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Towards a Fiqh al-Muwatana

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The following khutbah was delivered by Imam Rashid Omar from the Claremont Main Road mosque on Friday 29th July 2016.  Its titled ‘Towards a Fiqh al-Muwatana (Jurisprudence of Citizenship)’. 

On Wednesday, 3 August 2016, South Africans will convene our fourth non-racial municipal elections to elect new local councils for all municipalities in the country. In response to this occasion over the past weekend a Muslim wrote a letter to the Weekend Argus claiming that the Islamic shari`ah is incompatible with democracy, and so it is haram or impermissible for Muslims to vote in the upcoming local elections.

In contradistinction, last Thursday the 21st July 2016, the Muslim Judicial Council (MJC) hosted President Jacob Zuma, at which event senior MJC officials were openly calling on Muslims to vote for the African National Congress (ANC) in the upcoming local elections. Why does such contrasting views, which only cause confusion, still reign within the South African Muslim community twenty two years after the onset of a non-racial and democratic society?

Such confusion with respect to the Muslim role in the political realm is not unique to South African Muslims but it is a global problem. What is urgently needed is for contemporary Muslim scholars to develop a new fiqh on governance and political ethics i.e. an interpretation and application of the Islamic sources, the Glorious Qur`an and the authentic Sunnah, that resonates with our twenty-first century context. Thankfully, such a process is already a work in progress under the banner of fiqh al-muwatana, which can literally be translated as a jurisprudence of citizenship.

Lamentably, however, the fiqh al-muwatana endeavour is still undeveloped and not embraced by the majority of contemporary Muslim scholars. In this khutbah, I briefly describe the genesis and progress of this new fiqh al-muwatana (jurisprudence of citizenship). More importantly, I employ some of the foundational principles of this new fiqh al-muwatana in providing three specific guidelines that should inform the role and responsibility of South African Muslims during our for fifth non-racial and local elections that is scheduled to take place this Wednesday 3 August 2016.

Locating Our Topic within the Teachings of Islam
It might be expedient to begin by placing our khutbah topic within the framework of the teachings of Islam. One of the most basic Islamic conceptions is the distinction between matters that are ritualistic such as belief, prayer (salah), alms-giving (zakah), fasting (siyam) and pilgrimage (hajj), known as `ibadat, and those matters that are essentially non-ritualistic which serve tangible social goals and benefits, known as mu’amalat. The specific questions we address in this khutbah namely, is it permissible for Muslims to vote for the leaders of their choice in a democratic dispensation, and second which political party should we vote for, falls within the category of mu`amalat. Pertinently, this is an arena of fiqh in which classical Muslim scholars were more embracing of ijthad or innovative thinking.

Some modern Muslim scholars, such as the renowned Syrian, Shaykh Mustapha Ahmad al-Zarqa (d.1999), in his book, Al-Madkhalul Fiqh Al-`Am (An Introduction to Islamic Jurisprudence), has developed this classical distinction even further by sub-dividing the second domain of mu`amalat or social transactions, into six sub-categories. Consonant with this categorization our khutbah topic and our specific questions about voting in a democracy falls under a mu’amalat sub-category, known as Al-Siyasa al-Shar`iyyah or classically known as Al-Ahkam al-Sultaniyya. This sphere of fiqh can be equated in modern parlance with issues pertaining to Good Governance, Public Policy and Political Strategy.

Two of the most famous classical scholars that specialized in this domain are Abu Nasr al-Farabi (d. 950) and Abu al- Hasan al-Mawardi (d.1058). Al-Farabi wrote several books on political ethics in Islam including the famous text, Kitab al-Siyasat al-Madaniyya (The Book of Political Governance). Together with al-Mawardi’s works on Islamic governance, these texts are recognized as classics in the field of al-Ahkam al-Sultaniyya.

One of the most critical needs facing the South African Muslim community is to produce Muslim experts in the field of al-siyasa al-shar`iyya who are schooled in both the classical as well as contemporary thought on political philosophy, political ethics and governance. This should be a fard kifaya – a communal religious duty or social obligation – which if it is fulfilled by some, relieves all other members of the community of that responsibility.

The Genesis of Fiqh al-Muwatana (Jurisprudence of Citizenship)
In the first three centuries of Islam, the classical fiqh on ethico-legal guidance on governance and political ethics was forged by Muslim jurists primarily in response to the imperial and belligerent politics of the Ummayyad and `Abbasid caliphates on the one hand, and the Byzantine and Persian Empires on the other. According to this classical fiqh paradigm, the world was simply divided into a dichotomy of territories: the abode of Islam (dar al-islam) and the abode of war (dar al-harb). It was on the basis of this two-region paradigm that the entire edifice of classical Muslim philosophy and jurisprudence on governance and political ethics was built.

A number of contemporary scholars, such as the European Muslim scholar, Dr. Tariq Ramadan, and the Syrian-American scholar, Dr. Louay Safi, have rejected this outdated paradigm as having no basis in the Islamic sources. They argue that the classical fiqh is a product of the exigencies of the imperial politics pursued by the early Ummayyad and `Abbasid rulers. They have furthermore argued that since the classical fiqh was produced in a radically different context from the one within which we currently live, there is a need for a paradigm shift; i.e. a shift in thinking and praxis. Such a paradigm shift which reflects the new exigencies of the times in which we live will inevitably lead to a new fiqh i.e. a new interpretation of the Islamic sources in the field of governance and political ethics.

Among contemporary scholars who have produced innovative thinking in the field of Muslim political philosophy and ethics are the Egyptian scholar, Shaykh Yusuf al-Qaradawi and the Tunisian scholar/activist, Shaykh Rashid al-Ghanouchi. Shaykh Qaradawi in his book Al-Watan wa`l Muwatana fi Daw’ al-Usul al-`Aqliyya wa’l Maqasid al-Shar`iyya (2010) developed the notion of fiqh al-Muwatana (jurisprudence of citizenship) in which he makes a significant shift from his early paradigm of minority-ness (fiqh al`aqalliyat) towards an emphasis on the notion of citizenship (muwatana).

On the basis of his interpretation of Sahifat al-Madina i.e. the Constitution of Madina ratified between the Prophet Muhammad (pbuh) and the non-Muslims living in the city of Madina in the first century of the Hijra, Shaykh Qaradawi has shifted away from the dhimma model, where non-Muslims were protected but regarded as second class citizens under Muslim rule, to that of a regime of equal citizenship irrespective of religious affiliation. The rudiments of this new paradigm was, however, earlier eloquently elaborated by several Muslim scholars, including Shaykh Rashid al-Ghanouchi, in his 1993 book al-Hurriyat al-`Amma fi Dawlat al-Islamiyya (Freedoms under Islamic Governance). In this regard, Shaykh Ghanouchi’s leadership of the al-Nahda movement in post Arab Spring Tunisia has been path breaking and inspirational.

More recently, this new Muslim paradigm of equal citizenship for all citizens irrespective of religious affiliation, the foundational principle of fiqh al-muwatana, was given a big boost by the historic and inspirational Marrakesh Declaration (`Ilan Marrakesh) that was issued by over 300 Muslim scholars in Marrakesh, Morocco, on January 27, 2016. The aim of the Marrakesh conference was to call for full citizenship and equal rights to be accorded to all “Religious Minorities living in Predominantly Muslim Lands”. The renowned Mauritanian Shaykh Abdullah bin Bayyah spearheaded the Marrakesh declaration.

Yet more recently, former president of the Muslim Judicial Council, Maulana Ihsan Hendricks, speaking at the Claremont Main Road Masjid’s Annual General Meeting during Ramadan 2016, lauded the concept of fiqh al-muwatana for South African Muslims. He argued that embracing fiqh al-Muwatana would empower South African Muslims not only to live in peaceful co-existence with other religious communities but also to become active citizens in the shaping of the destiny of South Africa. He further argued that fiqh al-muwatana resonated well with the Cape Muslim context where “more than 50 percent of the Muslim community can trace their origins back to Christian families.”

Applying the Three Guiding Principles of Fiqh al-Muwatana to our Local Elections
As we have alluded to, fiqh al-muwatana (jurisprudence of citizenship) is a work in progress. As it currently stands fiqh al-muwatana is established on the firm foundation that all inhabitants of a nation state are equal citizens in shaping the destiny of their nation irrespective of their religious, racial or ethnic afflation.
In my view three of the most important principles that should undergird fiqh al-muwatana are, `adl or justice, shura or mutual consultation and hisbah or accountability. Applying these three Islamic principles to our forthcoming municipal elections I offer the following three specific guidelines.

First, the majority of contemporary Muslims scholars proclaim that the Islamic concept of shura, as presented in the Glorious Qur’an and exemplified in the practice of the Prophet Muhammad (pbuh), is compatible with the modern notion of participatory democracy. Contemporary Muslim scholars, such as Abdulaziz Sachedina in his book The Islamic Roots of Democratic Pluralism (2001), have pointed out that both the Islamic concept of shura and democracy arise from the central consideration that collective deliberation is more likely to lead to a fair and sound result for the social good than individual preference, and I would add, hereditary leadership.

The Arabic word shura, which literally means mutual consultation, appears three times in the Glorious Qur’an (2:233, 3:159; 42:38). In fact, the concept is so significant that chapter 42 of the Qur’an is titled surah al-Shura. In this chapter, God, the Lord of Compassionate Justice, describes shura as being one of the sublime characteristics alongside prayers and alms, which should adorn the lives of conscientious believers.

وَالَّذِينَ اسْتَجَابُوا لِرَبِّهِمْ وَأَقَامُوا الصَّلَاةَ
وَأَمْرُهُمْ شُورَى بَيْنَهُمْ وَمِمَّا رَزَقْنَاهُمْ يُنْفِقُونَ

[The Conscientious Believers are] those who hearken to their Lord, establish regular Prayer; who (conduct) their affairs by Mutual Consultation; and who happily give Alms out of what We bestow on them for Sustenance (Q42:38).

The Prophet Muhammad (may Allah’s everlasting peace and blessings be upon him) embodied this Qur’anic virtue of shura. Small wonder then that his companion Abu Hurayra, describes Prophet Muhammad’s disposition and governance as follows:

“I have never seen anyone who consults his companions as much as the Messenger of God” (Sahih ibn Hibban)

It should thus be crystal clear that Islam is fulsomely compatible with democracy. The second guideline based on fiqh al-muwatana that I wish to share, is that participatory democracy holds that the critical motor of social change does not lie in the support for this or that political party, but rather in holding politicians and parties accountable for their actions.

Fiqh al-muwatana thus does not begin and end with casting your vote. As a principle of fiqh al-muwatana, shura demands that we become active citizens who contribute to the building of consultative and transparent social institutions. By embracing participatory democracy we strengthen our capacity to root out corruption, to stem the tide of violence and crime and to better address the needs of the poor. Moreover, a vibrant and vocal civil society movement will ensure that the voices of the marginalized are heard, and that social justice becomes the impetus for all actions and policies.

The only real guarantee for healthy democracy is that of strong civil society that can hold those in power accountable for their moral and political mandate. The candidates that we will elect into government must be held accountable and the only way to do that is with strong civil associations – community based organizations, trade unions, masajid, school committees and sports clubs.

This leads me to my third and final guideline. As we exercise our democratic right to vote in the local elections on Wednesday 3 August 2016, we should be clear that there is no explicit textual evidence (nass) either from the Qur’an nor Sunna (prophetic traditions) that can be used to substantiate the view that Muslims should only vote for so-called Muslim parties or any other specific party for that matter. We must remain vigilant and repudiate unscrupulous politicians or even religious leaders who would abuse Islamic sources to coax Muslims into voting for their preferred party. In this regard it is important to note that if one votes for a particular party, it does not necessarily mean that one agrees completely with all of their ideology or policies.

Rather, I would urge us to consider the candidate (or party) who will best advance the cause of social justice for all and represents the best alternative among the various options. Muslim jurists (fuqaha) have always advocated the principle of realism represented in the juristic concept of akhaff al-dararayn – lesser of the two evils. In other words, if the major part of the manifesto of a political party is deemed non-objectionable in terms of Islamic ethics, then it is acceptable for Muslims to vote for such a party.

So as we exercise our democratic right to vote in the upcoming elections we need to be discerning in casting that vote. We should reflect on the histories of each party, the status and integrity of their candidates, their past and present policies, their track record on addressing social justice issues, and the promises they make in their electoral manifestos. We should be wary of voting for political parties to protect only our self-interest without considering the interests and needs of all citizens of our country. The party, which in our estimate best resonates with the Islamic value system and more especially, advances the cause of the poor and the marginalized, should be supported.

In conclusion, it is my considered view that local government elections are as important if not more than national elections, since they facilitate the process of taking democracy down to the grassroots level.
For Muslims, democracy should not merely mean casting ones vote periodically but more importantly, shura or participatory democracy in Islam demands the building of consultative and transparent institutions that will root out endemic corruption and address the needs of the poor.

The only real guarantee for healthy democracy is that of strong civil society that can hold those in power accountable for their moral and political mandate. Voters should further insist on accountability from their political parties and ensure that they make good on their electoral promises.

At this sacred hour of jumu`ah, please join me in a prayer for peaceful, free and fair elections, and for elected leaders that will not merely serve their own personal interests but rather that of all citizens and particularly socio-economic justice for the poor and marginalized in our country:

O Allah! bless our country to the best possible outcome,
at this time of the fifth municipal elections

O Allah! guide us to cast our votes for the best candidates and parties
that will not only serve the interests of Muslims
but of all the poor and marginalised citizens in our country

O Allah! steer the leaders of our country to use their power
to fashion a more just and peaceful country

We ask this in all of your Beautiful and Holy names.

Allahumma Amin

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