Yusuf and the Legality of Boko Haram

Yusuf and the Legality of Boko Haram: Extrajudicial Execution of Muhammad

Barr. Ja'afar Ibrahim

It is now a year when many Nigerians, among which are lawyers, human rights activists, and some Muslims scholars, have expressed dismay and outcry regarding the extrajudicial execution of Boko Haram leader, Muhammad Yusuf, allegedly carried out by the Nigeria Police. Suffice it to say that, according to the aforementioned personalities, the method by which the execution of Muhammad Yusuf was carried out amounts to violation and breach of the laid down procedure of carrying out executions and against Fundamental Rights enshrined in our constitutions and Article 6 of the International Covenant on Civil and Political Rights as well as the provision of Shari'a Law which is also an applicable law in Maiduguri. Before digesting the controversial issue of extrajudicial execution, it is good to go through the ideology and dogma of Boko Haram.

LEGALITY AND CONSTITUTIONALITY OF BOKO HARAM

Our grand norms, the 1999 Constitution of the Federal Republic of Nigeria, makes it lawful for a citizen to have a belief, thought, conscience and religion and as well as the right to change religion or belief. Also, one has the right to propagate such belief. Section 38 (1) of The 1999 Constitution of the Federal Republic of Nigeria provides that. “Every person shall be entitled to freedom of thought, conscience and religion, including to change his belief and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.”
By virtue of the above section, Late Muhammad Yusuf had the legal right to propagate his belief of Boko Haram i.e. western education is prohibited. For, nowhere in our applicable laws make it an offence to denounce or discard western education. With due respect and decorum, if there is any provision in any of our applicable laws let the legal luminaries counter this challenge.

Boko means any subject or course originating from west that is taught in the universities down to the nursery schools and/or taught in any means be it electronically or otherwise. Whereas haram linguistically means prohibition, while in Islamic jurisprudence it connotes an act or omission that attracts punishment if breached or reward if done. (Al-wajiz fi Usul al-Fiqh, page 40).

According to Muhammad Yusuf, any education, be it western or otherwise, that is contrary to Islamic principles is haram i.e. prohibited. This ideology is in line with Islamic principles and no any Islamic erudite scholar of whatever caliber of knowledge can contradict him. But would it be haram by being knowledgeable in what is haram? Certainly the answer is no. Knowing or seeking and acquiring any education that is haram is not haram, but putting it into practice by fully believing in it, or trying to legalize it, is only what would be termed as haram. As such even if western education is haram seeking it, is not haram unless if one is intending to legalize and put the haram (unlawful) part of it into practice without any necessity of doing so and by fully believing in it, at that juncture one may be said to have committed haram.

JURISPRUDENTIAL APPROACH TO THE LEGAL CONCEPT OF HARAM

Haram jurisprudentially can be seen in a broader sense as anything that Almighty Allah enjoined us to do, which if we do it Almighty Allah will reward us and our refusal to do it makes us sinners and will attract punishment in our mundane life or hereafter. And also vice versa; anything Almighty Allah enjoined us to avoid, the avoidance of which is rewarded and the commission of which attracts punishment.

Haram is categorically classified into two Haramun Li Zatihi and Haramun Li Ghairihi
Haramun Li Zatihi refers to what are naturally and originally prohibited, such as murder, genocide, adultery, robbery etc. All these things were prohibited because they violate the six objective principles that Shari'a protects which are: religion and religious right, progeny, honour and dignity, property, life and intellect. ( Q6;151, 24;27 49;12, 5;4, 4;135, 2;256, 5;9;7, 119;90, 8;41) (See also Alwajiz fi usul al-Fiqh page 40-42).

Where anything of the aforementioned objectives will not be protected unless haram (unlawful) must be committed, Shari'a gives permission to commit it. For instance, one on a journey is allowed to eat the flesh of carcass for him to survive where there is no food. Also, one will not be killed for a murder he committed in protecting his own life by means of self defence. Likewise, even if boko is prohibited it will be permissible in order to protect any of the aforementioned objectives. This is because in our modern world of today it is hard to achieve the above objectives without western education, no matter how little it is. (See also Alwajiz fi usul al-Fiqh page 40-42).

Haram Li Ghairihi is anything that was initially permissible but prohibited due to some circumstance, without which it is permissible. For instance, contract is permissible but it is prohibited during the hour of Friday prayers, also marital consummation between husband and wife is permissible but prohibited during menstruation period, likewise seeking knowledge is permissible but prohibited if it will tantamount to disbelief. So, by taking care of the circumstance that will turn permissible to haram (unlawful), then the haram (prohibition) will turn to halal (lawful). So by synthesizing the Islamic principle with western education and by filtering unlawful ethics and belief contained in it, then the totality of western education will turn to halal (lawful).

ISLAMIZATION OF KNOWLEDGE VS HARAMUZATION OF KNOWLEDGE

The phrase Islamization of knowledge was first used and proposed by a Malaysian scholar, Syed Muhammad Naquib Al-attas, in his book titled Islam and Secularism, published in 1978. It is a term which describes variety of attempts and approaches to synthesize the ethic of Islam with various professions and field of western or modern thought. The advocates and preachers of this term argue that a body of western knowledge (boko) that had been so Islamized would not offend the Islamic principles since it would place Islamic ethic before knowledge or curiosity or power, and provide for curtailment of scientific or any professional field of western knowledge that offend those Islamic ethics.
In a nutshell, the aim of Islamization of knowledge is to inculcate Islamic ethics in western education and discard all sorts of things that are not in conformity with Islamic principles and provide alternative for that. The success of this idea can be seen everywhere in the world. There a good instance in Nigeria where all the banks are conventional but still one of the banks has a product known as Amana Savings and Amana Current Account which are free interest accounts purely designed in conformity with Shari'a law. By having this product under conventional bank is a great achievement in terms of Islamization of knowledge.

The dogma of Muhammad Yusuf and his followers of Boko Haram i.e. western education is prohibited, is what I termed as Haramuzation of knowledge, deriving the ward Haramuzation from an Arabic word Haram, meaning prohibition, coupled with the fact that Muhammad Yusuf and his followers uphold that the whole western education is Haram i.e. prohibited and should be avoided in totality without given rooms for synthesis and filtering.

Haramuzation of knowledge is contrary to the well known Islamic jurisprudential maxim which states that where there is two necessary evils it is permissible to take the lesser evil and forgo the greater one (See Qawaid al-Fiqhiya). The evil of being ignorant of western education is greater and above the evil contained in it. In other words, the benefit of western education is greater and above its evil for the Muslim community. Therefore, Muslims are permitted to go for western education despite some of its unconformities with Islamic principles which some see as sources of evil as described by Dr. M. B. Dalhatu of Department of Private Law, Faculty of Law, ABU, Zaria, in a book titled Contemporary Issue of Islamic Jurisprudence. In the book, he states that, “In an unprecedented manner of today the world has become a manifestation of sin, object savagery, tyranny and poverty, moral decadence, intellectual chaos and a picture of total bankruptcy of man's faith in salvation through science and technology.”

EXTRAJUDICIAL EXECUTION OF AN INNOCENT BOKO HARAM LEADER

Whatever the magnitude of the offence one committed even before thousands of eye witnesses, he is presumed to be innocent until proved guilty and should not be punished unless through due process of law. Our laws and international law provide the following rights which the accused person is entitled before passing any sentence against him, that he should:

· Be informed promptly in the language he understands and in detail of the nature of the offence.

· Be given adequate time and facilities for the preparation of his defence.

· Be given a lawyer for his defence free of charge if he cannot afford it.

· Right to fair trial before imposition of the sentence, the trail must be in an open court, right to defence.

None of the above rights contained under 36 (5) (6) of 1999 Constitution of the Federal Republic of Nigeria and Article 6 of the International Covenant on Civil and Political Rights have been given to Muhammad Yusuf before the deprivation of his right to life under sect 33 (1) of 1999 Constitution of the Federal Republic of Nigeria.

The above is the general rule and the only exception under which police can hide for the alleged brutality of extrajudicial execution, is the provision of section 33 (2)(a)(b)(c) of 1999 Constitution of the Federal Republic of Nigeria, which allegedly the police misused. Or perhaps they acted in ignorance of its content and its interpretation. Ignorance of our laws by the Nigeria Police is not a hiding cave in which they cannot be brought to book. It is a well known legal maxim that, Ignoratia juris non excusat i.e. ignorance of law is not an excuse.

Also, section 33(2) of the 1999 Constitution of the Federal Republic of Nigeria provides that, “A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstance as are permitted by law, of such force as is reasonably necessary:

a) For the defence of any person from unlawful violence or for the defence of property.

b) In order to effect lawful arrest or prevent the escape of a person lawfully detained; or

c) For the purpose of suppressing a riot, insurrection or mutiny.

One can conclude that none of the above situations could be said to be responsible for the killing of Muhammad Yusuf, even from the alleged official statement of the Commissioner of Police in Maiduguri. And no any reasonability of necessary force could said to have been applied and resulted in the death of Muhammad Yusuf, his followers and other innocents person, who were armless compared to the militant of Niger Delta. Had I have any authority of transferring police officers I would have transferred the culprits among them to Niger Delta where they can apply the above section 33 (2) of 1999 Constitution of the Federal Republic of Nigeria, and to put their experience into practice against the militants as they allegedly did at Maiduguri against Boko Haram members and innocent citizens.

Were Muhammad Yusuf alive he would not have forgiven me for using constitutional provisions to protect his inalienable rights. But as a minister in the temple of justice, this will not be a hindrance to doing justice to him despite his shortcomings, which I also hope will not be an obstacle to Mr. President in doing justice when he receives the report of the committee he inaugurated to investigate the matter.