Article Citation: Isa Muhammad Maishanu & Muhammad Dahiru Shuni (2021). The Institution of Hisbah and the Realization of the Ideals of Shari’ah in Nigeria. DEGEL: The Journal of the Faculty of Arts and Islamic Studies, Vol. 19, No. 1. ISSN 0794-9316
THE
INSTITUTION OF HISBAH AND THE REALIZATION OF THE IDEALS OF SHARI’AH
IN NIGERIA
By
Isa Muhammad
Maishanu & Muhammad Dahiru Shuni
Introduction
The
system of Hisbah in Islam plays an important role towards the building
and maintenance of an ideal Islamic society, as it develops Islamic practices,
as well as protects them against deviation and malfunction. It helps protect
the rights of every citizen and looks after his welfare. As an independent
organ, it examines every decision taken by government and analyses it in
respect of the benefits it brings to the community. The establishment of the
office of hisbah by the Shari’ah implementing states in Nigeria
will no doubt help greatly in achieving the fundamental objectives of Shari’ah.
It is due to the importance and functions of hisbah office that this
article wants to shed light on its origin and practice during the time of the
Prophet (peace be upon him) and the Caliphs after him, the function and the
power of the office, and finally the Muhtasib, who is the officer in
charge of hisbah office, and then the article wraps up with a
conclusion.
The
concept of Hisbah
Hisba is from an Arabic word Hasaba which means ‘to compute or to
reckon’, and its verbal form ihtasaba means “to take into
consideration”. In its technical meaning it refers to the promotion of what is
right and forbidding what is wrong.[1]
Generally, the institution of hisbah in Islam stands as one of the major
principles of Islamic religion and ethics, that is “enjoining what is good and
forbidding what is evil”; al-amr bi al-ma’aruf wa al-nahy an al -munkar.
Hisbah is of two forms taking into consideration its activities and
functions. There is general hisbah that has to do with enjoining what is
known to be good, but was not carried out and preventing evil when it prevails.
The second form is the specific Hisbah, which refers to
establishment of a hisbah office and appointment of some officials under
Muhtasib who will be charged with the responsibility of enjoining what
is good and forbidding evil practices or wrong doings in various aspects of
life in the Islamic society.[2]
Hisbah could also be a voluntary accountability mechanism, whereby a Muslim
enjoins good and forbids evil to enforce the laws of the Shari‘ah, and
to report those who publicly commit sins, do shameful acts and practice immoral
activities. Such immoral activities include selling, promoting and trading with
illegal items, monopolizing the basic needs of the people, cheating and many
other illegal activities. This is done to help implement the injunctions or
commandments of Allah.[3]
It
is therefore a social responsibility placed on both the individual and the
state. Thus, Maududi opines that human conscience has some sort of “uniform
verdict in favour of certain moral qualities as being good” and that it
“declared others as bad.”[4]
Origin of
Hisbah
The
origin of hisbah can be traced to the injunctions of the Glorious Qur’an
wherein Allah (S.A.W.) informs Muslims that: ‘‘You are the best of peoples,
evolved for mankind, enjoining what is right, forbidding what is wrong and
believing in Allah...”[5]
Allah
(S.W.T) further prescribes that Muslims must choose among their community
people that will carry out this duty of hisba, when He says: ‘‘Let there
arise out of you a band of people inviting to all that is good, enjoining what
is right, and forbidding what is wrong: They are the ones to attain felicity.’’[6]
According
to this system, investigators and inspectors voluntarily monitor the public law
and order situation and the maintenance of public facilities to protect the
individuals against physical injuries in public places. A Muslim should fear
accountability and the punishment of Allah (SWT) as many examples of those who
proceeded before us are mentioned in the Glorious Qur’an:
Curses
were pronounced by the tongue of David and of Jesus, the son of Mary, on those
among the Children of Israel who rejected Faith because they disobeyed and
persisted in Excesses. They did not forbid one another from the iniquity: evil
indeed were the deeds which they did. [7]
In
yet another place, Allah (S.W.T), says those who fail to enjoin what is good
and forbid what is bad are transgressors and their acts are regarded as evils.
This is succinctly put thus:
Many of them dost thou see,
racing each other in sin and rancour, and their eating of things forbidden.
Evil indeed are the things that they do. Why do not the Rabbis and the Doctors
of law forbid them from their (habit of) uttering sinful words and eating
things forbidden? Evil indeed is their works.[8]
In
the light of the Ahadith of the Prophet (pbuh) it can be seen that it is
the responsibility of every individual in the Islamic society to take an active
role in the duty of Hisbah according to his abilities. The Messenger of
Allah (SWT) said:
Whosoever from among you sees an evil act, must change [stop] it with
his hand. If he cannot, he should stop it with his tongue. If he cannot then he
should abhor it in his heart, and that is the weakest [level] of faith..[9]
Correcting
any criminal act or vice is not allowed if this causes more harm than good and
amounts to making the situation worse. One must use wisdom and discretion in
enjoining good and forbidding evil. The Messenger of Allah Muhammad (PBUH)
articulates the human rights in a single eloquent sentence: ‘‘Truly, your
blood, your wealth and your honor are sacred to one another like this sacred
Day, in this sacred Month and in this sacred Town.’’ [10]
Most
of the human rights mentioned in various declarations fall under the above
statement, which was delivered in the Farewell Pilgrimage speech of the
Messenger of Allah (pbuh) to the largest gathering of Muslims at that time. The
laws and regulations of Islam were legislated to preserve and defend the rights
and deal sternly with violators.The practice of Hisbah During the Period
of the Prophet (PBUH) and Pious Caliphs.
In
complying with these injunctions, the Prophet (pbuh) directed his followers to
this noble admonition. The Prophet told the people that: “If some people commit
sins and if there are other persons among them who can prohibit them and still
they do not do it, soon punishment from Allah will fall on all of them.”[11]
Thus, to serve as a good model, Prophet Muhammad (pbuh) was said to have
physically observed these injunctions. He administered the principle of hisbah
in several situations. For example, it was reported that:
Once
the Prophet saw a man selling foodstuffs (wheat) and it pleased him. He then
put his hand unto the interior of the wheat and found moisture in it. He asked
the merchant: Why are there wet things in it? He said: Rain melted them. The
Prophet then said: why didn’t you put the wet part above so that people can see
it. He who defrauds us is not of us.”[12]
Similarly,
when the early Islamic state began to take shape and be independent, Prophet
(pbuh) appointed Sa`id ibn Sa`id ibn Al-`Aas (may Allah be pleased with him) as
the first Muhtasib in Islam, and immediately after the Conquest of Makkah, on a Makkan market. This demonstrates the
importance of this position since the dawn of Islam. [13]
With
this action, the Prophet (pbuh) has shown the fundamental and basic ingredients
of hisbah, which is to encourage what is good, and forbid what is bad.
The Prophet (pbuh) equally assigned the duty of hisbah on some people,
when it was apparent that the administrative works became vast due to expansion
of Islamic rule. What is unique however is that, historically, the Prophet
(pbuh) is regarded as the first Muhtasib in Islam.
After
the demise of the Prophet (pbuh), the duty of hisbah fell on the
shoulders of his successors or Caliphs. They did it directly or by appointing
some other trustworthy people to do so. As a result of expansion in the Islamic
political entity and the conquest of many cities and towns, hisbah
experienced development by benefiting from other forms of civil institutions
already in existence in the conquered areas.
Hisbah became an independent office and subsequently, a separate Islamic
institution. This principle has developed over times into an Islamic
institution which is charged with the responsibility of supervising social,
political and economic behaviors in an Islamic state. While hisbah is in
full practice in Saudi Arabia until recently, it is being practiced with
modification in some Islamic states, while it has gone into extinction in some.
What is important from this short historical analysis is that the institution
of hisbah is rooted in the injunctions from the Qur'an.
Functions
and Powers of Hisbah
The
Hisbah institution is established for the purpose of complying with the
injunctions of Allah and those of the Prophet of Allah (pbuh) which enjoin what
is good and forbid what is evil. This function has been interpreted widely by
jurists and classical Muslim scholars who have written on the subject. Their
wide interpretation covered all prevailing social vices of the time. The narrow
interpretation based on the then situations might not be relevant nowadays,
because the then social vices have changed both in magnitude and style. What is
clear, however, is that the unique purpose of enjoining what is good and
forbidding what is evil pervades all times and ages. Thus, that purpose can
still be interpreted not only to march the prevailing circumstances but also to
correct the prevailing social vices in general and protect human rights endowed
man by Allah (SWT). It is from this perspective that the following three basic
functions of Hisbah institution are highlighted.
The
first major function of Hisbah is to oversee the proper organisation of
facilities for the observance of religious duties. The functions of the
general overseer include adequate maintenance of mosques, appointment of Imams,
arrangement of daily prayers, Friday prayers and ‘Id prayers. In the
same token, institution of Hisbah ensures the observance of many other
obligations of the Shari’ah and takes serious objections to their
violations in the society.[14]
The institution does this by preaching, advising, reprimanding or referring to
appropriate authority. This function is relevant to the modern societies, where
mundane affairs have taken away high moral standards and the acts of ibadat out
of the minds of many. It is strongly believed that the relevance of this
function will surpass many ages to come.
Another
major function of Hisbah institution is the maintenance and
implementation of justice in the society. This entails the insistence on fair
play among different economic factors, to minimize possibilities of
exploitation from the economy - such as checking manipulation of prices, monopolistic
collusion, supplies and productions.[15] It also includes checking
and correcting excesses of the judiciary, the police and other law enforcement
agencies. In order to maintain justice, the Hisbah institution equally
gives advice and organizes workshops for other government institutions, as well
as financial institutions. It also intervenes in private disputes and offers
amicable settlements between individuals, or between individual and organizations
and between employers and employees.
Lastly,
the institution of Hisbah engages in the inspection of and maintenance
of public utilities. The Hisbah does this by carrying out regular
inspection of the whole town to ensure that optimal hygienic condition of the
town is sustained; where necessary, it involves in the evacuation of garbage
and sewage. Again, this function includes inspection of schools, hospitals,
roads and bridges with a view to calling appropriate authorities to their
conditions and adequate repairs. It also entails inspection of water board,
electricity board, as well as roads and buildings under construction. This
assists in ensuring that the utilities are supplied and constructions are in
compliance with minimum standards. Obviously, need for constant availability of
these services on a large scale is essential these days.
The
above functions are all encompassing. They encapsulate the civil and political
rights, economic, social and cultural rights or what the western writers
classified as first, second and third generation rights. Above all, they take
adequate care of religious matters - ibadat. In other words, institution
of Hisbah functions in multifarious ways. It takes care of both worldly
affairs and religious rites. It is therefore argued that if properly managed, Hisbah
institution will not only enforce Qur'anic concepts of human rights
discussed above, but it will also be an institution to protect and promote
them. However, to enable the board or commission to accomplish the enumerated
functions, it must be headed by a leader to be appointed by the government upon
meeting certain requirements or qualifications. Such leader is, in Islam,
referred to as the Muhtasib. He is responsible for the overall
activities of the Commission or Board.
The Office
of Muhtasib
For
smooth running of the office of Hisbah, the leader must appoint
officials under the leadership of Muhtasib, who would be charged with
all the responsibilities attached to the office. Ibn al-Arabi as quoted by
Shaykh Abd Allah bn Foduye in Diya’ al- Hukkam said that the office of hisbah
is an innovation, but it is based upon the most important public
responsibility, which is the duty of “enjoining the right and forbidding the
wrong” As cases connected with this were numerous, the rulers should delegate
this responsibility to a person who undertakes to do it for all people, at all
times.[16]
Muhtasib or the Censor is to see that Islamic precepts were obeyed, offences
discovered and offenders punished. His jurisdiction according to Sultan
Muhammad Bello was to monitor commercial transactions, dealing with matters
such as defective weights and measures, fraudulent sales and non-payment of
debts.[17]
He is also concerned with inspecting buildings and streets to make sure that
they complied with the state specifications.[18]
The
Muhtasib, with the assistance of other officers under him, engages in or
propagates the principles of enjoining what is good and forbidding what is
evil. The first known Muhtasib in the Islamic history was the Prophet
(pbuh) himself. He bore the name while answering the clarion call of the
injunctions of the Qur'an. As the Islamic political leadership expanded, the Muhtasib
becomes the holder of office of Hisbah who came in direct touch with
the people frequently, in the market and other places to admonish them to do
good, forbid them from doing evil and punish those found to engage in evil
acts. It is equally important to note that the officer in charge of hisbah
differs from the judge, due to the fact that he has to investigate
reprehensible acts, even if no complaints are brought before him, while the
judge will give judgment only on matters brought before him. The function of
the office of hisbah is (to prevent transgression through) the fear it
instills in people, and the function of the judiciary is to dispense justice.[19]
Today, in line with the concept of modern Hisbah, a Muhtasib is
an officer appointed by the State to man the affairs of Hisbah Institution.
He is in charge and oversees the activities of institution of Hisbah, which
is entrusted with the maintenance of public morals and standards in the state;
the standards encompass social, economic, political and religious matters. On
the basis of these responsibilities therefore, Muhtasib should be a Muslim,
male, mature and learned in Islam. In addition to all these qualities, he is
expected to be well versed in Islamic jurisprudence - fiqh.[20]
Through this knowledge he must be familiar with the existing Ijtihad. He
must also understand his time and be well-acquainted with ills performed in the
society. This will enable him to appreciate what has been forbidden and what
are allowed in Islam. The knowledge of the Shari’ah and Ijtihad is
one thing; the ability to have the fear of Allah to apply them is another.
Therefore, apart from the knowledge of the Shari ‘ah, a Muhtasib must
be pious. Piety and fear of Allah are necessary for the Muhtasib as only
these will prevent him from the abuse of his office. His piety will also
enhance his ability to do justice between the plaintiff and the defendant,
while attending to their matters. It is the same piety that will continue to
prompt him to lay good examples for others to emulate and his words will not
contradict what he preaches. For Allah (SWT.) says of such persons: ‘Do ye
enjoin right conduct on the people, and forget (to practice it) yourselves, and
yet ye study the Scripture? Will ye not understand?’[21]
Thus,
piety is as important as knowledge of the Shari’ah for a successful
implementation of Hisbah functions by a Muhtasib. When
appointed, he works with his technically trained staff as his assistants who
investigate the affairs of different crafts and trades. They also give
specialised advices in their areas. The Muhtasib is given wide powers,
but he exercises them sensibly. He is empowered to advise, reprimand, rebuke,
imprison or expel people from the town. He does these through the
instrumentality of his staff or the court as the case may be. The code of
conduct for a Muhtasib provides a system of checks and balances.[22]
As a rule, the behaviour of a person to be punished should obviously be against
the injunctions of the Shari‘ah before the Muhtasib could
intervene. In the same token, he should not engage in ijtihad to punish.
Rather, he should forbid them from only those actions on which there existed a
consensus of the Ummah.’[23]
Generally,
the nature of Muhtasib's tasks is comprehensive. It comprises
practically all aspects of society, as well as everything in day-to-day life.
This is not restricted to fellow human beings, but also extended to interpose
in damages caused by animals. Cases of environmental pollution are not excluded
too. Administration of judiciary is another area of concern to the Muhtasib.
Again, all other appointees of the state who act on behalf of the state are
also accountable to the Muhtasib.[24]
Conclusion
As
it has been noted earlier, the system of hisbah is first exhibited by
the Prophet (PBUH) when his personal and official engagements increased. Again,
all the first four rightly guided Caliphs took charge of hisbah, but
later transferred same to provincial governors due to massive expansion of
Islamic political dominion. For example, history had it that Caliph 'Umar
assigned to his provincial governors the position of Muhtasibs.[25]
This trend shows the transformation of hisbah due to changing conditions
and situations. In the same manner, due to, economic, social and political
changes all over the world; it is strongly believed that hisbah should
no longer be a one-man activity neither should it be a one-man affair with few
assistants moving from one domain to the other. There is therefore, a need to
adopt a modern way of hisbah institution. There is a need to shift from
traditional to modern hisbah, which takes care of ever-increasing
economic, social and political activities. In addition to this, Shari’ah
implementing states in Nigeria for instance, should empower the office by
giving it all necessary support to enable it carry out its responsibilities
effectively.
Lastly,
the office of hisbah went beyond the religious meaning of the 'enjoining
what is good and forbidding what is evil' to practical duties consistent with
the general interests of the Muslims and the larger community. Therefore, it
dealt with various social matters, such as maintenance of cleanliness of roads,
animal welfare so that an animal should not carry what it could not bear,
health care through covering fountains, preventing teachers from beating
children severely, and controlling bars and wine drinkers, as well as, indecent
women. In general terms, it dealt with all that has to do with the society and
morals in order to be in the best manner. It also dealt with economic affairs,
due to the fact that Muslim cities are filled with employers, traders and
craftsmen. Hence, the job of the Muhtasib and other officials attached
to the office was to prevent fraud in industry and transactions, particularly
to supervise weights and measures and check their standards and calibers. It is
a needed system that can bring a lot of good to all members of the society. It
is a clear manifestation that the mission of the Messenger of Allah (pbuh) is a
‘mercy for all creations’.
References
Ali, A. Y. (1968), the Glorious Qur'an:
Text, Translation and Commentary.
Akram M (Trans), (1983), Shaykh al-Imam Ibn
Taymiya, Public Duties in Islam: The Institution of hisbah, Leicester:
The Islamic Foundation.
Bashar T.
A (2008), The role of Hisbah in promoting ethical values in Muslim society M.A
Dissertation Department of Islamic Studies, UDU sokoto.
Bello O, (ed and trans) M.Bello “al-Gaith
al-Wabil fi sirat Imam Adil” Ph.D thesis University of London.1983 P.147 S.
Muslim: Book of Faith, Hadith
Elsergan, R (n.d) “Hisbah in the Islamic
administration system” at htt://islamstory.com/en/tazonomy/term/3127.
Imam al-Ghazali (1967),Ihya’ulum al-deen
, Vol.2 Cairo np.
Maududi, A.A (1980) “Islamic Way of
life” Kuwait: IIFSO.
Sheha, A, “Human Rights in Islam and Common
Misconceptions, Visit htt.www.islamland.com
Siddiqui A. (trans) Sahih al-Bukhari, available at www.islamspitit.com.
[1]
T. A.Bashar The
role of Hisbah in promoting ethical values in Muslim society M.A
Dissertation Department of Islamic Studies, UDU Sokoto 2008 P.14
[2] Ibid p.16
[3]. A.
Sheha, Human Rights in Islam and Common Misconceptions, see
htt.www.islamland.com
[4] A.
A. Maududi, Islamic Way of life, Kuwait: IIFSO, 1980)P. 28
[5] .Surah 3 Verse 110
[6] Surah 3 Verse 104
[7] Surah 5 Verse 78-79
[8] Surah 5 Verses
62-63
[9] Sahih Muslim,
Hadith No. 78.
[10] Bukhari, Hadith No. 105.variuos
[11] Imam
al-Ghazali Ihya’ulum al-deen Cairo n.p 1967.Vol.2 p.93
[12] S. Muslim: Book of Faith, Hadith no. 102
[13] R.
Elsergan “Hisbah in the Islamic administration system”
[14] Ibn Taymiya, Institution
of hisbah, P. 140.
[15] Ibid p.140
[17] Bello, O (ed
and trans) & Bello, M “al-Gaith al-Wabil fi sirat Imam Adil”Ph.D thesis
University of London.1983 P.147
[18] Ibid P.148
[19] Ibid p.22
[20] T.A.Bashar The
role of Hisbah in promoting ethical values op.cit P 37
[21] SURAH 2 Verse
44
[22] Ibn Taymiyya
“The institution of Hisbah opcit P.138
[23] Ibid p.138
[24] The Islamic World Net, Hisbah Institution at < http://www.islamicworld.net
[25] M.Akram
(Trans)al-Shaykh al-Imam Ibn Taymiya Public Duties in Islam: The Institution
of hisbah, Leicester: The Islamic Foundation, 1983) P.148
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