Introduction

Summary

Set in Africa’s most populous Muslim country, the book takes on a paradox: colonial governance in Northern Nigeria entailed indirect rule through Muslim intermediaries and caliphate institutions; yet, the state insisted on its secularity. In unravelling this puzzle, the book offers a provocative account of secularism as a contested yet contingent mode of governing and religious difference. Drawing on detailed archival research, the book illustrates constitutional struggles triggered by the colonial state’s governance of religion and interrogates its legacy in the postcolonial state. The book illuminates the dynamic interplay between law, religion, and power in the political context of the modern state’s unique emergence from colonial processes.

States’ assertion of separation from religion – commonly understood as the thrust of the constitutional idea of secularism – is ubiquitous in the modern world. At the same time, however, religion remains a force, keeping its hold on the private lives of individuals and tenaciously maintaining its presence in the politics of individual states and the international legal order. The tension arising from the tenacity of religion and the ineluctability of claims of separation has heightened the need to understand how the modern state regulates religion and religious difference through its enactment of secular governmentality, to unveil the ambivalence that mode of governance entails, to identify the forms of empowerment and disempowerment it fosters, and to scrutinize how subjects contest its consequences.

Colonial Northern Nigeria provides a particularly unique opportunity to consider these questions. The meeting of the distinctive precolonial caliphate with Orientalist ideals in the late nineteenth century produced one of the most distinctive sites for the colonial governance of religion and religious difference. Empire’s ostensible deference to Islam, manifesting in indirect rule through Muslim elites, its peculiar application of “Islamic” law in the public sphere (via criminal law), and extensive restrictions on Christian missionaries purportedly entrenched the precolonial caliphate. Yet, the colonial state insisted on its secularity. In unraveling this puzzle at the heart of colonial governance, this work presents the story of a sustained constitutional entanglement of religion and politics and illuminates its consequences for colonial and postcolonial subjects.

Empire was entangled with religion from the onset. The origin of empire on the West Coast of Africa in 1841 was the product of an alliance between the British state and anti-slave-trade evangelicals. With the “sword of the steel” furthering the “sword of the spirit,” imperial outreach was closely allied with Protestant Christian missions especially the Church Missionary Society of the Church of England (CMS) in the nineteenth century.¹ That alliance, which featured empire-backed CMS jurisdiction over Africans, would change to hostility between the colonial government and missionaries when formal empire commenced in Northern Nigeria at the turn of the nineteenth century. In founding colonial governance on indirect rule through Islamic institutions, the British administration separated itself from the missionary enterprise, asserting that this policy was necessitated by its secular approach to governance.

Colonies were “laboratories of experimentation.”² It was the British Empire’s experience confronting a dizzying array of religious faiths in its colonies, beginning in India, that led to its development of secularism as a statecraft technique of managing religious difference. The British colonial state considered church-state separation crucial to governing India.³ This separation from the church was prompted largely by the experience of the 1857 Indian Revolt, which was widely interpreted as a rebellion against the anglicizing mission.⁴ Beyond the fact that early colonialism featured a measure of cooperation with Christian missions, the imperial venture also professed a civilizing goal underpinned by Christian ideas.⁵ The civilizing mission was based on two convictions. The first was that “others” were capable of racial and religious “uplift,”⁶ and the second was that these others could become “English in tastes, in opinions, in morals and in intellect.”⁷ The rebellion against the civilizing project inspired the colonial state’s distancing from missions and, simultaneously, its adoption of Indigenous institutions as the vehicle for colonial governance. To be sure, notions of governing the “native”⁸ through their institutions predates the 1857 revolt; as early as 1772, Warren Hasting’s Judicial Plan had designed such a scheme.⁹ Nevertheless, it was the 1857 mutiny that would catalyze these earlier proposals, marking a turn to indirect rule.

Theorists and historians of colonialism point out that the policy of adopting native institutions developed alongside the construction of the “native” as a legal and political identity.¹⁰ With Britain’s abandonment of its civilizing mission, it turned to liberal imperialism, premised on difference and simultaneously having as its goal, the construction and governance of difference.¹¹ Religious difference was, therefore, central to the liberal turn. Indeed, the famous 1858 Proclamation by the English Crown ushered in late colonialism by declaring religious autonomy for colonial subjects:

We declare it our Royal will and pleasure that none be in anywise favored, none molested or disquieted, by reason of their religious faith or observances, but that all shall alike enjoy the equal and impartial protection of the law; and we do strictly charge and enjoin all those who may be in authority under us that they abstain from all interference with the religious belief or worship of any of our subjects on pain of our highest displeasure.¹²

If the Indian mutiny inspired the state’s distance from missions, Peter van der Veer points out that it was missionaries who advocated for the disruption of the state’s ties with Indigenous religions. In response to what they perceived as the state’s patronage of native religions, missionaries called for a separation of the state from these religions. Yet, it is important to note that this project was never intended to be a principled call for the disestablishment of all religions. On the contrary, the preference of missions was to be allied with the state and, failing that, to be free of restrictions in evangelizing to natives.¹³ Indeed, missionaries remained fully committed to the establishment of the Church in England. Since Indigenous religions and religious institutions would continue to play a central role in civil and political life regardless of the claim of separation, the stage was set for altercations over the place of matters spiritual in the state. Regardless of these ambiguities, the classical requirements of liberal secularism – the assertion of religious freedom and of separation – were formally complete.¹⁴ Invoked not only directly but also obliquely through a variety of ideas including neutrality, tolerance, and impartiality, secularism’s essence – avowing the state’s separation from religion and religious liberty – had come to be embedded in colonial thought and policy.

Governing Difference: Colonialism and Religion in Nigeria

The colonial state’s turn from its nineteenth-century alliance with Christian missions in Northern Nigeria emerged from this broader imperial context. Yet, Northern Nigeria was quick to attain notoriety in missionary circles. By 1910, seven years after the commencement of formal empire, the World Council of Missions would devote much attention to the territory at its inaugural meeting, declaring the British Protectorate as an unusually daunting place to be a Christian missionary.¹⁵ British Northern Nigeria’s infamy was rooted in the peculiar brand of indirect rule on which colonial governance was based, and the religious differentiation policy it engendered.

As in much of the British Empire after the Indian mutiny, colonial governance took the form of indirect rule in Northern Nigeria, co-opting Islamic institutions in that predominantly Muslim territory.¹⁶ This was complemented by a policy of religion differentiation. The state apprehended religious difference through a “grid of intelligibility”¹⁷ that hierarchized faiths. It classified the colonized population into Muslims and non-Muslims. The colonial ideal of a non-Muslim native was the “pagan.” In the colonial imagination, this pagan was “uncivilized,”¹⁸ “living under mob law or arbitrary will”¹⁹ without discernible means of political or judicial administration. Hence, the state sought, where possible, to place adherents of diverse Indigenous religions under the administration of the newly colonized caliphate institutions.²⁰

The state featured a tripartite residential organizational structure among natives. Type I areas had a predominantly Muslim population (emirates) and were administered by the state through emirs (Muslim chiefs).²¹ Type II areas were those understood to have Muslims and other Indigenous faith populations and were administered through Muslim chiefs of a lower status than emirs. The third category, Type III areas, were referred to as “pagan” areas and administered through the “pagan” chiefs. Therefore, much of the territory was governed through Muslim rulers, an arrangement that extended the political authority of the caliphate political elites – the Masu Sarauta (“possessors of governance”) – beyond the precolonial years. Likewise, local chiefs were far from equal; emirs were at the highest rung of the hierarchy and “pagan” chiefs at the bottom. This arrangement extended to the jurisdiction of law. While the state applied “Islamic” law (including Islamic criminal law) and Islamic systems of courts in Type I and II areas, “pagan” native law and courts operated, subject to several restrictions, in Type III areas.

This political and legal arrangement also formed the basis of the state’s policy regarding Christian missionary proselytization. Missionaries were prohibited from proselytizing in Type I areas and much of Type II areas but were permitted in Type III areas, a policy for which local and global missionaries castigated the state. Indeed, these Christian missionaries and the local converts they secured through the curtailed proselytization efforts described British colonial rule as tantamount to “Muslim sub-imperialism.”²² The Northern Nigerian colonial policy had its immediate roots in the guarantee of noninterference that was extended to emirs at the commencement of formal empire in 1903. The guarantee, that the government would “not interfere with the Mohammedan religion,” was hardly novel²³; it had parallels across the empire, including in the Queen’s 1858 declaration set out earlier. However, in Northern Nigeria, it was extended only to emirs and the Muslim population. The guarantee was also paired with a generally applicable religious freedom declaration: “all men are free to worship as they please,” which also found precedent in the Queen’s Proclamation.²⁴ In addition, the legal instrument that had ushered in formal colonialism on the African continent in general, the Berlin General Act of 1885, mandated European powers to protect “freedom of conscience” and guarantee “religious toleration” to all “natives, subjects and foreigners” in their respective colonial territories.²⁵ Defending itself against accusations of Muslim bias, the state would therefore insist that it was committed to “impartiality,” “neutrality,” and religious liberty.²⁶ Indeed, colonial administrators would also insist that Muslim chiefs were “secular chiefs,” through whom the state governed.²⁷ In doing so, the state was invoking the post-mutiny mantra of imperial secularism: the assertions of separation or distance from religious authority (while governing through it), and of the religious freedom of colonial subjects.

Defining, Deepening, and Hierarchizing Religious Difference

Historians and scholars of Islamic law, alike, have tended to ignore the state’s assertion of its secularity, insisting that it perpetuated the precolonial theocracy. Consider the opinions of John Anderson, professor of Islamic law at the School of Oriental and African Studies in London, and Joseph Schacht, Oxford academic and later Columbia University professor, two prominent twentieth-century Western scholars of Islamic law. In separate surveys commissioned by the Colonial Office, both reached a similar conclusion: that the state had elevated Islamic law and perpetuated the precolonial theocracy.²⁸ Anderson and Schacht have been hardly alone in this view. Even contemporary historians of colonial Northern Nigeria espouse this opinion. Take the example of Moses Ochonu’s Colonialism by Proxy, a fascinating account of colonial rule in Northern Nigeria.²⁹ Ochonu argues that the colonial governance of Northern Nigeria through Muslim proxies was in pursuit of the goal of sameness: the creation of a homogenous Northern Nigeria modeled on the Muslim caliphate.³⁰ Although Ochonu stresses that the colonial idea of the caliphate was an “imaginary” and not based on actual precolonial Islam, he concludes, as Schacht and Anderson did, that the essence of colonial administration was the reification of Islamic institutions.

To be sure, Northern Nigeria featured one of the most extreme forms of indirect rule in the British Empire. Save in parts of the Aden Protectorate, only there did Islamic law apply not just as personal law, but also as criminal law. For this reason, as well as the state’s restrictions on missionary proselytization, received accounts present this colony as a unique and extreme case of the valorization of Islamic law, typical of theocratic governance. Nevertheless, the state’s claim to secularism was just as palpable, laying not merely in its invocation of the post-mutiny mantra of separation and religious liberty, but also in its deployment of the late-colonial technique of defining, deepening, and hierarchizing religious difference. Whereas the state formally invoked separation and religious freedom, in essence, everyday colonial governance entailed this threefold technique.³¹ And, in spite of the tension between this technique of governance and the conventional elements of secularism declared by the state, I argue that the former is, like the latter, characteristic of secular governance.

Scholarship in other colonial contexts illuminate the defining effect of colonial secularism on religion. C. S. Adcock’s work on colonial India, The Limits of Tolerance, draws attention to the central governing feature of secularism: it “defines and confines” religion.³² Similarly, in Constituting Religion, a study of the Malaysian context, Tamir Moustafa argues that not only did colonial law “constitute” religion, the postcolonial liberal state also remains inextricably implicated in this project of religion governance.³³ This project of constituting religion, in fact, produces religious difference. What results, as Saba Mahmood argues, is that the secular state becomes “not simply a neutral arbiter of religious differences,” but in fact, it “produces and creates them.”³⁴

To render religions legible to colonial governance and its purposes, the state defined religion as well as religious difference. As noted earlier, the state classified religion into two: “Islam” and “Paganism.” The “Pagan” hardly mapped onto the precolonial category of non-Muslims. Not only did this group encompass a broad range of Indigenous spiritual tendencies, but members of this class within the precolonial Islamic polity (the Maguzawa) had the status analogous to that of majus (Zoroastrians) in classical Islamic jurisprudence. As such they were entitled to jurisdictional privileges comparable to that of the ahl al kitab (People of the Book), which included judicial autonomy as well as a measure of political autonomy. The colonial classification of the Maguzawa as kafiri (pagan) altered this precolonial identity, and overturned the caliphal governance arrangement, stripping this group of its autonomy. In the process, colonial rule not only deepened Muslim versus non-Muslim difference, it also hierarchized it far beyond the precolonial years.³⁵

Ostensibly allied with the state, Islamic institutions were nevertheless not untouched by the colonial processes of defining, deepening, and hierarchizing religious difference. The state defined Islam, constructing a vision of the religion that could coexist with colonial governance. This was effected through a two-part process: the remaking of Islamic law through an unprecedented expansion of the precolonial doctrine of siyasa (discretionary powers of political rulers), and the making of an ideal Muslim subject.

From granting political authorities limited juristic authority in precolonial times, siyasa came to be expanded so as to overshadow fiqh (Islamic jurisprudence). This process did not only alter the content of Islamic jurisprudence; already, important studies like Sarah Eltantawi’s Shari’ah on Trial reveal the colonial transformation of Northern Nigeria Islamic law.³⁶ What is crucial to note and missing from existing accounts is the recognition that the expansion of siyasa, emerging as it did from a premise of Shariʿa governance, fundamentally recast the relationship between Islamic law and the state.³⁷ The state, in essence, now appropriated the power to define Islamic law. One of the central arguments of this book, therefore, is that the transformation of Islamic law in Northern Nigeria can only be apprehended by exploring the state’s claim to secularity without losing sight of its utilization of caliphate institutions for the colonial enterprise. In their focus on the latter, works such as Eltantawi’s tend to overlook the former – the state’s assertion of secularism. Departing from this approach, this book engages both of these features of colonial governance by foregrounding the question: Who exercised the power to decide “Islamic” law and how was its exercise justified? Crucially, although Islamic law was invoked by alkalai (judge-jurists), emirs, and colonial administrators in deciding cases, the essence of precolonial jurisprudence had already been transformed by the reconfiguration of the precolonial constitutional balance between emirs and alkalai. At the same time, however, because the state continued to invoke Islamic law as the basis of governance – even while simultaneously asserting an ever-expanding executive authority over its content – it was able to claim fidelity to Islamic law and institutions while transforming its workings.

This assertion of colonialism’s reform of siyasa wades into a debate over the relationship between siyasa and fiqh in premodern Islamic polities. On the one hand is the view, exemplified by Wael Hallaq, that regards premodern siyasa as compliant with the Shariʿa. Since siyasa remained within its constitutional boundaries, in other words, it did not encroach into the domain of jurists – the arena of fiqh.³⁸ In contrast, a burgeoning body of work insists that Hallaq’s is an idealized view of precolonial governance and argues that the fiqh-siyasa distinction had started to break down long before the advent of colonial modernity.³⁹ While this work does not assume a naive view of the precolonial relationship between political authorities and jurists in the caliphate, it would nevertheless be a stretch to dismiss the precolonial fiqh-siyasa distinction as a mere “idealized cosmology.”⁴⁰ Whatever the pull exerted on the sultan/emir-siyasa versus alkalai-fiqh balance by the realities of governance, deviations from the constitutional delineation of the jurisdiction was understood, by both precolonial emirs and jurists, as an exception.⁴¹ This constitutional structure, I argue, was rewrought by colonial governance.

The state’s construct of Islam was not limited to its transformation of Islamic law. The co-option of caliphate institutions that led to the remaking of that law also created a distinction between Muslims affiliated with the Masu Sarauta (Muslim political elites)⁴² and those resisting the Anglo-Masu Sarauta alliance. The state’s making and remaking of religious difference was therefore not limited to the Muslim versus Pagan dichotomy. Indeed, the political distinction between the Masu Sarauta’s allies and their detractors would manifest as a theological difference, with the state sanctioning Qadiriyya Sufism, the theological predilection of the Masu Sarauta. In the process, the ideal Muslim subject was defined. Other Muslim groups were considered “dissident.”⁴³ Of these “bad” Muslims, Mahdists, those who believed that the end of the world was imminent and that colonialism was a form of corruption that marked the end of the world, were the most repressed in the early colonial era. Members of the other predominant Sufi sect, the Tijaniyyah, came to be labeled as dissident not merely for their contrarian theological positions, but also for their intense political opposition when they formed the base for the Northern Elements Progressive Union party challenging the Masu Sarauta in the years leading to decolonization. As a result of these and other measures, the state assumed the prerogative to define Islam, and thus deepened religious difference and hierarchized faith practices – both within and outside of Islam.

Therefore, far from freezing precolonial Islamic institutions, colonial rule redefined both Islamic law as well as the ideal Muslim subject, and in so doing, invented an Islam amenable to the state. In essence, the colonial governance technique and the co-option of caliphate institutions on which it relied did not elevate any religion, not even Islam. Instead, as demonstrated above, it confined and regulated all religions.

Secularism’s Entanglements

The defining, deepening, and hierarchizing processes so integral to the state’s governance of religion points to a central feature of secular governmentality sui generis: the de facto entanglement of religion and politics. This insight is not only in tension with the state’s assertion of religion-separation, it is also at odds with the received wisdom on secularism. According to that wisdom, popularly encapsulated in John Rawls’ Political Liberalism, the constitutional idea of secularism emerged as a response to conflict over opposing values.⁴⁴ In this account, it was the need to manage religious diversity that led to the displacement of religion from the public sphere, which consequently became “secular.” As the constitutional structure that created this separation between the public, secular, and political sphere on the one hand and the private and religious sphere on the other, secularism became the answer to conflicts triggered by religious diversity.⁴⁵ Secularism was, however, not merely beneficial to the state in ridding it of religious conflict, it was also favorable to religion since it freed it of state interference.⁴⁶ In the Rawlsian model, therefore, the separation of religion and politics is the core of secularism. It also yields the other element of secularism – the promise of religious freedom.

Led by Talal Asad’s Formations of the Secular, a wave of critical scholarship challenges the separationist argument at the heart of the Rawlsian narratives, arguing instead that the entanglement of the secular and the religious is the defining feature of liberal secularism. This entanglement, it adds, is not merely rooted in the intellectual origins of the idea of secularism, it is also reflected in the actual constitutional organization of “secular” states. Asad’s work finds the emergence of the categories of religion and the secular from specific historical, political, and legal processes in Western Europe and also asserts that it was these conditions of their emergence that framed them in opposition to each other.⁴⁷ This realization that the law both constitutes the secular and the religious as well as frames their mutual opposition is now a core tenet of critical scholarship on secularism.⁴⁸

Since this constituting power of law culminates in varying constructions of the secular and the religious across space and time, it is hardly surprising that studies of the enactment of secularism in particular constitutional contexts have proven fashionable in the anti-Rawlsian theoretical tradition.⁴⁹ With the legacy of the relations of power inscribed by colonial governance, the postcolony has provided a fruitful ground for research. Contemporary debates over Hindutva in India’s constitutional politics,⁵⁰ the place of Islam in Egypt and Malaysia,⁵¹ and – since post-coloniality plagues both the former colonizer and colonized – French laïcité and its equivalents across Europe regarding the headscarf and other religious symbols⁵² are only a few examples of the contestations that have captured scholarly attention.

Unveiling religious-secular entanglements in these contexts has revealed that secularism is far from neutral. Not a few anti-Rawlsian accounts have therefore arrived at the conclusion that secularism qua secularism is being deployed by states to entrench majoritarian beliefs and practices and marginalize religious minorities. Saba Mahmood writes of secularism “intensif[ying] … religious inequality,” by its “valuation of certain aspects of religious life over others” with the consequence of the increasingly precarious position of religious minorities in the polity.⁵³ Homi Bhabha remarks: “India forces us to think, sometimes in tragic moments, of the function of religious thought within secularism … If you look around the world today, this is a very important issue; this particular kind of … religious orthodoxy erupting within secularism.”⁵⁴ This critical tradition, therefore, unmasks secularism for its biases.

The anti-Rawlsian approach is rightly marshaled to challenge the relations of domination that the modern secular state produces. Nevertheless, it leaves no room for acknowledging the ambivalence inherent in the idea of secularism through its dual imperative of separation and religious freedom. In asserting the separation of religion from the state, secularism calls on the state to curtail, restrict, or even expunge religion from itself. Tugging in the opposite direction, however, is the second classical element of secularism – the notion of religious liberty.

Legal theory is no stranger to the idea that conflicting internal imperatives are often embedded in legal concepts. Although that idea was first comprehensively articulated in the realm of the law of property,⁵⁵ it has come to shed light on the workings of legal concepts outside of that domain, including in the constitutional thought on secularism. Writing on secularism’s dual imperative of separation and religious freedom, Marc Galanter points out that these imperatives are “a set of potentially incompatible principles which may conflict in concrete situations.”⁵⁶ Although critical theorists are right to assert that the de facto entanglement of the state and religion and the reality of the politics of religious freedom undercut secularism’s imperatives, these principles nevertheless remain crucial to understanding the working of secular governance. The imperatives, and in particular, the tension between them, are useful not just to state actors carrying out multiple and often inconsistent projects but also to subjects contesting the state. This book makes a case for paying close attention to the ambivalence of secular governmentality. Doing so not only reveals how participants in constitutional struggles navigate the inevitable entanglement of the “sacred” and the “secular” entailed in secular governmentality, it also illuminates the potentially unstable hierarchy of relations produced by secular governance.

Navigating State-Religion Entanglements

The colonial enterprise was neither monolithic nor static. Differing conceptions of colonial administrators influenced colonial policy on state-religion relations, all justifiable under the banner of imperial secularism. To Frederick John Dealtry Lugard, the first high commissioner of Northern Nigeria, and his devotees, who had an Orientalist fascination with precolonial Islamic caliphate institutions, the success of native administration was premised on noninterference with Islam.⁵⁷

The Lugardian emphasis on the administrative needs of indirect rule prioritized the religious freedom of the Masu Sarauta, the constraint of Christian missions, and the autonomy of Indigenous religious groups. The Lugardian emphasis on Muslim religious freedom was, however, in tension with the consequences of the state’s co-option of caliphal institutions for governance. Notably, the Lugardian years witnessed the freeing of emirs’ siyasa from the constraints of the Shariʿa, a move intended to introduce reforms at odds with precolonial jurisprudence. In its Lugardian manifestation, therefore, notions of state-religion separation legitimated not only regulating and restricting missions but also the state’s regulation and transformation of Islamic law and institutions.

Direct and indirect rule, Mahmood Mamdani points out, are not mutually exclusive, but are rather “two faces of power.”⁵⁸ The second dominant colonial position on state-religion relations, which came to be espoused by Governor Donald Cameron, took an anti-Lugardian turn.⁵⁹ Cameron and his enthusiasts – administrators who did not adulate precolonial Islamic institutions – argued that “neutrality” ought to be the highest principle rather than the Lugardian emphasis on religious liberty of the Masu Sarauta. In favoring a more direct variant of indirect rule, Cameron departed from the ultra-indirect rule trajectory of earlier colonial years and sought to de-emphasize the role of Islamic institutions, and thus elevated state-religion separation. The Cameron years, consequently, witnessed the gradual transfer of judicial siyasa powers from emirs to English judges and colonial administrators, with the consequent curtailment of fiqh. Cameron’s particular form of state-religion separation was not free of ambivalence, however; the transfer of siyasa to colonial administrators, intended to de-emphasize the place of Islam in governance, effectively heightened the state’s entanglement with the religion since colonial officials now governed Islam as well as its relations with other faiths.

As the Lugardian preference for Muslim religious freedom receded, Cameron’s policies gained traction, although always in tension. Cameron’s approach was inspired by the view that the best African was Christian, and thus grew his commitment to easing restrictions on Christian missions and granting them religious liberty. Yet, the exigencies of native administration curtailed the implementation of Cameron’s ideas. For one, the Cameron state, as in Lugardian times, continued to utilize caliphate institutions for the purpose of native administration, including over non-Muslims. Moreover, Lugardian policy continued to command loyalty in the rank and file of the colonial administration. Therefore, in the last three decades of empire (1931–1960), the coexistence – and tension – between Lugardian and Cameronian thought was unavoidable.

These dueling colonial policies on religion governance, all plausible under secular governance, set the stage for contestations over state-religion relations, struggles that most prominently featured Christian missionaries and the Masu Sarauta.

The Early Colonial Years

From the inception of empire in the Lugardian years, Protestant missionaries campaigned against the state’s co-option of Islamic institutions.⁶⁰ Seeking to reinstate their early nineteenth-century alliance with the colonial enterprise, they argued that “true empire building” was a joint effort of missionaries and colonial officials.⁶¹ Thus, once it was clear that Lugard was intent on utilizing local institutions, missionaries campaigned for the abandonment of the caliphal Muslim Fulani elites preferred by colonial administrators, and sought colonial governance through intermediaries of Hausa ethnicity.⁶² This move was rooted in the missionaries’ unfounded conjecture that Hausas, unlike Fulanis, were merely nominal Muslims open to missionary proselytization and conversion to Christianity. When this campaign failed, missionaries called for a restriction of the co-opted caliphal native administration institutions (chiefs, courts, and laws) to apply to Muslims only.⁶³ Therefore, contrary to the Lugardian emphasis on religious freedom, missionaries insisted on state-religion separation. Insisting on the state’s separation from the caliphal institutions was, however, far from a principled call for separation. Instead, what missionaries really contested was the “unchristian” separation resulting from their loss, to the Muslims, of their nineteenth-century power-alliance with empire.⁶⁴

Once this missionary campaign failed and the colonial government began to impose extensive restrictions on missionary proselytization, the campaign shifted to demands for religious freedom, articulated in the classic Protestant formulation: “freedom of conscience.”⁶⁵ The missionary call for religious freedom hardly cohered with the Lugardian emphasis on the religious liberty of the Masu Sarauta, the broader political elite class brought into power by the 1804 revolution that established the precolonial Islamic caliphate. Missionaries insisted that Lugard’s guarantee, in order to be consistent with the “Western civilization” principle of “religious toleration,” must be construed consistently with “freedom of conscience” and could not confer a special status on Islamic institutions.⁶⁶ This call for “freedom of conscience,” in essence, advanced missionary calls for the state’s separation from caliphal institutions.

For the Masu Sarauta, on the other hand, the overriding principle was the 1903 guarantee of noninterference in Islam. These elites took the guarantee as a commitment to the retention of precolonial caliphal institutions, and consequently subscribed to the Lugardian emphasis on religious freedom. In their view, this primacy of the religious freedom of caliphal institutions overrode claims of religious toleration by Protestant missionaries. Muslim elites, however, were divided over what Lugardian thought ought to mean for the fate of the Shariʿa. If emirs were content with its expansion of their siyasa powers, the alkalai, whose fiqh domain had begun to be curtailed, preferred an understanding of the Lugardian guarantee that granted the administration of the Shariʿa autonomy or distance from colonial governance. Nevertheless, alkalai remained impuissant critics of the colonial arrangement, and emirs’ championship of Lugardian religious freedom – as well as missionary advocacy for state-Islam separation – marked the Lugardian years.

The Cameron Era

The adversaries would switch positions in the Cameron years. From the early 1930s, when Cameron’s ideas on native administration came to dominate the central colonial administration, emirs and alkalai began to invoke the guarantee of noninterference to call for the separation of Islamic institutions from the state. The thinking that underlay this shift was most comprehensively articulated in a 1938 fatwa issued by Annur Tingary, Bashir El Rayah, and Mohammed Swar El Dahab, three sheikhs of the Kano Law school, in which they called on emirs and elites to boycott the colonial government.⁶⁷ Arguing that Islamic law was an inseverable whole and a necessary foundation for Islamic governance, the sheikhs urged emirs and alkalai to abstain from cooperating with a regime whose overt reform project was at clear odds with Islamic law. The fatwa, in essence, asserted that service to the colonial regime amounted to complicity in its reform project and urged aloofness. Although this call ultimately failed, the state would take the hint and the most radical of Islamic law’s transformation – the 1957 replacement of Islamic jurisprudence with an English penal code – would be presented in the language of Islamic law and with the active participation of national and transnational Muslim jurists recruited by the state.

For Christian missionaries, the transnational element would be decisive in influencing their discourse. By the late transwar period, Christian missionaries began to make their claims in the language of the human right to religious freedom. This turn to rights was inspired by the work of the international ecumenical movement. For that movement, the late interwar to immediate postwar period was one of intense deliberation over the fate of Christianity and its missionary enterprise in a world plagued by two major threats: secularism and “Islamic orthodoxy.” Faced with these threats, the ecumenical movement concluded that Christianity was in crisis.⁶⁸ Furthermore, ecumenical discourse viewed secularism not as the separation of state and religion, but as the de-Christianization of state and society.⁶⁹ Indeed, ecumenical thought during this period espoused the view that secularism inevitably led to the adoption of “false gods” to fill the void left by true religion.⁷⁰ Given this understanding, Islamic orthodoxy was far from contrary to secularism; it was complementary to it.

As a territory that was understood by missionaries as featuring both extreme Islamic orthodoxy and an espousal of secularism, Northern Nigeria, perhaps more than any other territory, embodied the unholy alliance of these two threats. In the vision of the movement, the solution lay in international legal protection for the right to religious freedom. The product was Article 18 of the Universal Declaration of Human Rights, brought into existence in 1948 through the direct efforts of the World Council of Churches. Among others, Article 18 protected the freedom of conversion and proselytization.

For missionaries in Nigeria and their emerging class of nationalist converts, postwar advocacy would hinge on the campaign to constitutionalize Article 18. In their doomed opposition to the missionary rights proposal, emirs invoked the guarantee of noninterference, arguing that the missionaries’ constitutional rights proposal violated Lugard’s assurance of state-Islam separation.

In the end, the product of these fierce contestations was the Independence deal on state-religion relations. That constitution deal featured three elements. The first was the replacement of Islamic criminal law with an English penal code, along with the abolition of emirs’ siyasa. Presented to Muslim subjects as a product of sound deliberation among Muslim jurists, the reform was, in fact, set in motion by Christian missionary advocacy that fortuitously coincided with Colonial Office wariness of Lugardian claims of Northern Nigerian Islamic exceptionalism. The second element was the recognition of the Protestant-dominated non-Muslim bloc as religious minorities, a move that paved the way for the third element that ultimately sealed the constitutional deal. That third element was the successful domestication of Article 18 of the Universal Declaration, the postwar international religious freedom provision crafted by global ecumenists to protect the missionary enterprise.

Postcolonial Contestations

Within seventeen years of Independence, the colonial struggle over state-religion relations resurfaced during Nigeria’s first postindependence constitutional convention in 1977. The issue that rekindled the debate was the proposal for the establishment of a Federal Sharia Court of Appeal with jurisdiction over Muslims in personal law matters. It was at the 1977 Constitutional Conference that the struggle would, for the first time, be framed explicitly on the national terrain in terms of a debate between the forces of “secularism” (opposed to the court) and “anti-secularism” (championing the court).

For the successors to the missionary coalition, Christian groups now represented by the Christian Association of Nigeria, the battle cry was “secularism,” understood as the separation of religion (in this case, Islam) from the state. In a shift from its advocacy for religious freedom at Independence, this group held up secularism as trumping Shariʿa proponents’ religious freedom claims. The Christian coalition’s advocacy for religious freedom at Independence had shifted to a commitment to separation. For proponents of the Shariʿa court, predominantly Northern Muslim political and intellectual elites, the overriding claim principle was religious freedom. This was, of course, a radical turn from these elites’ impassioned opposition to religious freedom at Independence.

Unsurprisingly, these parties differed on the meaning of these ideas just as they had disagreed over them during the colonial years. Although the Shariʿa cum anti-secularism camp stood in opposition to separation, it argued that the Nigerian state was, at any rate, not separate from all religion as the Christian secular camp claimed. In an argument reminiscent of the colonial-era missionary critique of secularism as “unchristian separation,” Shariʿa proponents argued that the postcolonial state was merely separate from and hostile to Islam. Specifically, this group argued that Nigerian law’s common law origins were inextricable from that law’s Christian heritage. This was not a call to displace the Christian common law; rather, the group advocated that the Shariʿa be granted equal privileges. Ditto the invocations of religious freedom by the Christian coalition. Not only did the Christian coalition shift from its Independence position to argue that religious freedom was secondary to state-religion separation, it also insisted that the Shariʿa proposal was inconsistent with the idea of religious freedom. Specifically, the Christian coalition argued that the religious freedom of non-Muslims would, in fact, be infringed by the establishment of the court. This freedom of non-Muslims, the coalition argued, superseded the demands of the Shariʿa camp.

To be sure, parties to the postcolonial contestations had morphed from the colonial configuration. Beyond the expected cross-regional (Northern-Southern Nigeria) alliances inspired by postindependence constitutional politics, the makeup of the parties had changed in the intervening decades. On the Christian pro-secularism side, European missions were now visibly absent, replaced by Indigenous churches led by Christian converts. Further, indigenization also broadened the ecumenical coalition to now include the Catholic Church, a group that had been visibly absent from colonial struggles. The Muslim anti-secularism camp came to reflect a coalition beyond the monolithic Masu Sarauta representation of the colonial years to now include a new politically engaged intellectual elite class, among others. Expectedly, these new alignments produced tensions within the projects of each camp even though the parties insisted that the struggles were continuous from the colonial debates.

The 1977 constitutional convention did not mark an end to the struggles over state-religion relations. Although the Constituent Assembly decided against the Shariʿa proposal after pro-Shariʿa delegates walked out on the proceedings in protest, the Shariʿa demand and hence, state-religion struggles, never disappeared from constitutional discourse. Indeed, the Shariʿa proponents made a comeback in 1999 with an even more contested maneuver: the reintroduction of Islamic criminal law in Northern Nigeria.

Continuing Entanglements

The story of the relationship between religion and politics in colonial Northern Nigeria was therefore one of sustained entanglement, and struggles over the terms of that entanglement continue to haunt the postcolony. Accordingly, this book does not end with decolonization. I trace these contestations into the postcolony not to mobilize the past in service of the present, but rather, to affirm that postcolonial struggles are, to borrow Gayatri Spivak’s words, “part of the unfinished nature of the past.”⁷¹

The historical chronicle reveals a complex relationship involving both continuities and discontinuities. Not only have the contestants realigned their positions from the posture they inhabited at Independence, the debate has also evolved from the past by adopting the frame of secularism qua secularism. The significant reframing of the postcolonial debate aside, parties invoke state-religion separation to contest religious freedom as they did in the colonial years. Unsurprisingly, the change in the relations of power in the postcolonial state has altered the fealty of the parties to these principles just as their arguments transformed from the Lugardian to the Cameron years.

Despite the evolving arguments that its ambivalence engenders, the governmental technique of secularism, midwifed by colonial modernity, has continued into the postcolonial state. While its constitution articulates the classical state-religion separation element of liberal secularism,⁷² the postcolonial state, like the colonial one, continues to be entangled with religion. The current religion governance project, which manifests as defining and confining religion, has encompassed even projects originally intended as a resistance to colonialism and uses techniques reminiscent of colonial governance. Most notably, the postcolonial Shariʿa agenda, intended to reinstate precolonial Islamic law, relies on secular governance techniques strikingly reminiscent of the colonial years, such as penal codes and colonial-type courts. Such governance projects, referred to by Brandon Kendhammer as “Shari’a statism,”⁷³ continue to deepen and hierarchize religious difference.

The story of the evolving arguments of postcolonial contestants therefore coheres with the ongoing narrative of the continuity of colonial secular governmentality. But the former also serves as my critique of the latter as it occupies the imagination of postcolonial scholarship on secularism. Much of the critical accounts of secularism, cutting-edge as they are, pay inadequate attention to secularism’s internal ambivalence and in particular, its consequent contradictory deployment. Apprehending this crucial feature and effect of secularism illuminates how subject-stakeholders deploy its conflicting imperatives to challenge the state and attempt to advance their agendas within it. This work argues, in sum, that critiquing secularism as a governmental technique interlinked with the rise of the modern state as a globalized form of political arrangement is compatible with recognizing that secularism, like all legal ideas, is not free of internal ambiguities and competing external deployments.

Inheriting an Imagined Past

History is a potent weapon in the hands of all sides in the postcolonial debate over secularism. Undoubtedly, the struggle over the terms and meaning of the entanglement between religious and political power in the colonial state continues to shape postcolonial constitutional debates. That colonial history has clearly come to be reimagined and reinvented by all parties differently.

Today, when the pro-secularism camp asserts that Nigeria is secular, it is invoking a particular interpretation of Nigeria’s colonial past, in which secularism was absent from the colonial state and only acquired at Independence. In this understanding, the gift of secularism was the product of a long history of national and international missionary advocacy against the disempowerment of non-Muslims in a colonial state that had privileged Muslims and Islamic institutions. When this group asserts the state’s secularism and resists attempts to reintroduce the Shariʿa into public institutions, it is forestalling a reversion to what it recalls as colonial Muslim sub-imperialism and disempowerment of religious minorities.

Like the pro-secularism coalition, the Shariʿa camp’s stance is also an assertion about Nigeria’s colonial past. Reacting against the assertions of the secularism camp that colonial rule meant Muslim sub-imperialism, the Shariʿa camp avers that the colonial state subjugated Islam and deprived Muslims of religious freedom. For them, the Independence package, especially the elimination of Islamic criminal law, was the final step in this process of displacing Islamic law and institutions and subordinating Muslims. This group maintains that the Independence deal, like earlier colonial moves, violated the 1903 guarantee of noninterference. The postcolonial Shariʿa agenda is therefore a project to reverse this effect of the colonial experience whose indignities have allegedly survived Independence. By wielding claims of religious freedom to champion Shariʿa against claims of the state’s secularism, this group is rejecting the Independence deal and, with it, the colonial project.

This framing of the postcolonial debate between secularism and anti-secularism is impervious to the colonial experience it invokes. The predecessors of the postcolonial Christian secularism camp, Christian missionaries, spent the colonial years feuding with a state that insisted on its secularity while co-opting Islam. They contested the colonial state’s secularism, first, by advocating for state separation from Islam and later, in the postwar years, wielding religious freedom claims against the unchristian separation that marked imperial secularism. They not only conceived of religious freedom as being external to secularism, they also deplored the latter for robbing state and society of its “religious glamor.”⁷⁴ That postcolonial secularism advocacy is spearheaded by the Christian Association of Nigeria today is, therefore, a striking reversal. The same discrepancy holds true for the pro-Shariʿa, anti-secular group, as well. Considering the co-option of Islamic institutions by the “secular” colonial state, Masu Sarauta invocation of secularism’s imperatives to advance their agenda in the colonial years and that group’s fierce opposition to the religious freedom project during Independence negotiations, the postcolonial oppositional framing of the Shariʿa project in opposition to statist secularism is astonishing.⁷⁵ The binarization of the “sacred” and the “secular” in constitutional discourse belies the sustained entanglement of law, religion, and empire in the colonial years, and the enduring legacy of that entanglement in the postcolony.

The quest for equality has remained the unarticulated crux of postcolonial struggles, just as it underpinned colonial debates. Its assertion of the equality of subjects notwithstanding, colonial governance was founded on hierarchizing religions, allowing substantive inequality to prevail. Not only did the state create a hierarchy between an Anglo-Masu Sarauta version of Islam and its others, it also recalibrated relations among Muslims with different theological leanings by infusing them with political and legal significance. In constituting the postcolonial state, the elimination of Islamic public (criminal) law and constitutionalization of Protestant human rights sent a signal that ecumenical Protestants had not only won hearts at the Colonial Office, but more significantly, that they had also won the fierce battle for the soul of the postcolony. The casualty, of both the colonial processes and its Independence resolution, was equality.

Tragically, the colonial technique of defining, deepening, and hierarchizing religious difference already predetermined the form and futility of resistance mounted by subjects. For missionaries resisting the subordination of non-Muslims (specifically, Protestant Christians), emancipation called for contesting the “secular Islamic” state through a hardly neutral notion of religious freedom that intended to invert rather than dismantle the colonial hierarchy. For the “bad Muslims,” those Muslim minorities whose subordination was hidden by the state’s alliance with Islam, resistance via an internal critique of the colonized caliphal institutions was doomed to fail from its inception. And, for those Masu Sarauta opposed to the colonial reform of caliphal institutions, resistance meant invoking empire’s guarantee of noninterference to challenge a religion governance project that was itself integral to late imperial secularism. Nostalgic about the precolonial past but now steeped in colonial privileges and mired in colonial statist consciousness, these elites were left to feebly resist the state’s secular project while simultaneously affirming its premises.

This book proceeds in three parts. Part I unearths the emergence and workings of secularism as a colonial technique of governing religious difference. With a focus on the two most contentious religion governance questions faced by the colonial state – the mission question and the fate of Islamic law – the two chapters comprising Part I uncover the ways through which the state defined, deepened, and hierarchized religious difference. Over the course of three chapters, Part II lays out the three elements of the Independence Constitution deal: the emergence of religious minorities as a political identity, the abolition of Islamic public law, and the constitutionalization of the right to religious liberty. Part II asks: what was the consequence of the colonial legal design described in Part I and the struggles it set in motion for the constitutional law and politics of decolonization? Part III examines the legacy of the colonial governance of religion for postcolonial constitutionalism. Through the lens of the constitutional proceedings of the first postindependence constitutional conference in 1977 and with highlights from other constitutional moments since then, the chapter unveils how and why the postcolonial struggles have inherited the complex colonial experience as an essentialist debate between secularism and anti-secularism. The concluding chapter reflects on what the unfolding of the career of imperial secular governmentality – in its colonial and postcolonial form – reveals about the complex connections between law, faith, identity, and power.

This book tells the story of the entanglement of law, religion, and empire in Northern Nigeria and traces the contestations set in motion by that entanglement into the postcolonial state. The Northern Nigerian story is unique, but the clash between the tenacity of religion and the inescapability of secular modernity, however, is ubiquitous. The account that follows is therefore crucial not only to understanding the tragedy of Nigeria’s constitutional deadlock, but also to apprehending global postcolonial struggles over religion and religious difference.