Re: Threat of Arrest of Adults Found Eating In Public in the Day of Ramadan in Kano State: Critical Analyses

Hameed Ajibola Jimoh Esq.

Hameed Ajibola Jimoh Esq.

On the 4th day of May, 2019, there was a publication in circulation on social-media such as ‘www.nigerialawyer.com’ among others reporting a statement purportedly made by the Commander-General of Kano State’s Hisbah, which according to the report, reported the Commander to have said that from Monday when Ramadan begins, his men will begin to arrest adults who are seen eating in public and will only be released if they can provide an exemption letter from a medical doctor or the person can show proof of chronic ulcer. According to the report, the Kano State has been practicing Sharia Law since 2001 when former Governor Rabiu Kwankwaso signed the bill creating Hisbah. This report and of course, the statement made by the Commander has generated a lot of arguments vis-à-vis, those in support and those against the statement. Though, from and by the report, this issue of arrest has been a yearly recurrent, but this year’s state has generated serious attention and criticism from majority of the public, especially, those not resident in Kano State, from my observation, though, I may be corrected. This paper aims at making critical analyses as there are more to analyse on the subject matter of fast of Ramadan and the purported Kano State’s Hisbah law which permits arrest of adults who are seen eating in public in the day of Ramadan. I hope this piece would be of a great importance in addressing the subject matter, to the best of my understanding, more so, the facts that so many persons- Muslims and non-Muslims inclusive, do not really understand some basic principles and tenets of Islamic Law of Legal Obligation and duty and in this case, the Legal principles of Ramadan as the fourth pillar of Islam as a religion. Also, while some persons erroneously view Islam as an association, it is true to establish that Islam is not an association rather it is seen and viewed by the Nigerian Legal System as a religion and a way of life of those who practice it.

According to the Wikipedia online, Hisbah is an Islamic doctrine which means ‘accountability’. Hisbah is an individual or collective duty (depending on the school of law) to intervene and ‘enjoin good and forbid wrong’ in order to maintain the norms of Sharia (Islamic law). The doctrine is based on an expression from the Quran (transliteration: al-amru bil-ma’aruuf and an-nahyu ‘anil-munkar). (Note: transliteration is mine.)

Also, on the Islamic law’s concept of ‘Hisbah’ and ‘rijaalul-hisbah’, this was clarified by an answer found in number 13817 of the https://islamqa.info/en sourced from ‘Al-Hisbah magazine, issue no. 39 as follows

Question

We sometimes hear and read about hisbah (guarding against infringements) and rijaal al-hisbah (men who guard against infringements). Who are these men and what is their job?

Answer

Praise be to Allaah.

Rijaal al-hisbah (men who guard against infringements) are people who devote their time to denouncing visible evil whether they do that voluntarily or they are paid for it from the Bayt al-Maal (treasury) of the Muslims. Part of their job of hisbah is to denounce evil actions in marketplaces and elsewhere such as:

1-Free mixing of the sexes and wanton display of beauty (tabarruj) which are forbidden according to sharee’ah.

2-Imitation of either of the sexes by the other.

3-Men making approaches to women either verbally or by their actions.

4-Profane, obscene or indecent speech.

5-Playing radios, TVs or recorders etc. near mosques or in such a way as to disturb the worshippers.

6-Non-Muslims openly manifesting their beliefs or the symbols of their religion, or showing disrespect towards the symbols and rulings of Islam.

7-Displaying or selling pictures, books or video or audio recordings which go against Islamic etiquette or Islamic beliefs.

8-Displaying 3-D or promiscuous images, or the symbols of non-Islamic religions such as the cross, the star of David, images of the Buddha, and the like.

9-Manufacturing or promoting or trading in intoxicants.

10-Means that lead to immoral actions such as adultery, homosexuality and gambling, or running houses and places where evil and immoral actions may be committed.

11-Manifest bid’ah (innovation), such as venerating certain times and places for which there is no sanction in sharee’ah, or celebrating innovated, un-Islamic festivals and occasions.

12-Practising witchcraft, magic and trickery in order to consume people’s wealth unlawfully.

13-Cheating in weights and measures.

Their work also involves the following:

1-Inspection of slaughterhouses to ensure that slaughter of animals is done in the manner prescribed in sharee’ah

2-Inspection of boutiques and tailor shops catering to women.

The presence of the police does not mean that there is no need for these rijaal al-hisbah, because the police force that exists in some countries does not denounce all evil actions and put an end to them. Rather they seek to enforce laws which at best include both truth and falsehood, whilst the rijaal al-hisbah enjoin everything that Allaah and His Messenger (peace and blessings of Allaah be upon him) have enjoined and compel people to adhere to the obligatory duties, and they forbid everything that Allaah and His Messenger (peace and blessings of Allaah be upon him) have forbidden, and they intervene to prevent forbidden actions.’. (Note: Islam Q&A is an academic, educational, da‘wah website which aims to offer advice and academic answers based on evidence from religious texts in an adequate and easy-to-understand manner. These answers are supervised by Shaykh Muhammad Saalih al-Munajjid (may Allah preserve him).

From the above explanation of ‘hisbah’ and ‘rijaalul-hisbah’, it is clear in my humble submission that the ‘hisbah men’ are not police in relation to the provisions of section 214 of the Constitution of the Federal Republic of Nigeria, 1999 (as emended)-herein after referred to as the Constitutituion- rather, one can say that they are ‘Law Enforcement Agency of the Kano State’s Government’, or at best, ‘Islamic Law Enforcer’.

Furthermore, on the Islamic principle of Ramadan, it is to be noted that fast of Ramadan is compulsory by the Quran and the Sunnah of Prophet Muhammad (may Allaah’s blessing and peace be upon him) and by Islamic Scholars. On the compulsory nature of the fast, Quran Chapter 2 Verse 183 to 187 of the Quran is clear on this, specifically verse 183 thus ‘O you who believe! Observing As-Saum (the fasting) is prescribed for you as it was prescribed for those before you, that you may become Al-Muttaquun (the pious)’. (As-Saum means fasting, i.e. not to eat or drink or have sexual relations from the Adhaan of the fajr (early morning) prayer till the sunset). See: Interpretation of the meanings of the Noble Qur’an in the English Language, a summarized version of At-Tabarani, Al-Qurtubi and Ibn Kathir with comments from Sahih Al-Bukhari, translated by: Dr. Muhammad Muhsin Khan and Dr. Muhammad Taqi-ud-Din Al-Hilali, Darussalam Publishers and Distributors, Riyadh, Saudi Arabia, 2007, page 47.

Notwithstanding Quran Chapter 2 verse 183, Verses: 184-187 of the said Chapter 2 have established some exemptions to simplify the difficulty that might result from the fast. Because of space in this paper, the exemptions or exempted persons as clarified by Islamic scholars from Islamic sources of law are categorized as follows:

  1. A non-Muslim. 2. A mentally unsound person. 3. A minor. 4. A sick person. 5. A traveller. 6. A menstruating female. 7. A person in her post-child birth’s blood period. 8. An aged man and woman. 9. A pregnant female. 10. A breast feeding female. 11. A person in a hard labour. See: Fiqhussunnah by Shaykh Sabiq (Arabic version).

 

Now, considering the facts that the issue of fast of Ramadan is obligatory except as exempted under the Islamic law, it is important to state that under Islamic Law of Jurisprudence, the obligation created by the rule of law (hukm) are in the following terminologies:

  1. Obligation (iijab); 2. Recommendation (nadb); 3. Disapproval or Reprehension (karaahah); 4. Prohibition (tahriim); 5. Permissibility (‘ibaahah).

And in the same vein the duties or actions created by the hukm (the rule of law) are captured in the following terminologies: 1. Obligatory (waajib); 2. Recommended (manduub); 3. Disapproved or Reprehensible (makruuh); 4. Prohibited (haram); 5. Permissible (mubaah). See: An outline of Islamic Jurisprudence by Yahya Y. Bambale, Malthouse Press Limited, Lagos, 2007, page 12.

Having explained above that eating in the fast of Ramadan for an exempted persons is a form of exemption (rukhsah) which is permitted, it is in my humble view that it is only disapproved or reprehensible for such Muslim to eat in public while others are fasting, without any exemption under the Islamic Law. More so that it would discourage other Muslims who are fasting. It can also be an act of disrespect for the month of Ramadan. The law does not say such a person should eat in public rather, it should be done with wisdom, though, it is good to say that eating in public does not amount to a crime in Islamic law, rather, it is just only a disapproved or reprehensible act and that is for a person who is exempted. On the case of someone who is not exempted to eat (regardless of whether he eats in private or public or breaks his fast in other means), it is considered as a great sin and Islamic scholars also view such person as a disbeliver as he has voluntarily rejected an obligatory pillar of Islam which vitiates his status of being a Muslim. For instance, as reported from Ibn ‘Abbass (may Allaah be pleased with him and his father), verily the Messenger of Allaah (may Allaah’s blessings and peace be upon him) said: ‘the handholds of Islam and the fundamentals of the religion are three. Islam was established upon them. Whoever abandons one of them, then, he is a disbeliever (kaafir) because of it and his blood is lawful (to be split): the testimony that none has the right to be worshipped except Allaah, the obligatory prayer and fasting Ramadan’. (Related by: Abu Ya’ala in his Musnad, and its chain of narration is Hassan (good)). Also, the Messenger of Allaah was reported to have said as reported by Abu Huraira that: Whoever feeds himself a day of fast of Ramadan without any exemption exempting him by Allaah (in Islamic law), he will not be able to regain what he has lost even if he fasts a whole year’. Related by: Abu Daawuud, Ibn Majah and At-Tirmidhi. Breaking fast of Ramadan is serious as a reproachable act that according to Al-Imam Adh-Dhahabi is viewed as being grievous than adultery or drinking alcohol which also renders such person’s faith in Islam doubtful to Islamic scholars. It will therefore (in my humble view), mean that the ‘hisbah men’ of Kano State are not police in relation to the provisions of section 214 of the Constitution of the Federal Republic of Nigeria, 1999 (as emended)-herein after referred to as the Constitution- rather, one can say that they are ‘Law Enforcement Agency of the Kano State’s Government’, or at best, ‘Islamic Law Enforcer’, who guard against infringements of the Islamic law of Ramadan, in this case.

Concept of Crime under the Nigerian Legal System/Nigerian Law

The Constitution is the supreme law of the Federation. The relevant section to this paper is as provided in section 36(8) and (12) of the Constitution, which in my humble view, is the general concept or principle of what constitutes an offence or what can be termed as ‘foundational conceptualization of offence’, which are to guide the legal terminology of any act as an offence in Nigeria. Section (8) provides thus ‘No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed. (12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.’.

Offence as matter on the Residual Legislative List

It is very important to state as stated earlier in this paper, that the Constitution is the supreme law of Nigeria through which the various organs and levels of Government derive the source of their powers and any variation from the Constitution is very unlawful, null and void. On this position, Ngwuta JSC has this to say ‘I wish to emphasise that the Constitution of the Federation, 1999 as variously amended, is the yardstick for determining the validity vel non of any act or decision in relation to any law in the country. Any derogation from one section is not only extraneous to the Constitution but a violation of the solemn oath undertaken by all Judges to defend and protect it’. See: Oni v Fayemi (2013) 12 NWLR (part 1369) 431 SC.

Worthy of note is that the powers of the National Assembly to make laws is exclusive on matters on the Exclusive List in the Constitution. This is because, the matters of crimes are generally in the Residual Legislative List of the Constitution which only the State House of Assembly of the Federation has powers to legislate on. On the ambit of the legislative powers of the National Assembly and the House of Assembly of a State, the Supreme Court in the case of A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. Held thus: ‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list. The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws. The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists’. (Underlining is mine for emphasis). A voyage of discovery on the Exclusive and the Concurrent Legislative Lists of the Constitution confirms that the matter of crime is not on those lists explicitly. The House of Assembly of a State also therefore has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists. Furthermore, Item 68 of the Second Schedule, Part I, of the Constitution, which is the Exclusive Legislative list, provides that the National Assembly has power on ‘Any matter incidental and supplementary to any matter mentioned elsewhere in this list’. The Part III of the Second Schedule of the Constitution provides for Supplemental and Interpretation and it provides that ‘In this Schedule, references to incidental and supplementary matters include, without prejudice to their generality, references to-(a) offences;… Also see: section 10(2) of the Interpretation Act, CAP.123, LFN, 2010, which provides that ‘ An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it’. In my humble view and submission, the National Assembly’s power to make certain acts as offences will only relate to those items in the exclusive legislative See: Oni v Fayemi (supra).

Also, exclusive jurisdiction has been conferred on the Federal High Court of Nigeria in respect of any of the offences relating to or incidental to items listed under the said section created under the section 251 (3) of the Constitution and section 3 of the Federal High Court Act, CAP F12, LFN, 2004. However, the jurisdiction in respect of any incidental offence in respect of items in the concurrent legislative list of the Constitution would then be conferred on the Federal High Court (considering the provisions of section 252(2) of the Constitution which provides thus (2) Notwithstanding subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction.’. Also see the case of: A.G. Ondo State v A.G. Federation and 36 others (2002) 9 NWLR (pt . 772) 222, (2002) 6 S.C. (Pt. 1) 1.) and a High Court of a State (inclusive of those inferior courts established pursuant to the State’s Law(s)) subject to the respective Federal Legislation and the State Legislations on the said items on the concurrent legislative list (i.e. the State shall not legislate on any concurrent item, the subject matter of a Federal Legislation by virtue of section 4(5) of the Constitution which provides thus ‘(5) If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.’, which is the doctrine of covering the field.). Nevertheless, and for the sake of emphasis, I humbly submit that the jurisdiction conferred on the Federal High Court and the powers of the National Assembly to make laws in criminalizing an act are subject to the provisions of the Constitution in section 4, which provides thus ‘4.—(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives. (2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. (4) In addition and without prejudice to the powers conferred by subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that is to say— (a) any matter in the Concurrent Legislative List set out in the first Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto ; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution’. Therefore, the issue of covering the field of the Federal Powers upon the States’ Power as provided in section 4(5) of the Constitution does not arise. Therefore, any matter in the residual list confers exclusive powers on the House of Assembly of the States of the Federation to legislate on. See: section: 4 (7) (a) of the Constitution which among other powers, provides thus ‘(7) The House of Assembly of a State shall have power to make Laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say— (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;…’. Also see: A.G. Federation v A.G. Lagos State (supra). Furthermore, it is therefore my submission that the position and status of the Federal Capital Territory –herein after referred to as FCT- is that the Residual Legislative List or power is applicable and exercisable by the National Assembly as if it were to be a State of the Federation. And it is generally submitted that the status of the FCT in relation to the Concurrent Legislative List is that the National Assembly makes laws for FCT on the matters on the Concurrent Legislative List and those matters on the Residual Legislative List as if it were to be a State of the Federation. So, such legislations even though it is an Act of the National Assembly, does not have a general application as though, it were a Federal Legislation.

Criminalisation of eating in public in the day of fast of Ramadan as offence under the Kano State Law

From the report, it shows that eating in public in the day of Ramadan as a Muslim is criminalized (considering the use of the words: ‘arrest’ ‘detention’ and ‘release’ or ‘bail’, etc., though, those exempted by providing genuine proof are said to be released. It would be difficult for me to comment on the provisions of that law since I have not gone through its provisions of the Purported Hisbah Law of Kano State to enable me to consider its provisions vis-à-vis the principles of: Hisbah and ‘rijaalul-hisbah’ discussed above, the obligatory and exemption principles of fast of Ramadan, the principles of offence and criminality under the Constitution and the procedures for arrest, etc., purportedly legislated under the purported Hisbah law of Kano State. Perhaps in my next articles or papers, I shall try my best in analyzing its provisions vis-à-vis its criminalization and arrest of persons eating in public in the fast of Ramadan as well as the safeguard of the fundamental rights of such suspect by the law enforcers. Nevertheless, the point being made hear is that such criminalization is not as a result of the exemption created by Islamic law, rather, it is as a result of the residual powers of the House of Assembly of Kano State to have criminalized such act. And it is clear that the law will be legal and lawful where the provisions of the Hisbah Law of Kano State are not in violation of the Constitution. The second leg is to verify if such law is not in violation of the Constitutional provisions and not taking the law as Islamic law in the real sense rather as a Kano State Law. Also, crimes under Islamic law (especially in respect of residual matters) can only be applicable in Nigeria as a State’s law if passed into law by the House of Assembly of the State considering the provisions of section 36(8) and (12) of the Constitution (supra). Also, Islamic law remains one of those grounds for challenging the Hisbah Law of Kano State.

Finally, I humbly submit without prejudice to the submissions elsewhere in this paper that:

  1. Fast is obligatory only on a Muslim and is only exempted for some categories of persons listed above as an exemption (rukhsah);
  2. Islam has not criminalized eating in public by an exempted Muslim (male or female) and such criminalization would not take force in Nigeria unless the provisions of section 36(8) and (12) of the Constitution is complied with i.e., where passed into law by the National Assembly of the Federation or the House of Assembly of a State;
  3. The purported criminalization of eating in Ramadan and the purported authorized arrest of the infringer is within the purview of the Kano State’s law and not criminalized by Islam only that it is a sin Islamically punishable by the Almighty Allaah- Himself; though, it might be sin as an act of disbelief where the infringer is eating as a rejection of the Islamic faith or disbelief in the month of Ramadan which is the fourth pillar of Islam;
  4. There is no need to criticize Islam on this subject matter rather, attention should be focused on the Kano State Law which criminalises eating in public and orders arrest of its infringer. So, the focus now is the Kano State’s law to especially consider whether this criminalization has been taken too far in view of the Islamic law exempting liability and whether such criminalisation is valid or void by Islamic Law and or the Constitution.
  5. The ‘hisbah men’ of Kano State are not police in relation to the provisions of section 214 of the Constitution of the Federal Republic of Nigeria, 1999 (as emended)-herein after referred to as the Constitution- rather, one can say that they are ‘Law Enforcement Agency of the Kano State’s Government’, or at best, ‘Islamic Law Enforcer’, who guard against infringements of the Islamic Law of Ramadan, in this case.
  6. Further analyses will be made on the Hisbah Law of Kano State in my next article, when I am able to lay my hand on the said purported Hisbah Law of Kano State, inshaallaah!

 

Email: hameed_ajibola@yahoo.com

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