class status of non-Muslims. The question of the international perception of Northern Nigeria was particularly central to this critique of diya’s differential treatment. Anderson and jurists like Sudan’s Chief Justice Abu Rannat impressed it on Northern Nigerian elites that Nigeria’s impending entry (as an independent state) into the international community, and mainly the United Nations, would raise “awkward questions”[5] about Islamic law. It was when these arguments failed to convince Northern Nigerian elites that the colonial government invited the Muftī of Sudan, Sheikh Abul Gasim to convince these political and juristic elites.
As the previous essay noted, Sheikh Abul Gasim legitimated the proposed code’s preclusion of diya by invoking the imām’s siyāsa powers. This mirrored early colonial expansion of siyāsa except in one crucial way—whereas the early colonial state had recognized emirs as the imām through whose expanded siyāsa power the state could embark on reform, Sheikh Abul Gasim’s argument effectively conferred the power–and religious legitimacy–of the imām on the state itself. This designation of the state as the “Imam” was the consequence of colonialism for postcolonial expressions of Islamic law.
Colonial rule did not only recalibrate the siyāsa–fiqh constitutional balance of the precolonial years and grant emirs expansive jurisdiction—an innovation that was by itself extraordinary. What was most striking and most consequential about colonial governance of Islamic law was its location of siyāsa and religious legitimacy first in the colonial state and ultimately in the postcolonial state bequeathed by colonial secular modernity. With these transformations, the preclusion of diya became “Islamic,” not because it accorded to fiqh expositions but because the state decreed it as such. Entangled Domains contends that this was the lasting legacy of imperial rule.
Notes:
[1] Rabiat Akande, “Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903-58,” Law and History Review 38, no. 2 (2020): 459–93.
[2] Rabiat Akande, “Neutralizing Secularism: Religious Antiliberalism and the Twentieth-Century Global Ecumenical Project,” Journal of Law and Religion 37, no. 2 (2022): 284–316.
[3] Harold Macmillan, “The Wind of Change Speech, Address by Harold Macmillan to Members of Both Houses of the Parliament of the Union of South Africa, Cape Town, 3 February 1960,” accessed December 17, 2021, https://web-archives.univ-pau.fr/english/TD2doc1.pdf.
[4] See “The Reform of Criminal Law Introduced by the British,” File 365205 PPMS 60/1/12-17, SOAS Library Special Collections, London.
[5] James Norman Dalrymple Anderson, “Conflict of Laws in Northern Nigeria: A New Start,” International & Comparative Law Quarterly 8, no. 3 (1959): 442–43.
(Suggested Bluebook citation: Rabiat Akande, Diya and the Legacy of Empire, Islamic Law Blog (Oct. 19, 2023), https://islamiclaw.blog/2023/10/19/diya-and-the-legacy-of-empire/)
(Suggested Chicago citation: Rabiat Akande, “Diya and the Legacy of Empire,” Islamic Law Blog, October 19, 2023, https://islamiclaw.blog/2023/10/19/diya-and-the-legacy-of-empire/)