Aḥkām Ad-Diyār and the Grey Questions on Ḥudūd Rulings (including Blasphemy) in Nigeria
(Estimated Reading Time 25 minutes — 5,460 words)
Bismillah! On 10 August 2020, Khadi Muhammad Ali Kani sentenced Yahya Sharif Aminu to death by hanging for blasphemy against Prophet Muhammad (ﷺ). The Shariah court arraigned Yahya Sharif Aminu on a one-count charge of insulting religious creed contrary to Section 382 (6) of the Kano State Shariah Penal Code. The defilement of revered religious symbols and teachings by Yahya Sharif Aminu, his vulgar language, juvenile display, and profane attribution of polytheism to Prophet Muhammad (ﷺ) bear the hallmark of provocation and incitement. Anyone who carefully reviewed the 3-minutes WhatsApp message would agree that the immoral utterances of Yahya Sharif Aminu are reprehensible and cannot be justified in any way. What seems to have started as an in-group altercation quickly morphed into the offense of religious sensibilities and the judicial pronouncement of a death penalty. Since the announcement of the death penalty on Yahya Sharif Aminu, Muslim clerics, Islamic organizations (including the Supreme Council of Islamic Affairs and the Muslim Lawyers Association of Nigeria), and civil societies have added their voices to the verdict.
Is the death penalty on Yahya Sharif Aminu valid? In this essay, I present the grey questions on the Islamic legal concept of territoriality and its relationship to the rulings on ḥudūd (fixed penalties of Islamic law). I argue that unlike Saudi Arabia, Nigeria does not fulfill any of the standard criteria to be classified as an “Islamic territory”. Yahya Sharif Aminu’s infraction did not take place in a territory solely governed by the legal and ethical norms of the sharīʿa alone. Based on the concept of ikhtilāf al-dārayn, Muslims who violate the legal norms of the sharīʿa in territories outside the jurisdiction where the sharīʿa alone is the supreme legal system are only accountable to God. The validity of the judgment on Yahya Sharif Aminu is open to question.
From an Islamic legal perspective, what is the territorial status of Nigeria in Islamic law? Is it dār al-islām, dār al-ḥarb, dār al-kufr, dār al-ʿahd, dār al-muʿāhada, dār al-amān, dār al-ṣulḥ, dār al-muwādaʿa, dār takhlīṭ or any other category in the Islamic territorial paradigm? Under what conditions is it valid to implement the ḥudūd in a land whose territorial status does not conform with the standard criteria of dār al-islām? Are the rulings on ḥudūd as embodied in the sharīʿa territorially bound or can they be implemented anywhere be it in dār al-islām or vice versa? To what extent are the rulings on ḥudūd and the sharīʿa penal codes valid under a “secular” or “multi-religious” political system whose overarching claim to democratic rules of governance are at near or complete variance with the classical theories of Islamic governance?
Should the traditional Islamic territorial classifications along the paradigm of al-taqsīm al-islāmī li-l-maʿmūra, al-taṣawwur al-islāmī li-l-maʿmūra, and al-jughrāfiyā al-fiqhiyya li-l-ʿālam be applied to Nigeria? If yes, what are the implications of these territorial classifications on the application of the sharīʿa and the execution of the rulings on ḥudūd for Muslims, in particular, or apostates who renounce Islam or those indicted for the act of blasphemy in Nigeria? If no, at what point do the traditional Islamic territorial categories that Muslim scholars have previously deployed to define the “Islamic” status of territories in Africa cease from applying to Nigeria? The ʿUlamāʾ and fuqahāʾ in northern Nigeria that uphold the latter position would have to revisit Ibn Fūdī’s dualist conceptions of territories and provide a new Islamic territorial category for Nigeria.
SHARĪʿA AND THE DĀR AL-ISLĀM REVIVALIST PROJECT
Since 1903 when Waziri Muhammad Buhari penned the treatise “Risālat al-wazīr ilā ahl al-ʿilm wa al-tadabbur” with an explanation of why he surrendered to the British, the Islamic territorial category of colonial and post-colonial Nigeria has remained a subject yet to be addressed appropriately. In his treatise, Waziri Muhammad Buhari proclaimed that the usurpation of political authority by the British and the imposition of new laws other than the sharīʿa took away the “dār al-islām” status of the colonized territories. He also reiterated that although the British did not interfere in Muslims’ practices of the five fundamentals of Islam and Hijra is not feasible, Muslims must refrain from showing their wala and tawalli (loyalty) to the British. According to Waziri Muhammad Buhari, Muslims must despise the new colonial-style political and legal systems in their hearts even if they are compelled by the British to accept it outwardly. He also obliged Muslims to strive for the revival of the dār al-islām that was supplanted by the British. This quest of connectedness to an idealized past through the revival of dār al-islām is the pivotal project of nearly all the Islamic reformist movements in Northern Nigeria since 1903.
While some movements aim to revive the decimated dār al-islām or its replica through ‘a shiga a gyara,’ other movements believe only da’wah and jihad concurrently can bring back the “lost caliphate”. Some other movements advocate for an incremental project starting with the purification of the spiritual practices of Muslims away from bidʿa (creedal innovations) through education (al-taṣfiya wa-al-tarbiya) before advancing to the stage of istiʾdād Ar-rimāyat bi-l-sahm and tadrīb al-junūd al-Islāmiyya. In the same continuum of reformist movements is the defunct Darul Islam that proselytizes the creed of Muslims’ physical emigration from the perceived profanity of the current political order to a secluded enclave where they can freely implement God’s laws without secular inhibitions.
The theological rubric common to nearly all the Islamic reformist movements is the religious discontent with the status quo and the desire to resuscitate the implementation of the “true sharīʿa” (a moniker robed with copious ambiguities) as it was once practiced and implemented in dār al-islām. Each reformist movement has its unique scale of defining the boundaries and contours of what constitutes the “true sharīʿa.” Despite its deficiencies, the Ahmed Yerima’ s-led sharīʿa project was well-received by Izala, the mainstream Sufi ṭarīqa, and the sharīʿa advocacy organizations including the Supreme Council of Islamic Affairs, JNI, and NSCIA. However, it did not take too long for the ovation that greeted the sharīʿa project of Ahmed Yerima to mutate into disenchantment. The anticlimax in the milieu was seized upon by other reformist movements that saw the mission of resuscitating the “true sharīʿa” as an uncompleted project. The unfinished quest of the centuries-old revivalist project was aptly captured by Abdullahi Doki (then Lecturer in the Department of Mass Communication, Kaduna Polytechnic) in his August 2003 article “Muslim North, the Caliphate, and the Shariah States: Re-Islamisation Uncompleted.” In the article, Abdullahi Doki wrote:
“It is a predicament we may not have realized that after the 1804 jihad, the Sharia implementation project Governor Ahmed Sani Yerima started is the only event that presently exposes the confused situation of Muslims in Northern Nigeria. In the Muslim North, the Sharia project now confronts us directly like never before with all the problems that have divided, colonized, and made us powerless Islamically. No doubt, the Muslim North needed Governor Ahmed Sani Yerima to wake us up. But our destination must not end in the revitalized Zamfara State penal code only. The penal code is a document that can be subverted, manipulated, or forgotten in the confusion of the secular socio-economic and political world order we have been imprisoned in since the overthrow of the caliphate in 1903.
Our Muslimness, the caliphate legacies we inherited, and the uncompleted re-Islamisation started by the Zamfara state initiative represent for us a challenge, which is our inescapable manifest destiny. Islamization was our forefathers: they needed Sheikh Usman Dan Fodio to actualize it. We are, however, to date, engaged in wishful thinking for Islamic salvation through the secular political machinery we are saddled with. All of us are inactive where it matters most. We need another Usman Dan Fodio, not the present politicians in most Sharia states.
The Muslim North of 14th century, its leaders and administrative setup, though similar to ours today, was able to redeem itself. This is the meaning of the caliphate. The Islamic reform movement of 1804, unlike the Sharia public launchings of the politicians, presented a way forward, reordered and reorganized the Muslim North, its traditions, behavior, relationships, and administration according to the Qur’anic method and the examples of the messenger of Allah, Prophet Muhammad (SAW). There were no compromises with paganism. Re-Islamization would always remain uncompleted whenever contradictions become normal. This is the case in our Sharia states.” [End of Quote]
The objection to the declaration of sharīʿa within a country whose overarching political and legal system do not conform with the standard criteria of dār al-islām is central to Ibrahim Zakzaky’s withdrawal from the sharīʿa project launched in 1999 by Ahmed Yerima. In his October 1999 interview, Ibrahim Zakzaky said:
“The system which was established by the colonialists was meant to be against the Islamic principles. And it is this same colonial set up which is in control all through, even after the so-called independence. So, one naturally comes into conflict with the present system running the country which is anything but Islamic. In other words, it is not Islamic. Call it anything, but it is not Islamic. And it negates Islam. To establish an Islamic system, one has to do away with the present system. So, when you are talking about the establishment of Islam, you are actually talking of removing the present system. Now the present governors of the system were elected or selected to run the system. They cannot come, naturally, and run a system contrary to the system they were elected to run. So, it is a sort of contradiction. I will say they will end up using the emotions of the people and yearnings of the people to deceive the people.” [End of Quote]
Against this backdrop, it is essential to ask a pertinent question: If the current political order or status quo in Nigeria does not fulfill the criteria of the “ideal dār al-islām” as argued by Abdullahi Doki and other leaders of Islamic reformist movements, including Ibrahim Zakzaky, what then are the criteria that determine the extent to which Nigeria can be considered “Islamic” for the rulings on ḥudūd, particularly those involving corporal and capital punishment such as blasphemy and apostasy, to be implemented within its geographical territory? Is the criterion for judging the “Islamic” status of Nigeria based on the country’s ruling powers or its political and legal systems? The country’s ruling powers are not caliphs, and their mode of governance is not guided or assessed by the terms of the sharīʿa but by qānūn or qawānīn al-waḍʿīya. The qānūn, in this case, is the constitution of Nigeria. The lawmakers who drafted Nigeria’s constitution plainly spelled out the clause that it is supreme and above any other law. Section 1(3) of Nigeria’s constitution states that “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.” This clause alone has set the parameter of irreconcilable questions between the sharīʿa and Nigeria’s constitution.
ISLAMIC LEGAL CONCEPTS ON AḤKĀM AD-DIYĀR
The majority of classical scholars and Islamic schools of thought uphold the view that a territory cannot claim to be dār al-islām when other laws in the same territory are supreme and above the sharīʿa. In Kitāb al-muʿtamad fī uṣūl al-dīn, the Ḥanbalī scholar al-Qāḍī Abū Yaʿlā (d. 458/1066) states that any land or territory where laws other than the laws of Islam are supreme is dār al-Kufr:
كل دار كانت الغلبة فيها لأحكام الكفر دون أحكام الإسلام فهي دار الكفر (المعتمد في أصول الدين) لأبي يعلى ص 276.
In Kitāb al-mabsūṭ, the Ḥanafī jurist Muḥammad b. Aḥmad b. Abī Sahl Abū Bakr al-Sarakhsī (d. ca 490/1096) also explain the features of dār al-islām with an emphasis on the prevalence of Islamic laws and Muslim rule:
عند أبي حنيفة رحمه الله تعالى إنما تصير دارهم دار الحرب بثلاث شرائط، أحدها: أن تكون متاخمة أرض الترك ليس بينها وبين أرض الحرب دار للمسلمين، والثاني: أن لايبقى فيها مسلم آمن بإيمانه ولا ذمي آمن بأمانه، والثالث: أن يُظهروا أحكام الشرك فيها. وعن أبي يوسف ومحمد رحمهما الله تعالى إذا أظهروا أحكام الشرك فيها فقد صارت دارهم دار حرب، لأن البقعة إنما تنسب إلينا أو إليهم باعتبار القوة والغلبة، فكل موضع ظهر فيه حكم الشرك فالقوة في ذلك الموضع للمشركين فكانت دار حرب، وكل موضع كان الظاهر فيه حكم الإسلام فالقوة فيه للمسلمين (المبسوط) للسرخسي، 9 /114.
Al-Sarakhsī rehashed this territorial division in a simpler term with an emphasis on the primacy of Islamic law in his Sharḥ kitāb al-siyar al-kabīr li-Muḥammad b. al-Ḥasan al-Shaybānī:
والدار تصير دار المسلمين بإجراء أحكام الإسلام (السير الكبير) 5/ 2197
In Badāʾiʿ al-ṣanāʾiʿ fī tartīb al-sharāʾiʿ, the Ḥanafī jurist ʿAlāʾ al-dīn Abū bakr b. Masʿūd al-Kāsānī (d. 587/1189) also stressed the point that the juridical and political authority upon which a territory is governed is the parameter for judging whether it is dār al-islām or vice versa:
إن كل دار مضافة إما إلى الإسلام وإما إلى الكفر، وإنما تضاف الدار إلى الإسلام إذا طُبقت فيها أحكامه، وتضاف إلى الكفر إذا طبقت فيها أحكامه، كما تقول الجنة دار السلام والنار دار البوار، لوجود السلامة في الجنة والبوار في النار، ولأن ظهور الإسلام أو الكفر بظهور أحكامهما (بدائع الصنائع) للكاساني، 9/ 4375.
In Aḥkām ahl al-dhimma, the Ḥanbalī scholar Muḥammad b. Abī Bakr b. Qayyim al-Jawziyya (d. 751/1350) also restated the point that the status of a territory is determined by whether or not it is governed solely by the laws of Islam:
قال الجمهور: دار الإسلام هي التي نزلها المسلمون وجرت عليها أحكام الإسلام، ومالم تجر عليه أحكام الإسلام لم يكن دار إسلام وإن لاصقها، فهذه الطائف قريبة إلى مكة جداً ولم تصر دار إسلام بفتح مكة (أحكام أهل الذمة) لابن القيم، 1/ 366.
In al-Muḥalla bi-l-athār, Ibn Ḥazm (d. 456/1064) also alluded to the principle of judging the “Islamic” status of a territory or land by the supreme laws of its ruler:
لأن الدار إنما تنسب للغالب عليها والحاكم فيها والمالك لها (المحلى) 11/ 200.
In Bayān wujūb al-Hijra, the Mālikī scholar ʿUthmān Ibn Fūdī (d. 1232/1817) also reiterated the dualist conceptions of territories. He emphasized that the ruler’s religious identity must be associated with Islam and he must be governing the entire territory solely with no other laws except the sharīʿa:
وحكم البلد حكم سلطانه بلا خلاف إن كان مسلما كان البلد بلد إسلام وإن كان كافرا كان البلد بلد كفر يجب الفرار منه الئ غيره (بيان وجوب الهجرة على العباد وبيان نصب الإمام وإقامة الجهاد).
The former Grand Mufti of Saudi Arabia, Muhammad b. Ibrahim Al ash-Sheikh (d. 1388/1969) also stated that any land or territory where qānūn or qawānīn al-waḍʻīya is used as a source of law cannot be referred to as dār al-islām:
البلد التي يحكم فيها بالقانون؛ ليست بلد إسلام، تجب الهجرة منها. وكذلك إذا ظهرت الوثنية من غير نكير ولا غيرت؛ فتجب الهجرة. فالكفر؛ بفشو الكفر وظهوره، هذه بلد كفر. أما إذا كان قد يحكم فيها بعض الأفراد، أو وجود كفريات قليلة لا تظهر؛ فهي بلد إسلام (فتاوى ورسائل الشيخ ابن إبراهيم، 1451، ج: 6)
All the classical texts of Muslim scholars cited above uphold the view that the criteria for judging a territory as dār al-islām is if Muslims have sovereignty over the territory and if Islamic law is fully applied as the only official law of the land. Nigeria DOES NOT fulfill any of these two criteria. Therefore, Nigeria does not meet the standard criteria to be classified as “Islamic territory.” Although there are sharīʿa courts in Nigeria, the sharīʿa is not the supreme law in the country, and the legitimacy of the courts is open to question. The lawmakers who drafted Nigeria’s constitution plainly stated that the constitution is supreme above any other law. Likewise, the rulers governing Nigeria (even when they professed Islam) are not caliphs. Their instruments of governance are not judged or assessed based on the terms of the sharīʿa but by the terms carefully outlined in Nigeria’s constitution. If this is the case, what then is the jurisdictional validity of issuing verdicts on ḥudūd (including those involving corporal and capital punishment such as blasphemy and apostasy) in a country that does not fulfill the criteria to be classified as an “Islamic territory”?
Are the two criteria — the supremacy of the sharīʿa above any other law and the political sovereignty of Muslims — the only preconditions for judging the “Islamic” status of a territory? Is the notion of dār al-islām confined to only the supremacy of Islamic legal norms and the political rule of Muslims? If Muslims are the majority in a country like Nigeria, does it not suffice as a criterion to label the country as dār al-islām? If Muslims live in safety in Nigeria and can freely practice Islamic rituals, does it not suffice as a criterion to designate the country as dār al-islām?
First, Muslim scholars have argued that the religious demography of a population is not the precondition for judging whether a country is dār al-islām or vice versa. At the time Khaybar was conquered by the Prophet, the Jewish community in Khaybar was one of the largest ancient Jewish cities in northern Arabia, and Muslims were the minority. Nonetheless, Khaybar became dār al-islām because the Prophet imposed the sharīʿa as the supreme law of the land on the Jewish majority and Muslim minority populations. All the territories conquered by Muslims in the first centuries of Islam, including the Iberian Peninsula, were predominantly populated by non-Muslims. Yet, those conquered territories became dār al-islām irrespective of their minority Muslim population because of the Islamic political and legal systems. It is for this reason that Abū al-Qāsim ʿAbd al-Karīm b. Muḥammad al-Rāfiʿī (d. 622/1226) argued in his text Fatḥ al-ʿAzīz sharḥ al-Wajīz that the presence of Muslims in a territory is not a condition for the territory to become dār al-islām. Instead, the territory has to be governed by an Imam ruling exclusively with Islam:
وليس من شرط دار الإسلام أن يكون فيها مسلمون بل يكتفى كونها في يد الإمام وإسلامه (فتح العزيز شرح الوجيز) للرافعي، 8/ 14.
Second, in all the four major madhāhib in Islam, the Shāfiʿī jurists are the only scholars who based their criteria for judging whether a territory is dār al-islām or vice versa upon the safety of Muslims and their ability to practice Islamic rituals freely. The jurisprudence of the Shāfiʿī madhab on the issue of Aḥkām Ad-Diyār was clearly stated by Abū al-Ḥasan al-Māwardī (d. 449/1058). As quoted by Ibn Ḥajar al-ʿAsqalānī in his Fatḥ al-bārī (Vol. 7 p. 229–230), al-Māwardī argued that if a Muslim can practice his religion openly in a dār al-kufr, then it has become a dār al-islām:
إذا قدر على إظهار الدين في بلد من بلاد الكفر فقد صارت البلد به دار إسلام، فالإقامة فيها أفضل من الرحلة منها لما يُترجى من دخول غيره في الإسلام (فتح الباري) 7/229
Other Muslim scholars, including Muḥammad al-Shawkānī (d. 1255/1834), have faulted this legal reasoning of al-Māwardī and the Shāfiʿī jurists on the basis that Makkah did not become dār al-islām before the Prophet’s hijra. The Prophet and his companions were openly practicing their faith in Makkah. They were openly proselytizing to the non-Muslim tribes. However, their ability to practice Islamic rituals did not make Makkah become dār al-islām until the Prophet conquered it. Why? This is so because the sovereignty of the territory was not under the jurisdiction of Islam. In Al-Sayl al-Jarrār, Muḥammad al-Shawkānī argued that dār al-islām is that land where the commands and prohibitions are judged solely by Islam:
الاعتبار بظهور الكلمة، فإن كانت الأوامر والنَّواهي في الدار لأهل الإسلام بحيث لايستطيع من فيها من الكفار أن يتظاهر بكفره إلا لكونه مأذونا له بذلك من أهل الإسلام فهذه دار إسلام، ولايضر ظهور الخِصال الكفرية فيها لأنها لم تظهر بقوة الكفار، ولا بِصَوْلتهم كما هو مشاهد في أهل الذمة من اليهود والنصارى والمعاهدين السَّاكنين في المدائن الإسلامية، وإذا كان الأمر بالعكس، فالدار بالعكس (السيل الجرار) 4/ 575
Third, some other scholars have also argued that the safety of Muslims in a territory, land, or country is not the precondition for the territory to become dār al-islām. A famous example is Abyssinia’s Christian kingdom of Aksum, also known as the land of al-Ḥabasha. Muslims migrated to Abyssinia, and they had safety in the territory. Nonetheless, Abyssinia did not become dār al-islām solely because Muslims were safe. It was still considered dār al-kufr because the ruler of the land al-Najāshī was not a Muslim, and the sovereignty and laws of the land were not based exclusively on Islam. Although some Islamic sources claimed that al-Najāshī converted to Islam, the validity of this claim is ambiguous. Abyssinia remained a Christian state during and after the reign of al-Najāshī. There are also historical accounts that some companions of the Prophet, including ʿUbayd Allāh b. Jaḥsh converted to Christianity in Abyssinia and did not return to the Arabian Peninsula.
What about the position of the Ḥanbalī scholar Taqī al-Dīn Aḥmad b. Taymiyya (d. 729/1328)? Some scholars have argued that Ibn Taymiyya, unlike other scholars in the Ḥanbalī school, does not support the criteria on Muslims’ sovereignty and the supremacy of the sharīʿa as the precondition for defining the “Islamic” status of a territory. In his Majmūʿ fatāwā, Ibn Taymiyya explained that the classification of territories as dār kufr, dār Islām/īmān, dār silm, dār ḥarb, dār ṭāʾa, dār maʾṣiya, dār al-muʾminīn, and dār fāsiqīn is not a fixated attribute. Instead, it is malleable the same way man waver from the realm of disbelief to the realm of faith and knowledge. He wrote:
فإن كون الأرض دار كفر أو دار إسلام أو إيمان أو دار سلم أو حرب أو دار طاعة أو معصية أو دار المؤمنين أو الفاسقين أوصاف عارضة، لا لازمة، فقد تنتقل من وصف ٍ إلى وصف ٍ كما ينتقل الرجل بنفسه من الكفر إلى الإيمان والعلم، وكذلك بالعكس. (مجموع الفتاوى) 18/ 282–284
Does this statement of Ibn Taymiyya imply that he did not uphold the binary political and legal criteria of Aḥkām Ad-Diyār as stipulated by other Ḥanbalī scholars? According to Ibn Taymiyya, the territory wherein Muslims are the majority of the population’s demography, but sharīʿa is not the supreme law of the land such as Mardin is neither dār al-islām nor dār al-ḥarb. Instead, it is dār murakkab “composite territory”. Ibn Taymiyya’s concept of “dār murakkab” is outside the scope of the central question of this essay.
ليست بمنزلة دار السلم التي تجري عليها أحكام الإسلام، لكون جندها مسلمين، ولا بمنزلة دار الحرب التي أهلها كفار (مجموع الفتاوى)28 /241–240
IS AḤKĀM AD-DIYĀR STILL VALID IN THE WORLD OF NATION-STATES?
Some 20th-century Muslim jurists in the Arab world including Muḥammad Abū Zahra (d. 1974) author of “Al-ʿAlāqāt al-duwaliyya fī al-islām” and Wahba al-Zuḥaylī (d. 2015) author of “Āthār al-ḥarb fī al-fiqh al-islāmī: Dirāsa muqārana” have called for the abrogation of the traditional Islamic concepts of territoriality to accommodate the Westphalia sovereign nation-states system and the recognition of the modern United Nations-led international system. These Muslim jurists argued that the conventional Islamic territorial paradigm is the product of ijtihad and jurisprudential construction not grounded on any canonical basis either in the Qurʾan or Sunna. Therefore, it should be abolished. Not all scholars agree with the call to repeal or reconcile the traditional Islamic concepts of territoriality with the Westphalia sovereign nation-states. Contemporary Muslim scholars such as the late ʿAbd al-ʿAzīz ʿAbd Allāh b. Bāz (d. 1999), Muḥammad b. Ṣāliḥ al-ʿUthaymīn (d. 2001), and Muḥammad Saʿīd Ramaḍān al-Būṭī (d. 2013) have rejected and opposed the call for the abrogation of the traditional Islamic territorial paradigm irrespective of the modern international relations. According to these scholars, the division of the world based on Islamic legal concepts of territory remains valid and perennial regardless of the creation of the nation-states.
In his text Al-Jihād fī al-islām, the Syrian scholar Muḥammad Saʿīd Ramaḍān al-Būṭī — who died in 2013 as a vocal supporter of the Syrian regime of Bashshār al-Asad — argued that the founders of the four major madhāhib in Islam and the fuqahāʾ might have disagreed on the terminological definition of dār al-islām. However, they agreed that dār al-islām is the territory where Muslims have sovereignty and sharīʿa is the supreme and the only law of the land:
ما هي دار الإسلام؟
هي فيما اتفق عليه أئمة المذاهب الأربعة، البلدة أو الأرض التي دخلت في منعة المسلمين وسيادتهم بحيث يقدرون على إظهار إسلامهم والامتناع من أعدائهم، سواء تمّ ذلك بفتح وقتال، أو بسلم ومصالحة، أو نحو ذلك.
وقد تختلف عبارات الفقهاء في تعرف دار الإسلام، ولكنها اختلافات في الصياغة اللفظية فقط. ومدار هذه التعريفات كلها على معنى واحد هو محل اتفاق منهم جميعا، وهو أن يمتلك المسلمون السيادة لأنفسهم فوق تلك الأرض، بحيث يملك كل منهم أن يستعلي فيها بأحكام الإسلام و شعائره
In his Majmūʿ fatāwā wa-rasāʾil faḍīlat al-shaykh Muḥammad ibn Ṣāliḥ al-ʿUthaymīn (vol. 3 p. 25), the Saudi scholar and member of the Hayʾat kibār al-ʿulamāʾ late Muḥammad b. Ṣāliḥ al-ʿUthaymīn also lamented that residing in the “countries of the infidels” is a great danger to the religion, morals, behavior and etiquette of a Muslim:
الإقامة في بلاد الكفار خطر عظيم على دين المسلم، وأخلاقه، وسلوكه، وآدابه وقد شاهدنا وغيرنا انحراف كثير ممن أقاموا هناك فرجعوا بغير ما ذهبوا به، رجعوا فساقًا، وبعضهم رجع مرتدًا عن دينه وكافرًا به وبسائر الأديان — والعياذ بالله — حتى صاروا إلى الجحود المطلق والاستهزاء بالدين وأهله السابقين منهم واللاحقين، ولهذا كان ينبغي بل يتعين التحفظ من ذلك ووضع الشروط التي تمنع من الهوي في تلك المهالك
Even though the label “countries of infidels” is ambiguous in Al-ʿUthaymīn’s fatāwā, his reference to the traditional Islamic concepts of territoriality is in direct contrast to the scholars who claim that such categories are no longer valid in the modern geopolitical world order. Nigeria does not seem to meet the requirements of the countries al-ʿUthaymīn would consider as “Islamic”. If the “Islamicity” of Nigeria does not fulfill any of the known and established criteria of “Islamic territories”, what is the validity of the rulings on ḥudūd in Nigeria?
CASE STUDY: SAUDI ARABIA VS NIGERIA
Virtually all Abrahamic religions have blasphemy laws. Such laws could be internal aimed at prohibiting blasphemy by members within a particular religious tradition. It could also be external aimed at prohibiting insult to a specific faith by adherents of other religions. Today, Saudi Arabia is one of the Muslim countries that publicly behead people for apostasy and blasphemy, just like the Islamic State in Iraq and Syria. On 3 September 1992, Sadiq Abdul Kareem Malallah, a Shiite Saudi Arabian, was beheaded in Qatif for allegedly insulting the Prophet even though he maintained his innocence till his last moment. Are the verdicts on ḥudūd valid in Saudi Arabia? What is apparent to an outside observer is that Saudi Arabia portrays itself as dār al-islām. Although scholars like Abu Muhammad al-Maqdisi in his treatise “al-Kawāshif al-jaliyya fī kufr al-dawla al-suʾūdiyya” contested the “Islamic” status of Saudi Arabia, the country claims to conduct its governance solely within the jurisdiction of Islamic legal norms.
Besides the fact that the country prides itself as the “the Land of the Two Holy Mosques”, Saudi Arabia also claims to be governed exclusively by the sharīʿa. The country’s ruling powers are also evaluated by the terms of the sharīʿa alone without recourse to any other law. There are no separate laws set aside in Saudi Arabia that are considered supreme and above any other law. This is not the case in Nigeria. Judging from the review of the Islam legal concepts on Aḥkām Ad-Diyār, it is crucial to revisit the question: what is the validity of issuing verdicts on ḥudūd (including those involving corporal and capital punishment such as blasphemy and apostasy) in a country like Nigeria? Are the rulings on ḥudūd as embodied in the sharīʿa territorially bound or can they be implemented anywhere be it in dār al-islām or vice versa?
IKHTILĀF AL-DĀRAYN AND THE RULINGS ON ḤUDŪD
Muslim jurists in all the four major madhāhib in Islam (Ḥanafī, Shāfiʿī, Mālikī, and Ḥanbalī) have long debated the conception of the sharīʿa as personal or territorial jurisdiction. Is the applicability of the sharīʿa as a system of legal and ethical norms valid universally? Or is the applicability of the sharīʿa territorially bound and confined only to the territories where Islamic law is the supreme law of the land such as Saudi Arabia or maybe Brunei Darussalam? In other words, what is the validity of ḥudūd rulings on a Muslim living in a territory where the sharīʿa is not the supreme law of the land such as Nigeria and all the countries of the world that operate legal and political systems that are parallel to the normative form of Islamic governance? The ethical norms of the sharīʿa, including observing the Islamic rituals and acts of worship, eating ḥalāl foods, the prohibition of alcohol consumption and other norms apply to Muslims irrespective of their locations. Do the legal norms and fixed penalties of the sharīʿa for adultery, apostasy, blasphemy, sodomy, and alcohol consumption also apply to Muslims irrespective of the “Islamic” status of the territory they reside in? Which aspects of the sharīʿa are universally valid, and which aspects are confined to territories where Islamic law is supreme?
According to Imam Shāfiʿī in his book al-Umm, the legal and ethical provisions of the sharīʿa are universally applicable to Muslims regardless of whether they reside under a Muslim or non-Muslim jurisdiction. Whatever is permissible or forbidden in the territories where Muslim laws are supreme is also permissible or forbidden in the territories where Muslim laws are not supreme:
مما يَعقِلُه المسلمونَ ويجتمعون عليهِ: أنَّ الحلالَ في دارِ الإسلامِ حلالٌ في بلادِ الكفرِ، والحرامَ في بلادِ الإسلامِ حرامٌ في بلادِ الكفر (الأم) 354/7
The Ḥanafī school has a parallel judgment to the Shāfiʿī school. Based on the principle of ikhtilāf al-dārayn (the contrast between two territories), the Ḥanafī scholars, including Al-Sarakhsī and al-Kāsānī, uphold the jurisprudential position that the application of the legal norms of the sharīʿa is dependent on the territory where a Muslim resides. The rulings on ḥudūd are therefore not valid on Muslims who live outside the territorial jurisdiction where the sharīʿa is not the supreme law of the land. Muslims who violate the legal norms of the sharīʿa in territories that do not fulfill the criteria of dār al-islām are only accountable to God and cannot be punished for any infractions by an Islamic court.
It is crucial to bring the question of territoriality to the blasphemy case of Yahya Sharif Aminu. If he had committed his unfortunate infraction in a country like Saudi Arabia that fulfills the standard criteria of an “Islamic territory”, the verdict issued on him would have been closed to questioning. Yahya Sharif Aminu’s infraction did not take place in a territory solely governed by the legal and ethical norms of the sharīʿa alone. There is no recognizable Imam or caliph in Kano where he committed his act of blasphemy. Neither Ganduje nor the Emir of Kano governs solely on the terms of the sharīʿa. The legitimacy of the sharīʿa courts in Kano and the penal code is open to question. Kano state is directly under the territorial jurisdiction of Nigeria, a country whose overarching claim to secular democratic governance is at near or complete variance with the classical theories of Islamic governance. Muslims who violate the legal norms of the sharīʿa in territories outside the jurisdiction where the sharīʿa alone is the supreme legal system are only accountable to God. In this case, the validity of the judgment on Yahya Sharif Aminu is open to question.