For non-Muslims, Sharia law is often associated with savage punishments, intolerance and the policing of morality — especially of women. But in most cases, this isn’t the reality on the ground in Africa, experts say.
What is Sharia?
Sharia refers to the system of duties and obligations that govern all aspects of Muslim life, from personal and public behavior to religious observance, as well as family and business matters.
The rules come from many sources, including the Quran — the Muslim holy book — and the Sunnah, writings about the prophet Muhammad’s sayings and deeds, known as the hadith.
Islamic laws are based on interpretations of the Sharia.
What does Islamic law in sub-Saharan Africa look like?
There is no simple answer, because Islamic law is interpreted and applied differently across the Muslim world — including across Africa — says Hatem Elliesie, the Acting Professor for Islamic Law at the University of Leipzig in Germany.
“Of course, different countries in Africa have different trajectories, different interpretations of Islam and different producers and implementers of Islamic law. And accordingly, the practice varies,” Elliesie told DW.
Sharia in the constitution
Several African nations, such as Somalia and Mauritania, have embedded Sharia into their constitutions.
“No law which is not compliant with the general principles of Shari’ah can be enacted,” reads Somalia’s constitution, which was adopted in 2012.
But this doesn’t mean that Somalia is an Islamic State with a harsh interpretation of Sharia comparable to Iran or Saudi Arabia.
Rather, in Somalia, Islamic law runs in parallel with a customary legal system known as xeer.
The Horn of Africa country has no official Sharia institutions and Sharia “largely plays an informal role,” according to a 2020 USAID report on Somalia’s justice system.
A mixed model
As they gained independence, many African countries with Muslim populations brought in secular judicial systems.
At times, these systems were supplemented with Sharia courts whose jurisdiction was frequently limited to “personal status.” This covers matters such as marriage, divorce, inheritance and guardianship.
For example, Kenya’s legal system allows Muslims to bring personal status matters before Kadhi (Sharia) courts. Similar systems also existin the Gambia and Uganda.
“People are using those court procedures where they get the most benefit from the situation,” said Hatem Elliesie. “That is pretty common in sub-Saharan African states — that people use both the state court system and the religious court systems depending on what they are trying to get out of a dispute.”
Secular Muslim nations
At the other end of the spectrum in Africa are countries like Burkina Faso and Senegal.
These West African countries have secular legal systems that theoretically have no provision for Sharia courts — even though the majority of their populations are Muslim.
However, this legal code does not reflect reality on the ground. Many Senegalese for instance, make call on imams to regulate family matters like marriage and divorce.
“The state courts are sometimes not meaningful for [Senegalese Muslims] because the state is secular but the population is religious,” Senegalese political scientist Bakary Sambe told DW.
“So it is important for them to have integration between their daily lives and their beliefs.”
Why is Islamic criminal law controversial?
Punishments for crimes under Sharia law are often seen as inhumane. Crimes such as theft, apostasy, sex outside of marriage and some homosexual acts can be punished with amputation, caning, flogging and even death.
However, most African nations with Islamic law don’t use this as a basis for their criminal code.
But Nigerian Sharia courts do.
An Islamic court in Nigeria’s Kano State sentenced musician Yahaya Sharif-Aminu to death in 2020 after finding him guilty of making a blasphemous statement against the Prophet Mohammed. An appeal panel last year ordered a retrial.
But the situation isn’t as bleak as it sounds, according to a University of Oxford study examining Sharia punishments in northern Nigeria between 2000 and 2015.
“Islamic criminal law was not being imposed on non-Muslims against their will, and serious punishments such as amputations and stoning to death were rarely being imposed — and where they were imposed, were not being executed,” researchers found.
Only one person has been executed since 12 Muslim-majority states embraced Sharia law.
Amina Lawal (far right) was sentenced to death by stoning for adultery by a Nigerian Sharia court in 2003. The sentance was later overturned by the Sharia Court of Appeals, which ruled that it violated Islamic law
The Horn of Africa nation of Sudan — under the rule of former President Omar al-Bashir, who was deposed in 2019 — also had a reputation for harsh punishments.
In 2020, Sudan’s transitional government abolished some of its Sharia-based criminal laws, including removing the death penalty for same sex relationships, scrapping its apostasy law, as well as the use of public flogging as a punishment.
What about women’s rights under Islamic law in Africa?
Women’s rights groups often argue that Islamic law is particularly unjust towards women and girls.
For example, in a quadi (Sharia) court, a woman’s testimony is worth half of a man’s testimony. In addition, women generally inherit a smaller share than men and a daughter will receive an inheritance half of her brother’s share if their father passes away.
“The personal status laws are where people [in Sudan] want to see the biggest change,” Kholood Khair, the managing partner of the Sudanese think tank, Insight Strategy Partners, told DW.
Traditionally, she explained, the brother’s portion is double because he was supposed to look after his sister financially.
“In a modern sort of reframing of gender politics, he wouldn’t need to look after her, and therefore they should get an equal amount, which countries like Tunisia have enacted,” she said. “That’s where we’re seeing more progressive elements following a revolution, unlike in Sudan.”
But women aren’t always worse off under Sharia law in Africa. In Somalia, women have the right to inherit under Sharia law, whereas they don’t under xeer customary law.
In northern Nigeria, the Oxford University Study found women “benefited from the speedy, familiar, non-technical, and comparatively user-friendly processes of the Sharia courts,” compared to the state courts.
Future of Sharia
Islamic law scholar Hatem Elliesie sees Islamic law being handled in a much more “flexible way” in sub-Saharan Africa compared to other regions.
“That doesn’t make criminal cases and the discrimination within family law and towards women less important,” Elliesie told DW. “But what is very clear is that the upheavals in North Africa have a huge impact on society and the understanding of democracy and human rights in sub-Saharan Africa.”
I think we now have to wait another couple of years until we see how that affects the implementation of Islamic law south of the Sahara, Elliesie said.
Edited by: Ineke Mules