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Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903–58

  • Rabiat Akande
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Abstract

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The author thanks David Kennedy, Duncan Kennedy, and John Comaroff for several intellectually stimulating discussions that inspired this article. The author is also indebted to Intisar Rabb, Kimberly Wortman, Kristen Stilt, Mitra Sharafi, Noah Feldman, and Priyasha Saksena for their helpful comments and is grateful to the Weatherhead Center for International Affairs, Harvard University and Harvard Law School Program on Law and Society in the Muslim World, for funding the research necessary for writing this article. Finally, the author thanks the anonymous reviewers of this piece for their valuable comments.

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1. Moustafa, Tamir, “Judging in God's Name: State Power, Secularism, and the Politics of Islamic Law in Malaysia,” Oxford Journal of Law and Religion 3 (2013): 156.

2. Anderson, John N.D., Islamic Law in Africa (Oxon: Routledge, 2013).

3. Chatterjee, Partha, The Black Hole of Empire: History of a Global Practice of Power (Princeton, NJ: Princeton University Press, 2012); and Mantena, Karuna, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, NJ: Princeton University Press, 2010).

4. Hailey, William M.H.B., Native Administration in the British African Territories: West Africa: Nigeria, Gold Coast, Sierra Leone, Gambia, vol. 3 (London: HM Stationery Office, 1951); Temple, Charles L., Native Races and their Rulers: Sketches and Studies of Official Life and Administrative Problems in Nigeria (Cape Town: Argus Printing & Publishing, 1918); Perham, Margery F., Native Administration in Nigeria (London: Oxford University Press, 1937); Mamdani, Mahmood, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press, 1996); and Jonathan Reynolds, “Good and Bad Muslims: Islam and Indirect Rule in Northern Nigeria,” International Journal of African Historical Studies (2001): 601–18. For accounts of “law's travels,” see Mawani, Renisa and Hussin, Iza, “The Travels of Law: Indian Ocean Itineraries,” Law and History Review 32 (2014): 733–47; and Hussin, Iza, “Circulations of Law: Cosmopolitan Elites, Global Repertoires, Local Vernaculars,” Law and History Review 32 (2014): 773–95.

5. The emirs formed a part of the broader political elite class: Masu Sarauta (“the possessors of governance”), who “were generally, descendants of the founders of the precolonial Sokoto Islamic caliphate.” Reynolds, “Good and Bad Muslims,” 601. For the administrative and judicial design of the precolonial Islamic caliphate, see Hiskett, Mervyn, The Sword of Truth: The Life and Times of the Shehu Usuman Dan Fodio (New York: Oxford University Press, 1973); and Sulaiman, Ibraheem, The Islamic State and the Challenge of History: Ideals, Policies, and Operation of the Sokoto Caliphate (London: Mansell, 1987).

6. Although formal imperial dominion was declared at the turn of the nineteenth century, imperial presence on the West African coast dates back to 1841 and was the product of an alliance with anti-slave-trade evangelicals. See Ayandele, Emmanuel A., The Missionary Impact on Modern Nigeria, 1842–1914: A Political and Social Analysis (London: Longman, 1966); and Rabiat Akande, “Navigating Entanglements: Contestations over Religion-State Relations in British Colonial Northern Nigeria, c. 1890-1978” (SJD Diss., Harvard Law School, 2019).

7. The colonial state divided natives of Northern Nigeria into three types of residential formations. Type I areas (“emirates”) had a predominantly Muslim population and were administered by the state through the emirs. Type II areas were those with “mixed” religious populations and were administered through Muslim chiefs. Type III areas (“pagan areas”) had a predominantly pagan population and were administered by the state through “pagan” chiefs. The state applied “Islamic” law and Islamic systems of courts in Type I and II areas. “Pagan” native law and courts operated, subject to several restrictions, in Type III areas. Akande, “Navigating Entanglements.” This narrative focuses on the Type I and II areas. Although the terms “native” and “pagan” are now regarded, at best, with ambivalence, I adopt them in this article in the vernacular sense in which they were employed by official colonial discourse and the dramatis personae in this narrative.

8. At the 1910 World Missionary Conference, Northern Nigeria was declared the “worst place to be a missionary.”

9. Report of the Native Courts (Northern Provinces) Commission of Inquiry, Laid on the table of the House of Representatives as Sessional Paper No. 1 of 1952 (Lagos: Federal Government Printer, 1952) (hereafter Brooke Commission Report), 9

10. “We declare it our Royal will and pleasure that none be in anywise favored, none molested or disquieted, by reason of their religious faith or observances, but that all shall alike enjoy the equal and impartial protection of the law; and we do strictly charge and enjoin all those who may be in authority under us that they abstain from all interference with the religious belief or worship of any of our subjects on pain of our highest displeasure.” “Proclamation by the Queen in Council to the Princes, Chiefs and people of India published by the Governor-General at Allahabad,” [1858], IOR/L/PS/18/D154 British Library, UK.

11. “I swear in the name of God well and truly to serve His Majesty King George V and his representative, the Governor of Nigeria, to obey the laws of Nigeria and the lawful commands of the Governor … provided they are not contrary to my religion …” Lugard, Frederick, The Dual Mandate in British Tropical Africa (Oxon: Frank Cass and Co. Ltd, 1965).

12. Alkali sing.

13. Lugard, Frederick D., Political Memoranda (London: Frank Cass & Co, 1970), 594. The colonial state, for example, justified restrictions on Christian missionary proselytization on the basis that it was a threat to “good order” because it was likely to provoke a violent reaction by Muslims. By invoking “humanity” and “good order” as exceptions to the general policy of neutrality, impartiality, and tolerance, the state was invoking two values commonly deployed in the service of secularism. Agrama, for example, argues that although secular states affirm “equality, neutrality and impartiality,” they, simultaneously, privilege “the sentiments and values of the majority” on the grounds that these are “integral to the cohesiveness of society.” In essence, by “invoking public order,” the state smuggles in majoritarian values. See Agrama, Hussein A., “Secularism, Sovereignty, Indeterminacy: Is Egypt a Secular or a Religious State?Comparative Studies in Society and History 52 (2010): 495523.

14. Asad, Talal, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003); Mahmood, Saba, Religious Difference in a Secular Age: A Minority Report (Princeton, NJ: Princeton University Press, 2015); Salomon, Noah, For Love of the Prophet: An Ethnography of Sudan's Islamic State (Princeton, NJ: Princeton University Press, 2016); Sullivan, Winnifred F., Hurd, Elizabeth Shakman, Mahmood, Saba, and Danchin, Peter G., eds., Politics of Religious Freedom (Chicago: University of Chicago Press, 2015); and Cossman, Brenda and Kapur, Ratna, Secularism's Last Sigh? Hindutva and the (Mis) Rule of Law (New York: Oxford University Press, 2001). On the sacred underpinnings of modern secular law, see Comaroff, John L, “Reflections on the Rise of Legal Theology: Law and Religion in the Twenty-First Century,” Social Analysis 53 (2009): 193216.

15. Adcock, Catherine S., The Limits of Tolerance: Indian Secularism and the Politics of Religious Freedom (New York: Oxford University Press, 2013); Galanter, Marc, “Secularism, East and West,” Comparative Studies in Society and History 7 (1965): 148; Salomon, For Love of the Prophet, 32–33. For an account showing that “secularity is as much a function of England's imperial expansiveness as it is that of altered church-state relations within Britain,” see Viswanathan, Gauri, Outside the Fold: Conversion, Modernity, and Belief (Princeton, NJ: Princeton University Press, 1998), 34.

16. For the invention of African customary law, see Mamdani, Citizen and Subject. On the making of Islamic law, see Kugle, Scott Alan, “Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia,” Modern Asian Studies 35 (2001): 257313; Anderson, Michael R., “Islamic Law and the Colonial Encounter in British India,” in Institutions and Ideologies: A SOAS South Asia Reader, ed. Arnold, David and Robb, Peter (London and New York: RoutledgeCurzon, 2013), 165185. Hussin, Iza R., The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (Chicago: University of Chicago Press, 2016); and Salomon, For Love of the Prophet.

17. John Comaroff describes this “effort to conquer and control indigenous peoples by the coercive use of legal means” as “lawfare.” Comaroff, John L., “Colonialism, Culture, and the Law: A Foreword,” Law & Social Inquiry 26:2 (2001): 305314. Yet, as he argues, law was not only an instrument of domination, it was also a tool for resistance with which the colonized populations challenged “old and new hierarchies of power,” Comarofff, “Colonialism, Culture and the Law,” 306; and Merry, Sally Engle, “Courts as Performances: Domestic Violence Hearings in a Hawai'i Family Court,” Contested States: Law, Hegemony and Resistance 35 (1994): 59.

18. Anderson, Islamic Law in Africa, 219.

19. Joseph Schacht, “Investigation into the Application of Islamic Law in Nigeria” [1951], CO 927/158/6 National Archives, UK.

20. See Yadudu, Auwalu H., “Colonialism and the Transformation of the Substance and Form of Islamic Law in the Northern States of Nigeria,” Journal of Law and Religion 9 (1991): 1747; Oba, Abdulmumini A., “Islamic Law as Customary Law: The Changing Perspective in Nigeria,” International and Comparative Law Quarterly 51 (2002): 817–50; and Eltantawi, Sarah, Shari'ah On Trial: Northern Nigeria's Islamic Revolution (Oakland: University of California Press, 2017).

21. Lewis, Bernard, “Siyasa,” in In Quest of an Islamic Humanism: Arabic and Islamic Studies in Memory of Mohamed al-Nowaihi, ed. Green, Arnold H. (Cairo: American University in Cairo Press, 1986), 3.

22. Moustafa, “Judging in God's Name,” 156.

23. Moosa, Ebrahim, “Colonialism and Islamic Law,” in Islam and Modernity: Key Issues and Debates, ed. Masud, Muhammad, Salvatore, Armando, and van Bruinessen, Martin (Edinburgh: Edinburgh University Press, 2009), 158181, 166.

24. Lewis, “Siyasa”; and Hiskett, Mervyn, The Course of Islam in Africa (Edinburgh: Edinburgh University Press, 1994), 120–21.

25. Anjum, Ovamir, Politics, Law, and Community in Islamic Thought: The Taymiyyan Moment (Cambridge: Cambridge University Press, 2012), 106.

26. Mamluk era-jurist, Al Maqrizi. Ovamir Anjum, Politics, Law, and Community in Islamic Thought, 106.

27. Quraishi-Landes, Asifa, “Islamic Constitutionalism: Not Secular, Not Theocratic, Not Impossible,” Rutgers Journal of Law & Religion 16 (2014): 553, 559. Examples of scholars who hold this view are Ibn al Jawzi, Al Mawardi, and Ibn Taymiyyah. Each had a different answer to the question of the relationship between the ruler and the jurist. To Ibn al Jawzi, the authority of the ruler was subjected to that of the jurists: the authoritative expounders of the Shari'a. To Al-Mawardi, although the siyasa is encompassed within the Shari'a, rulers are not thereby subordinate to the jurists. See Vogel, Frank, “Tracing Nuance in Māwardī’s al-Aḥkām al-Sulṭāniyyah: Implicit Framing of Constitutional Authority,” in Islamic Law in Theory: Studies on Jurisprudence in Honor of Bernard Weiss, ed. Reinhart, A. Kevin and Gleave, Robert (Leiden: Brill, 2014), 339. Ibn Taymiyyah argues for “cooperation” among rulers, jurists and the Muslim community. Anjum,  Politics, Law, and Community in Islamic Thought, 103–7. See, however, Johansen, Baber, “A Perfect Law in an Imperfect Society,” in The Law Applied: Contextualizing The Islamic Shari'a: A Volume in Honor of Frank E. Vogel, ed. Bearman, Peri, Heinrichs, Wolfhart, and Weiss, Bernard G. (London: IB Tauris, 2008), 259. See further Stilt, Kristen, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxon: Oxford University Press, 2011).

28. See Moosa, “Colonialism and Islamic Law”; Hallaq, Wael B., The Impossible State: Islam, Politics, and Modernity's Moral Predicament (New York: Columbia University Press, 2014); and Quraishi-Landes, “Islamic Constitutionalism.”

29. Hallaq, The Impossible State, 69.

30. See Moustafa, “Judging in God's Name,” 156.

31. For a critique of Hallaq's account, see Odeh, Lama Abu, “Wael Hallaq, The Impossible State: Islam, Politics, and Modernity's Moral Predicament (New York: Columbia University Press, 2012),” International Journal of Middle East Studies 46 (2014): 216–18.

32. Uthman Dan Fodio, the founder of the caliphate and leader of the 1804 revolution, his son and immediate successor, Muhammed Bello, and his brother, Abdullahi Bello. Of the three, Muhammed Bello (who devoted the most energy to practical administration) had the most expansive view of the siyasa. He went as far as to consider it the role of the “Islamic government” to “interpret laws and organize society in such a way as to relieve hardships and make life easier and better for the people” even in apparent departure from the “letter of the sharia.” To him, “if the letter of the sharia needs to be sacrificed to safeguard its spirit, so be it.” Sulaiman, The Islamic State, 63.

33. Even Muhammed Bello, most liberal in constructing siyasa, states in his Tanbih al-raqid: “Rulers have dared to oppose the Sharia under the false apprehension that the policy of the Sharia is not capable of dealing with people and the best interest of the community. They overstep the limits of Allah and abandon the Sharia by rebelling in various ways and making innovations in government in a way that is not permitted. The reason for this is ignorance of the Sharia.” Sulaiman, The Islamic State, 73. See also Martin, B. G., “A Muslim Political Tract from Northern Nigeria: Muhammad Bello's Usul al-Siyasa,” in Aspects of West African Islam, ed. McCall, Daniel F. and Bennett, Norman R. (Boston: African Studies Center, Boston University, 1971), 6386.

34. Hiskett, Mervyn, “Kitāb Al-Farq: A Work on the Habe Kingdoms Attributed to ‘Uthmān Dan Fodio,” SOAS Bulletin 23 (1960): 558–79.

35. Sulaiman, The Islamic State, 68, citing Abdullahi Bello's Diya al Hukam.

36. Sulaiman, The Islamic State, 69. See also Peters, Rudolph, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge: Cambridge University Press, 2006), 78. Beyond ta'azir, scholars set out two other categories of crimes: offenses that require as retribution a “divinely ordained punishment” (huduud), and those that  call for talionic punishment (qisas). Lange, Christian, “Crime and Punishment in Islamic History (Early to Middle Period): A Framework for Analysis,” Religion Compass 4 (2010): 698.

37. Sulaiman, The Islamic State.

38. Quraishi-Landes, “Islamic Constitutionalism,” 562; Moosa, “Colonialism and Islamic Law,” 167.

39. Moosa, “Colonialism and Islamic Law,” 166–67.

40. Quraishi-Landes, “Islamic Constitutionalism,” 560.

41. Kendhammer, Brandon, Muslims Talking Politics: Framing Islam, Democracy, and Law in Northern Nigeria (Chicago: University of Chicago Press, 2016), 13–14, 5254. Eltantanwi argues that this statism was driven by the central colonial concern of “control.” Eltantawi, Shari'ah On Trial, 121 and 133. On the Sudan, see Massoud, Mark Fathi, Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan (Cambridge: Cambridge University Press, 2013).

42. Asifa Quraishi-Landes, “Islamic Constitutionalism,” 562, arguing that “state power has become today's siyasa.” See also Hussin, The Politics of Islamic Law, 177.

43. High Commissioner of the Protectorate of Northern Nigeria, 1900–1906, and Governor General of Nigeria from 1912 to 1914.

44. See Willink, Henry, ed., Nigeria: Report of the Commission Appointed to Enquire into the Fears of Minorities and the Means of Allaying Them (London: HM Stationery Office, 1958), 58 (hereafter Willink Commission Report).

45. The administrators who subscribed to Lugard's thesis.

46. So invested were the Lugardians in the idea of the autonomy of the Muslim emirates that Margery Perham, biographer of Lugard and prominent scholar of colonial administration, labeled the Lugardian form “ultra-indirect rule” and noted that that they tended to treat these emirates as entities with the status of the princely states of India. Lugard, The Dual Mandate in British Tropical Africa, xl.

47. Governor of Nigeria, 1931–1935.

48. As Mamdani argues, direct and indirect rule were “two faces of power” rather than starkly different forms of colonial domination. Mamdani, Mahmood, “Historicizing Power and Responses to Power: Indirect Rule and its Reform,” Social Research 66:3 (1999): 859886, 862.

49. Cooper, Frederick and Stoler, Ann Laura, eds., Tensions of Empire: Colonial Cultures in a Bourgeois World (Berkeley: University of California Press, 1997).

50. Moosa, “Colonialism and Islamic Law,” 177. See also Kendhammer, Muslims Talking Politics, 54. For an account mapping out the ways in which the varied responses of colonial subjects to colonialism were justified in the language of the Shari'a, see Umar, Muhammad S., Islam and Colonialism: Intellectual Responses of Muslims of Northern Nigeria to British Colonial Rule, vol. 5 (Leiden: Brill, 2006).

51. Comaroff, “Colonialism,” 312

52. Lugard, Dual Mandate, 78.

53. At the inception of colonial rule, there were 100 British officers for Northern Nigeria, which had a size of 828,796.195 square kilometers and population of 8,700,000. Annual Report, Northern Nigeria, 1901. This manpower shortage would continue because of revenue constraints. Revenue was almost solely generated from taxes, and 75% of this revenue was expended on administration.

54. John Cornes was the Institute Colonial Studies’ supervisor of colonial services courses when Schacht was commissioned to conduct the Northern Nigerian study. Prior to this, he had served in Northern Nigeria.

55. Schacht, “Investigation into the Application of Islamic Law in Nigeria,” 5.

56. “Rights of Non Mohammedans Before Mohammedan Courts,” File np 16032, Arewa House Kaduna in Umar, Islam and Colonialism, 48.

57. John Anderson, “A Survey of Islamic Law in Nigeria,” PPMS 60/1/12-17 School of Oriental and African Studies (SOAS) Library Special Collections, London.

58. Ibid. The abolition of the options of forgiveness or payment of diya (compensation) was particularly contested by alkalai, emirs, and even some colonial administrators because of the fear that insisting on the capital penalty would revive the practice of blood feud. Brooke Commission Report, 186.

59. Anderson, “A Survey of Islamic Law in Nigeria.”

60. Brooke Commission Report, 184.

61. Native Courts (Amendment) Proclamation (No. 10, 1908) (N.Nig.), 1911 and Native Courts Ordinance (No. 5, 1918) (Ng.).

62. Native Courts Proclamation.

63. Report of the Native Courts (Northern Provinces) Commission of Inquiry Laid on the table of the House of Representatives as Sessional Paper No. 1 of 1952 (Lagos: Federal Government Printer, 1952), 128.

64. Lugard, Political Memoranda, memorandum no. 3

65. One of these was the 1916 English Criminal Code. The Protectorate Courts were of two categories: (1) the Supreme Court and (2) the Provincial Courts comprising Provincial Courts and Cantonment Courts. See Protectorate Courts Proclamation of 1900 and Cantonment Courts Proclamation of 1902. Colonial administrators wielded immense power over both courts. The Supreme Court was the highest in the hierarchy with both supervisory and appellate jurisdiction: appellate jurisdiction over the provincial courts and supervisory jurisdiction over cantonment courts and native courts if political officers transferred cases to it.

66. Jurisdiction was determined by: (i) whether the accused person was a native/non-native; (2) whether the alleged offense was committed within the boundary of an emirate and whether the case was investigated by the Nigerian police or the Native Authority Police; and (3) whether the resident or other officer saw fit to transfer the case from the native courts.

67. Resident of Sokoto Province to the Secretary of Northern Provinces, “Delineation of Jurisdiction,” Native Courts File #11454, 1915, Volume I. Kaduna National Archives cited in Patricia C. Gloster, “The Evolution of Maliki Law in Northern Nigeria 1930–1960” (PhD diss., Columbia University, 1987), 137.

68. This was in spite of the Native Court Proclamation of 1900's provision that the law applicable by a native court was native customary law prevailing in its area of jurisdiction.

69. Although Islamic courts had exercised a degree of jurisdiction over some non-Muslims in the precolonial era, this was restricted. Colonial rule expanded the territory over which Islamic institutions exercised governance powers. Further, the precolonial ad hoc systems of trial of non-Muslims residing in emirates by persons of the ethnoreligious persuasion of the parties, ceased to operate. In Reg v. Ilorin, the Supreme Court upheld this colonial era subjection of non-Muslims to the jurisdiction of Islamic criminal law on the basis of the argument that criminal law is territorial. The court further pointed out that in Northern Nigeria, there is no personal law in the sense in which the concept exists in India. Anderson, “A Survey of Islamic Law in Nigeria,” 83.

70. Christian Missionary Society General Committee III's January 26 1916 Memorandum in which it urged the colonial government to conduct judicial and civil administration was according to custom rather than Islamic law. Resolution by Subcommittee on Difficulties with the Nigerian Government, January 26, 1916. CMS/B/OMS/A3/CL/1916, University of Birmingham Cadbury Research Library Special Collections.

71. J.N.D. Anderson, The Reform of Criminal Law Introduced by the British, File 365205 PPMS 60/1/12-17, SOAS Library Special Collections, London.

72. Some Muslims labeled “skin-deep Muslims” also engaged in this practice of settling disputes outside of the legal system. Schacht, “Investigation into the Application of Islamic Law in Nigeria.”

73. Native Courts Proclamation (No. 2/1900) (N.Ng.).

74. Although Uthman Dan Fodio was a scholar of Maliki jurisprudence, he encouraged alkalai to explore other schools of thought. Yusuf, Ahmed B., Nigerian Legal System: Pluralism and Conflict of Laws in the Northern States (New Delhi: National Publishing House, 1982), 27.

75. Ruxton, Fitz Herbert, Mâliki Law: Being a Summary from French Translations of the Mukhtasar of Sîdî Khalîl: with Notes and Bibliography (Westport, CT: Hyperion Press, 1916). See Lugard, Political Memoranda.

76. Letter from official (name illegible) to Anderson. Anderson Collection, PPMS 60/01/16, SOAS Library Special Collections, London.

77. Native Courts Proclamation (No. 2/1900) (N.Ng.).

78. Milner, Alan, African Penal Systems (London: Routledge and Paul, 1969). See also Eltantawi, Shariah on Trial, 121.

79. Section 13 of the Native Courts Ordinance. See the Hassane of Fura case and Katsina NA v. Yakudi of Hababa and Dankoko of Renage.

80. Lugard, Political Memoranda, 93–94.

81. Lugard, Report on the Amalgamation of Northern and Southern Nigeria, 1914.

82. Clifford's ideas did not receive the support of the Colonial Office the way Cameron's did.

83. Prior to being governor, Cameron had accumulated experience in many phases of colonial administration in Southern Nigeria and Tanganyika, neither of which featured the Lugardian brand of indirect rule.

84. Elias, Taslim O., The Nigerian Legal System (London: Routledge & Paul, 1963).

85. H.D. Hooper to WRS Miller, June 9 1931. IMC-CBMS/01, SOAS Special Collections, United Kingdom.

86. Cameron, Donald, “Native Administration in Tanganyika and Nigeria,” Journal of the Royal African Society 36 (1937): 329, at 23.

87. The 1933 Native Courts Ordinance.

88. For example, although Cameron's initial plan was to strip all emirs’ courts of jurisdiction over capital matters, he acknowledged that “it is quite impossible to withdraw this power over which they have exercised the full consent of the Government for over thirty years” and opted to reduce the number of emirs’ courts with jurisdiction over capital cases from twenty-three to sixteen. Brooke Commission Report, 186.

89. The stage for this dichotomy between the “establishment” and the opposition was set by the design of colonial indirect rule. For an account of how colonial rule created a dichotomy between “good Muslims” and “bad Muslims,” on the basis of alignment with the Masu Sarauta, see Reynolds, “Good and Bad Muslims.” For an account of the Masu Sarauta's utilization of siyasa to repress opponents in the postwar period, see Reynolds, Jonathan, The Time of Politics (Zamanin Siyasa): Islam and the Politics of Legitimacy in Northern Nigeria, 1950–1966 (San Francisco: International Scholar Publications, 1999), 1.

90. Muslim Court of Appeal decision, CNC/0101 Misc. KAD MIN JUS, in Gloster, The Evolution of Maliki Law, 230. See also Willink Commission Report, 69.

91. Colonial administrators could not always decisively reprimand the over-reach tendency of emirs. For example, when the emir of Kano convicted five political opponents of “holding a political meeting without a permit” the Resident, Richard E. Gresswell criticized the emir, pointing out that he had no power, save with regard to offenses that had fixed penalties, to award more than twelve strokes on a single person at a trial. He also informed him that he was at a risk of being ordered to pay damages if the defendants appealed the decision. In response, the emir insisted that he had acted within his authority citing Tabsirat al-Hukam, a Maliki text. KSHCB, “Native Courts Policy and Instructions,” June 29, 1956, in Reynolds, The Time of Politics, 93.

92. For a comparison of Cameron and Lugard's relationship with Christian missionaries, see Akande, “Navigating Entanglements.”

93. According to Hugh Middleton, the resident, Eluaka had failed to pay a tax levied on his ownership of two plots of land in Bukuru, Pleateau Province, a Type II area. Eluaka informed the native chief that he could not afford to pay the tax.  Alongside three Muslim natives, he was charged to an alkali court.  During the proceedings, the four defendants did not “seem to take the alkali's warnings seriously,” so the alkali issued a final warning: “If the four of them did not pay their taxes in six hours, he would have them arrested and publicly flogged.” When they did not comply with the order, they were arrested, hauled to a public square, and flogged. Within a few hours, they paid their taxes in full. Public Record Office File, CO 583/190/1130 (1933), 2 in Gloster, The Evolution of Maliki Law.

94. “The Bukuru Tax Flogging Case,” a June 24, 1933 account in West Africa Magazine, 614.

95. Not all administrators blamed the alkali. For example, the Acting Secretary of the Northern Provinces, Herbert B. James, observed that the alkali had considered the sentence justifiable according to al-Mukhtasar, a Maliki text. Further, the alkali believed that Eluaka and his codefendants had considered the fine to be “a laughing matter.” Confidential Memorandum signed by H. B. James, Acting Secretary of Northern Provinces, No. 19062/26, April 4, 1933, Public Record Office File, CO 583/190/1130 (1933), 13.

96. See Effiong Ekpo v. Kano Native Authority (1957) N.R.N.L.R. 129 in which the High Court of Northern Nigeria, held that contrary to the appellant's assertion that the Emirs’ Court had no jurisdiction over non-Muslims, the Emir's Court had jurisdiction to apply Islamic law “over all persons who are within the Native authority's jurisdiction and whose general mode of life while there is that of the general native community,” 130.

97. These courts’ application of Islamic law was, as previously, limited by the repugnancy test (measured by “natural justice, equity and good conscience”). They were also required to apply certain ordinances. Native Courts Ordinance of 1938.

98. Bryan Sharwood Smith, Lieutenant-Governor, Northern Nigeria (1954–57). Sharwood-Smith, Bryan, But Always as Friends: Northern Nigeria and the Cameroons, 1921–1957 (London: Allen & Unwin, 1969), 282.

99. Anderson, Islamic Law in Africa, citing Magudama v. Bornu NA, 1946 decision of the West African Court of Appeal, unreported.

100. Tsofo Gubba v. Gwandu Native Authority (1947) WACA, vol. 12.

101. Scott, Peter H.G., A Survey of Islamic Law in Northern Nigeria in 1952 (Kaduna, Nigeria: Government Printer, 1953), 7.

102. Some emirs and alkalai interviewed by Schacht in his 1950 study stated that because the government had chosen to contravene the guarantee of noninterference by interfering with the courts, it was preferable to abstain from exercising jurisdiction rather than to apply “non-Islamic” law or be overturned on appeal. Stripping themselves of jurisdiction would take the matter “out of their conscience.” Schacht, “Investigation into the Application of Islamic Law in Nigeria,” 15.

103. Memorandum by Annur Tingary, Bashir El Rayah, and Mohammed Swar El Dahab “Extension of Jurisdiction of Native Courts” KANO PROF File #2182, 41–43, in Gloster, “The Evolution of Maliki Law in Northern Nigeria,” 40.

104. Bryan Sharwood-Smith, But Always as Friends, 282–84.

105. Fagoji v. Kano NA (1957) NRNLR. 57 (S.C.)

106. Maizabo v. NA (1957) NRNLR. 133 (S.C)

107. Brooke Commission Report, 185. The commission recommended that future alkalai be trained in customary law and apply it in matters involving non-Muslims. It also proposed the establishment of a Muslim Court of Appeal (created in 1956: Moslem Court of Appeal Law, No. 10, 1956). The emirs and alkalai remained unappeased because this court's decisions were appealable to the High Court.

108. Andrew Cohen, Assistant Under-Secretary of State in the Colonial Office's Africa Division, played an especially prominent role in channeling this anti-indirect rule current into legal reform. See Thompson, Todd, Norman Anderson and the Christian Mission to Modernize Islam (Oxford: Oxford University Press, 2018), 163–66.

109. Mantena, Alibis of Empire, 177.

110. Anderson, J.N.D., “Homicide in Islamic Law,” Bulletin of the School of Oriental and African Studies 13 (1951): 811–28, at 811–12.

111. Anderson, “Homicide in Islamic Law,” 815.

112. Thompson, Norman Anderson, 167, citing Anderson's letter to N.J. Brooke April 6, 1951.

113. See Thompson, Norman Anderson.

114. Anderson letter to N.J. Brooke April 6, 1951 in Thompson, Norman Anderson, 168.

115. Beyond the discretionary power of the ruler, Anderson argues that siyasa ought to encompass “a wider application of the principle that the Ruler may prescribe, in any point on which Muslim jurists have differed, which of the variant views is to be applied by the Courts.” In his view, this had been the basis of reform in Shari'a in Egypt and Middle Eastern countries. Anderson, J.N.D., “Islamic Law in African Colonies,” Corona, The Journal of His Majesty's Colonial Service 3 (1951): 265.

116. Ibid.

117. Robert Wray and Maurice Smith. Thompson, Norman Anderson, 180.

118. “Draft Confidential Dispatch to the Governor Northern region, Nigeria, for Clearance SECRET AND PERSONAL by the Governor Before Issue,” August 1957, London Private Collection of Ian Edge, Anderson papers cited in Thompson, Norman Anderson, 180.

119. See Willink Commission Report.

120. Sharwood-Smith to Macpherson, April 18 1957 NA/CO 554/1941 in Thompson, Norman Anderson, 179.

121. Besides Justice Abu Rannat, the members of the panel included Anderson; Justice Mohammed Sharif, the Chairman of the Pakistan Law Commission; Shettima Kashim the Waziri (Vizier) of Borno Province, Peter Achimugu, a prominent Christian politician in the ruling Northern People's Congress and Mallam Musa, the Chief Alkali of Bida.

122. Report of the Panel of Jurists, September 10, 1958, PPMS 60/01/01, John Anderson Collection, SOAS, London.

123. The Indian Penal Code's provisions were inspired by the Common Law as well as statutes in England and North America including the Louisiana Civil Code and the New York Code.  Mawani and Hussin, “The Travels of Law,” 741.

124. Attorney General H.H. Marshall to the Panel of Jurists, September 10, 1958, in Ostien, Philip, ed., Sharia Implementation in Northern Nigeria 1999–2006: A Sourcebook, vol. I (Ibadan, Nigeria: Spectrum), 5960.

125. See also Anderson, J.N.D., “A Major Advance,” The Modern Law Review 24 (1961): 616–25.

126. See Price, Justin, “Criminal Law Reform in Northern Nigeria Retrograde Legislation in Northern Nigeria?The Modern Law Review 24 (1961): 604–11. See Anderson's response in Anderson, “A Major Advance.” Defending the panel's work, Anderson argued that although the panel had, in deference to the Masu sarauta included certain provisions, which may “outrage a lawyer trained in Anglo-Saxon notions of justice,” the code was a “great advancement.” For the response of a northern elite, see Bello, Ahmadu, “Reply to Mr. Justin Price's Attack,” in Bello, Ahmadu, Work and Worship: Selected Speeches of Sir Ahmadu Bello, Sardauna of Sokoto (Zaria: Gaskiya Corporation, 1986), 225–32.

127. Dudley, Billy J., Parties and Politics in Northern Nigeria (London: Routledge, 2013).

128. Ahmadu Bello, “Speech to Assembly on Legal Reforms on December 12, 1958,” in Bello, Work and Worship, 222. On Bello's moves between “reform” and “tradition,” see Paden, John, Ahmadu Bello, Sardauna of Sokoto: Values and Leadership in Nigeria (Zaria: HudaHuda, 1986).

129. Bello, “Speech to Assembly,” in Bello, Work and Worship, 221, 223.

130. Paden, Ahmadu Bello, 210–11.

131. Reynolds, The Time of Politics, 101.

132. See Asad, Formations of the Secular; Mahmood, Religious Difference in a Secular Age; Agrama, “Secularism”; Salomon, For Love of the Prophet; and Galanter, “Secularism.” For prominent liberal accounts, see Rawls, John, Political Liberalism (New York: Columbia University Press, 2005); Taylor, Charles, “Modes of Secularism,” in Secularism and its Critics, ed. Bhargava, Rhajeev (New York: Oxford University Press, 1999); Ackerman, Bruce, Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980); and Smith, Donald Eugene, India as a Secular State (Princeton, NJ: Princeton University Press, 2015).

133. Adcock, The Limits of Tolerance, 25.

134. In Samuel Moyn's account, this was true of Europe. Contrary to the association of Christianity with secularism by the new wave of secularism critiques, Moyn argues that Christianity's “religious freedom” project “was most often intended … to marginalize secularism.” This was especially the case in the transwar and postwar periods when the religious freedom project (that culminated in the adoption of Article 18 of the Universal Declaration of Human Rights) set out to protect Christianity against the onslaught of secularism. Moyn, Samuel, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015), 139–67.

The author thanks David Kennedy, Duncan Kennedy, and John Comaroff for several intellectually stimulating discussions that inspired this article. The author is also indebted to Intisar Rabb, Kimberly Wortman, Kristen Stilt, Mitra Sharafi, Noah Feldman, and Priyasha Saksena for their helpful comments and is grateful to the Weatherhead Center for International Affairs, Harvard University and Harvard Law School Program on Law and Society in the Muslim World, for funding the research necessary for writing this article. Finally, the author thanks the anonymous reviewers of this piece for their valuable comments.

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