The Place Of Community Policing Under The Sharia’h And The Advent Of Hisbah

By

Ahmed S. Garba , LL.B; B.L.

 

Partner:

Abc Attorneys

Legal Practitioners And Researchers

No.1 Abattoir Road, Jos, Plateau State, Nigeria.

E-Mail: teacherahmed2001@yahoo.co.uk

 

ABSTRACT

This paper seeks to examine the concept of community policing and its position under Islamic Law and the emergence of the Islamic Institution of Hisbah in Nigeria.

 

The paper begins by an evaluation of the concept of community policing and how it is related to Sharia. The paper also examines the Islamic Institution of Hisbah from classical point of view and compares it with the institution of Hisbah in Nigeria today. The paper also examines the laws that established the institution in Nigeria with particular reference to crime control and argues that, as an organic and constitutional component of Sharia implementation in those states, the Islamic Institution of Hisbah should be allowed to stay.

 

 


 

THE PLACE OF COMMUNITY POLICING UNDER THE SHARI’AH AND THE ADVENT OF THE HISBAH

 

INTRODUCTION

 

The glaring social disorder and the ever increasing acts of lawlessness in Nigeria today are good and substantial reasons for supporting any initiative aimed at putting such menace to an end or reducing it to a minimal level.

 

This paper seeks to study the concept of community policing and the Islamic Institution of Hisbah, with a view to arguing that:

 

  • The concept of community policing as its stands today is not new to shari’ah and can be extended to the Islamic Institution of Hisbah of today.

 

  • The Islamic Institution of Hisbah as an organic and constitutional component of shari’ah implementation in states implementing shari’ah legal system in Nigeria should be allowed to stay.

 

In doing so, efforts will first of all be made to discuss the concept of community policing and its position under Islamic jurisprudence.

 

Secondly, I will discuss the Islamic Institution of Hisbah from classical Islamic Law and compare it with Hisbah today. In this regard attempt will be made to evaluate the laws establishing the Islamic Institution of Hisbah with a view to seeing how the laws differ from each other and from classical Hisbah. I will also endeavour to look at the Islamic Institution of Hisbah in relation to the constitution of the Federal Republic of Nigeria 1999. I will conclude by making a case for a modified Islamic Institution of Hisbah in Nigeria.

 

COMMUNITY POLICING

a.             Nature and meaning           

Community policing, though existed for a long time, and was popular in both academic world and on the street, it only became popular in the 19960s. However, up to now, it is not clear what it exactly means.

 

For instance, manning[1] argued that,

 

·         Firstly, it is an “Ideological System” based on the belief that crime in communities  can be taken care of best by the co-operation of the police and the community to employ more pervasive social control,

 

·         Secondly, it means a programme that has political intents to restore the relationship between the police and the citizen and mitigate fear for crime in communities.

·         Thirdly, it is pragmatic as it responds to the citizen’s dissatisfaction with “bureaucratic, and impersonal police organization” as it “emphasizes direct communication with citizens regarding community problems such as crime or disorders”

·         Fourthly, it focuses on organizational structures, the element of which include:

a.                    working in a given area as a team

b.                   participation and communicating with community

c.                    attempting to provide organizational and managerial support for the team.

 

Another definition of community policing was given by Nicholl, Caroline G[2] to the effect that:

Community policing is a policing philosophy designed to reduce crime and disorder in communities by fostering trust, respect, and collaboration between police officers and citizens.

 

He supported this definition by the following identifiable hallmarks:

a.                    partnership building among police, citizens, and other institutions;

b.                   problem – oriented strategies for eliminating the root causes of crime and disorder;

c.                    Emphasis on proactive crime control and prevention;

d.                   Development of police organization, responsive to community concerns;

e.                    Recognition that public concerns other than crime may also be important for promoting trust;

f.                     Active collaboration and teamwork with education, health, housing, business, charities and others dedicated to community well – being

 

Based on the definition above it can safely be stated that, community policing promotes and supports organizational strategies that addresses the causes and reduce the fear of crime and social disorder through problem solving strategies and community/police partnerships.

 

It should be noted that, community policing is a fundamental shift from traditional reactive policing. It stresses proactive problem solving with the community. It is an integral part of combating crime and improving the quality of life in the nation’s cities, towns and rural areas.

 

To crown it all, community policing has the following as its core components:

 

·         Partnering with the community;

·         Problem solving;

·         Transforming policing agencies to support and empower frontline officer

·         Decentralize command and

·         Encourage innovative problem solving.

 

b.             Nigeria police force and community policing

 

The idea of the modern Nigerian police is a creation of colonial rule[3]. Its history and functions began in serving the interest of the British Colonial government. It was organised as a quasi-military squads with officers who were strangers in the communities they were employed to serve. The colonial government used the police as an instrument of riot, opposition and suppression. This simply suggests that colonial police were not established as agents for promoting the rule of law, human rights, community safety or delivering social services, rather, they were used in punitive expedition to further the goal of colonial annexation of territories, and to suppress opposition against colonial exploitation.

 

These phenomena is well articulated by H.S. Freeman[4] (the colonial Governor of Lagos colony) when in 1863, wrote a letter to the Duke of New – Castle in which he emphasized the need of the police for the colonial government. According to him, deploying  policemen to areas where they were aliens would foster effective deposit of violence in the community policed. He stated thus:

The men (Hausa men recruited into the force in Lagos colony) being from the interior and professing the Mussulman (Islamic faith) religion are hated by the natives of these parts who have hitherto only known them as their slaves. They (Hausas) are disliked also by the Europeans as being of a more independent character than the Lagos people. They thus, have only the government to depend on, and if properly managed will prove a valuable resource to this settlement.

 

Certainly, the arrangement did prove valuable to the colonial government. Consequently, in 1893, another colonial governor in a letter to London, reported thus:

 

In our Hausa force we have a body of men dissociated from the countries immediately around Lagos both by birth and religion, and who are as a matter of fact the hereditary enemies of the Yorubas. This is such an enormous advantage in any interior complication (opposition to colonial rule) that I should be sorry to see it abandoned if it were possible to obtain a supply of recruits in any other way.

 

Above indicates the nature, and mentally upon which the Nigeria police of today was built on, and also disclosed the root of police-community disconnection in Nigeria. Despite expectations when Nigeria gained independence in 1960, towards the re -organization and reorientation of the police, nothing happened. The situation worsened by persistent seizure of political power by the Military, which prevented the development of a community policing culture and obedience to the rule of law in the Nigeria Police Force.

 

This was succinctly stated by the Former Inspector General of Police; Alh. Ibrahim Coomassie in an acceptance speech for an honorary doctorate degree award, from Imo State University in March 1998 as follows:

 

The Force (Nigeria Police Force) has been torn between the civil populace and the military, so much so that its civil traditions are almost lost to Military authoritarianism[5].

 

This development no doubt made police – community relations very severe and at best characterised by deep suspicion and at, worst by violence.

 

In this regard, so many allegations have been leveled against the institution and its personnel, some of which have proven to be true. These include arbitrariness in exercising its power, corruption, perversion of justice and delays in the administration of justice.

 

In an instance of this nature, common sense and prudence should suggest for a way out.

 

It is in view of this that, in the mid – 1980s the then Inspector General  of  Police established Police Community Relations Committees (PCRCs) in all police divisional, area and state commands in the country.

 

These PCRCs are supposed to serve as liaison bodies between the police and the communities they serve, and thus, be in a position to build confidence and co-operation between the police and civil society in the country.

 

Since its initiation, the PCRC has not been effective, and the reason is obvious. It has a non – representational nature in the communities where it operates and the fact that, it was an initiative of the police and not accountable to any civil authority.

 

It was only recently, that is, in 2005that the Inspector General of Police came up with a ten- point programme in addition to a new slogan to wit “to serve and protect with integrity” aimed at given new looks to the police force. The ten- point programme are as follows:

·         Effective crime prevention and control through intelligence – led policing;

·         Combat of violent and economic crimes.

·         Community policing and police – public partnership;

·         Zero – tolerance for police corruption and indiscipline;

·         Improved career development, salary and welfare packages to motivate police officers and thereby promote better service delivery and discipline;

·         Reorganisation of the investigation of cases

·         Contribute positively to improving the quality of justice delivery in Nigeria

·         Empower field officers operationally by devolution of powers to improve the standards, reliability, consistency, and responsiveness of the service;

·         Re – orientate the Force P R O to focus on improving public perception and image of the force.

 

However, to my knowledge, the new community policing policy of the Nigeria Police Force is more pronounced in the Jigawa State Command. In line with this policy, the Jigawa command has so far trained more than fifty of their officers on community relations.

 

c.             Problems of implementing community policing policy in Nigeria.

 

So many factors have been blamed as constituting a stumbling block to the proper implementation of this policy. These are:

·         God fatherism

·         Nepotism,

·         Ethnicism

·         Corruption.

·         Institutional constraints such as inadequate man power (both in strength and expertise), insufficient education and training, inadequate equipment, and poor conditions of service of the average policemen.

·         Perception of the police force itself by the police officers and the community they serve.

 

d.             Community policing under shari’ah.

 

Under Islamic law, it is trite that nothing is haram except what is prohibited by a sound and explicit verse of the Qur’an or clear authentic sunnah. Where a hadith is weak or is not explicit in stating the prohibition, the original principle of permissibility applies. Furthermore, it is exclusively Allah’s right to prohibit or make something permissible under Islamic Law.

 

Examining community policing from this angle, it will certainty be found to be in conformity with the shari’ah, with its principal characteristics being:

·         Partnering with the community;

·         Problem solving;

·         Transforming policing agencies to support and empower front line officer

·         Decentralization of command and encourage innovation problem solving.

 

In all, it should be judged from its ultimate goal as contained in the second definition above to wit;

 

... a policing philosophy designed to reduce crime, and disorder in communities by fostering trust, respect, and collaboration between police officers and citizens.

 

It is worthy of note that policing entirely can not be said to be new to Islam. Caliph Umar (R.A) had to his credit a Police Department, Indeed the first of its kind by any Muslim Head of State. He established it to keep order inside the state. The Police Force at that time was referred to as “Ahdath” and the police officer as the “Sahibul Ahdath” and it was different from the Islamic Institution of Hisbah.

 

THE ISLAMIC INSTITUTION OF HISBAH

a.             Meaning of Hisbah

The word Hisbah has been derived from the root h.s.b. and means “arithmetical problem”, “sum”; or “reward”. When used as a verb, it means “to compute” and “to measure”. The term is also associated with Ihtasaba which means “to take in to consideration”, “to anticipate a reward in the Hereafter by adding a pious deed to one’s account with God”. Among Muslims, Ihtisab, the noun form of the word Ihtasaba, came to be associated with the activities of a person, muhtasib, who invites others to do good (ma’ ruuf) and forbids them from doing evil (munkar) in the hope of getting a reward in the Hereafter. The  term hisbah also took an institutional form by describing the state institution set up to promote proper and to prevent what is improper(amr bil ma’ruuf wa-n-nahi’ anil mukar – to promote what is good and to prevent what is improper) in accordance with the call make in the Qur’an. According to Khan[6]:

 

Although the Qur’an expects and enjoins every Muslim to play a positive role in the propagation of good and suppression of evil it has been made obligation on a section of society to remain engaged in it (fard kifaya). From the days of the prophet Muhammad himself, the Islamic State has been enjoined to institute arrangement to oversee the implementation of this injunction.

However, the nature of this engagement has been a matter of debate among scholars.  

 

There are controversies as regards the origin of Hisbah. However, it is not in dispute that, the whole ideal of what the Islamic Institution of Hisbah seeks to achieve originated from the Qur’an and the Sunnah of the prophet (S.A.W)[7].

 

Al-mawardi[8], confirms thus:

 

The market supervision, or public morals office, hisbah, is an injunction to promote good if obviously forsaken, and prohibit evil if manifestly done.

 

This is based on the saying of Allah (SWT) in the Qur’an 3:104:

 

Let there be among you a nation who invite to the good enjoin kindliness, and forbid indecency.

 

This verse is the germ and core of the Islamic Institution of Hisbah[9].

Al-mawardi further puts it in another way as being originated from the advent of Islam itself;

 

Al-Hisba has, indeed been one of the fundamental principles of religious affairs, so much that in the early period of Islam, the Imams themselves made it their own responsibility because of its general benefit and meritorious rewards.

 

However, what is still in dispute is whether or not ‘Hisbah’ existed during the time of the prophet (S.A.W) as an institution and with the same name[10].

 

Furthermore, indeed the Glorious Qur’an, in so many verses repeatedly enjoined muslims to promote the good and fight the evil as quoted above. The verses that have direct bearing on the Islamic Institution of Hisbah are so numerous that few of them suffice.

 

In Qur’an 3:103, muslims are enjoined thus:

 

And appoint a group from yourselves whose duty is to invite to goodness, and enjoin the right and forbid the wrong.

 

In another, while condemning the negative attitude of the children of Israel towards the evil and enjoining the right and forbid the wrong, Allah says:

 

Curses were pronounced on those among the children of Israel who rejected faith, by the tongue of Dawood and Isa the son of Maryam: because they disobeyed and persisted in excess. Nor did they usually restrain one another from the wrong they did. How wretched was that they used to do.

 

In same regard, the books on sunna are quite reflective of instances where the prophet (PBUH) said to the effect that, while muslims are required to promote the good, they are equally bound to fight any evil in the society. He stated thus:

Anyone who discovers an evil should change it with his hand; if he cannot he should change it with his tongue, Yet if he cannot, he should oppose it in his heart, and that (secret denial) is the least expected to be done[11].

 

Again, the prophet, (PBUH) confirms that a muslim shall win a meritorious reward: -

For every bidding to do the right and also for every forbidding of the wrong.

 

b.             Nature and function           

In this regard, the Islamic Institution of Hisbah was more known to be a “market supervision” or “public morals office[12] than otherwise. Prophet Mohammad (S.A.W) appointed in his time Umar B. Khatab as “al-muhtasib” of madina and sa’d b. al-As in maccah after its conquest. The prophet (SAW) prevented the people from going out of the city limits to meet those who brought their goods to the markets from rural areas and to purchase the material their and thus deprive the people of the city from getting in contact with the producers. In other words, middlemen were not allowed to make excessive profit[13].

 

Furthermore, when caliph Umar (R.A.) appointed Qudamah b. Maz’un and Abu Huraira to Bahrain, the former was entrusted with the collection of revenues, while the latter was expressly vested with the powers of the police.

 

It should be noted that provisions were made and officers were appointed at all places for carrying out the duties of  censorship e.g. the scrutiny of weights and measures, security of freedom of roads from obstruction by building houses thereupon, prevention of overloading of animals, prohibition of the public sale of liquor e.t.c.

 

In this connection again, during his time, caliph Umar announced an edict which commands thus:

That each wali should prevent dishonesty, defrauding in weights and measurements, cheating in industrial products and transactions. In particular, each wali should regularly inspect restaurants and food sellers and tailors and should immediately stop the making of anything that is haram or unlawful such as silk articles of clothing for men, intoxicants, musical instruments and fake coinage.[14]

 

On the same line of thinking,, al - mawardi stated thus:

 

As regards cheating in transactions and tadis or talus malus of prices, al-muhtasib’s duty is to disapprove all these, prevent them and, where any is practiced, to award a fitting punishment taking into account the circumstances under which it was committed.

The Prophet (PBUH) is reported as saying this “He who deceives us does not belong to us (Muslims).

 

Also, A. I. Omer[15] stated while highlighting some of the services to be rendered by al-muhtasib thus:

He enforce the public welfare in towns, for example, he would stop any inconveniences that may occur to uses of the streets; he prevents carries and Ship owners from carrying too much load on their animal ships. When he find houses that are threatening to collapse, he would order their owners to demolish them immediately, so as to forestall any unsavoury consequences or damage that may be caused. The smooth running of the Schools, also comes under the jurisdiction of al-muhtasib; hence he punishes any school teacher if they unnecessarily beat their pupils.

 

Furthermore, it is part of his duty to see that law and order is not violated by any at the market:

Also meat should always have a tag showing the selling price thereof so that butchers would sell their meat at the price fixed by the government – not less and not more. No butcher could conceal his cheating because al-muhtasib would send a little boy or girl, to buy from the butcher and al-muhtasib would then be able to check the weight.

 

It should be appreciated that, in discharging his functions, al-muhtasib exercises a considerable amount of judicial power of a summary nature over petty wrongs. For instance, he tries summarily and punishes any one who disobeys him in the market places and settles disputes relating to erection by shopkeepers of platforms on the highways and streets. But it should be noted here that, he is not competent to decide actions referring to real property nor those involving contracts of any type.

 

The penalties which al-muhtasib could inflict without resort to other judicial authorities were normally, after a reprimand, beating and a parade in disgrace through the streets; incorrect weight and measures and faulty products might be confiscated in exceptional cases, repeated offenders might be forbidden to continue to exercise their professions or even be banished[16].

A pertinent question to ask here is the relationship between al-muhtasib and a Qadi. Who comes under who?

 

By his functions and powers, al-muhtasib need not receive instructions from a Qadi. On the other hand, al-muhtasib can inquire into the functions of a Qadi in the name of ensuring that justice is administered.

 

This issue has been made very clear by al-mawardi when he illustrated thus:

Once upon a time. Ibrahim Ibn Batha who was then Wali al-Hisba, at Baghadad; had passed by the house  of the Grand qadi, Abi Umar Ibn Hammad. There he saw litigants sitting at the door of the said house waiting for the Grand qadi to come out. It had been a sunny midday and was very warm. This state of affairs had attracted the attention of Wali al-Hisba who immediately stopped, called the Grand qadi’s usher and instructed him in these words: “Go and tell Grand qadi that these litigants are sitting at his door and are suffering from being here under no shelter from the hot sun waiting for him; he should come out and either hear them now, or tell them to disperse and come back on another fixed day. 

 

Therefore, in this light, despite being below in the hierarchy of government, al-muhtsib seem to have wider jurisdiction than the Qadi particularly that, apart from the above illustration, al-muhtasib “stands the chance of discovering evils on his own initiative as against the Qadi whose power is only to adjudicate on matters before him[17]”.

 

Another important function of al-muhtasib is the execution of judgments.

This is derivable from the words of Ibn Bassam17 while describing how al-muhtasib should carryout his functions:

 

If al-muhtasib discovers any one drinking an intoxicant, he should flog him with a whip which should neither be thick nor thin; if the prisoner is a fornicator the flogging must be in public… but al-muhtasib must invite all people outside the town and then order them to stone the accused if the later is married or has been married before; if he sodomises a boy al-muhtasib should throw him down from above the highest building in the town; all this should of course, take place after the accused’s confession before the Imam; al-muhtasib should take charge of the accused only after this stage.

 

Finally, al-muhstasib also performs religious functions. In this regard, the religious duties of al-muhtasib includes the enforcement of islamic morals and religious behaviours on the community. Included here is the duty to ensure the maintenance and proper use of mosque etc.

 

It should be noted that, Saudi Arabia is perhaps the only muslim state, which has retained to this day the religious wing of the Hisbah intact to a large extent, although it too has distributed other functions to different departments and ministries. In Pakistan the division of law enforcement that investigates political corruption is called Ihatasib[18].

 

c.             Operation:

It is pertinent to begin this part with the words of Sufyan Ath-Thawry as follows:

No one should order what is good or forbid what is evil except the one in whom exists three characteristics;

-          He must be gentle in what he orders and in what he forbids,

-          Fair in what he orders and what he forbids, and knowledgeable in what he orders and what he forbids.

 

Furthermore, according to Imam Ahmad, People need to be addressed indirectly with gentleness when being ordered to perform what is good. One should not address them with harshness, except the man who is cursed due to his immorality, in which case he is not exempt from such harshness. He continued.

When the followers of Ibn Mas’ud passed by some people who were committing what they hated to see (evil deeds), they used to say, “Slow down! May Allah bestow his mercy upon you, “Slow down! May Allah bestow his mercy upon you,Ahmad said, “He should order the people with kindness and humility. If they let him hear what he hates, he should not be angered and should not desire revenge for his own sake. Allah is the best knowledgeable[19].

These are the conditions for forbidding evil.

 

Indeed, Caliph Umar had demonstrated this with the dirra or whip he used to carry in his hand purposely for punishing wrong doers.

As – saeed, in describing the dirra stated thus:

 

Umar had a small dirra with which he punished people for committing petty wrongs that he had observed. Although it actually was a stick that could not cause any harm to anyone it hit, it awfully scared people more than the swords of the most tyrant kings. That dirra was used by Umar without discrimination between big and small people; and it so happened that the first person on whose back the dirra fell was Umm farwah, the sister of the first Caliph, Abu Bakar. That was at the death of Abu  Bakar, when his women relatives had begun to cry loud, refused to listen to Umar’s request exhorting them to stop the wrong………….

 

In addition to the above, in operation, the subject matter of the Islamic Institution of Hisbah must be “munkar” which is active at that point and its being publicly discerned without any type of spying to discover its presence. And, the munkar must be one that does not need any special type of effort (Ijtihda) to determine its qualification[20]. In view of this, the functions of al-muhtasib are sanctioned as follows:

  • He must establish his fact without any spying or listening to the close doors. Al-muhtasib has no right of smelling the person’s private piece of cloth or dress.

  • Must explain the nature of fact to the relevant person and explains his role in it.

  • Admonish the person and to be fearful of Allah. This is for those who insist on wrong things although they know that it is not good.

  • Act a little bit harsh. This is, if previous methods do not work and provided the following are observed:

(a)      There must be a need of harshness and mild ways must have been tried first.

(b)      Harsh words must not take longtime and the truth must be kept intact.

  • Correct cases with force. Firstly, an attempt must be made for making the addressee change the situation and correct his fault; and secondly, the necessary level must not be trespassed and must not oppress him in any way.

  • Fore – warn people that if they do not abstain from doing wrong actions, they would be punished. Warning must be reasonable and lawful.

  • Must beat people without using any tool and instrument.

  • Could use fire arms in very rare cases in instances where he faces belligerent and rebellious people[21].

 

It is pertinent at this juncture to note that, the Islamic Institution of Hisbah is governed by the following principles:

    • Fear of Allah

    • Justice among the people

    • Protection of personalities, properties and dignities of the people.

    • Establishment of honest business,

    • Tradition and usage, and

    • Shari’ah

These principles govern the operations of Hisbah.

 

Muhtasib, in the light of their functions and how they suppose to operate, should in cities be seen to be dealing with all items of public interest such as:

  • markets, streets, coin and money units, scales, all kinds of measures and weights, sales, prices and monopolies.

  • Areas of foods and drinks: crop merchants, millers, bakeries, butchers and restaurants; friars of heads of livestocks, fisheries and sausages makers etc.

  • Clothings: textilers, tailors, merchants of cotton, thread producers, cloth colourers and shoe makers.

  • Health: Juice producers, pharmacists, perfume merchants, physicians, blood takers and bathing houses etc.

  • Gold and Silver merchants, money changers, jewelers, merchants of tiles etc.

 

Indeed, the manner of operation of Hisbah as shown before must reveal Hisbah as an institution aimed at taking care of the community concerned, awakening all potential forces and dynamics for Islam, letting mechanisms work for all people of the society, keep the privileges of disabled and retarded members of the community, and look after all elderly people, destitute, poor, homeless, patients and sick members, safe guarding the public safety and order and interest. etc.

 

d.             Qualifications

The gigantic nature of the office of the Islamic Institution of al-Hisba and its sensitivity requires certain conditions to be fulfilled before a person can be said to be qualified for it.

 

These qualifications are as follows:

  • Must be a muslim. This is because of the nature of the duty and its comprehensive structure which extends to pure religious duties.

  • Must be an Adult.

  • Male or female but it should be noted that, Caliph Umar (R.A.) appointed a lady Shifa Bint Abdallah to control and inspect the markets and another lady by the name Samra Bint Nuhaik used to walk in the streets of market and enjoin the good and forbid the bad with a whip in her hand. Some scholars are opposed to this idea of a public position being held by women. But it might be thought that, perhaps the job they held were related to women and to appoint the ladies to the positions which are directly attached to their nature are not deniable.

  • Being just and balanced; righteous attitudes; to call others to the right path, one must himself be right. Those who do not have straight attitude may not hold this position according to some of the scholars.

  • Being authorized by central authority, such a position is an official one and its powers stems from the state. However, volunteers can do the job if state power is not represented

  • Muhtasib must know the good and bad he is involved in. his level of knowledge may not reach to the level of Ijtihad[22].

  • Be a practicing Muslim.

  • His purpose must be for the sake of Allah

  • Have  taqwa and fear of Allah

  • Have a good standing in the community.

  • Ability to fulfill the job in a proper way: unqualified person may not do this job. If the job is not done, then it will loose its effectiveness.

 

HISBAH TODAY

An attempt will be made here to examine the laws establishing the Islamic Institution of Hisbah in three “Shari’ah states” in Nigeria to wit: Kano, Zamfara and Bauchi [23]

The essence hare is to see the distinguishing factors between classical Hisbah as discussed above and Hisbah today.

 

To a large extent, the Islamic institution of Hisbah as it exists today is a creation of statute.

 

This is very clear in the method of their formation in the three states under scrutiny.

 

In Bauchi state, section 8 of the Bauchi state Shari’ah Commission Law 2001 makes provision for the functions and powers of the commission. Paragraph (g) of that section 8 provides that:

The function of the commission shall include recruitment and control of members of Hisbah.

It is interesting to note that, all the known functions of the Islamic Institution of Hisbah as it exist in Bauchi State, are made the functions of the Shari’ah Commission under which the Hisbah exist.

In Kano State, however, there is the Hisbah law called the Kano State Hisba Board Law 2003, and so is the case with Zamfara State where we have the Zamfara State Hisbah Commission (Establishment) Law 2003.

 

Now, the three differ in so many respects especially, where the issue of litigation against the bodies is at stake. While in Kano and Zamfara State, action can be initiated in the corporate names of the commissions as contained in the laws (Zamfara: Hisbah commission, Kano: Kano State Hisba Board) in Bauchi, actions are to be initiated in the corporate name of the Bauchi State Shariah Commission. Other differences will be discussed under the following headings;

·         Hisbah and Governance

·         Hisbah and shari’a judges.

·         Hisbah and members of house of assemblies of states.

·         Hisbah and NAFDAC and Standard Organization of Nigeria.

·         Hisbah and the police.

·         Hisbah and community policing.

·         Hisbah and religious practices

·         Hisbah and religious commerce.

Hisbh and shari’a judges.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a.             Hisbah and Governance.

On the role of the Islamic Institution of Hisbah in governance, the Zamfara State Hisbah Commission ( Establishment) law 2003 provides in section 6 (7) as follows:

The commission shall have the power to ensure conformity with shari’a in all activities of the state and local government in their day to day governance of the society.

Furthermore, under para 10 of same section, they have the power:

To advise the state and local government councils -----on all issues concerning the implementation and application of shari’a.

 

In both Kano and Bauchi Hisbah laws no similar provisions were made. In Bauchi however, by section 8(h) they can advise the government on the implementation of certain Islamic injunctions such as sighting of new moon e.t.c.

 

It is worthy of note that, this particular provision has acknowledged the wide powers the classical Islamic Institution of Hisbah use to have. In this regard, the absence of this type of provision in Bauchi and Kano shows that, Hisbah in these states have no say in the affairs of those states ( both state and local).

 

b.             Hisbah and Shariah Judges

We have seen the position under classical Hisbah on this topic. It was stated that, though al-muhtasib is below the hierarchy, he enjoys more power than the Qadi.

 

It is therefore interesting to note that the Zamfara Hisbah Law acknowledges this power of the Islamic Institution of Hisbah. The Zamfara State Hisbah law provides in section 6(3) that,

The commission shall have power to monitor the daily proceedings of shari’a courts in order to ensure proper compliance with shari’a penal and procedure codes and report on all action likely to temper with the proper dispensation of justice from any court official or any litigant.

 

Comparing this with the illustration of al-mawardi above, one will conclude by saying that the Zamfara State Hisbah in this area also acknowledges a vital function of the al-muhtsib under classical Hisbah. No similar provision in Kano. However, in Bauchi section 8(b) provides that:-

The function of the commission shall include creation and maintenance of awarwness of the citizen to the community under the shari’a legal system including the social and moral obligations of shari’a court judges and other key personnel associated with the operation of f shari’a legal system.

 

No matter what, the zamfara state provision is clearer and more in conformity with classical Hisbah.

 

This again shows that, in Kano and to a large extent Bauchi, if not for their function on  “Creation of awareness” it is not part of their duty to monitor what happens in shari’a courts.

 

c.             Hisbah and members of the House of Assembly.

This is part of governance. In zamfara state again, by section 6(5) the Hisbah have power to;

Take every measure necessary to sanitize the society of all social vices and what ever vice or crime is prohibited by shari’a.

 

Indeed, the Zamfara State Hisbah has enormous powers. The Bauchi state Hisbah has no such powers. However in Kano, the Hisbah can advise on moral counseling in the society which is in conformity with Islamic injunctions.

Again, while the Zamfara Hisbah has power to inquire into anything within the state under this section, so is not the case with Bauchi and Kano States.

 

d.             Hisbah and other Agencies in Nigeria

It is not exaggeration to say that almost everything NAFDAC and Standard Organization of Nigeria are doing is within the realm of the functions of classical Hisbah.

 

Neither the Zamfara State Hisbah law nor Kano or Bauchi made provision as regards liasing with NAFDAC and Standard Organization of Nigeria in carrying out their functions.

 

It is no doubtful to state that, Hisbah by its nature, in the classical sense, does the work of these two organizations as they exist today.

 

To some extent, Bauchi has done something here. Section 8(f) makes provision as regards control and regulation of weight and measures among other things. Zamfara State Hisbah law has nothing on this and so is the case with Kano.

 

Hisbah of today suppose to be seen working actively in this regard. We have mentioned the areas previously. Generally, Hisbah of today should liaise with other agencies such as the EFCC, ICPC and NDLEA to fight corruption and other social vices.

 


 

e.             Hisbah and the police

 The relationship between Hisbah and police is complementary. Hisbah in the three states can arrest and hand over to the police. Section 7(4) (i) of the Kano State Hisbah Board Law 2003 provides that, the Hisbah shall render necessary assistance to the police and other secuirity agencies especially in the areas of prevention, detection and reporting of offences. Furthermore, the Zamfara State Hisbah law also provides in section 9(1) that;

the Hisbah commission and all its staff at the local government councils and ward levels shall have the power to make arrest in accordance with the shari’ah criminal procedure code law, 2000 and thereafter hand over the arrested person(s) to the police.

 

I could not see a similar provision in the Bauchi Shari’ah Commission Law though in principle that is their practice two . An important issue to address here is the issue of prosecution. That is whether or not under the laws establishing the Islamic Institution of Hisbah in Nigeria, the Hisbah as a corporate body or the Shari’ah Commission as in the case of Bauchi State can prosecute persons who violated shari’ah laws in those state just like the police do in the case of those who violated Nigerian laws?

 

It is not in doubt that, the power of the police to prosecute in Nigeria is statutorily provided.

 

In this regard therefore, it is my contention in this paper that the Islamic Institution of Hisbah, can validly prosecute persons who can be shown to have violated Shari’ah laws as defined under these states.

 

For instance, in Section 15 (5) of the Bauchi State Shari’ah Commission Law under which the Hisbah exists, it is provides:

The Commission may conduct legal proceedings through the office of the Attorney General or with his consent through any legal practitioner of its own choice.

 

This is to say that, they can prosecute if given fiat by the A.G. of the state. However, this provision negates Nigerian case law. This is made clear in the case of Ikpana V. Regd. Trustees, P.C.N.  (2006) ALL FWLR PART 310 Per Adamu JCA: (P. 1720, paras E – G)

From the clear of unambiguous wordings of the above provision (section 36 (6) (c) of the 1999 constitution), the true intention of the framers of the constitution is to make the choice of counsel a right only in criminal cases. Thus, the right of choice of counsel by a party, or litigants is only regarded as a constitutional or fundamental right in cases where the party or person is charged with a criminal offence. Since the constitution is silent, on other cases (i.e. civil cases), the intention of the legislature is therefore to make the parties thereto not entitled to counsel of their choice as a right.

Furthermore, section 143(e) of the Criminal Procedure Code makes provision for the commencement of criminal proceedings by private persons. The section provides that the court may take cognizance of an offence if from information received from any person other than a police officer; it has reason to believe or suspect that an offence has been committed.

 

In addition, Hisbah need not get a qualified legal practitioner to prosecute cases provided they comply with the rules. While concurring with the lead judgement of his learned brothers Onnoghen JSC in the case of F.R.N V. Osahon and 8ors, (2006) ALL FWLR PART 312 pp. 2036 paras H-A stated thus:

It is therefore my view that if it was the intention of the framers of the 1999 constitution to exclude those without legal training from the group of those recognized to institute criminal proceedings in any court in Nigeria, They would have clearly stated so in section (174) of the 1999 constitution. Their not so stating leaves us with no other option than to hold that by the expression “any other person” used in  Section 174 (1) (b) of the 1997 constitution, the framers meant what they said; that is any other person whether learned in law or otherwise provided he is of course a person.

 

This opening can only be corrected through due process of amendment of the constitution in p. 2037, Paras B - C, same judge further stated in this regard that:

……….. I hold the view that the floodgate so opened by the constitution can only be either narrowed or closed down completely by legislative process duly initiated by way of amendment to the relevant provisions.

This is conclusive on the opening made by Nigerian law on the prosecution of cases by persons otherwise than police officers.

 

However, it is another thing whether under Islamic Law, the al-muhtasib had power to prosecute apart from his power to take decision over people who violated any law to which he is directly responsible. It is also another thing whether Islamic law recognizes the doctrine of corporate personality. If it does not, we will be right to ask of the Islaminess   of the practice in establishing Hisbah in these three states?

 

f.              Hisbah and Community Policing

Our discussions on how the al-muhtasib is expected to discharge his duties particularly in the area of forbidden evil is quite – reflective of the inherent gentility, fairness, politeness and wisdom in the Islamic Institution of Hisbah.

 

By this, it can safely be stated that, the characteristics of the concept of community policing are inherent in the Islamic Institution of Hisbah in the area of performing their functions. It is interesting to note that the Bauchi State’s GUIDELINES ON THE FORMATION, FUNCTIONS AND OPERATIONS OF HISBAH COMMITTEES IN BAUCHI STATE contained a provision on community policing in the functions of Hisbah.

 

Item 2.0 paragraph 2.1.3 provide thus:

Uniting people of a particular community to solve their common problems related to moral issues, social welfare, youths unemployment, etc. so as to complement government activity.

This envisages partnering with the community in solving problems of fighting the evil through cooperation as advocated by community policing philosophy.

 

 

Furthermore, paragraph 2.1.2 of same item 2.0 provides thus:

Resolution of conflicts and making peace between individuals, groups, and communities without having to resort to courts.

A close provision can be found in the Kano state Hisbah Board Law 2003 precisely in section 7(4) (ii) (x).

All these are quite reflective of the accommodation of the characteristics of community policing. Though, no similar provisions in the Zamfara State Hisbah Law, however, they are certainly bound by the application of the principle, in the discharge of their functions as it is inherent in the Islamic Institution of Hisbah.

 

Furthermore, it is worthy of note that, the para-military nature and mentality given to the Hisbah in all the three states under scrutiny as exhibited in their police – like uniforms, greetings, hierarchy and police – like mode of operation speaks volumes on the lack of the culture of community policing in the Institution and our slavish attitude towards copying the west all the time even in implementing Shari’ah.

               

The Hisbah certainly must be given new orientation in this aspect particularly by taken into cognizance the principles governing the operation of the classical Hisbah explained above.

 

g.             Hisbah and Religious Practices

It was stated before, that, Saudi Arabia is perhaps the only muslims state that has retained to this day the religious wing of the Islamic Institution of Hisbah intact to a large extent. In Nigeria today, Kano, Zamfara and Bauchi States have also joined Saudi Arabia in this regard. Section 7(4)(vii) of the Kano State Hisbah Board law provides:

Encourage orderliness at religious gathering e.g mosques, during salat (Prayer, Iftar, Breaking in the fast) during Ramadan, Pilgrims during Hajj operations and in any public functions.

In Zamfara Hisbah law, section 6(8) provides:

To ensure that all ceremonies, celebrations and anniversaries are carried out in accordance with the teachings of Sharia.

In section 6(6), the law further provides:

To take every measure to ensue proper conformity to the teachings of Shari’ah by the general public in matters of worship, dress code and social or business interactions and relationships.

It should be noted that the Zamfara State have specific laws on religious preaching and Juma’at Mosque[24].

                In Bauchi, section 8(i) provides that, the commission shall protect the society against inflammatory and irregular forms of preaching including advice to government for appropriate action.

 

h.             Hisbah and Commerce

It is not in dispute that, the principal function of the Islamic institution of Hisbah is the supervision of market with a view to ensuring compliance with the teachings of Sharia as stated earlier on.

 

It was also made clear that, Caliph Umar (R.A.) gave instructions to Abu Huraira (R.A) after appointing him as the “Sahibul Ahdath” for Bahrain thus:

Keep peace in the area. Let not the people contravene the law. They should not measure or weigh incorrectly. No body should build any house on roads so as to hinder the passage. No one should overload an animal. No body is allowed to sell or buy liquor.

It is interesting to note that, apart from the Bauchi state Sharia commission law which specifically provided in section 8(e) that part of the function of the commission includes Control and regulation of weight and measures. Neither the Zamfara State nor the Kano State Hisbah law specifically makes such provision under the functions and powers of the Hisbah. With these, it is difficult for the institution to perform its duties effectively. However, in all the three states, Hisbah has done very well in the area of sensitization, control of traffic during and after working hours especially during the rush hours and where traffic wardens are not sufficient, family matters and girl child trafficking.

HISBAH AND THE NIGERIA CONSTITUTION

The established of Hisbah is in violation of the provisions of section 2/4, subsection I of the 1999 constitution, which recognized the Nigerian Police Force as the only agency so entrusted with the Policing of the federation; the federal government wishes to state emphatically that it will not tolerate the establishment of unconstitutional and illegal security outfits by government, group or individuals in any part of the country under any guise.

 

These were the words of the minister of information and national orientation, Mr. Frank Nweke jr, speaking on behalf of the Federal Government on the 9th February, 2006 in Abuja.

 

The pertinent question to ask here is, whether indeed, the establishment of the Islamic Institution of Hisbah by shari’ah states in Nigeria violates the Nigerian Constitution and particularly Section 214.

 

In answering this question, it is pertinent to start by, scrutinizing the status of Hisbah in the three states under scrutiny in this paper with a view to determining their legitimacy or otherwise.

 

Hisbah, as in Kano, Zamfara and Bauchi states, were established pursuant to the power conferred by the Constitution of the   Federal Republic of Nigeria 1999 on House of Assembly of States.

 

Section 4(6) of the 1999 Constitution provides that, the legislative powers of a state in Nigeria is vested in the House of Assembly of the state.

 

 

Again, section 4(7) of same Constitution provides that:

The House of Assembly of s state shall have power to make laws for the peace, order and good governace of the state or any part there of with respect to the following matters, that is to say;

 

a.                   any matter not included in the exclusive legislative list set out in part 1 of the second schedule to this constitution;

b.                   any matter included in the concurrent legislative list set out in the first column of part II of the second schedule to this constitution to the extent prescribed in the second column opposite thereto; and

c.                    Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.

 

It is of interest to point out that, this very power of the House of Assembly of a state, is subject to the jurisdiction of the Nigerian Courts.

 

In this connection, section 4(8) of the Constitution provides :

 

Save as otherwise provided by this constitution, the exercise of legislative powers by the National Assembly  or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law and accordingly, the National Assembly or a House of Assembly shall not enact any law, that outs or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

 

It was made very clear in this paper that, in Kano State, the Hisbah law isKano State Hisbah Board Law 2003”, in Zamfara Sate, it is the “Zamfara State Hisbah Commission Law, NO. 17 2003 and in Bauchi state, it is the Bauchi State Shari’ah commission Law 2001 under which the state’s Hisbah exist.

 

I find it difficult to understand the nature of the violation as alleged by the minister of information as quoted above.

 

It is worthy of note that, the essence of section 4(8) is to make it possible to challenge any law made by either the National Assembly or House of Assembly of a State in a court of law. This is where the federal government erred and therefore makes the purported ban of the Hisbah unconstitutional. It is also interesting to note that, section 214 of the 1999 Constitution, with due respect  has no relevance at all in this matter as it only deals with the establishment of the police force and we already in this paper discussed the relationship between the Hisbah and the Police. The Hisbah only assist the police. And it is not new to do that. In London for instance, they have the Community Support Officers (PCSO)

 

The PCSO too was established by the London Assembly under schedule 4 of Act 2002.The PCSO have power under the Act establishing them to:

 

·         Issue fixed penalty tickets for minor anti-social behaviour and confiscate alcohol being consumed in designated public place.

·         Search and enter premises in order to save life or prevent serious damage;

·         Seize vehicles used to cause harm to others as well as carry out road checks in the company of police constable.

·         Enforce cordoned areas in the event of terrorist incident, search and stop motor vehicle with constable.

·         Use reasonable force to detain a person in certain circumstances.

 

Now, like the PCSO, the Hisbah too are not Police and by the law, they only complement the work of the police.

 

If there is any problem with the existence of Hisbah, the appropriate thing to do is to go to court as they are a body validly established by Law in the states.

 

CONCLUSION/RECOMMENDATION

We have discussed the meaning of community policing and have understood the fact that, it is not new to Shariah, rather, it is inherent in the Islamic Institution of Hisbah. We have also discussed the Islamic Institution of Hisbah from the classical sense and have by now, understood its nature and the duties of al-muhtasib under it and found it to be a very beautiful institution in the history of Islam.

 

We have also seen how the classical Islamic Institution of Hisbah differs in some respects with the Hisbah in Nigeria today. Finally, we established that, Hisbah as it exists in Nigeria today in the three states under scrutiny has not violated the Nigerian constitution in any way. Therefore, it should be allowed to stay as I believe, it has the potential of contributing immensely to our moral development. However, in order to facilitate its operation ability, I recommend as follows:

 

·                     There should be a comprehensive reform of the Islamic Institution of Hisbah with particular reference to structure, management, culture and environment in order to successfully implement shariah law in the states. This suggest, discarding the present para-military nature given to the institution, and having a complete change in the way it operates in those states by adopting the methods of operation discussed under classical Hisbah which are in line with the principles of community policing.

 

·                     Hisbah should engage professionals in all areas in carrying out its duties. Professionals such as medical doctors, pharmacists, lawyers, food technologists, medical laboratory scientists, engineers, information technology experts, film producers, educationists, psychologists, sociologists and accountants  etc are all needed.

 

·                     Hisbah in all the states should be decentralized in order to work efficiently.

 

Without decentralization, professionals would find it difficult to work due to bureaucratic tendencies in centralized systems and we will loose the chance of discovering people with potentialities in other areas.

 

·                     Hisbah should as a matter of priority focused attention on markets and the economy. For instance, the practice of middleman ship which is very rampant in our society and which was expressly prohibited by Prophet Mohammed (S.A.W) should be put to a stop. It is unfortunate that, non-of the laws of Hisbah contain any specific provision on this.

 

·                     The laws should be reviewed with a view to accommodating other beautiful things we saw in classical Hisbah.

 

·                     There should be a rethink over implementing shariah generally through Western means. For instance, the laws gave corporate sole to the Hisbah institution in those states. How Islamic is that?

 

·                     There should be deep thinking over any provision before it is made law. This is to avoid passing ambiguous laws. For instance S.14(5) of the Bauchi States Shariah Commission Law. It has not taken into cognizance the limitations which that section supposes to take.

 

·                     There should be a written procedure on how Hisbah should discharge its responsibilities.

 

·                     Hisbah should see need to work with other organizations such as the EFCC, ICPC, NAFDAC, NDLEA etc when operating in the states.

 

·                     Hishah laws in Kano and Bauchi should make provisions similar to that of Zamfara state as regards the relationship of Hisbah with governance in the state.   


 


[1] See Manning, P. K. (1984). “Community Policing,” American Journal of Police, PP. 205 – 227 also see Goldstein, H. (1987). “Toward Community – Oriented Policing: Potential, Basic Requirements, and Threshold Questions”, Crime and Delinquency, PP. 6-30

[2] See Nicholl, Caroline G., Community Policing, Community Justice and Restorative Justice: Exploring the Links for the Delivery of a Balanced Approach to Public Safety, Washington, DC, United States Department of Justice, Office of Community Oriented Policing Services, December 2000, PP. 24-30.

[3] See EOO Alemika (1993a) Colonialism, state and policing in Nigeria, Crime, Law and Social change, PP. 187-219.

[4] See Letter from Governor HS Freeman to the Duke of Newcastle, 31 December 1863 National Archives, Ibadan.

[5] See Innocent Chukwuma and Ogaga Ifowodo (eds), Policing a Democracy, Centre for Law Enforcement Education, Lagos, 1990, P. 2.

[6] See Khan, Muhammad Akram, “All-Hisba and the Islamic Economy” Appendix in Ibn Taymiya, Public Duties in Islam: The Institution of Hisba translated by Muhtar Holland (Leicester, UK, 1992. P. 135)

[7] All European writers on the Islamic Institution of  al-Hisbah are of the view that the notion of hisbah was new to Islam. For instance both Cahen and Talb believe that, the origin, of the office of al-Hisba is not clear. For more see A. I. Omer (1979). “The Institution of Al-Hisba in the Islamic legal system”, Journal of Islamic and comparative law.  Centre for Islamic Legal Studies A.B.U  Zaria  PP. 63 - 64

[8] Al-mawardi, al–Ahkan  al-sultaniya,P. 249.

[9] K. Z. Yusuf, Fiqh Islamic Law & Usul Al-Fiqh available at www.islamonline.org.

[10] See Shamsul ‘Ulama ‘Allama Shibil Nu’mani (1976), “Umar the great (the second Caliph of Islam) vol. II translated by Maulana Zafar ‘Ali Khan PP. 79-90.

[11] It should be understood that “fighting is not a condition for changing evil by the hand. This was recorded by Imam Ahmad based on the narration by salah who said, “Changing evil takes place by the hand not by the sword or any other weapon”.  this is the Jihad of the hand that takes place against rulers when an individual removes the evil they commit with his hands. Examples of such  are spilling their wine, destroying their musical instruments etc. If he has the ability, he may also nullify, with his hand, the oppression which those rulers wrongly or ordained. All these cases are allowed and are not considered fighting or rebelling against the ruler which is prohibited. For more, see Ibn Rajab: Jamil Al-Ulum wal – Hikam (2002) translated in to English by Muhammad Fadel PP. 433 – 434.

[12] Al-mawardi Opcit at P. 241

[13] K. Z. Yusuf  Opcit at P. 50.

[14]ibn Qayyim, al-Turuq al Hukmiyya, P.219

 

15 A. I. Omer Opcit at P. 70.

 

16 A.I Omer Opcit at 71.

 

[17] Ibid

[18] A. Murtuza  Hisba (2000): “The Islamic Variation for the Regulation of Market place and Commerce”. A paper presented at Sixth Interdisciplinary perspective on Accounting Conference Manchester, 10-12th July, 2000, Seton  Hall University South Orange, NJ 07079 USA. P. 17

[19] Ibn Rajab Supra at P. 437

17  ibn Bassam: Nihayat al Rutba, P. 216

[20] K. Z. Yusuf  Opcit at P. 52

[21] Ibid

[22] Hisbah Must be prepared to face modern challenges in the areas of information technology so as to tackle cyber crime and drug adulteration etc.

[23] We selected these three states because the Islamic Institution of Hisbah is must pronounced in the states. The Institution have statutory backing.  

[24] That is the Religious preaching and establishment of Jumu’at  Mosque and Idi praying ground (amendment) law No. 14   2003 and  etc.