Secularism, Shari’ah and Nigerian Constitution (1)

By Dauda Ayanda   |   24 September 2015   |   11:26 pm  

nigerian constitutionIN 1610, Galileo Galilee published his Starry Messenger (Sidereus Nuncius) where he described the surprising observations that he had made with the new telescope on heliocentric theory.Heliocentrism is the astronomical model in which the earth and planets revolve around the sun at the centre of the solar system as against geocentrism which places the earth at the orbital centre of all celestial bodies. The concept was earlier observed by the medieval polymath Nasri al-Din al-Tusi using a Tusi-couple to replace Ptolemy’s geocentric model which later influenced Ibn al-Shatir and Nicolaus Copernicus.

Galileo’s initial discoveries were met with opposition within the Catholic Church who declared heliocentrism to be formally heretical and he was subsequently investigated by the Roman Inquisition for championing heliocentrism. The Inquisition tried Galileo in 1633 for implicitly defending heliocentrism and found him “vehemently suspect of heresy”, thus sentencing him to indefinite imprisonment. Galileo later died under house arrest where he was kept in 1642.

It was this struggle between Christian theology and free thoughts that led to the concept of secularism in Western Society. George Jacob Holyoake in 1851 coined the term to describe his views of promoting a social order separate from religion without actively dismissing or criticizing religious belief. As an agnostic, he conceptualized secular knowledge as manifestly that kind of knowledge which is founded in this life, which relates to the conduct of this life, conduces to the welfare of this life, and is capable of being tested by the experience of this life.

According to Osita Ogbu in his published article in The Transnational Human Rights in 2014 on Secularism, Law, Human Rights and Religion, he traced the origin of the modern state to the Renaissance and Reformation, the split between Catholics and Protestants and the 30 years of wars of religion in Europe. The deadlocked war led the church to seek protection of the king and the king seized the opportunity to establish royal absolutism. This anomaly provided ample opportunity for the establishment of independent sovereign nation-states in Europe where the king became the head of state and the object of loyalty of all men irrespective of religious denominations. Thus, the sovereign state emerged to vindicate the supremacy of the secular order against religious claims and forced the clerics into a position of subordinate authority.
In political terms, secularism describes the movement towards the separation of religion and government which is usually termed as the separation of church and state during the Age of Enlightenment in Europe. The principle plays a major role in evolution of modern society in the West which largely influences decision pertaining to legalization of abortion, contraception and of lately same-sex marriage. Homosexuality, lesbianism, gay marriage and other LGBTs are direct products of secular principles in the modern world which have been given legal recognition in European countries and USA among others.

The general policy of the West was to adopt its policy as a model for developing countries which necessitate the diplomatic overtures currently being championed by USA to Africa over legal recognition of homosexuality. Consistently with this policy, there was a conscious or subconscious omission to take cognizance of “outside features”. Everything that was not Western was “outside” and uncivilized. Thus the range of enormous pre-colonial human experiences as well as the native institutional facts that distinguished Africa and Africans as the “the cradle of civilization”, were given scant recognition, if at all.

Rather the colonialists were committed to making the Blackman believe that he has never been responsible for anything, at all, of worth, not even for what is to be found right in his own house and home. In this way, it is easy to bring about the abandonment and renunciation of all national aspirations on the part of those who are wavering, and the reflexes of subordination are reinforced in those who have already been alienated. This explains the promotion of secularism in Nigeria which is antithetical to our multi-religious understanding of over 250 ethnic identities.

Shari’ah, as one of the fundamental culture of over 80 million Nigerian Muslims, is an Islamic legal system that covers both the temporal and divine rulings of every facet of human endeavour. The spread of Islam which is accompanied with the adoption of Shari’ah in Nigeria dated back to the eleventh century when it first appeared in Borno in the northeast of the country. The first Muslim king Hume Jilmi in the Kanem Bornu Empire (1085 – 1097 CE) acquired Quranic knowledge and the contents of other Islamic literatures. Hume’s son, Dunama I (1097-1150 C.E) was also interested in learning Islam.

It is also on record that Imam Abdullah Dilii bn Bukuru taught Mabradu Ibn Salma, the son of the then ruler of Kanem Bornu, Mai Salma (1194-1221C.E) from about a hundred and fifty books. Thus, Shari’ah became a legal system of jurisdiction with the adoption of Islam in Kanem Bornu Empire. Again, Mai Idris Alooma (1570-1602) of the Kanem Bornu Empire also introduced Shari’ah in his empire and made Islam the state’s religion.This development showed that Islam cannot be divorced from Shari’ah and vice-verse.

It is very significant to note here that, centuries prior to the advent of British colonialism in Nigeria in 1842, the area presently known as Northern Nigeria had her own formalized administrative institutions under the Islamic legal system. Islam is a total way of life. It stipulates the rights due to God from Muslims, the rights of their fellow beings, and that of adherents of other faiths.

To appreciate the positive impact of Islamic Law in the pre-colonial days, F.H. Ruxton, a consultant to the colonial government stated as follows:”The advantages to be gained by knowing something of the lawof the people we govern are self-evident, especially when, as in the case of the Muhammedan countries, it is the law that hasmoulded the people, and not the people the law. Again, where, as in the Northern Provinces of Nigeria it has been the policy of government to rule indirectly through the native administration,knowledge of the Muhammedan law is more than ever necessary,giving us, as it does, a clue, to many acts, and supplying the mainspring for many motives, which otherwise we should fail to understand. The more we can grasp the inward significance of motives and acts, the more sympathetically, and therefore the more efficiently we shall be enabled to administer Muhammedan peoples’’

So, it was not therefore surprising that the colonial administrationfound the Islamic legal system not only fully developed but equally a convenient tool for the indirect administration of the northern region, though the application was limited to the repugnancy clause principles.
Despite the in-depth appraisalof the impact of Islamic Law on the people of Northern Nigeria, the colonialists did not avoid the temptation of tampering with it, and attempting to displace it with the Common law of England by the introduction of the repugnancy test.

This in the face of the fact that Islam has not only been the way of life of the Muslims of theNorth but that Islamic law has always governed their transactions and livelihood. Customary law has also not been spared the repugnancy test, in order to qualify as a good law. The use and effect of Islamic andCustomary laws became dependent on the permissive extent of the general law. The operation of Customary and Islamic laws became dependent on the satisfaction of the rules of Common law, equity and good conscience.
.Engr. Dauda Ayanda (MNSE), wrote from Ibadan.

…TO BE CONTINUED



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