Shariah And the Woman Question

By Sanusi Lamido Sanusi, Weekly Trust (Kaduna), 18 September 2000

Kaduna—Ali Mazrui's brilliant interview in Weekly Trust (18/8/2000) opened a new vista in the Shariah debate: the internal Islamic discourse aimed at ensuring that the on-going Shariah project does not end up in the misapplication of Shariah and misuse of Islamic concepts as a justification for the entrenchment of latent or manifest interests.

Now that it seems clear that the various state governments of the Muslim North have affirmed their right to promulgate Islamic laws under the constitution, it is timely that Mazrui has reminded us once more that the Shariah, though a Divine law, is subject to human interpretation and is often not completely free from subjectivities.

Mazrui begins by summing up his major reservations in terms of what he calls excessive legalism, a pre-occupation with is this halal (lawful) or haram (un1awful)? Yet on a closer reading of the interview, one concludes that the term excessive legalism was used flippantly, possibly because of the nature of the medium. Shariah, by definition, is inseparable from legalism. However, what clearly emerges is that Mazrui objects to the tendency to see Islamic law as being in perpetual statis, the failure to exert the intellect in the quest for new definitions and the implicit assumption that the founders of the various schools of law have once and for all asked and answered all questions for all Muslims everywhere to eternity. In this, Mazrui hits the problem of the Muslim North in this regard right on the head.

The traditional educational system in the Muslim North, which forms the bedrock of Islamic scholarship revolves around a set of books introduced to the region by the Almoravids, centred on Maliki law, with the Mukhtasar of Sidi Ali as the magnum opus. Let me say that education itself is of a high standard. It is difficult and requires a strong sense of discipline and commitment. Yet despite all its strengths, it is bedevilled by all the usual problems linked to a stagnant system. It encourages rote learning, does not welcome imagination and most dangerous of all, perpetuates the myth that scholars living at some historical point have somehow transcended the limitations of mortal knowledge and offered solutions for problems they had no idea about.

The system confuses belief in the universal and eternal applicability of the Shariah with the need for a wholesale adoption of its historically-specific interpretation to meet the requirements of a particular milieu. This confusion in turn throws the Ulama into a cul- de-sac of sorts. If society changes and evolves, new questions are thrown up and, consequently, new priorities are set and options are re evaluated if Shariah is to be relevant. But the flexibility (muruna) and evolution (tatawwur) which are needed for the law to be applicable and relevant to every time and place are denied Shariah by the very failure to contextualize rulings (mazahib) in their historico- culturally specific milieu. We have thus foreclosed the option of academic space within which a discursive trend may evolve, strictly based on the herneneutics of Islam and not derived from or reducible to alien concepts, and on the basis of which we can amend, adapt, extend or abrogate previous rulings and priorities and arrive at new equally valid but more relevant ones.

At the level of praxis, the wholesale adoption of this law (or rather, this set of rulings) and its forced implementation on modern society has the effect of seeking to turn back the clock of history and revert us to the cultural conditions, value systems and even ideological priorities of medieval Arabia, that is, the context in which these rulings were first compiled. Nowhere is this evident as with the obsession of all modern attempts at implementing Shariah with the woman question. Of a certainty the- Prophet of Islam and the Qur'anic revelation did come up with guidelines for women in terms of conduct, dressing and the regulation of cross-sexual interaction. But there is no evidence that the Prophet (S.A.W) was as obsessed with the woman question as we seem to be or that it formed the cornerpiece of his message. By comparison, the degeneration of political values and the emergence of new, hereditary monarchies the Muslim world came with a shift in the focus of Islamic discourse in the realm of public policy. Scholars in the main, turned a blind eye to such issues as tyranny, injustice, corruption, abuse of office and the rights and liberties of the poor and weak (mustadh 'afin). The emphasis became one of justifying new social relations such as the right to hereditary leadership, the supremacy of the Arabs or even particular clans among the Arabs over other peoples and the need to keep women (and slaves) where they belong at the bottom of the social ladder. The interest of the Holy Prophet and his companions where women were concerned lay in freeing them from bondage to man, giving them rights in marriage, inheritance, participation and economic empowerment as well as raising their status to one of equality with men as servants of the same true God, though allowing for male leadership in areas of joint effort, mainly marriage and the family. Subsequent interest, however seems to have turned to an attempt to return to the jahiliyya (ignorance) period and a gradual increase in the level of confinement of women and restriction of their ability to move in physical and intellectual space. If care is not taken, the wholesale adoption of the legal rulings and priorities of this milieu will lead to the religion of Islam being used as a divine license for inherently unfair gender relations which are a part of the Northern social formation.

Even a cursory student of Islamic history knows that all the trappings of gender inequality present in the Muslim society have socio-economic and cultural, as opposed to religious roots. The excessive restriction of women and other manifestations of male domination are no more an integral part of Islam as a religion than say the sanctification of the Arabic language and the tendency towards institutionalized racism which appeared in some of the literature of those days Muslim men, like all men everywhere, are the last to accept that gender inequality is a social contraption rather than a religious imperative. This is natural not only because men are the ultimate beneficiaries of this inequality but also because only those who are victims of injustice tend to see it and appreciate the absurdity of attributing it to God.

One possible approach to stimulating the male mind is to look at other institutionalized prejudices that led to rulings which the modern Nigerian Muslim can contextualize. As an example, let us take the great Muslim jurist, 'lyadh ibn Musa. 'Iyadh was a great and pious scholar on whom al-Nawawi relied extensively in his commentary on the Sahih of Imam Muslim. He is more widely known in scholarly circles in our country for his unmatched book on the Prophet (S.A.W) entitled al- Shifa. This book, along with the Qur'an is used for lessons during Ramadhan. The point which interests me here is that among the things considered by Iyadh as apostasy in Islam is to say that the Prophet was black! Now this simply sounds like a racist remark until you take time to contestualize it. In a society where slaves existed and constituted the lowest rung, and where most blacks were slaves, it was an insult to call a non-black black. It is something like calling a white man nigger in 19th Century America. The ruling therefore reflected the prejudices against black people in a particular context and can not be taken as the Sharia for all times. To have a clear picture, compare 'Iyadh's position with that of the contemporary Afro-American Muslim intellectual, Khalid al-Mansour. In his book, Betrayal by any other name, al-Mansour argues that the Prophet was black. He quotes the Prophet as having said, on his death-bed, we must always remember the African Copt tribes, because we have their blood in us. He also relies on descriptions of the Prophet as large-mouthed and bluish coloured, with hair that was neither curly nor straight. An Arab reader can be forgiven if he sees this as a racist remark.

Several instances readily come to mind. Ibn Taymiya, in his book, Iqtidha al-sirat al-mustaqim, seems to give implicit approval to a ruling that speaking a language other than Arabic by a Muslim who understands the language is a sign of hypocrisy. Some have also attributed to him a ruling to the effect that a black woman need not cover herself since, presumably, she is not attractive. Even geography played a role in rulings. Living in the deserts of the hijaz where only food-crops were grown on a commercial scale, the founders of the Maliki, Shafii and Hanbali schools restricted zakat payments to those crops. This means, since the Maliki school is the one adopted by Zamfara, that it can force a maize farmer who produces 20 bags to pay zakat while collecting nothing from large-scale farmers of cotton farmland and garlic i.e. the wealthiest farmers in the state! By constract, the founder of the Hanfi school who lived in the fertile country of Iraq with advances in agriculture from the days of the Persian empire ruled that zakar was payable out of any produce of the earth once it reaches a minimum nisab. This was only possible because Abu Hanifa knew that anything could be grown on a commercial scale. Political considerations and exigencies have also played a role in rulings from the earliest Islamic period. The selective reference to Tradition to legitimise the rule of the Quraysh by the companions, of Ali and the Prophet's descendants by Shiites, or any component Muslim by the Kharajites (including women in one of their sects) etc. reflect underlying economic and political configurations. Our ideologies determines which of the Prophet's sayings we give certainty, how we interpret them and therefore what our own understanding of Islam is. The point here is to understand that interpretation of Islam has never been in a vacuum. It has always been the product of a dialectical relationship between revelation and the objective reality of existence. While the sources we rely on for our law are impeccable, our use (or interpretation) of those sources is tinged with motives, prejudices and limitations. It is the sanctification of this interpretation, rather than the imperative of Islam, that results in fanaticism.

Shehu Usman Dan Fodio himself spent a lot of time fighting for the liberation of women. In one of his Fulfulde poems, the shehu had this to say: Some women are in trouble because their husbands think of nothing but sex - some men eat huge meals away from home without caring to know if their wives have enough to eat -they are hard by nature and fault-finding by disposition - they confine their wives too closely - they neither educate them themselves nor allow them to benefit from being educated by others - The Shehu did not encourage women to wander around aimlessly or in mischief, but he recognized that they should go out if the need arose, properly dressed. He says: Womenfolk take heed! Do not do communal, farm work and do not assist in herding - cover yourselves up and spin the thread, you need to clothe yourself with if you visit the tombs of saints do not have arguments - if you have to go to the well to draw water, do not misbehave- if you meet in social occasion do not backbite or gossip - the best thing is to let men-folk go to the market, but if circumstances compel you to go, dress in a restrained manner. Some of the things Shehu said about the men of his time are very familiar, almost as if he was writing about the contemporary northern man they fail to dress, house and feed their wives adequately they - show favouritism between one wife and another - they revile their wives - and beat them excessively - they do not educate them and if 'they' divorce them, they spread malicious tales about them - others refuse to divorce unhappy wives.

The image that emerges is that of a man concerned with the plight of the woman. He wants her freed from forced labour, from undue confinement. He wants her liberated from an unhappy marriage educated in the same manner as a man. Shehu Dan Fodio's concern about the female like that of the Prophet (S. A.W) was driven by a desire to improve her lot. It was not primarily a concern with her as a source of temptation or an object of sexual desire which must be curtailed, locked up and separated from men in buses and on Okada.