Introduction
In most northern states, hisbah and Shari’a implementation committees have been given the task of enforcing Shari’a and ensuring that the population observes it in their day-to-day activities. The establishment of Hisba-religious vigilante was part of the government’s effort to implement Sharia law and a response to curb the pervasive insecurity and rapidly growing social anomie among youths. In a broader political vision, the enforcement of Sharia law was perceived as a return to Islamic values (divinely ordained laws) to foster societal re-orientation and redress moral decadence in the society. however, poses a paradox.
Proponents of the Sharia law argued that the inauguration of Hisba denotes democracy at work that would drive social transformation, economic ethics, redistributive justice and reduce crime. It has further raised the fundamental concern about the intricacies of security and redefines crime and criminality in metropolitan Kano. This article aimed to critically analyze the role of Hisbah in maintaining orderliness, in line with the provision of Islamic law. And looking at the constitutionality of the establishment of Hisbah by the state national assembly. Lastly, to pinpoint the features of Islamic crime as pointed down by Islamic law.
The Constitutionality Of Hisbah
The establishment of Hisbah institutions on the ground that no constitutional provision outlaws the institution of Hisbah. Although, like in most Federal States, the power to make laws in Nigeria is divided between the National Assembly and the various state House of Assembly. Whereas the National Assembly has exclusive powers to make Laws concerning any matter contained in the exclusive legislative list as set out in part I of the second schedule to the constitution and the concurrent legislative list set out in the first column of part II of the second schedule to the extent of prescribed in the second column, the States House of Assembly have powers to make law in respect of any matter in the concurrent legislative list set out in the first column of part II in the second schedule of the Constitution to the extent prescribed thereto.
Although the National and State House of Assembly may legislate on certain items together, the law validly made by the National Assembly will prevail in the case of any inconsistency. The states however reserve the right to legislate on matters that are not included in either the exclusive or concurrent lists. In the opinion of Prof. B.O. Nwabueze, while both National and State Assemblies may create offense (s) under legislation enacted by them, the powers of enacting comprehensive legislation creating criminal offenses with estate because it is residual matters. On the authority e above constitutional provision and the submission of one of Nigeria‟s foremost authorities on constitutional law, it is submitted that the Shariah Penal Codes in 12 of the Northern Nigeria States which were enacted into Law various State House of Assembly and subsequently assented ous State Governors are valid Laws within the contemplation of the 1999 Constitution of Nigeria.
Kano’s Governor Ibrahim Shekarau established a Hisbah (Shari’ah implementation) Board. By 2005 Kano State had a 9000-volunteer-strong Hisbah Corps essentially operating as a parallel police force tasked primarily with enforcing Shari’ah Law.
Likewise in the case of ATTORNEY-GENERAL OF KANO STATE V. ATTORNEY-GENERAL OF THE FEDERATION. It was held that ” Kano State Hisbah Board Law No.4 of 2003 (hereinafter referred to as Law No.4) and the Kano State Hisbah Board (Amendment) Law No.6 of 2005 (hereinafter referred to as Law No.6) were regularly made by the Kano State House of Assembly, duly assented to by the Governor of Kano State, they are Legal, Lawful and Constitutional.”
The Islamic Law View On The Position Of Hisbah
The Arabic term hisbah means an act that is performed for the common good or to seek a reward from God. The concept of hisbah in Islam originates from a set of Quranic verses and Hadith. It is an obligation placed on every Muslim to call for what is good or right and to prevent or denounce what is bad or wrong. The Qur’an states: “Let there arise from you a group calling to all that is good, enjoining what is right and forbidding what is wrong. It is these who are successful.” (The Qur’an 3:104). The Hadith states: “Whosoever among you sees an act of wrong should change it with his hands. If he is not able to do so, then he should change it with his tongue. If he is not able to do so, then with his heart, and this is the weakest of faith.”
However, scholars have generally interpreted these verses and traditions as placing duties upon Muslims at both the institutional level and the personal level. At the institutional level, the concept of hisbah is intended as a mechanism to ensure the welfare of society and to combat harm, including crime. At the personal level, it is
intended to instill in each individual the wish to act to prevent something bad from happening, or, if it is not possible to prevent it oneself, to denounce it and call on others to act to prevent it.
In the Nigerian context, some observers have compared the role of the hisbah to that of vigilante groups operating in other parts of the country. Vigilante groups are common in many areas of Nigeria, partly based on tradition, partly as a response to the failings of the police. Most of these groups have been set up at the local level to patrol neighborhoods to prevent crime.
The Role Of Hisbah
The Hisba Law of 2003 established the Kano State Hisba Board. The Board started operation on the 7th November 2003 and was composed of:
1- A representative of the State Shari’ah Commission;
2- A representative of State Zakkah and Hubusi Commission;
3- A representative of the State Emirate Council;
4- A representative of State Civil Defense Corps;
a representative of Ministry of Justice;
5- The State Hisba Commander;
6- A representative of police;
7- A representative of the office of the Secretary to the State Government; and
Four other members are part-time members.
The functions of the Hisba Board includes:
1- Assisting police and other security agencies in the areas of prevention, detention, and reporting of offenses;
2- Encouraging charitable deeds (for example payment of Zakah);
Advising against acquiring interest, usury, hoarding, and speculations;
3- Ensuring orderliness at religious gatherings (for example in Mosques during Salat, distribution of iftar meals provided by the state government during Ramadan, Hajj operations, and public functions);
4- Encouraging general cleanness and environmental sanitation;
5- Reconciliation of civil disputes between people and organizations where parties are willing;
Assisting in traffic control; and
Providing emergency relief operations and assistance in any other situation that requires the involvement of Hisba, be it preventive or detective, and may handle non-firearms for self-defense like batons and other non-lethal civil defense instruments.
unjust Act of Hisbah
Hisbah has been established based on the doctrine of Islamic law, in other to encourage the people to do what is good and avoid what is bad. And to eradicate any form of criminality in society. At this point, the question to ask is that, can we say Hisbah is just in discharging their obligations towards every individual in the Kano metropolis as to promote what is right in line with the position of Islamic law.
The answer is “No”. Because one of the features of Islamic crime is equality. That is, everybody is equal regardless of their status in society whether rich or poor everybody has to be treated equally. In one of the hadith of the Prophet (S.A.W) where he stated that ” I swear by Allah, if Fatima my daughter commit theft I shall amputate her hand.” That is to say, Islam does not segregate the have and they have not, everything as to be proportional in term of right, judgment, and obligation.
However, the reverse is the case in the issues of Hisbah institutions who claim to be Islamic police, putting some cases into consideration. Like the case of the daughter of the Emir of Bichi who got married to President Muhammadu Bahari’s son. Zahra’s gown, part of which is made from a transparent material, while others pointed out that she did not have her hair covered as is usually done by Muslim women. A video of the wedding party shows Nigerian singer, Mayorkun singing and some of the party attendees spotting Afro, Mohawk, or any of the hairstyles Kano State Hisbah has labeled as “unIslamic” and an insult to Islam.
Also, secular songs Hisbah has vehemently frowned upon were played at the party, with young northern men and women dancing to them. All these have attracted punishments from Kano Hisbah, in cases where poor Nigerians were involved.
Noting the hypocrisy exhibited by the Islamic police, which was nowhere to be found during Yusuf Buhari’s wedding and the Kano Hisbah that shaves the head of poor people but was nowhere to be found around the highly secular Muhammadu Buhari son’s wedding: One country, two laws -One applies to the poor and the other applies to rich and highly connected. Ironically, Hisbah has been notorious for shaving the heads of poor northerners with Afro, Mohawk, and other hairstyles termed as “unIslamic” by the bias Islamic police. Islamic law is religious law. It does not change. It is based on the teachings of the Holy Quran and the Hadith. So, therefore, Hisbah institutions are not Islamic police because they are bais in discharging their obligations.
Conclusion And Recommendation
Hisbah witnessed its institutionalized phase. In 2003, Governor Shekarau reconciled the Hisba factions and legalized their activities. According to Governor Shekarau, Section 38, subsection 1 of the 1999 Constitution empowers Kano State to promulgate a law establishing the Hisba Board. The Kano State Hisba board is responsible for general policy-making and coordination of activities between state, zonal, and local government Hisba committees.
The Hisba board has been given the power to establish the Kano State Hisba corps who is eligible for appointment as justice of the peace under the commander. The State Governor appoints the General Commander of the Hisba Corps. The Board is charged with the responsibility of enlightening and guiding the general public on the correct understanding of Shari’a.
Nevertheless, the implementation of sharia law in Kano state is never a wrong idea because it’s a divine law that is not subject to change. That is, it’s not man-made law. So, therefore, there should be arrangements for the implementation of sharia. Shariah law can only be fully implemented in an Islamic state, not a Muslim state. Kano state is not only dominated by Muslims, some people are not Muslims that are living in the state.
The actions of the Hisbah corps known as the Islamic police, are unjust in performing their obligations. The foundation of Islamic law is justice not impartiality to the poor Muslims, they are being biased in performing their duties.
I strongly recommend that there is more to be gathered together to implement Islamic law. Islamic law is a religious law. It doesn’t change. That is, the government should only enforce the practice of the law, but there should be adequate systems in administering the law. The Hisbah corps should be well oriented about the Islamic law jurisprudence, to ensure that they are not being biased in performing their duties. The sharia law should not be enforced on the ordinary man in the street of Kano, but also the person living in a mansion. Nobody is above the law under Islamic law.