SHARIA AS A COUNTER-MODEL TO DEMOCRACY

SHARIA AS A COUNTER-MODEL TO DEMOCRACY

 

 

»Nigeriais the freest country in the world. You can get away with anything.«

 

Divine versus Human Law

 

Most Sharia supporters had hoped for a religious renewal that would liberate society from decades of moral and economic decay. But the Islamic upper class, now acting as the pioneer of a divine order, was no more concerned with the fate of its impoverished fellow believers than it had been before.Kano, the metropolis of the North, had a longstanding reputation as the ›capital of vices‹. The rich had made it their habit to fly toLondonto go shopping while at home, before local audiences, they ranted about the decadence of the West. According to a former minister who had moved in these circles for a long time, there was no reason to take their pious assertions seriously: »Every one of these Sharia politicians is an adulterer. Why should these people fight to stone adulterers?«

The rich have always seen it as their privilege to defy the laws of the land.[1] Only the poor and weak have to endure harassment and humiliation by police officers and government employees, while those who arrive in luxury limousines, with bodyguards or police escorts, cannot be intimidated by anyone. Their wealth buys them the freedom to do what they like, without regard for the rules that apply to others. Nor were these people impressed by the new God-given laws. They saw to it that a cow thief had his right hand amputated, and they dragged some women into court to have them sentenced for adultery. But otherwise they assumed that they were safe from Sharia vigilantes behind the walls of their mansions or palaces. Everything they needed for their entertainment continued to be available, in private clubs and guest houses, in officers’ messes and on the campuses of local universities. Students at Zamfara’s polytechnic complained that wealthy men drove to the female students’ dormitories and picked girls for their »one night shows«: »no male student in this polytechnic can keep a girl friend. Sharia monitors are everywhere. We can’t take a girl out of this campus. We will be caught. When car owners come here from Sokoto and Gusau to pick girls, the Sharia monitors often look the other way.«[2]

The majority of believers had no illusions about the debauchery of the ruling class. Preachers in mosques openly stated that Sharia only targeted the poor. Since the divine law was applied half-heartedly at best, disenchantment with the state-decreed Islamization grew. Governor Sani had promised his voters that the »spiritual upliftment« which leads to God, would also lead to »prosperity.«[3] Yet the state-imposed fight against immorality, against adulteresses and petty thieves, did nothing to change the fact that people continued getting poorer. This is not to say that the endeavor to Islamize state and society will flag. The Sharia campaign of corrupt politicians may be discredited, but not the idea of Sharia itself. Rather, the conviction was spreading among the faithful that in order to achieve peace and justice, the holy law had to be enforced against the hypocrisy of governors and emirs.

For radical Muslims, the attraction of Sharia lay in the fact that it authorized them to take the rulers to task. A university lecturer in Maiduguricanvassed for the new legislation with the argument: »Sharia is the rope with which these politicians will be hanged. The people will lynch them. All the big men who now recite godly phrases are the ones who have plunged this country into misery through their greed.« The great majority of the faithful lacks this kind of revolutionary fervor. But many do hope that Sharia will help keeping the excesses of the rulers within tolerable bounds. The immutable law of God shall be the yardstick by which even the powerful must be judged. Thus the arrogant elite would be integrated into a moral community, in which rulers and ruled are united by a shared culture, as they had been in the mythical beginnings of Islam. A first step toward this goal is to find a common language by using the moral categories and imagery of the Koran. Thus they could initiate a process of communication between the social milieus which are otherwise drifting apart. So far, the ruling classes – shielded in their fortresses, behind concrete walls and barbed wire – have refused to assume responsibility for the plight of their subjects. The billion dollar profits from oil sales made it easy to isolate themselves from their country’s fate. They could afford to let the economy and infrastructure deteriorate, because the oil rents continued to flow despite the general decline, guaranteeing them a life of luxury.[4]

Since Nigerians never found ways to control their ruling class, they could only hope that politicians would submit at least to the authority of God. The idea of a theocracy was regarded as an alternative to democracy; it derived its attraction from the experience that Western concepts of development had led to a dead end. For many decades Nigerians had striven to modernize themselves following European models, and the result was a disaster. Even under the new democratic system which Western experts had praised as the way out of the crisis, the social and economic decay continued. Foreign companies withdrew from the country, as it was apparent that Nigeriawas heading toward more violence.[5] During the election campaign in 1999, Obasanjo had promised that the transition to democracy would improve people’s living conditions. Yet the promised ›dividend of democracy‹ did not reach the vast majority of Nigerians. What they needed most: work for the millions, who could not find employment in the de-industrialized cities and on the eroded, overpopulated land, was beyond the competency of a democratic government.[6]

The new democratic institutions did not even succeed in taming the highhandedness of government authorities. Just as in the times of military rule, some state governors left teachers and other civil servants for months without pay, and the citizens were unable to hold these governors accountable. The complicated web of democratic rules, with its separation of powers and reciprocal checks and balances, did not prevent politicians from looting public funds. It looked as if democratic institutions were open to all kinds of manipulations. The National Assembly, for example, made headlines because its members debated about their furniture allowances, the number of official cars and the president’s private jet.[7] Or they discussed how to change the electoral laws to their advantage; and whatever they agreed upon was declared the law of the land. Against this farce, orthodox Muslims insisted that politicians were not allowed to pass this or that law at their discretion. God as the sovereign had provided his people with a canon of basic laws which was beyond the politicians’ scheming. Sharia reformers claimed that these divine instructions were clear and unequivocal, and that they regulated all social relations. If applied consistently, they would set all the things right that have gotten out of balance.

In conversations with Europeans, Muslims emphasized that Sharia was not just about mutilations and other cruel punishments. Much more important, so they suggested, was the fact that it completely reshaped people’s everyday existence. It specified how the faithful should act in any situation of public and private life: »[Sharia] is not just about crime and punishment. This constitutes only about 10 per cent of the Sharia. Our way of life, that is, from the day you were born to the day you enter the grave is governed by Sharia. How you eat, walk, talk, […] everything.«[8] This may be a depressing prospect for Europeans, but for many Nigerians it evoked the dream of a world which is no longer torn by strife, because everyone has found her place in an all-encompassing order. The only means to end the ruthless fight of everybody against everybody else is religious submission, the collective renunciation of sovereignty by all members of society. This submission does not necessarily mean a humiliation of the individual; after all, it turns all people into servants of God. Since society has proven incapable of balancing conflicting interests, it needs a law which is superimposed by an external force. Peace and harmony can only arise, if everyone does what has been prescribed since ancient times.

In this respect, the Islamic utopia presents itself once again as an alternative to the Western liberal concept of state. The fact that democracy does not instruct people on how to live, but encourages them to follow their own autonomous will is viewed as a deficiency. Instead of creating harmony, the game of democracy spurs strife and competition. Citizens are urged to pursue their selfish interests, instead of being reminded of their responsibility for each other. For many believers, this unleashed individualism is the inevitable result of a secular mindset that has eliminated religion from public life. By returning to the divine commandments, they want to limit that »excessive freedom« which benefits, above all, the rich and unscrupulous.[9]

Unlike Christianity, Islam offers its followers the model of a divinely sanctioned way of life. Each institution, each social obligation or transaction is to be measured against the standards of the faith,[10] and these standards are set in stone: »Islam […] is universal. It is the same all over the world. And it has never changed from the beginning and will not change till the end.«[11] Sharia reformers are not traditionalists who juxtapose local Islamic customs to the corruption of the modern world. Indigenous forms of Islamic piety are not suitable as a source of religious renaissance, because they are always mixed with ›pagan‹ rites. If Muslims simply wanted to reclaim their precolonial past, they could debate openly and decide democratically which elements of tradition they want to adopt. For instance, believers who do not attach great importance to the Sharia injunctions could instead focus on the Sufi mysticism of the old, but still popular brotherhoods. However, mystic traditions, which were inspired by Christian and Far Eastern religions and which became established in Islam as late as the eleventh century, were never entirely cleared of the suspicion of heresy. Sharia reformers who wish to transform their society according to the »model of the prophetic state«,[12] accept nothing but the holy texts (and their orthodox exegesis) as their guideline. Professor Sada, Director of the Institute for Islamic Legal Studies, which was commissioned to draft a uniform Sharia penal code, stressed the exclusive validity of the divine revelation. When asked whether his team of jurists would also draw on the penal codes of Egypt and Pakistan, where Sharia has been combined with elements of Western law, he explained that they would adhere exclusively to the »classical books of law.«[13] The only chance to avoid endless strife seems to rest in strict orthodoxy. Islamic scholars have to refer to something that is eternally valid, to a revelation that emanates directly from God so that it precedes all historical controversies among Muslims.[14] To the believer’s mind, the divine instructions exist as unquestionable truths, beyond all personal opinions and interpretations. Advocates of Sharia who defended the rigorous punishments for adultery or blasphemy, sometimes told me that they merely adhered to what had been decreed: »It’s not my personal view. It’s not that I want to impose my view on others. We talk about a divine law.«[15]

From the perspective of Western Enlightenment, it is anachronistic that the laws by which people have to abide should not be based on their own free will. When Muslims claim to submit to God’s law, they seem to succumb to a kind of self-mystification, as they ignore that Sharia, like any other written law, had been compiled by jurists. Long after the holy texts were recorded, Muslim scholars combined individual passages in such a way that they coalesced into a comprehensive system: »instead of taking Shari’a for what it is – a particular methodology for constructing a coherent system out of human understanding of divine sources in specific historical context – Muslims tend to completely identify that system with its sources. It is imperative to overcome this mistaken identification of Shari’a with Islam as a religion in order to realize the possibility of constructing an alternative system out of human understandings of Islamic sources in modern context.«[16] Nigeria’s Muslims, however, have little interest in demystifying divine law in the vein of Western Bible philology. The refusal to identify Sharia as a human creation is hard to comprehend for Europeans who are used to subjecting holy texts to a historic-critical analysis. Yet the recourse to a self-contained system of immutable laws is not as irrational as Western critics suggest. Seen as a direct expression of divine will, Sharia has the advantage of being exempt from human strife and manipulation. Human authority is not to be trusted. No legitimate law can emerge from the disputes of senators and congressmen who fight each other over money and political influence. The power to pass laws should be taken from humans and placed into God’s hand: »government […] laws are subject to changes, Islamic Laws are constant and not flexible to the wishes of the people.«[17] While human players, who pursue their particular interests, use the instruments of the state to prevail against their competitors, God knows no enemies against whom he would have to defend himself. He does not need to take sides, but has everyone’s welfare at heart: »Shari’a has come from God and is, therefore, not a product of selfish human interest, whether class, sectional or individual.«[18]

In times when institutions crumble, sacred texts that promise orientation become precious.[19] The faithful do not have to engage in political debates to find rules on which a just order can be built. Such rules were given long ago; they just need to be acknowledged and applied diligently. As in the early days of Islam, God’s revelation can turn into a social force that transforms the world: »Soon after the founding of the faith, Muslims succeeded in building a new form of society, which in time carried with it its own distinctive institutions, its art and literature, its science and scholarship, its political and social forms, as well as its cult and creed, all bearing an unmistakable Islamic impress.«[20] However, Sharia can only prove its ability to transform the ruling structures, if it is not subject to the manipulations of politicians. As long as certain interest groups arbitrarily determine which rules shall and shall not apply, they abuse the divine law for profane purposes. In this case, sovereignty is not with God, but with those who choose among the divine rules what suits their interests. The danger of abuse can only be averted by insisting on a »total« and »uncompromising« application of Sharia.[21] For that reason, religious orthodoxy is attractive not only for legal scholars, but also for the mass of believers. In their effort to limit the lawlessness of the ruling class, it becomes important to defend pure Sharia against all attempts to adulterate it: »Shari’a […] is a revealed law from the Almighty God and nobody can reduce it to suit his own whims.«[22]

 

The Failure of Democracy

 

»If God does not punishNigeriain future, then He (God) certainly owes

 the people of Sodomand Gomorrahan apology.«[23]

 

During the transition to democracy, citizens hoped, above all, that their economic well-being would improve. A democratically renewed Nigeria, they had been told, would attract foreign donors and investors. But international corporations, which had shut down their branches during military rule, dared not risk investing in Lagosor Kanoa second time. Why should they build new production plants when the existing ones only ran at half capacity?[24] Apart from crude oil, Nigeria offered nothing of interest to large corporations. During his state visits abroad, President Obasanjo solicited direct investments, and his administration indeed created more favorable conditions for investors. Exchange restrictions were lifted, some import tariffs were lowered, and the government’s monopoly on telecommunication and on the energy sector was eased. In other respects, however, Nigeria’s Fourth Republic confirmed the experiences of other African states that a democratic regime can be as dysfunctional for economic development as an authoritarian one.[25] Managers of German companies reported that it had become more expensive to obtain government contracts or to get spare parts through the customs, because the circle of politicians and civil servants who demanded bribes had grown: »When dealing with military officers, the rules were straightforward. […] Today all kinds of local politicians interfere: people who are completely out of control.«

The failure to curb corruption was often blamed on the president’s weakness. Personal shortcomings, however, are not the source of the current crisis; the deciding factor is the failure of the democratic system and its representatives. Nigeria’s elites make a living by plundering public resources. Each attempt to establish the rule of the law is a direct attack on their existence. Alongside this class of government profiteers, there has never evolved a stratum of independent businessmen with an interest in a transparent public administration. And there are few other interest groups that would support a reform of the state bureaucracy. The president met central demands of the trade unions, when he drastically raised the salaries of civil servants. This was a prerequisite for any attempt to create a more efficient and less corrupt administration. By the end of the Abacha regime, police officers were earning less than 10 dollars a month, and the basic monthly salary for teachers had been less than 20 dollars. Two years later, incomes had increased almost tenfold. But when Obasanjo set out to privatize the ailing state enterprises and to streamline the inflated state bureaucracy, the Nigerian Labour Congress stood up against the government.[26]

It is unlikely that the fight against corruption would have yielded better results with a new generation of politicians and a reformed, more federal constitution. Muslim critics had good reason to question the whole ›democratic‹ system and look for alternatives. They were understandably bitter about the arrogance of Western critics who did not acknowledge any other ideas of law and morality apart from their own. Western governments and aid organizations tried to push Nigeria, by financial incentives and political pressure, to copy European models of development, as if the standard formula of human rights, multi-party elections and free market economy were suited for all societies: »It was readily assumed that where states evidently did not ›work‹, this was because they had failed to adopt the formula that had worked so well elsewhere.«[27]

For Muslims who fought the secular political order, there was no fundamental difference between the current civilian regime and its military predecessors: »Successive governments have failed the nation because the rulers have continued to wield power without the fear of God.«[28] Nigeria’s politicians could not be held accountable, not even by democratic institutions, so there was nothing but the hope that God’s authority would force them to assume responsibility for the people. The holy law, which is above political factionalism, is concerned with the well-being of all, while democracy, as a system of human self-determination, elevates self-interest to the status of a guiding principle. Democracy does not prescribe how a just order should evolve; it merely provides a set of formal rules which shall organize the competition for power. Yet Nigeria’s politicians do not adhere to the rules, and there is no demos that could force them to. Citizens do not articulate common interests, but line up behind ethnic and religious leaders. Given these deep divisions of ›civil society‹, politicians do not have to bow to any public interest or to the will of the people. They can decide among themselves, in a game of intrigues and shifting alliances, on how positions are shared: »Democracy in Nigeria is still very much about the struggle among the competing elite over who gets what.«[29] Soon after the transition to democracy, it was obvious that the newly created democratic institutions were as corrupt as other parts of the state apparatus. In both chambers of the National Assembly, members knew that they could disrupt government business, and they had no qualms using this power to extort money: »Pushing reforms through Nigeria’s parliament is like trying to roll a meatball through a cage of hyenas.«[30] It is said that even in the case of the anti-corruption law, the delegates had to be bribed before they passed the bill.[31] Incidentally, the law showed little effect, because parliament watered it down two years later, against the president’s veto.[32]

Personal greed alone does not explain why so many representatives of the people line their pockets. They have financial obligations, not only toward their own clients, but toward the powerful ›godfathers‹ who sponsored their careers. For a seat in parliament or a governor’s office, the contenders had to invest a lot. The decision on who got which mandate or post was usually made in negotiations within the ruling party. The PDP convention, which nominated the presidential candidate, was reminiscent of a bazaar, with thousands of delegates offering their votes for sale. The primaries for the Senate and the House of Representatives left a similar impression: »It was cash-and-carry, and victory went to the highest bidder.«[33] Thus public offices turned into a benefice which had to pay off. As a local party leader explained: »Those who are in politics to make money […] must win elections by all means.«[34] The party official then added that he had had to take two of his private cars to a money lender in order to finance his election campaign. Often enough it was not their own possessions that candidates invested. Becoming a senator or governor was so expensive that aspirants turned to local power brokers, asking them to support their election. In return they promised their sponsors to supply them with government contracts or to make monthly payments to them from the state account. The Governor of Anambra spoke openly about a written contract in which he had granted one of his sponsors the right to appoint two commissioners in the future cabinet, one for finance, the other for public works.[35]

It will hardly be possible to stop the trafficking of public offices. The rich and powerful cannot be kept from investing in politics, because there are few other investment opportunities. Oil rents are the main source of wealth, and the most direct access to it leads through public offices. A newspaper report covering the 2003 election campaign in Southeast Nigeriastated that »almost every rich man in Igboland is involved in politics.«[36] The permeation of state power and economic power explains why the players fight so bitterly to oust each other from public offices: »power is overpriced in Nigeria so that the contest for it becomes a matter of life and death.«[37] There is simply too much at stake. A businessman who loses political influence must fear economic ruin as well. This is why it looks too risky, even under democratic institutions, to allow one’s rivals to take over state power. »people […] think that they can only make a living being in government and that if they are not in government, that government must not survive.«[38]

While Senators and Congressmen in remote Abujacan easily evade public control, one should expect democratic control mechanisms to work better at the local level. The federal provisions of the constitution, which transfer substantial powers to the state parliaments and local government councils, bring state decisions closer to the people. Observers, however, have the impression that corruption is just as prevalent here as it is at the federal level.[39] Take the example of Orji Kalu, the governor of Abia, who claimed that he was richer than the entire state he ruled.[40] According to a report by the Economic and Financial Crimes Commission, Kalu embezzled one-third of all the money that flowed from the federation account into the state coffers.[41] Yet he blamed the poverty of his people on the Yoruba president who spurned the rights of the »Igbo race.«[42] Kalu’s chauvinistic rhetoric made him a »folk hero«, particularly for the younger generation.[43] Thus he immunized himself against attacks from the capital. Federal authorities could not risk suing him for embezzlement of public funds. What happened in Abia was viewed as the internal affair of the Igbo, and the intervention by a Yoruba president would not be welcome. Yet Obasanjo had a further reason not to take on Orji Kalu and other PDP governors. He needed their support in order to prevail against his challenger Buhari in the 2003 presidential election. Elections are rigged and won at the local level. Only those who can win over the most powerful and unscrupulous elements in as many states as possible, will prevail in a democratic contest.

Democracy seems to be just another way of incapacitating people. But the people are not merely cheated of their rights; they participate actively in destroying democratic institutions. Instead of forcing their leaders to comply with the laws, they encourage them to appropriate as much public money as possible. A minister or senator who comes home empty-handed is regarded as a loser, or worse: He will be suspected of feigning righteousness in order to dodge sharing his booty with his relatives. Since almost everyone tries to profit from corruption and nepotism, it is difficult to find a common platform from which the crimes of the ruling class could be criticized.[44] Ordinary citizens expressed outrage at Sani Abacha who embezzled billions of dollars for himself and his followers, but the general was simply doing on a large scale what almost every Igbo or Yoruba expected of their own leaders:

»we, the ordinary people, will expect the man at the top to be corrupt and if the man is not corrupt, we say that the man has no senses. […] if I’m standing for re-election [as governor – J.H.] and I come to you, you will expect me to give you money. From where do you think I’ll get that money? […] if you watch the society from top to ground floor every segment is corrupt! Every Nigerian who is a small man will tell you those at the top are corrupt. Put him in a position, any small position you will find him corrupt! […] if you are in a position to take N[aira] 1 000, you will take! If you put him in a position to take a million, he will take.«[45]

Even in the villages and local government areas, people do not succeed in using the institutions of democracy to hold the ruling class accountable. The inability to organize themselves independently of their own corrupt leaders is closely linked to the predominant mode of social relations, namely clientelism. The poor, though they are numerically dominant, do not form a class which would pursue collective interests. They are not common victims of an aristocracy that would extract tribute, nor are they, but for a few exceptions, factory workers who might fight collectively against exploitation. The vast majority, who work as hoe cultivators or who seek odd jobs in the informal sector, eke out a living on their own. Without the support of relatives or other benefactors, who have become rich through government jobs or drug trafficking, many would not be able to maintain their livelihood. The villas of the rich are beleaguered by supplicants who beg for jobs, small benefits, or protection from enemies. Despite the resentment of the arrogant rich, it would be disastrous to stand up against those one needs. The poor do not demand collective rights but display servility and ask for individual favors. In competition with all the other poor, they make every effort to find influential sponsors who tie them to a network of patronage that provides a little security. For everyone knows that in a situation of distress, the solidarity of the poor will be less helpful than the generosity of the rich. The predominance of personal dependencies is one of the main reasons why no democratic culture has evolved: »horizontal networks of (more or less egalitarian) civic engagement and social exchange are largely absent or superficial, and social life is organized vertically into pyramids of patron-client relations, with material rewards flowing from the top down and support from the bottom up.«[46]

There is not much chance that the poor and disenfranchised among the Igbo, Hausa and Kanuri will unite to stop their elites from looting public funds. Realism dictates to fight for one’s immediate interests and to support one’s leaders, because a part of their stolen wealth will trickle down to the poor who gather loyally around them. Since all have to secure a share of the loot, they do not pay much attention to the moral qualities of their leaders. Ibrahim Babangida, the former president, referred to himself as an »evil genius.«[47] And the Igbo leader Ojukwu professed: »In politics, if you are feared, you will get everything.«[48] Right and wrong, good and evil have been hopelessly muddled, so the pious wrath of the Muslims is understandable. Sharia supporters are not the only people who are disgusted with the »collapse of moral values«,[49] their Christian opponents also lament that society is »traumatized and sick.« [50] A just political order cannot evolve from a brutalized society. Both Christians and Muslims agree that a moral renewal must emerge from an external source, which is not contaminated by the general social decay. Only divine revelation, which exists independently of the corrupt present, has retained the idea of a better life. To pursue this idea, people have to disentangle themselves from a morally bankrupt world. Christians convey this demand for a break with a sinful life often as radically as Muslims, though in a different language: »every Nigerian right now is dangling on the edge of the valley of evil.« »we are the problem ourselves. The problem […] is ingrained in us, and to resolve it will require a complete crushing […] of our personality.«[51]

Politically active Christians may denounce the depravity of the ruling class with the radical zeal of Old Testament prophets, but they cannot offer a way out of the crisis apart from appealing to the integrity of every individual who must be willing to start a new life by being born again.[52] Unlike Muslims, Christians do not have a political vision with which to confront the present system. They lack a common goal that could inspire and motivate believers; this could be one of the reasons why they are losing ground to their Islamic rivals. In their disputes with Muslims, Christian churches find themselves in the thankless role of defending the irreligious political order. The Head of the Catholic Bishop’s Conference argued for a strict separation of state and church: »When you are in a position of trust, forget about your religion because it is a private affair between you and your God. If you want to bring religion in, let it be after office hours.«[53] The churches fight for the existing secular institutions and thus for a European system of state order which is in decline. Only in a few cases do church leaders speak out against Western models: »›democracy‹ has failed. […] I am not talking about just Nigeria, but the whole world. It has to fail because it is not God’s arrangement. […] democracy is the devil’s alternative to God’s kingdom.«[54] The kingdom of the Christian God, however, is not from this world, and Christian critics of democracy cannot develop an alternative that would be based on the message of Jesus.

Islam not only articulates the discontent about the economic and moral decline, it also promises to renew the political system. It provides the only political vision that can transform individual despair into a collective force and direct it toward a common goal. Thus it is unlikely that the faithful will turn away from Islam’s political promises. Where else should they find a way out of their plight? Many Muslims who supported left-leaning populist parties, like the Northern Elements Progressive Union and the People’s Redemption Party, are drawn to Sharia today.[55] The camp of the ›progressives‹ has discredited itself, at the latest under the rule of Sani Abacha. Shortly after the annulled elections in 1993, when the General staged a coup, some prominent Third-World-Marxists and human rights activists joined his cabinet to serve the military regime: »Abacha had used them to stabilise his government and has now thrown them into the dustbin of history.«[56] Today, socialist ideas play hardly a role in public debates. And what left-wing academics proposed to challenge the Obasanjo administration seemed strangely out of touch with reality: »We could have nationalized foreign-owned companies, stopped the exports of agricultural products, and put an end to the imports of manufactured goods from Europe and America.«[57] Not a word about foreign companies that were Africanized as early as the 1970s, when the government took over the majority stake of Shell, Peugeot and other corporations. Today the problem at hand is rather one of privatizing state-owned companies that have never been profitable. For the Ajaokuta steel plant, which frittered away almost five billion dollars without producing a single ton of steel, it was difficult to find a buyer willing to invest.[58] The idea to stop food exports is equally absurd, sinceNigeria has long since become a net importer of food.

A New Era of Justice

Islam, unlike Christianity, presents itself as a religion of law and order. Pilgrims returning fromSaudi Arabiareport that thanks to the draconian punishments the cities are completely safe. Public executions and lashings act as a deterrent and are thus an attractive aspect of Islamic law. Another advantage of Sharia, according to its proponents, is its clarity. Right and wrong are well-defined, comprehensible to all believers regardless of their level of education. While Sharia emphasizes the material aspect of the law, its European counterpart attaches much importance to complicated rules of litigation. The priority of procedural rationality shall give protection against arbitrary decisions, but secular courts inNigeria, based on English Common Law, do not work predictably. Court cases often drag on for years, only to end in arbitrary judgments because the crucial agreements are made behind the scenes. Even within the courtrooms it remains obscure to the uninitiated observer, how the truth is established. Dismissing an action or ruling in favor of the accused, despite strong evidence, already undermined the reputation of the colonial jurisdiction. People were stunned when defendants were released, only because the judges had to observe rules that are often referred to, in Nigerian parlance, as ›technicalities‹ or ›legal niceties.‹

Another feature of the European legal system that does not make sense to most Nigerians, is the separation of judicial and executive powers. It is meant to safeguard citizens against infringements by the authorities. In Nigeria, however, the two branches of the state apparatus do not control, but obstruct each other. Police officers often refuse to hand over suspects to the courts, because they do not trust the judges. Again and again they had to watch how criminal proceedings were closed upon payment of ›bail‹, i.e. bribes. Or they noticed that trials were not held because prosecutors had ›misplaced‹ the files. Police officers are therefore tempted to pre-empt court officials and extort bribes themselves. In order to supplement their modest salaries, they arrest citizens, often under some pretext, and keep them like hostages, until they are ›bailed out.‹ Another way of dealing with real or alleged criminals is to execute them without a trial: »Robbers kill innocent people. What is wrong with police killing them? It saves ou[r] time.«[59] According to a report by a government commission, illegal executions took place in all parts of the country.[60] Years ago, 400 bodies were discovered near a hospital in Lagos, apparently brought there from police cells.[61]

Police officers routinely explain that those executed were armed robbers – which is probably true in most cases. But it is no secret that normally police and criminals work closely together: »out of ten robberies in Lagos, seven are believed to be carried out either by soldiers and policemen or their relations living in the barracks.«[62] State power often appears like an evil, uncontrollable force. It is strange, therefore, that Nigerians continue to resort to the police to solve their disputes.[63] Why do they file charges and pursue lawsuits? Of course they cannot expect justice from either the police or the court system. Their aim is rather to turn the avarice and viciousness of the authorities against their enemies. Clients who want an adversary arrested, contact some police officers and, if a price is agreed, leave the victim’s name and address. That person will then be detained, often on flimsy charges, until some relatives are notified, and ransom is paid. The game of having people arrested and bailed out is unpredictable, though. Thousands of detainees were not released but incarcerated for years without trial. According to a government commission which visited the overcrowded prisons, two-thirds of the inmates were never legally convicted. Some inmates sat in their cells for ten years without ever seeing a judge.[64] If they were brought to trial, they could not expect justice either. Money comes into play in many trials, and if the sums are substantial, judges may pronounce prison sentences against defendants who are obviously innocent.[65] Justice for sale favors the well-to-do. They can have their opponents put in prison over land disputes or personal feuds.

Since European forms of jurisdiction do not effect justice, it is not hard to dismiss them. Vigilantes such as the Bakassi Boys, who fought criminals far more effectively than the police, did not maintain the façade of proper legal proceedings. They investigated the truth in their interrogation cells, without public trials. Together with the rules of due process, they dismissed the principle that executive and judicial powers should be separated. Vigilante members who arrested and interrogated suspects also sentenced and executed them. In AnambraStatealone, in the heart of Christian Nigeria, the Bakassi Boys are said to have killed more than 2000 citizens between April 2000 and January 2002.[66] In the marketplace of Onitsha (which I visited several times) public executions could be witnessed almost every week, staged more cruelly than the hudud punishments of Islamic law. The Bakassi fighters threw their tied victims to the ground and hacked at them with their dull machetes for minutes on end, poured gasoline over their mutilated bodies and lit them on fire while some of them were still alive. Among the people who pushed and shoved to watch the gruesome scenes, I could not find anyone who expressed irritation or disgust. Even the governor, who supported the vigilante group with tax money, did not distance himself from the appalling executions: Critics had no right to condemn the Bakassi methods as long as they could not offer convincing alternatives. »You don’t need to bother about what the human rights people, civil rights people and the lawyers say. [W]hen we were crying that armed robbers were killing us, innocent people, nobody did anything. […] If you catch a confirmed armed robber and you kill him and the human rights [!] are shouting, is it fair?«[67] Western ideas of law are so thoroughly discredited that the majority of citizens view them as an obstacle in their quest for justice.

The Igbo, who more than other Nigerians appreciate Western ways of life, find it difficult to openly break with ›modern‹ ideas of law. No Igbo politician of repute has suggested a revival of precolonial traditions of jurisdiction. Although most push for severe punishments for robbers, they fear that the spread of »jungle justice«[68] will lead into a world of archaic violence. Islam, in contrast, makes it easy for citizens in the North to advocate torturous punishments. It offers a respectable, internationally recognized discourse which its followers can use to express their resentment of the Western human rights culture. Insisting on the controversial hudud punishments thus had a highly symbolic meaning. It demonstrated that Muslims proudly turned their back on self-professed moral experts in the West who, with an almost colonial sense of mission, denounce other views of justice as barbaric. When the government of Zamfara proclaimed an uncensored form of Sharia, the occasion was celebrated as a joyous act of state. Governor Sani had previously received delegates from Saudi Arabia and Sudan who had assured him of their support in implementing the Sharia.[69] When the first amputation took place on 22 March 2000, the picture of the amputee with his mutilated and bandaged arm was offered for sale at all big markets. In the congress hall of Gusau, the amputation could be watched as a video clip, and the state’s chief judge was so moved while watching it that he had tears in his eyes.[70] It is bewildering for Europeans that state-authorized torture is not only tolerated, but publicly staged and sanctified. They tend to forget that the »shame of punishing«[71] is a late achievement of European history. Even after the Enlightenment, the »desire for cruelty« was still so natural »that princely weddings or festivals on a grand scale were unimaginable without executions, torture or an auto-da-fé.«[72]

In a country that is plagued by violence it sounded appealing when the administration of Zamfara promised its citizens »instant justice.«[73] Litigants who turned to a Sharia court were often heard on the same day and received their judgment immediately after the trial. Since no importance was attached to written documents and time-consuming application procedures, the parties involved could present their cases themselves, without costly attorneys. The advantages of this instant justice were so obvious that even Christians were inclined to make use of it. Some Igbo merchants dragged their Muslim debtors to Sharia courts, because that was the easiest way to collect their debts.[74] Even Nigeria’s Justice Minister, who rejected the Sharia laws as unconstitutional, admitted that they offered an effective dispensation of justice: »if a man owes you money, you can get paid in the evening. Whereas in the regular courts, you can sit in court for ten years and get no justice.«[75] In principle, Sharia courts are bound to the same laws of procedure as the secular courts, because the procedural laws fall into the legislative competence of the federation, not the states. But Islamic judges often ignore them as they do not fit into the Sharia system.[76] In order to rid themselves of the burden of foreign law concepts, Muslims plead for a pure and simple form of Sharia which is sometimes imagined as a continuation of African traditions: »We have to go back to the roots where elders sit down under the tree and settle disputes and throw away technical rules of the whiteman sense of judgement. It is an entirely different system from ours.«[77]

Sharia judges, who used to handle only matters of personal law and who are now assigned to criminal cases, have not been trained in Nigerian procedural law. In order to become judges they did not have to complete a law course or take exams; the requirement for their employment was merely to be competent in Islamic law.[78] This is another reason why many refuse to adhere to formalities which are foreign to Islamic tradition. Sharia does not know many of the distinctions which European law applies to evaluate the intention of a perpetrator and the extent of his guilt: »The concepts of guilt and criminal responsibility are little developed, that of mitigating circumstances does not exist; any theory of attempt, of complicity, of concurrence is lacking.«[79] From a European point of view, the law of evidence is particularly problematic. In criminal trials, only two sorts of evidence are admitted: the testimony of at least two eyewitnesses or the perpetrator’s confession. Only the Maliki school permits judgments based on circumstantial evidence, but just for two closely defined offenses: If an unmarried woman (or a woman who has been widowed or divorced for some time) gets pregnant, she cannot deny having had unlawful sexual intercourse. And if a person smells strongly of alcohol, it is sufficient proof that he or she has been drinking. When it comes to other offences, the conviction of a defendant is more difficult. In cases of burglary or theft, there will often be no sufficiently qualified witnesses (i.e. witnesses who are male and Muslim and who have a spotless reputation). They are required to have observed the crime with their own eyes and to make identical statements at court.[80] Given these difficulties in securing a conviction, the perpetrators’ confessions play an important role, which may tempt the authorities into obtaining them by force.[81] Nigeria’s Sharia courts have acknowledged forced confessions as sufficient basis for a verdict. Researchers of Human Rights Watch were able to speak to 26 prisoners who had been sentenced to amputation of limbs and who were waiting for the execution of their punishment: »None of the defendants had legal representation in the lower or upper Shari’a courts which sentenced them. The majority of the defendants had had their statements extracted under torture.«[82] According to Islamic law, a convict can revoke his confession until the moment the punishment is executed. However, in doing so he risks, at least under Nigerian conditions, that he will be taken back to his cell and once more subjected to intense interrogations.[83]

Islamic jurisdiction provides little protection against unfair judgments. During colonial times, in 1933, Sharia courts were subordinated to the supervision of a British appellate court, the High Court in Kaduna. And in independent Nigeria, all constitutions since 1979 stipulated that the Sharia court system is not autonomous. Any decision of the highest Islamic courts, the Sharia Courts of Appeal in Kano, Sokoto, Zamfara and other states of the North, can be overruled by the Supreme Court, if one of the affected parties files a claim against it. This is one of the reasons why adulteresses have thus far not been stoned, though Sharia courts of appeal confirmed the death sentences. Muslims have long pushed for amending the constitution to ensure that Sharia judges are no longer subordinate to the Supreme Court, which is obliged to uphold Nigeria’s Western-style constitution. Should the Islamic jurisdiction be withdrawn from secular control, it is difficult to predict whether it would develop its own control mechanisms. In the classic doctrine of Sharia, appellate courts were not envisaged: »there is no means of reversing an unjust judgment, because strict Islamic law does not recognize stages of appeal.«[84] Whoever felt treated unjustly could try to get the Emir or a superior judge to take on the case and revoke the judgment. However, there was no right to a hearing. Like in precolonial times, today’s judges strive to decide legal disputes irrevocably and to have the verdict executed on the spot. In the case of a thief in Gusau who was lashed and imprisoned for six months, instant justice meant that the crime, the arrest, the trial and the commencement of the punishment all occurred on the same day.[85] Since Sharia judges are used to a wide discretion, they have no interest in strengthening appeal mechanisms.[86] How arbitrarily judges can decide, is illustrated by a journalist who witnessed a number of trials in Katsina State, among them the case of a Hausa woman who wanted to divorce her husband: »We don’t talk, she says […]. He doesn’t eat what I cook, she goes on, and we haven’t had sex in weeks. – I have two wives, the man answers, in his defense. – And maybe the judge notices how distraught the woman is when she says in a voice that sounds beaten down, ›I don’t want to be married to him any longer‹, but what he’s paying attention to is the sight of a man on bended knee, beseeching his wife not to divorce him. ›He loves you very much‹, the judge says. – ›God forgives this man on one knee. You must, too‹, adds one of the scholars. – Divorce denied. Next case.«[87]

The local Sharia courts that are now authorized to pass death sentences have long been notorious for their highhandedness. The extent of their abuse of office, according to a lawyer in Kano, is »unimaginable«: »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.«[88] With the introduction of a strict form of Sharia, these courts were expected to give birth to a »new era of justice.«[89] There was a strong moral pressure on the judges to prove that they took their religious office seriously, and this pressure probably brought some improvements. In a time of religious fervor, when it is easy for militant preachers to mobilize large crowds, it can be dangerous for Sharia judges to defy basic rules of justice. But as soon as the religious enthusiasm abates, judicial authorities can easily evade public control, because Islamic law knows no institutions which check the dispensation of justice. It simply speaks of the judge’s obligation to decide fairly and without bias. The prophet never tolerated corruption, as a Sharia supporter told me: When a female thief, to escape her just punishment, turned to one of Mohammed’s daughters, asking her to speak on the thief’s behalf, the prophet was incensed and reproached his own daughter. Inspired by such models of religious righteousness, many believers dream of a God-fearing world in which the powerful tremble before the Sharia judges.[90] But in the past, the alkalis did not act as advocates of the disenfranchised masses; they were rather part of the corrupt upper class. Traditionally they were appointed by the emirs, and they often had personal relations to the aristocratic families, say, through marriage alliances.[91]

There is a further reason why the introduction of full Sharia will probably fail to curb judicial lawlessness. Islamic law gives the judges wide latitude to determine punishments. It prescribes specific punishments only for theft, fornication and a few other hudud offenses. In all other cases the Sharia Penal Code specifies a maximum penalty, but leaves it to the judges to choose an appropriate punishment. Some convicts may get away with a mere admonition, while others receive prison sentences, lashes or fines.[92] Furthermore, the judges are authorized to punish at their own discretion any conduct that they consider prohibited by the holy scriptures, even if it is not mentioned in the Sharia Penal Code.[93] As long as Sharia judges only handled private disputes, from 1960 to 2000, they could not impose tazir punishments. But before independence, when they could hear all cases, they made ample use of discretionary punishments: not to rein in corrupt rulers, but to squelch protests against them. Opposition politicians who ›insulted‹ emirs or government officials were repeatedly sentenced to prison or public flogging on the basis of such discretionary punishments.

One of the »archaic«[94] traits of Sharia, which links it to the old Arabic culture of blood vengeance, is that it views offenses such as murder, criminal assault or damage of property as a private affair of the parties involved. The authorities confine themselves to guaranteeing the injured party a right to revenge if it insists on it. The relatives of a murder victim are free to forgive the murderer or agree to the payment of blood money. The decision whether a murder is avenged or not, does not lie with the state authorities but with the victim’s family. And what family would insist on the execution of an emir’s son? Nigerians tend to view members of the upper class as ›untouchables‹. If Sharia were applied to the letter, society would lose its claim of seeing all lawbreakers being brought to book.

 

The Utopia of Just Rule

 

Muslims who view Sharia as an alternative to Western democracy interpret it as a »system of government«,[95] as a kind of Islamic »constitution.«[96] It is not just meant to lay down laws for the believers, but also to establish a political order that can enforce these laws. After all, Nigerians who do not care much about official regulations will not be impressed by new law books. The new penal code of Zamfara, for instance, proscribes bribery and stipulates a sentence of up to five years in prison. Bribery, however, was already punishable under the secular law, by a prison sentence of up to seven years, yet the law did not have any effect: »Punishing everyone who took bribes in the past would mean sacking virtually the entire civil service.«[97]. In contrast to hitherto existing law, Sharia was expected to force even the highest political authorities to act according to the principles of divine justice. The holy law, however, which is believed to have such a drastic effect, does not devise institutions to limit the power of the rulers, and so the vision of a theocratic order, for which millions of Muslims took to the streets, remains vague.[98] Instead of discussing alternative constitutional models, political imagination has focused on the idealized images of just rulers, as they appear in the stories about Mohammed and his immediate successors, the four rightly-guided caliphs. Usman dan Fodio and his companions, whose wars of conquest devastated much of today’s Northern Nigeria, also serve as examples of »upright, honest and totally selfless leaders.«[99] It is said that they lived a modest life, close to the people, and that they gave audience to anybody who sought advice, even the poorest.[100] Similar reports circulate about the Caliph Umar who with his own hands brought a sack of grain to a woman in need. The problem with these narratives is, however, that they do not tell us how to get caliphs and other rulers to tend to the wishes of the people. The claim by Sharia advocates that the holy scriptures contain the blueprint of a government system which is based on the rule of law, is fictitious. Neither the four rightly-guided caliphs nor their successors were legal rulers. In the heroic beginnings of Islam, the leaders of the umma, the community of believers, exercised either charismatic or traditionalist authority.[101] In Mohammed’s lifetime, when God’s will was immediately present in the words of the prophet, it was not necessary to devise a system of governance that was bound by legal limitations: »the Quran […] provided directly for no government other than that of the Prophet himself.«[102] Mohammed was guided directly by God. He did not follow the law, he proclaimed it, and in doing so he took the liberty to modify parameters which he himself had earlier imposed as divine commandments.[103]

His immediate successors, though praised for their godly rule, did not see themselves as guardians of a social and political order warranted by divine law. Under their authority the old Bedouin customary law was widely in use, intertwined with Islamic prescripts, later with Roman and Persian traditions as well. [104] Attempts to create a unified law, deduced entirely from the holy scriptures, were not initiated by the caliphs, but by private legal scholars. Sharia did not reflect and codify the actual practice of Islamic rule, but was born out of an attempt to contain the despotism of Islamic authorities. The Prophet’s successors had appropriated the power apparatus of the Persian Empire and of those Byzantine provinces which the jihadists had conquered. Against the imperial pretensions of Islamic monarchs, religiously-minded scholars set something entirely immaterial: the revealed word of God from which they derived since the late eighth century a self-contained legal system. Much later, the scholarly ideal of the rule of law was projected into the beginnings of Islam, but Sharia has never served as the constitution of an Islamic empire.[105] The classic caliphate of the eighth and ninth centuries guaranteed its citizens a high level of prosperity and peace, not because the monarchs obeyed the divine law, but because they boldly ignored it. The Abbasides, who led Islamic civilization to its zenith, were »masters in absolutism.«[106] In order to keep their vast empire together, they instructed judges to apply the unified law which had emerged in the law schools of Bagdad, Kufa and Medina. The monarchs, however, reserved the right to have a final say in legal as well as political affairs. They tortured and killed their opponents, without asking Sharia judges for their verdict. And they did not hide their absolutist claim: »as symbol of [the caliph’s] power, there stood beside him the executioner, ready to kill the most exalted personage at a word.«[107]

Even for devout, God-fearing monarchs it would not have been possible to rule according to the immutable laws of God, because the holy scriptures did not provide answers for many questions. The transition from a personal, charismatic form of rule to the administration of a world empire created an enormous demand for legal regulations, which could not be met by referring to laws that had emerged centuries ago in a tribal, largely segmentary society. The caliphs had to create new laws, yet they maintained the fiction that they did not redesign the legal system, but merely interpreted it according to changing circumstances. So their innovations were not called laws but administrative regulations or ordinances.[108] Furthermore, the new regulations had to be consistent with Sharia, at least nominally. All holy laws, which claim unlimited validity, »necessitate tricks and ruses in order to factually invalidate normative regulations.«[109] With the help of legal fictions and auxiliary constructions, divine orders such as the prohibition of usury could be circumvented. Yet the claim of Islamic law to regulate all aspects of life, obstructed processes of differentiation like the emergence of a constitutional and commercial law. Political religion did not tolerate that different spheres of society organized themselves autonomously, according to their own internal logic:

»The frequent ambivalence or silence of religious norms with respect to new problems and practices […] results in the unmediated juxtaposition of the stereotypes’ absolute unalterableness with the extraordinary capriciousness and utter unpredictability of the same stereotypes’ validity in any particular application. Thus, in dealing with the Islamic shar’iah it is virtually impossible to assert what is the practice today in regard to any particular matter.«[110]

Since the holy scriptures do not provide reliable information on the political order Allah intended, their value as a guide for the future is limited. Full Sharia, when it was reintroduced in Northern Nigeria, de-emphasized disputes among Muslims for a while, but it could not settle them. Politicians, clerics and traditional rulers have interpreted God’s will in completely different ways, and none of them can claim that his or her idea of an Islamic society is the genuine one. This also applies to radical Muslims who are disappointed with the state-decreed Islamization. As defenders of »true Sharia«,[111] they assert that Islam strives for »absolute justice«[112]: »So long as Islam is reduced to amputating the hands of goat thieves and stoning pregnant divorcees among rural women it is stripped of its revolutionary potential as a system that challenges corruption, injustice and extreme social and economic inequalities.«[113] Yet divine law is not so clearly on the side of the disenfranchised masses. Early Islam created an »aristocracy of conquerors« who lived by exploiting the subjugated peoples.[114] Caliph Usman, a son-in-law of the Prophet, is said to have accumulated an enormous private fortune, including 100,000 Roman gold coins and a million Persian silver coins.[115] Along with texts that praise the personal modesty of individual monarchs, the religious tradition contains passages which express the self-confidence of a proud caste of warriors: »The most pious adherents of the religion in its first generation became the wealthiest […]. The Muslim tradition depicts with pleasure the luxurious raiment, perfume, and meticulous beard-coiffure of the pious. The saying that ›when god blesses a man with prosperity he likes to see the signs thereof visible upon him‹ – made by Muhammad, according to tradition, to well-circumstanced people who appeared before him in ragged attire – stands in extreme opposition to any puritan economic ethic and thoroughly corresponds with feudal conceptions of status.«[116]

Democratically-minded Muslims who want to dispense with the authoritarian traditions of Islam, invoke the original teachings of the Koran. Some claim that the holy law prescribes the creation of democratic institutions, but they can only adduce two verses in which shura, consultation, is mentioned rather casually.[117] In Sura 3:159, the Prophet is exhorted, when quarrelling with his followers: »take counsel with them in the affair.« And in Sura 42:38 it is reported that the believers »counsel between them.«[118] Tradition has it that Mohammed took advice from his closest confidants, Abu Bakr and Umar in particular. One of his successors, Caliph Umar, expanded the circle of advisers to five or six people, all of them relatives or in-laws of the Prophet who were well-versed in his teachings.[119] Naturally, a people’s representation that passes laws was never envisioned. Islamic scholars agreed that all laws which the umma needed had been entirely revealed, so the only issue was to apply them correctly. For that purpose it made sense to consult a small group of experts who knew how to interpret the word of God. It would have been fallacious to insist on equality when establishing an advisory committee, and to grant all believers, even the uneducated ones, a say or even voting rights: »In traditional Islam, only those Muslims with intimate knowledge of Islamic sources, that is, the ulema and the faqih, are the appropriate class for interpreting the will of God, the one and only legislator.«[120]

There is another aspect of Sharia that makes it difficult to subject the rulers to public control: its tendency not to draw a distinction between a public office and the person who holds it. Islamic law did not develop concepts such as institution, corporation, or juristic person, not even that of a public treasury.[121] Money which is handled by political authorities does not really belong to somebody, so it is not property in the true sense and cannot be stolen. In accordance with this orthodox understanding, Governor Sani stated: »If a civil servant takes government money, he is not a thief.«[122] A minister or governor who lines his pockets, has done nothing more than abuse the citizens’ »trust«, and in this case he must resign from office. While petty thieves, who have stolen the equivalent of eight dollars, face amputation,[123] large-scale criminals, such as former President Babangida, do not have to worry about losing a hand.

According to divine law, the poor have at least a right to alms. It is the responsibility of Islamic authorities to collect zakat, alms’ tax, and to distribute it among those in need.[124] Thus the administration of some Sharia states tried to establish public zakat funds with regular contributions by businesspeople. But the wealthy preferred to decide by themselves to whom they gave charitable gifts.[125] Like other big men in Nigeria, they are accustomed to redistributing a part of their wealth in order to gain prestige through their generosity and to establish personal dependencies. At the beginning of the Sharia era, Zamfara’s commissioner of justice declared that the new government would strive for »wealth redistribution.«[126] The administration gave out bicycles to their poorest employees and distributed hundreds of motorcycles among unemployed youths. It doled out food at Ramadan and granted interest-free loans to some of its citizens.[127] However, further reform efforts have stalled.

The Sharia campaign has raised expectations which are impossible for the state governments to meet. Whether popular anger will turn against the political elite, depends, among others, on the political choices and loyalties of the ulama. Preachers and scholars who have profited from their association with emirs and politicians may remind the mass of believers that the Koran urges them to submit to Islamic authorities: »obey God, and obey the Messenger and those in authority among you.«[128] The term Islam means »submission«, »complete devotion to the will of God.«[129] The believers are considered servants of God and not, like in Christianity, children of God. Obedience is demanded of the caliphs as well, they have to profess allegiance to Islam, but in return they can claim to be acknowledged as legitimate rulers by their subjects. This kind of trade-off does not make strong demands on their morality, because Sunni Islam usually judges the rulers pragmatically. In order to be seen as legitimate, they do not have to enforce Sharia laws rigorously. What is essential is to confirm the Islamic identity of the polity and to defend the cause of Islam in conflict with unbelievers.[130] Since the renaissance of political Islam in the late twentieth century, the possibility of gaining legitimacy through the proclamation of Sharia was used particularly by autocratic regimes: inLibya under Colonel Gaddafi, inPakistan under General Zia-ul-Haq and inSudan under Colonel Numeiri.

Politicians who borrow God’s authority are playing a dangerous game. When religion is to guide public affairs, then imams in the Friday mosques are empowered to comment on daily political issues and to challenge the authorities. Since the rulers draw their legitimacy from their obedience to God, there is no obligation to be loyal to a godless government. Believers have the right to rise against a government that turns away from God. However, there is no church or any other institution that would be authorized to decide on behalf of the umma, when a fight against the rulers is justified. Any preacher or scholar who gathers enough followers can call for a revolt against pseudo-Islamic rulers. The history of Northern Nigeria is shaped by a long tradition of religious violence and Mahdi rebellions. Usman dan Fodio, who called the despotic Hausa kings unbelievers and declared a jihad on them, is still viewed by most Muslims in the North as the role model of a religious reformer. In 1980 a preacher like Maitatsine, who addressed the urban poor, could unleash a series of uprisings against the Islamic establishment which cost almost 10,000 lives. The agitation for full Sharia, two decades later, revived the resentment against the depraved, hypocritical authorities, one of the targets being the Emir of Kano who was pelted with stones in his Rolls Royce.[131]

Protests against the established powers often erupt in a destructive way, because opposition is not integrated by institutional means.[132] In European societies a network of associations and intermediary powers emerged as early as the Middle Ages, creating its own forms of law and administration, while in the caliphates, a similar system of separation of powers never evolved. Whoever propagated political-religious reforms had to appeal to the collectivity of believers in order to mobilize supporters and confront the authorities, if necessary, by force: »military venture with wholesale revolt continued to pose an ideal for reformers.«[133] In the absence of institutional separation, government critics sought a spatial-geographical separation, modeled after the Prophet’s hijra, his flight from Mekka, where the authorities did not tolerate him, to Medina, where he established his own political community as a power base to wage war on his former hometown.[134] Like Mohammed and his followers, militant Muslims in Northern Nigeria, usually children of the upper class, fled their home and sought refuge in the borderland to Cameroon and Niger, from where they have attacked several border towns since the end of 2003. The group that burned down the local police stations and flew the Afghan flag was referred to as Taliban in the media, yet they called themselves hijra. In order to dislodge them from their lairs in a mountainous area, the army deployed heavy artillery.[135]

The mass of believers who drift between powerlessness and revolt find no reliable, sustainable means to influence government policy. Instead of institutionalizing control over the ruling class, Sharia supporters focused on replacing the corrupt rulers by fair and God-fearing leaders. One of the few Sharia politicians who had a reputation of being principled and incorruptible was Muhammadu Buhari, the former military ruler, who ran as presidential candidate of the oppositional ANPP in the 2003  and 2007 elections. From January 1984 to August 1985, Buhari had ruled Nigeriawith an iron fist. In order to cleanse the country of crime and corruption he decreed that each citizen could be incarcerated indefinitely without a court hearing: »Torture, arbitrary and unlimited arrests were widely practiced. The punishments were severe: a minimum of 21 years imprisonment for economic crimes, death penalty for drug trafficking, willful destruction of public property, crude oil smuggling and the like, public executions of muggers«, and in addition a »campaign against the immorality of women.«[136] Journalists who criticized his administration were jailed, based on Decree Number 4 which »forbade the publication or broadcast of anything […] that might bring government officials into ridicule or disrepute.«[137] The retired general has never distanced himself from his brutal human rights violations.[138] Up until his candidacy in the presidential election, he had never had a friendly word for democracy; at least the ruling PDP posted a reward for any citizen who could submit a quote in which Buhari made a positive statement about democracy.[139] Despite his contempt for a civilian government bound by the rule of law, he found strong support in the Muslim North, not so much among the elite, who considered him too unbending, but among the common people. Many recalled how the general had thousands of corrupt civil servants thrown out of office without trial. Even high-ranking politicians of the unpopular previous government were arrested; thus it seemed as if Buhari was promptly and uncompromisingly enforcing the will of the people. But he was probably not in office long enough to become as unpopular as the succeeding military rulers. Towards the end of his incumbency it became evident that his ›war against indiscipline‹ was a convenient means of ridding himself of political opponents. In any case, backers of his administration, such as the Emir of Gwandu, got away unscathed.[140]

 


[1] Achebe, Trouble, pp. 31–34.

[2] Newswatch,17 September 2001, p. 24.

[3] Hotline, 4 June 2000, p. 24.

[4] Herbst, Nigeria, pp. 158, 164.

[5] According to the Economist Intelligence Unit, Nigeria ranked last in an assessment of investment risks in 60 countries (Business Day, 8 April 2002, p. 14).

[6]  Reliable figures about the unemployment rate are not available. The federal government spoke of 10.8 percent in 2003, while the Vice President put the rate at 50 percent (Economist Intelligence Unit, Country Profile Nigeria 2005, p. 29).

[7] See the title story in Africa Today, May 2000: »Nigeria’s Lawmakers: Fat Cats with Fast Cars.«

[8] The Emir of Gwandu, in The News,24 April 2000, p. 18.

[9] Last, Charia, p. 152.

[10] Schacht, Islamic Law, p. 201.

[11] Dr. Lateef Adegbite, in Vanguard,24 March 2002, p. 21.

[12] Sanusi, Islamisation, p. 1.

[13] At a conference at the University of Bayreuth on ›The Sharia Debate and the Shaping of Muslim and Christian Identities in Northern Nigeria since 1999’, July 11–12, 2003.

[14] The Koran, unlike the Bible, claims to be »literally the words of God« (Hodgson, Islam, p. 73).

[15] A lecturer at the Department of Religious Studies,University ofJos.

[16] Elnaiem, Human Rights, p. 6.

[17] Hotline, 12 March 2000, p. 29. – Some Sharia advocates, like Prof. Sada (Commentary, p. 176) explicitly reject ›democracy‹, but political controversies do not revolve around this term. As the polls by Afrobarometer indicate, a majority of Muslims is in favour of some vaguely defined democracy. Nevertheless, reservations against individual autonomy and civil rights are clearly expressed. They are motivated not only by religious considerations, but also by a sense of hierarchy that is more developed among Hausa and Fulani than among the Igbo and other Southerners: »Egalitarianism and equality – the normative founts on which democratic, electoral politics is constructed – lack conceptual as well as linguistic currency in Hausaland.« (Miles, Elections, p. 74) As a Hausa villager put it: »[In Democracy] men wander around like cattle, without any direction. […] Each goes his own way, lost, until there’s no more herd« (quoted in Miles, Elections, p. 75).

[18] Gumi, Where I stand, p. 79.

[19] Ludwig, Religion und Politik, p. 12.

[20] Hodgson, Islam, p. 71.

[21] Yadudu, Benefits of Shariah, p. 2; Mohammed, Muslim Intellectuals, p. 8. – Prof. Yadudu was legal advisor to General Abacha.

[22] Ado-Kurawa, Shari’ah, p. 306.

[23] Rev. (Dr.) James Ukaegbu, in Champion,23 December 1996.

[24] Economist Intelligence Unit, Country Profile Nigeria 2005, p. 37.

[25] Herbst, Nigeria, p. 164.

[26] Economist Intelligence, Country Report Nigeria 2004, pp. 7, 22–23.

[27] Clapham, Challenge, p. 789.

[28] Dr. Lateef Adegbite, in Tell,21 October 2002, p. 71.

[29] West Africa,16 September 2002, p. 8.

[30] Economist, 6 April 2002, p. 39. Economist Intelligence Unit, Country Report Nigeria 2005, p. 18.

[31] Bergstresser, Zweite Wahl, p. 47.

[32] Tell,26 May 2003, pp. 19–23.

[33] New African, March 2003, p. 18.

[34] The News,27 March 2000, p. 30.

[35] Newswatch,14 May 2001, pp. 32–33.

[36] Tell,10 March 2003, p. 22.

[37] Ake, Democratic Agenda, p. 34; cf. Hauck, Konsolidierungschancen, p. 193.

[38] Yohana Madaki, a retired colonel and human rights lawyer, in Tell,25 September 2000, p. 24.

[39] Tell,17 December 2001, p. 36 and 20 October 2003, p. 23.

[40] Tell,19 February 2001, p. 20.

[41] Tell,15 May 2006, p. 20.

[42] The Week, 19 May 2003, p. 36; Tell,5 February 2001, p. 24.

[43] After eight years in office, his reputation had suffered. However, Ohanaeze (or one of its factions) endorsed him as the Igbo candidate for the 2007 presidential election. This gives a vivid idea about the contribution of ethnic self-determination groups to democracy.

[44] Daniel Jordan Smith, Culture of Corruption, p. 193.

[45] Achike Udenwa, Governor of Imo State, in Tell,25 March 2002, p. 35.

[46] Diamond, Nigeria, p. 418; Chabal/Daloz, Africa Works, pp. 20, 30.

[47] Tell,24 July 1995, front page.

[48] Tell,18 September 2000, p. 30.

[49] Abubakar D. Muhammad, Muslim Responses, p. 7.

[50] Kalu, Religious Dimension, p. 671.

[51] Guardian, 5 May 1996; Tempo,5 December 1996.

[52] Meyer, Break with the Past, p. 329.

[53] Archbishop Okogie, in Kukah, Religion, p. 228.

[54] Pastor John Ekong, in The Week,15 April 2002, p. 32.

[55] Sanusi, Sharia’s Debate, p. 11.

[56] Tell,28 October 1996, p. 11.

[57] Babalola, Democracy, p. 886.

[58] Economist Intelligence Unit, Country Profile Nigeria 2005, p. 37.

[59] A police officer, in Newswatch,3 April 1995, p. 21.

[60] Guardian, 17 March 2001; Human Rights Watch, Political Shari’a?, p. 6.

[61] Civil Liberties Organisation, Above the Law, p. 34. – For police murders after the end of military rule, see Tell,1 October 2001, pp. 24–32: »No End to the Bloodlust«.

[62] Tell,25 March 2002, p. 30.

[63] Some German companies operating inNigeria advised their employees not to turn to the police, if they were assaulted or robbed.

[64] Guardian, 31 January 1995 and 12 February 1996; Tell, 5 January 2004, p. 46 and 11 October 2004, pp. 30–31; Human Rights Watch, Political Shari’a?, p. 6.

[65] Civil Liberties Organisation, Justice for Sale, pp. 120, 136–139.

[66] Estimates by the Civil Liberties Organisation, in Amnesty International, Vigilante Violence, p. 9.

[67] Newswatch,18 September 2000, p. 14.

[68] Newswatch,29 March 1999, p. 17.

[69] Further offers of help came from Libya, Iran and Malaysia (Freedom House, Talibanization, pp. 5, 17, 24–25).

[70] Tell, 1 May 2000, pp. 25–27.

[71] Foucault, Überwachen, 17. (Discipline and Punish)

[72] Nietzsche, Genealogie der Moral, pp. 215, 214.

[73] Hotline,4 June 2000, p. 24.

[74] Ahmad, Scharia; Gaiya, Shari’ah Debate, p. 5. Last, Charia, p. 150.

[75] Kanu Agabi, in Economist,7 September 2002, p. 46.

[76] For instance, »the testimony of women and non-Muslims usually was accorded less weight in Shari’a courts« (U.S. Department of State, Nigeria 2006, p. 8).

[77] Ibrahim Buba, a Fulani attorney, in The Week,19 November 2001, p. 15.

[78] Even at the Sharia appeal courts, judges who had no university degree in Islamic law were appointed (Abun-Nasr, Islamisches Recht, pp. 218–220).

[79] Schacht, Islamic Law, p. 187.

[80] Peters, Islamic Criminal Law, pp. 3–4, 36; Schacht, Islamic Law, pp. 18–19, 193–194. As an alternative to the two male witnesses, one man and two women are also accepted as witnesses.

[81] Last, Charia, p. 151.

[82] Human Rights Watch, Political Shari’a?, p. 41. See Finkel, Crime, p. 5.

[83] Nigeria’s police stations are known for »routinely« using torture. (Civil Liberties Organisation, Above the Law, p. 22; Human Rights Watch, Political Shari’a?, pp. 3, 6) Forced confessions are therefore not a specifically Muslim problem.

[84] Schacht, Islamic Law, p. 189; Abun-Nasr, Islamisches Recht, p. 212.

[85] Peters, Islamic Criminal Law, p. 60. – A sixteen-year old girl who became pregnant out of wedlock received a punishment of 100 lashes shortly after giving birth, although an appeal procedure was pending (Freedom House, Talibanization, pp. 22–23).

[86] »[T]he appellate procedure is alien to Maliki law and resented as an intrusion by the Alkalis« (Sklar, Political Parties, p. 358).

[87] Finkel, Crime, p. 3.

[88] Dr. Kumo, in Maier, This House, p. 178; cf. Last, Charia, p. 149.

[89] Last, Charia, p. 149.

[90] Ibid, p. 143.

[91] Abun-Nasr, Islamisches Recht, p. 208; Schacht, Islam in Northern Nigeria, p. 126.

[92] Zamfara State of Nigeria 2000, Sharia Penal Code, clause 102; See Ostien, Islamic Criminal Law, p. 4.

[93] Zamfara State of Nigeria 2000, Sharia Penal Code, Section 92; Peters, Islamic Criminal Law, pp. 3, 39; Schacht, Islamic Law, p. 207.

[94] Schacht, Islamic Law, p. 207.

[95] Lateef Adegbite, in Williams/Falola, Religious Impact, p. 21; Doi, Islam, p. 210; Al-Zakzaky, Shari’ah Part 1, pp. 2, 3 (usually spelled El-Zakzaky or el Zak-Zaky).

[96] Gwandu, Sokoto Caliphate, p. 12; Wushishi, Resurgence of Shari’ah, p. 40.

[97] Economist,15 January 2000,Nigeria Survey, p. 7.

[98] This also applies to other countries where Muslims call for Sharia in order to achieve social justice: »In these contexts, the word is characteristically deprived of detail, of complexity, and of association with the intellectual tradition of fikh« (Calder, Shari’ah, p. 282).

[99] Doi, Islam, p. 300.

[100] Moumouni, Uthman dan Fodio, p. 118; Ado-Kurawa, Shari’ah, p. 282.

[101] Tibi, Fundamentalism, p. 102.

[102] Hodgson, Islam, p. 207; An-Na’im, Islamic Reformation, pp. 76–77.

[103] After God had announced to him that no man shall have more than four wives, he learned in a later revelation that this rule did not apply to him: »O Prophet, We have made lawful for thee […] any woman believer, if she give herself to the Prophet and if the Prophet desire to take her in marriage, for thee exclusively, apart from the believers« (Koran 33:50, pp. 432–433).

[104] Endress, Islamische Geschichte, pp. 73–74; Schacht, Islamic Law, p. 15.

[105] El-Affendi, Rationality, pp. 157–160; Tibi, Fundamentalism, pp. 160, 165.

[106] Hodgson, Islam, p. 271.

[107] Ibid., p. 283.

[108] Bernard Lewis, Middle East, p. 224; Schacht, Islamic Law, pp. 53–54, 87.

[109] Schluchter, Einleitung, p. 81.

[110] Weber, Economy and Society, p. 578.

[111] Gaiya, Shari’ah Debate, p. 5.

[112] Adegbite, Political Agenda, p. 2.

[113] Sanusi, Shari’ah Debate, p. 10.

[114] Bernard Lewis, Middle East, p. 58; Hodgson, Islam, p. 208; Weber, Economy and Society, pp. 444, 474.

[115] Bernard Lewis, Middle East, p. 59; Sanusi, Islam, Probity, p. 3.

[116] Weber, Economy and Society, p. 624.

[117] Adegbite, Political Agenda, p. 2.

[118] Koran, pp. 65, 502.

[119] Bosworth, Shura, p. 504–505; Bernard Lewis, Middle East, pp.142–145; Tibi, Fundamentalism, pp. 30, 174–176.

[120] Tibi, Fundamentalism, p. 176; An-Na’im, Islamic Reformation, pp. 78–79.

[121] Schacht, Islamic Law, pp. 125, 155, 206.

[122] Ahmed Sani, in Tell, 8 September 2003, p. 40; Oloyede, Commentary, p. 297; Peters, Islamic Criminal Law, p. 3.

[123] This is the minimum value of the stolen item, as fixed by a Sharia court in Sokoto State (Peters, Islamic Criminal Law, p. 22).

[124] Sanusi, Zakat, pp. 1–2.

[125] Last, Charia, p. 145. – In Sokoto State, the zakat authority collected the equivalent of 4,000 Euro within the first three years of the introduction of Sharia (Adamu, Haushaltsstrategien, p. 300).

[126] Ahmed Bello Mahmud, Shari’ah, p. 8.

[127] Newswatch, 10 September 2001, p. 42; Civil Liberties Organisation, Sharia, p. 2. – The chairman of Governor Sani’s 2003 re-election campaign diverted 300 motorcycles meant for the Poverty Reduction Programme. Some civil servants stole food for the students of Zamfara’s secondary schools, and the »kingpin of the syndicate« used his share of the booty »to finance his current pilgrimage to Mecca« (Tell,16 February 2004, 22–23).

[128] Koran, 4:59, p. 81.

[129] Watt/Welch, Islam, p. 263; Schimmel, Islam, p. 17.

[130] An-Na’im, Islamic Reformation, p. 93; Eisenstadt, Öffentlichkeit, p. 316; Schacht, Islamic Law, p. 84.

[131] Tell, 16 June 2003, p. 36.

[132] Eisenstadt, Öffentlichkeit, p. 319.

[133] Hodgson, in Laitin, Hegemony, p. 33.

[134] Laitin, Hegemony, p. 33.

[135] Tell, 12 January 2004, p. 26 and 26 April 2004, pp. 22–26; Newswatch, 11 October 2004, pp. 22–25. – When in April 2007 a police station in metropolitan Kano was stormed, the media spoke of a Taliban attack. (BBC News, http://news.bbc.co.uk/go/pr/fr/-/2/hi/africa/6564629.stm) The police who arrested two alleged Taliban leaders accused them of cooperating with al-Qaeda and recruiting Nigerians for military training in Mauritania (Tell, 1 March 2007, http://tellng.com/news/articles/070222-2/news/Sprep_terrornorth.html; cf. Chalk, Islam, 428).

[136] Hauck, Demokratisierung, pp. 74–75.

[137] Diamond, Nigeria, p. 441; Tell, 21 April 2003, p. 16; Soyinka, Open Sore, p. 91.

[138] He also refused to testify before the human rights commission (Bergstresser, Nigeria 2001, p. 151; Economist, 1 September 2001, p. 37).

[139] Jockers/Peters/Rohde, Wahlen, p. 86.

[140] Hauck, Demokratisierung, p. 75; Soyinka, Open Sore, pp. 81–92; Diamond, Nigeria, p. 441.