A Critical Essay in History, Philosophy and Law
Sanusi Lamido Sanusi (Lecture given Ramadhan 2006)
The topic I was given by the organisers of this lecture was “Islam, Probity and Accountability”. It is a topic whose choice was influenced, no doubt, by the sad state of our country and many Muslim States, where corruption and lack of accountability have become something of a cancer eating into the fabric of society and uprooting every social value, structure and institution from its very foundations.
As I see it, there are two possible approaches to this lecture. The first is to stand here and assert, with all sense of self-righteousness, the truism that Islam preaches probity and accountability. This would involve a narration, parrot-like, of the various Qur’anic verses preaching Probity and Accountability as well as Traditions of the Holy Prophet (S.A.W.), anecdotes from the lives of the rightly guarded Khulafa’, the Sahaba, the Tabi’in and great pious rulers like ‘Umar ibn Abdul ‘Azeez. At the end of the day everyone here would clap, cheer, feel good and generally have the satisfaction of having heard a good lecture. But to do this is to merely engage in an exercise best described as the masturbation (if you forgive the term) of our collective egos. It states the obvious, avoids the difficult and in no way contributes to the purpose of such a gathering. To say that Islam preaches probity and accountability, and to try to prove it to a Muslim audience, is a most ridiculous intellectual exercise. It will only serve the purpose of Tahseel al-haseel (attaining that which is already attained); for every Muslim surely knows that not just Islam, but every world-view or civilization worth its name, preaches accountability and probity. Even Godless systems do so as evidenced by the recent execution in Communist China of fourteen persons for acts of financial corruption.
There is, however, a second approach: more complex, less palatable and certainly more offensive to certain sensibilities. It is an approach which asks a historically valid question which begs eternally to be answered: why is it that inspite of the fact that we all know, academically or intuitively, that corruption in all its forms is unIslamic, it remains a pervasive feature permeating Muslim communities? Why have Muslim leaders, including those who have ruled Nigeria in the recent past, not been a paragon of probity and accountability? Why has the crime of corruption not engaged the Muslim mind with the same intensity as, say, the absence of the hijab among women or the exclusion of hudud (fixed punishments) from the Penal Code? In simple terms, why is it that over a long period and spreading over a large part of the Muslim world, the teachings of Islam on probity and accountability have been one thing, the practice of Muslim people and their leaders a completely different thing?
It is my view that the answer to this question is to be found necessarily in a reasoned analysis of the anatomy of corruption, specifically (1) how it came to be embedded in the body politic of the ummah, (2) how the ummah’s mindset was conditioned to tolerate it and (3) how an elaborate legal framework was set-up which,however ,effectively by-passes the menace, allowing it to thrive even where an Islamic legal system is, in theory, operational.
The first point is an excursion into history, specifically the fitnah, the early conflicts and the end of the rightly-guided khilafa.
The second is an excursion into philosophy and particularly ethics, with specific focus on the misapprehension of the necessary connection between metaphysical theism and our morality which, I will argue, represents some degree of impairment to our conception of Tawhid, and our full belief in the absolute unity of Allah the One as the source of our existence and values;
The third is an excursion into Shariah law as we know it, and an examination of the limitations imposed on its scope by politics as well as the failure of scholars to rise to the responsibilities implied by the flexibility of its injunctions.
I have therefore taken the liberty to slightly amend the topic I was given by introducing the sub-title you read above, (A critical essay in History, Philosophy and Law) as an outline of the intellectual course I hope we will chart together, a trip that may be discomfiting to some, tumultuous to others, sickening to a few, but hopefully in the end worthwhile and enriching, opening before us new vistas in thinking, breaking old barriers and challenging the structures which served as mitigants to the progress of the Ummah in this regard.
Historical Nemesis: the Umayyad Legacy
The coming of Islam and the establishment of the prophetic state marked a watershed in exemplary leadership in the area of accountability and probity. The true Islamic spirit in this regard, consistent with the Sunnah of the prophet (S.A.W.) was maintained throughout the reign of three out of the four caliphs of the early period and over a substantial part of the Caliphate of Uthman. The example set by Abubakar, Umar and Ali in this area is difficult to relate in it’s entirety. Where does one begin?
Abubakar’s first Khutbah set the tone for his leadership: “Now O People! I have been made your ruler though I am not the best among you. If I do what is right support me. If I do what is wrong set me right. Follow what is true for it contains faithfulness, avoid what is false for it contains treachery. The weaker among you shall in my eyes be the stronger, until, if Allah will, I have redressed his wrong; the stronger shall in my eyes be the weaker until, if Allah will, I have enforced justice upon him. Let the people not cease fighting in Allah’s way lest He abase them; let not evil practices arise among the people, lest Allah bring punishment upon all of them. Obey me as I obey Allah and His messenger; if I disobey them, then do you disobey me”. These are the words of a man changed neither his residence nor his mode of living when he became a ruler. He refused to take a salary until his companions forced him and even then, on his deathbed he commanded that all he had received from the treasury during his tenure should be counted up and repaid out of his property and his lands.
Or do I begin with the second Caliph, Umar b. al-Khattab who said in his second sermon to his people: “O people! It is your duty, if I show certain evil qualities, to reprove me for them. You must see that I do not exact from you any tax or anything of what Allah has given you, except that which He allows. You must see that when I have control of the money nothing should be spent improperly…etc”. This is ‘Umar, who used to say: “The property of Allah has the same standing with me as that of an orphan; If I have no need of it, I will leave it untouched, and if I need it, I will take only what is right”. Asked what his entitlement from the treasury should be, Umar replied: “Two sets of clothing, one for the summer, one for the winter. Enough to perform the Hajj and sufficient to provide me with food for myself and my household on the level of a man of Quraish who is neither overrich nor overpoor`. Beyond that I am an ordinary Muslim, and I share the lot of all Muslims”.
Or do I begin with Ali, commander of the Faithful, who took over the caliphate at a time of great tumult, and who was grievously wronged by the dissent of some Companions? Ali who used to eat barley meal, hand ground by his wife, and who used to seal the meal-bag with the words “I like to know what is entering my stomach”. Ali who as Amir used often to sell his sword to get money to buy food and clothing, who disliked the “White Castle” in Kufa and preferred living among the poor. ‘Utba ibn ‘Alqama once visited Ali and found him sitting with sour curds in front of him. Their sourness and dryness vexed ‘Utba who said: ” O Commander of the Faithful do you eat this stuff?” He answered ” Abu Janub, Allah’s Messenger used to eat it drier than this and used to wear clothes coarser than these” – and he pointed to his own clothes – “and if I do not accept what he did, then I fear I will not join him in the hereafter”. The piety and asceticism of Ali are legendary.
It is obvious that so far I have skipped the third Caliph, Uthman, Zun-nurain, twice the son-in-law of the Prophet. Uthman, compiler of the Qur’an provider for the companions in times of need, of whom the prophet once said “nothing Uthman does after today will hurt him”. The greatness of Uthman in Islam is unquestioned; he was one of the six left at ‘Umar’s death with whom the prophet was fully pleased when he left this world. But the truth, and the truth be said, is that no discussion of accountability and probity in Islam and how the Muslim Ummah lost these values is complete without a discussion of the reign of Uthman and, more profoundly, the rule of his clan, the Umayyads over the Muslim world.
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‘Uthman became Caliph in old age and lasted for 12 years. The first six years were in keeping with the Sunnah of the Messenger and of Abubakr and ‘Umar. Then old age
set in, and some of ‘Uthman’s greatest strengths became weaknesses – he loved his family, and in old age became hostage to them. He was generous in spirit and in old age allowed profligacy with public funds. He held that as Imam he had the right to give public funds as gifts and allowances. When Harith ibn al-Hakam married Uthman’s daughter, the latter gave hin 200,000 dirhams from the public Treasury leading to a showdown with and removal of Zaid ibn Arqam from his position as treasurer. ‘Uthman gave al-Zubair 600,000 dirhams one day, and Talha 200,000 and presented his cousin Marwan b. Hakam with one-fifth of the land tax of the entire province of Ifriqiyya. The Companions expostulated with him but he insisted that he had a duty to take care of his relatives and kinsmen. Most of the latter day actions of Uthman were carried out under the influence of his family, the Bamu Umayya. Abu Sufyan, the prophet’s arch-enemy who refused to join Islam until the defeat of his forces in Makkah, and who even after joining Islam had nothing but contempt for Islamic values, especially the high esteem in which early Companions who he considered “slaves” like Bilal, Salman and Suhaib were held, was still alive. Like a mother-hen, he gathered his flock around him. He guided his son, Muawiya, his nephews Uthman and Marwan b. Hakam, and other Umayyads like al-Hakam b. al-As [who had been expelled by the prophet but rehabilitated by ‘Uthman], Abdullah ibn. Sa’d ibn Abi Sarh, and so on. Marwan had unlimited control of the Treasury, he dispensed gifts as he wished, supported oppressive Umayyad governors and ruthlessly destroyed dissenting voices. Abu Zarr, the prophet’s companion was exiled for his strident criticism of the prodigality of the Umayyads. At the end of the day, the excesses of Uthman’s appointees led to the fitnah in which he was sadly killed. But the seeds of corruption had been sown.
‘Ali took over the Khilafa at a point when the Umayyads had been strengthened. They had control of armies and had amassed substantial wealth. Under the pretext of fighting for the blood of Uthman the Umayyads waged a war against the seat of Islamic power, the caliphate, but no sooner had Ali died than did it become apparent that all they wanted was power. Muawiya appointed himself the “first of the Muslim Arab Kings”, forced everyone to accept him and his conversion of the Khilafa into a hereditary monarchy with his son, Yazid as his successor. Muawiya fought Ali with the aid of the Kalbi Arab tribes and the old Syrian aristocracy and set up a new political economy which Nazih Ayubi describes as a “lineage/Iqta’i symbiosis”. The Umayyads became feudal lords; their Jahili pride in Arab supremacy became once more ascendant and non-Arabs were gradually marginalized. All restrictions on the public treasury were removed and it became a legitimate source of public plunder for the kings, their courtiers and their sycophants.
This was the system that lasted over one hundred years with the one exception of the Umayyad Caliph ‘umar ibn Abdul-Aziz. So we see how in the formative period of Islam a corrupt aristocracy without regard for accountability and probity ruled the Ummah. It is inevitable that the long reign of the Umayyads set the tone for how subsequent Muslim leaders would see themselves. The attitude continued throughout Islam’s long history. Even today, in the oil-rich sheikhdoms of the Muslim world, the Royal families are not accountable to the people in their management of the Treasury. Saudi Arabia is the world’s foremost defender of Islam, of the pristine purity of the Sunnah and of the early Muslims; yet it is common knowledge that the Saudi Royalty is , to mince words, not exactly a paragon of accountability and probity.
All of this has been made possible by an intellectual superstructure, a moral philosophy that encourages acquiescence to the rule of corrupt and despotic rulers. Although the Umayyads themselves were beneficiaries of a rebellion against Ali, it soon became standard Sunni doctrine that rebellion against unjust and corrupt rulers was unIslamic. In what follows I examine the nature of this philosophy, and then proceed to the legal superstructure to which it gave rise [in the name of the Shariah] before concluding.
PHILOSOPHY: The Evolution of a Moral Ethic
A system can not survive for a long time without conditioning the mind-set of the populace. The early Muslim monarchies, despite everything said above, played major roles in prosecuting Jihads and expanding the frontiers of the empire, providing the young faith with the political and military protection required for its survival. Gradually, people came to accept bribery and corruption as an acceptable feature of political leadership. This acquiescence was attained partly by the genuine conviction that the benefits of political stability outweighed the costs of corruption; partly through the ruthless suppression of political dissent and denial of fundamental Human rights and freedoms; but also largely through an elaborate philosophical framework, principally within Sunni Islam, which makes it an Islamic duty to “listen and obey” corrupt despots so long as they pray.
The question of ethics in public policy is a fundamental philosophical question, which is relevant to all states and societies. Islamic philosophy in all its dimensions ultimately goes back to the principle of Tawhid [Monotheism]. Allahis the source of all knowledge, all guidance, all existence and all morality. A truly Islamic epistemology, ethic, ideology or science must therefore find its locus within the Divine Reality, and fit into the essential unity of Allah, the One.
It seems to me that somewhere along the line, Islamic ethics in the area of public policy lost its essential contact with Divine Reality. The ulama, deliberately or by accident, gave prominence to certain hadiths which were interpreted in a manner that made it incumbent on people to accept lack of probity and accountability. This was particularly true of Sunni Islam.
Among the Shiites, it was a different story. The principle of ‘Adl, [justice] like the Imamah, [leadership] is one of the Pillars of Islam according to Shii thought. Most of the philosophical discourse around Adl roots it squarely in the principle of Tawhid. Allah is a Just Lord, Who loves Truth and Honesty. It is therefore inconceivable that anyone who believes in Allah can perpetrate or tolerate injustice. It is in a similar vein that other sects like the Kharijites resisted the attempt by early Muslims to exclude certain groups from leadership on account of clan, tribe, race or even gender. It was considered inconsistent with Divine Justice as expressed clearly in the Qur’an.
Back to ethics, let me say that this debate is a recurring one in philosophy. The British moral philosopher, Iris Murdoch, was an emphatic moral realist who believed in the metaphysical foundation of morality. She argues convincingly for the existence of a metaphysical reality, the Good, which we perceive by our very perception of the imperfection of our world. Yet having laid the foundation for a metaphysical ethics, Murdoch says the Good is not God – she accepts the existence of this transcendental Reality but denies the Reality a will and an effect. To the best of my understanding, this is the point of departure between Iris Murdoch and moral philosophers among Christian Theologians.
The debate in our own moral philosophy is similar. Our scholars [by which I mean Sunni Scholars] have never gone to the extent of denying Allah a role in our lives. What they have done, in the context of the ethics of public officers is to build a shield between our morality and its source, the Divine presence. Our metaphysics is not in substance Murdochian, yet it effectively lands us in the same muddles as Iris Murdoch. A Muslim who believes in Allah the All-seeing [Al-Basir] does not lock himself in a room and turnout the light believing he can sin and escape. The same with one who believes in Al-Sami’ [the All-Hearing]. He does not speak things in private, which are prohibited by Allah. In exactly the same way, a Muslim who believes in Allah the Just can not stand injustice. Corruption, nepotism and abuse of office are manifestations of injustice.
It is my view that the survival of corruption in the Muslim psyche has been facilitated by the severance of the organic link between our moral philosophy and its Metaphysical roots in the Divine Reality. A proper apprehension of Allah, His Beautiful Names(al-asma’ al-husna) and His Exalted Attributes(as-sifat al-‘ula) must necessarily transform our ethic such that we not only seek to imbibe or emulate the moral good, we actually are moved, compelled, to seek its enthronement. The greatest tragedy in Sunni thought is its hatred of philosophy and philosophers and its enthronement of the legalistic rulings of jurists over all facets of our life. The priorities and constraints of the environment in which the jurists lived often conditioned these rulings. It is a point I have repeatedly made. The refusal of this Ummah to break away from the constriction of “blind copying” will only lead to a perpetuation of the social structures, priorities and value-systems of the environments in which the rulings were made. Even the authenticity of hadiths and the validity of their interpretation must be established after accounting for the impact of the environment on the narrators and interpreters. Most fundamentally, the principles of Tawhid, an apprehension the Allah’s Asma’ [Names] and Sifat [Attributes], must continue to be the inspiration for our moral, political and other philosophies. We will now briefly touch on the Shariah and how the ascendant philosophical outlook has restricted its scope.
The Shariah and Public Sector Corruption.
In the time of the prophet [S. A. W.] the government was not a major economic force. The role of the prophet was largely that of a guide, a judge and a military commander. The government treasury received zakat and fai’ for distribution but the major revenue flows and expenditures on social welfare, defence and the bureaucracy that later came to typify the state were virtually non-existent – It is natural that the crime of public sector corruption should not be a major feature of such a society not just because of the limited finance of the state but also, and more fundamentally, because of the quality of persons managing these funds and the presence of the Prophet of Allah among them. Thus although the Qur’an did come up with verses which showed the prohibition of corruption, its occurrence was rare and its punishment /deterrence was therefore not the pre-occupation of the Shariah at that stage . We find a greater focus on offences like theft, adultery, intoxication and slander – crimes of a largely personal nature, which was a reflection of the limited nature of public sector crimes.
With the passage of time and the conquest of the early empire, the coffers of the state were filled with treasures managed by human beings whose fear of Allah was decreasing by the day. Corruption became a cancer in public life, as we have shown. The Umayyads established a hereditary kingship, nepotism and the appropriation of booty and property and profits. Muawiya himself made it clear in his sermon in Kufa and Madinah that he had fought for power and would reap the benefits from it. The early Muslims did fight against this Umayyad mind-set. There was the great rebellion against ‘Uthman. Then there was the rebellion of the Hijaz against Yazid ibn Muawiya. There was the Qarmatian revolt. All of these and many more were directed against exploitation, arbitrary power, class distinction and other features of a system without accountability and probity. The striking thing about all of this is that the fight against corruption was always waged by those outside the establishment. Throughout the reign of the Umayyads, Abbasids, Fatimids etc, the Muslim world was governed by the Shariah, and by the system of civil and criminal Law recognised as distinctive of Muslim societies. Zakat was collected, the hands of thieves were cut off, and the courts continued to administer capital punishment for murder, apostasy and rebellion. Yet those who supervised the implementation of Shariah were themselves corrupt – and, seemingly, above the law. This is the question that I hope to address. A government can claim to be implementing Shariah, cut off the hands of a thief who steals a cow or money, force women to dress in a particular way, collect zakat for distribution etc, without coming out with strong sanction for corruption in public office. This has led some people to the false impression that the Shariah is a law designed to punish the poor while allowing leaders to go scot-free. Nothing can be further from the truth. I will show that what is described above is not Shariah, but its interpretation by society at different points in time in a manner consistent with the dominant world-view of the leaders and ulama in that society. It is not the eternal law revealed by Allah but its interpretation and crystalisation in time and space.
It is perhaps fair to say that the rudimentary nature of political structures in the muslim world, the absence of effective checks and balances and the low political consciousness of civil society have contributed to this state of affairs. It is however, equally important to recognise fundamental flaws in our understanding of Islamic Law.
Criminal/Civil Law in Islam divides offences, from the perspective of sanction, into three categories. Hadd offences [jara’im al-hudud] are those which attract a fixed and non-negotiable punishment once established. These include adultery & fornication, apostasy, drinking, rebellion, slander and highway robbery. Qisas and Diyah offences [jara’im al – qisas wad-diyah] are those which are retributive in nature, but which can be substituted by some payment in kind as restitution, or forgiven by the injured party or his heirs. These include murder, manslaughter and bodily harm. A third category, Ta’zeer offences [jara’im at-ta’azeer] refers to everything that is prohibited in the Qur’an or Sunnah but for which a punishment is not prescribed under Hadd or Qisas and Diyah. Understanding this point is critical to understanding Islamic Civil and Criminal Law. There has been a lot of polemic over the limits of punishment for ta’azeer offences. Abdul Rahman ‘Audah has a detailed discussion of these including justification for including offences not specified in the Qur’an and Sunnah but which affect “general interest” of society, in his classic work on Islamic Criminal Law [at-tashri’ al-jina’I al-Islami]
What interests us here is that for all offences defined as Ta’azear offences the Shariah provides a range of sanctions.
a] threat of punishment
b] whipping or caning
d] detention or jailing
e] crucifixion or execution
These offences have been extracted by scholars from the Qur’an, Sunnah and Ijma’.
Now we know that the Qur’an prohibits many things without specifying the punishment for the offenders. For example, we know that bribery is an offence, that nepotism, in the sense of appointing an incompetent person to office, is an offence, that consuming wealth of orphans is an offence, that spreading fasad [evil] and fahisha [obscenity] among the Ummah are offences etc. If the Hakim at a point in time chooses not to punish an offence severely [and we have said his options are as severe as the death sentence] it is not because the Shariah does not provide for it but because either the judge or the government does not consider it a problem. As we live in an environment in which these offences bother all of us, [corruption, religious intolerance, destruction of places of worship, mediocrity in the name of quota system, tribalism and ethnic genocide etc.] we must remember that Sharia explicitly prohibits each of them and also allows the state to punish with a range of punishments including jailing and death. The choice however reflects our own values, not of the Shariah. That corruption has for so long remained unpunished is a reflection of the underlying moral philosophy, which has come to permeate our collective consciousness, deadening the sense of outrage and revulsion against this heinous and cancerous crime.
I have been given only 40 minutes to speak on this wide topic. I have attempted to cover in this paper the origin of corruption in the public affairs of the Muslim Ummah, the philosophy which has nourished it and the legal superstructure which, elaborate as it is, has been seemingly designed by lawmakers to side-step it. I do not believe I have exhausted all the issues relevant to this topic. I hope that I have given us all food for thought and contributed to our outstanding of Islamic history, philosophy and law. If I have sounded critical of some aspects of Muslim thought, please accept this clarification: I have implicit respect and love for generations gone by. However, no one is perfect and it is only by learning from mistakes of the past and questioning “received wisdom” that change is possible. “Allah does not change what is with a people unless they change themselves”.
Finally, dear readers, please remember that I am not a jurist, but a banker. What I have written that is right, is from Allah. What I have written that is wrong is from me and Shaitan, Allah and His prophet are free from my errors.
Assalamu Alaikum wa Rahmatullah wa Barakatuh.
The writer is a renowned commentator on national affairs. source
NewsRescue- Sanusi Lamido was at the UBA bank of Nigeria when he gave this speech, he is currently the Governor of the Central Bank of Nigeria, and at the center of a National debate on the Central bank’s completion of the framework to regulate Islamic banking in Nigeria.