- Classification of Legal Acts (Ahkamu-Sharia)
- Islamic Criminal Law
- The Concept of Sin and Crime in Islam
- Administration of Justice
Classification of Legal Acts (Ahkamu-Sharia)
- In book three we learnt about Fiqh and Sharia.
- We learnt that there are four sources of Islamic Sharia.
- Islamic Sharia has clearly defined the permissible and the prohibited acts.
- These acts have been divided into different categories which form the basis of legal acts in Islam.
- It is these categories that we refer to as ‘Ahkamu sharia.’
- Different actions have been classified by the Sharia so as to guide Muslims to the right path.
- Let us now look at the classification of legal acts in Islam.
- Fardh refers to the compulsory acts which a Muslim, who is sane and has attained puberty, must observe.
- They are established from ‘Daleel Qatee’ (concrete proof).
- These are sources whose legitimacy cannot be questioned.
- Performing these acts earns a Muslim rewards while neglecting them leads to Allah (SWT’s) punishment.
- Refuting any act that is fardh leads to Kufr (disbelief).
- Fardh is classified into two; Faradh Ain and Faradh Kifaya.
- Fardh Ain is an act that is compulsory for every individual Muslim.
- When a person performs these acts, they earn individual rewards from Allah (SWT).
- Failure to perform them will lead to Allah (SWT) punishing that individual.
- Fasting during the month of Ramadhan is one of the acts classified as Fardh ‘ain since it has been ordained by Allah (SWT) (SWT) says, “O ye who believe! Fasting is prescribed to you as it was prescribed to those before you, that ye may (learn) self-restraint.” [Q 2:183]
- In a Hadith narrated by’ Aisha (RA) that Allah's Messenger (PBUH) said, “Whoever died and he ought to have fasted (the missed days of Ramadan) then his guardians must fast on his behalf.” (Bukhari)
- Fardh Kifaya means collective duty or collective responsibility.
- These acts have been ordained as an obligation upon the entire Muslim community.
- If it is performed by a few members of the community, then the obligation is lifted for the rest of the Muslims.
- In case none performs it, then the entire Ummah falls into error and is liable for punishment.
- An example of fardh kifaya is performing swalatul Janaza.
- These are necessary, obligatory, deserving, acts of ibada, which must be observed.
- One is rewarded for performing a Wajib act while Allah (SWT) punishes whoever neglects it.
- A Muslim who denies the performance of Wajib acts shall be declared a kafir (unbeliever).
- Wajib acts form part of the steps of acts of Ibada and by leaving these steps, the ibada is deemed deficient by.
- For example, during prayer, it is necessary to perform a prostration of forgetfulness a wajib act is omitted forgetfully or to repeat the prayer if omitted intentionally.
- In the case that one neither prostrates for forgetfulness nor repeats the swalat, one is still counted as having offered the swalat though with deficiency (this is sinful).
- Sunna acts refer to the deeds that are not obligatory but are recommended upon the Muslims.
- These acts comprise the prophet (PBUH’s) deeds, his teachings or his exemplary life.
- Allah (SWT) rewards those individuals who observe sunna acts but does not punish one for not observing them.
- It is however recommended that a Muslim lives according to the teachings and practices of the Prophet (PBUH).
- Allah (SWT) lays great emphasis on the obedience of the Sunnah of the Prophet (PBUH) in the Qur’an. Allah (SWT) says, “Say: ‘If ye do love Allah, follow me: Allah will love you and forgive you your sins; for Allah is Oft-Forgiving, Most Merciful.” [Q 3:31]
Examples of Sunna acts include:
- Giving food and saluting people.
Abdallah bin Amr bin ‘As (RA) relates that a man asked the Messenger of Allah (PBUH), “Which teachings of Islam are the best?” He answered, “Giving away food and saluting people, those you know and those you do not know.” (Bukhari and Muslim)
- Performing Itqaf in the last ten days of Ramadhan,
Aisha (RAA) relates that; “The Messenger of Allah (PBUH) used to perform itqaf in the last ten days of Ramadhan until the end of his life. Then his wives used to perform it after him.” (Bukhari and Muslim)
- Performing sunna prayers like tahiyyatul Masjid. Abu Qatada (RA) reported that the Messenger of Allah (PBUH) said, “When any of you enters the mosque, you should observe two rakaats before sitting.” (Muslim)
- This is the performance of acts of ibada in their correct way by following the procedure laid down in the Shariah.
- Observation of legal acts in the correct manner renders them valid and acceptable.
- All deeds that are acceptable before Allah (SWT) earns a Muslim rewards.
- The following are illustrations of ibada performed in their correct procedure:
- Making the correct intention before performing swalat, saum, hajj or any other ibada.
- Observing the prerequisites of prayers (like removing najasat, taking Wudhu, wearing clean clothes, reciting sura al Fatiha among others).
The messenger of Allah (PBUH) said, “Whenever you prostrate, place the palms of your hands (on the ground), and raise your elbows.” (Muslim)
- Batil means to invalidate or cancel.
- In the Sharia, they refer to those actions that have been nullified or invalidated due to the performer failing to observe them correctly.
- For example, observing fast without intention, or praying without wudhu or missing out certain rules and conditions when performing Hajj.
- Any act that becomes batil must be performed again in the correct sequence or correct way in order for it to be acceptable by Allah (SWT).
Halal and Haram (Permitted and non-permitted acts in Islam)
- The term halal means what is lawful or permitted in Islam.
- It applies to any permissible rule, practice or mode of behaviour by the Sharia.
- One is rewarded for observing these acts and whoever neglects them, earns sins.
- Halal acts have been ordained by Allah (SWT) in the Qur’an and emphasized upon by the Hadith of the Prophet (PBUH).
- For example the Holy Qur’an states the foods that are permissible for the Muslims as; everything that is halal and good to taste is edible.
- Halal food includes the meat of animals that have been slaughtered according to the teachings of Islam.
- Haram refers to that acts which Allah (SWT) or His Messenger (PBUH) has prohibited us from doing.
- This prohibition is explicit and has no exceptions.
- They are non-permitted acts in Islam.
- Avoiding these acts earns a Muslim praise and rewards while one is punished both in this world and in the hereafter for performing them.
- Doing the haram acts distances the human soul from Allah (SWT).
- Allah (SWT) says, “Say: My Lord has only prohibited indecencies, those of them that are apparent as well as those that an concealed, and sin and rebellion without justice, and that you associate with Allah for which He has sent down no authority, and that you say against Allah what you know not.”[Q 7:33]
- Examples of haram acts include; stealing, use of intoxicants, sexual perversions, taking riba, committing zinaa among others.
- They are disapproved, unpleasant, disliked or distasted deeds by the Islamic law.
- These acts are disliked because they may be harmful to us or may lead to haram actions.
- A Muslim is urged to avoid makruh acts although they are not unlawful.
- Even though performing such acts does not lead to any sins, a Muslim who avoids them will be rewarded.
- It is highly recommended to avoid acts that will hurt others or make them unhappy.
- Examples of makruh acts are blowing one’s nose before others, growing very long fingernails, spitting in public, sleeping till after sunrise, confining oneself with material issues among others.
- Abdullahi Ibn Umar (RA) relates that the Messenger of Allah (PBUH) saw spittle on the wall of the Qibla and scraped it off. Then he went up to the people and said, “Do not spit in front of you when you are praying, because Allah is in front of you when you pray.” (Bukhari)
- Mubah refers to those actions that are neither commanded nor prohibited by the Shariah.
- However, performing these acts does not earn a Muslim reward and failure to perform then does not earn any sins.
- Most of mubah acts are performed in our day to day life and are therefore innumerable.
- Among such acts include wearing a new garment, determinining the food, clothing or residence one likes, furnishing your house among others.
- A Muslims should however be careful not to exceed the limits and exceptions set by the Sharia.
Islamic Criminal Law
- The general understanding of the word law is rules that are established by the authority in a given area in order to safeguard the rights of others.
- We have secular laws and religious laws.
- Secular laws are classified as either criminal or civil law.
- Civil laws are aimed at resolving disputes among individuals in the society.
- In Kenya, for example, the Parliament makes and amends laws for the citizens.
- Such laws are enshrined in the Kenyan constitution.
- Laws are usually enforced by those in authority.
- They cover among others, aspects of marriage, property ownership, rights and priviledges, divorce, contracts and agreements.
- Criminal Law, on the other hand, relates to rules of conduct that safeguard the health, safety and moral conduct of people.
- Punishment is awarded to those people who cause harm to others, destroy property or the environment or generally break the law.
- The concept of Islamic criminal law is different from the Secular laws.
- It is derived from specific sources.
- The main source of Islamic law is Allah (SWT).
- The rules of Allah (SWT) are very clear and precise.
- Islamic criminal laws deal with all forms of human interaction or relationship.
- The principles of the permissibility and prohibitions are laid down by Allah (SWT) through His divine scriptures revealed to the respective Prophets.
- They give penal punishment for offences that transgress the limits set by Allah (SWT).
- Allah (SWT) has set up the day of judgement for the purpose of taking an account of all the actions done by humankind.
Classification of Crimes and Punishments.
- In form three, we learnt the teachings of Sura al Nur.
- In this surah, we mentioned the punishments of some sins and offences.
- Since crimes are met with different kind of punishment, Islam has classified each crime with its punishment.
- Islam has classified crimes into three categories.
- The term Hudud literally means ‘a limit’, ‘restriction’ ’or boundary’.
- Allah (SWT) says, “These are the limits ordained by Allah; so do not transgress them. If any do transgress the limits of Allah, such persons wrong (themselves as well as others.)” [Q 2:229]
- In the Islamic Shariah, it is used to refer to the boundaries of acceptable behaviour and the punishments prescribed by Allah (SWT) in the Qur’an for serious crimes.
- These crimes have fixed punishments considered to be ‘claims’ or ‘rights’ of Allah (SWT).
- Since the punishments awarded under Hudud are fixed and cannot be changed, one should not award lesser or more punishment that what is prescribed.
- Under the Islamic criminal law, six major offenses are recognised as punishable by Hudud.
- The penalty for each of these offenses has been prescribed in the Quran or Hadith.
- These crimes are as follows;
- Zinaa is a sexual offence which involves having sexual relations with a person to whom you are not married.
- Allah (SWT) Has outlined the punishment for zinaa as stoning the individuals to death.
- Allah (SWT) says, “ The woman and the man guilty of adultery or fornication-flog each of them with a hundred stripes, let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the last day: And let a party of the believers witness their punishment.” [Q 24:2]
Al Sariqa (Theft)
- Theft is taking something that does not belong to you without the owner’s consent.
- This is a crime and is prohibited in Islam.
- Theft is an illegitimate act which is liable for punishment.
- The punishment for theft has been laid down by Allah in surah al Maida as chopping off the thief’s hand.
- Allah (SWT) says, “As to the thief, male or female, cut off his or her hands: A punishment by way of example, from Allah for their crime: And Allah is exalted in power, full of wisdom.” [Q 5:38]
- In Form Three, we studied about slander.
- Slander involves accusing someone falsely of an offence he or she has not committed. punishment for slander has been prescribed in the Qur’an when Allah (SWT) says, “And those who launch a charge against chaste women, and produce not four witnesses, (to support their allegations) -Flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors.” [Q 24:4]
- Allah (SWT) further states that the person who accuses his or her spouse with evidence other than his own should swear by the name of Allah (SWT) that he is telling the truth. Allah (SWT) says, “And for those who launch a charge against their spouses, and have (in support) no evidence but their own-Their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth.” [Q 24:6]
Al-hirabah (robbery with violence)
- This refers to robbing or stealing from a person with the intention of killing of causing injury to the victim.
- The intention of the robber is to take away the property by force and plunder.
- It may either take place on the highway (commonly known as highway robbery), on the streets or in a person’s house hold.
- The penalty varies according to whether the robber has killed or injured the victim or simply robbed or threatens to rob him or her.
- The prescribed penalties are death (if the robber has killed but did not manage to get away with the stolen property); crucifixion (if the robber has killed and also taken the stolen property); cutting off the hand and foot on opposite sides (if the robber has taken the property but has not killed the victim); (and) exile (if the robber frightens the victim but does not kill or get away with the stolen property). Allah (SWT) says, “The punishment for those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of the hands and feet from opposite side or exile from the land.” [Q 5:33]
Al Riddah (Apostasy)
- Al Riddah or apostasy is leaving, departing away from, or deserting Islam for another faith.
- If a person becomes an apostate he or she is given a period of three days of reflection during which he can repent and return to Islam and thus obtain immunity.
- If he is not ready to revert to Islam, then his punishment is death.
- Allah (SWT) says, “…And if any of you turn back from his faith and die unbelief, their work will bear no fruit in this life and in the Hereafter; they will be companions of the fire and will abide therein.” [Q 2:217]
- Abdullah bin Mas’ud (RA) reported Allah's Messenger (PBUH) as saying: “It is not permissible to take the life of a Muslim who bears testimony (to the fact that there is no god but Allah, and I am the Messenger of Allah), but in one of the three cases: the married adulterer, a life for life, and the deserter of his Din (Islam), abandoning the community.” (Bukhari)
- The ‘amal (actions) of a person who departs from Islam and dies as a non-believer have no bearing in the hereafter. Such a person shall receive severe punishment on the day of judgement.
- All intoxicants are prohibited in Islam.
- During the pre-Islamic Arabia, the Arabs were fond of taking intoxicants.
- The prohibition of Khamr (intoxicants) by the Qur’an was a gradual legislation. Allah (SWT) starts by mentioning the general rule on the prohibition of shameful deeds.
- Allah (SWT) says,
“Say: The things that my Lord Hath indeed forbidden are: shameful deeds, whether open or secret; sins and trespasses against truth or reason…” [Q 7:33]
He then goes further to warn the believers of the evils found in intoxicants and gambling. Allah (SWT) says, “They ask you concerning wine and gambling. Say: ‘In them in great sin, and some profits, for men; But the sin is greater than the profit…” [Q 2:219]
Finally, Allah (SWT) revealed the verse that prohibited the intoxicants. Allah (SWT) says, “O you who believe! Intoxicants and gambling, (Dedication of) stones, and (divination by) arrows, are an abomination-of satans handiwork; eschew such (abomination), that ye may prosper.” [Q 5:90]
- With regard to the punishment of taking alcohol Anas bin Malik (RA) reported that Allah’s apostle (PBUH) used to strike forty times with shoes and palm branches (in case of drinking of) wine.(Sahih Muslim)
- However there is some difference of opinion as to the number of lashes.
- Majority of scholars are of the view that it is eighty stripes for a free man and forty stripes for others. Narrated Anas bin Malik (RA): That a man who had drunk wine was brought to the Prophet (PBUH), so he beat him about forty times with two stalks of a palm tree. So Abubakar did similarly, and by the time ‘Umar became Khalifah he sought council from the people. And ‘Abdur-Rahman bin ‘Awf said: ‘I see that the lightest penalty is eighty lashes,’ so ‘Umar ordered that.” (Tirmidhi)
Read Qur’an [Q 1:11][Q 2:178]
- From the verses you have read, you will realise the use of the term Qisas.
- The word Qisas comes from the Arabic verb Al-Qass, which means to follow in the footsteps of someone.
- This law ensures that an offender is awarded a punishment equivalent to the crime he or she has committed without fear or favour.
- Qisas is the law of equity or retaliation.
- Qisas is awarded in the following cases:
- For intentional homicide: “O you who believe! The law of equality is prescribed to you in cases of murder. The free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and a Mercy from your Lord.” [Q 2:178]
- For unintentional homicide: Allah (SWT) says, “Never should a Believer kill a Believer; but (if it so happens) by mistake, (compensation is due); if one (so) kills a Believer, it is ordained that he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it freely…” [Q 4:92]
- Retaliation in injured physical body parts: this involves retaliating upon someone who has willfully inflicted physical injuries on another person. Allah (SWT) says, “We ordained therein for them: ‘Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds equal for equal.’ But if anyone remits the retaliation by way of charity, it is an act of atonement for himself...” [Q 5:45]
Taazir (discretionary punishment)
Read Qur’an [Q 7:117] [Q 1:12][Q 18:9]
- Azara, which literally means to help or assist, to prevent or honour is the root word of taazir.
- However, taazir, in the Islamic Shariah refers to the punishment awarded at the discretion of the Qadhi (Muslim judge).
- This punishment is used as a corrective measure in order to assist, help or prevent the criminal from repeating or committing more crimes.
- Lesser crimes and offences are punished under taazir.
- Punishments awarded under taazir law are neither fixed nor mentioned in the Qur’an and Hadith.
- Among the offences that are punishable by taazir include, mismanagement of the public funds, spying, taking of riba, perjury, abuse of authority and fraudulent deals.
- Punishments for such crimes are unlimited and differ depending on the nature and gravity of the offence.
- They are gradual and may range from a mild measure like admonition as they advance to more severe punishments like death penalty.
- Among the most common punishments under taazir include the following:
- Kind admonition and giving advice.
- By threatening the criminal.
- Harsh reprimand.
- Imposing fines.
- Seizure of property.
- Public exposure (tash-hır).
Relevance of Islamic Criminal Law.
- Islam is a religion that advocates for fairness, and equity in establishing justice, harmony and peaceful coexistence in the society.
- The objective of every legal ruling in Islam is to secure the welfare of humanity both in this world and in the hereafter by establishing a righteous society.
- A society in which every person fulfils their spiritual, intellectual and material needs without interference. Allah (SWT) says,
“We have sent our Messengers with clear signs and have sent down with them the book and the criterion so that man can establish justice. And we sent down iron of great strength and many benefits for man...” [Q 57:25]
- The rights of all creatures have been clearly outlined in the Sharia.
- Allah (SWT) has put measures in his divine guidance to ensure that these rights are safeguarded.
- All punishments awarded are as a result of neglecting the Sharia of Allah (SWT).
- In the contemporary world punishments have been pegged to certain crimes depending on the gravity of the crime.
- Likewise, punishments in the Islamic Sharia depend on the nature of the offence and evidence.
- We learnt earlier that crimes are either punished under hudud, qisas or taazir law.
- Any punishment awarded must be justified and the offence proven beyond reasonable doubt.
- Let us now discuss the relevance of the application of Islamic criminal law;
- The law of taazir (retaliation) promotes fairness and justice in the society.
- Kind admonition may give a criminal a chance to reflect on his conduct thus mending his ways.
- It gives the criminal room for reform.
- It helps in maintain peace and harmony in the society by minimising criminal acts.
- It is a way of deterring other people from committing similar or other related crimes.
- It shields Muslims from effects that may arise as a result of sins or crimes. For example, transmission of sexually transmitted diseases through crimes likes zinaa.
- Since the prescription is from Allah (SWT), the believers are satisfied psychologically with the nature of the punishment given as fair.
- It helps in reducing the rate of crime in the society because they are meant to instil fear in potential criminals.
Islamic Sharia and Secular Laws
- In Form three, we defined the term Sharia.
- We mentioned that Sharia literally means a path to be followed leading to a watering point.
- The result of following the Sharia is nourishment of the soul from all forms of evils.
- Islamic Sharia involves following the path of Allah (SWT) as enshrined in his revealed laws.
- These laws are found in the Qur’an and Hadith.
- The concept of the Sharia deriving its guidance from Allah (SWT) makes it outstanding and different from secular laws.
Differences between Sharia and secular laws.
|Islamic law||Secular laws|
|Their authority and source is Allah (SWT).||Secular laws are formulated by human beings.|
|Sharia laws take care of both spiritual and materials needs of humankind regardless of time.||They are insufficient, not all inclusive and cannot stand the test of time|
|Allah’s laws are universal for all Muslims and are uniformly applied in all places.||They are suitable for a particular nation or country depending on the needs of the citizens.|
|They are implemented for the sake of pleasing Allah (SWT) and one earns rewards for observing the Sharia.||Secular laws are implemented with the purpose of meeting only the material and worldly needs of its people and the state.|
|Allah (SWT) Has promised to protect the main source of Islamic law. That is the Qur’an. [Q 11:9]||They have limited or no protection at all, may be corrupted easily depending on the individual or group preferences.|
|They are comprehensive and relevant and do not need reforms and can stand the test of time.||They are temporary in nature and depend on the needs and requirements of its members and are often subjected to reforms, amendments or promulgations.|
|They are applicable only to those professing Islamic faith.||Secular laws are meant for all citizens living in that given state, country or nation. Both Muslims and non-Muslims alike.|
|The main evidence for an offence is confession, an oath, or the oral testimony of a witness or item stolen.||Secular laws rely on lawyers, plaintiffs and defendants represent themselves.|
|Trials are conducted solely by the Qadhi, and there is no jury system.||Trials are conducted by the courts at different levels. For example the law courts, courts of appeal and supreme court.|
|The accused are not routinely required to swear before testifying, instead oaths are a sincere method used as a final part of the evidence process.||The defendant must swear before the court that he is telling the truth simply to guarantee the truth of the subsequent testimony.|
|They are perfect, and free from shortcomings.||They may contain defects, errors, ambiguity and many other forms of shortcomings.|
The Concept of Sin and Crime in Islam
- A sin is an action or omission that goes against the commands and limits of Allah (SWT).
- It is a willful breach of the laws and norms laid down by Islam.
- Islam teaches that a sin is an act and not a state of being.
- It therefore can be harmful to the soul and body.
- Even though all human beings are bound to commit sins, Allah (SWT) Has created them with the free will.
- They can choose between good or evil.
- Sins are therefore avoidable but whoever commits them should be quick to seek Allah’s forgiveness.
- Allah is prepared to forgive any Muslim who asks for forgiveness.
- Allah (SWT) described in the Quran: “…Allah will love you and forgive you your sins; for God is Much- Forgiving, Most Merciful.” [Q 3:31]
- Crime refers to any acts committed or omitted in violation of laws forbidding or commanding it for which punishment is imposed.
- Crimes may be committed against the Sharia or secular laws.
- For example, in Kenya, it is a crime to talk, walk or do any activity when the National flag is being raised.
- In Islam a crime is a legal prohibition imposed by Allah (SWT) whose infringement entails punishment prescribed by Him.
- Everything prohibited by Allah (SWT) and his Prophet (PBUH) is a crime and every crime is a sinful act.
- Criminal offenses are liable for punishment by the law both in this world and in the hereafter.
- In Islam, sins are divided as either major or minor.
- Major sins are extremely serious and are mentioned in the Qur’an and Hadith as being worthy of punishment both in this world and in the hereafter.
- Specific warnings and prescribed punishments have been mentioned in the Sharia for these sins.
- Muslims scholars have different views in regard to the definition of major sins, thus bringing variations as pertains to the actual number of major sins.
- However the Prophet (PBUH) presented seven major sins in his Hadith.
- It is reported on the authority of Abu Huraira that the Messenger of Allah (PBUH) observed: “Avoid the seven noxious things. It was said (by the hearers): What are they, Messenger of Allah? He (the Holy Prophet) replied: Associating anything with Allah, magic, killing of one whom God has declared inviolate without a just cause, consuming the property of an orphan, and consuming of usury, turning back when the army advances, and slandering chaste women who are believers, but unwary.” (Bukhari)
- Minor sins are unpleasant or displeasing acts to Allah (SWT) and to your fellow human beings but no specific punishment or severe warning have been issued.
- Performing these acts is punishable before Allah (SWT).
- They should not be taken lightly simply because they are termed as minor.
- Minor sins can lead one to commit major sins when done repeatedly, hence must be avoided under all circumstances.
- Minor sins are innumerable.
- Muslims should be cautious of whatever actions they do lest they sin against Allah (SWT).
- Examples of minor sins are; men wearing gold or silk, laughing at other people’s mistake, masturbation, passing in front of people while they are praying, friendship with immoral people, flattering, selling or buying commodities at lower prices to ruin other people’s business.
- Muslims should strive to perform acts of ibadah correctly, do Adhkar (rememberance of Allah (SWT) among other acts of worship so that they may be forgiven some of their minor sins.
Relationship between Sin and Crime
- Not all sins are crimes and thus vary in their punishments depending on Allah (SWT’s) pleasure.
- Both sins and crimes affect the physical, moral and social order of mankind and therefore must be avoided for the good of humankind.
- Repetition of sins leads to crimes thus damaging righteousness and promoting evil.
- Prohibitions of sins and crimes foster the observation of the goals of Islamic laws.
Effects of sins and crimes
- Performance of sins and crimes has adverse and lasting effects to the society.
- Among these effects include:
- Earning defamatory titles in the society. A person who commits sins will be referred to names denoting his or her evil actions. For example (Abu Lahab-the father of flames, was called so because he used to humiliate the Prophet (PBUH) and the Muslims.)
- A sinner is easily deceived by sheitan to deviate further into sinful acts.
- Allah punishes the people who are involved in sinful acts. Allah (SWT) says, “How many populations that insolently opposed the command of their Lord and of His messengers, did We not then call to account?-and We imposed on them an exemplary punishment.” [Q 65:8]
- Allah (SWT) removes his favours from the land where sins and crimes are committed.
- Prevailing sins lead to calamities in the world. Allah (SWT) says, “Mischief has appeared on land and sea of (the meed) that the hands of man have earned. That (Allah) may give them a taste of some of their deeds: in order that they may turn back (from evil).” [Q 30:41]
- A sinner is continuously haunted and tormented by the fear of being discovered. The Prophet (PBUH) said, “Righteousness is good (deeds), morality and wrong doing is that which wavers in your soul and which you dislike people finding out about.”
- Sins and crimes weaken the iman of a person making then disinterested in righteous deeds and neglecting acts of worship.
- Sinners find it difficult to recite the shahada during the time of death.
- A sinner is disliked by other members of the society because of the evil acts he or she engages in.
- Sinners do not benefit from the duas made for the believers and righteous people by the Angels.
Administration of Justice
- Have you heard of people who are accused of crimes that they have not committed?
- It is very common in the contemporary world for somebody to be convicted of an offence that they did not commit.
- Let us take an example of a student who reports wrong information to the teacher so that another student may be punished.
- It is expected from the teacher to verify the information before making a decision.
- This will help him or her to be fair when awarding punishment.
- This is termed as justice.
- Justice comes from the Latin word Jus which means Right.
- Technically, it is the conformity to what is morally right by treating others fairly.
- Islam lays great importance to the institution of justice.
- Being just should be among the main objectives of any Islamic state or organisation.
- All dealings should be discharged honestly, fairly and impartially.
- It is agreed in both the Islamic and secular laws that justice is about fairness in distributing rights, duties and favours.
- However, administration of justice has a wider scope in Islam ranging from
justice to Allah (by associating no partners with Him), oneself (leading an upright life), other human beings (family, relatives and other people) and other creatures.
- It is emphasised in the Qur’an that justice must prevail:
“Allah commands justice, the doing of good, and liberty to kith and kin, and He forbids all shameful deeds, and injustice and rebellion: He instructs you, that ye may receive admonition.” [Q 16:90]
- Every member of the community must do and receive justice.
- Justice cannot be overseen by one person only.
- There must be an institution that monitors how justice is done and takes corrective measures whenever justice is denied.
- In the contemporary world, this institution is referred to us ‘the judiciary.’
- However, in Islam, the office of the Qadhi deals with all affairs related to justice and matters relating to the Sharia.
- All the rulings are based on the teachings of the Quran and Hadith.
- This is the command of Allah (SWT) when the Qur’an says:
“We have sent down to thee the Book in truth, that thou mightiest judge between men, as guided by Allah: so be not (used) as an advocate by those who betray their trust.” [Q 4:105]
- Administering justice is a great responsibility upon those appointed to exercise authority.
- They have to apply their knowledge, skills and utmost faith in this process.
- Any fairness earns the Qadhi blessings while injustice on his part makes him punishable to Allah (SWT).
- Abu Hurairah reported that the Prophet (PBUH) said, “Whosoever is appointed a judge among men has indeed been slaughtered without a knife.” (Ahmad, Tirmidhi, Abu Daud, Ibn Majah)
- The people who are entrusted with administration of Justice in Islam must put in mind the following considerations:
- Allah (SWT) is the most superior authority whose legislation cannot be invalidated by any other source or authority. Any decisions made should therefore not contradict his decree.
- Administering justice is a divine duty whose objective is to please Allah (SWT). This duty earns rewards. Abdullah-bin-Amr reported that the Prophet (PBUH) said: “When a judge wishes to pass a decree, and then strives hard and decides justly, there are two rewards for him; but when he wishes to pass a decree, and then strives hard but commits mistake, there is one reward for him. (Bukhari and Muslim)
- Justice is a trust from Allah (SWT) and must not be denied to those who deserve it. Abdullah bin Amr reported that the messenger of Allah said: “Verily the just persons near Allah will be upon pulpits of light on the right side of the Merciful.” (Muslim)
- It is a social responsibility that must drive every Muslim towards fair play.
- It should guarantee the freedom and protect the rights of individuals.
- It must be administered by the one who is conversant with Islamic Jurisprudence and has necessary qualities like honesty, integrity and sincerity among others.
- Whoever is trusted with the duty of judgement should be objective. He should not be overtaken by pride or personal interest. Umm Salamah (RAA) reported that the Prophet said: “I am only a man and you bring your disputes before me (for decision). Perhaps some of you may be more eloquent with his arguments than others that I may give decree in his favour according to what I hear from him. Whoso is, therefore, given a decree by me on account of something out of the properties of his brother, he shall not take it. For I am granting him only a portion of fire. (Bukhari, Muslim)
- The term Kadhi (pronounced as Qadhi) comes from an Arabic word Qadha, which means carrying out a decision.
- Technically, it involves making a decision or judgement in accordance with the rules of the Sharia.
- A Kadhi is a Muslim judge.
- He has the duty to make decisions as well as administer justice among Muslims.
- Previous prophets and Messengers were divine judges of their times.
- They carried out their judgement using divine guidance from Allah (SWT).
- The prophet (PBUH) was an exemplary judge.
- He followed the examples of the previous prophets as laid down in the Qur’an. Allah says:
“We sent a foretime our messengers with clear signs and sent down with them the Book and the Balance (of Right and Wrong), that men may stand forth in justice .....” [Q 57:25]
- After the death of the Prophet (PBUH), the four rightly guided caliphs took the leadership of Islam and carried out the passing of judgement and guidance of Muslims.
- Today, Kadhis form part of the judicial structure in Muslim countries.
- They are recognised and incorporated in the judicial system of some countries that follow the secular law.
- In Kenya today the Kadhis court is enshrined in the constitution with a total of thirty five Kadhis.
- They include one chief Kadhi and his deputy, three principal Kadhis, ten Kadhi 1 and twenty kadhi 2.
- The kadhis represent either counties or regions that may constitute more than one county.
Title Total number Equivalent of the Judiciary Chief Kadhi 1 Chief Magistrate Deputy chief Kadhi 1 Deputy chief magistrate Principal Kadhi 3 Principal Magistrate Qadhi 1 10 Senior resident Magistrate Qadhi 2 20 Resident magistrate
Qualities of a Kadhi
- A kadhi has a big responsibility within the Islamic society.
- He must therefore possess such qualities as would make him fit to perform his functions.
- The Quran and Hadith give general criteria for making a ruling.
- Allah (SWT) instructed Prophet Daud;
“O David! We did indeed make thee a vicegerent on earth: so judge you between men in truth (and justice): Nor follow thou the lusts (of thy heart), for they will mislead thee from the Path of Allah: For those who wander astray from the Path of Allah, is a penalty grievous, for that they forget the day of account.” [Q 38:26]
- In another verse, Allah (SWT) says, “Allah doth command you to render back your Trusts to those whom they are due; And when ye judge between man and man, that ye judge with justice: Verily how excellent is the teaching which He giveth you! For Allah is He who heareth and seeth all things.” [Q 4:58]
- Even though the Qur’an does not explicitly mention the qualities of a Kadhi, Muslim scholars have agreed on specific elements to be considered in the appointment of Kadhis.
- These qualities include the following:
- A Kadhi must be a practicing Muslim with sound aqeeda (belief).
- He should be conversant with Islamic Law (that is, Qur’an, Hadith, ijma and Qiyas) and Arabic language.
- He should have Taqwa (fear for Allah) and dignity.
- He should be a mature person of sound mind.
- He must be a free citizen of the state (that is not a slave). This will make him execute the judgement without compromise.
- He should not be suffering from any physical impairment that may hinder his judgement or ability to interpret the evidence. For example, Muslims with hearing or visual impairment.
- He should be pious, honesty and should not have been convicted of any criminal offence.
- He should be morally upright and have a high standard of integrity. He should not ask for or accept bribes, meet any parties in private or practice nepotism.
Functions of a Kadhi in Kenya
- He makes decisions on cases and solves any conflicts or disputes among Muslims. For example, cases on divorce, inheritance among others.
- He makes pronouncements of the rulings that have been made at the Kadhi courts.
- He supervises the other staff members under his jurisdiction.
- He represents Muslims during public functions like the National Holidays.
- He is the intermediary between the state and the Muslims.
- He provides general guidance and counseling to the Muslims.
- The chief Kadhi represents Muslims of Kenya at international Islamic fares.
- He leads the rest of the Muslims during Islamic functions and ceremonies. For example, Nikah and Idd prayers.
- They take part in the appointment of guardians for minors or the mentally challenged.
- They give guidance on the execution of wills of the deceased.
Code of Conduct for Kadhis
- Dispense justice at the time when he is in good state of mind. Therefore he should not be angry, hungry, tired, sad or sick.
Abu Bakrah (RA) reported: I heard the Messenger of Allah (PBUH) say: “No judge shall pass a decree between two men while he is angry.” (Bukhari, Muslim)
- Listen to both parties before passing a judgement. This should happen everywhere in the same manner: Ali (RA) reported: The Messenger of Allah sent me to Yemen as a Judge. I said: ‘O Messenger of Allah! You are sending me while I am young in years and I have no knowledge of judgeship?’ He said: ‘verily Allah will soon give guidance to your heart and make your tongue firm. When two persons come to you for decision, don’t give decree in favour of the first till you hear the argument of the other, because that is more necessary
that decision may become clear to you.’ He said: I had afterwards never entertained any doubt in decisions. (Tirmizi, Abu Daud, Ibn Majah)
- Show a positive and objective attitude. There should be no evidence or suspicion that he is favouring one party or group over the other.
- He should not be overcome by temptations to bribe nor accept any favours. Allah (SWT) has warned that: “And eat not up your property among yourselves in vanity, nor seek by it to gain the hearing of the judges that ye may knowingly devour a portion of the property of others wrongfully [Q 2:188].
- He must dress decently so as to uphold his dignity and status.
- He should neither judge cases, nor stand as a witness against his close relatives, friends and enemies as this may raise suspicion.
- He must be able to gather full evidence and sufficiently use it in judgement.
- He must be able to give fair judgement without fear or favour. Nobody should be favoured by the judicial system.
Rules of Evidence
- Giving evidence is an important aspect of administering justice.
- Any truth that is sought must be proved beyond doubt.
- Every citizen is deemed to be innocent before the law until he or she is proved guilty.
- There must be sufficient evidence for any accusation.
- Amr bin Shuaib (RA) reported that the Messenger of Allah (PBUH) said: “Proof is upon the plaintiff and oath is upon the defendant.” (Tirmidhi)
- The following should be considered while giving evidence:
- There must be reliable witnesses. Two reliable male witnesses, except for evidence of adultery that must be proved by four witnesses. In the case of female witnesses, then they should be two female and one male.
- The witnesses must be fair and just while giving their evidence, even if it is against one’s personal interest or that of their confidants. Allah (SWT) says: “O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor…” [Q 4:135]
- The witnesses should not avoid or conceal evidence when asked to testify.
- One should swear by the name of Allah (SWT) that he will speak the truth in giving evidence.
- The background of the witnesses must be established so as to ascertain their trustworthiness.
Meaning of Tawba
- Allah (SWT) Has created humankind as a unique creature with an intellect and a free will and provided him with divine guidance.
- Human being can therefore use their intellect to choose to do good or evil.
- By doing what is good, they earn rewards while (SWT’s) punishment awaits them for any wrong that they do.
- Allah (SWT) informs humankind that: “Whoever works righteousness benefits his own soul; whoever works evil, it is against his own soul; nor is your Lord ever unjust (in the least) to His servants.” [Q 41: 46]
- Allah (SWT) knowing the limitations of humankind gave them an opportunity to ask for his forgiveness and repent for the sins committed or actions omitted.
- The act of being remorseful and repenting to Allah (SWT) is referred to as tawba.
- Tawba means returning to Allah and begging for safety from the evil of what one fears in future.
- The concept of Tawba, which is also an attribute of Allah (SWT), goes hand in hand with forgiveness.
- In form three we discussed the virtue of forgiveness.
- We defined forgiveness as act of feeling sorry for an offence done.
- We mentioned that Allah (SWT) is oft forgiving and readily forgives any of His servants who repent. Allah (SWT) says, “Unless they repent thereafter and mend (their conduct); Allah is Oft Forgiving Most Merciful.” [Q 24:5]
- Allah (SWT) also says, “He is the One that accepts repentance from His Servants and forgives sins: And He knows all that ye do.” [Q 42:25]
- The prophet (PBUH) encouraged his companions and the Muslim Umma to be steadfast in seeking Allah (SWT’s) repentance in the morning and evening.
- Even though life is full of temptations and human beings are bound to transgress from the limits set by Allah (SWT), Muslims should guard themselves against heinous sins that earn the wrath of Allah (SWT).
- The Prophet (PBUH) said, “Every son of Adam is liable to commit a sin, and the best among the sinners are those who repent.”
Conditions for Tawba.
- We learnt earlier in this chapter that Allah (SWT) forgives any of His servants who ask for His forgiveness.
- However, repentance is something more than seeking forgiveness.
- This is a serious matter that involves Allah (SWT) and His creature.
- There have to be strict conditions governing this process.
- In order to earn Allah (SWT’s) forgiveness after repentance, one must fulfil the following conditions.
- He or she must stop doing the sinful act and renounce it immediately.
- He or she should hasten to repent. Any Tawba at the time of death shall not be accepted.
- One must make a firm commitment not to return to the sinful act again.
- One must feel sorry and sincerely regret for having committed the sin.
- If it involves the rights of others, for example stealing, then the stolen property must be returned to the owner or compensation done. You should also ask for forgiveness from those you wronged. If it involves the rights of Allah (SWT), then you should make, up if possible, for the duties you missed in the past like paying zakat
- In the process of asking repentance one must have a strong believe that Allah (SWT) is ever ready to accept our repentance.
Significance of the Concept of Tawba
- Among the acts that Allah has mostly preferred is when his creatures seek his forgiveness and repent.
- Tawba is therefore very important in the life of every Muslim.
- Allah (SWT) has ordained mankind to seek forgiveness.
- Therefore, through Tawba, a believer gets a chance to be forgiven by His creator. Allah (SWT) says, “But he who repents and believes and does good deeds, then Allah will change the vices of such persons with virtues. And Allah is Forgiving, Merciful.” [Q 25: 70]
- Allah (SWT) also says, “Seek the forgiveness of your Lord, and turn to Him in repentance.” [Q 11:3]
- Repentance cleans the heart of a believer from the stains of sins.
- The Holy Prophet (PBUH) said, “When the servant of Allah commits a sin, it takes the form of a black stain inside his heart. Then, if he repents, seeks refuge and begs for forgiveness, his heart will be cleansed of that stain. But if he does not repent, does not resort to humble entreaty and does not beg for forgiveness, sin will be added to sin, and blackness to blackness, until his heart becomes blind and he must die.”
- Allah (SWT) changes the minor sins of those who repent to good deeds. Allah (SWT) says, “…Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allah will change their sins into good deeds, and Allah is Oft-Forgiving, Most Merciful.” [Q 25:68]
- Allah (SWT) is so Merciful that he even asks the Angels to delay recording our bad deeds so that we may have time to repent.
- Ibn Abbas (RA) reports that the Prophet (PBUH) said, “When the servant repents, and when Allah relents towards him, Allah causes that servant's
angelic custodians to forget the bad deeds he has committed. He also causes his physical limbs and organs to forget the sinful actions they have committed. So when he comes forth on the Day of Resurrection there will be nothing whatsoever to bear witness against him.”
- It instils in a believer innermost peace and removes guilt of the sins previously committed.
- The Prophet (PBUH) stated that, “He who repents his sin is like someone who is guiltless of that sin even if he has repeated it seventy times in a day.”
Among other significance of Tawba include:
- To gain the love, mercy and kindness of Allah (SWT) since He loves those who repent over their sins.
- To prevent one from repeating the sin committed. This is among the conditions of acceptable Tawba.
- To regulate the relationship between a Muslim and with His Maker.
- To draw humankind closer to paradise.
- To enhance good relationship between mankind as it promotes the virtue of forgiveness amongst people.
- To develop one’s Taqwa as one must regret for the sins committed during the search for Tawba.
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