An Examination of the Punishment on Riddah In A Democratic Setting: NIGERIA
Introduction
The introduction and implementation of the sharicah in some parts of Northern Nigeria in 1999, starting with Zamfara State Abuja
This paper investigates the punishment on irtidad or Riddah in the Qur’an and hadith and upholds the assertion that the capital punishment on apostasy is not adequately sustained in the Qur’an. Similarly the sunnah gives insight into the death penalty for apostates, yet the Prophet himself did not put those who denounced their faith in his life time to death. This truism, if viewed objectively as argued in this paper, nay lead to an entire different conclusion on Riddah and will serve as a point of reference by the States that expanded the application of the sharicah.
Definition of Term
The Arabic word for apostasy is riddah or irtidad its verb is radd, which among other connotations has the meaning “to retreat, to retire to withdraw from or fall back from.”2 El-Awa draws a line of demarcation between irtidad and riddah as follows:
The former (riddah) is usually used to signify turning back from Islam to another religion or to unbelief, while the latter (irtidad) has this meaning in addition to others: a person who forsakes Islam for unbelief or for another religion is called murtadd, i.e. apostate.3
This explanation, in our view, is mere theoretical. A fact worth admitting, however, is that riddah (in theory or practice) is peculiar only to the Islamic faith. Thus, a murtadd, according to jurists, is a person who denounces the Islamic faith. Should a non-Muslim denounce his faith and embrace Islam, he is not considered a murtadd. Sayyid Sabiq provides a comprehensive analysis of the jurists’ opinion on this point. He explains:
If a Muslim denounces Islam, he has apostatized ... (but), if a non-Muslim abandons his faith and embraces another un-Islamic faith, he should be regarded as a member of his new embraced faith and should not be disputed over it (or considered an apostate). This is because he abandons a wrong religion and embraces another in the negative direction. And for sure, atheism is one in all its ramifications.4
It is worth mentioning in passing that the subject of riddah is completely unknown to western writers, those who write about it only explain Muslim points of view.5 It is therefore clear that the western scholar’s approach to riddah is not an in-depth study of the primary sources of the shari’ah, but a reproduction of the fiqh scholars’ position, out of which the following assumption is derived.
Both jurists and theologians agree that apostasy constitutes a violation of law, punishable both in this world and the next. Not only is the person denied salvation in the next world but heie is liable to capital punishment by the state.6
The image of Islam created by the above conclusion of a writer, should encourage Muslim intellectuals to delve into the real Qur’anic teachings on apostasy as well as the Prophetic position on it. The sample opinion gathered in this respect is that such legislation is not traceable to the Qur’an. It is also discovered that the sunnah is not categorical on the issue, which casts doubt on the one-sided conclusion of the death penalty, as argued in this paper; meanwhile, the connotative meaning of hudud is presented below:
The Arabic word hudud (s. hadd) has many connotations. It has been suggested that the limit of something is its hadd. In this respect, it is the transgression of the limit of Allah that attracts stipulated punishments (hudud).
It should be observed that penal law is not solely restricted to Islam. Each worldview or system of life has its corresponding sanctions against particular sins or crimes; except the case of riddah, which, as earlier observed, is peculiar to Islam. Such punishments are not only to serve as corrective measures but also deterrence as well. The hudud is not only based on social utility but it is principally normative based on the divine revelations as contained in the Qur’an and the sunnah.
Legislation, in this regard, as Mawdudi observes, is to be carried out within the limits prescribed by the law of the sharicah 7 It is pertinent to note that the basis of the sharicah is not restricted to the Qur’an and the hadith. Islamic law allows a group of jurists to interpret and evolve new regulations for modern necessities which, because of their newness and circumstances, are not expressly stated in the Qur’an and hadith.8 The sharicah, therefore, is dynamic. It covers, among others, cibadat (worship), mucamalat (social transactions), Qisas/Diyah (retaliatory compensations), ta’zir (discretionary punishment) and hudud (fixed punishments).9
The respect which the sharicah accords to human beings through the recognition of human rights is demonstrated in its terms of reference. It starts from the recognition of the fact that every man, whether he professes the Islamic faith or not, has certain basic rights simply because he is a human being. Mawdudi has painstakingly summarized the basic rights of citizens in an Islamic state irrespective of his or her religious persuasion. Such rights include security of life and property, freedom of expression and protection of religious inclination. This unique position of the sharicah on the rights of non-Muslims in an Islamic State has led to various treatises by the jurists. The first basic human right which must be observed and respected in all circtmtstances is the protection of human blood, which is regarded as sacred and may not be spilled without strong justification.11 It could therefore be rightly observed that the sharicah respects freedom of expression, freedom of conscience and guarantees non-Muslims’ religious inclinations. It also protects a Muslim is not allowed to denounce his faith due to the constitutional provision of freedom of religious persuasion. This is regarded as capital offence of which the death penalty is alleged to have been placed. In this context the teachings of the principal sources of the’ sharicah, i.e. the Qur’an, sunnah and ijma’u on riddah (apostasy) is examined in the next section.
Apostasy in the Qur’an and Sunnah
The word riddah or irtidad is mentioned in the Qur’an in thirteen verses as a grave sin, but none of these verses recommends capital punishment. It suffices to quote one of them here.
And whosoever of you turns back from his religion and dies as a disbeliever, then his deeds will be lost in this life and in the Hereafter and they will be dwellers of the fire. They will abide therein forever (2:217).
The above verse, as far as we know, removes any doubt as to the exact teaching of the Qur’an on apostasy. It only contains an assurance that the apostate will be punished in the hereafter and there is nothing to suggest any capital punishment in this world. It is further argued that:
None of the Qur’anic verses that allude to death as punishment for apostasy addresses itself to apostasy simpliciter but apostasy combined with political subversion and treachery.12
El-Awa investigates this verse alongside Q2:256, which proclaims “No compulsion in religion,” and concludes that:
One can say that the death penalty for apostasy, especially when it is considered as hadd punishment, contradicts the Qur’anic principle law states in Surah 2:256, which proclaims “No compulsion in religion.”13
Though El-Awa’s argument in this submission is seen to be accurate, but a blanket approval of this position could lead to a license for Muslims to apostatize at will. Ibn Kathir’s suggestion that the verse is on coercing and compelling non-Muslims to accept Islam against their wishes is very attractive to us.14 This submission, to the best of our knowledge, is strong enough to invalidate Ibn Hazm’s apologetic position that the phrase “No compulsion in religion is abrogated, and that compulsion is allowed in religion.15
The protagonists of death penalty on apostasy rely- on some ahadith to support their position. Two hadiths are prominent in this regard:
cAbdullah Ibn Mascud reported Allah’s messenger (peace and blessings of Allah he upon him) as saying: It is not permissible to take the life of a Muslim who bears test imony to the fact that there is no god but Allah and I am the messenger of Allah, but on one of the (following) three cases: a life for life, the married adulterer and deserter of his Din, abandoning the community.16
The relevant portion on irtidad from this hadith is the phrase “deserter of his Din, abandoning his community.” A critical analysis of this statement, in our view, may lead to an entirely different conclusion. The Prophet’s position is very instructive. The deserter of his Din is combined with another major offence, the abandoning of the community. This could be interpreted to mean a rebellious move against the State. Thus, if turning away from the Din is not accompanied with a rebellious threat to the constituted authority, it could be regarded as a harmless apostasy.
Another hadith which favours death penalty on apostasy- reads: “Whoever that changes his religion, kill him.”17 This phrase could be interpreted in many ways. Should a non-Muslim who converted to Islam be killed as well? This would not be in line with the restrictions placed on the connotative meanings of riddah as earlier observed. On this note, it is logical to argue that the phrase “kill him” probably belongs to the category of the abrogated traditions. The Prophet, it must be admitted, did not put any apostate to death despite the fact that traces of apostasy were noted during his life time as could be understood from the following narration:
A bedouin Arab came to the Prophet and accepted Islam, then fever over took him while he was still at al-Madinah, so he went to the Prophet and said, give me back my pledge but the Prophet refused. The Arab did the same on the second and third day and the Prophet refused. The man afterwards left al-Madinah unharmed.18
This position however is different from apostasy combined with other crimes of which death sentence was pronounced by the Prophet. Among such cases was that of Miqyas Ibn Hibahbah and Ibn Hatal both of whom separately denounced their faith, killed some Muslims and confiscated their properties. Similarly Ibn Abi Sarh was ordered to be killed when he combined apostasy with a plot to eliminate the Prophet.19 Reference could also be made of the case of cUkal and cUrayan. In a long tradition reported by Bukhari.20 It is reported, that some people from the two tribes went to the Prophet to embrace Islam. The climate of Madinah did not suit them and (they) subsequently felt ill. The Prophet advised them to go to the place where the camels were grazing and to drink from their milk and urine (as a medicine). After their recovery, they reverted from Islam and killed the shepherd and took away the camels. The Prophet sent some people in their pursuit and they were captured. Then he punished them gouging out their eyes, cutting their hands and legs till they died, exactly as they had done to the camels’ guard.
One spectacular feature in all the cases cited above is the fact that apostasy was combined with manslaughter, another capital offence. The only exception is the case of Ibn Abi Sarh who plotted to eliminate the Prophet. His offence could be described as a treasonable felony, which attracts capital punishment even in the modern time. Ibn Taymiyyah is therefore correct in his submission that an apostate simpliciter is to be asked to seek forgiveness from Allah, while apostasy combined with other criminal offences attracts capital punishment.
Juridicial Views on Apostasy
The genuine concern of the Islamic jurists is to protect the State from rebellious moves, as Sabiq observes. This has led to the imposition of death penalty on apostasy, be it simpliciter or combined with rebellious move.21 Their conclusion, as far as we know, is drawn from the fact that the first caliph Abubakr is reported to have imposed war on those that denounced their faith and refused to pay zakkah dues22 which constituted a rebellious move against the State. Rahman has lamented this position as follows:
Unfortunately, our fiqh compendiums do not enter on analytical study of this problem, in the light of Qur’an injunctions and authentic sunnah and no distinction apparently exists in the minds of the old jurists between apostasy simpliciter and apostasy combined with treason or severance of allegiance to the state.23
It is worth mentioning here that some modern scholars consider the issue of riddah, be it simple or combined with other crimes, an offence punishable by ta’zir (discretion) and not hadd. Qardawi, quoting from different sources narrates that Umar Ibn Al-Khattab favoured imprisonment of the apostates who joined the force of the non-Muslims, fighting against the Islamic State during his time. He argues, rather, that Umar did not consider death sentence the best option in every circumstances as the apostates joined the non-Muslim army for safety.24
The position of ‘Umar, in our view, is not against the decision of the Prophet on apostasy combined with rebellious moves as earlier referred. ‘Umar is seen here to have understood the punishment on riddah as a case of discretionary punishment (ta’zir). From these analyses, it could therefore rightly be observed that:
i. Apostasy that is combined with rebellious move attracts capital punishment, while simple apostasy is assured of punishment in the hereafter.
ii. The Prophet did not put any apostate to death, despite the fact that traces of apostasy were noted during his time.
iii. Apostasy could be classified as an offence punishable by ta’zir.
Riddah and the Nigerian Constitution
The application of hudud in Nigeria pre-dates the Independence
Thus, the debate on whether the concept of federalism as entrenched in the Nigerian constitution favours the adoption of the hudud attracts divergent views. Those who oppose its adoption argue that section 277 of the Constitution limits the application of the Islamic law to Personal matters, while section 10 of the Constitution prohibits any State from adopting any religion as a State religion.26 It is further argued that article 1.3 states that: “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
The supporters of sharicah also take cover in the same Constitution to justify the adoption of the sharicah in some States of the Federation. Yadudu, for example, has been promoting the application of the hudud based on certain constitutional provisions. He explains:
firstly, section 38 of the 1999 constitution guarantees freedom of religion... secondly, it is not in doubt that states do have legislative competence under among others section 4,6.277 and the second schedule to the 1999 constitution to establish sharicah courts in addition to existing ones, expand their jurisdiction and enact laws drawing inspiration from religious and non-religious norms.27
As much as this writer believes in the multi-religious nature of Nigeria and in the Islamic principle of “no compulsion in religious matters,” the clarifications by Muhammad Bello, a retired Chief Justice of Nigeria, on the constitutionality of the application of the hudud is, however, very attractive:
When the clamour for the sharicah began ... some people rushed to the opinion that a state government lacks the constitutional power to enact Sharicah laws in their territory... Section 4 of the constitution has divided the legislative powers of government between the Federation and states. In its second schedule, it specifies the exclusive legislative list on which only the Federation may make laws, and also the concurrent legislative list, on which both the federation and the State may make laws. In addition, it empowers the States to make laws on any other matter not included in the two lists. Sharicah falls within the residue and consequently, a state has the constitutional power to make laws relating to the Sharicah.28
The clarifications by Muhammad Bello notwithstanding, the States that adopt the hudud are seen to be silent on the issue of riddah. The Sharicah penal code law of Zamfara state which was assented by the Governor of the State, Alha.ji Ahmad Sanni on 27th day of January, 1999, for example, is silent on the punishment for apostasy. This deliberate omission of the punishment on riddah, is not unconnected with the constitutional provision as contained in section 38 (1) which clearly states as follows:
Every Person shall be entitled to freedom of thought, conscience and Religion, including freedom to change his Religion or belief, and freedom (either alone or in a community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.
This provision, coupled with the general assumption that capital punishment is placed on apostasy, prevents all the States that adopt the hudud to have a clear-cut law on Apostasy. Ahmed Bello Mahamud, the Attorney General and Commissioner for Justice in Zamfara State
S.38 (1) of the constitution was to clash with the offence of apostasy in Islam. We were to choose between including the offence in our penal system at the risk of inviting a myriad of court litigations, injunctions and counter-injunctions, contempt proceedings and avoiding this suicidal plunge as a strategy so that we could live long to see the fruits of our ingenious efforts on the shari’ah project. We chose the latter way out as we pray for God’s guidance through the right path.29
The acceptance of the superiority of the Constitution, as implied by the Zamfara initiative, may not go well with the mainstream position of some legal experts. The non – inclusion of the provision of riddah in the Penal code law implies that a Muslim who denounces his faith in any of the states that adopts the hudud cannot be brought to book. The constitution protects him in this regard. This offence, to the bset of our knowledge, can still be accommodated in the penal sytem of the States that adopts the hudud. The classificiation of riddah into two, with their corresponding punishment would enure that the hudud is not suppressed for the man-made laws. Thus, an apostate simjpliciter whose act is not regarded as capital offence as argued in this paper, could still be in line with the demands of S.38(1) of the Constitution while a rebellious move against the provision of the hudud could be regarded as a treasonable felony which constitutes capital offence to any modern day government.
Conclusion
The rise of sharicah (hudud) advocacy and implementation in some States in the Northern Nigeria has re-opened a new ground for self-determination and cultural identity to the Muslims in the era of globalization and Islamic revivalism. The adoption of the hudud is a practical move to provide an alternative to the imposition of western constitution since the Amalgamation of 1914. The implementation of the hudud has, however, attracted diverse comments. The human rights groups are in the forefront in its condemnation because of the enforcement of the prescribed punishment on the cases of zina (fornication) and As-sarqah (theft). As for apostasy, unlike theft and fornication, which have attracted the attention of the States that expanded the Sharicah, no one has been charged for the offence yet and the penal laws of such States are silent on it. This paper therefore brings to focus the divergent views on riddah with a view to guide the States that adopt the hudud. The fact that apostasy is a criminal crime in the face of the sharicah is sustained in this paper. We therefore suggest that lawmakers and Muslim intellectuals in the States that adopt hudud should fashion out appropriate punishment for apostate simpliciter, which, as argued in this paper, is different from a rebellious apostasy of which death sentence is imposed.
Notes And References
1. A.H. Yadudu London
2. S.A.
3. M.S. El-Awa, Punishment in Islamic Law: A Comparative Study, Indianapolis
4. Sayyid Sabiq, Fiqhus-Sunnah, Cairo
5. M.S. El-Awa, op. cit., p. 43.
6. S.A.
7. A.A. Mawdudi, Human Rights in Islam, London
8. I.O. Oloyede, Shari’ah versus Secularism in Nigeria , Lagos
9. Ibid.
10. A.A. Mawdudi, op. cit., p. 23.
11. A.A. Mawdudi, Islamic Law and Constitution, New Delhi
12. Oloyede, op. cit., p. 49.
13. El-Awa, op. cit., p. 51.
14. A.I. Ibn Kathir, Tafsir Ibn Kathir, Beirut
15. El-Awa, op. cit., p. 51.
16. M.O.A. Abdul Lagos
17. Sabiq, op. cit., 3(2), p. 386.
18. M.I. Al-Bukhari, Sahih al-Bukhari, ‘Abdulhamid Siddiq (trans.), Beirut
19. Y. Al-Qardawi Egypt
20. Al-Bukhari, op. cit., 9(8), pp. 519-520.
21. Sabiq, op. cit., 3(2), p. 386.
22. M.Y. Al-Kadahali, Hayatus-Sahabah, Cairo
23. Rahman, op. cit., p. 3.
24. Al-Qardawi, op. cit., p. 51.
25. I. Sulaiman, “Shari’ah Restoration in Nigeria : The Dynamics and the Process,” a paper presented at the International Conference on the Restoration of Shari’ah in Nigeria , London
26. M. Tabiu, “Shari’ah, Federalism and Nigerian Constitution,” a paper presented at the International Conference on the Restoration of Shari’ah in Nigeria , London
27. A. H. Yadudu, op. cit., p. 8.
28. A.A. Mahamad, “Sharia and Democracy: The Zamfara State
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