Friday, 26 June 2015


Published by Guardian Newspaper on June 26, 2015.


Tariq Ramadan, a distinguished scholar of Contemporary Islamic Studies at Oxford University, writes in his ground breaking work – Western Muslims and the Future of Islam – that “In the West, the idea of Shari’ah calls up all the darkest images of Islam….It has reached the extent that many Muslim intellectuals do not dare even to refer to the concept for fear of frightening people or arousing suspicion of all their work by the mere mention of the word.”

Yet Marcel Boisard stated in his published article in International Journal of Middle East Studies in 1980 that “It was above all the very high ethical standard of Islamic law that impressed the medieval West and provoked the development of a more refined legal thinking. This aspect is undoubtedly the most durable merit of Muslim influence, as illustrated by the administration of justice. Until the Crusades, legal procedure in the West consisted of “God’s judgments” by boiling water or by duel, or by “ordeal” during which people were burnt with red-hot irons or boiling oil and, if they survived, declared “not guilty.”

In contrast, we have only to quote the instructions given by Caliph Omar in the seventh century to the Muslim judges to show what a chasm separated the two conceptions: “Only decide on the basis of proof, be kind to the weak so that they can express themselves freely and without fear, deal on an equal footing with litigants by trying to reconcile them.”In fact, Islam under the Khilafah System (Islamic Caliphate) was renowned for its principles which exemplified justice, respect for law, equality, and the rule of law.

Unarguably, Shari’ah law contributed to the development of English Common law and International law. Count Ostorog, a French jurist observed that Islamic thinkers “expounded a doctrine of toleration of non-Moslem creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted.” Contrary to the popular view in Western legal scholarship, which often refers to the 16th/17th-century Dutch jurist, Hugo Grotius (1583-1645), as the “father of international law”, Islamic legal scholarship identifies Muhammad Al-Shaybani as having preceded Hugo Grotius by some eight centuries with the compilation and systemization of the rules of Islamic International law under a specialized subject area of Islamic law termed al-Siyar, which covers the laws of war and peace according to the Shari’ah. Muhammad Al-Shaybani dealt with both public international law as well as private international law and formulated the code by which war is conducted and how its participants are treated (jus in bello) and the factors that warranted war (jus ad bellum). These tenets were eventually codified in the Geneva Convention.

Al-Shaybani derived his inspiration from the Glorious Quran, Hadiths and teaching of rightly guided Caliphs. In the early 7th century, the first Caliph, Abu-Bakr (RA), whilst instructing his Muslim army, laid down the following rules concerning warfare: “Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy’s flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.”

Again, the Glorious Quran declared: O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: For Allah can best protect both (Q4:135). This verse was posted on Harvard University’s Words of JusticeMarble in 2013 alongside St. Augustine and Magna Carta, describing the verse as one of thegreatest expressions for justice in history.

Reviewing one of Al-Shaybani’s main works on the subject in 1827, Joseph Freiherr von Hammer-Purgstall, a 18th/19th –century Austrian diplomat and pioneer orientalist, described him as the Hugo Grotius of the Muslims. In a more recent work, Christopher Weeramantry, a former judge and Vice President of the International Court of Justice (ICJ), identified Al-Shaybani as the author of the most detailed early treatise on international law, observing that al-Siyar was a precursor for the development of modern international law and that Hugo Grotius’ work on international law might have been influence by earlier Islamic scholarship, including the works of Al-Shaybani, on the subject.

This, unarguably, makes Al-Shaybani the “grandfather of international law.” He was a great 8th/9th-century Islamic law jurist and the most acclaimed contributor of his time to the systemization of the rules of international law from an Islamic legal perspective. His writings on the subject continue to influence Islamic legal thinking and scholarship on international law up to modern times. Also his juristic works continue to serve as primary jurisprudential authority of the Hanafi School and influence some important jurisprudential work of the Maliki School, two schools of law followed in a large part of the Muslim world today (see The Oxford Handbook of the History of International Law, edited by Bardo Fassbender, ‎Anne Peters – 2012). Therefore, it is no surprise that in recent years, ICJ judges have turned to Islamic law in their separate (concurring or dissenting) opinions.

Above all, Archbishop Williams’ remarks at the end of the lecture referred to a suggestion by a Jewish jurist that there might be room for “overlapping jurisdictions” in which”individuals might choose in certain limited areas whether to seek justice under one system or another.” He concludes his lecture with the comment: “if we are to think intelligently about the relations between Islam and British law, we need a fair amount of ‘deconstruction’ of crude oppositions and mythologies, whether of the nature of Shari’ah or the nature of the Enlighten

Obviously, the burden of deconstruction of crude oppositions and mythologies associated with Shari’ah in Yorubaland lie with the Muslim Ummah in the region through education and public enlightenments.

Engr. Dauda Olayinka Ayanda (MNSE), wrote from Ibadan.


Published online by Guardian Newspaper (June 19, 2015)

MORE importantly, a new perspective to the spread of Islam and the subsequent deepening of Shari’ah was the factor of “pre-destined Muslims” through Ifa divinity.

At the inaugural lecture of Prof. Oloyede AbdulRahman on July 26 2012in University of Ibadan, he established in his research the presence of strange corpus of Ifa called “Odu Imale” or “Otura Meji” in Yoruba mythology. Oba Abibu Olagunju was a classical example of this mythology that was born before 1817 to Lagunju/Oduniyi royal household of Ede in Osun State.

As it was the practice among the Yoruba in those days to consult the Ifa Oracle whenever a baby was born into a family, his parents consulted Ifa Oracle and what came out was “Otura Meji” which revealed that the child was a pre-destined Muslim who must grow up as a Muslim and who would not be a devotee of any idol worshipped by his parents and even other Yoruba gods.

Oba Abibu Olagunju, the first Muslim monarch of Ede, gave Shari‘ah official recognition in the second half of the 19thcentury. Oba Momodu Lamuye in Iwo was also a “pre-destined Muslim”that established Shari‘ah during his reign. Likewise, Oba Aliyu Oyewole of Ikirun was “pre-destined” and reported to have opened a Shari‘ah court in his own jurisdiction.

All these show that the spirit of Islamic thought have taken root in Yorubaland before the advent of colonialists. Although the presence of British colonialists in Yorubaland led to theabolition of Shari’ah in some places where they met it, the Muslims there did notrelinquish their religion as well as the Shari’ah.

Prof. Dawood Noibi briefly mentioned application of Shari’ah in Yorubaland in his book – Islamic Perspective: A Comprehensive Message – that in parts of pre-colonial Yorubaland, justice was dispensed according to Shari’ah. He further asserted that although the British contrived and abolished the Shari’ah in Yorubaland, Muslims in some parts of this area did call for the resuscitation of Shari’ah for the purpose of adjudication among Muslims. This explains the fact that clamors for Shari’ah is not only a Northern Agenda but a natural part of Islam.

In fact, the clamor for the official re-introduction of Shari’ah law in Yorubaland is not a new phenomenon. The first move in that direction was said to have been made in 1923 when the Lagos Muslim Community petitioned the colonial administrations for the creation of Shari’ah courts following the non-consideration of Islamic divorce rules by a colonial court.

The Ijebu-Ode and Oyo Muslim Communities were also said to have demanded the re-introduction of Shari’ah from the colonial masters in 1940 and 1944 respectively. It is obvious that Shari’ah evolved naturally in Yorubaland as a divine law according to which Almighty Allah wants a Muslim to live. It contains the injunctions of the divine will as applied to every situation in life.

Shari’ah is therefore the guide of human action and encompasses every facet of human life. By living according to Shari’ah, Muslims place their whole existence in God’s hand thus sanctifies the whole of life and gives a religious significance to what may appear as the most mundane of activities. Law in Islam is an integral aspect of the revelation and not an alien element. Therefore, it is a religious notion of law, one in which law is an integral aspect of religion.

Moreover, Shari’ah law given to Prophet Muhammad (SAW) through the Glorious Quran is an expanded version of Ten Commandments given to Prophet Moses (AS) through the Torah as a divine injunction from the Creator unto His creatures since both of them were sent by Supreme Majesty, Almighty Allah (SW) on the path of Islam.This probably explains why Jewish Rabbinic courts and Islamic Shari’ah courts exist alongside secular courts in Israel till date and are officially recognized by the justice system in everything regarding the personal status of Muslims. The judges of the Shari’ah courts are officially appointed by a joint ministerial-parliamentary committee and their salaries paid for by the state.

Ironically, the system began with an Act during British Mandate, under which all recognized religious groups were allowed to deal with matters such as marriage, divorce, inheritance and adoption in their own courts. After 1948, the system was continued but only in matters of personal status.

By law, the Shari’ah courts have exactly the same status as the Rabbinic courts. No wonder Lord Phillips of Worth Matravers suggested earlier in 2008 that aspects of Sharia should be adopted in Britain.
He said “It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by law other than English law.” Joseph Schacht, despite his prejudices against Islam, declared in his work – An Introduction to Islamic Law – that “Shari’ah is the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself.”

Similarly, contributory work of JND Anderson in the edited book – Islam in Africa – sees the Shari’ah as “explicit and assured in its enunciation of the quality of life which God requires of man and woman.”
Shari’ah suffered from “widespread misunderstanding” in Britain, Lord Phillips said. And so also in Nigeria which is as a result of transferred imperialists’ hatred. Part of the misconception about Shari’ah is the belief that Shari’ah is only about mandating sanctions such as flogging, stoning, the cutting off of hands or death for those fail to comply with the law,” Lord Phillips asserted.

And what most people think they know of Shari’ah is that it is repressive towards women and wedded to archaic and brutal physical punishments.
TO BE CONTINUED NEXT WEEK. Engr. Dauda Ayanda, wrote from Ibadan.


Published online by Guardian Newspaper (June 12, 2015)

On February 7 2008, Dr. Rowan Williams, the 104th Archbishop of Canterbury gave a lecture to the Temple Foundation at the Royal Courts of Justice (in United Kingdom) on the subject of “Civil and Religious Law in England: a religious perspective”.

He raised the question of conflicting loyalties which communities might have; cultural, religious and civic. He also argued that theology has a place in debates about the very nature of law as “supplementary jurisdictions” to that of the civil law noting that “the issues that arise around what level of public or legal recognition, if any, might be allowed to the legal provisions of a religious group, are not peculiar to Islam: while the law of the Church of England is the law of the land, its daily operation is in the hands of authorities to whom considerable independence is granted.”

Dr. Williams looks at some misconceptions about the nature and claims of Shari’ah, including the fact that even in predominantly Muslim states there is some recognition of the Muslim’s “dual identity, as citizen, and as believer within the community of the faithful”. “Shari’ah is not intrinsically to do with any demand for Muslim dominance over non-Muslims. Many Muslim jurists recognize a degree of political plurality as consistent with Muslim integrity.

There is a recognition that our social identities are not constituted by one exclusive set of relations or mode of belonging” – either purely secular or purely religious. The danger arises not only when there is an assumption on the religious side that membership of the community (belonging to the ummah or the Church or whatever) is the only significant category, so that participation in other kinds of socio-political arrangement is a kind of betrayal. It also occurs when secular government assumes a monopoly in terms of defining public and political identity.” The archbishop’s remarks were critically interpreted as proposing a parallel jurisdiction to the civil law for Muslims’ Shari’ah and were the subject of demands for his resignation.

In response, Williams stated in a BBC interview that “certain provision(s) of Shari’ah are already recognized in our society and under our law….”Williams’s position received more support from the legal community, following a speech given on 4th July 2008 by Lord Phillips, the Lord Chief Justice of England and Wales.
He supported the idea that Shari’ah could be reasonably employed as a basis for “mediation or other forms of alternative dispute resolution”.

He went further to defend the position Williams had taken earlier in the year, explaining that “It was not very radical to advocate embracing Shari’ah law in the context of family disputes, for example, and our system already goes a long way towards accommodating the archbishop’s suggestion.”; and that “It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law.”

The import of this article is not about the personality of Rowan Williams as a notable clergyman or about the position of Lord Phillips as an eminent jurist; it is about the institution which both of them represents – member of former British Empire.

Both remarks expressed sharp paradigm shift in history within the last one century about the role the British colonialists played in abolishing Shari’ah practice in Yorubaland through indirect rule in 1914 and the subsequent adoption of aspect of Shari’ah in 2014 under guidelines for solicitors by The Law Society.
The spread of Islam to Yorubaland was accompanied by the institution of Shari’ah(the Islamic law), and Muslims in the area applied it, alongside the Customary Law during the pre-colonial period before its abolition by the colonial government.

British colonialists, during the colonial era, used their authority to replace Shari’ah with Common Law through Indirect Rule. It identified that Shari’ah issue is contentious because of general misunderstanding and misconceptions of its origin, tenets and practices. Shari’ahen compasses all spheres of human life. It is not confined to legal matters.

It is the conglomeration of politics, economy, administration, education, socialization, religion, etc. In fact, it is all embracing. The practice of the Shari’ah therefore means the practice of Islam and vice-verse. The two may, therefore, be regarded as synonymous in this context. The Shari’ah could be seen from the perspective of general and legal matters. Certain precepts of the Shari’ah carry the force of law while others do not.
Those precepts which carry the force of law are regarded as legal matters or precepts while others are general matters of the Shari’ah. Islam came to Oyo Empire during the reign of Mansa Musa in Mali and the subsequent proselytization of Yorubas to Muslims.

According to eminent historian, Prof. Akinjogbin in -The Expansion of Oyo and the Rise of Dahomey 1600-1800- Islam had come to the ancient Yoruba Kingdom of Oyo by the 14th century through trans-Saharan trade. Prof. Ogunbiyi asserted in – The Search For A Yoruba Orthography Since The 1840s: Obstacles To The Choice Of The Arabic Script- that the origin of the word ‘Yoruba’ has been traced to Arabic writers such as Ahmad Baba (1627 in his “mi’raj al-su’ud”) and Muhammed Bello (1837 in his “infaq al-maysur”) both of whom were reported among the earliest to name the people in Oyo as ‘yariba’, ‘yaruba’, ‘yarba’ at a time when they were still referring to themselves by their diverse ethnic identities.
The first mosque was built in Oyo-Ile in 1550. Islam was established in Iwo in 1655, spread to Iseyin in 1760, Saki in 1790, and Oshogbo in 1889 while Ibadan, Abeokuta, Ijebu-Ode, Ikirun and Ede knew about Islam before Fulani Jihad. Islam came to Lagos in 18th century while the first mosque was built in 1774 as widely discussed in – The Growth of Islam among the Yoruba, 1841 – 1908. London: Longman Group Ltd., 1978by T.G.O.Gbadamosi.

TO BE CONTINUED NEXT WEEK Engr. Dauda Ayanda (MNSE), wrote from Ibadan.