SHARIAH AND THE WOMAN QUESTION

by

Sanusi L. Sanusi



Prof.Mazrui’s has 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 the Shariah and the 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
(unlawful)?" 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
Khaleel as the magnum opus. Let me say that the 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 bedeviled 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 the 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 the 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 hermeneutics 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
corner piece of his message. By comparison, the degeneration of political
values and the emergence of new, hereditary monarchies in 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 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 appear 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, ‘Iyadh 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 contextualize 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 colored, 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,tomatoes and garlic, i.e. the wealthiest farmers in the state!! By
contrast, the founder of the Hanafi school who lived in the fertile country
of Iraq with advances in agriculture from the days of the Persian empire
ruled that zakat 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 legitimate the rule of the Quraysh
by the companions, of Ali and the prophet's descendants by Shiites, of any
competent Muslim by the Kharijites (including women in one of their sects)
etc. reflect underlying economic and political configurations. Our
ideologies determine which of the Prophet’s sayings we give centrality, 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 Uthman 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
on 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 the source of temptation or an object of sexual desire
which must be curtailed, locked up and separated from men in buses and on
Okada.

To be fair on the states implementing Shariah, they have been victims of a
deliberate campaign of calumny aimed at portraying them as oppressors of
women. The governor of Zamfara, for instance, has repeatedly denied the
existence of any law banning women from riding Okada. However, the states
should take responsibility for the conduct of uneducated and fanatical youth
whose actions can give Shariah a bad name. These youth need to be
controlled. Secondly, the states implementing Shariah need to take bolder
public strides in defence of their women. Policies on women education, job
opportunities and reverse discrimination have to be put in place. Stiff
penalties should be meted to adults who subject girls to forced marriages,
under age marriages, child-labour (such as street trading) etc. It is these
practices, coupled with a lack of education and a weak economy, which are at
the root of vices like prostitution.

In his B.U.K lecture, Professor Mazrui refers to Uthman Dan Fodio’s views on
women as "advanced" for his time. The truth is that Dan Fodio simply had a
better grasp of Islamic jurisprudence and a greater willingness to address
the problems of his own time. The Shehu understood fully what jurists like
al-Ghazali, al-Shatibi, al-‘Amidi, Imam al-Haramayn, Ibn ‘Abd al-Salam,
al-Qarrafi and Ibn Taymiya referred to as the general objectives (al-maqasid
al-‘amma) of the Shariah. He knew the differences between (and the relative
rankings of) absolute necessities (dharuriyyat), basic needs (hajiyyat) and
adornments (tahsiniyyat). The Shehu recognized the need for defining
priorities (awlawiyyat), for comparative analysis (muwazana) of the final
consequences of competing options and for the need to sacrifice lesser and
short-term goals so as to achieve more fundamental and sustainable ones.

Like the great Maliki scholar he was the Shehu adopted, in matters of public
policy, a wide interpretation and application of the principle of maximizing
the public good(al-maslaha al-mursala). Finally, as is evident from his book
Najm al-Ikhwan, the Shehu knew that the Shariah was not designed to
introduce difficulties and hardships (haraj) to the community. On the
contrary, the religion of Islam prides itself in being a religion of ease
(yusr) and a mercy (rahma) to mankind. It is instructive that the Shehu
labeled the concluding Chapter in the said book "On the need for brothers to
ask the scholars of their own time." In the chapter he explains how the
scholars living in a society are in the best position to analyse and
interpret that society. The Shehu was specific in discouraging the community
from seeking answers to its problems in the writings of past masters. This
was an apt conclusion to a book which was a great intellectual exercise in
interpreting Islam in the context in which the Shehu lived.

The lesson in Mazrui’s interview is that we must return to the spirit of the
Shehu as contained in his works, particularly the Najm. We must return to
the spirit that made Shehu hold mixed classes for men and women, preferring
this situation to a segregation leading to a lack of education for women- a
position fully articulated and defended by his brother, Shehu Abdullahi, in
his Tazyin al-waraqat. It is only by doing this that we will arrive at the
true position of the Shariah on the woman question.

The writer is a renowned commentator on Islamic and national affairs

With the very best of good wishes,
Musa Amadu Pembo
Glasgow,
Scotland
UK.
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Da’wah is to convey the message with wisdom and with good words. We should
give the noble and positive message of Islam. We should try to emphasize
more commonalities and explain the difference without getting into
theological arguments and without claiming the superiority of one position
over the other. There is a great interest among the people to know about
Islam and we should do our best to give the right message.
May Allah,Subhana Wa Ta'Ala,guide us all to His Sirat Al-Mustaqim (Righteous
Path).May He protect us from the evils of this life and the hereafter.May
Allah,Subhana Wa Ta'Ala,grant us entrance to paradise .
We ask Allaah the Most High, the All-Powerful, to teach us that which will
benefit us, and to benefit us by that which we learn. May Allaah Subhanahu
Wa Ta'ala grant blessings and peace to our Prophet Muhammad and his family
and
companions..Amen.

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