The Role of the Institution of Hisba in the Sharia Implementing States in Northern Nigeria

The Role of the Institution of Hisba in the Sharia Implementing States in Northern Nigeria

CHAPTER ONE

Objectives of the research

The objectives of this research are:

To study the correct legal and constitutional position of the Hisba in classical Islamic law in order to appreciate its applicability in the today’s Nigeria having in view the different political and jurisdictional arrangements;
To study the Islamic juridical method of enforcement of rights and duties as embodied in the Sharia so as to distinguish it from conventional methods and to show some mechanisms in Islamic law on enforcement of right and wrong particularly as juxtaposed to what is referred to as ‘enforcement of morals’ in Western jurisprudence;
To study the Hisba in Nigeria and its role regarding Sharia implementation in the states that implement the Sharia;
To evaluate by way of comparison the legislations, agencies and powers of the respective Hisba institutions in the Sharia states with a view to identify good practices for the purposes of replication in other states and restructuring where standard is comparatively low, and
To evaluate the work of the Hisba in Kano State with a view to proffering recommendations on ways to better the service delivery of the Hisba across the states

CHAPTER TWO

REVIEW OF RELATED LITERATURE

This chapter reviews some of the literature available on the subject of this thesis and the chapter is sub-divided into three parts, the first on what literature is available, the second part reviews five works on Hisba and the third part identifies the gaps that need to be filled in the body of works on Hisba.

Types of literature available

There are three types of literature on the Hisba and they are classical, modern and legislations and these come in forms of books, manuals, articles in books and journals, newspaper and magazine articles and pamphlets, both published and unpublished.

Classical Literature:

There are two types of classical literature on Hisba and they are general and special books. General literature that incorporates Hisba as a chapter or even a part and literature written specifically on Hisba or amr bil ma’ruf wan nahy anil munkar. They will be merged in this writing for coherence purposes.

General works that touched on Hisba include literature on constitutional and administrative law. It should be noted that every Tafsir and book of Hadith contains material on the Hisba as the verses dealing with amr bil ma’ruf wan nahy anil Munkar are explained in the Tafsir while the books of Hadith contain ahadith on amr bil ma’ruf wan nahy anil Munkar. This theme is integral to Islam that it was extensively provided in the textual authorities. Tafsir ayatul Ahkam specifically is valuable regarding expositions on ayat on amr bil ma’ruf wan nahy anil Munkar. Some books on fiqh also contain chapters or sections on Hisba but very rarely.

Several books were written specifically on Hisba in the classical period and most of them are identical. It seems Islamic constitutional law is uniform across the Mazahib because irrespective of one’s Mazhab, political and constitutional set up is the same.

There are virtually two major themes in these writings which are the theoretical aspects of Hisba (al-Hisbatun-Nazariyyah) which includes the imperative of the Hisba as well as the fiqh of Hisba, i.e. who does it, who is the subject, what are the objects and the ethics of Ihtisab and the other theme is practical aspects of Ihtisab (al-Hisbatul amaliyyah) which are normally in form of manuals.

Al-Mawardi was the one who started writing on the Hisba both as a chapter in a constitutional treatise¹⁵ as well as a separate book¹⁶. Although Farra’¹⁷ was Mawardi’s contemporary, Mawardi preceded him in writing al-Ahkamus-Sultaniyyah. It has been reported though that al-Utrush’s¹⁸ book preceded Mawardi; Mawardi’s was the first to be published.

Mawardi’s Al-Ahkamus-Sultaniyyah recognized Hisba as an independent constitutional body and distinguished it from both the judiciary as well as Mazalim. It occurs in the last chapter of the book and written in the same tone with the rest of the constitutional agencies listed. This means that Hisba is not less important than the army, the Imammate or the Mazalim.

The chapter was the pioneer because distinguished Hisba from both the Judiciary (Qada’) and the Mazalim, it laid down the major distinctions of Voluntary and Appointed Muhtasibs and in all these, scholars later followed him and adopted his definitions and classifications.

Farra’s Ahkamus-Sultaniyyah is almost a copy of Mawardi’s Ahkam, only differing on Furu’ (legal principles as opposed to jurisprudence) aspects of Hambali/Shafi’i dichotomies, he also made Hisba an independent constitutional body. The two books are an innovation in Islamic constitutional treatises to include the Hisba in the list of government agencies or wilayat; Hurvitz¹⁹ was definite it was an innovation by both of them; ibnul-Arabi²⁰ also argues on the innovations of Mawardi and others regarding wilayat.

Al-Ghazali²¹ in his Ihya’ dedicated a chapter on Hisba. The value of this chapter is the detail he made on the Degrees of Hisba. He also gave accounts of some prominent Muhtasibs and how they carried out Ihtisab even when political leaders were the targets of Ihtisab. Al-Ghazali also discussed Hisba as an integral part of Muslim societies, albeit in a social or mystical way, he however explained the necessary nexus with the police and the government, including the demarcation of rights and duties which are all constitutional theories.

CHAPTER THREE

EVOLUTION AND DEVELOPMENT OF THE HISBA

In this chapter, the research will study how Hisba evolved, the textual authorities from the Qur’an and Sunnah on the Hisba, how Ihtisab was practiced by the Prophet SAW and the Classical Caliphs and how the Umayyads transformed it till it later became on of the most important constitutional agencies during the Abbasid era and traced its continuance up to the Sokoto Caliphate.

Law in Islam

Islam being a complete way of life covers every aspect of Human endaevour which include Tauhid that deals with belief and the other segments in Sharia which are the practical aspects of Islam. Sharia literally means a path to a watering place and technically, it is the set of Rules or Laws that regulate every conduct of Muslims. It will then be safely said that the Sharia is the normative aspects of Islam.

Law in Sharia is the “Statement of Allah the Al-Mighty, directed to the subjects (His Servants) concerning their conduct to do or not to do something or giving a choice to either.”⁴² Therefore, once there is a statement of Allah concerning the conduct of humans on whatever point, it is Law.

CHAPTER FOUR

ESTABLISHMENT OF HISBA IN THE SHARIA STATES

In this chapter, the research will discuss the reintroduction of Sharia in Nigeria and the laws enacted and agencies established for the purposes of Sharia and will dwell more on the establishment of Hisba as one of the institutions aimed at supporting the Sharia.

Sharia in Nigeria before 1999

Introduction of Islam into the places now forming Nigeria:

Islam was first introduced into the Nigerian area as early as the 9^th Century (Gregorian) by Arab Traders. Shariah being part of Islam necessarily supplanted local customs.

The Borno Empire was governed by Shariah, so was the other States in Hausa-land. During the time of Muhammadu Rumfa (Ruler of Kano), Al-Maghili, upon visiting Kano wrote a constitutional treatise for the King which was in accordance with Shariah.

Gradually, syncretism crept in and people mixed paganism with Islam. Thus, in the early 19^th century (1804-1817) a reformation Jihad was carried out in West Africa which was itself a ripple of a bigger one in North Africa.¹¹⁸

The reformation Jihad was directed at purifying Islam from the syncretism earlier mentioned. Shehu Usmanu led the Jihad. Two other Jihads followed, led by Seku Amadu at Macina and Alhaj Umar El-Futi in Tukulor lands also in West Africa.

CHAPTER FIVE

THE ROLE OF THE HISBAH REGARDING SHARIA IMPLEMENTATION IN KANO STATE

This chapter gives account of the activities performed by the Hisbah regarding Shariah implementation. The State in focus is Kano State because of the following reasons;

It has a Board with an elaborate structure with hierarchy and responsibility;
It distinguishes the Board from the Corps which allow for pinpointing who does what;
The system is well organized, with subsidiary legislations, monthly and annual reports as well as News Bulletin;
KanoState Government accords prominence to the Hisba, therefore adequate funding is enjoyed from the State Government.

The chapter is divided into three main sections i.e.

Activitiesof the Hisbah by subject matter;
Activities of the Hisbah between 2003 and 2007 (four year report), and
An account of a three month activity of the Hisbah in

The first part identifies the various areas where the Hisbah intervenes. The sources of this information are:

Reports of the Hisbah: there are two types of reports; the four year report¹⁹⁶and monthly reports¹⁹⁷ both of the Board and of the various Local Government Hisbah
HisbahNews Bulletin (Muryar Hisbah).

The second part gives an account of activities of the Hisbah from inception of the Board to the next four years (the Shekarau first-term). This term is very crucial to the Hisba in the state because it is the formative stage as a government agency. The four year report will be the reference for this part.

The third part considers a quarter of a year. This is only done because the monthly reports of the Hisbah are too bulky and in Hausa language only which makes reading and digesting them too difficult, hence reports of three months only were considered, analyzed and presented.

Activities of the Hisbah by Subject-Matter

The activities of the Hisba are divided into two:

The activities of the Hisba Board, and
The activities of the Hisbah

CHAPTER SIX

CONCLUSION

This chapter concludes the research by making a brief summary of the past chapters, answering the questions asked in Chapter One and making recommendations.

Brief Summary

Hisba is well entrenched in Islamic law and its application and had always been utilized throughout the history of Islamic law starting from the time of the Prophet SAW to date and that an Ijma’ is constituted on the fact that Hisba is imperative for the enforcement and observance of Islamic injunctions²⁰⁵.

Time, place and political variations in Islamic history and civilization molded the Hisba into various names²⁰⁶ and with increasing and decreasing portfolio or jurisdiction²⁰⁷. However, there was no disagreement among jurists that Hisba activities cover all aspects of human life. Whatever qualifies as ma’ruf or Munkar is within the scope of Hisba²⁰⁸.

The imperative for the Hisba led the governments in 10 of the 12 Sharia implementing states of Nigeria to establish Hisba at varying degrees and saddled it with responsibilities. Sokoto, Katsina and Kaduna States have voluntary Hisba while Yobe, Bauchi, Kebbi and Niger have Hisba sub-committees operating under the various Sharia Commissions of the States. Zamfara, Kano and Jigawa on the other hand have independents Hisba bodies as commissions and boards backed with legislations.

Recommendations

The governments in Sharia states should continue to support the Hisba outfits in their states and those that do not enjoy patronage, support and ownership of the government should be converted into Boards and Commissions so that the governments assume ownership and control over them. Those two states that do not maintain Hisba should establish Hisba Commission or Board just like Zamfara and Kano;
Conference of Sharia Implementing States (COSIS) should hold workshops and support projects to unify and harmonize the policies, approaches, structures and activities of therespective Hisba outfits in the states and develop a draft law for the harmonization of the Hisba laws in the federation;
Hisba should design methods to nurture the good relations with the other security agencies and law enforcement agencies especially the police and devise means of strengthening good ties and harmonious working conditions;
Hisba should develop plans for an intensive work on regulatory and supervisory aspects of commerce that is an integral part of Hisba and involve closely government agencies like the NAFDAC, Standard organization of Nigeria, public health sector, environmental sector actors, regulation of guild and professions, etc
The Hisba should build its capacity to secure enough funding and material support from the governments of the states and any other government agency, if possible through partnership and joint services; the governments on the other hand should answer the needs of the Hisba and spend adequately on it.

BIBLIOGRAPHY

Text books

Mubarakpuri, (ed) Tafsir Ibn Kathir(Abridgment and Translation). Al- Haramain Islamic Foundation, Riyadh, 2000
Ostein, P. Sharia Implementation in Northern Nigeria 1999-2006: A Sourcebook. (Ibadan) Spectrum Books, 2007
Al-Amri, al-Amru bil Ma’ruf wan Nahyu anil Munkar. IIFSO, Beirut, 1984
IbnuTaimia, A. Al-Hisba fil Islam.Darul Kutubil Ilmiyyah, Beirut, no date
Mawardi, AM.H. Al-Ahkamus Sultaniyyah wal Wilayatud-Diniyyah. Tawfiqiyyah Press, Cairo, no date,
Al-Farra’,H. Al-Ahkamus-Sultaniyyah. Darul Kutubil Ilmiyyah, Beirut, 2000
Aboki, Introduction to Legal Research methodology, Zaria, Tamaza Press, 2009,
Mawardi,H. Al-Ahkamus Sultaniyyah wal Wilayatud-Diniyyah
Al-Utrush, H. Al-Ihtisab. Manuscript with the British Museums. Att.413, Oriental manuscripts 3/3804; papers 285-292.
Arif,M. Fi Masadirit-Turath as-Siyasi al-Islami. IIIT Publications, Herndon, Virginia. 1994
Hurvitz, N. Competing Texts: The Relationship between Al-Mawardi’s and Abu Ya’la’s Al-Ahkamus-Sultaniyyah, Islamic Legal Studies Program, Harvard Law School, Occasional Publication 8, October, 2007.
Ibnul-Arabi, Ahkamul Qur’an. Darul Fikr, no date.
Shaizari, A. Nihayatur-Rutbah fi Talabil Hisba. Publication, translation and distribution Press,. No date
Ibnul Ukhuwwah Al-Qurashi, M. Ma’alimul Qirbah fi Talabil Hisbah. Cambridge
Ibnu Taimia, A.A. Al-Amru bil-Ma’ruf wan-Nahyi anil-Munkar, Maktabatus Sunnah, Cairo, 1997.

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