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

ABSTRACT

This research concerns the role Hisbah is expected to play regarding Sharia implementation in some states of Northern Nigeria and the extent to which Hisbah played the role.

Hisbah evolved during the time of the Prophet SAW, and it developed during the time of the classical Caliphs and later generations, particularly the Umayyad and Abbasid dynasties. During the Umayyads, Hisbah became an independent constitutional agency and continued up to this moment.

The Hisbah existed alongside the police, the army, and the ombudsman institution (Mazalim) throughout Islamic civilization, including (lately) the Sokoto Caliphate, where the Hisbah was not a prominent feature of that government as a Constitutional agency. Sharia was part of Muslim life in Nigeria before British colonization, which gradually eroded Sharia until it was finally restricted to personal law.

In 1999, Zamfara State enacted a Law that enables courts to apply Sharia Criminal law. In 2003, the State established the Hisbah to enhance Sharia implementation in the State, and nine other states followed Zamfara, including Kano and Jigawa.

Ten states in Nigeria established Hisbah because they thought it was imperative for the proper implementation of Sharia and because it was obvious that Nigeria Police were not willing to implement the provisions of the Sharia Penal Codes.

Three of these ten states enacted laws to establish Hisbah as Commission, Board and Committee, respectively: Zamfara, Kano and Jigawa. In five of the remaining seven states, the Hisbah functions as a sub-committee under the Sharia Commissions of the states. In the last two states, the Hisbah operates as a voluntary organization.

The laws of Zamfara, Kano and Jigawa detailed the organizational structure of the Hisbah agencies, the functions or powers of the Hisbah operatives or corps, and their specific roles regarding Sharia implementation.

Kano Hisbah is the most organized in the country, and it has recorded successes like a reduction in the sale and consumption of liquor, a reduction in prostitution, lost people found and returned home, an increase in the number of public lectures and the impact it had on the morale of people amongst others.

Sharia implementation hinges on Hisbah. However, the Hisbah in the respective states does not have uniform policies, approaches and legislations despite the opportunity for closer cooperation between the Hisbah and other law enforcement and regulatory agencies.

The Hisbah needs continued support from the states, harmonization of laws to reflect Sharia implementation, and vibrant working relations between the Hisbah and NDLEA, NAFDAC, etc. Finally, the Hisbah should devise ways to build its capacity to deliver well, secure continued support from the government and confidence in the public and, most importantly, serve Sharia the most.

Chapter One

INTRODUCTION

1.1 Introduction of the Research Topic

Sharia was introduced to places now forming Nigeria as far back as the 9th century (AD), and it remained with the people till when the British colonialists gradually removed the public aspect of Islamic law from the lives of Muslims. In 1999, Zamfara State passed a law which restored certain crimes into the criminal legislation in the state; the law1 primarily established Sharia Courts to replace Area Courts and empowered these Sharia Courts to apply the Sharia. Later, various Sharia-related laws followed this, including the Sharia Penal and Criminal Procedure codes.

Later the state established the institution of Hisbah with the aim of supporting Sharia implementation in the state. Other bodies or agencies were also established in the state.

Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, and Yobe states followed Zamfara in the restoration of Sharia, and most of these states also established the Hisbah, whether the objectives of the establishment of the Hisbah are stated or not.

Hisbah is of Classical origin in Islamic Constitutional and Administrative arrangements. The Sokoto Caliphate established and maintained the Hisbah, and the institution continued through the colonial period under different names and was finally disused.

The function of the Hisbah in an Islamic environment is to command the doing of good work, prohibit the doing of evil work and reconcile disputes. What is good and evil is clearly spelt out in the Sharia, and the entirety of Islamic teachings is an embodiment of good and evil.
The textual authority for the establishment of the Hisbah is in the Qur’an as follows:

(Let there arise out of you a group of people inviting to all that is good (Islam), enjoining Al-Ma`ruf (all that Islam orders) and forbidding Al-Munkar (all that Islam has forbidden). And it is they who are successful).

Popular perception and presumption of Nigerian Muslims have it that proper implementation of the Sharia entails the establishment of the Hisbah, and the committees shouldered with the responsibility to “restore” the Sharia considered the institution of Hisbah either as of necessity or desirability (part or ancillary) to the Sharia implementation process.

Apart from perception, legal material relied upon by Muslims in this country do mention the institution of Hisbah or the office of the Muhtasib and the activity of Ihtisab as necessary components of the Muslim environment or the constitutional order and failure to maintain Ihtisab (activity; not necessarily the agency) as not only a sin but an indicator that the state or community is neglecting one of the most vital duties of an Islamic Government.

1.2 Statement of the problem:

In Islam, good is embodied in whatever is right. The law commands everybody to do and support it by asking others to do it and taking every step necessary to see that it is not only done but encouraged.

On the other hand, evil or wrong is embodied in whatever the law prohibits everybody from doing and carries out all necessary things to discourage, eradicate, and make it disliked among the people.

Commanding good and prohibiting evil are the two sides of a coin regarding enforcing the wish of the Law-Maker. An individual is expected to command good and prohibit evil which may be simultaneously or otherwise. The Muslim community as a unit is expected to do these, and authorities in Muslim communities are required to establish an agency that will discharge this function.

The agency stated above is the Hisbah, and if the agency discharges this function, it relieves every Muslim’s responsibility.

The authorities, therefore, must enlist qualified members of the Ummah to field the job.

The functions of the Hisbah cover all aspects of life and are not restricted to criminal law or the public sphere. Although the Hisbah in Nigeria is ‘reactivated’ following Sharia implementation with the objective of supporting Sharia implementation, its application or area of operation is not restricted to crimes and punishments. ‘Restoration of Sharia’ itself was not intended to cover only criminal aspects; it transcends criminal aspects.

This research is concerned with the question of whether the Hisbah has any role to play regarding Sharia implementation in present-day Nigeria. And if yes, to what extent had it played this role?

Put in another way, does Sharia implementation include establishing and maintaining Hisbah despite the fact that there is the Nigeria Police Force which is saddled with the responsibility of law enforcement in the nation? What does it take to have an effective Hisbah?

Another question is, will a community automatically transform into a Sharia-compliant community with just the establishment of the Hisbah or the community itself is expected to act in pro-Shariah ways?

1.3 Objectives of the research

The objectives of this research are:

1.3.1 To study the correct legal and constitutional position of the Hisbah in classical.

Islamic law in order to appreciate its applicability in today’s Nigeria, having in view the different political and jurisdictional arrangements;

1.3.2 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;

1.3.3 To study the Hisbah in Nigeria and its role regarding Sharia implementation in the states that implement the Sharia;

1.3.4 To evaluate by way of comparison the legislations, agencies and powers of the respective Hisbah institutions in the Sharia states with a view to identifying good practices for the purposes of replication in other states and restructuring where the standard is comparatively low and;

1.3.5 To evaluate the work of the Hisbah in Kano State with a view to proffering recommendations on better the service delivery of the Hisbah across the states.

References

– Mubarakpuri, S. (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, J. al-Amru bil Ma’ruf wan Nahyu anil Munkar. IIFSO, Beirut, 1984

– Ibnu Taimia, A. 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’, M.H. Al-Ahkamus-Sultaniyyah. Darul Kutubil Ilmiyyah, Beirut, 2000

– Aboki, Y. Introduction to Legal Research methodology, Zaria, Tamaza Press, 2009,

– Mawardi, AM.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, N.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, A. 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 press.

– Ibnu Taimia, A.A. Al-Amru bil-Ma’ruf wan-Nahyi anil-Munkar, Maktabatus Sunnah, Cairo, 1997.