Working within Sharia Takes You Only So Far

Human Rights Dialogue 2.10 (Fall 2003): "Violence Against Women"

Albaqir A. Mukhtar responds to Ayesha Imam's "Working with Algeria's Sharia Courts." (Use the link in the right sidebar to read "Working with Algeria's Sharia Courts.")

Using Sharia as the point of reference, as Ayesha Imam suggests, allows her organization to do two things: one, contest its interpretation, and, two, criticize its implementation as inadequate. This is now the general trend among intellectuals, lawyers, women’s and human rights activists in northern Nigeria, and, indeed, in many other Muslim countries where Sharia law is enforced.

Indeed, this looks like the only course of action open to Imam and her colleagues, for they do not want to be seen, for understandable reasons, as challenging Sharia, despite the fact that they may recognize problems with it. There is no doubt that the implementation of Sharia law in northern Nigeria suffers from visible deficiencies, as Imam says, and that the internal debates on Sharia between supporters and critics like BAOBAB in northern Nigeria are based on these deficiencies rather than the laws’ punitive aspects. The underpinning assumption of this line of argument is that it is primarily the deficient implementation of Sharia law, and not Sharia itself, that discriminates against women.

Although Imam’s argument is commonly made, it does not address the real issue of the challenges of applying Sharia in the twenty-first century, or the fact that Sharia does not guarantee democracy, freedom, and human rights. It also does not open the way for Nigerian Muslims to call for Sharia reform, despite the fact that such calls are now voiced in many parts of the Muslim world.

The real issue facing Muslims, whether in Nigeria or elsewhere, is that Sharia itself, even if perfectly implemented, discriminates against women and allows for acts of violence against them. The main rule of Sharia, which is well formulated in legal terms by all schools of jurisprudence, is that man is guardian over woman. This is based on the Qur’anic verse

Men are guardians over women because God has preferred some of them [men] over others [women], and because men support women from their wealth, therefore the righteous of women are devout and guard in their husbands’ absence what God would have them to guard, and those women whom you [men] fear to be disobedient, admonish them first, then reject them in bed, and finally beat them. But if they return to obedience do not seek to harass them more (4:34).
This general rule is translated in wholesale discriminative provisions in both the public and private spheres.

In this light, it is ineffective to work within the framework of Sharia to combat violence against women. Instead, one has to appeal to a higher law. For some Muslim activists, this higher law must stem from the universal aspects of Islam. The Republican Brothers of Sudan, for example, hold that Sharia is the secondary—not the primary—intent of Islam. Therefore Sharia is mutable, and should be evolved within the Qur’an toward the primary intent of Islam, which is complete equality between men and women.

For other activists—in fact, the majority of local and regional human rights and women’s rights organizations in the Muslim world—this higher law is international human rights law. Although these activists are criticized by the religious establishment and conservative forces in their communities as “secular,” “westernized,” and “betrayers” of their culture and religion, they believe that a human rights framework acknowledges rights that are absent in Sharia, such as universal equality between men and women and between Muslims and non-Muslims. Given that these activists’ respective governments are signatories to a number of human rights instruments, appealing to international human rights law can help to hold their governments accountable for human rights violations such as discrimination against women, which they cannot do under Sharia.

Furthermore, activists’ steadfastness in using human rights discourse has helped to influence the religious discourse to make accommodations for human rights. To give just one example, Sheikh Abul Al-Mawdudi, the founder of the conservative group Jama’ati Islami in Pakistan, authored a booklet titled Human Rights in Islam as a direct response to the criticism that Pakistani human rights activists mounted against his movement. Although such developments do not wholly embrace the ideals of the international human rights movement, they provide evidence that Islamists are beginning to heed the human rights movement in the Islamic world and the international framework upon which it is based.

By not focusing on either of these approaches—appealing to the universal aspects of Islam or to international human rights law—it appears that Imam’s options are limited. Working within Sharia can be effective only in challenging a certain type of court case—those grossly mishandled by the courts, not those in which adequate procedures were followed. These latter cases can be challenged only by recourse to international human rights instruments and the Federal Constitution of Nigeria. Challenging such cases within the framework of Sharia is akin to institutionalizing discrimination.

Read More: Human Rights, Islam, Human Rights, International Law, Islam and the West, Women's Rights, Nigeria

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