The Necessity or Otherwise of Protest Through the Lens of Islamic Law and Constitutional Law in Nigeria – By Isah Muhammed Esq.

Nigeria as a nation comprises of 36 states and a Federal Capital Territory Abuja. The territory now known as Nigeria is an amalgamation of Northern Protectorate and Southern Protectorates. However, Nigeria is pluralistic in terms of ethnicity, religion, and laws. There are more than 250 ethnic groups in Nigeria and within these groups are distinctive subgroups and communities[ Abdulmumini A. Oba (2011) Religious and Customary Laws in Nigeria, Emory International Law Review, [Vol. 25.] P. 881]. This heterogeneous ethnic character exists across the country. Although, the Hausa-Fulani, Yoruba, and Igbo (Ibo) are the largest ethnic groups in the Northern, Southwestern, and Eastern parts of the country respectively, there are also other sizeable groups in those parts of the country.[ Ibid] The legal System in Nigeria is tripartite in its nature, to wit the received English Law, Islamic Law and the Customary Law borne out of the multi-ethno-religious composition.

Perhaps, absolute obedience to those vested with authority is fundamental to Islamic political systems, the concept of protests is foreign in its nature as far as the idea and practice of Islamic polity is concerned. The Islamic political system is a distinct framework on its own that has distinctive rudiments and structures. It combines elements of both spiritual and political leadership vested in the leader/ruler, and this is why protests in the modern language are somewhat alien to Islamic polity. Therefore, Muslims in Nigeria and the world over are caught in between the devil of tyranny and the deep blue sea of heresy.

The concept of protest has been wrongly presented by the ulama “scholars” in a manner that had made protest synonymous to rebellion “baghye” which is amongst the Hadd “capital offences” punishable under the Shari’a Criminal Justice System. The objective of this article is not to determine whether protest is legitimate or forbidden under Islamic Law because it seems that the ʿulamāsʾ, from various schools of Islamic thought, are unable to reach a consensus on these matters but this writer shall discuss the necessity or otherwise of protest under Islamic Law as means to command what is good or to forbid what is evil and protest as an instrument of social under the constitutional Law in Nigeria.

1.1. CONCEPTUALIZATION OF TERMS
Given the complex nature of this study, it is necessary as a primary matter to define as well as clarify some of the terms employed herein. The first textual component focuses on definitions, specifically key terms that require reframing to make them compatible with the proponents of protest’s legal argument. Four terms in particular receive the most attention: “rebellion” (khuruj), Revolution (thawrah), “public disorder” (fitna)” and “demonstrations (muzaharat).[ Al-Atawneh, M. (2016). Khurūj in contemporary Islamic Thought: The case of the “Arab Spring” Ilahiyat Studies, 7(1), Article 1: p.471 & 474. https://doi.org/10.12730/13091719.2016.71.139. See also K.A. Afolabi (2023) Islam, Muslims and 2020 #EndSARS Protests in Nigeria, Millah: Journal of Religious Studies Vol. 22, No. 2 August 2023. ISSN: 2527-922X (e); 1412-0992 (p), p.360. https://doi:10.20885/millah.vol22.iss2.art3]

The words khurūj ‘alā-l hākim is a noun phrase from kharaja-‘alā, meaning ‘to revolt against’ or ‘to rise against’[ K.A. Afolabi. (Supra) ] and hakim, meaning ‘commander, superior, chief, head leader, ruler or governor’[ Ibid. p. 361.]. Khurūj ‘alā-l hākim (hereinafter referred in this article as therefore means a revolt against the ruler.
The word thawrah is a derivative from the verb thawwara, meaning to revolutionize, to revolt, to rebel, to agitate, to erupt amongst other meanings[ Ibid]. It gained popularity after the Arabian exposition to rebellion, and the word gradually replaced the word fitnah in Arabian political discourse.
The word fitnah is the noun form of the Arabic verb “fatana” meaning to seduce, enchant, captivate, and etc[ Ibid]. The word appears about thirty (30) times in the Quran but with negative connotations. This may explain why the terminology was employed to describe rebellions that occurred in the political affairs of the Ummah after the demise of the Prophet (SAW).[ Shishkina, A., & Issaev, L. (2017). From fitnah to thaura: The metamorphosis of the Arab-Muslim protest movements. Religions, 8(9), 193. https://doi.org/10.3390/rel8090193.]
From these linguistic analyses, there is no equivalent of the word protest in the Holy Qur’an, Sunnah as well as the works of classical jurists of Islamic Law, as always conceived in modern democratic political discourse. Govrin[ Govrin, D. (2014). The journey to the Arab Spring: The ideological roots of the Middle East upheaval in Arab liberal thought. Vallentine Mitchell. p. 42] opined that the primary sources of Islamic Law did not set specific pattern for a state or a government, and on the whole referred very little to issues of governance and state…” As a result, Proponent of Protest Jurist suggest the word maẕāharah for protest. If a protest is an attempt to manifest demonstrations grievances, then this term may be an adequate equivalent of the concept in Arabic.[ K.A. Afolabi. (Supra)]
The word protest in English Language is defined as “the expression of strong disagreement with or opposition to something.[ Hornby, A. S. (2010). Oxford advanced learner’s dictionary of current english (9th edition). Oxford University Press.] It also have the connotation of ‘a strong complaint expressing disagreement, disapproval, or opposition[ Cambridge Dictionary. (2023). Protest. In Cambridge Academic Content Dictionary. Cambridge University Press. https://dictionary.cambridge.org/dictionary/english/protest]. It is synonymous to the word ‘demonstration,’ ‘dissent’ ‘resistance’ or ‘social movement.’
In terms of political relevance, a protest is an expression of strong disagreement with the leaders of some government policies or practices[ Eesuola, O. S. (2011). Behavioural approach to political protest: An analysis of Fela Anikulapo Kuti, 1970-1997 [Doctoral thesis, University of Lagos School of Postgraduate Studies]. https://ir.unilag.edu.ng/handle/123456789/4281.]. This may include rallies, strikes, lamentation, and airing of grievances[ Tarrow, S. (1996). Social movements in contentious politics: A review article. American Political Science Review, 90(4), 874–883. https://doi.org/10.2307/2945851.].
The word protest in legal parlance is a formal statement or action expressing dissent or disapproval.[ Bryan A. Garner (2014) Black’s Law Dictionary, 10th Edition, Thomson Reuters, USA. P. 1419. ISBN:978-0-314-61300-4.]

1.2. BRIEF CONCEPT OF HALAL (LAWFUL) AND HARAM (UNLAWFUL) IN ISLAM
The concept of Halal “the lawful” and Haram “the Unlawful” has been known to every nation since ancient times. However, people have differed in defining the scope, variety and causes of taboos and prohibitions, most of which were a product of their primitive beliefs system based on superstition, myths and legends then came the divinely revealed religion with its laws and injunctions concerning Halal “the lawful” and Haram “the unlawful”, uplifting mankind from the level of superstition, myth, legends and tribalism to the level of dignity becoming of human existence[ Yusuf al-Qaradawi, the Lawful and the Prohibited in Islam, Al-Falah Foundation for Translation, Publication & Distribution. P. XX-XXI].

There’s no gainsaying that the concept of Halal “the lawful” and Haram “the Unlawful” in Islamic Law is not a simple matter for any human to determine what Halal “the lawful” is and/or what Haram “the unlawful is”. The only criterion for the determination of the concept is the injunctions revealed in the Holy Qur’an by Allah (SWT), the Creator, as well as the Sunnah (the Prophetic traditions) as it is based on divine revelations[ Ibid. p. XV ]. Allah (SWT) in Qur’an 16:116 declare thus’
And speak not, concerning that which your own tongues qualify (as clean or unclean), the falsehood: “This is lawful, and this is forbidden,” so that ye invent a lie against Allah. Lo! Those who invent a lie against Allah will not succeed.[ All the Qurʾānic translations into English are taken from: Muhammad M. Pickthall, The Meaning of the Glorious Qurʾan, rev. and ed. ʿArafāt Kāmil ʿAshshī (Beltsville, MD: Amana Publications, 2006).]
And Quran, 7:33 Allah states “Say: My Lord forbids only indecencies – such of them as are apparent and such as are within, and sin and wrongful oppression, and that you associate with Allah and that which no warrant has been revealed.”
The Prophet (SAW) is reported to have stated thus;
“O people! Allah is Pure and, therefore, accepts only that which is pure. Allah has commanded the believers as He has commanded His Messengers by saying: ‘O Messengers! Eat of the good things, and do good deeds.’ (23:51) And He said: ‘O you who believe (in the Oneness of Allah – Islamic Monotheism)! Eat of the lawful things that We have provided you…”‘ (2:172). Then he (ﷺ) made a mention of the person who travels for a long period of time, his hair are disheveled and covered with dust. He lifts his hand towards the sky and thus makes the supplication: ‘My Rubb! My Rubb!’ But his food is unlawful, his drink is unlawful, his clothes are unlawful and his nourishment is unlawful, how can, then his supplication be accepted?”[ Sahih Muslim, Book 18, Hadith 44. 2363 See also Riyad as-Salihin1851
In Another Hadith (Report) the Prophet (SAW) also stated “I have indeed been brought the Qur’an and something like it along with it, yet the time is coming when a man replete on his couch will say, ‘Keep to this Qur’an; what you find in it to be permissible treat as permissible, and what you find in it to be prohibited treat as prohibited.’ But what God’s messenger has prohibited is like what Allah has prohibited[ Mishkat al-Masabih 163; book reference, Book 1, Hadith 157.
The Prophet (SAW) further stated in the Hadith about Halal & Haram in these words:
“Verily, the lawful (Halal) is clear and the unlawful (Haram) is clear, and between the two of them are doubtful matters about which many people do not know. Thus, he who avoids doubtful matters clears himself in regard to his religion and his honor, and he who falls into doubtful matters will fall into the unlawful as the shepherd who pastures near a sanctuary, all but grazing therein. Verily, every king has a sanctum and the sanctum of Allah is his prohibitions….. [Transmitted by Bukhari & Muslim][ Sahih Bukhari, Book 34, Hadith 5; USC-MSA web (English) Reference, Vol. 3, Book 34, Hadith 267. http://sunnah.com/bukhari:2051. See 40 Hadith Nawawi 34,

It is worthy of note that from the above cited injunctions regarding Halal “Lawful and Haram “unlawful”, matters not categorically stated either in the Holy Qur’an and/or Sunnah (Prophetic traditions) as to the lawful or unlawful status is residuary in nature which are subject of ijtihad (independent legal reasoning) or Qiyas (analogical deduction) by the fuqaha’u (Jurist). For where there exist a clear-cut nass (text) regarding the Halal “lawful” or Haram “unlawful” nature of a matter there exist no room for ijtihad as the twin maxims states “la masagha lil- ijtihad fi mawrid al-Nass” (where there is a decisive text, there is no room for ijtihad.) and “la ibrata lil-dilalati fi muqabili at-tashrih (no attention shall be paid to inferences (implication) in the face of an explicit statement) then the mujtahid (jurist) will be rewarded by Allah accordingly where he is correct or where he errs in the course of exercising ijtihad. This is supported by the hadith where the Prophet (SAW) clearly stated “When a judge utilizes his skill of judgment and comes to a right decision, he will have a double reward, but when he uses his judgment and commits a mistake, he will have a single reward.”[ Transmitted by Bukhari and Muslim. See Riyad as-Salihin 1856; Book 18, Hadith 49. ]

The scope of applicability of the above ruling is to the extent that the matter upon which there exist no clear cut nass (text) of the Holy Qur’an or Sunnah and upon worldly affairs of mankind which is regulated by the presumption of permissibility as opposed to Ibadah (acts of worship or devotion). The presumption of permissibility is reckoned with maxim as “al-aṣl fīl ashyāʾ al-ibāḥah illāh bil ibādah” (Things are rendered permissible except in devotional matters). This is further supported with various ahadith (prophetic Reports) such as “The Messenger of Allah (SAW) was asked about ghee, cheese and wild donkeys. He said: ‘What is lawful is that which Allah has permitted, in His Book and what is unlawful is that which Allah has forbidden in His Book. What He remained silent about is pardoned.’”[ Sunan Ibn Majah, Book 29, Hadith 117; English translation, Vol. 4, Book 29, Hadith 3367. https://sunnah.com/ibnmajah:3367 ]. Also it is reported on the authority of Anas (RA) that “Allah’s Messenger (ﷺ) happened to pass by the people who had been busy in grafting the trees. Thereupon he said: If you were not to do it, it might be good for you. (So they abandoned this practice) and there was a decline in the yield. He (the Holy Prophet) happened to pass by them (and said): What has gone wrong with your trees? They said: You said so and so. Thereupon he said: You have better knowledge (of a technical skill) in the affairs of the world”.[ Sahih Muslim, the Book of Virtues, Hadith No: 2363; Book 43, Hadith No. 186; and USC-MSA web (English) reference: Book 30, Hadith 5832.][Underlining mine for emphasis]

Islamic jurists have also held that any textual evidence which overrules the presumption of permissibility must be decisive in both meaning and authenticity that is established by reliable reporting or transmission, simply because Haram “unlawful” cannot be established on the basis of doubtful evidence, such as a weak hadith, or a Qur’anic verse that does not convey a clear-cut meaning – in which case the subject would be governed by the presumption of permissibility[ M.H Kamali. (2013) the Parameters of Halal and Haram in Shari’ah and the Halal Industry, Occasional Papers, Series 23 presented at International Institute of Advanced Islamic Studies, Kula Lampur, Malaysia, on the 13th December 2023, Published by the international institute of Islamic Thought, USA. p.4.].

According to a legal maxim of fiqh, “idha ijtama’a al-Halal wa al-Haram, ghuliba al-Haram.” “When the Halal and Haram are mixed up, the Haram prevails”. In other words, when available evidence can imply both permissibility and prohibition, the latter prevails. While quoting this in his al-Ashbah wa al-Naza’ir, al-SuyutÏ mentions that this maxim is based on a hadith to the same effect. The hadith (Prophet Tradition) thus provided “When there is a mixture of ^al-halal and Haram, the latter prevails[ However, Muslim scholars including Abu al- Fadl al-IraqÏ (d.806/1403), Taj al-DÏn al-SubkÏ (d.1369/771) and Abu Bakr al-BayhaqÏ (d.1064/456) considered this to be a weak hadith due to disruption in its chain of transmission.].” Though this Hadith is considered weak but can be supported with the Hadith about Halal & Haram where Prophet Muhammad (SAW) said in in these words:
“Verily, the lawful (Halal) is clear and the unlawful (Haram) is clear, and between the two of them are doubtful matters about which many people do not know. Thus, he who avoids doubtful matters clears himself in regard to his religion and his honor, and he who falls into doubtful matters will fall into the unlawful as the shepherd who pastures near a sanctuary, all but grazing therein. Verily, every king has a sanctum and the sanctum of Allah is his prohibitions….. [Supra]

In the light of the foregoing where there is a mixture between halal and Haram substantial doubt might arise yet in circumstances where the amount of mixture and scope of conflict is slight too negligible, the legal maxim under review may also be of doubtful application. Moreover, some scholars have gone further to exonerate situations that involve minimal and sometimes unavoidable amounts of mixture with forbidden stuffs[ M.H Kamali. (Supra), p.5].

Furthermore, conflict may also arise due to the existence of two divergent hadith reports, or two conflicting analogies: one prohibitive, and the other permissive, in which case the former prevails over the latter. Prohibition in this case takes priority over permissibility. This is the purport also of the legal maxim that “Dar’ al-mafasid awla min jalb al-manafi’.” (Prevention of harm takes priority over realisation of benefit). The doubt that arises over a text may be genuine (haqÏqÏ), such as ambiguity in the actual wording of a hadith, or it may be relative and metaphorical (idafi’, majaizi), and doubt arises in their application to a particular case. In all of these, an opportunity may arise for fresh interpretation and ijtihad (Independent reasoning), which should be attempted and an effort should be made to secure that which is in the public interest and maslahah.[ Ibid. p.6]

A practical illustration of this situation is where the punishment for Hadd (Capital offence) could be warded off in case of doubt as the maxim implies al-hududu tasqituha bish shubuhaat (hudud punishments are to be warded off if doubts persist). This maxim is in accordance with the Hadith where Caliph Umar (RA) instructed that Hudud punishment should be warded of where there exist any doubt. “dar’u al-Hudud bish shubuhaat ma’astata’atum (Capital punishments shall be prevented if any doubts persist as far possible). Hence, the rationale behind this is to the effect to err on the side of caution is more in line with both the maqasid (spirit objective) of the shari’a and maslah (public interest) than to mete out the prescribed punishment for the offence where there exist doubt. Therefore, the word “protest” is alien in its nature as far as Islamic Polity is concerned but sometimes are confused with other related concept such as

2.0.PROTEST DISTINGUISHED FROM REBELLION & OTHER CONCEPTS
For Islam encourages a person to study evil in order to be able to criticize it as well as protect yourself against it. In the words of no a Poet called Abu Firaas Al-Hamdani: Ta’allamtush-sharra laa lish-sharri lakin litawaqqeehi; waman laa ya’allamush-sharra minal khairi waqa’a feehi (i.e., I have learnt evil not for the sake of evil but only in order to safeguard myself against it, for he who does not know evil so as to be able to distinguish it from the good will fall into it). To buttress this point credence shall be accorded to Ilm al-Furuq” science of distinctions” in order to distinguish between protest from rebellion and other related terms.

Ilm al-Furuq” science of distinctions” (hereinafter be referred to as furuq “distinctions”) is one of the legal disciplines that contributes to the construction of a coherent and contradiction-free system of fur’u (particulars) of fiqh[ Wolfhart Heinrichs, “Structuring the Law: Remarks on the Furuq Literature’, in: Studies in Honour of Clifford Edmund Bosworth, ed. Ian Richard Netton, Volume I. (Leiden: Brill, 2000), 333.]. It is the means by which jurists have distinguished between the cases in the law whose appearances resemble each other, but their legal statuses are different. Furuq are also considered as one of Qawa’idi al- ‘illah in qiyas, that is the factors that affect the effective cause of the asl (the original case) to be applied to the far’ (the new case).[ Al-Qarafi Shihab al-Din, ed: Muhammad Rawas Qal’agi, (Beirut:Dar al- Ma‘rifah), p. 1: 74-91.]

Examples of the furuq include the distinctions between ijarah (hire) and bay’ (sale), hadanah (custody) and wilayah (guardianship), shahadah (testimony) and riwayah (narration), and between al-‘urf al-qawli (verbal custom) and al-‘urf al-fi’li (actual custom, the distinction between Juma’ah prayer and the Eid prayer, the distinctions between a person who is permitted to issue fatwa and who is not permitted, the forbidden and allowed falsehood, dreams that are permitted to be interpreted and those which are not[ Ibid p. 92.]. This discipline is better explained as the distinguishing feature between the theme of shahadah (testimony) and Riwayah (narration) is that they are both identical but each has its scope, applicability, and conditions to be fulfilled for full considerations such as facts and figures in terms of the quality and quantity of people in a given report. The quality refers to (gender, uprightness, memory, free born or slave) and the quantity refers to number.[ Ibid. p. 2:550] This results in giving the correct legal ruling to the cases under research as Imam al-Akhdari al-Maliki in his matn Akhdariyyah puts it “Wa lā yuhill lāhu ān yaf’ālu fī’lān hāttā yā’ālamu hukum Allahi fīhi (And it is impermissible for an Adult to perform any act until he had knowledge of the ruling of Allah in it) ”

It is imperative to note that terms referring to protests,” and similar activities usually receive attention first. The objective for most jurists is to provide distinctive features between peaceful demonstration and a violent rebellion. Hence, jurists begin with a negative definition, outlining what protests “are not.” They first take up the accusation that these protests are a form of rebellion. Jurists focus particular attention to the claim that protesters are like the Khawarij, one of the earliest and universally reviled rebel groups in Islamic history.[ By 1000 A.D. “historical references to the Khawarij took on a generic meaning of ‘rebels.’” Jeffrey T. Kenny, Khawarij, in ENCYCLOPEDIA OF ISLAM 432 (Juan E. Campo ed., 2009). See Adnan A. Zulfiqar (2017) Revolutionary Islamic Jurisprudence: A Restatement of the Arab spring, International Law and Politics [Vol. 49:471.]

Yusuf al-Qaradawi suggests that the label of khawarij cannot be applied to protesters because their rebellion is not with “weapons” but their “tongues.” This is a common distinctive feature that jurists provide, implying that non-violence cannot be labelled rebellion. Muhammad al-Yaqoubi, a Syrian jurist, takes a different approach instead of focusing on their methods (i.e. violence versus non-violence), he focuses on their objectives. He distinguishes khawarij from the protestors by citing the opinion of an earlier jurist, Ala¯ al-Dın al-Haskafi (d. 1677), who said the problem with the khawarij was that they “came out against a righteous” leader without “good reason or lawful justification.” In the modern context, Yaqoubi implies that neither are the leaders righteous nor is there an absence of good reason or lawful justification to protest. In his fatwa, he raises no issues with the type of violent rebellion the khawarji pursued, but simply that it was not warranted because certain conditions had not been met.[ Adnan A. Zulfiqar (Supra), p. 472.]

Another term that proponents of protest jurists address is “public disorder” (fitna). The accusation they address here is that protests lead to chaos which is a form of social disorder. Public disorder is strictly prohibited in Islamic law and hence, just as jurists want to avoid having protests classified as rebellion, they also do not want them labeled as causing public disorder. Proponents of protest jurists employ different techniques to prevent this from happening. Amir Abu Salamah begins by stressing the non-violent angle, arguing that protestors cannot be the cause of chaos because they were “not carrying weapons” and their acts were compliant with Islamic law.[ Ibid.]He then pursues a more proactive approach by suggesting that it was impossible for protestors to cause chaos because they were in fact doing the opposite: “speaking truth,” “denouncing tyranny,” “fighting against repression,” and “carrying the nation.” In fact, he claims that, given the state of affairs, it would actually be a form of “public disorder” if “no one rose up” to address the repression[ Ibid.].

This last point is one that Abd al-Wahhab al- Daylami also argues. He suggests comparing the consequences of the protesters’ behavior with that of the state and then determining which is more disruptive. Daylamı’s argument is that the actual definition of “public disorder” is not what the protestors’ are doing, but rather the leaders/rulers’ behavior, which includes “humiliation” of his people, “depriving them of their rights,” and “rejecting the text of the Sharıa and the Constitution.”[ Ibid]Daylami defines public disorder as the essential failure by the leaders/rulers to fulfill the duties of its citizenry. The Council of Scholars for the Jordanian Muslim Brotherhood also reject the idea of protests causing public disorder for a more basic reason: “causing disorder” is a criticism of the potential outcome of protest, but not of protests themselves.[ Ibid] They argue that a protest can be regulated by Islamic law to prevent any disor-der, but there is nothing inherent in protests that must lead to public disorder[ Ibid.] and therefore public disorder is extrinsic to protest and not intrinsic to it.

The final term that jurists define is “demonstration” or “protest.” Some jurists begin by noting that protests are a means of communication. The Iraqi jurist, Abd al-Razzaq al-Sa’adi, considers protest a means for the community to “raise its voice,” where individuals publicly demand their legal rights from the head of state. However, he includes a condition: these demands must be made privately before making them public through protest. While he is one of the few to raise this as a condition, it does betray an inclination among many Sunni jurists to avoid public disruption if a matter can be resolved in private. The Saudi scholar, al-Sharıf Hatim al-Awni, says that demonstrations are a “means of communication that give expression to one’s opinion” and in this way function as a way of changing society by exerting pressure on a ruler to acquiesce to people’s desires.[ Amiot-Cadey, G. & Merriam-Webster Inc. (2010). Merriam-Webster’s Arabic-English Dictionary. Merriam-Webster, Inc.]

3.0.OBEDIENCE TO LEADERS/RULERS IN ISLAM
Since time immemorial, obedience to those vested with authority is a necessity and incontrovertible to governance across civilizations. This fashioned a nature of inviolability for mantle of leadership as the subjects are subjected to either strict or substantial compliance with leaders’ policies, regulations, actions and inactions as ever binding upon them. The basis for this position can be found in the Holy Qur’an and series of ahadith (Prophetic traditions) that seem to support obedience to rulers/leaders. For example, Q4:59 says:

O you who believe! Obey Allah, and obey the Messenger and those of you who are in authority; and if you have a dispute concerning any matter, refer it to Allah and the Messenger if you are (in truth) believers in Allah and the Last Day. That is better and more seemly in the end.

From the above verse of the Qur’an, commentators of the Qurʾān, such as Ibn Kathīr, al-Ṭabarī, etc. agree on the essence and manner of obedience to Allah and His Prophet, but there exist disagreement regarding the “who are authorities:” whether it refer to umarā “rulers” or to the the ʿulamāʾ “scholars”? Apparently, Ibn Kathīr, chose the broadest application of the term “authorities” to include both umarā “rulers” and the ʿulamāʾ “scholars”. In his opinion, a Muslim must obey them all, as long as their words and/or actions do not contradict the dominant legal interpretations. Yet, Ibn Kathīr, like many other commentators, does not clearly define the main cause for disobedience – nor the limits of obedience to the “authorities.”[ Al-Atawneh, M. (Supra). p. 30.] Inference shall be drawn from Q4:83 as to the fact that the authorities refer to both the both umarā “rulers” and the ʿulamāʾ “scholars”.

And if any tidings, whether of safety or fear, come to them, they noise it abroad, whereas if they had referred it to the messenger and such of them as are in authority, those among them who are able to think out the matter would have known it. If had not for the grace of Allah and his mercy, you would have follow Satan, except a few (of you).

In the Sunnah (prophetic Traditions) the prophet (SAW) is reportedly stated “rulers will come after me who do not follow my guidance nor my path, and among them will be men with devils’ hearts in human bodies[ Sahih Muslim 1847, Book 33, Hadith 82, http://sunnah.com/muslim/33/82].” An interlocutor raises the question of what should be done about these men, to which Prophet Muhammad (SAW) replies: “you should listen and obey them even if the ruler abuses you and confiscates the property[ Sahih Muslim 1847, Book 33, Hadith 82, http://sunnah.com/muslim/33/82.].” In another tradition, The Prophet (SAW) notes that even with the worst rulers, “If you find something hateful from them, hate their actions but do not withdraw your obedience.”[ Sahih Muslim 1855, Book 33, Hadith 101, http://sunnah.com/muslim/33/101.]
In the light of the above Qur’anic verses and Prophetic Traditions this position received additional support from many medieval jurists, who suggested that a “consensus” existed which required obedience to a ruler, regardless of his behavior, except if he commands his subjects to sin.[ Michael Cook (2001), Commanding Right and Forbidding Wrong in Islamic Thought. P. 479.] Therefore, the ruler’s personal sinfulness was not sufficient reason for revolt, but his commanding others to sin necessitated his impeachment and removal[ Adnan A. Zulfiqar (Supra), p. 463.].
In practice, the ʿulamāʾ and the umarāʾ fulfill different sociopolitical functions in an Islamic State. The ʿulamāʾ are responsible for the clarification of religious rules, which indirectly guide the governmental circles that are involved in fashioning the social policy. This is clearly manifested in the cooperation between the Government and the ʿulamāʾ on the socio-legal plane and manifested as political decisions supported by the ʿulamāʾ – especially those not befitting the sharīʿah. According to Ibn Bāz, the role of the ʿulamāʾ is to ascertain the will of Allah by analyzing His words, while the role of the umarāʾ is to implement those interpretations. Ibn Bāz expected the subjects of the Kingdom to obey the authorities and to follow the direction of both the ʿulamāʾ and the umarāʾ – as long as their instructions are not contrary to the commandments of the sharīʿah. He instructed the believers to obey the King and the authorities in the Kingdom of Saudi Arabia; he even associated obedience to Allah and His Prophet with obedience to the ruler.[ Al-Atawneh (Supra). p. 35.]

In many respects, contemporary Wahhābīs are loyal to the classical formula for the separation of power between the ʿulamāʾ “scholars and umarāʾ “rulers/leader. This approach may be seen in the work of the supreme religious authority in Saudi Arabia, the Council of Senior Scholars (Majlis hayʾat kibār al-ʿulamāʾ; hereafter: CSS)[ In Saudi Arabia there are two official religious institutions for issuing legal opinions: the Council of Senior Scholars (CSS) and the Permanent Committee for Scientific Research and Legal Opinion (CRLO). These two institutions, led by the Grand Mufti, constitute the ‘religious pyramid.’ More in Muhammad al-Atawneh, Wahhābī Islam Facing the Challenges of Modernity: Dār al-Iftā in the Modern Saudi State (Leiden: Brill, 2010), 17-34, https://doi.org/10.1163 /ej.9789004184695.i-210.]. A blatant example of their perception is regarding the separation of power as aired by Ibn Bāz (a former Grand Mufti, d. 1999). In his speech, he revealed his positions on “authorities” and why they must be obeyed. In answer to one of the questions directed to him during the discussion “Which is the authority (wulāt al-amr) to be obeyed: the religious authorities (ʿulamāʾ) or the political rulers (umarāʾ)? Ibn Bāz answered: “both are “the authorities,” the ʿulamāʾ and the umarāʾ…” And he added:

The authorities are both the ʿulamāʾ and the umarāʾ of the Muslims… It is obligatory that they be obeyed by good deeds, for only in this way will peace reign and we will be protected from the tyranny of the strong over the weak; furthermore, disobedience will bring anarchy, and the strong will overcome the weak …[ ʿAbd al-ʿAzīz ibn ʿAbd Allāh ibn ʿAbd al-Raḥmān Ibn Bāz, Majmūʿ fatāwá wamaqālāt mutanawwiʿah, ed. Muḥammad ibn Saʿd al-Shuwayʿir (Riyadh: Maktabat al-Maʿārif, 1997), VII, 117; On authority in modern Islam. see Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority, and Women (Oxford: Oneworld Press, 2001), 31-85.]

Ibn Bāz primarily based his claims on “public interest (maṣlaḥah ʿāmmah),” a basic principle in Islamic legal theory, by means of which the ruler’s actions are legitimized within the doctrinal structure of al-siyāsah al-sharʿiyyah[ In modern, as in classical, Arabic discourse, the term siyāsah is defined as ‘proper administration of the subjects by political office-holders’ and is an expression of the application of sharīʿah practice. Thus, the compound siyāsa sharʿiyyah describes administrative practice (siyāsah) within the limits assigned to it by Islamic Law. See, respectively, Abū l-Faḍl Jamāl al-Dīn Muḥammad ibn Mukarram Ibn Manẓūr al-Anṣārī al-Miṣrī, Lisān al-ʿArab (Beirut: Dār Ṣādir, 1956), 108; Abū Zayd Walī al-Dīn ʿAbd al-Raḥmān ibn Muḥammad ibn Muḥammad Ibn Khaldūn, Muqaddimat Ibn Khaldūn (Alexandria: Dār Ibn Khaldūn, 1982), 213.]. As such, Ibn Bāz demanded full obedience to all royal commands, even those outside the purview of the sharīʿah, such as: traffic regulations, employer-employee relations, and welfare issues, since these matters fall within the parameters of public welfare.[ Al-Atawneh (Supra). p.35.]

Despite a default position that seemed to favor “enduring injustice” the jurist’s opinion is dependent on a cost-benefit analysis of rebellious behavior. A ruler’s personal sinfulness is harmful simply because of the influence his status carries but such that harm, however, does not justify the cost associated with rebellion. On the other hand, in situations where the ruler essentially legislates sin, then jurists clearly consider the benefit of rebelling as outweighing its costs.[ See Ahmed Al-Dawoody, (2011) The Islamic Law of War: Justifications and Regulations. P. 156.] This is supported by three Hadiths that substantiate the moral autonomy of the individual to speak against injustice and oppression. In one of these Abu Dhar al-Ghifari reported that the prophet ordered him to tell the truth even if it be unpleasant.[ Ahmad b. Hanbal, Musnad, Vol. I, Hadith no. 27.] When you see my community afraid of telling a tyrant, ‘O Tyrant,’ then it is not worth belonging to it any more”[ As-Suyuti Jalaludeen, al-Jami‘ al-Saghir, I, 41.]; and “The best form of jihad is to say a word of truth to an oppressive ruler”.[ Ibn Majah, Sunan, Hadith No. 4011.].
The individual is admittedly required to obey the government on condition that the latter obeys the Shari‘ah. This is reflected in a renowned ahadith (Prophetic Reports) that “there is no obedience in sin, obedience is only in righteousness”[ Tabrizi, Mishkat, Masabih Vol. II, Hadith No. 3665. https://sunnah.com/mishkat:3665 ]Also the prophet is reportedly stated that ““A creature is not to be obeyed when it involves disobedience to the “Creator.”[Ibid. Hadith No. 3696; Book 18, Hadith 36. https://sunnah.com/mishkat:3696] Hearing and obeying is required from every Muslim man – in what he like and what he dislikes – as long as he is not ordered with disobedience. If he is ordered with disobedience, then no hearing or obeying is required of him.”[ Jami` at-Tirmidhi 1707, In-book reference Book 23, Hadith 39, Vol. 3, English translation, Book 21, Hadith 1707. https://sunnah.com/tirmidhi:1707.]
In the light of the above, Awni therefore, reinterprets historical moment during the Inaugural speech that Abu Bakr As-Siddıq (RA) upon assuming leadership of the Muslim community after the demise of the Prophet (SAW), he puts forward a principle that considers the basis of an individual’s right to protest against a leader/ruler. Abu Bakr (RA) noted that if he “does the right thing” then people should help him, but that if he “did something wrong” then people should “Correct him or set him right.” For Awni, this is a principle for check and balances and it is incumbent on the populace to checkmate the action and inactions of their leaders/rulers and exert pressure on them when they are in the wrong. The complete speech is hereby quoted as follows for better understanding:

“O people, I have been put in authority over you and I am not the best of you. If I do the right thing, then help me. If I do wrong, then correct me. Truthfulness is a sacred trust and lying is a betrayal. The weak among you is strong in my sight. I will surely try to remove their pain and suffering. And the strong among you is weak to me. I will, if Allah wills, fulfill the rights in full. When obscene things spread among any nation, calamities continue to descend upon them. As long as I obey Allah and His messenger, you should obey me. If I do not obey Allah and His messenger, then obedience to me is not an obligation upon you. Now, stand for the prayer, may Allah have mercy upon you.”[ Ibn Hisham al-Sīrah al-Nabawīyah, Volume 2, Page 661.] [Underlining mine for emphasis]

To the same extent, a believer is under obligation to refuse to obey a ruler or an authority demanding that he/she break the rules of the sharīʿa: These types of commands are perceived to be blatant blasphemy (kufr bawāḥ), among the greatest sins in Islam. A person committing such a sin is ousted from the Muslim community. Nonetheless, overt rebellion is forbidden:

If … a command contradicts the will of Allah, do not obey – neither the ʿulamāʾ “scholars”, nor the umarā “rulers’. A possible example of such a command [to be disobeyed] is a command to drink wine or commit extortion[ Atawneh (Supra) p. 36. See also Ibn Bāz, Majmūʿ fatāwá, VII, 115.]….It is forbidden to express opposition to the rulers, even when they are not fulfilling the rules of the sharīah, rather one must offer them gentle counsel[ Ibid.].

In other words, any resistance to a leader/ruler failing in his sharīʿah observance is done clandestinely, by means of secret advice (naṣīḥah) or via a letter (maktūbah), thus drawing his attention to the deviation and showing him how his deeds are not in line with the sharīʿa. In any case, advice is not to be given publically.[ Ibid. On the substantial differences between naṣīḥah and Western forms of criticism, see Talal Asad, Genealogies of Religion: Discipline and Reason of Power in Christianity and Islam (Baltimore: Johns Hopkins University, 1993), 200-236.]

Unlike the Wahhābī approach, that rejects all modern expressions of protest, it is possible to observe an essentially different approach in regard to the issues of khurūj. This approach is presented in the writings, legal opinions, and declarations of many religious scholars and institutions in the contemporary Sunnī world that recognize various expressions of protest, including rallies, strikes, civil unrest, etc. both approaches are presented as the arguments and counter arguments below.

4.0.ARGUMENTS & COUNTER ARGUMENTS FOR AND AGAINST PROTEST
The term protest “Muzaharat” is an alien phenomenon as far as Islamic political system is concerned but Islamic Jurist have offered arguments in supposition and in opposition thereof. Some of these arguments and counter arguments shall be analyzed whereof. Whereas the Jurists whose argument are in support of protest are referred to as the Proponent of Protest, the Jurists whose argument are against protest are referred to as the opponent of Protest.

The Proponent of Protests Scholars included the opinions of numerous jurists Such as Sheikh Yusuf Al-Qardawi, ʿĀʾiḍ al-Qarnī, ‘Abd al-Razzaq al-Sa’adi, Abu Salama,h Hatim b. ‘Arif al-’Awni, Sheikh Ahmad al-Raysuni, Sheikh Jamāl Quṭb, SheikhʿAbd al-Ḥamīd al-Aṭrash (former head of al-Azhar’s Fatwá Committee and amogst other. These legal opinions stated that protests, demonstrations, and strikes, civil unrest were neither Halal “lawful” nor Haram unlawful under Islamic and they provided a broad overview as well as counter arguments of the six points raised by Opponent of Protest jurists. Islamic doctrine of the presumption of permission as enunciated by the maxim “al-aṣl fīl ashyāʾ al-ibāḥah” (things are permissible unless proven to be unlawful); exclusive obedience is only due to people of authority as much as they remain on the right course; Islamic doctrine of choosing the lesser of the two evils as enunciated by the maxim “yukhtaru ahwanu al-sharrayn” (the lesser of evils is preferred); Islamic doctrine of Al-’amru bil ma‘rūf “that enjoins Muslims to command what is good or to forbid what is evil”; Islamic approach to engaging reprehensible acts in society, as reported directly from the Prophet and the Islamic doctrine of oppression by helping a brother either the oppressor or the oppressed one[ Adnan A. Zulfiqar (Supra). P.447].

The opponent of Protests Scholars included the opinions of numerous jurists affiliated with the Salafi movement such as Abū Ḥāmid al-Ghazālī , Ibn Baz Sheikh, Abd al-ʿAzīz Āl al-Sheikh[ The Grand Mufti of the Kingdom of Saudi Arabia.], Sheikh al-Fawzān[ Another member of the CSS], and more importantly, with the Dar al-Ifta’, Egypt’s official body issuing fatwas.[ Adnan A. Zulfiqar (Supra). P.447] These legal opinions stated that protests, demonstrations, and strikes, civil unrest were prohibited under Islamic law and it was a legal obligation to obey the wali al-amr “the Leader/ruler, a reference to the leader/ruler provides a broad overview of the six points raised by Opponent of Protest jurists in their critique of the protests. These include the absence of proof-texts permitting protests, the attempt to designate protests as rebellion, the framing of protests as a form of Western civil disobedience, the potential consequences of protests to society at large, the likelihood of violence, and the futility of protesting.[ Ibid.]

The Proponent of protest jurists begin by noting that protests are a means of communication. The Iraqi jurist, Abd al-Razzaq al-Sa’di[ Born in 1949, Abd al-Razz¯aq al-Sa’di is a prominent Iraqi jurist and preacher who is the brother of Abd al-Malik al-Sa’adi.], considers protest a means for the community to “raise its voice,” where individuals publicly demand their legal rights from the leaders on the condition that these demands must be made privately before making them public through protest[ Abd al-Razzaq, also mentions two legitimate reasons for protesting: a failure to grant people their rights and negligence with regard to the affairs of state. See. Adnan A. Zulfiqar (Supra). P. 480.]. While he is amongst the few to raise this as a condition, which does not defeat the notion that avoidance of public disruption can be resorted to if a matter can be privately resolved. The Saudi scholar, al-Sharıf Hatim al-Awni, says that demonstrations are a “means of communication that give expression to one’s opinion” and in this way function as a way of changing society by exerting pressure on a leader/ruler to fulfil its own obligations owe to the populace.[ Ibid. See also Mustafa Bokran, Al-Shaykh A.hmad al-Raysunı . . . faqih al- . huriyya [Sh. Ahmad al-Raysuni jurist of freedom], MAGHREES, http://www.maghress.com/hespress/29625 (Accessed Mar. 27, 2011).]

Despite this, the opponent of Protest Jurists strictly limit this method in cases in which harm may befall person(s) performing this obligation since the objective of the shar’iah is the total elimination of harm as stated by the maxim “raf al-Haraj Muhttamal”. Where the harm associated with protest outweighs the purported benefit then more credence is accorded to maintaining the status quo rather than protest that will lead to chaos and disruption[ Adnan A. Zulfiqar (Supra). P.487.] as the maxim implies aldararu yuzal (harm shall be eliminated).

In support of the above position, Abū Ḥāmid al-Ghazālī (d. 1111) noted, for instance, that individuals should avoid performing this obligation in cases where their lives are endangered.13 Yet, such individuals view the chronology of change as being dependent on their ability to render change and so they prefer changing things by hand; if they are unable to make the indicated change physically, then they attempt to do so by means of their words; if this too fails, then they turn to the heart – defined as revealing their internal revulsion and non-acceptance of the negative practices they wish to change[ Ibid].

With regard to the duty to oppose an unjust ruler and support the oppressed, Muhammad al-Yaqoubi issued a fatwa that mandated participation in peaceful demonstrations in Muslim States as an obligation based on what he considers a Sharı’a requirement to oppose a tyrannical or unjust ruler.[ Ibid.] Realizing the potential controversy of this statement, he immediately addresses the contrary Prophetic tradition requiring obedience to a ruler. For Yaqoubi, these conflicting rulings can be reconciled by narrowly tailoring the meaning of the second ruling. He notes that obedience to a ruler is contingent on that ruler being “just.” He subsequently outlines different types of rulers, citing medieval authorities to support his position, each requiring a different type of engagement from the public. For instance, he notes that a disbelieving ruler, or more accurately one who eschews Islam after coming to power, should be removed. Then he speaks of corrupt, tyrannical and unjust rulers. [ Ibid.]

However, even the opponent of protest jurists describing the traditional position that the “imperative of obedience to the ruler/leader had one exception: there are justifiable grounds for removing a leader/ruler who openly rejects Islam after coming to power or in other words Islamic law only allows revolt in “very rare circumstances” one of which is “when a leader/ruler apostates or abandons his belief”.[ Ibid.]

Nonetheless, corrupt rulers are to be preserved, according to authorities like Yahya¯ b. Sharaf al-Nawawi who considered opposition to such leaders/rulers as too costly in comparison to the benefits because of the chaos that would ensue. However, a tyrannical ruler, Yaqoubi notes, according to different medieval authorities like Juwayniı and Taftazani, must be removed, even by force, if his injustice has become widespread and he refuses to stop. Yaqoubi cites the medieval jurist Ibn Abidın as saying that anyone who rises up against a ruler and is in the right cannot be classified as a rebel, in other words, the laws pertaining to rebellion do not apply. In fact, it is an obligation upon Muslims to help and support them.[ Ibid.]

In the same vein, Awni says that permissible peaceful protest becomes “obligatory” if it is not possible to “fix abusive practices” of the state without them. Amir Abu Salamah makes the same point, but characterizes this right as a “human right” to “non-violent jihad,” acknowledged by “constitutions around the world.” He then suggests that Allah will reward them for this “great obligation” because it is the “greatest of jihads,” since its participants are “speaking words of justice to unjust power.”[ Ibid.] What he does here is enhance the protest obligation.

Furthermore, for some of these opponent of Protest Jurists such a Sheikh al-Fawzān, ʿAbd al-ʿAzīz Āl al-Sheikh stated that, protest rallies are considered innovations forbidden in Islam. In their opinion, modern protest marches and rallies are actions that stem from non-Islamic cultural norms; as such, the participants are blindly mimicking Western experiences, which do not demand a Muslim state with sharīʿah laws, but rather voice slogans that are not fundamental to Islam. In reply to this line of argument Abd al-Razzaq al-Sa’adi argues that there is no blanket prohibition on borrowing methods from non-Muslims, arguing that if this were the case Muslims would not be permitted to use various forms of modern technology. Instead, he offers a legal maxim as a guide for evaluation: “everything that brings good and defends against evil finds no objection in Shari’a.” Also, Yusuf al-Qaradawi adds to this by suggesting that the prohibition against replication applies only in matters of religion, but not “one’s worldly life” where Muslims borrow plenty of things from other civilizations.[ Ibid.]

An additional claim made against forms of modern protest by the opponent of protest jurists is that they lead to people’s physical harm and endanger their lives and wellbeing – which the sharīʿah designates as: “corruption in the land (fasād fīl-arḍ).” Actions such as these are considered crimes and those committing them will suffer severe punishment. Even if a protester did not actually commit a single crime his/herself, the rally itself may cause criminal deeds to occur. If so, mass protests are forbidden, in accordance with the sharīʿah principle: “avoidance of actions that may cause harm” (sadd al-dharīʿah), taking into consideration the armed struggles that often end with the loss of lives[ Al-Atawneh, M. (Supra). p.43.]. These scholars found precedents in the prophetic tradition, in which: “to curse a Muslim is an evil deed and to fight him is a heretical act (sibāb al-Muslim fusūqun wa-qitāluhū kufrun).”[ Al-Bukhārī, “al-Adab,” 44.]

One of the most challenging approaches in regard to protests belongs to the official Wahhābī religious authorities. As stated above, from the Wahhābī standpoint, members of different generations, advice (naṣīḥah) is the only legitimate tool available for the voicing of criticism against the ruler. Being the case, every other form of dissent, such as protest rallies, are forbidden, because they contradict the commandments of the sharīʿah as strictly interpreted by them. In other words, any resistance to a ruler failing in his sharīʿah observance is done clandestinely, by means of secret advice (naṣīḥah) or via a letter (maktūbah), thus drawing his attention to the deviation and showing him how his deeds are not in line with the sharīʿah. In any case, advice is not to be given publically[ Al-Atawneh, M. (Supra). P. 36 & 44.].

In reply to the above assertion by the opponent of Protest Jurist Amir Abu Salamah also counter argued the fact that “when a “ruler is oppressive” it is a “public violation” and its rebuke must be voiced publicly.[ Adnan A. Zulfiqar, (Supra), p. 486.] In fact, they suggest that these activities existed in the past, but were simply not widespread enough to merit comment; it is due to their prevalence today that “it is necessary to promulgate a ruling” from Islamic law to validate them.[ Ibid.]

The Opponent of Protest Jurists such as Ibn Baz and amongst others argued while they claimed that no legal proof texts from Islam’s constitutional sources, the Qur’an and Prophetic tradition, permit protesting, nor is there any support for it from persuasive authorities in the historical record and therefore protest have no Islamic legal standing and should be considered a form of rebellion and rebellion is designated as impermissible in Islamic law[ Ibid. p. 464.]. Sheikh Yūsuf al-Qaraḍāwī[ The Qatari based Egyptian jurist, Yusuf al-Qaradawi, Born in 1926, Yusuf al-Qaradawi is considered “the most prominent scholar and preacher in Sunni Islam at the beginning of the twenty-first century.” He is the president of the European Council of Fatwa and Research and founding chairman of the International Union of Muslim Scholars. ROXANNE L. EUBEN & MUHAMMAD QASIM ZAMAN, PRINCETON READINGS IN ISLAMIST THOUGHT 224 (2009).] recognize various expressions of protest, including rallies, strikes, civil unrest, etc. , he published a legal opinion on public protest, in which he expressed broad support for nonviolent public protest of various types.[ Ibid. ] He rejected claims made by other scholars who denounce popular protest, claiming that they have no legal basis for that opinion.

For instance, the claim that protest rallies are new innovations forbidden by Islam (bidʿah) is very problematic, since only innovations relevant to religious matters are forbidden by Islam, especially regarding the accepted ritual commandments (ʿibādāt), but not innovations in the realm of customs (ʿādāt). Al- Qaraḍāwī finds support in a basic Islamic principle that states: “Things are permissible unless proven to be unlawful (al-aṣl fīl ashyāʾ al-ibāḥah).”[ According to Islamic law, the deeds and omissions of human beings fall into five ethico-legal categories, called al-aḥkām al-khamsah: obligatory (farḍ or wājib); recommended (mustaḥabb or mandūb); permitted (mubāḥ or ja’iz); reprehensible(makrūh); and forbidden (ḥarām).] For al-Qaraḍāwī, rallies are innovations within the framework of custom and, as such, they are within the realm of the permissible, as long as they do not negate other legal norms, as in the use of violence, ethical violations, etc. In the words of Sheikh al-Qaraḍāwī:

“It is the right of the Muslims, like all the other nations of the world, to hold marches and rallies, at which they may voice their legitimate demands to the authorities and decision-makers in a voice that cannot be ignored. It is likely that a single voice will not be heard, but the voice of the masses cannot be ignored … because the will of the many is stronger than that of the individual … The legal proof that supports such rallies is that they are within the purview of the leaders and of civilian life; the basic (legal) assumption here is that this is permitted”.[ Yūsuf al-Qaraḍāwī, “Mawqif al-Islām min al-dīmūqrāṭiyyah,” at al-Qaraḍāwī’s official website: http://qaradawi.net/new/all-fatawa/7234-2014-04-20-10-43-27, accessed August, 2015.]

In essence, this position, taken by Sheikh al-Qaraḍāwī, is a result of his overall understanding of the theory of the modern Islamic state, as expressed by the predominant acceptance of democratic methods, including the right to protest and show opposition. In this context, he also says:
Democracy is the best guarantee for the protection of society from oppressive regimes and tyranny… We are obliged to adopt the democratic method and mechanisms in order to realize justice and to respect human rights, and to stand against oppressive and tyrannical regimes …[ Ibid.; more on al-Qaraḍāwī’s theory of the Islamic State see David Warren, “The ʿUlamāʾ and the Arab Uprisings 2011-13: Considering Yusuf al-Qaradawi, the ‘Global Mufti,’ between the Muslim Brotherhood, the Islamic Legal Tradition, and Qatari Foreign Policy,” New Middle Eastern Studies 4 (2014): 2-32.]

4.1. PERSUASSIVE AUTHORITIES IN FAVOUR OF PROTEST
The proponent of protest jurists also cite the Prophet’s Companions (RA) as routinely conducting what is now viewed as protests. Awni reinterprets parts of Islamic history referred to this as “the Pious Ancestors Demonstration” (muzaharat al-salafiyyah) to argue this point. For instance, the Battle of Camel, one of the most famous battles after death of the Prophet (SAW), pitted two camps of Muslims against each other in dispute over the appropriate response to the assassination of Uthman b. Affan (RA) the third Caliph after Muhammad (RA).[ Adnan Zulfiqar (Supra) p. 481.] The newly appointed Caliph, Alı b. Abı .Talib, (RA) led one of the camps, while the others were comprised luminaries such as: al-Zubayr b. Al-Awam, Talha b. Ubayd Allah, and A’isha, a wife of the Prophet (RA).[ Ibid.] Awni argues that this latter group did not “depart with the purpose of engaging in a fight” when they set off to confront Alı (RA) over his decision regarding the assassins of Uthman (RA) but rather, to simply protest and “make known their objection to the absence of retribution for the assassination” and to “put pressure on Caliph Ali (RA) to do something.[ Ibid.] furthermore, he argues that Caliph Alı (RA) recognized this as a protest and not a call to arms or rebellion and that is why he did not reject their “core action,” never denied them the right to gather, nor slandered them even though the actions were directed against him.160 Thus, Awni argues that both Alı’s allowance of the protest and the presence of luminaries in the protest mean that this type of action is permissible. In addition, the jurists don’t restrict themselves to this earliest period to establish precedent for protest.[ Ibid.]

They point to other instances throughout Islamic history where renowned personalities, including jurists, took stands on various issues and voiced their opposition to the ruler. One of the more famous incidents they point to was when Caliph Abd Allah al-Ma’mun (813-833 A.D.) attempted to impose a religious test and loyalty oath in Baghdad. These events elicited a strong reaction from civil society. The pro-uprising jurists specifically point to the actions of the religious scholar Ahmad b. Hanbal (“Ibn Hanbal”). It is worthy of note that Ahmad Ibn Hanbal gathered “hundreds, possibly thousands,” of people to oppose the position of Caliph al- Ma’mun, eschewing “private counsel” for public “resistance[ Ibid. p.482].”

As the above analysis shows, the power of this persuasive authority comes from the assumption that certain luminaries from the past would never behave in contravention to the constitutional sources. As a result, their behavior is ipso facto an interpretation of these sources. In the historical record, this appears in two primary ways in relation to protests. On the one hand, a luminary may have engaged in a protest, thus making it licit behavior. On the other hand, a luminary like Ali may have refused to take action against a protest, thus giving it tacit approval. In order to have the broadest applicability possible, proponent of Protest jurists classified a range of historical activities as protest or demonstration[ Ibid].

This classification included activities ranging from voicing public displeasure to revolution, even armed ones, like those of al-Husayn b. Ali, Abd Allah b. al-Zubayr, and Ibn al-Ash’ath (RA). Of course, it is not clear that medieval jurists would have understood these events in the same way; today’s jurists are clearly viewing these historical events through a modern lens.

In general, the textual arguments made by proponent of protest jurists demonstrate the continued centrality of language and text in Islamic legal argumentation. Even in the absence of any explicit proof-texts supporting their position, jurists are required to make overtures to principles and tangential proofs that might be found in the textual sources in order to fortify their argument. In doing so, they rely primarily on qiyas (analogical reasoning), a method considered central to pre-modern Islamic legal theory. In many instances, however, there is no analogy to be made with the cited proof-texts. Instead, jurists focus on demonstrating consistency or non-conflict with Islamic legal principles, engaging in what might be broadly termed “objective” arguments.

4.2. LIMITATIONS TO PROTEST
According to al-Qaraḍāwī, modern, democratic methods of protest, like rallies, strikes, peaceful demonstrations etc., are consistent with Islam and Sheikh ʿAlī Muḥyī al-Dīn al-Qaradāghī, the General Secretary of the International Union for Muslim Scholars (al-Ittiḥād al-ʿĀlamī li-ʿUlamāʾ al-Muslimīn; hereafter: IUMS),[ The IUMS was established in July 2004 in Dublin, Ireland, by a group of scholars under the leadership of Sheikh al-Qaraḍāwī. In October 2010, the IUMS headquarters was moved to Doha, Qatar, and two additional branches were established in Egypt and Tunisia. The structure and composition of the IUMS has been transformed since its creation. Today, the IUMS is considered the largest ever Islamic religious body, with ca. 60,000 members, representing thousands of religious councils and organizations from all over the Arab and Islamic worlds: Sunnīs, Shīʿīs, Sufis, Ibāḍīs. More on IUMS membership is found at its website: http://www.qaradaghi.com/chapters.aspx?ID=154, accessed September 3, 2016.] continues in line with al- Qaraḍāwī, claiming that rallies and other expressions of protest are permitted, as long as they observe the following conditions and limitations:
1. They must be quiet and nonviolent and must maintain their quiet nature; even if they encounter violent resistance from the side of the regime, they are never to become violent, for that would be an infraction of another Islamic law.
2. Protest rallies are only to be held in response to government corruption, oppression, or tyranny, or due to legislation countering the accepted legal tradition, such as: usury, alcoholism, or governmental encouragement of abominations, e.g., adultery.
3. In cases when the government aligns itself with other hostile, anti-Muslim governments and helps them, either economically, militarily or politically.
4. These permissible rallies may not serve personal, political or political party interests.
5. They must avoid all practices that may contradict Islamic law and ethics.

According to Sheikh al-Qaradāghī, rallies observing the above restrictions cannot be considered illegitimate khurūj as defined by the classical sources. He believes that the voicing of criticism via rallies is consistent with the “giving of advice (Naṣīḥah),” the familiar concept found in the classical legal sources. He adds that calling for change is mandated by the doctrine of “commanding right and forbidding wrong,” anchored in the Qurʾān itself.[ Al-Qaradāghī, “al-Taʾṣīl al-sharʿī,” 6.]

Upon further examination of this subject, it is imperative that the proponent of protest Jurists hold a position in which, in this day and age, quiet rallies, protests, and strikes, civil unrest, etc. are legitimate expressions of protest for bringing about solutions to existing problems. These pro-protest scholars especially emphasize that the struggle against corruption in all its forms, such as embezzlement of public funds or the misuse of power at the expense of national interests, is a basic legal obligation. Nonetheless, one should avoid actions (in protest) that contradict Islamic legal principles, e.g., causing damage to public or private services and property or to industry. Actions taken may not disrupt public life, nor the functioning of a valid government, nor national security.

5.0.PROTEST AS AN INSTRUMENT OF SOCIAL CHANGE

The concepts of change as the most permanent thing in life are derived from the primary sources of Islamic Law, the Holy Qur’ān and the Sunnah (prophetic Traditions), they include terms such as tagghaiyyur, tabaddul, tahauwwl, khoroj, tajdid, and Islāh. These terminologies agrees and does not oppose Western concepts of change such as evolution, progress, and development but it offers different definitions and interpretations of these concepts. In addition, it defines social change as it refers to spiritual, moral and material transformations, etc[ Sumaya M and Shadiya B. (2011) Toward Social Change in Islam, International Journal of Basic & Applied Sciences, IJBAS-IJENS Vol: 11 No: 02, ISBN 113302-6767. P. 25.].

Generally, change is a necessary phenomenon which is universal, inevitable, and irreversible in nature. Though, change is everywhere and happens every time yet it is unavoidable in every sense of its inevitability, and prevalence; thereby all societies need change whereas those unwilling to change will definitely go into extinction. However, Change in Islam is different as not everything is subject to change and the things that are subject to change move in one of three directions: deviation from the absolute, parallel to the absolute or return toward the absolute[ Dawud Rosser-Owen, Social Change in Islam “A paper presented at the Muslim Institute Seminar on 10 October 1975 at the Royal Society of Arts, London”, pp. 11.]. These three directions can also be reduced to two for the purpose of convenience: changes toward the best and the worst[ Sumaya M and Shadiya B. (Supra) p. 25.].

As change moves in different directions in Islam, it must take place at all levels: individual, group, communal, societal and universal, but mostly at the level of the individuals. The reason is that individuals are the active agents of change and any change in them will cause subsequent changes at the other levels. In the case of individuals, Islam emphasizes to change their inner beings; their awareness and consciousness, their attitudes, beliefs, motivations and morality and spirituality in accordance with the letters and spirits of the Sharia. As a result of this inner change, society will also change from one stage of perfection to another, both physically and metaphysically[ Ibid. p. 29.]. Allah SWT states in Qur’an 13:11
“Lo! Allah changes not the condition of a folk until they change that which is in their hearts;”

The reason why Islam prefers gradual change is that it is more permanent, more influential and more suitable and in consonance with human nature. Therefore, Islam is generally in favor of only the positive permanent change, as opposed to the temporal or fleeting change that lasts for certain period of time or for certain conditions[ Ibid. p. 26.]. Allāh (SWT) has criticized those who are opportunistic and only change for a specific situation and for certain period of time. When this situation has changed, they return to their bad deeds and behaviors[ See Qur’ān, 17: 67.]. He has considered the temporal and opportunistic change as one of the characteristics of hypocrites.[ See Qur’ān, 2: 8-16]

Change in the context of protest is a means to an end but not an end in itself, it is indeed a journey and not a destination. Whereas the means is a process for the attainment of justice, freedom from arbitrariness, the end is justice. The prophet (SAW) is reported to have stated “Whoever among you sees something reprehensible, let him change it with his hand, and if not that, then with his tongue, and if not that, then with his heart, but this is the weakest of faith.[ See 40 Hadith Nawawi 34, http://sunnah.com/nawawi40/34.] In another related Prophetic Tradition which is more applicable to our topic under discussion is where the prophet (SAW) is also reportedly stated;

“Never a Prophet had been sent before me by Allah towards his nation who had not among his people (his) disciples and companions who followed his ways and obeyed his command. Then there came after them their successors who said whatever they did not practice, and practice whatever they were not commanded to do. He who strove against them with his hand was a believer: he who strove against them with his tongue was a believer, and he who strove against them with his heart was a believer and beyond that there is no faith even to the extent of a mustard seed”.[ Sahih Muslim / Hadith 50; USC-MSA web (English) reference Book 1, Hadith 81.]

In the light of above, protest as a part of the democratic process does not necessarily contradict Islamic Law. This is represented by Muslim scholars from various schools of thought and legal trends, such as the IUMS, Sheikh al-Qaraḍāwī and many others[ Al-Atawneh, M. (Supra) p 48.]. This approach on the one hand, lends legality to quiet protest; rallies; strikes; peaceful demonstrations etc the primary requirement being nonviolence. These scholars justify passive and active opposition, as long as there is no blatant contradiction with legal and ethical norms for public morals or tort damages[ Ibid.]. Moreover, this camp of ʿulamāʾ defines quiet protest actions as being obligatory (like other Islamic positive commandments, e.g. “commanding right and forbidding wrong”) for the creation of a more moral society. In this context, it is the duty of every Muslim to try, in accordance with his/her abilities, to make changes, as stated in the prophetic tradition.[ Ibid.]

On the other hand, the second approach considers the norms of modern protest to be non-Islamic (usually from Western cultures); as such, they are rejected by sharīʿa. These Prophetic traditions are supposed to indicate different methods for struggling (jihad) on the path of Allah. Whereas changing something with the hands denotes taking “action,” or even fighting with the sword.[ Adnan A. Zulfiqar (Supra), p. 478-479].] The act of changing something with one’s tongue is self-evident: speaking out against reprehensible acts. Finally, change through one’s heart is often either indicative of battling one’s “own sinful inclinations” or silently hating evil even if one is powerless against it.[ Ibid.] The proponent of protest jurists suggest that this Prophetic traditions is supportive of protests because protests are both taking action and raising one’s voice—change with one’s hands and tongue.[ Ibid.]

Superficially, the classical ʿulamāʾ agree on the chronological order determined by the above Hadith (Prophetic Report), as expressed by hand or by word, and only afterwards by the heart. However, a dispute exists primarily surrounding the practical implementation of this tradition. For example, al-Nawawī (a Shāfiʿī scholar, d. 1277) determined that whomever is killed while attempting to actively make a change by hand, or by word is a shahīd (martyr), like one who died sanctifying Allah[ See Abū Zakariyyā Muḥyī al-Dīn Yaḥyá ibn Sharaf ibn Mūrī al-Nawawī, Sharḥ matn al-Arbaʿīn al-Nawawiyyah fīl-aḥādīth al-ṣaḥīḥah al-Nabawiyyah, 4th ed. (Damascus: Maktabat Dār al-Fatḥ, 1984), 91.].this is premised on the strength of the Hadith where the Prophet is reported to have said “He who dies while defending his property is a martyr, he who dies in defence of his own life is a martyr, in defence of his faith (religion) is a martyr, and whoever dies in the cause of preserving his honour is a martyr”[ Abū Zakariyyā Muḥyī al-Dīn Yaḥyá ibn Sharaf ibn Mūrī al-Nawawī, Riyad as-Salihin 1356; Book 11, Hadith No: 72. https://sunnah.com/riyaduassalihin:1356 ]

Life in general is subject to change from a situation to another. The dynamism of life may affect an individual and the society respectively. In either case, the function of law as mechanism for social engineering is to tackle the problems resulting from such a change. Legal rules/regulations are mainly enacted to regulate the conduct of people in a particular geographical entity. However, an ideal law must take account of social change whether by enacting a new rule or by modifying an existing one. So, Law is not static but dynamic to meet the demands of people and time. This is evident on how law changes the society and/or the society changes the law depending on surrounding circumstances. Law is liken to life for their dynamism so whenever life changes the law also changes. Whereas, the letters of law under Islamic and Secular Constitutional Sources does not equivocally makes provision for protest as an instrument of social change, the spirit of law is to achieve justice both in this life and in the afterlife.

Therefore, as the maxim implies “al islami li kulli z-Zamani wa al-makani” (Islam is for all times and places) and this is why Islamic Jurists are to proffer legal decisions in accordance with the maxim which state “tagayyar al-Fatawa bi-Tagayyari azzmanah wal-amkinah wal-ahwaal wal-a’araaf” (Legal decision are to be modified taken into consideration changes in times, places, circumstances, and customs). The necessity or otherwise of protest is contingent upon the circumstances, for what is necessary during a particular time and place might be unnecessary based on the custom or convention of another place over a particular period of time.

6.0.THE NECESSITY FOR FULFILING OBLIGATIONS

This seems to be their reason for elevating these acts to the level of obligation[ ]. Sa’ad Atiyah al-Azhari, an Egyptian jurist, argues that protesting is obligatory on the Muslim community collectively as a means of “clarify(ing) their position” and “encouraging the leadership to implement what they hope for.” They argue that the majority of jurists agree that these are legal acts, but differ as to the type of legality in question. Some argue that they are simply permissible (mubahah), others that they are actually commendable (mustahibah) and finally those who consider it obligatory (wajib). Those who opined that protest is an obligation includes the scholars such as Sa’ad Atiya, Hasan al-Banna, Shaykh Yusuf al-Qaradawi), as well as numerous Salafi Scholar such as Shaykh Abd al-Rahman Abd al-Khaliq, Sh. Salman al-Awda, and Sh. Muhammad al- Hasan al-Shanqiti also mention that numerous scholars from across the Muslim world are in support of this position.

This Section shows how jurists expanded four pre-existing duties and maxims to support the inclusion of protests as a legal obligation. These include the duty to command what is good and forbid hat is wrong alongside give good counsel, the duty to oppose an unjust ruler and support the oppressed, the duty to fulfill contracts and the duty to protest as a means to accomplish other obligations. These four pre-existing duties shall be analyzed thus;

i.THE DUTY TO COMMAND WHAT IS RIGHT AND FORBID WHAT IS WRONG
A study of the relevant classical Islamic literature teaches us that there is a lack of consideration given to modern expressions of protest, such as rallies, strikes, civil unrest, etc. Nonetheless, protest and opposition to the ruler may occur within the frameworks of two relevant, key classical doctrines: “opposing the ruler (al-khurūj ʿalá l-ḥākim)” and “commanding right and forbidding wrong (al-amr bi-lmaʿrūf wa-l-nahy ʿan al-munkar).” Both these doctrines have enjoyed serious consideration in important textual sources: the Qurʾān and the Sunnah, as well as in the positive legal literature of the al-siyāsah al-sharʿiyyah, particularly in regard to the ruler-ruled relationship[ Adnan A. Zulfiqar (Supra), p. 486.].

With regard to the first group, Abd al-Malik al-Sa’adi quotes an oft-repeated verse in the Qur’an that says people must “command right and forbid wrong” (ya’mur¯una bi’l-ma’aruf wa-yanhawna ‘ani ‘l munkar)[ Among these verses: Q 3:104, 110-114; Q 9:71, 111-112; Q 22:41; Q 31:17.]. This is a particularly useful Qur’anic prescription since “right” and “wrong” can be read quite broadly to encompass different ideas. Hence, Abd al-Malik is able to argue that protests fulfill this Qur’anic directive by raising the “wrong” committed by the government. Thus, Amir Abu Salamah also considers protests from this perspective, noting that “young people who went into the streets did not do so to destroy or create disorder in the land, but only command what is right by demanding freedom and justice” and by “forbidding what is wrong” through removing injustice, calling for emergency laws to be lifted, and fighting to “release political prisoners and among others”[ Adnan A. Zulfiqar (Supra), p. 486.] demonstrations, marches, strikes, etc.” are “not only permissible” but “at certain points even rise to the level of collective duty.” They argue that these actions are methods to “collectively express” an opinion on an issue of public concern and the manner in which one makes “their point of view known.”[ Ibid.]

In addition to the “right/wrong” (amr/nahy) verses, jurists also use other verses with broad prescriptions on fighting for justice and against oppression. Yusuf al-Qaradawi says protestors on the streets are rising up against oppression and then quotes verses from the Qur’an that speak of God’s dislike for oppression and oppressors.[ Adnan A. Zulfiqar (Supra) p. 472.] Proponents of Protest Jurists also focus on the idea of fighting oppression and quote the Qur’anic verse which commands people to seek “reconciliation” between “two groups of believers” that are fighting, but if “one of them is oppressing the other, fight the oppressors until they submit to the command of Allah.”[ Qur’an 49:9. ] While this verse is often understood to mean physically fighting the oppressors, the Proponents of Protest Jurists suggests that even nonviolent protests are a form of “fighting” oppression. Muhammad al-Didaw al-Shanqiti utilizes the verse of the Qur’an which commands believers to “stand up for justice” as “witnesses before God” and considers the protestors as fulfilling this obligation[ Adnan A. Zulfiqar (Supra) p.478.].

Jurists also seek proof texts from the Prophetic tradition. Qaradawi and others notes the Prophet saying that “the highest form of jihad is speaking truth in the presence of a tyrant ruler” (yaqulun kalimat al-haqq inda sultan ja’ir).[ Abū Zakariyyā Muḥyī al-Dīn Yaḥyá ibn Sharaf ibn Mūrī al-Nawawī, Riyad as-Salihin 195, The Book of Miscellany, Hadith 95. https://sunnah.com/riyaduassalihin:195] This tradition plays a key role for many jurists because its narrative fits the concept of protest: for protesters were speaking truth against leaders/rulers who could be classified as tyrants. The words of truth they speak constitute an act of commanding and forbidding in a form of good counsel “nasiha” as supported by two hadith where the Prophet Reportedly stated that “He who believes in Allah and the Last Day must either speak good or remain silent[ Abū Zakariyyā Muḥyī al-Dīn Yaḥyá ibn Sharaf ibn Mūrī al-Nawawī (Supra) 1511, Book 17, Hadith 1; https://sunnah.com/riyaduassalihin:1511 ].” And the hadith The Prophet (ﷺ) said, “The deen (religion) is nasihah (advice, sincerity).” We said, “To whom?” He (ﷺ) said, “To Allah, His Book, His Messenger, and to the leaders of the Muslims and their common folk[ Abū Zakariyyā Muḥyī al-Dīn Yaḥyá ibn Sharaf ibn Mūrī al-Nawawī, Ibid. Hadith 283, The Book of Miscellany, Hadith 7, 40 Hadith an-Nawawi (Supra) https://sunnah.com/riyaduassalihin:283 ].” [Transmitted by Muslim]
The opponent of Protests Jurists’ Islamic legal position considered protest in all ramifications as a form of rebellion (khuruj) against the state, an act that is generally prohibited. This is based on a legal disposition favoring stability over disorder and the operating assumption that even a known tyrannical ruler is a less disruptive force than an unknown alternative.[ Adnan Zulfiqar (Supra) p.462.] Even though this assertion might be factitious yet it is based on mere speculation or conjecture and there exist injunctions of the Holy Qur’an and Sunnah (prophetic traditions) prohibiting following conjecture. Allah (SWT) in Q 53:28 “And they have no knowledge thereof. they follow but a guess, and lo! A guess can never take the place of the truth. And the Prophet (SAW) is reportedly stated “beware of suspicion, for suspicion is the worst false tales”.[ Riyad as-Salihin, the book of prohibited actions, Hadith :1573; English Translation, Book 16, Hadith 1531; Arabic Reference Book 16, Hadith 1488.

Based On the strength of the above injunctions, truth Is based on the certainty of the fact that the leader/ruler has already been declared a tyrant/oppressor as a result of his actions and inactions constituting the breach of Shari’a and/or constitution coupled with the infringement of the rights of others but there exist doubt as to the fact that the unknown alternative being either more or less a disruptive force than the known tyrannical ruler. Therefore, to declare that the unknown alternative might be a disruptive force than the known tyrant is a conjecture. This is in accordance with a maxim which states that “al yaqinu ya yuzalu bish shakk” (Indeed certainty cannot be overwhelmed by doubt). According to two other but similar maxim, “yufarraqu bayn al-ilmi idha thabata zahiran wa baynahu idha thabata yaqnan” (knowledge that is based on certainty is to be differentiated from manifest knowledge that is based on probability only) and “la ibrata biz-zanni al-biyyini khata’uh” (no validity is attached to conjecture which is obviously tainted by error.)

ii.DUTY TO OPPOSE AN UNJUST RULER AND SUPPORT THE OPPRESSED

The questions of khurūj may also be tied to the classical doctrine of “commanding right and forbidding wrong.” As previously stated, this commandment is anchored in the Qurʾān, reiterated in a number of verses. Al-Juwaynī (a Shāfiʿī legal scholar, d. 1085) determined that this commandment is the individual obligation of every Muslim (farḍ ʿayn) when dealing with issues having a consensus in Islamic law.[ Altanwe (Supra)] However, this is not so when the law is unclear and requires ijtihād (independent reasoning), in which case the obligation falls to the ʿulamāʾ, who required to clarify such laws and, in doing so, to meet their obligation to command right action and forbid wrongdoing[ Ibid.]. It seems that the legal standing of this commandment, whether it is the individual’s obligation (farḍ ʿayn) or collective duty (farḍ kifāyah), is in dispute.[ Ibid.]Nevertheless, the act of khurūj may be justified where the ruler/leader is being a tyrant and oppressive.

While this verse is often understood to mean physically fighting the oppressors, the proponent of protest Jurists suggests that even nonviolent protests are a form of “fighting” oppression. Qur’an 49:9
“And if two parties of believers fall into fighting, then make peace between them. And if one party of them does wrong to the other, fight you that which does wrong till it returns to the Ordinance of Allah; then, if it returns, make peace between them justly, and at equitably. Lo! Allah loves the equitable.
Muhammad al-Didaw al-Shanqiti utilizes the verses of the Qur’an which commands believers to “stand up for justice” as “witnesses before God” and considers the protesters as fulfilling this obligation. Some of these verses are; Q4:135.
O you who believe! Be you staunch in justice, witnesses for Allah, even though it is against yourselves or (your) parents or (your) kindred, whether (the case of) a rich man or poor man, for Allah is nearer to both (than you are). So follow not passion lest you lapse (from the truth) and if you lapse or fall away, then lo! Allah is ever informed of what you do”.
The prophet (SAW) is reportedly stated that “When people see an oppressor but do not prevent him from committing sin, it is likely that Allah will punish them all”.[ Abū Zakariyyā Muḥyī al-Dīn Yaḥyá ibn Sharaf ibn Mūrī al-Nawawī (Supra), Darul Hadith, Beirut, p. 109. Hadith No:511, Book 17, Hadith 1; https://sunnah.com/riyaduassalihin:1511] [Ibn Majah]
Similar to the duty to oppose an unjust ruler, jurists claim a duty to support those people he is oppressing. Yaqoubi expands the legal obligation to not only prohibit siding with the unjust, but also require securing the rights of the oppressed which is in accordance with the hadith where the prophet is reportedly stated “Help your brother, whether he is an oppressor or he is an oppressed one, then interlocutors asked “O messenger of Allah it is all right to help him if he is an oppressed, but how should we help him if he is an oppressor? The Prophet (SAW) said “by preventing him from oppressing others[ Sahih al-Bukhari, Book 46, Hadith No: 5; USC-MSA Web (English) reference; Vol 3, Book 43, Hadith No: 624. https://sunnah.com/bukhari/2444].” This hadith is in accord with the hadith which states that “until he loves for his brother what he loves for himself. Sa’ad Atiyah al-Azhari echoes this point by stating that protests are a means of showing “those who oppress the innocent, that the Muslim community is not negligent of their plight”[ Ibid.]
Jurists lack constraint in how they utilize the category of legal obligation. It is arguable whether any affirmative duty to rise against an oppressor existed or whether this was simply a commendable act. Likewise, it is not clear from pre-modern Islamic law that supporting the oppressed was considered a duty or simply an optional good deed. What is evident though, is that jurists stretch the reasoning behind these duties beyond what would be found traditionally. The idea of demonstrating empathy for others’ plight or expressing solidarity seems to arise out of a legal realist approach the jurist takes to his context as opposed to a formalist reasoning with broader application. Building on this last point, certain pro-uprising jurists also expand the duty to oppose an unjust ruler, but specifically in reference to colonialism/neocolonialism[ Ibid.]. The prophet is reported to have order us to do seven things…. To help the oppressed.[ Sahih al-Bukhari, Book 46, Hadith No: 6; USC-MSA Web (English) reference; Vol 3, Book 46, Hadith No: 625. https://sunnah.com/bukhari/2445]

For instance, Abd al-Malik al- Sa’di lays out six types of executive behavior that require protest which are to wit; i. disavowal of religion, ii. Embezzlement/misappropriation of public funds, iii. favoritism towards one sub-section of the population, iv. exercising excessive police power over the citizenry, v. utilizing state institutions to secure power, and vi. colluding with a hostile or colonial/neocolonial state. Furthermore, Abd al-Malik’s concern is not with creating broad formalist principles, but with creating conditions narrowly tailored to his context: for, Iraqi In other words, his expansion of the legal obligation does not arise from theory but practical considerations and the demands of his particular constituencies. At another place, he attempts to place this position within pre-modern Islamic legal theory’s concern for the essential elements of religion (dururiyat al-dın). He notes that opposition to is obligatory because it “constitutes a defense of religion, one’s life, honor and property,” essentially suggesting that four of the five essential elements of religion are threatened by. Hence, he also obligates the use of protests to oppose colonialism/neo-colonialism or as a “defense against chaos and oppression.”[ Adnan A. Zulfiqar (Supra). p. 489.]

iii.THE DUTY TO FULFIL CONTRACTUAL OBLIGATIONS

Another argument as to why protests, and their objectives, are obligatory is based on contractual obligations in Islamic law. Allah (SWT) enjoin the Muslim fulfill their contractual obligations, the default of which shall subject the defaulting party to liability or to account for the excesses or deficit occasioned as a result of the default. “O you who believe! Fulfil Your Undertakings”. The word undertakings is synonymous to obligations, contracts, covenant etc. In Qur’an 17:34 “…. And Keep the Covenant. Lo! Of the covenant it will be asked.

The summary of this argument is that populace are in a contractual agreement with the leader/rulers through which they are guaranteed certain rights. The country’s constitution usually represents this contract and parties to a contract are bound by the terms and conditions of such contracts yalzamu mura’atu al-sharti qadra al-imkan (a condition must be fulfilled as far as possible). So, when the executive becomes oppressive and curtails people’s rights, he violates the Constitution, which is a violation of the executive’s contract with the populace. Since fulfilling contracts is an obligation under Islamic law, where the executive’s actions are in a breach of this obligation and must be corrected just as the maxim “al-ma’arufu ‘urfan kal-mashrati shartan” (A matter recognized by custom is regarded as if stipulated by agreement). Protests are the means by which populace serve notice of the violation and begin the corrective process[ Ibid. p.490].

The Proponent of Protests Scholars states categorically that protests are a “pursuit of the rights that the leader/ruler agreed to with his people through the Constitution.”[ Ibid] They add an additional element by saying that not only are people obligated to respond to the breach of contract, but also that one of the rights denied to them is the very right to protest. They consider protests an “enforcement” of the “contract between two parties”: the leaders/rulers and his constituents. Abd al- Malik al-Sa’di also states that the leader is in power because “the people permitted” him to rule over them in exchange for various things, such as “services,” “the establishment of justice,” being provided with the “comforts of life,” and “security.” If the leader/ruler does not fulfill his duties then it becomes necessary for some people to rise up to demand he fulfill them.[ Ibid.] This is supported by the maxim al-ta’ayinu bil-‘urfi kal-ta’ayini bil-nass” (A matter established by custom is like a matter established by a legal text).

One of the most interesting arguments made on this point is by Abd al-Wahhab al-Daylami, who analogizes the relationship of leader/ruler and the subjects to that of a lessor and lessee and the terms of the lease are binding upon both parties as the maxim implies “al-ma’arufu bayna al-tujjari kal-mashruti baynahum” (A matter recognised customary amongst merchants is regarded as if agreed upon between them). He notes that a lease ends when the term of the contract ends, except in those situations where the lessor “breached a condition of the contract.” Similarly, the leader/ruler is a “lessor to the people” and “the contract between them is the Constitution.”[ Ibid. p. 490] Daylami says that The Commander in Chief of the Armed Forces and the President of the Federal Republic of Nigeria “swore an oath to uphold the Constitution, but then violated it.” Since violating one’s oaths and contracts is against the Shari’a, Daylami considers a breach of the constitution to be a breach of Sharı’a.[ Ibid.] In each of these arguments the public is accorded much priority[ Ibid.].

Medieval jurists generally do not conceive of the relationship between the leader/ruler and public to be one in which he was contractually bound to serve them as the maxim “al-muslimün ‘ala shurütihim” (Muslims are bound by their stipulations). This maxim is in tandem with the Hadith (Prophetic Report) where the Prophet (SAW) is reportedly stated “Muslims must abide by their conditions (which they have made), except for a condition which makes unlawful something which is lawful, or makes lawful something which is unlawful.” [ Jami’ At-Tirmidhi , Arabic reference, Book 7, Hadith No: 872; English translation, Book 7, Hadith 876, https://sunnah.com/bulugh/7/115 [At-Tirmidhi reported it and graded it Sahih (authentic)].]Yet, this is essentially how the proponent of protest jurists configured the roles of the two parties and simply define the relationship between the executive and public as contractual while placing the central grievances of the protests as stipulations within that contract.

This assumption is that where the objectives of the protest are lawful the protest itself is also lawful and becomes obligatory, thus making the means of achieving them obligations as well. Hence, the level of obligation of an act increases as it becomes more essential to achieving the objective so the maxim “al-aslu al-mu’amalatu bi-naqidi al-qasdi al-fasid” (the rule is that in the case where the intention is proven to be fraudulent the result is that the converse is to apply) shall not be applicable against protest and the protesters respectively.

IV. THE DUTY TO PROTEST AS MEANS OF FULFILLING LEGAL OBLIGATIONS
Finally, the expansion of legal obligations to include protests also occurs through the use of a legal ma that states “ma la yatim al-wajib illa bihi fa huwa wajib itself” (anything that is required for an obligation to be completed is obligatory)[Adnan A. Zulfiqar (Supra). 491]. Amir Abu Salamah suggests that three primary obligations are being fulfilled here which cannot be completed without protesting. Therefore, the First three-pre-existing duties to wit, the duty to command what is right and forbid what is wrong, second, the duty to provide good counsel and, third, the duty to engage in jihad, specifically what he considers to be the most laudable form of jihad: “non-violent” jihad. These acts are all obligatory because they pursue necessary goals of “reform,” “restoration of rights,” and “confronting injustice.”[ Ibid.] As a result, since protests are in pursuit of these obligations, they also become obligatory themselves.[ Ibid.]

Abd al-Razzaq al-Sa’adi says that not only are protests permissible, but they become obligatory in certain cases using the same maxim mentioned above. For instance, he notes that one of the ways of completing the obligatory acts of “repelling aggression, stopping injustice, helping people recover their rights, [and] preventing corruption in the performance of duties” is “peaceful, civilized demonstration.” In some respects, this legal maxim is also at the heart of the argument put forward by Kamal al-Halbawi, an Egyptian Proponent of Protest Jurist, even though he does not explicitly mention it. [ Ibid. p. 492. ]

Nevertheless, He Kamal al-Halbawi suggests that demonstrations are actually an individual obligation on every Muslim during the protest “until the demands of the protest are met,” but that the support of every Muslim with prayers, offering sponsorship to the protesters is only a collective duty. Whereas before he considered the protests a “primary means to put pressure in order to achieve the legitimate demands of the protest,” he now suggests that circumstances have changed such that protestors involved in activities necessary and incidental to complete the protest. Notably, Halbawi is basing the legal obligation purely on what is most effective for realizing the protest. The assumption he Thus, it is an obligation for believers to participate in demonstrations.[ Ibid. ]

THE RELATIONSHIP BETWEEN ISLAM; DEMOCRACY AND SECULARISM
Whether Islam is compatible with democracy is a misleading question; Islam and democracy are two different entities, although the two things cannot be divorced when dealing with politics in a multi ethno-religious states like Nigeria where there exist substantial number of Muslims. Islam and democracy are to a larger extent inconsistent, for in Islam sovereignty belongs to Allah[ Qur’an 3:26.] but in a democratic state sovereignty belongs to the People. In the words of Abraham Lincoln, the 16th President of the United States of America in honour of the soldiers that died for the cause of democracy define the term democracy as “the government of the people by the people for the people”.

In the Shar’ia elections are not only permitted but considered as a form of shahadah (testimony) to the suitability of candidates for leadership. Political parties and associations are permitted, and Islam stands for consultative and constitutional government with limited powers subjected to the rule of law. Basic rights and freedoms must be protected and government is accountable to the people.[ M.H. Kamali (2008), Shari’ah Law: An Introduction, (Oxford: Oneworld Publications,)]

Secularism Arabic: ‘alamaniyya, dunyawiyya) means that which is worldly and temporal. It is a concept that came to the Muslim world in the company of other related terms such as modernity and westernization in the context of colonialism. Although secularism is usually taken to imply the liberation of politics from religion, it has been employed in various ways to marginalize Islam and exclude it from restructuring society during both the colonial and post-colonial periods. Secularism proclaims the independence of ‘secular truth’ which is experimental and temporal, thereby excluding metaphysical and non-experimental aspects of knowledge[ Ibid]. Thus, Islam is incompatible with secularism for Islam govern the entire affairs of mankind ranging from personal, social, economic, cultural, polico-legal[ Ibid.] taking into account the maxim al-Islamu dinu wa dawla.

RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
Islam came to free people, and there are strong evidences in the Quran that people are rational, responsible, and naturally capable of making choices. They are responsible to the extent that they are free, and they are creative to the extent that they are free and responsible. The advancement of humanity is tied with freedom, and the Quran assures that freedom provided the wheels of taking off.[ Jallow AY (2015) Freedom of Expression from the Islamic Perspective. J Mass Communicat Journalism 5: 278. P. 3. doi:10.4172/2165-7912.1000278.]

Whatever rights human beings possess are the outcome of individuals and societies fulfilling their duties and responsibilities to each other. There are few rights which are explicitly recognized as such in the Quran—it establishes parental rights over children, for example, but most rights are in the nature of obligations. The rights of Allah over humanity are met through acts of Ibadat (worship and devotion). The right to work exists because human beings have a duty to work and strive to improve their lives; the right to freedom expression exists because humanity has a duty to seek the truth and its fulfillment. Even in matters which are not on the surface contentious, such as the right to justice, the right arises in consequence of the fact that others—such as the state, the judiciary, or those in power—have not fulfilled their duty to provide or dispense justice[ Ibid.].

Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Sharia. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Sharia. Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of prophets, [or] corrupt or harm society or weaken its faith. The Quranic injunction to ‘command what is good and forbid what is wrong is in fact impossible to act upon if human beings are not allowed to speak and act freely.[ Ibid.]

These principles are derived from the fact that many actions which are deemed praiseworthy in Islam can only be undertaken if one has the ability to express oneself freely. These include the proffering of sincere advice (Nasihah), the need to consult (shura), personal reasoning, the freedom to criticize, the freedom to express an opinion, the freedom of association, and the freedom of religion. These rights are not absolute. They are constrained both morally and legally. The moral constraints on freedom of expression are found in all the great religions. They are built-in safeguards that prevent injustice, abuse, and strife. Speech or action which encourages fitna (sedition, defamation and conspiracy) against legally constituted authority is a punishable offence. It would be no different from sanctioning those who conspire to overturn or undermine the legal order in any democratic state. And yet even where these are not the intent, the modern Muslim state has generally ignored the wide latitude given in Islam to exercise freedom of expression[ Ibid.].

Freedom of expression and speech in the holy Quran is natural, inalienable and it supersedes any earthly laws and instructions. Freedom in the Quran means the unity of the objective and the subjective, the social and the natural, and the singular and the plural. The teachings in the Quran are in harmony with natural innate powers, and lead finally to self-fulfillment both on the individual and social level. The freedom of expression is one of the most fundamental rights and functions as one of the most important benchmarks for any civilized society. Freedom of expression as human rights is considered one of the consequences for free democratic order[ Ibid. p.3-4.].

Louis Brandeis, an American lawyer and later associate justice of the Supreme Court, said this about the need to be able to express oneself freely: “Public discussion is a political duty, and should be a fundamental principle. . . . Order cannot be secured merely through fear of punishment for its infraction, [and] it is hazardous to discourage thought, hope and imagination”. He further noted that: fear breeds repression, that repression breeds hate, that hate menaces stable government, that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsel is a good one. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed[ Ibid. p.2.].

Thus, according to contemporary democratic standards and global practices, one of the legal windows citizens can employ to voice reservations on the policies and practices of their government that are antithetic to the welfare and interest of the public is the freedom to peaceful protests[ See also K.A. Afolabi (2023) Islam, Muslims and 2020 #EndSARS Protests in Nigeria, Millah: Journal of Religious Studies Vol. 22, No. 2 August 2023. ISSN: 2527-922X (e); 1412-0992 (p), p.360. https://doi:10.20885/millah.vol22.iss2.art3.]. Jamshidi (2014) calls it ‘civic entrepreneurship.’ This protest often has a background in the freedom of people to assemble, as they wish. For instance, the right to peaceful assembly is provided in Article 21 of the 1966 International Covenant on Civil and Political Rights (ICCPR), to which Nigeria is obliged. Article 11 of the 1981 African Charter on Human and Peoples’ Rights to which the country subscribes also establishes a similar provision. In addition, Sections 39 and 40 of the 1999 Constitution of the Federal Republic of Nigeria that establish every person is entitled to freedom of expression, to hold opinions, to receive and impart ideas and information without interference, and to assemble freely and associate with other persons.[ Ibid.]

This freedom provides for Nigerian citizens the opportunity to hold rallies, strikes, and mass demonstrations to address their grievances towards the actions and inactions of government which is unfavourable to them as a nation. In this manner protest can be necessary or unnecessary depending on the surrounding circumstances, it can be necessary provided that the conditions for its engagement are fulfilled where the actions and inactions of the government lead to severe hardship such as insecurity, hunger, corruption etc or it can be unnecessary where the conditions are not fulfilled and the intended harm might associated with the protest outweighs the benefit as indicated the maxim “Dar’ al-mafasid awla min jalb al-manafi’.” (Prevention of harm takes priority over realisation of benefit). This can be supported by the concept of istihsan (Juristic Preference) to determine the necessity or otherwise for the engagement of protest. The concept of istihsan (Juristic Preference) as simply described by Ibn Arabi al-Maliki (d. 534 / 1139) is as acting on the stronger of two evidences known as aqwa al-dalilayn[ M.H. Kamali, Istihsan and the Renewal of Islamic Law, International, Institute of Advanced Islamic studies (IAIS), Malaysia, p. 1. See: (www.iais.org.my)].

Assuming but not conceding that Protest under Islamic law is prohibited as presented by the Opponent of Protest Jurists but it can be justified under the doctrine of necessity as stated by the maxim “al-darurat tubihu al-mahzurat” (necessity overrides prohibition) or the concept of istihsan (jurist Preference). The necessity or protest or otherwise can be measured not only by the harm it sought to eliminate but also by the harm it ought to occasion in the process. The maxim “al-darurat tubihu al-mahzurat” (necessity overrides prohibition) or proverb al-hajat umm al-Ihtiram (necessity is the mother of invention) can justify protest in accordance with another Idha daqa al-amru ittasa’ (an opening must be found when a matter becomes very difficult) and the necessity subsist as long as the hardship exist and cease immediately the hardship disappear as the maxim imply “ma jaza li-‘udhrin batala bizawalih” (whatever is permissible owing to some excuse, ceases to be permissible with the disappearance of that excuse), or in the alternative the maxim “idha zala al-mani’ ada al-mamnu” (when a prohibition is removed the thing to which such prohibition attaches reverts to its former status of legality). The necessity or otherwise of protest shall be examined thus;

THE NECESSITY OR OTHERWISE OF PROTEST THROUGH THE LENS OF ISLAMIC LAW AND NIGERIAN CONSTITUTIONAL LAW

In the wise words of Lord Acton, a British Historian and Politician “Power tend to corrupt and absolute power corrupts absolutely”. The law has provided for the doctrine of separation of powers between the legislative,[ Section 4; Constitution of Federal Republic of Nigeria, 1999 (as amended)] executive[ Section 5; Ibid.] and judicial[ Section 6; Ibid.] arm of Government so as to curtail the abuse of such powers. However, protest serves as a means to challenge the actions and inactions of tyrant ruler/leader not only in a democratic state but also in an Islamic State. Besides, the doctrine of separation of powers in Islamic Law as it is the Kingdom of Saudi Arabia and other Islamic States are somewhat different as it is in Nigeria, for the separation of powers in Saudi Arabia is between the Ulama (Scholars) and the Umara “rulers/leaders. It is instructive to note that the separation of powers between the Ulama (Scholars) and the Umara (rulers/leaders) cannot apply in Nigeria and the writer shall examine the necessity or otherwise of protest in the context of Islamic Law and Constitutional law in Nigeria.

The Constitution which guarantees fundamental rights, including freedom of expression, association, and assembly. Nigeria’s laws follow the common law tradition, but traditional or indigenous customary law and Shari’a or Islamic law also apply in some matters. Customary and Shari’a laws previously applied only to civil matters, provided all involved parties consented but Sharia apply to civil matters where parties are Muslims and where non-muslims consented to the jurisdiction of the court. However, since 1999 some states in the northern part of Nigeria have extended Shari’a, and its coverage is now mandatory for certain criminal matters and social interactions.[ International Center for Not-For-Profit Law, “NGO Law Monitor: Nigeria,” http://www.icnl.org/research/monitor/nigeria.html. ]
One of the factors responsible for protest in Nigeria is the fact that it is backed up by the Nigerian constitution, and it is a legal process of contemporary democracy that is practiced in Nigeria. As mentioned earlier, the Nigerian constitution provides an avenue for the peaceful assembly of citizens, right to freedom of movement and to right to freedom of expressions; which are provided under Section 40 of the Constitution. Protest, as conceived under such a political framework, cannot be rendered illegal within purview of Islamic Law because provisions for it or against it are not equivocally made in the Shari’a[ Jallow AY (2015). P. 362. doi:10.4172/2165-7912.1000278.] hence some saient provisions of the Constitution of Federal Republic of Nigeria, 1999 (as amended) shall be examined thus.
SOME SALIENT CONSTITUTIONAL PROVISIONS
Nigeria is an entity govern by the principles of democracy and social Justice[ Section 14; (Supra)] as opposed to theocracy or aristocracy/monarchy where absolute power is vested in priests/clergies or monarchs. The multi ethno-religious nature of Nigeria as a nation-state or as a federation is one of the grounds for the prohibition of state religion[ Section 10; Ibid] and the adoption of secularism and federalism.
The Federal Republic of Nigeria[ Section 2; Ibid] is sovereign state where sovereignty belongs to the people from whom government through this constitution derives its powers and authority[ Section 14; Ibid] with political objectives founded on its motto as unity and faith, peace and progress[ Section 15(1); Ibid]; national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited accordingly[ Section 15(2); Ibid]. The State shall foster a feeling of belonging and of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties[ Section 15(4); Ibid ]. The State shall abolish all corrupt practices and abuse of power[ Section 15(5); Ibid.], the national ethics shall be discipline, integrity, dignity of labour, social justice, religious tolerance, self-reliance and patriotism[ Section 23; Ibid.].

The State social order is founded on ideals of Freedom, Equality and Justice[ Section 17(1); Ibid] and in furtherance of such[ Section 17(2); Ibid] every citizen shall have equality of rights, obligations and opportunities before the law[ Section 17(2)(a); Ibid]; the sanctity of the human person shall be recognised and human dignity shall be maintained and enhanced[ Section 17(2)(b); Ibid]; governmental actions shall be humane[ Section 17(2)(c); Ibid]; exploitation of human or natural resources in any form whatsoever for reasons other than the good of the community, shall be prevented[ Section 17(2)(d); Ibid]; and the State shall, within the context of the ideals and economic objectives[ Section 16(1); Ibid] harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy[ Section 16(1)(a); Ibid]; control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity[ Section 16(1)(b); Ibid];….

The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria as its environmental objectives[ Section 20; Ibid]. The duties of citizens[ Section 24; Ibid] includes to abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities[ Section 24(1)(a); Ibid]; help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required[ Section 24(1)(b); Ibid]; respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood; etc[ Section 24(1)(c); Ibid]

The judicial powers of the federation and/or state are vested in the courts[ Section 6(1); Ibid.] in accordance with and shall extend to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings related thereto for the determination of any questions as to the civil rights and obligations of that person[ Section 6(6)(b); Ibid.] but shall not extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or judicial decision is in conformity with the Fundamental Objectives or Directive Principles of State Policy asset out in Chapter II of the constitution[ Section 6(6)(c); Ibid.].
In the light of the above cited Constitutional Provisions whether or not the citizens are in the habit of discharging their constitutional duties to reap the benefit accrued from those rights is a matter of common debate and even when the citizens are in default of discharging their constitutional duties, the leaders/government are mandated to use all institutional apparatuses to secure either strict or substantial compliance but yet they still failed to live up to their obligations. However, where there is a breach of the social contract between the government and the people, what is the remedy for such a breach? And to where lies the remedy? the breach in question shall not bother on the provision of Chapter II of the constitution and where the breach bothers on the provision of Chapter II, the remedy lies in section 38; 39; and 40 of the constitution which confers on the people the right to challenge the Government through protest and this is where and how the remedy lies for the People to protest the actions and inactions of the government for the breach of the social contract.

Perhaps, to further illustrate the issue of the powers of courts provided for under section 6(6)(b) of the Constitution, 1999 (as amended) as the last hope of the common man cannot be ignited to adjudicate on any matter under Chapter II of the Constitution, for the powers of the courts has been taken away by section 6(6)(c) of the Constitution and where any action is instituted in the court of law for the hearing and determination (i.e. enforcement) of the provision of Chapter II of the constitution, the action would be struck out for want of jurisdiction as the provision of Chapter II is non-justiciable except when a legislation is enacted to give legal effect to any of the provisions under Chapter II, the rights addressed in any provisions becomes justiciable[ See the cases of Attorney General Ondo State V.s. Attorney General of the Federation (2002) 9 NWLR (pt. 772) 222 at 382 paragraphs A-D; p. 391 & paragraph F-H; & olafisoye V.s. Federal Republic of Nigeria (2004) 4 NWLR (p.t 864) SC 580 at p.661 paragraph B-G.].

The purport of the issue at hand is to the fact that section 6(6)(c) constitutes a clog on the wheel to section 6(6)(b) of the Constitution and therefore where the door is shut against the citizens from accessing the court of law to vindicate their grievances, The door cannot as well be shut against them to vindicate their grievances in the court of public opinion under the cloak of Shar’ia principles of Islamic polity. The irony of the situation under discussion is the fact that the Government of the federation and of the state had prohibit religion in matters of state, and if religion cannot be used as an instrument for enforcement of the social contract entered into between the Government and the People of Nigeria, religion cannot also be used as an instrument to suppress the people from exercising their constitutional rights as enshrined under section to the challenge and exert pressure on government to fulfill their socio-economic and Cultural rights and obligations[ Jallow AY (2015) Freedom of Expression from the Islamic Perspective. J Mass Communicat Journalism 5: 278. P.362. doi:10.4172/2165-7912.1000278.].

If democracy as a system of Governance defined by Abraham Lincoln “is Government of the People by the People and for the People as enunciated by the maxim of Islamic Law at-tassarrufu ala al-ra’iyyati manutun bil-maslahah (management of citizen’s affairs is dependent upon public welfare.). In this regard, it is amongst the duties of the hakim (ruler) to prevent the spread of immorality by whatever means to achieve the maslahah (interest) of the whole community, and to take into consideration the rights of the society as a whole. Where there is a breach by the Government of the people, it is then for the people to engage in protest and by the people to employ protest as an instrument of social change so protest can be utilize as a collective duty by the people of Nigeria for the purpose of reaping the benefits thereof. This can be achieved by taking into consideration limitations/restrictions of protest.

Islamic jurists have distinguished between necessity and need. It has been held that necessity is a state where one must commit an illegal act otherwise one is in danger of losing one’s life or anything related to the five necessary benefits (darüriyyät al-khamsah to wit, religion, life, Intellect, progeny, and property) on which the lives of people depend and whose neglect or deprivation leads to total disruption and chaos. On the other hand, need is a state where one’s life is not threatened but one would face hardship and inconvenience. In such a situation the maxim “al-darurat tubihu al-mahzurat” (necessity overrides prohibition); i.e. if there are certain items which are prohibited, under dire necessity they can become permissible shall apply to protest. Although a state of necessity renders prohibited things permissible, it does not override the rights of others as stated by the necessity does not invalidate the rights of others as enunciated by the maxim “Al-idtiraru la yubtilu haqqa al-ghayr” (necessity does not invalidate the rights of another) or al-darurat la tubih haqq al-ghayr (necessity does not override the rights of another invalidate the rights of others).

In addition, need whether public or private should be treated as a case of necessity – al-hajat manzilat al-darurah ‘ammatan kanat aw khassah): private need shall be distinguished from public need, whereas what is meant by public need is the situation in which the whole community faces some sort of hardship due to certain social benefits being neglected or deprived, what is meant by private need is the situation where the interests of certain groups such as carpenters, physicians, etc. are being disregarded or unsatisfied but it is imperative “al-maslahah al-‘ammah tuqaddam ‘ala al-maslaah al-khassah” (public interest overrides the individual interest)

The necessity or otherwise of protest is dependent on a cost-benefit analysis of protest, where the amount of hardship, corruption, tyranny or oppressive activities of the leaders/rulers is so obvious that the harm occasioned as a result of the tyranny or oppression is so widespread that it affects a larger members of the society, then it is considered that the benefit associated with protest as outweighing its costs thereby the harm occasioned by the leaders/rulers amounted to a public or severe harm, and the harm associated with protest is a lesser or private harm and lesser harm is tolerated in place of a severe harm and not vice versa. This is further illustrated by the maxim which states “al-dararu al-ashaddu yuzalu bil-darari al-akhaf” (Severe injury is removed by lesser injury) and where the harm occasioned by the tyranny or oppressive activities outweighs that of the protest then the harm associated with the protest against the leaders/rulers are private harm and the harm associated with tyranny and oppression is a public harm so public hard is tolerated “yutahammalu al-darar alkhassu li-man’i al-darari al-‘amm” (a private injury is tolerated in order to ward off a public injury). Both maxim are sister maxim of the maxim irtikaab akhaff dararayn

Similarly, The necessity or otherwise of protest is dependent on the objective of protest as the maxim implies “al-daruratu tuqaddaru bi-qadariha” (necessity is determined by the extent thereof), where the object is lawful, the process of execution should also be lawful but where the object of the protest is lawful and the process of execution is unlawful then the unlawful process renders the protest unlawful and vice versa. This is stated by the maxim ‘‘ma-yufdi ila al-Harami Haramun’’ (what leads to unlawful actions is also unlawful) and the “maxim“al-asalu al-mu’amalatu bi-naqidi al-qasdi al-fasid” (the rule is that in the case where the intention is proven to be fraudulent the result is that the converse is to apply) and worthy of mention is the maxim “idha ijtama’a al-Halal wa al-Haram, ghuliba al-Haram” (When the Halal and Haram are mixed up, the Haram prevails). Consequently, the determining factors of peaceful protest are the object of the protest and the manner of conduct of the protest.

This is further illustrated for instance where the object of the Protest is to promote any unfairness, illegality or unconstitutionality, the Protest becomes unfair, illegal and unconstitutional, then the Government could proceed against the protesters who may be prosecuted according to law and where the objectives of a Protest are lawful, but the manner of execution of the protest or the objectives, is unfair, illegal, and unconstitutional, in such cases, illegal actions perpetrated by protesters cannot be excused on grounds that the objectives are lawful. This can happen where protesters carryout protest by adopting any form of violent and unlawful processes which involves  destruction of public/private properties, or, inflicting injury(ies) on the people, looting, perpetration of criminal activities and amongst others constitute an “evil activities” which is not part of a “legitimate expression of grievance.” Therefore, protest as concession cannot serve as an avenue for the perpetration of criminal activities which is in accordance with the maxim “al-rukhasu la tunatu bil-ma’asi” (concessions cannot be connected to sins).

This is so, because section 1(2) of the Constitution of the Federal Republic of Nigeria, 1999, provides that “The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.” Besides, section 24 (a) of the Constitution imposes a duty on every citizen of Nigeria to “abide by the constitution, respect its ideals and institutions… and legitimate authorities,” while section 24(c) commands every citizen to “respect the dignity of other citizens….”

Notwithstanding, the government are permitted under the Constitution to derogate from those right in the interest of public peace and national security[ Section 45; (Supra)]. the right to protest is provided for and guaranteed in the Nigerian constitution but where protest is being used as an instrument of fraud, calumny, and corruption by unknown individuals who in anonymity hide under the cover of protest to cause civil unrest mutiny, chaos, riot which will lead to the total breakdown of law and order then the government is justified by the excessive use of force to suppress the protest.
OBSERVATION
It is the observation of the writer that the degeneration of the Nigeria from the gutters to the sewage is as a result of misplacement of priorities and the partial divorce of the metaphysical from the physical. The concept of protest as an instrument of social change can be utilized by the People of Nigeria to vary the reprehensible actions or inactions of the leaders/rulers who are classified as either tyrants or oppressors using the three methods as enunciated by the Prophet (SAW) to wit, hand; tongue; and heart. These methods of change can by extension be implemented through oneself or representatives depending on individual capacities and capabilities; change by hand can imply striving with the use of one’s thumb by exercising his/her franchise at the polls during elections or the use of force as in Military coup d’états; change by the tongue can imply striving with the words of mouth during election campaigns or prayers against tyrants and oppressors; and change by the heart can be effected through battling one’s “own sinful inclinations” or silently hating the evil that the constitute the tyranny/oppression by the Government even if one is powerless against it.

CONCLUSION
The Proverb as-Sayyid al-Qawmi Khadimuuhum (the leader of a nation is their servant) had turned out to be the opposite as leaders now utilize state apparatus as instruments of exploitation whom as a result converted all the means of production into their personal coffers to the detriment of the poor masses to perpetrate all manner of evil and at the end demand compliance from the subjects at all cost without being subjected to constructive criticism. It is instructive that the separation of powers between the Umara (rulers) and the Ulama (scholars) as it is in the Kingdom of Saudi Arabia is being hypo-critically applied in Nigeria as opposed to constitutional separation of powers between the executive, the legislative, and the judiciary arm of government to undermine rather than strengthen democracy in Nigeria where it seems that the clergies have turned around to be the fourth arm of government. The writer shall conclude this study with the words of an erudite Scholar Ibn Qayyim al-Jawziyyah

“The shari‘a is based and built upon wisdom and [achieving] public welfare, in both this life and the next. It is justice in its entirety, mercy in its entirety, welfare in its entirety, and wisdom in its entirety. Any issue that departs from justice to injustice, mercy to its opposite, public welfare to corruption, or wisdom to folly cannot be part of the shari‘a, even if it is claimed to be so due to some interpretation