ISLAM, PROBITY AND ACCOUNTABILITY:

A Critical Essay in

History, Philosophy and Law

by

Sanusi Lamido Sanusi

Journal of King Suad University, Vol 14, Administrative Sciences (1) pp 49-64, Riyadh (1422/2002)

The topic I was given by the organisers of this lecture was "Islam, Probity and Accountability". It
is a topic whose choice was influenced, no doubt, by the sad state of our country and many
Muslim States, where corruption and lack of accountability have become something of a cancer
eating into the fabric of society and uprooting every social value, structure and institution from
its very foundations.

As I see it, there are two possible approaches to this lecture. The first is to stand here and
assert, with all sense of self-righteousness, the truism that Islam preaches probity and
accountability. This would involve a narration, parrot-like, of the various Qur'anic verses
preaching Probity and Accountability as well as Traditions of the Holy Prophet (S.A.W.), anecdotes
from the lives of the rightly guarded Khulafa', the Sahaba, the Tabi'inand great pious rulers like
‘Umar ibn Abdul 'Azeez. At the end of the day everyone here would clap, cheer, feel good and
generally have the satisfaction of having heard a good lecture. But to do this is to merely engage
in an exercise best described as the masturbation (if you forgive the term) of our collective egos.
It states the obvious, avoids the difficult and in no way contributes to the purpose of such a
gathering. To say that Islam preaches probity and accountability, and to try to prove it to a
Muslim audience, is a most ridiculous intellectual exercise. It will only serve the purpose
of Tahseel al-haseel (attaining that which is already attained); for every Muslim surely knows
that not just Islam, but every world-view or civilization worth its name, preaches accountability
and probity. Even Godless systems do so as evidenced by the recent execution in Communist
China of fourteen persons for acts of financial corruption.

There is, however, a second approach: more complex, less palatable and certainly more offensive
to certain sensibilities. It is an approach which asks a historically valid question which begs
eternally to be answered: why is it that inspite of the fact that we all know, academically or
intuitively, that corruption in all its forms is unIslamic, it remains a pervasive feature permeating
Muslim communities? Why have Muslim leaders, including those who have ruled Nigeria in the
recent past, not been a paragon of probity and accountability? Why has the crime of corruption
not engaged the Muslim mind with the same intensity as, say, the absence of the hijab among
women or the exclusion of hudud (fixed punishments) from the Penal Code? In simple terms,
why is it that over a long period and spreading over a large part of the Muslim world,
the teachings of Islam on probity and accountability have been one thing, the practice of Muslim
people and their leaders a completely different thing?

It is my view that the answer to this question is to be found necessarily in a reasoned analysis of
the anatomy of corruption, specifically (1) how it came to be embedded in the body politic of
the ummah, (2) how the ummah's mindset was conditioned to tolerate it and (3) how an
elaborate legal framework was set-up which,however ,effectively by-passes the menace, allowing
it to thrive even where an Islamic legal system is, in theory, operational.

The first point is an excursion into history, specifically the fitnah, the early conflicts and the end
of the rightly-guided khilafa.

The second is an excursion into philosophy and particularly ethics, with specific focus on the
misapprehension of the necessary connection between metaphysical theism and our morality
which, I will argue, represents some degree of impairment to our conception of Tawhid, and our
full belief in the absolute unity of Allah the One as the source of our existence and values;

The third is an excursion into Shariah law as we know it, and an examination of the limitations
imposed on its scope by politics as well as the failure of scholars to rise to the responsibilities
implied by the flexibility of its injunctions.

I have therefore taken the liberty to slightly amend the topic I was given by introducing the sub-
title you read above, (A critical essay in History, Philosophy and Law) as an outline of the
intellectual course I hope we will chart together, a trip that may be discomfiting to some,
tumultuous to others, sickening to a few, but hopefully in the end worthwhile and enriching,
opening before us new vistas in thinking, breaking old barriers and challenging the structures
which served as mitigants to the progress of the Ummah in this regard.

Historical Nemesis: the Umayyad Legacy

The coming of Islam and the establishment of the prophetic state marked a watershed in
exemplary leadership in the area of accountability and probity. The true Islamic spirit in this
regard, consistent with the Sunnah of the prophet (S.A.W.) was maintained throughout the reign
of three out of the four caliphs of the early period and over a substantial part of the Caliphate of
Uthman. The example set by Abubakar, Umar and Ali in this area is difficult to relate in it's
entirety. Where does one begin?

Abubakar's first Khutbah set the tone for his leadership: "Now O People! I have been made your
ruler though I am not the best among you. If I do what is right support me. If I do what is wrong
set me right. Follow what is true for it contains faithfulness, avoid what is false for it contains
treachery. The weaker among you shall in my eyes be the stronger, until, if Allah will, I have
redressed his wrong; the stronger shall in my eyes be the weaker until, if Allah will, I have
enforced justice upon him. Let the people not cease fighting in Allah's way lest He abase them;
let not evil practices arise among the people, lest Allah bring punishment upon all of them. Obey
me as I obey Allah and His messenger; if I disobey them, then do you disobey me". These are
the words of a man changed neither his residence nor his mode of living when he became a ruler.
He refused to take a salary until his companions forced him and even then, on his deathbed he
commanded that all he had received from the treasury during his tenure should be counted up
and repaid out of his property and his lands.

Or do I begin with the second Caliph, Umar b. al-Khattab who said in his second sermon to his
people: "O people! It is your duty, if I show certain evil qualities, to reprove me for them. You
must see that I do not exact from you any tax or anything of what Allah has given you, except
that which He allows. You must see that when I have control of the money nothing should be
spent improperly…etc". This is 'Umar, who used to say: "The property of Allah has the same
standing with me as that of an orphan; If I have no need of it, I will leave it untouched, and if I
need it, I will take only what is right". Asked what his entitlement from the treasury should be,
Umar replied: "Two sets of clothing, one for the summer, one for the winter. Enough to perform
the Hajj and sufficient to provide me with food for myself and my household on the level of a
man of Quraish who is neither overrich nor overpoor`. Beyond that I am an ordinary Muslim, and
I share the lot of all Muslims".

Or do I begin with Ali, commander of the Faithful, who took over the caliphate at a time of great
tumult, and who was grievously wronged by the dissent of some Companions? Ali who used to
eat barley meal, hand ground by his wife, and who used to seal the meal-bag with the words "I
like to know what is entering my stomach". Ali who as Amir used often to sell his sword to get
money to buy food and clothing, who disliked the "White Castle" in Kufa and preferred living
among the poor. 'Utba ibn 'Alqama once visited Ali and found him sitting with sour curds in front
of him. Their sourness and dryness vexed 'Utba who said: " O Commander of the Faithful do you
eat this stuff?" He answered " Abu Janub, Allah's Messenger used to eat it drier than this and
used to wear clothes coarser than these" - and he pointed to his own clothes - "and if I do not
accept what he did, then I fear I will not join him in the hereafter". The piety and asceticism of
Ali are legendary.

It is obvious that so far I have skipped the third Caliph, Uthman, Zun-nurain, twice the son-in-
law of the Prophet. Uthman, compiler of the Qur'an provider for the companions in times of need,
of whom the prophet once said "nothing Uthman does after today will hurt him". The greatness of
Uthman in Islam is unquestioned; he was one of the six left at 'Umar's death with whom the
prophet was fully pleased when he left this world. But the truth, and the truth be said, is that no
discussion of accountability and probity in Islam and how the Muslim Ummah lost these values is
complete without a discussion of the reign of Uthman and, more profoundly, the rule of his clan,
the Umayyads over the Muslim world.

'Uthman became Caliph in old age and lasted for 12 years. The first six years were in keeping
with the Sunnah of the Messenger and of Abubakr and 'Umar. Then old age

set in, and some of 'Uthman's greatest strengths became weaknesses - he loved his family, and
in old age became hostage to them. He was generous in spirit and in old age allowed profligacy
with public funds. He held that as Imam he had the right to give public funds as gifts and
allowances. When Harith ibn al-Hakam married Uthman's daughter, the latter gave hin 200,000
dirhams from the public Treasury leading to a showdown with and removal of Zaid ibn Arqam
from his position as treasurer. 'Uthman gave al-Zubair 600,000 dirhams one day, and Talha
200,000 and presented his cousin Marwan b. Hakam with one-fifth of the land tax of the entire
province of Ifriqiyya. The Companions expostulated with him but he insisted that he had a duty
to take care of his relatives and kinsmen. Most of the latter day actions of Uthman were carried
out under the influence of his family, the Bamu Umayya. Abu Sufyan, the prophet's arch-enemy
who refused to join Islam until the defeat of his forces in Makkah, and who even after joining
Islam had nothing but contempt for Islamic values, especially the high esteem in which early
Companions who he considered "slaves" like Bilal, Salman and Suhaib were held, was still alive.
Like a mother-hen, he gathered his flock around him. He guided his son, Muawiya, his nephews
Uthman and Marwan b. Hakam, and other Umayyads like al-Hakam b. al-As [who had been
expelled by the prophet but rehabilitated by 'Uthman], Abdullah ibn. Sa'd ibn Abi Sarh, and so
on. Marwan had unlimited control of the Treasury, he dispensed gifts as he wished, supported
oppressive Umayyad governors and ruthlessly destroyed dissenting voices. Abu Zarr, the
prophet's companion was exiled for his strident criticism of the prodigality of the Umayyads. At
the end of the day, the excesses of Uthman's appointees led to the fitnah in which he was sadly
killed. But the seeds of corruption had been sown.

'Ali took over the Khilafa at a point when the Umayyads had been strengthened. They had control
of armies and had amassed substantial wealth. Under the pretext of fighting for the blood of
Uthman the Umayyads waged a war against the seat of Islamic power, the caliphate, but no
sooner had Ali died than did it become apparent that all they wanted was power. Muawiya
appointed himself the "first of the Muslim Arab Kings", forced everyone to accept him and his
conversion of the Khilafa into a hereditary monarchy with his son, Yazid as his successor.
Muawiya fought Ali with the aid of the Kalbi Arab tribes and the old Syrian aristocracy and set up
a new political economy which Nazih Ayubi describes as a "lineage/Iqta'i symbiosis". The
Umayyads became feudal lords; their Jahili pride in Arab supremacy became once more
ascendant and non-Arabs were gradually marginalized. All restrictions on the public treasury
were removed and it became a legitimate source of public plunder for the kings, their courtiers
and their sycophants.

This was the system that lasted over one hundred years with the one exception of the Umayyad
Caliph 'umar ibn Abdul-Aziz. So we see how in the formative period of Islam a corrupt aristocracy
without regard for accountability and probity ruled the Ummah. It is inevitable that the long reign
of the Umayyads set the tone for how subsequent Muslim leaders would see themselves. The
attitude continued throughout Islam's long history. Even today, in the oil-rich sheikhdoms of the
Muslim world, the Royal families are not accountable to the people in their management of the
Treasury. Saudi Arabia is the world's foremost defender of Islam, of the pristine purity of the
Sunnah and of the early Muslims; yet it is common knowledge that the Saudi Royalty is , to
mince words, not exactly a paragon of accountability and probity.

All of this has been made possible by an intellectual superstructure, a moral philosophy that
encourages acquiescence to the rule of corrupt and despotic rulers. Although the Umayyads
themselves were beneficiaries of a rebellion against Ali, it soon became standard Sunni doctrine
that rebellion against unjust and corrupt rulers was unIslamic. In what follows I examine the
nature of this philosophy, and then proceed to the legal superstructure to which it gave rise [in
the name of the Shariah] before concluding.

PHILOSOPHY: The Evolution of a Moral Ethic

A system can not survive for a long time without conditioning the mind-set of the populace. The
early Muslim monarchies, despite everything said above, played major roles in prosecuting Jihads
and expanding the frontiers of the empire, providing the young faith with the political and
military protection required for its survival. Gradually, people came to accept bribery and
corruption as an acceptable feature of political leadership. This acquiescence was attained partly
by the genuine conviction that the benefits of political stability outweighed the costs of
corruption; partly through the ruthless suppression of political dissent and denial of fundamental
Human rights and freedoms; but also largely through an elaborate philosophical framework,
principally within Sunni Islam, which makes it an Islamic duty to "listen and obey" corrupt
despots so long as they pray.

The question of ethics in public policy is a fundamental philosophical question, which is relevant
to all states and societies. Islamic philosophy in all its dimensions ultimately goes back to the
principle of Tawhid [Monotheism]. Allah is the source of all knowledge, all guidance, all existence
and all morality. A truly Islamic epistemology, ethic, ideology or science must therefore find its
locus within the Divine Reality, and fit into the essential unity of Allah, the One.

It seems to me that somewhere along the line, Islamic ethics in the area of public policy lost its
essential contact with Divine Reality. The ulama, deliberately or by accident, gave prominence to
certain hadiths which were interpreted in a manner that made it incumbent on people to accept
lack of probity and accountability. This was particularly true of Sunni Islam.

Among the Shiites, it was a different story. The principle of 'Adl, [justice] like
the Imamah, [leadership] is one of the Pillars of Islam according to Shii thought. Most of the
philosophical discourse around Adl roots it squarely in the principle of Tawhid. Allah is a Just Lord,
Who loves Truth and Honesty. It is therefore inconceivable that anyone who believes in Allah can
perpetrate or tolerate injustice. It is in a similar vein that other sects like the Kharijites resisted
the attempt by early Muslims to exclude certain groups from leadership on account of clan, tribe,
race or even gender. It was considered inconsistent with Divine Justice as expressed clearly in the
Qur'an.

Back to ethics, let me say that this debate is a recurring one in philosophy. The British moral
philosopher, Iris Murdoch, was an emphatic moral realist who believed in the metaphysical
foundation of morality. She argues convincingly for the existence of a metaphysical reality, the
Good, which we perceive by our very perception of the imperfection of our world. Yet having laid
the foundation for a metaphysical ethics, Murdoch says the Good is not God - she accepts the
existence of this transcendental Reality but denies the Reality a will and an effect. To the best of
my understanding, this is the point of departure between Iris Murdoch and moral philosophers
among Christian Theologians.

The debate in our own moral philosophy is similar. Our scholars [by which I mean Sunni
Scholars] have never gone to the extent of denying Allah a role in our lives. What they have
done, in the context of the ethics of public officers is to build a shield between our morality and
its source, the Divine presence. Our metaphysics is not in substance Murdochian, yet it effectively
lands us in the same muddles as Iris Murdoch. A Muslim who believes in Allah the All-seeing [Al-
Basir] does not lock himself in a room and turnout the light believing he can sin and escape. The
same with one who believes in Al-Sami' [the All-Hearing]. He does not speak things in private,
which are prohibited by Allah. In exactly the same way, a Muslim who believes in Allah the Just
can not stand injustice. Corruption, nepotism and abuse of office are manifestations of injustice.

It is my view that the survival of corruption in the Muslim psyche has been facilitated by the
severance of the organic link between our moral philosophy and its Metaphysical roots in the
Divine Reality. A proper apprehension of Allah, His Beautiful Names(al-asma' al-husna) and His
Exalted Attributes(as-sifat al-'ula) must necessarily transform our ethic such that we not only
seek to imbibe or emulate the moral good, we actually are moved, compelled, to seek its
enthronement. The greatest tragedy in Sunni thought is its hatred of philosophy and philosophers
and its enthronement of the legalistic rulings of jurists over all facets of our life. The priorities
and constraints of the environment in which the jurists lived often conditioned these rulings. It is
a point I have repeatedly made. The refusal of this Ummah to break away from the constriction
of "blind copying" will only lead to a perpetuation of the social structures, priorities and value-
systems of the environments in which the rulings were made. Even the authenticity of hadiths
and the validity of their interpretation must be established after accounting for the impact of the
environment on the narrators and interpreters. Most fundamentally, the principles of Tawhid, an
apprehension the Allah's Asma' [Names] and Sifat [Attributes], must continue to be the
inspiration for our moral, political and other philosophies. We will now briefly touch on the
Shariah and how the ascendant philosophical outlook has restricted its scope.

The Shariah and Public Sector Corruption.

In the time of the prophet [S. A. W.] the government was not a major economic force. The role
of the prophet was largely that of a guide, a judge and a military commander. The government
treasury received zakat and fai' for distribution but the major revenue flows and expenditures on
social welfare, defence and the bureaucracy that later came to typify the state were virtually
non-existent - It is natural that the crime of public sector corruption should not be a major
feature of such a society not just because of the limited finance of the state but also, and more
fundamentally, because of the quality of persons managing these funds and the presence of the
Prophet of Allah among them. Thus although the Qur'an did come up with verses which showed
the prohibition of corruption, its occurrence was rare and its punishment /deterrence was
therefore not the pre-occupation of the Shariah at that stage . We find a greater focus on
offences like theft, adultery, intoxication and slander - crimes of a largely personal nature, which
was a reflection of the limited nature of public sector crimes.
With the passage of time and the conquest of the early empire, the coffers of the state were filled
with treasures managed by human beings whose fear of Allah was decreasing by the day.
Corruption became a cancer in public life, as we have shown. The Umayyads established a
hereditary kingship, nepotism and the appropriation of booty and property and profits. Muawiya
himself made it clear in his sermon in Kufa and Madinah that he had fought for power and would
reap the benefits from it. The early Muslims did fight against this Umayyad mind-set. There was
the great rebellion against 'Uthman. Then there was the rebellion of the Hijaz against Yazid ibn
Muawiya. There was the Qarmatian revolt. All of these and many more were directed against
exploitation, arbitrary power, class distinction and other features of a system without
accountability and probity. The striking thing about all of this is that the fight against corruption
was always waged by those outside the establishment. Throughout the reign of the Umayyads,
Abbasids, Fatimids etc, the Muslim world was governed by the Shariah, and by the system of civil
and criminal Law recognised as distinctive of Muslim societies. Zakat was collected, the hands of
thieves were cut off, and the courts continued to administer capital punishment for murder,
apostasy and rebellion. Yet those who supervised the implementation of Shariah were themselves
corrupt - and, seemingly, above the law. This is the question that I hope to address. A
government can claim to be implementing Shariah, cut off the hands of a thief who steals a cow
or money, force women to dress in a particular way, collect zakat for distribution etc, without
coming out with strong sanction for corruption in public office. This has led some people to the
false impression that the Shariah is a law designed to punish the poor while allowing leaders to
go scot-free. Nothing can be further from the truth. I will show that what is described above is
not Shariah, but its interpretation by society at different points in time in a manner consistent
with the dominant world-view of the leaders and ulama in that society. It is not the eternal law
revealed by Allah but its interpretation and crystalisation in time and space.

It is perhaps fair to say that the rudimentary nature of political structures in the muslim world,
the absence of effective checks and balances and the low political consciousness of civil society
have contributed to this state of affairs. It is however, equally important to recognise
fundamental flaws in our understanding of Islamic Law.

Criminal/Civil Law in Islam divides offences, from the perspective of sanction, into three
categories. Hadd offences [jara'im al-hudud] are those which attract a fixed and non-negotiable
punishment once established. These include adultery & fornication, apostasy, drinking, rebellion,
slander and highway robbery. Qisas and Diyah offences [jara'im al - qisas wad-diyah] are those
which are retributive in nature, but which can be substituted by some payment in kind as
restitution, or forgiven by the injured party or his heirs. These include murder, manslaughter and
bodily harm. A third category, Ta'zeer offences [jara'im at-ta'azeer] refers to everything that is
prohibited in the Qur'an or Sunnah but for which a punishment is not prescribed
under Hadd or Qisas and Diyah. Understanding this point is critical to understanding Islamic Civil
and Criminal Law. There has been a lot of polemic over the limits of punishment
for ta'azeer offences. Abdul Rahman 'Audah has a detailed discussion of these including
justification for including offences not specified in the Qur'an and Sunnah but which affect
"general interest" of society, in his classic work on Islamic Criminal Law [at-tashri' al-jina'I al-
Islami]

What interests us here is that for all offences defined as Ta'azear offences the Shariah provides a
range of sanctions.

These are:

a] threat of punishment

b] whipping or caning
c] humiliation

d] detention or jailing

e] crucifixion or execution

f] exile.

These offences have been extracted by scholars from the Qur'an, Sunnah and Ijma'.

Now we know that the Qur'an prohibits many things without specifying the punishment for the
offenders. For example, we know that bribery is an offence, that nepotism, in the sense of
appointing an incompetent person to office, is an offence, that consuming wealth of orphans is an
offence, that spreading fasad [evil] and fahisha [obscenity] among the Ummah are offences etc.
If the Hakim at a point in time chooses not to punish an offence severely [and we have said his
options are as severe as the death sentence] it is not because the Shariah does not provide for it
but because either the judge or the government does not consider it a problem. As we live in an
environment in which these offences bother all of us, [corruption, religious intolerance,
destruction of places of worship, mediocrity in the name of quota system, tribalism and ethnic
genocide etc.] we must remember that Sharia explicitly prohibits each of them and also allows
the state to punish with a range of punishments including jailing and death. The choice however
reflects our own values, not of the Shariah. That corruption has for so long remained unpunished
is a reflection of the underlying moral philosophy, which has come to permeate our collective
consciousness, deadening the sense of outrage and revulsion against this heinous and cancerous
crime.

CONCLUSION

I have been given only 40 minutes to speak on this wide topic. I have attempted to cover in this
paper the origin of corruption in the public affairs of the Muslim Ummah, the philosophy which
has nourished it and the legal superstructure which, elaborate as it is, has been seemingly
designed by lawmakers to side-step it. I do not believe I have exhausted all the issues relevant
to this topic. I hope that I have given us all food for thought and contributed to our outstanding
of Islamic history, philosophy and law. If I have sounded critical of some aspects of Muslim
thought, please accept this clarification: I have implicit respect and love for generations gone by.
However, no one is perfect and it is only by learning from mistakes of the past and questioning
"received wisdom" that change is possible. "Allah does not change what is with a people unless
they change themselves".

Finally, dear readers, please remember that I am not a jurist, but a banker. What I have written
that is right, is from Allah. What I have written that is wrong is from me and Shaitan, Allah and
His prophet are free from my errors.

Ramadhan Kareem.

Assalamu Alaikum wa Rahmatullah wa Barakatuh.

The writer is a renowned commentator on national affairs