Pebble casting and Hajj 2015’s Jamaraat casualties (2)

The emerging critical and creative intervention concerning an obligatory part of Hajj was stimulated by Emir Sanusi’s presumably genuine concerns over the colossal loss of lives as occasioned by the stampeded scramble for the observance of the pebble casting rite. It may even be argued that the Amir-ul-Hajj’s pronouncement is a product of deep thinking about the possible way of preventing a recurrence of the catastrophic experience especially in view of the initial horrendous and insensitive attribution of the stampede to “some Black African pilgrims’ actions” or inactions as contained in some preliminary official statements by the Saudi Hajj authorities.

There also was a contribution by Dr. Aliyu Tilde who attempted a compilation of Devil Stoning rules and regulations, in the context of today, as published in The Blueprint of October 13, 2015. It may be inferred from the foregoing that the unfortunate experience, its possible causes and consequences as well as its theological implications, deserve a systematic analysis for the purpose of arriving at the ameliorative proposal initiated by Emir Sanusi. However, this piece chose to address its implications for Nigerian pilgrims especially in the context of the declaration by the Amir-ul-Hajj.

One clarification is due here vis-à-vis the Amir-ul-Hajj’s creative proposition: Is such a thinking really alien or bizarre in the Islamic jurisprudential tradition. My answer to this is not in the affirmative. This position is strengthened by the fact that he was prompted to exercise his Islamic scholarly intellect to proffer a way of preventing a recurrence of the innumerable fatalities recorded this year with Nigeria accounting for a substantial proportion of them. Hence his suggestion that it is either Nigerian pilgrims are relocated to a better or less remote location to the Jamaraat or they henceforth cease to partake in “Devil stoning”. It may be argued that the rationale for his proposition lies in the need to avert an undesirable experience.

If these conjectural considerations are true, then the creative solution, though arguably invalid in the estimation of some traditional Islamic scholars, is in keeping with the spirit of Maqaasid al-Shari’ah (Purposes of Religious Provisions), which is grounded in the rationale that rituals or acts of worship are expected to be performed with ease and not hardship. It should be pointed out that the closest to this line of thinking among all the contributors so far to the discourse, is Dr. Aliyu Tilde.

However, the Emir’s idea sounds strange in their estimation owing to the fact that the experience that precipitated it was unprecedented which was why the proponent could not access any earlier authoritative jurisprudential position to rely upon. His ijtihaad, that is, Islamic legal reasoning, found no express justification in the Qur’an (although he was said to have quoted several injunctions from the Qur’an), the Hadith (Prophetic Traditions), Ijmaa’ (Consensus of Islamic Jurists), Qiyaas (Islamic Analogy), and Istihsaan (Legal Approval or Jurisprudential Preference), and may therefore be situated in the context of Masaalih Mursalah (Unprecedented Stakes or Considerations) which ranks sixth among the ten orthodox sources of Islamic Legislation.

Masaalih Mursalah are normally occasioned by exigencies or emergencies experienced after the cessation of divine revelation. They are cases that never arose during the lifetime of the Holy Prophet (on whom be peace and blessings of Allah) and therefore never received any approval or rejection in the prophetic presence. The rationale for the recognition of this Islamic source lies in the fact that there will always be exigencies, emergencies, unexpected cases or unforeseen circumstances in human society.

Accordingly, the common interest of individuals or a community is accepted as a Shari’ah-based source for legislation in the absence of Qur’an, Hadith, Ijmaa’, Qiyaas, or an Istihsaan-based ruling. Alhaji Lamido Sanusi’s argument may be easily located within this Islamic legal framework which is a sharp contrast to Masaalih Mu’tabarah which concerns decided cases, considerable interests, precedented questions, treated issues, common experience and familiar matters that had been preemptively pronounced upon by the Holy Prophet and captured in the Shari’ah. Instances of this abound in Islamic Jurisprudence. For instance, in order to protect human live or soul, the Shari’ah prescribed retribution on murderer. Similarly, amputations were prescribed on theft, as a protective measure to properties and a deterrent to the perpetrator.

In a similar token, penal recommendations were made on slander, adultery and fornication, in order to preserve human dignity. The penal measures against murder, theft, slander and adultery were all grounded on the need for the protection of human interest based on experience, previously decided cases or notable precedents. Conversely, the 2015 Jamaraat fatalities attained an unprecedented proportion in the estimation of the revered Emir and therefore stimulated his Islamic legal intellectual curiosity to proffer solutions.

Closely related to this is the idea of passing a night at Muzdalifah as practiced by the Holy Prophet. While the Hambalites favour only the idea of combining both Maghrib and Ishai prayers before leaving by midnight, the Malikites favour the idea of combining the two prayers and advancing shortly after taking dinner. The Malikite position is conscious of the emerging concerns over Hajj especially in view of the mammoth congregation or huge number of pilgrims converging annually on the Holy Sanctuaries.

According to Shaykh Yusuf Al-Qardawiyy, the Malikite position in this regard seems more realistic and considerate of the situation on ground. “How do we ask several millions of pilgrims to all pass a night in Muzdalifah and remain there till daybreak”, Al-Qardawiyy rationalized. “Unless we approve the idea of asking pilgrims to move in batches from midnight, the pathways may never fall short of being jam-packed and stampeded”, the distinguished jurist further argued. ”If the earlier jurists and Imams witnessed the kind of crowds or stampedes that we witness today at the Sanctuaries, they certainly would have advocated the position we are promoting now given the fact that whenever the Holy Prophet was asked about Hajj rites, he never for once failed to enjoine the need to facilitate their easy performance”, Al-Qardawiyy added.

This view is favoured by leading Islamic jurists of today such as Shaykh Wahbah Zuhayli of Syria, Shaykh Tantawiyy and Shaykh Ali Jum’ah both of Egypt, Shaykh Ibn Uthaymeen of Saudi Arabia and few notable others. There is no strain in inferring from all these that Alhaji Lamido Sanusi’s efforf at proffering a way of preventing a recurrence of deaths at Jamaraat, is not out of place and therefore deserves some appreciation.

• Ahmad Rufai is Acting Dean, Faculty of Education, Sokoto State University, Nigeria