Islam and Constitutionalism in African Contexts

In light of the preceding review of the postcolonial experiences of Sudan, Nigeria, and Senegal, with special attention to the most critical issues of Islam and constitutionalism in each case, I will now attempt a synthesis and some comparative analysis, subject to the caveat that the success or failure of constitutionalism will always be specific to each context, as no two countries are exactly alike.

My analysis of the relationship between Islam and constitutionalism is premised on the view that it is problematic when Islam is taken to be synonymous with historical understandings of Shariʿa that are fundamentally incompatible with fundamental principles of constitutional governance. As I have explained earlier and elaborated elsewhere (An-Naʿim 1990), the main concerns here include the lack of institutionalized accountability for the government, and serious discrimination against women and non-Muslims. For example, women and non-Muslims are deemed by traditional formulations of Shariʿa to lack the capacity to hold certain types of public office, denied competence to testify in trials for capital offenses (hudud), and the monetary compensation to be paid for their homicide is less than that paid for Muslim men.

To mediate such tensions in the relationship between Islam and constitutionalism in Islamic societies, I am proposing a deeply contextual understanding of secularism that seeks to establish an institutional separation of Shariʿa and the state, while addressing the unavoidable connections between Islam and politics. As discussed in Chapter 4, the first aspect of this view of secularism requires the categorical repudiation of the myth of an Islamic state that would enforce Shariʿa as a matter of state policy and positive legislation. In my view, the notion of an Islamic state as a political institution is conceptually impossible, historically inaccurate, and practically not viable today (An-Naʿim 2000). It is conceptually impossible because enforcement through the official institutions of the state is by definition the negation of the religious nature of Shariʿa. In other words, the enactment of a purported Shariʿa principle as positive law makes it applicable as the expression of the political will of the state, rather than by virtue of the religious beliefs of Muslims. The idea of an Islamic state in this sense also has no precedent in Islamic history and is practically untenable in the present context in which Muslims everywhere live today.

The repudiation of the idea of an Islamic state must nevertheless be reconciled with the unavoidable reality, and desirability in my view, of the political role of Islam in present Islamic societies. To begin with, the assertion of separation of Islam and the state can only be meaningful where it is widely perceived as legitimate from a religious and cultural point of view. Muslims will not observe the constitutional principle of the institutional separation of Islam and the state if it is believed to be inconsistent with their religious beliefs and cultural norms and institutions.

But how can the institutional separation of Islam and the state be maintained in practice in view of this unavoidable and appropriate connection between Islam and politics? There are two aspects to my response to this question. First, this is a permanent dilemma facing all societies and religious traditions, whether Christianity in the United States or France, Hinduism in India, Judaism in Israel, or Islam in Sudan, Nigeria, and Senegal. All societies have to struggle with this dilemma constantly, shifting back and forth between a stronger or weaker influence of religion on public policy. I am not suggesting here that the issues are exactly the same for different societies or indeed for the same society at different times in its history.

If we consider the three countries in question from this perspective, the case of Sudan highlights the profound constitutional problems raised by attempts to create an Islamic state that enforces Shariʿa as state policy and positive law. Nigeria illustrates the difficulties of accepting a political role for Islam while resisting the enforcement of Shariʿa by the state. Finally, the post-independence experiences of Senegal demonstrate the complexity of establishing and sustaining a secular state that balances the separation of Islam and the state against the realities of a political (and economic in this case) role of Islam. Now let me elaborate on these three situations.

In relation to Sudan, I would first suggest that peace and national unity in Sudan cannot be achieved or maintained on the basis of the establishment of an Islamic state and application of Shariʿa, simply because to do so is to repudiate any foundation for self-determination for women and non-Muslim citizens. The fundamental right of peoples to self-determination is the rationale and purpose of constitutional government and all its powers and functions. Self-determination is also the rationale and guide everywhere in the world today for setting and implementing public policy through the political process, regulation of economic activities, and provision of essential services like health and education,.

Moreover, since unity or separation are only means for the realization of the right to self-determination, rather than ends in themselves, any constitutional regime must always be judged by its ability to effectively realize this right for all segments of the population of the country. Self-determination must also be the guiding principle of the peace process in Sudan, whether the country remains united or the South becomes a separate state. An Islamic state enforcing Shariʿa is simply incompatible with any possibility of self-determination and equal citizenship for all Sudanese. For instance, political opposition by a Muslim to an Islamic state and its mandate to apply Shariʿa could be prosecuted as the capital offense of apostasy, punishable by death under section 126 of the 1992 Sudan Penal Code.

In my view, moreover, proposals to apply Shariʿa in the northern part of Sudan, while “exempting” the South, are still incompatible with self-determination within a united Sudan for two main reasons. First, applying Shariʿa in any part of the country will violate the basic citizenship rights of those non-Muslim Sudanese who live in that part of the country. What does unity mean if non-Muslim Sudanese cannot live in any part of the country they choose without losing their basic rights as citizens? Second, representing Shariʿa as the local state legal system in a federal regime like that of the United States does not resolve the question of what legal system applies at the national federal level.

As noted earlier, the case of Nigeria illustrates the difficulties of accepting a political role for Islam while resisting the enforcement of Shariʿa by the state. At one level, one can apply the preceding analysis in order to urge efforts to avoid the decline of the situation in Nigeria as a whole to the sort of multiple and persistent crises of Sudan. In other words, one can point to the drastic consequences for national unity and political stability of Nigeria as a whole of the official enforcement of Shariʿa by the Northern states. But that does not address the question of how to provide for a political role for Islam as part of a deeply contextual understanding of secularism in Nigeria, as I have suggested earlier, if that does not include the enforcement of Shariʿa by the state. In other words, the apparent quandary is that the enforcement of Shariʿa by the Northern states threatens the peace and unity of the country, while denying those states apparently violates their right to self-determination in terms of an Islamic identity. The way to mediate this quandary, it seems to me, would consist of two elements, namely, a strong political and legal commitment to the institutional separation of religion and the state, on the one hand, and the implementation of Islamic reforms to reconcile Muslims’ understandings of Shariʿa with constitutional principles (An-Naʿim 1990). Such reforms would enable Muslims to act politically in accordance with their religious beliefs without undermining constitutional principles.

The first part will have to be implemented by the federal and state governments throughout the country, equally and consistently in relation to all religions, not only Islam. That is, the institutional separation of religion must be rigorously enforced by the federal government throughout the country, especially in relation to Christianity and Islam as the two competing religions. The same policy must be enforced by every state government within the Federation of Nigeria, again especially in relation to the two major religions. The second element in the proposed policy should be adopted by political parties and social movements throughout the country, especially in states and regions where the separation of religion and state is being challenged.

The experiences of Senegal in relation to Islam in particular could be instructive for the proposed process, in terms of the possibilities and risks of a political role for religion in Nigeria. First, it seems clear that a strict interpretation of religious texts tends to undermine constitutionalism, especially when that leads to the total conflation of religion and government. Second, Sufi Islam appears to be more open to diverse interpretations and therefore more adaptable to the separation of state and religion. Third, a mutual accommodation between state and religious authorities operates best as an informal, tacit understanding, rather than in official or institutional terms. Fourth, an economic and social role for religious authorities can facilitate the autonomy of religious communities, which will reduce the importance of direct control of the state apparatus. The more the state accepts and supports an independent economic and social role for religious leaders, the less interest or benefit will the latter see in attempting to control the state. In other words, there is a subtle distinction between the democratic value of seeking to influence government, on the one hand, and the authoritarian tendency to seek exclusive control of government to pursue the narrow interests of some segment of the population, on the other. The former is legitimate and constructive from a constitutional point of view, while the latter will probably lead to sharp confrontations with other constituencies, thereby undermining political stability and economic and social development for the country as a whole.

In concluding this chapter, I would emphasize that conflict over questions of public policy, allocation of resources, and so forth is a permanent feature of all human societies. The basic issue for constitutional resolution is how to mediate the variety of competing claims and interests in a given situation in a sustainable, peaceful, and orderly manner. A good constitution can be a useful framework for the transformation and mediation of conflict, but it cannot be a substitute for the political will and determination to achieve those essential objectives of coexistence. However perfect it may look on paper, no constitution can survive the absence of the political, institutional, and cultural conditions necessary for its successful application on the ground. But given the existence of the necessary degree of such conditions in a country like the Sudan, Nigeria or Senegal, a good constitution can contribute to the promotion and consolidation of those conditions themselves, as well as support other initiatives for sustainable peace, national unity, political stability, and economic and social development. In other words, the proper functioning of a good constitution is contingent on the existence and sustainability of certain conditions, at the same time being a vital resource for realizing and sustaining those conditions in a given situation.

While there may be strong indications of the existence of those prerequisite conditions on the ground in any of these countries, it is difficult to verify and assess whether such conditions exist to the necessary minimal degree except through the practice of constitutionalism over time. In other words, it is not possible to ascertain conclusively the existence of the necessary minimal conditions for successful constitutional governance except in retrospect, reflecting back as the process continues. As such, constitutionalism is necessarily an act of faith — propelled by the strong realization that the present state of civil war, economic stagnation, and social collapse in the Sudan, or the risk of similar outcomes in Nigeria and Senegal, cannot be tolerated. Yet, it would be irresponsible and probably counterproductive to approach the matter in a spirit of naive optimism or with an inadequate appreciation of the difficulties facing this project in any Islamic society. Consequently, any viable proposal for mediation would need to strike a balance between assuming the existence of these conditions, on the one hand, and a clear appreciation of the hypothetical nature of this assumption. Given the difficulty of verifying the validity of that assumption, and the essentially incremental nature of the process of developing constitutionalism in each particular context, as emphasized throughout this book, I should not attempt to speculate here about precise constitutional and practical scenarios for each of these countries. Recalling my remarks about the role of human agency in chapter 4 it is up to Muslims in these societies to develop and implement the necessary strategies of mediation. Comparative analysis and assessment by observers can play a positive role in these processes, as discussed earlier, but should not attempt to formulate categorical judgments of success or failure, as the process continues.