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VIII. The enforcement of Shari’a and the role of the hisbah

In most northern states, hisbah and Shari’a implementation committees have been given the task of enforcing Shari’a and ensuring that the population observe it in their day to day activities. 

The Arabic term hisbah means an act which is performed for the common good, or with the intention of seeking a reward from God.  The concept of hisbah in Islam originates from a set of Qur’anic 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.”²⁰⁵ 

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 in order 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 with a view to preventing crime.  However, some vigilante groups, such as the Bakassi Boys in the southeast and the Oodua People’s Congress (OPC) in the southwest, have committed numerous extrajudicial killings and other abuses, and have been diverted to serve political interests.²⁰⁶  The hisbah share some characteristics with these groups but there are also significant differences.  Like other vigilante groups, the hisbah are made up mostly of locally-recruited young men who usually patrol their own neighborhoods and sometimes instantly administer punishments on people suspected of carrying out an offense, without, or before, handing them over to the police.  Hisbah members have been responsible for flogging and beating suspected criminals, but Human Rights Watch is not aware of reports of killings by hisbah members, in contrast with the Bakassi Boys or the OPC.  Hisbah members may carry sticks or whips but unlike some vigilante groups in other parts of Nigeria, they do not usually carry firearms.

Most hisbah members were recruited at the local level, by traditional leaders and local governments, who then submitted the lists of names to their state government.  Even though there are some teachers and people versed in Islamic law among the hisbah, the majority are young men with a low level of formal education, no background in law, and no training in law enforcement or procedures for arrest, investigation, or gathering of evidence.  Human Rights Watch is not aware of any women joining the hisbah in Nigeria, although neither the Qur’an nor the Hadith prohibit women from doing so, and the call to act for the common good is addressed to all Muslims, whether male or female. 

The hisbah operate openly and are easily recognizable:  they are provided with uniforms, vehicles, and an office, usually by the local or state government. In some states, the government pays them a small salary.   The hisbah have structures at local government and state level.  Some are directly supported by their local government (materially and financially), while others, such as the hisbah in Kaduna, claim that membership and participation are voluntary and unpaid.  The hisbah operate with the full consent and support of the state government, although the exact nature of their relationship with the state government varies and mechanisms for accountability are not always clearly defined. 

State government officials and other individuals interviewed by Human Rights Watch claimed that the activities of the hisbah were governed by regulations and a code of conduct, developed at the state level; however, despite many inquiries in several states, Human Rights Watch was not able to find any legislation governing their activities by mid-2003.  Human Rights Watch was told that state governments had only issued “legal notices” to set up the hisbah—a form of subordinate legislation issued by the state governor, which, unlike laws, are not submitted for debate to the state houses of assembly.²⁰⁷  Eventually, the Kano State House of Assembly passed a law in late 2003 regulating the hisbah; it includes the creation of a board composed of representatives of the main security agencies (including the police and the intelligence services) to oversee the hisbah and ensure that they are carrying out their duties properly.²⁰⁸    

Shari’a implementation committees were set up just before the Shari’a legislation was introduced.  They were given responsibility for overseeing the activities of the hisbah.  Their members were selected by state governors and include religious leaders, lawyers, and civil servants.  In addition to supervising the hisbah, they also advise state governors on the implementation of Shari’a. 

In late July 2003, the Zamfara State governor announced the creation of a new hisbah commission and several other commissions to regulate and monitor the application of Shari’a in the state. At a public gathering in Gusau on July 28, he outlined the functions of the hisbah commission.  These included, among others, monitoring the implementation and application of laws relating to Shari’a; ensuring proper compliance with the teachings of Shari’a by workers in the private and public sector; monitoring the daily proceedings of Shari’a courts to ensure compliance with the Shari’a penal code and code of criminal procedure; reporting on all actions likely to tamper with the proper dispensation of justice; keeping a record of all people in prison with pending hudud cases; taking every measure to sanitize society of all social vices and whatever vice or crime is prohibited by Shari’a; taking every measure to ensure conformity with the teachings of Shari’a by the general public in matters of worship, dress code, and social and business interaction and relationships; and enlightening the general public on the Shari’a system and its application.²⁰⁹

Despite the absence of legislation governing their activities in most other states, hisbah members and members of the general public in the areas where they operate interviewed by Human Rights Watch appeared to share a common understanding of certain rules governing their behavior, even if these are not always observed in practice.  For example, it was understood that the hisbah effectively have powers of arrest if they catch a person in the act of committing a crime, and are supposed to hand the suspect over to the police.  They are not supposed to take the suspect straight to court or administer the punishment themselves.  While they are expected to arrest criminals, they are not supposed to enter people’s private homes or spy on them merely on the basis of suspicion.  In practice, however, the hisbah have often disregarded these and other guidelines and violated people’s right to privacy.  For example, residents reported that the hisbah would sometimes go from house to house, checking that people were not committing offenses, and in some cases searching for particular individuals on the basis of denunciations from other residents.  Similarly, as in the cases of both Amina Lawal and Safiya Husseini, the hisbah were instrumental in apprehending the women after people had denounced them to the hisbah for committing adultery—even though they do not have the right to question women on how they became pregnant.  However, in at least one case in Zamfara State in 2000, it was reported that a hisbah member who had reported the case of a woman seen with a man in a room was himself charged, admitted that he had spied on the woman, and was flogged.²¹⁰

A local hisbah leader and schoolteacher in Kaduna described the main duty of the hisbah as one of guidance and education in relation to Shari’a.  He told Human Rights Watch that their function was to ensure that Islamic law was implemented, and to enlighten people “to prevent them from going the wrong way.”  He said: “If someone commits a mistake, it is the duty of the hisbah to tell them it is unlawful.  If the person changes his conduct, then it’s OK.  If he doesn’t or continues making the mistake, it is the duty of the hisbah to report him.  But the hisbah is not the police or the army.  They just have a duty to guide people the right way.  If a person offends once or even twice, they don’t apprehend him.”²¹¹  A hisbah leader in Kano gave a similar explanation of their duties:  “Enforcement is done by the police and the courts. The hisbah is not a law enforcement agency per se.  It is a supportive agency.  If they apprehend someone, they preach to them.  If the person refuses to change their ways, they hand them to the police […] The hisbah are supposed to draw attention to transgressions.  They enjoin people to do good or preach to prevent them from doing bad.  In Shari’a, there is room for advice before you get to the courts.”²¹²  In practice, however, the hisbah have often abused this role and acted as a law enforcement agency.

There appears to be little or no structured training program for the hisbah.  In some states, their members receive a brief outline of their duties, but do not receive substantial training, even though they are expected to monitor implementation of the law.  A hisbah leader in Kaduna told Human Rights Watch that once they have been recruited, hisbah members are given a handbook in Hausa on the definition and duties of the hisbah, and other guidelines, such as how to approach people in the right manner.  They are also given a lecture on their duties.  He claimed that if a hisbah member committed a mistake, he would be punished, and if he repeated the mistake, he would be expelled.²¹³   By mid-2003, the hisbah had not yet received any formal training, but state governments had asked the faculty of law at Ahmadu Bello University in Zaria, in coordination with the Centre for Islamic Legal Studies, to train hisbah in all the states.²¹⁴

In the first one to two years after Shari’a was introduced, from 2000 to around 2002, there were numerous reports of abuses by the hisbah.  Hisbah members would frequently arrest people and flog them or beat them on the spot, for a variety of offenses.   In states such as Zamfara which prohibit men and women from traveling together in public, there were often cases where hisbah would stop vehicles carrying men and women and make the women disembark.  They would also sometimes disrupt conversations between men and women in public places, on the grounds that such gatherings were immoral.  There were cases where the hisbah used violence when seizing consignments of alcohol, sometimes destroying the alcohol and damaging the vehicles transporting it. 

In the period immediately following the introduction of Shari’a, there were also cases where young men who may or may not have been members of the hisbah took the law into their own hands and attacked people for violating the Shari’a codes.  There were several such cases in late 2000 and early 2001 in Kano State.  For example during this period, in the neighborhood of Goron Dutse, Kano town, a man accosted a young couple who were talking outside a house and said to them:  “Don’t you know we have Shari’a?  You can only court in the morning or in the afternoon.”  He slapped the young man and left.  In another case, in a neighborhood known as Brigade, a young Muslim man was accused by other Muslims of bringing his girlfriend into the school; they punished him by burning his room.²¹⁵   On December 31, 2000, a group of youths broke into the house of a Christian man, Livinus Obi, who had bought alcohol to celebrate the New Year.  Even though Christians are not bound by Shari’a, the youths searched Livinus Obi’s house, and after finding some alcohol, pinned him to the ground and beat him.  The youths were  arrested and taken before the Shari’a court.  However, Livinus Obi later dropped the case, reportedly because he felt he did not have enough support from his own community to see it through.²¹⁶

A proliferation of such incidents, where young men began taking the law into their own hands in the name of Shari’a, led the Kano state government to create an officially-recognized hisbah, in an attempt to regain control over the situation.  However, some of the more ardent proponents of Shari’a were not satisfied with this official hisbah, and accused it of not doing enough to prevent consumption of alcohol, prostitution, and other practices considered unlawful.  A group of individuals set up a second, independent hisbah, which, for a while, was operating in parallel with the official hisbah in Kano State.  Both the official and the independent hisbah had their own members, structure and governing committee.   Initially, there were tensions between the two groups, but by mid-2003, sources in Kano reported that the relationship had improved, and that the two hisbah had effectively merged.²¹⁷ 

Since 2003, abuses by the hisbah appear to have decreased.  Although hisbah members have continued to ill-treat people in the course of arresting them, and to invade people’s privacy on suspicion that they may have been committing an offense, such cases have become rarer. When Human Rights Watch visited several northern states in the second half of 2003, residents reported that the hisbah were now less visible and less active in monitoring observance of Shari’a, and that their activities were confined to less controversial roles, for example ensuring security in public places, such as markets or public functions, or directing traffic. In Kaduna—where Shari’a is applied much less stringently than in other states—the hisbah appear to be barely active, even though they have a recognized structure and membership.  According to one resident of  the state capital, the hisbah in Kaduna were not recognized beyond the vicinity of the mosque and were not seriously involved in monitoring Shari’a or in carrying out arrests.²¹⁸ 

The relationship between the hisbah and the police has been complicated.  While the hisbah were set up by state governments, the police across Nigeria remains a federal institution, answerable to federal and not state structures. The existence of these two parallel structures, both of which have responsibilities for enforcing law and order, has resulted in conflicts of interest.  The police is seen as a secular institution, and includes both Muslims and non-Muslims. Unlike the hisbah, the police do not have the specific mandate to ensure enforcement and implementation of Shari’a; yet in twelve states, they are operating in a context where Shari’a is legally in force (under state legislation, even if there are doubts as to its status under federal law), and where they should therefore logically be trying to enforce it.  In practice, the police in the northern states have not taken on an active role as “Shari’a enforcers,” nor have they actively sought to enforce new codes of behavior which were introduced alongside Shari’a, such as dress codes for women, segregation of sexes in public transport, and strict prohibition of alcohol. 

There have been feelings of mutual suspicion and distrust between the hisbah and the police.   Some Muslim leaders believed that the police would try to sabotage Shari’a after it was introduced; indeed the hisbah were created in part because the police were not trusted to enforce Shari’a.   Nevertheless, when the hisbah have arrested people for criminal offenses and handed them over to the police, in many cases the police have taken on these cases and channeled them through the Shari’a jurisdictions.  Despite this, some advocates of Shari’a have complained of a lack of cooperation from the police, and have claimed that when the hisbah apprehend suspects and hand them over to the police, the police often fail to follow up the cases, or release the suspects. The police, on the other hand, have claimed that the hisbah often arrest people on frivolous grounds, or on suspicion of committing acts which are not criminal offenses. 

On some occasions, the conflicting interests of the police and the hisbah have led to outright clashes.  For example on May 30, 2003, in Hotoro, Nasarawa local government, Kano State, police officers clashed with members of the hisbah who disrupted a wedding party on the basis that it was an “immoral gathering”and that music was being played.²¹⁹  A group of about twenty members of the hisbah group from neighboring Tarauni local government entered the compound of Abubakar Mohammed Ahmed, who was hosting the wedding ceremony, beat and injured several people, including some of the musicians and other guests, and smashed musical instruments as well as the windscreen of a vehicle parked at the house.  According to the police, the hisbah were armed with knives, sticks, cutlasses, and long, curved weapons with a blade known as barandami.²²⁰  The incident was reported to the police the same day, and the police arrested about thirty members of the hisbah.  However, the police eventually agreed to release them all without charge.   A member of the hisbah from Tarauni local government told Human Rights Watch that Tarauni local government had passed a by-law banning immoral gatherings in 2002, following demands for such legislation from the local community.²²¹  However, Human Rights Watch later confirmed from Tarauni local government and from officials in the Kano state ministry of justice that no such by-law existed.²²²  

The hisbah have attempted to prevent music from being played in ceremonies in other states too.  For example, in Katsina State, in 2001, violent clashes were reported after musicians resisted attempts by the hisbah to prevent traditional musicians and praise-singers from operating.²²³  Also in 2001, it was reported that two musicians were tried by a Shari’a court in Funtua, Katsina State, and flogged for playing at a wedding ceremony.²²⁴   In Dutse, the capital of Jigawa State, in early 2003, a traditional ruler organized a wedding celebration for his daughter, at which music was played.  The hisbah came and tried to stop the celebration, but the traditional ruler’s guards chased them away.²²⁵ 

Like many other issues in Shari’a, the issue of “immoral gatherings” is surrounded by contradictory explanations and vagueness as to its exact legal position.   A statement by the Kano State Solicitor General to Human Rights Watch illustrates this confusion between on the one hand, interpretations of Shari’a and cultural or traditional practices or codes, and on the other, legal prescriptions:  “Mixed gatherings are not permitted but they are not prohibited in the law.”²²⁶  The Director of the Legal Drafting Department in the Kano State Ministry of Justice also claimed that Shari’a states that men and women cannot sit together in the same gathering and cannot dance or embrace each other; however, the Shari’a penal code for Kano State does not contain any reference to this issue.²²⁷ 

The hisbah and the police have sometimes also clashed over the enforcement of prohibition of alcohol.  A source in Kano reported that following an incident in the first half of 2003 in which the hisbah had destroyed a truck carrying beer, truck drivers in Kano were asking for police protection when transporting alcohol—a situation which had led to friction between the police and the hisbah.²²⁸ 

The hisbah are not the only group enforcing the prohibition of alcohol.  In Niger State, for example, a Liquor Board was set up by the state government on April 27, 2000. Later in the year, it was given the additional responsibility of eradicating prostitution.  The chairman of the Liquor Board explained that it was not part of Shari’a, but assisted with the implementation of Shari’a:  “We combat crime.  Liquor consumption is the mother of all crimes.”²²⁹  Niger State is divided into two areas:  prohibited areas, which cover a 80 kilometer radius around nine towns within which no alcohol can be sold at all; and licensed areas, where alcohol can be sold after obtaining a license.  The license fee is prohibitively high: between 200,000 naira and one million naira per year.  The Liquor Board had not received any applications by mid-2003.  Prior to granting a license, the Liquor Board would also have to seek the agreement of local residents on whether alcohol should be sold in these areas.

Members of the Liquor Board in Niger State have carried out arrests, usually following leads from a network of paid informants.  According to its chairman, arrests were sometimes carried out in conjunction with members of the hisbah, as well as police officers.  Like the hisbah, members of the Liquor Board are not supposed to enter people’s homes to check if they are consuming alcohol, unless they have been told that alcohol is also being sold there.  Although the Liquor Board has two prosecuting agents, who gather testimony and conduct investigations, the Liquor Board members do not have the powers to prosecute, and any cases should be handed over to the courts.²³⁰