Sharīʿa in Africa Today Islam in Africa Editorial Board Rüdiger Seesemann Knut Vikør Founding Editor John Hunwick VOLUME 15 The titles published in this series are listed at brill.com/isaf Sharīʿa in Africa Today Reactions and Responses Edited by John Chesworth and Franz Kogelmann LEIDEN • BOSTON 2014 This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 1570-3754 ISBN 978-90-04-25054-3 (hardback) ISBN 978-90-04-26212-6 (e-book) Copyright 2014 by the Authors. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. 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The use of material from other sources (indicated by a reference) such as diagrams, illustrations, photos and text samples may require further permission from the respective copyright holder. An electronic version of this book is freely available, thanks to the support of libraries working with Knowledge Unlatched. More information about the initiative can be found at www .knowledgeunlatched.org. Library of Congress Cataloging-in-Publication Data Sharia in Africa today : reactions and responses / edited by John Chesworth & Franz Kogelmann. pages cm — (Islam in Africa ; v. 15) Includes bibliographical references and index. ISBN 978-90-04-25054-3 (hardback : alk. paper) — ISBN 978-90-04-26212-6 (e-book : alk. paper) 1. Islamic law—Africa. 2. Islamic courts—Africa. I. Chesworth, John. II. Kogelmann, Franz. KBP64.S43 2014 340.5’9096—dc23 2013033032 CONTENTS List of Maps ...................................................................................................... vii Acknowledgements ........................................................................................ ix Technical Note ................................................................................................. xi Preface ................................................................................................................ xiii 1 Introduction .............................................................................................. 1 John Chesworth and Franz Kogelmann PART ONE SUDAN: “TOTAL SHARĪʿA ” 2 “ Sharīʿa and Reality”: A Domain of Contest among Sunni Muslims in the District of Shendi, Northern Sudan ......... 13 Osman Mohamed Osman Ali 3 Contradicting State Ideology in Sudan: Christian-Muslim Relations among the Internally Displaced Persons in Khartoum—The Case of Mandela and Wad al-Bashīr Camps .... 41 Salma Mohamed Abdalla PART TWO NIGERIA: “RE-IMPLEMENTATION OF SHARĪʿA ” 4 The Evolution of the Independent sharīʿa Panel in Osun State, South-West Nigeria ................................................................................. 73 Abdul-Fatah Kola Makinde 5 “Education is Education”: Contemporary Muslim Views on Muslim Women’s Education in Northern Nigeria ......................... 103 Chikas Danfulani vi contents 6 ‘We Introduced sharīʿa ’—The Izala Movement in Nigeria as Initiator of sharīʿa -reimplementation in the North of the Country: Some Reflections .................................................................. 125 Ramzi Ben Amara PART THREE KENYA: “PLACE OF SHARĪʿA IN THE CONSTITUTION” 7 Debates on Kadhi’s Courts and Christian-Muslim Relations in Isiolo Town: Thematic Issues and Emergent Trends ............. 149 Halkano Abdi Wario 8 “Necessity Removes Restrictions”: Swahili Muslim Women’s Perspectives on Their Participation in the Public Sphere ......... 177 Esha Faki Mwinyihaji 9 Women’s Views on the Role of Kadhi’s Courts: A Case Study of Kendu Bay, Kenya ............................................................................. 195 Rebecca Osiro PART FOUR TANZANIA: “CALLS FOR THE RE-INTRODUCTION OF SHARĪʿA ” 10 Demand for the Re-Introduction of Kadhi’s Courts on the Tanzanian Mainland: A Religious, Social and Political Analysis ..................................................................................................... 215 William Andrew Kopwe 11 “Chaos Will Never Have a Chance”: Sharīʿa Debates and Tolerance in a Provincial Tanzanian Town ................................... 241 Bernardin Mfumbusa Bibliography ..................................................................................................... 259 Contributors ..................................................................................................... 271 Index ................................................................................................................... 275 LIST OF MAPS Map 1 Map of Africa: Showing countries covered in the book .... xv Map 2 Map of Sudan: Showing principal places referred to in Part One ............................................................................................ 12 Map 3 Map of Nigeria: Showing principal places referred to in Part Two ........................................................................................... 72 Map 4 Map of Nigeria showing the states ........................................... 74 Map 5 Map of Kenya: Showing principal places referred to in Part Three ........................................................................................ 148 Map 6 Map of Tanzania: Showing principal places referred to in Part Four ..................................................................................... 214 ACKNOWLEDGEMENTS We thank all those who have been involved in the project, ‘Sharīʿa Debates and Their Perception by Christians and Muslims in Selected African Countries’. We acknowledge the generous support for the project of the Volkswagen Foundation and the “Knowledge for Tomorrow” initiative. We are grateful for the support of: – Senior Staff Professor Kurt Beck and Professor Ulrich Berner, University of Bayreuth, and Professor Frieder Ludwig, now at Fachhochschule für Interkulterelle Theologie, Hermannsburg; – Dr. Philip Ostien and Dr. Sati Fwatshak, who were country co-ordinators in Nigeria, together with Dr. Jamila Nasir from the University of Jos, Nigeria; Professor Esther Mombo, St. Paul’s University, Kenya; country co-ordinator for Sudan, Associate Professor Osman Muhammad Osman Ali, University of Khartoum, Sudan; We are grateful: – for the involvement in the planning stages of Associate Professor Shamil Jeppie, University of Cape Town and Dr. Abdulkadir Hashim Abdulkadir, formerly at University of Zanzibar, now at University of Nairobi, Kenya; – for those who were involved in introducing new methodologies to the Junior Scholars: Professor Gabriele Cappai, Dr. Katharina Hofer and Dr. Asonzeh Ukah; – to Ahmad Elhassab Umar Elhassab and Mohamed Hamed Mohamed Ahmed who also participated in the project. Finally we would like to appreciate the support and patience of our wives Phyll and Brigitte. TECHNICAL NOTE Non-English words are italicised; the transliteration of Arabic words fol- lows that used in the Encyclopedia of the Qurʾān edited by Jane Dammen McAuliffe (Brill, 2001–2006). The meanings of non-English words are given in parentheses following their first appearance, e.g. ribā (Arab.: interest). All quotations from the Qurʾān use Abdel Haleem’s The Qurʾan (Oxford University Press, 2004), with the reference being given using the name of the sūra, with the number in parentheses, e.g. al-Nūr (24):31. Quotations from the Bible use the New Revised Standard Version , (Oxford University Press, 1995), with the reference being given using the name of the book, with chapter and verse, e.g. Matthew 5:25. All dates are cited according to the “Common Era” (c.e.), numerically equivalent to the Christian a.d. PREFACE This book originated in a research project “ Sharīʿa Debates and Their Perception by Christians and Muslims in Selected African Countries” in which a group of African junior scholars at different stages of their academic careers were invited to participate. This research project was financed for three years (2006–2009) by Volkswagen Foundation under the funding initiative “Knowledge for Tomorrow—Co-operative Research Projects in Sub-Saharan Africa”. Most of the research and writing spon- sored by the project has been done by these African junior scholars, who include both Muslims and Christians. They have been closely supervised, assisted and evaluated by a group of senior scholars with a view to their proper training, their exposure to current ideas, methodologies, and milieus, and the enhancement of their formal academic qualifications. The research here being reported on developed from a previous joint research project on the current sharīʿa debate in Nigeria, “The sharīʿa Debate and the Shaping of Muslim and Christian Identities in Northern Nigeria”. This was also funded by Volkswagen Foundation and organized by the Universities of Jos, Nigeria, and Bayreuth, Germany, in 2002/2004. At an early stage of that research project it became obvious that the sharīʿa debate in Nigeria is not a single and locally-restricted phenom- enon. In many other African countries with a Muslim population, heated public debates on certain aspects of Islamic law, and/or the relationship of Islam or religion in general and the state, are nowadays an important part of daily political life. Thus, a preliminary workshop was held in Limuru, Kenya, in July 2004, where the basic idea for the new research project was to develop new theoretical bases and research methods to exam- ine this current phenomenon in a series of African countries. To reach this objective it was first of all necessary to get a general idea of these recent developments. Thus the organizers, John Chesworth, St. Paul’s United Theological College (now St. Paul’s University), Limuru, and Franz Kogelmann, University of Bayreuth, invited mainly junior scholars, both Muslims and Christians, from Austria, Germany, Kenya, the Netherlands, Nigeria, Rwanda, South Africa, Sudan, Tanzania, Uganda and the USA to attend the workshop. Keeping in mind that debates on Islamic law are not limited to sub-Saharan countries in Africa, the organizers also invited schol- ars from Egypt, Iran and Malaysia to attend. Due to the multi-disciplinary xiv preface and international backgrounds of the participants, fruitful discussions took place and the first results of cross-fertilisation appeared. The work- shop in Limuru gave the junior scholars the opportunity to establish new academic networks (south-south and north-south) and was also successful in taking first steps across the existing academic divides. One of the most important outcomes of the workshop was the insight that the quality of our understanding of the current sharīʿa debates in sub-Saharan Africa and their side-effects on society was highly unsatisfactory. The University of Bayreuth worked in partnership with St. Paul’s University, Limuru, Kenya; with the University of Jos, Plateau State, Nigeria and with the University of Khartoum, Sudan. Initially, the University of Cape Town, South Africa and the University of Zanzibar were also part- ners, but withdrew when no suitable junior scholars were proposed. Following the Limuru workshop in 2004, a successful funding pro- posal was made to Volkswagen Foundation for a project called Sharīʿa Debates and Their Perception by Christians and Muslims in Selected African Countries . From late 2005, the selection of a group of junior scholars from the different countries began. The successful candidates were at various stages of post-graduate work; four were completing their MA research, four were working on their doctorates and three were conducting post- doctoral research. Four of the junior scholars were Christians and seven were Muslims; four were women and seven were men. They came from a variety of disciplines, Anthropology, Economics, Politics, Religious Studies and Theology. They all met in Bayreuth for three months in the summer of 2006, where they trained in a variety of research methods in social science and learned about working on multi-disciplinary research. As a group we met with them on several occasions in Limuru, Kenya; Shendi, Sudan; Bamako, Mali; Jos, Nigeria and Kisumu, Kenya as well as for a further two months in Bayreuth during the summer of 2007. Map 1 Map of Africa: Showing countries covered in the book CHAPTER ONE INTRODUCTION John Chesworth and Franz Kogelmann All over the world, in recent years, there has been a resurgence of reli- gion in the public sphere. In many sub-Saharan African countries this has manifested itself most noticeably in claims by Muslims for increased recognition of Islamic religious symbols within political and civil spaces hitherto dominated by ‘Western’ systems, and especially for the imple- mentation, in some form or other, of the sacred law of Islam, the sharīʿa These Muslim claims, different in their character and scope from country to country, have sparked off intense debates in all the countries where they have been made. Unfortunately, the quality of our understanding of these recent and important developments, and of where they are leading, is highly unsat- isfactory. General introductions in Islamic law are available,1 the role of Islam in African constitutionalism is discussed,2 and the influence of Islamic law in Africa on the eve of colonial rule is also well described.3 However, country specific studies focused on sub-Saharan Africa and based on empirical research are relatively scarce. For Sudan, Fluehr-Lobban tried to survey the history and to detail the practice of Islamic law during the second half of the 1980s.4 Her findings are partly based on field-work on the day-to-day working of the sharīʿa in Khartoum. A far more in-depth study, but lacking empirical research, is Layish and Warburg’s book on the sharīʿa in Sudan under Numayrī.5 1 Schacht, J., An Introduction to Islamic Law , Oxford: Clarendon Press, 1964; Doi, A. R. I., Sharīʿah: The Islamic Law , London: TaHa Publishers Ltd. 1984; Vikør, K. S., Between God and the Sultan , London: Hurst & Company, 2005; Hallaq, W. B., A History of Islamic Legal Theories. An Introduction to Sunnī uṣūl al-fiqh , Cambridge: Cambridge University Press (CUP), 1997; Hallaq, W. B., The Origins and Evolution of Islamic Law, Cambridge: CUP, 2005; Hallaq, W. B., Sharīʿa—Theory—Practice—Transformations , Cambridge: CUP, 2009a; Hallaq, W. B., An Introduction to Islamic Law , Cambridge: CUP, 2009b. 2 an-Na ʾim, A. A., African Constitutionalism and the Role of Islam. Philadelphia, Pa.: University of Pennsylvania Press, 2006. 3 Anderson, J. N. D., Islamic Law in Africa , London: Frank Cass & Co., 1970. 4 Fluehr-Lobban, C., Islamic law and society in the Sudan , London etc.: Frank Cass, 1987. 5 Layish, A. and G. R. Warburg, The Reinstatement of Islamic Law in Sudan under Numayrī. An evaluation of a legal experiment in the light of its historical context, methodol- ogy, and repercussions , Leiden: Brill, 2002. © John Chesworth and Franz Kogelmann, 2014 | doi:10.1163/9789004262126_002 This is an open access chapter distributed under the terms of the CC BY-NC 4.0 license. 2 john chesworth and franz kogelmann Important as these two studies are, as well as others in this field,6 they do not take into consideration the period after the Comprehensive Peace Agreement of 2005. There are polemical articles, both Muslim and Christian, written about Nigeria post-1999, when the wave of re-implementation of Islamic law in the northern part of the country commenced, but also serious academic studies on this phenomenon.7 For any future research on the re-implemen- tation of Islamic law in Northern Nigeria, Ostien’s five volume sourcebook on sharīʿa implementation in Northern Nigeria since 1999 will be indis- pensable.8 However, certain aspects of the so-called sharīʿa project, such as its influence on education in northern Nigeria, are not covered. Studies on the impact of Islamic law on the Muslim community of Yorubaland in south-western Nigeria are almost non-existent.9 For East Africa, the situation is much the same. The practice of Islamic law in Zanzibar and the coastal strip of Kenya and mainland Tanzania is well-covered by the publications of Hashim, Hirsch, Stiles and Stockreiter.10 6 See: Köndgen, O., Das islamisierte Strafrecht des Sudan. Von seiner Einführung 1983 bis Juli 1992 , Hamburg: Mitteilungen des Deutschen Orient-Instituts 43, 1992; Köndgen, O., ‘Sharia and national law in the Sudan’, in Sharia Incorporated. A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present , Otto, J. M. (ed.), Leiden: Leiden Univ. Press, 2010, pages: 181–230; Sidahmed, A., Politics and Islam in Contemporary Sudan , London: Routledge, 1997; El-Affendi, A., Turabi’s Revolution. Islam and Power in Sudan , London: Grey Seal, 1991; Nageeb, S. A., New Spaces and Old Frontiers. Women, Social Spaces and Islamization in Sudan, Lanham: Lexington Books, 2004. 7 Ostien, P. and A. Dekker, ‘Sharia and national law in Nigeria’, in Sharia Incorporated , Otto, J. M. (ed.), Leiden: Leiden University Press, 2010, pages 553–612; Weimann, G. J., Islamic Criminal Law in Northern Nigeria , Amsterdam: Amsterdam University Press, 2010; Ostien, P., ‘Divine Law and Local Custom in Northern Nigerian Zina Trials’, Die Welt des Islams 49. 3–4, 2009, pages 429–465; Ostien, P., ‘Islamic Law and Muslim Governance in Northern Nigeria: Crimes Against Life, Limb and Property in Shariʿa Judicial Practice,’ Islamic Law and Society 17, 3, 2010; Ludwig, F., ‘Christian-Muslim Relations in Northern Nigeria since the Introduction of Shariʿah in 1999’, Journal of the American Academy of Religion 76, 2008, pages 602–637; Christelow, A., ‘Persistence and Transformation in the Politics of Shariʿa, Nigeria, 1947–2003: In Search of an Explanatory Framework’, in Muslim Family Law in sub-Saharan Africa. Colonial Legacies and Post-colonial Challenges , S. Jeppie, E. Moosa & R. L. Roberts (eds.), Amsterdam: Amsterdam University Press, 2010, pages 247–272. 8 Ostien, P., Sharia Implementation in Northern Nigeria 1999–2006: A Sourcebook, 5 vol- umes , Ibadan: Spectrum Books Ltd., 2007 (http://www.sharia-in-africa.net/pages/publications/ sharia-implementation-in-northern-nigeria.php). 9 See Makinde and Ostien’s recent article: Makinde, Abdul-Fatah ‘Kola, Ostien, Philip, Legal Pluralism in Colonial Lagos: The 1894 Petition of the Lagos Muslims to their British Colonial Masters, Die Welt des Islams 52:1, 2012, pages 51–68. 10 Hashim, A., ‘Coping with Conflicts: Colonial Policy towards Muslim Personal Law in Kenya and Post-Colonial Court Practice’, in S. Jeppie, E. Moosa & R. L. Roberts (eds.), 2010, pages 221–245; Hirsch, S. F., ‘State Intervention in Muslim Family Law in Kenya and introduction 3 However, the hinterland and the current political context are mostly neglected.11 Thus, there is some scholarly literature on various sharīʿa debates in sub-Saharan Africa, but its coverage is in many cases patchy. The studies contributing to this literature tend to be mono-disciplinary, often unin- formed by history, and, a very serious problem from African points of view, are mostly done by foreigners whose approach and perspective is different from African Muslims, and also from African Christians. The present book takes up that challenge with an examination of various aspects of sharīʿa debates in sub-Saharan Africa, carried out by Africans, both Muslims and Christians. The contributors to this book have sought to explore the impact of sharīʿa debates on Christian-Muslim relations in their own countries. They have done this by mapping the reactions and responses to sharīʿa debates in various communities, finding various levels of understanding and misunderstanding therein. The countries involved in the research all have prior experience of sharīʿa for historical reasons in that, prior to European colonisation, they were either colonised by Muslim powers, for example the Coastal Strip of Tanzania: Applications of the Gender Concept’, in S. Jeppie, E. Moosa & R. L. Roberts (eds.), op. cit., pages 305–329; Hirsch, S. F., Pronouncing and Persevering: Gender and Discourses of Disputing in African Islamic Court ’, Chicago and London: University of Chicago Press, 1998; Hirsch, S. F., ‘Kadhi’s Courts as Complex Sites of Resistance: The State, Islam, and Gender in Postcolonial Kenya’, in Contested States: Law, Hegemony, and Resistance , M. Lazarus-Black & S. F. Hirsch (eds.), New York: Routledge, 1994, pages: 207– 230; Stiles, Erin E., An Islamic Court in Context: An Ethnographic Study of Judicial Reasoning , London: Palgrave Macmillan, 2009; Stiles, Erin E., ‘Broken Edda and Marital Mistakes: Two Recent Disputes from an Islamic Court in Zanzibar’, in Dispensing Justice in Islam: Qadis and their Judgments , Masud, M. K., R. Peters & D. S. Powers (eds.), Leiden: Brill, 2006, pages: 95–116; Stiles, Erin E., ‘There is No Stranger to Marriage Here!’ Muslim Women and Divorce in Rural Zanzibar’, Africa: Journal of the International Africa Institute , 75, 4, 2005, pages: 582–598; Stiles, Erin E., ‘When is a Divorce a Divorce? Determining Intention in Zanzibar’s Islamic Courts’, Ethnology, 42, 4, 2003, pages: 273–288; Stockreiter, E., ‘Child Marriage and Domestic Violence: Islamic and Colonial Discourses on Gender Relations and Female Status in Zanzibar, 1900–1950s’, in Domestic Violence and the Law in Colonial and Postcolonial Africa , Burrill, E. S., R. L. Roberts, & E. Thornberry (eds.) Athens, OH: Ohio University Press, 2010, pages 138–158; Stockreiter, E., Tying and untying the knot: Kadhi’s courts and the negotiation of social status in Zanzibar, 1900–63 , unpublished PhD thesis SOAS, University of London, 2008; Stockreiter, E., ‘Islamisches Recht und sozialer Wandel: Die Kadhi-Gerichte von Malindi, Kenya, und Zanzibar, Tanzania’, Stichproben. Wiener Zeitschrift für kritische Afrikastudien 2/3, 2002, pages 35–61. 11 Exceptions are this short article: Hashim, A., ‘Muslim State Relations in Kenya after the Referendum on the Constitution’, in AASR Bulletin 24, November 2005, pages 21–27; and, more recently, Tayob, A. & J. Wandera (eds.), Constitutional Review in Kenya and Kadhis Courts , Cape Town: Centre for Contemporary Islam, University of Cape Town, 2011. 4 john chesworth and franz kogelmann East Africa and Sudan, or were independent Muslim states, for example the Sokoto Caliphate in what is now Northern Nigeria. The four countries where research has been carried out were chosen because they are all impacted by sharīʿa to a greater or lesser extent and they all have significant numbers of both Muslims and Christians in their populations. The countries are not alphabetically or geographically presented, but are ordered from the perspective of the level of sharīʿa present in the country. We therefore begin with the total sharīʿa of the Sudan, where the September Laws were introduced by the Numayrī regime in 1983. We then move to Nigeria and the re-implementation, from 1999, of Islamic penal law in most of the states of Northern Nigeria, flanked by other mea- sures to Islamize society. Then on to Kenya where the place of Kadhi’s Courts in the Constitution was one of the factors leading to the rejection of the proposed Constitution in 2005. Finally we move to Tanzania where Kadhi’s Courts were abolished on the mainland after independence and where there are now calls for their re-introduction. Since the implementation of the September laws of 1983, Sudan has been a sharīʿa state. Islamic laws, including the application of corporal punishments, have been imposed on all Sudanese regardless of their religious affiliation. After the Comprehensive Peace Agreement of 2005 the situation changed fundamentally: Southern Sudan is exempted from sharīʿa and Khartoum as the capital of the state enjoys a special status. Even the states of Northern Sudan traditionally inhabited by a Muslim majority mostly stopped applying Islamic criminal law. The Sudanese junior scholars have been researching the impact of these changes on public life from different angles. They took especial note of the changes brought about by the Comprehensive Peace Agreement (2005) between the Khartoum government and the South, leading to the creation of a new state, South Sudan, in 2011. Osman Mohamed Osman Ali was the project’s country co-ordinator for Sudan. He is assistant professor of anthropology at the Department of Sociology and Social Anthropology at the University of Khartoum. In his contribution to this book he offers in a nutshell the results of his PhD thesis “The Dynamics of Interpretation of Textual Islam in Northern Sudan: Case Study among the Rural and Urban Population of Shendi Province”. He did extensive field work on multicultural and multiethnic communities in the southern part of the River Nile State. He identified four subcultures in Shendi Province: Shendi town itself, the villages south and north of