This pioneering volume brings together a diverse group of students of Islam, Islamization, and Islamic law to tackle a subject of great importance. Jeppie, Moosa, and Roberts divide the volume into colonial and postcolonial situations, and their contributors touch on key areas: the Sudan, East Africa (Kenya and Tanzania) and South Africa, and on the other side of the continent Nigeria, Niger, Mali, and Senegal. The Horn of Africa is not treated, but it is hard to envision someone working up an article for any portion of this area. I have some regret that no one dealt with a Saharan case and nomadic society, such as Mauritania, but this obviously falls outside of sub-Saharan Africa.
Some contributions treat the application of Muslim law to whole areas and long periods, such as Jeppie's piece on the Sudan or Allen Christelow's on Northern Nigeria; some are focused on single courts, such as Ghislaine Lydon's article on the Muslim Tribunal of Saint-Louis, or on short periods of time, such as Roberts's focus on the Native Courts of French Soudan between 1905–12. Two articles focus on the Muslims of the Cape in South Africa. Shouket Allie summarizes the history of Muslims and Muslim law in the Cape, with attention to the South Asian immigrants who constitute the initial leadership and Dutch and British policy, and brings the story up to the end of apartheid. Moosa focuses on the contemporary situation, and the opposition of conservative ulama to the implementation of a new Muslim Personal Law.
Jeppie, Moosa, and Roberts have written a substantial introduction which makes the collection hold together. They are especially good on the varied forms of Sharia and on the impact of European influence on the application of Sharia in the last three centuries, up to and through colonial rule, and on the divide between more traditionalist and more reformist Muslim authorities. The trio pays considerable attention to the deep British precedents in South Asia and the more shallow French ones in Algeria, and follows the application and modification of those precedents in sub-Saharan Africa around such prominent figures as Frederick Lugard. They give considerable space to Sudan and Northern Nigeria, arguably the most important arenas of practice of Islamic law by virtue of their demography and influence.
The editors are particularly acute on the ways in which European rule affected the implementation of Islamic law: by removing criminal law from the jurisdiction of Muslim courts and applying definitions of repugnancy; by the dissemination of abbreviated codes of Islamic law to European and Muslim judges, which had the effect of freezing the application of that law; and by instituting a right of appeal to the secular courts of the colonial regimes. The appeal of the Tsobo Gubba case in Nigeria, originally decided in 1948, is still reverberating through that system. The editors show the strong continuities between the colonial and postcolonial periods, and the transfer of institutions and problems, but are alert to the pressures which more Islamist constituencies have brought to bear in recent decades – especially on family law. Finally, they suggest appropriate avenues of research for the future.
The contributors converge around a number of common findings, across the various territories, colonial powers, and periods. Most diminish the oft-touted distinction between direct and indirect rule, and its correlation with French and British practice, respectively. The key factor is the local context. In the early years, colonial authorities often did intervene to arrest, try, and sentence offenders, in summary ways. Over time, however, they became more determined to limit expenditures and the deployment of European officials, and more confident of their knowledge – even if erroneous – of custom and culture. They began to trust certain local authorities, or at least their own ability to control these authorities. The authors spend considerable time on the interwar period, when the collection of information about ‘custom’ and the use of ‘native’ and ‘customary’ courts were emphasized, often to the detriment of Sharia courts (and even though Islamic law was often present in the formulations of custom, just as custom had been incorporated into the Sharia over the centuries). At the same time, as Barbara Cooper shows in her contribution, the distinction remained between a more robust use of native authorities in British Nigeria and a more interventionist practice in French Niger. Abdulkadir Hashim finds the British intruding heavily into the qadi courts of coastal Kenya. One cannot generalize about any one colonial power and its approach to Islamic law and custom.
All of the European authorities, including the Dutch, did have strong suspicions about Islam and Islamic law, and sometimes these bordered on fear and panic. At the same time they considered Islam and Muslims to be superior to ‘animism’ and non-Muslims, and showed grudging respect for the textual basis of the Sharia. Over time they tended to codify it and to diminish the area of its application. As Jeppie shows, Lord Cromer gave strong assurances to the Muslims of the Sudan that Islam and Islamic law would be respected, appointed an Egyptian head qadi, and established a school for training qadis in Khartoum. Most of this system survived the colonial period, but the qadi training was ended, some Sharia courts were closed and a more customary system was emphasized in the interwar period. The same pattern of increasing limitation occurred in Kenya, for the chief qadi and the qadi courts and the Muslim societies that dominated the coastal region, which is the subject of the articles of Hashim, Hassan Mwakimako, and Susan Hirsch.
Allen Christelow's article on Northern Nigeria develops some of the most important themes of the introduction. Although Christelow begins with the creation of variants of Sharia law in Northern Nigerian provinces in recent history, he is aware of the long and complex development of Sharia law, including its Maliki variant practiced in most of Africa, and how that heritage was strengthened under the Sokoto Caliphate in the nineteenth century. He sets out the difficulty of modifying and applying this heritage under British colonial rule and in independent Nigeria with its diverse ethnic, religious, and political motivations. The result is a much nuanced discussion of the Sharia courts of the turn of this century and the highly controversial cases which they adjudicated, especially those of women accused of adultery – and the interventions of the Nigerian Federal authorities.
The three female contributors, Cooper, Lydon, and Hirsch (she compares Muslim family law in its application in Kenya and Tanzania) pay particular attention to the situation of women and their use of Muslim courts and family law. Hirsch in particular rejects the distinction often made between Islamic courts which favor men and customary courts where women have recourse, and shows the success of women in divorce and custody questions before the qadi courts of Kenya. Lydon provides the most extensive review of one court, the Muslim Tribunal of Saint-Louis, and again shows the success of women litigants responding to situations of abandonment. But in both cases the jurisdiction of these Muslim courts was increasingly limited by the colonial or postcolonial regimes.
Muslim Family Law frames an important area of research, makes significant contributions to the understanding, context, and practice of the courts, and charts the most promising lines of future inquiry. One could hardly ask for more.
