By Rabi’u Muhammad Gama
The Kano State Hisbah Board (hereinafter referred to as “the Board”) has been an object of controversy, particularly on social media, for quite some years – probably right from the inception of the Board. The controversy usually surrounds the way and manner by which the Board, or more properly, the foot soldiers of the Board (the Hisbah Corps), carry out its, supposedly, statutory responsibilities (functions), ranging from matchmaking, reconciling civil disputes between persons and/or organisations, seizing and destroying bottles of alcohol, imposing a certain mode of dressing on people to waylaying young people, especially males, when they seem to have a certain objectionable hairstyle considered to violate Islamic morals.
Even though some historical accounts of the philosophical underpinnings behind the evolution of Hisbah will be very rewarding for a better appreciation of the topic, this article restricts its scope to the constitutional status and the functions of Hisbah as provided for in the Kano State Hisbah Board Law No. 4 of 2003.
The Constitution of the Federal Republic of Nigeria
The Constitution of the Federal Republic of Nigeria, 1999, (hereinafter referred to as “the Constitution”) is the Supreme Law of the Land. It is the Law over and above which there is no other law. As such, if any other law, either deliberately or by necessary implication, happens to be inconsistent with the provision of the Constitution, the Constitution shall always prevail, and that other law shall, to the extent of its inconsistency, be void and of no effect whatsoever. See Section 1(1)(2)(3) of the Constitution.
The Constitution is not only the Biggest Law of the Land, but it is also the Fountain Law of the Land from which all other laws flow. It (the Constitution) distributes legislative powers between the federal and state legislatures. Section 4(1) confers on the National Assembly(which comprises the Senate and the House of Representatives) the power to make laws for the whole country or any part thereof. Section 4(6) likewise empowers the State House of Assembly to make laws for the state or any part thereof. However, these powers are to be exercised within some certain constitutional limits: the National Assembly cannot legislate outside the Exclusive Legislative List and the Concurrent Legislative List, while the State House of Assembly cannot, and shall not, trespass upon the Exclusive List. This clear distribution of powers forms the foundation of the debate as to the legality of the Hisbah Board Law, but that should be a topic for another day.
In response to the then prevailing circumstances and mounting agitation for the reintroduction of Shari’ah in the State, which was sparked by the reintroduction of Shari’ah in Zamfara State, the Kano State House of Assembly exercised the powers given to it by Section 4(6) of the Constitution by enacting a law known and cited as “The Kano State Hisbah Board Law No.4 of 2003, which brought the Hisbah Board into existence.
The Hisbah Board Law
The Kano State Hisbah Board Law, 2003 (hereinafter referred to as “the Law”) came into force precisely on the 7th day of November 2003. The law is relatively short: it has 17 Sections only. Section 3(1) of the Law establishes for the State “…a Board to be known as the Kano State Hisbah Board”. “This Board”, says Section 5 of the Law, “shall be responsible for general policy-making as well as coordination of activities between State and…Local Government Hisbah Committees”.
Section 7(1) of the Law empowers the Board to establish the State “Hisbah Corps”, who, according to the Section, may be eligible for appointment as Justices of Peace. By virtue of Section 7(2), the Corps so established shall be under a Commander who shall be appointed by the State Governor. And the duty of the Commander of the Corps, by virtue of Section 7(3), shall be the general administration of the Corps.
According to Section 11(1) of the Law, the Board shall have a Secretary who shall be appointed by the State Governor. The Secretary to be appointed shall be a legal practitioner with not less than 6 years of post-call experience. That Secretary shall be both the legal adviser and the head of the legal department of the Board.
It is important to assert, at this juncture, that the Kano State Hisbah Board, in spite of the raging debate going on in the legal cycle, is a legal and lawful organisation/institution which is duly and validly created by the Kano State House of Assembly pursuant to Kano State Hisbah Board Law No.4 of 2003. See also the case of Yahaya Farouq Cheɗi v. A.G Federation (2006) 13 NWLR (Pt.997) 308 (CA).
Duties of the Hisbah Corps
The Hisbah Corps, created by Section 7(1) of the Law, is the most active arm/department of the organisation. The Corps is the foot soldiers and the chief executor of the responsibilities of the organisation. For the sake of clarity and precision, below are the functions, or rather, responsibilities of the Hisbah Corps, as provided for under Section 7(4) of the Law. According to the said Section, the Hisbah Corps shall have responsibilities to:
Render necessary assistance to the Police and other Security agencies; encourage Muslims to unite in their pursuit of justice; encourage kindness to one another; advise against acquiring of interest, usury, hoarding and speculation; encourage charitable deeds, particularly the payment of Zakkah; give advice on moral counselling; encourage orderliness at religious gatherings; encourage general cleanliness and environmental sanitation; reconciling of civil disputes between persons and/or organisations where parties are willing; assisting in traffic control; emergency relief operations; assisting in any other situations that will require the involvement of Hisbah.
Anything other than the above is beyond the statutory functions of the Hisbah Corps. This begs the question: can the Hisbah Corps give itself powers or functions that are not given to it by its enabling law? The answer is “No”! And one fundamental thing that can be deduced from the above functions is that the Corps seems not to have any “actual power” to execute anything. The Law seems only to empower the Corps to “advise”, “encourage,” and “assist”, nothing concrete and definite! The Hisbah Corps clearly has no power to arrest, detain, waylay or force anybody to do anything against his or her will. The Law could not be clearer, and it is there for all to see.
The Constitution of the Federal Republic of Nigeria, 1999, is the first and the ultimate law of the country, the Grundnorm of the Land, so to speak. It creates and empowers the Kano State House of Assembly to make law for the peace, order and good government of the State or any part thereof. It is in the exercise of these powers that the Kano State House of Assembly made the Kano State Hisbah Board Law No. 4 of 2003, which brought into existence the Kano State Hisbah Board. The Kano State Hisbah Board Law, 2003, also creates the Hisbah Corps and empowers it with some specific functions and/or responsibilities.
It is the view of this writer that any act, no matter how noble or well-intentioned, done by the Board or the Corps must be in accordance with the provisions of the Kano State Hisbah Board Law, 2003; otherwise, the act is illegal, unlawful and ultra vires. And where an act of the Hisbah Board, or the Hisbah Corps, happens to be in conformity with the Kano State Hisbah Board Law, 2003, but not in conformity with the Constitution of the Federal Republic of Nigeria,1999, or any other law validly made by the National Assembly, then the Constitution, or the law of the National Assembly, shall prevail and that act stands unlawful and illegal, no matter how religiously rewarding or well-intentioned the act is. See the case of Musa v. INEC (2002) LPELR-11119 (CA).
Rabi’u Muhammad Gama is a Law student; he writes from the Faculty of Law, Bayero University, Kano, BUK. He can be reached via firstname.lastname@example.org.