Jude O. Ezeanokwasa, Ph.D., J.C.D.Wednesday, July 13, 2011
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1. Introduction

n the recent past I have read some articles on the introduction of Islamic Banking in Nigeria under the Sanusi's headship of the Central Bank of Nigeria (CBN). None is as mischievous and provocative as the efforts of Mr. Disu Kamor, the Director of Media and Communications, Muslim Public Affairs Centre, (MPAC), Nigeria, to malign the Nigerian Christian Community as an anti-Islam, intolerant and unpeaceful people. His article "Kamor: CBN, Islamic Banking and The Guardian" was published on the June 13, 2011 online edition of your newspaper. My writing is partly to respond to some of the defamatory statements, disingenious and disingenuous rhetorics of Mr. Disu and partly to bring out some deeper constitutional and practical realities connected with the introduction of Sharia banking and their threat to the cooperate, integral and harmonious existence of Nigeria.

In his defence of Islamic Banking he quickly reverted to the illogical rhetoric of regarding opposition to Sharia banking as opposition to Islam, Islamophobia and bigotry, thus calling opponents of Sharia banking opponents of Islam. This is an unfortunate logic which is like saying that opposition to a Muslim is an opposition to Islam, implying therefore that if a Muslim for instance does something wrong it is Islam that did something wrong. This is self-defeating reasoning and serves no more than a media stunt.

The search for the unity of the country has never been more expedient than now with the sharp ascendancy of religion to the center place of the country. The Sharia in the north has drawn a big wedge into the heart of the country cracking it up and pushing it apart. With the same intent is the issue of Sharia banking, which should however, not be a surprise to anybody that understand the aims, purposes and operations of the OIC.

2. Sharia Banking and Right to Freedom of Religion

One argument of Mr. Kamor in defence of Sharia banking is built on the religious rights of Muslims. He reasoned that "In any secular country that respects citizen rights, Muslims must have the right to practice their faith totally, and it is a constructional duty that the state does not interfere with this right, but enable it." This position is born out of an unfortunate misunderstanding of the most elementary nature of human rights rooted in the nostalgic desire of some Muslim elite to create the pre-state Muslim community. (see An-Na'im, A. A., "Sharia Cannot Be Enforced as State Law", https://blogs.law.emory.edu/nigeriasharia/an-naim-article) No human right is total or absolute. Every human right including the right to freedom of thought, conscience and religion guaranteed by section 38 of the 1999 Constitution of Nigeria is in principle derogable and is in actual fact limited by a number of factors, particularly the presence of people with other religions who have equally the right to freedom of religion and equality of their religions with those of others.. Section 45 of the Constitution deals with the restriction and derogations from fundamental rights and it provides in paragraph 1 "Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society - (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons. That human rights of one person are limited by the human rights of others is captured by the saying that a person's human rights begins where that of others ends. This is an echo of the saying of the French philosopher, Jean Jacque Rousseau who said that man is born free but everywhere in chains. Rather than being a principle for a capricious, selfish, fundamentalistic and myopic interpretation of human rights as Mr Kamor has done, it underlies the principle of restraint and responsibility in human rights. Any person claiming or enjoying human rights has the obligation of factoring into the equation the fact that others have the right to enjoy similar rights and so he must allow corresponding space for them. This is the inherent principles of tolerance and restraint in a genuine, reasonable and democratic understanding of human rights. The totalitarian understanding of human rights Mr Kamor is espousing is already in place in places in Middle East, North Africa and the Sharia states of Nigeria and the consequences are clear in the persecution of non-Muslims, particularly Christians, with their civil, social, cultural and economic rights denied; their physical life is no less compromised as it has no equal value with that of Muslims under the law in those places.

Moreover, the issue of Sharia is a constitutional matter and any person who seeks to have the constitution maintained especially with regard to norms that are fair is a patriot and should not be calumniated or branded an enemy of Islam or termed islamophobic or given any such names.

He who wants equity must be ready to do equity. The protagonists of Sharia banking claim it is their religious right under the Constitution. Any right justifiably guaranteed by the Constitution must be consistent with the Constitution; it must respect the constitutionally established institutions, procedure and bodies. The right must be exercised under the Constitution and not outside it or else we would have a right rooted in the Constitution but operating beyond the constitution. This is anomalous and this is the situation Sharia banking is creating. The supreme executive, legislative and judicial bodies under our constitution are the Presidency, National Assembly and the Supreme Court respectively and according to Mr. Kamor, the Sharia bank under the CBN, a federal statutory body created or deemed to have been created by National Assembly, will be regulated by Muslim jurists or experts whose interpretations and regulations are guided by Islamic jurisprudence (depending on which school of jurisprudence one belongs), which is not subject to the constitutionally established governmental institutions. If the National Assembly enacted the BOFIA (Banks & Other Financial Institutions Act) providing for interest-free banking, then that form of banking must be run subject to the Constitution, meaning it must be operated according to the secular constitutional principles, otherwise, it would be unconstitutional. The idea of the Constitution creating an interest-free banking (Islamic Banking), through the National Assembly, that will operate outside of the Constitution is against the doctrine of constitutional rule of law and so a legal monstrosity and absurdity of no small scale. Truly, the belief of the Sharia banking advocates in the unity and stability of the country should be questioned seriously. The endgame of this constitutional anomaly is the gradual ousting and supplanting of the powers of the President, the National Assembly and Federal Judiciary in the regulation of the economic and financial life of the Sharia states that currently enjoy a great level of legal independence from the center as proved by the Ahmed Sani Yerima case. In this artifice, the intolerant is neither the Christian community as insinuated by Mr. Kamor nor any other person raising his/her voice for constitutional secularity and against Sharia banking, but are the ilks of Mr. Kamor who want to create exclusive economic, financial, labour and political channels for themselves from the public coffers.

3. Islamic Banking or Interest-free Banking?

The efforts of Mr. Kamor to prove that interest-free banking is synonymous with Islamic banking are most devious and ludicrous. He had attacked the Guardian Newspaper for pointing out that what the BOFIA approved was interest-free banking and not Sharia banking. This is a matter of simple logic. Islamic banking may offer interest-free banking like any other system of banking but there is no way interest-free banking is coterminous with Islamic banking. This is analogous to the case in Indonesia where some Muslims argued that no religion apart from Islam should use the Arabic word Allah for God on the claim that it belongs exclusively to Islam. The justices of the Indonesian Supreme Court knew better and overruled them stressing that Allah is the Arabic word for God and is open to anybody and not a property of Islam. As I already said, if the National Assembly created the possibility of interest-free banking, such a banking system must operate according to the secular principles of the Constitution, the jurisprudence governing it must be a secular one and nothing else. Consequently, any attempt to foist Islamic Banking into non-interest-banking is illegal and unconstitutional. By doing this Lamido Sanusi is coming clean of his intentions and agenda at the CBN. We can now understand the motivation for his dictatorial sack of some Bank CEOs and replacing them with people that would be beholden to him. Some courts are already condemning his actions. We can now understand why he took energy and time going around in the northern parts of the country denigrating the conventional banking system and campaigning for Islamic banking as the new messiah to save Nigeria from economic recession.

4. Christians and Muslims; who hates whom?

It is as ironical as it is curious that Mr. Kamor in his article accused members of the Nigerian Christian Community of hatred and intolerance towards Muslims. According to him, "The Nigerian Christian community has to re-assess how it deals with the Muslim community in Nigeria as regards legitimate yearnings, aspirations and rights of the Muslims community. Unbriddled hate and religious antagonism of some within that community of everything Islamic is only a bad reflection of their own state and how much they have moved away from the peaceful and tolerant pristine gospel that Jesus Christ (AS) preached and live by." This is the height of intellectual dishonesty and insult to the sensibilities of the sincere people that know the hatred and intolerance exuding from the Nigerian Muslim Community. It is extant rule of evidence that he who vouches his good behavior or attacks the character of the other person makes his own character an issue. The northern part of Nigeria undeniably has Muslim majority while the south is more Christian. On who hates and resents the other, the statistics given by Dr. Mu'azu Babangida Aliyu, a Muslim, the governor of Niger state and the Chairman of the Northern States Governors Forum says it all: "Statistics of religious crises across the country show that at least 95 per cent of them occurred in the northern part of the country and that is a matter of concern to the Northern States Governors Forum", (Vanguard, Online newspaper, Saturday, August 29, 2009, https://odili.net/news/source/2009/aug/29/307.html). And it is always Muslims on Christians. He made this remark in the context of the first ever audience given by the Northern Governors Forum to Christians in the north for the decades the Forum has been in existence. Even at this meeting some governors dashed out form the venue in rebellion to the idea of given audience to Christians. It is in Oyo state that members of the Muslim community are opposing the return to their owners of mission schools forcibly taken over by government. Their reason for the opposition is that public fund has been used to maintain them since they were taken over. This argument is like saying that it has cost an armed robber money to keep his loot and so it should now belong to him. The hatred and malice behind this argument is palpable. The statistics given by Governor Aliyu has not improved anyway as the killing of innocent Christians by Muslims has not stopped. In the past it was the Maitatsina and today it is Boko Haram from the same Muslim majority north letting blood and disturbing the peace of the country. Do I need to still go on to convince Mr. Kamor that he is most insincere and perhaps part of the problems by accusing Nigerian Christians of hate and intolerance? With influential people like Mr. Kamor turning around to accuse Christians for the very hate and intolerance they are victims of on a regular basis, a fact even known internationally, there does not appear to be the hope that Christian peace and tolerance will ever get reciprocation from the Muslim community represented by Mr. Kamor.

In any case, there is one truth I can vouch that Mr. Kamor knows; it is that Jesus Christ preached peace and tolerance and live by them. Mr. Kamor affirmed this from the bottom of his heart. May this peace and tolerance of Jesus Christ be found in Mr. Kamor's Muslim community. However, a question that follows is, does the introduction of Islamic banking by the CBN that is jointly owned by Nigerians of all religions and faiths promote the type of peace and tolerance preached and lived by Jesus Christ? The answer is a big no.

5. Legal and Constitutional Incongruities with Sharia banking

The legal consequences of the introduction of Islamic banking deal yet another deadly blow to the constitutional secularity, unity and sovereignty of the country. Item 6 of the Exclusive Legislative List of the 1999 Constitution reserves legislative competence on banks, banking, bills of exchange and promissory notes to the competence of the National Assembly, while section 10 of the same Constitution prohibits both the federal and state governments from making any religion the state religion. The introduction of Islamic banking, to be run according to Islamic jurisprudence by the CBN, automatically means the federal government ceding its powers, legislative, executive and judicial, for the regulation of banks and allied matters to Islamic Mullahs and thus, to Islam; an act that ipso facto turns Islam a federal religion. The significance of the secularity of the Constitution as embodied in section 10 of the Constitution is that no aspect of governance, federal or state, should be run according to the exclusive dogmas or jurisprudence of any religion. This is exactly what the federal government is doing through the CBN and also by allowing the existence of Sharia states.

This unconstitutionality still remains even as the CBN has turned around to acknowledge that non-interest-banking is not synonymous with Islamic banking, but only a variant of it. As long as Islamic banking, by whatever name it is called, is operated according to Sharia law or Islamic jurisprudence, it is in breach of the secularity of the Constitution as it is to that extent an imposition of Islam on the country.

Islamic banking is a lethal attack on the sovereignty of Nigeria. The sovereignty of Nigeria which resides in the citizens is centered in the tripartite government institutions of the executive, the legislature and the judiciary. Sharia banking, in so far as it is not regulated by these institutions, creates a parallel government in Nigeria. It creates its own legislative body to enact the rules that will regulate it, it enacts its own offences, its own rules of evidence, trial, and punishment; it constitutes its own tribunals and courts and establishes its own chief executives to implement its rules and carry out its judicial pronouncements. All these institutions will exist independent of the ordinary governmental institutions established by the Constitution, thereby creating critical rule of law issues. If Muslims must have their Islamic experts to make rules and regulations for the operation of Islamic banks, would Muslim legislators at the National Assembly participate also in regulating non-Islamic banking or interest-banking? Doing that would of course amount to legislative double-dipping, an obvious injustice and dictatorship to all non-Muslims as Muslim legislators would be making regulations that would not, in principle, bind them. Since Islamic banking has been presented to be in opposition to the conventional interest-banking, there is strong likelihood of bias on the part of any Muslim legislator participating in the regulation of the conventional interest-banking. Moreover the personnel to run these Sharia institutions must be Muslims. This would mean the Federal Government introducing religious criterion for employment and access to fund, all in contravention to section 42 of the Constitution and the UN conventions it acceded to or ratified, especially the UN charter, forbidding such discriminations. In the end the supremacy of the Constitution would have been tossed and displaced. What Sharia banking does then is to break up the country as it will foist an Islamic state on the Constitution.

The introduction of Sharia banking for Muslims creates serious confidence issues in the administration of the CBN. Can a Muslim whose faith forbids interest-banking be at the headship of the CBN? Or will the CBN be split for Muslims and non-Muslims. Just as a non-Muslim will not be accepted by Muslims to head and regulate Sharia banking, it will be abnormal to have a Muslim head non-interest banking for the obvious reason of conflict of interest and high probability of bias.

A corollary to this is the security risk the operation of Islamic banking poses to Nigeria. As Islamic banking creates a government outside of the federal government, it creates its own international relations and liaisons independent of the ordinary institutions of the government. Islamic banking is a child of the OIC and article 34(1) of the new (2008) charter of the OIC provides that "The Organization shall enjoy in the Member States, immunities and privileges as necessary for the exercise of its functions and fulfillment of its objectives". Nigerian being a member of this organization, the operations of Sharia banks via the OIC is immune from security checks. The sources of Sharia banking funds and its ultimate destination in the country will not in principle pass through the President, and especially if the president is non-Muslim.

6. On the merit of Islamic banking

It may not need a professor of banking to see that the logic that zero-interest-banking will alleviate poverty is suspect. The common sense caution, 'when the offer is too good to be true, beware' is very relevant here. Countries claiming great impact of Shariah banking on development are Egypt, Senegal, Malaysia and Turkey. Some observers and analyst of the system like Aaron MacLean wrote: "Islamic financial institutions, the argument went, would boost the economic development of Muslim societies. The fraternal style of Islamic banking-with its emphasis on equity financing rather than lending-would enhance social responsibility. In practice, however, Islamic finance has had to bend to the same pressures as any other kind of finance. Social, religiously oriented investment in the development of the Islamic world is something people are more interested in publicly championing than personally doing (Aaron MacLean, "Islamic Banking: Is It Really Kosher?", The American, The Journal of the American Enterprise Institute, Online, https://www.american.com/archive/2007/march-april-magazine-contents/islamic-banking-is-it-really-kosher). Khalid Ikram, who represented the World Bank in Egypt where the first modern experiment (1963-67) with Islamic banking was undertaken ( https://www.usc.edu/dept/MSA/economics/islamic_banking.html), said of Islamic banking, "it hasn't had a lot to do with development" (Aaron MacLean, op. cit.). For Christopher Watts, lack of transparency in the system is an issue of concern. It is a theocratic system where the precise guidelines or principles are not open to logic but are determined by people whose interests are only theocratic orthodoxy. This leads to the big problem he found in the system, which is the fact that the precise guideline or operational principles depends on one's Shariah jurisprudential school. Various Islamic schools have their own banking rules (Christopher Watts, 'Is Islamic finance at tipping point?' https://www.economist.com/sponsor/qfc/index.cfm?pageid=article104.)

7. Conclusion

Sanusi has shown that he is rather an Islamist politician rather than a financial expert with the cooperate welfare of every Nigerian at heart. It is better he is shown the way out having lost the confidence of the secular sector of the economy, particularly for the conflict of interest in him heading the interest-banking that he has declared his religion abhors. And it is time legal steps are taken to challenge the constitutionality of his actions, the BOFIA and the complicity of the federal government in this effort at islamizing the country. To be also challenged are the constitutionality of Nigeria's membership of the OIC, the Sharia states in the north and Nigeria's membership of the Islamic Development Bank (IDB). The most unfortunate thing is that the non-Muslim community of Nigeria has had the tradition of talking more than taking concrete steps towards redressing the gradual islamization of the country. Prominent among those who suffer the most and will still suffer more the islamization of Nigeria are Christians. Therefore, the leadership of Christians, the CAN (Christian Association of Nigeria), becomes a principal stakeholder on this matter and should be all out with serious plans to challenge this gradually but steady assemblage of both the legal and economic weapons that will be used more dreadfully on her and her citizens-members like in the Middle East and North Africa. Efforts should go far beyond the usual communiqu�-responses in the past. In actual fact, from the perspective of Christians being the largest in the non-islamist sector of the country, they are, as a body, responsible for the islamization of the country by their inaction and many a time na�ve concessions and preachment for peace on related matters with scarcely any attention on justice. Real peace must be based on justice.