ISLAM,
PROBITY AND ACCOUNTABILITY:
A Critical Essay in History, Philosophy & Law
By
SANUSI
LAMIDO SANUSI
Being text of the "N. T. A Channel 10 Annual Ramadhan Public Lecture"At the Auditorium of the Nigerian Law School, Victoria Island, Lagos. December 3, 2000
The
topic I was given by the organisers of this lecture was "Islam, Probity and
Accountability". It is a topic
whose choice was influenced, no doubt, by the sad state of our country and many
Muslim States, where corruption and lack of accountability have become something
of a cancer eating into the fabric of society and uprooting every social value,
structure and institution from its very foundations.
As
I see it, there are two possible approaches to this lecture.
The first is to stand here and assert, with all sense of
self-righteousness, the truism that Islam preaches probity and accountability.
This would involve a narration, parrot-like, of the various Qur'anic
verses preaching Probity and Accountability as well as Traditions of
the Holy Prophet (S.A.W.), anecdotes from the lives of the rightly
guarded Khulafa', the Sahaba,
the Tabi'in and great pious rulers like ‘Umar ibn Abdul 'Azeez. At the
end of the day everyone here would clap, cheer, feel good and generally have the
satisfaction of having heard a good lecture. But to do this is to merely engage in an exercise best
described as the masturbation (if you forgive the term) of our collective egos.
It states the obvious, avoids the difficult and in no way contributes to
the purpose of such a gathering. To
say that Islam preaches probity and accountability, and to try to prove
it to a Muslim audience, is a most ridiculous intellectual exercise.
It will only serve the purpose of Tahseel
al-haseel (attaining that which is already attained); for every Muslim surely
knows that not just Islam, but every world-view or civilization worth its name,
preaches accountability and probity. Even
Godless systems do so as evidenced by the recent execution in Communist China of
fourteen persons for acts of financial corruption.
There
is, however, a second approach: more complex, less palatable and certainly more
offensive to certain sensibilities. It
is an approach which asks a historically valid question which begs eternally to
be answered: why is it that inspite of the fact that we all know, academically
or intuitively, that corruption in all its forms is unIslamic, it remains a
pervasive feature permeating Muslim communities?
Why have Muslim leaders, including those who have ruled Nigeria in the
recent past, not been a paragon of probity and accountability? Why has the crime
of corruption not engaged the Muslim mind with the same intensity as, say, the
absence of the hijab among women or
the exclusion of hudud (fixed
punishments) from the Penal Code? In
simple terms, why is it that over a long period and spreading over a large part
of the Muslim world, the teachings of Islam on probity and accountability have been one thing, the practice
of Muslim people and their leaders a completely different thing?
It
is my view that the answer to this question is to be found necessarily in a
reasoned analysis of the anatomy of corruption, specifically (1) how it came to
be embedded in the body politic of the ummah,
(2) how the ummah's mindset was
conditioned to tolerate it and (3) how an elaborate legal framework was set-up
which,however ,effectively by-passes the menace, allowing it to thrive even
where an Islamic legal system is, in theory, operational.
The
first point is an excursion into history, specifically the fitnah,
the early conflicts and the end of the rightly-guided khilafa.
The
second is an excursion into philosophy and particularly ethics, with specific
focus on the misapprehension of the necessary connection between metaphysical
theism and our morality which, I will argue, represents some degree of
impairment to our conception of Tawhid,
and our full belief in the absolute unity of Allah the One as the source of our
existence and values;
The
third is an excursion into Shariah law as we know it, and an examination of the
limitations imposed on its scope by politics as well as the failure of scholars
to rise to the responsibilities implied by the flexibility of its injunctions.
I
have therefore taken the liberty to slightly amend the topic I was given by
introducing the sub-title you read above, (A critical essay in History,
Philosophy and Law) as an outline of the intellectual course I hope we will
chart together, a trip that may be discomfiting to some, tumultuous to others,
sickening to a few, but hopefully in the end worthwhile and enriching, opening
before us new vistas in thinking, breaking old barriers and challenging the
structures which served as mitigants to the progress of the Ummah
in this regard.
Historical
Nemesis: the Umayyad Legacy
The
coming of Islam and the establishment of the prophetic state marked a watershed
in exemplary leadership in the area of accountability and probity.
The true Islamic spirit in this regard, consistent with the Sunnah of the
prophet (S.A.W.) was maintained throughout the reign of three out of the four
caliphs of the early period and over a substantial part of the Caliphate of
Uthman. The example set by Abubakar, Umar and Ali in this area is difficult to
relate in it's entirety. Where does one begin?
Abubakar's
first Khutbah set the tone for his leadership:
"Now O People! I have been made your ruler though I am not the best
among you. If I do what is right
support me. If I do what is wrong
set me right. Follow what is true
for it contains faithfulness, avoid what is false for it contains treachery.
The weaker among you shall in my eyes be the stronger, until, if Allah
will, I have redressed his wrong; the stronger shall in my eyes be the weaker
until, if Allah will, I have enforced justice upon him.
Let the people not cease fighting in Allah's way lest He abase them; let
not evil practices arise among the people, lest Allah bring punishment upon all
of them. Obey me as I obey Allah and His messenger; if I disobey them,
then do you disobey me". These
are the words of a man changed
neither his residence nor his
mode of living when he became a ruler. He
refused to take a salary until his companions forced him and even then, on his
deathbed he commanded that all he had received from the treasury during his
tenure should be counted up and repaid out of his property and his lands.
Or
do I begin with the second Caliph, Umar b. al-Khattab who said in his second
sermon to his people: "O
people! It is your duty, if I show certain evil qualities, to reprove me for
them. You must see that I do not
exact from you any tax or anything of what Allah has given you, except that
which He allows. You must see that
when I have control of the money nothing should be spent improperly…etc".
This is 'Umar, who used to say: "The
property of Allah has the same standing with me as that of an orphan; If I have
no need of it, I will leave it untouched, and if I need it, I will take only
what is right". Asked
what his entitlement from the treasury should be, Umar replied:
"Two sets of clothing, one for the summer, one for the winter.
Enough to perform the Hajj and sufficient to provide me with food for myself and
my household on the level of a man of Quraish who is neither overrich nor
overpoor`. Beyond that I am an
ordinary Muslim, and I share the lot of all Muslims".
Or
do I begin with Ali, commander of the Faithful, who took over the caliphate at a
time of great tumult, and who was grievously wronged by the dissent of some
Companions? Ali who used to eat
barley meal, hand ground by his wife, and who used to seal the meal-bag with the
words "I like to know what is entering my stomach".
Ali who as Amir used often to sell his sword to get money to buy food and
clothing, who disliked the "White Castle" in Kufa and preferred living
among the poor. 'Utba ibn 'Alqama
once visited Ali and found him sitting with sour curds in front of him.
Their sourness and dryness vexed 'Utba who said: " O Commander of
the Faithful do you eat this stuff?" He answered " Abu Janub, Allah's
Messenger used to eat it drier than this and used to wear clothes coarser than
these" - and he pointed to his own clothes - "and if I do not accept
what he did, then I fear I will not join him in the hereafter".
The piety and asceticism of Ali are legendary.
It
is obvious that so far I have skipped the third Caliph, Uthman, Zun-nurain,
twice the son-in-law of the Prophet. Uthman,
compiler of the Qur'an provider for the companions in times of need, of whom the
prophet once said "nothing Uthman does after today will hurt him".
The greatness of Uthman in Islam is unquestioned; he was one of the six
left at 'Umar's death with whom the prophet was fully pleased when he left this
world. But the truth, and the truth
be said, is that no discussion of accountability and probity in Islam and how
the Muslim Ummah lost these values is complete without a discussion of the reign
of Uthman and, more profoundly, the rule of his clan, the Umayyads over the
Muslim world.
'Uthman
became Caliph in old age and lasted for 12 years.
The first six years were in keeping with the Sunnah of the Messenger and
of Abubakr and 'Umar. Then old age
'Ali
took over the Khilafa at a point when the Umayyads had been strengthened. They had control of armies and had amassed substantial
wealth. Under the pretext of
fighting for the blood of Uthman the Umayyads waged a war against the seat of
Islamic power, the caliphate, but no sooner had Ali died than did it become
apparent that all they wanted was power. Muawiya
appointed himself the "first of the Muslim Arab Kings", forced
everyone to accept him and his conversion of the Khilafa into a hereditary
monarchy with his son, Yazid as his successor.
Muawiya fought Ali with the aid of the Kalbi Arab tribes and the old
Syrian aristocracy and set up a new political economy which Nazih Ayubi
describes as a "lineage/Iqta'i symbiosis". The Umayyads became feudal lords; their Jahili pride in Arab
supremacy became once more ascendant and non-Arabs were gradually marginalized.
All restrictions on the public treasury were removed and it became a
legitimate source of public plunder for the kings, their courtiers and their
sycophants.
This
was the system that lasted over one hundred years with the one exception of the
Umayyad Caliph 'umar ibn Abdul-Aziz. So
we see how in the formative period of Islam a corrupt aristocracy without regard
for accountability and probity ruled the Ummah.
It is inevitable that the long reign of the Umayyads set the tone for how
subsequent Muslim leaders would see themselves. The attitude continued throughout Islam's long history.
Even today, in the oil-rich sheikhdoms of the Muslim world, the Royal
families are not accountable to the people in their management of the Treasury.
Saudi Arabia is the world's foremost defender of Islam, of the pristine
purity of the Sunnah and of the
early Muslims; yet it is common knowledge that the Saudi Royalty is , to mince
words, not exactly a paragon of accountability and probity.
All
of this has been made possible by an intellectual superstructure, a moral
philosophy that encourages acquiescence to the rule of corrupt and despotic
rulers. Although the Umayyads
themselves were beneficiaries of a rebellion against Ali, it soon became
standard Sunni doctrine that rebellion against unjust and corrupt rulers was
unIslamic. In what follows I
examine the nature of this philosophy, and then proceed to the legal
superstructure to which it gave rise [in the name of the Shariah] before
concluding.
PHILOSOPHY:
The Evolution of a Moral Ethic
A
system can not survive for a long time without conditioning the mind-set of the
populace. The early Muslim
monarchies, despite everything said above, played major roles in prosecuting
Jihads and expanding the frontiers of the empire, providing the young faith with
the political and military protection required for its survival.
Gradually, people came to accept bribery and corruption as an acceptable
feature of political leadership. This
acquiescence was attained partly by the genuine conviction that the benefits of
political stability outweighed the costs of corruption; partly through the
ruthless suppression of political dissent and denial of fundamental Human rights
and freedoms; but also largely through an elaborate philosophical framework,
principally within Sunni Islam, which makes it an Islamic duty to "listen
and obey" corrupt despots so long as they pray.
The
question of ethics in public policy is a fundamental philosophical question,
which is relevant to all states and societies.
Islamic philosophy in all its dimensions ultimately goes back to the
principle of Tawhid [Monotheism]. Allah
is the source of all knowledge, all guidance, all existence and all morality.
A truly Islamic epistemology, ethic, ideology or science must therefore
find its locus within the Divine Reality, and fit into the essential unity of
Allah, the One.
It
seems to me that somewhere along the line, Islamic ethics in the area of public
policy lost its essential contact with Divine Reality.
The ulama, deliberately or by accident, gave prominence to certain
hadiths which were interpreted in a manner that made it incumbent on people to accept lack of probity and
accountability. This was
particularly true of Sunni Islam.
Among
the Shiites, it was a different story. The
principle of 'Adl, [justice] like the Imamah,
[leadership] is one of the Pillars of Islam according to Shii thought. Most of
the philosophical discourse around Adl
roots it squarely in the principle of Tawhid.
Allah is a Just Lord, Who loves Truth and Honesty.
It is therefore inconceivable that anyone who believes in Allah can
perpetrate or tolerate injustice. It
is in a similar vein that other sects like the Kharijites resisted the attempt
by early Muslims to exclude certain groups from leadership on account of clan,
tribe, race or even gender. It was
considered inconsistent with Divine Justice as expressed clearly in the Qur'an.
Back
to ethics, let me say that this debate is a recurring one in philosophy. The British moral philosopher, Iris Murdoch, was an emphatic
moral realist who believed in the metaphysical foundation of morality.
She argues convincingly for the existence of a metaphysical reality, the
Good, which we perceive by our very perception of the imperfection of our world.
Yet having laid the foundation for a metaphysical ethics, Murdoch says
the Good is not God - she accepts the existence of this transcendental Reality
but denies the Reality a will and an effect.
To the best of my understanding, this is the point of departure between
Iris Murdoch and moral philosophers among Christian Theologians.
The
debate in our own moral philosophy is similar.
Our scholars [by which I mean Sunni Scholars] have never gone to the
extent of denying Allah a role in our lives.
What they have done, in the context of the ethics of public officers is
to build a shield between our morality and its source, the Divine presence. Our metaphysics is not in substance Murdochian, yet it
effectively lands us in the same muddles as Iris Murdoch.
A Muslim who believes in Allah the All-seeing [Al-Basir] does not lock
himself in a room and turnout the light believing he can sin and escape.
The same with one who believes in Al-Sami' [the All-Hearing].
He does not speak things in private, which are prohibited by Allah.
In exactly the same way, a Muslim who believes in Allah the Just can not
stand injustice. Corruption,
nepotism and abuse of office are manifestations of injustice.
It
is my view that the survival of corruption in the Muslim psyche has been
facilitated by the severance of the organic link between our moral philosophy
and its Metaphysical roots in the Divine Reality.
A proper apprehension of Allah, His Beautiful Names(al-asma'
al-husna) and His Exalted Attributes(as-sifat
al-'ula) must necessarily transform our ethic such that we not only seek to
imbibe or emulate the moral good, we actually are moved, compelled, to seek its
enthronement. The greatest tragedy
in Sunni thought is its hatred of philosophy and philosophers and its
enthronement of the legalistic rulings of jurists over all facets of our life.
The priorities and constraints of the environment in which the jurists
lived often conditioned these rulings. It
is a point I have repeatedly made. The
refusal of this Ummah to break away from the constriction of "blind
copying" will only lead to a perpetuation of the social structures,
priorities and value-systems of the environments in which the rulings were made.
Even the authenticity of hadiths and the validity of their interpretation
must be established after accounting for the impact of the environment on the
narrators and interpreters. Most
fundamentally, the principles of Tawhid,
an apprehension the Allah's Asma'
[Names] and Sifat [Attributes], must continue to be the inspiration for our
moral, political and other philosophies. We
will now briefly touch on the Shariah and how the ascendant philosophical
outlook has restricted its scope.
The
Shariah and Public Sector Corruption.
In
the time of the prophet [S. A. W.] the government was not a major economic
force. The role of the prophet was
largely that of a guide, a judge and a military commander.
The government treasury received zakat
and fai' for distribution but the
major revenue flows and expenditures on social welfare, defence and the
bureaucracy that later came to typify the state were virtually non-existent - It
is natural that the crime of public sector corruption should not be a major
feature of such a society not just because of the limited finance of the state
but also, and more fundamentally, because of the quality of persons managing
these funds and the presence of the Prophet of Allah among them.
Thus although the Qur'an did come up with verses which showed the
prohibition of corruption, its occurrence was rare and its punishment
/deterrence was therefore not the pre-occupation of the Shariah at that stage .
We find a greater focus on
offences like theft, adultery, intoxication and slander - crimes of a largely
personal nature, which was a reflection of the limited nature of public sector
crimes.
With
the passage of time and the conquest of the early empire, the coffers of the
state were filled with treasures managed by human beings whose fear of Allah was
decreasing by the day. Corruption
became a cancer in public life, as we have shown.
The Umayyads established a hereditary kingship, nepotism and the
appropriation of booty and property and profits.
Muawiya himself made it clear in his sermon in Kufa and Madinah that he
had fought for power and would reap the benefits from it.
The early Muslims did fight against this Umayyad mind-set.
There was the great rebellion against 'Uthman.
Then there was the rebellion of the Hijaz against Yazid ibn
Muawiya. There was the
Qarmatian revolt. All of these and
many more were directed against exploitation, arbitrary power, class distinction
and other features of a system without accountability and probity.
The striking thing about all of this is that the fight against corruption
was always waged by those outside the establishment. Throughout the reign of the
Umayyads, Abbasids, Fatimids etc, the Muslim world was governed by the Shariah,
and by the system of civil and criminal Law recognised as distinctive of Muslim
societies. Zakat was collected, the
hands of thieves were cut off, and the courts continued to administer capital
punishment for murder, apostasy and rebellion.
Yet those who supervised the implementation of Shariah were themselves
corrupt - and, seemingly, above the law. This
is the question that I hope to address. A
government can claim to be implementing Shariah, cut off the hands of a thief
who steals a cow or money, force women to dress in a particular way, collect
zakat for distribution etc, without coming out with strong sanction for
corruption in public office. This
has led some people to the false impression that the Shariah is a law designed
to punish the poor while allowing leaders to go scot-free.
Nothing can be further from the truth.
I will show that what is described above is not Shariah, but its
interpretation by society at different points in time in a manner consistent
with the dominant world-view of the leaders and ulama in that society.
It is not the eternal law revealed by Allah but its interpretation and
crystalisation in time and space.
It
is perhaps fair to say that the rudimentary nature of political structures in
the muslim world, the absence of effective checks and balances and the low
political consciousness of civil society have contributed to this state of
affairs. It is however, equally
important to recognise fundamental flaws in our understanding of Islamic Law.
Criminal/Civil
Law in Islam divides offences, from the perspective of sanction, into three
categories. Hadd
offences [jara'im al-hudud] are
those which attract a fixed and non-negotiable punishment once established.
These include adultery & fornication, apostasy, drinking, rebellion,
slander and highway robbery. Qisas
and Diyah
offences [jara'im al - qisas wad-diyah]
are those which are retributive in nature, but which can be substituted by some
payment in kind as restitution, or
forgiven by the injured party or his heirs.
These include murder, manslaughter and bodily harm.
A third category, Ta'zeer offences [jara'im at-ta'azeer]
refers to everything that is prohibited in the Qur'an or Sunnah but for which a
punishment is not prescribed under Hadd or Qisas and Diyah.
Understanding this point is critical to understanding Islamic Civil and
Criminal Law. There has been a lot
of polemic over the limits of punishment for ta'azeer
offences. Abdul Rahman 'Audah
has a detailed discussion of these including justification for including
offences not specified in the Qur'an and Sunnah but which affect "general
interest" of society, in his classic work on Islamic Criminal Law [at-tashri'
al-jina'I al-Islami]
What
interests us here is that for all
offences defined as Ta'azear offences
the Shariah provides a range of sanctions.
These
are:
a] threat
of punishment
b] whipping
or caning
c] humiliation
d] detention
or jailing
e] crucifixion
or execution
f]
exile.
These
offences have been extracted by scholars from the Qur'an, Sunnah and Ijma'.
Now
we know that the Qur'an prohibits many things without specifying the punishment
for the offenders. For example, we
know that bribery is an offence, that nepotism, in the sense of appointing an
incompetent person to office, is an offence, that consuming wealth of orphans is
an offence, that spreading fasad [evil] and fahisha [obscenity] among the Ummah are offences etc.
If the Hakim at a point in time
chooses not to punish an offence severely [and we have said his options are as
severe as the death sentence] it is not because the Shariah does not provide for
it but because either the judge or the government does not consider it a
problem. As we live in an
environment in which these offences bother all of us, [corruption, religious
intolerance, destruction of places of worship, mediocrity in the name of quota
system, tribalism and ethnic genocide etc.] we must remember that Sharia
explicitly prohibits each of them and also allows the state to punish with a
range of punishments including jailing and death. The choice
however reflects our own values, not of the Shariah.
That corruption has for so
long remained unpunished is a reflection of the underlying moral philosophy,
which has come to permeate our collective consciousness, deadening the sense of
outrage and revulsion against this heinous and cancerous crime.
CONCLUSION
I
have been given only 40 minutes to speak on this wide topic.
I have attempted to cover in this paper the origin of corruption in the
public affairs of the Muslim Ummah, the philosophy which has nourished it and
the legal superstructure which, elaborate as it is, has been seemingly designed
by lawmakers to side-step it. I do
not believe I have exhausted all the issues relevant to this topic.
I hope that I have given us all food for thought and contributed to our
outstanding of Islamic history, philosophy and law.
If I have sounded critical of some aspects of Muslim thought, please
accept this clarification: I have implicit respect and love for generations gone
by. However, no one is perfect and
it is only by learning from mistakes of the past and questioning "received
wisdom" that change is possible. "Allah
does not change what is with a people unless they change themselves".
Finally,
as you all listen to me, please remember that I am not a jurist, but a banker.
What I have said that is right, is from Allah.
What I have said that is wrong is from me and Shaitan, Allah and His
prophet are free from my errors.
Ramadhan
Kareem.
Assalamu
Alaikum wa Rahmatullah wa Barakatuh.