THE KHILAFAH

ISLAMIC CONSTITUTIONAL LAW

INTRODUCTION
• The political system of Islam is based on three main principles – tawhid (Oneness
of God), Risalah (Prophethood) and Khilafah (vicegerency/caliphate)
• The political significance of the term Khilafah is rooted in the historical
development of Muslim dynasties. It emerged after the demise of Prophet
Muhammad (P.B.U.H) and it was Abu Bakr as-Siddiq who first employed the
term.
• Nevertheless, the term khalifah mentioned in the Quran was meant for Adam,
the first man created by Allah, who has been designated the position of
Vicegerent of Allah on Earth. Vicegerency signifies the task and responsibility of
leaders in establishing Islam as ad-Deen and governing of the state.
• Throughout Islamic political history, caliphs claimed either Amir Mu’minin, Imam
or Khalifah. Each was a title of one and the same personage, but Khalifah
emphasised the relation to the founder of the Madinah state, the apostle of
God, and put forward the apostolic succession.
• In the Qur’an the term Khilafah / Khalifah and its plural form Khulafa (see Surah al-
A’raf verse 74) or Khalaifa occur in several places:
i. Surah Al-Baqarah 2:30: “Behold, thy Lord said to the angels: I will create A
vicegerent on earth...”
ii. Surah Sad 38:26: “O David! We did indeed make thee a vicegerent on earth: so
judge thou between men in truth (and justice)…”
iii. Surah Al-’Araf 7:74: "And remember how He made you inheritors after the 'Ad
people and gave you habitations in the land: ye build for yourselves palaces and
castles in (open) plains, and care out homes in the mountains; so bring to
remembrance the benefits (ye have received) from Allah, and refrain from evil
and mischief on the earth.”
iv. Surah al-Fatir 35:39: “He it is That has made you inheritors in the earth: if, then,
any do reject (Allah), their rejection (works) against themselves: their rejection but
adds to the odium for the Unbelievers in the sight of their Lord: their rejection but
adds to (their own) undoing”
v. Surah Yunus10:14: “Then We made you heirs in the land after them, to see how
ye would behave!”
DEFINITION
• The semantic meaning of the term “Khilafah” contains several conceptions:
a. A predecessor, absent or dead;
b. A successor;
c. The position or office of the predecessor which is an object of succession;
and
d. The powers and functions which belong to the office;
e. To inhabit and cultivate.
• The simple verb of “Khalafa” can be understood as to mean “to replace
someone or something”..
• Khilafah can simply mean the process of succession within mankind which
differs from the meaning asserted by the Umayyads who sought Khalifah to
be succession to God as reported by a number of legal and religious
scholars. For example, “Caliph, a first among equals”. Thus, the title of the
person holding this could be referred to as “Khilafat Allah”. But some
objected to this designation of the title on the account that only he who dies
or becomes absent can be “succeeded” since God does not leave nor die,
then he cannot be “succeeded.”
THE NEED FOR KHILAFAH
• According to al-Farra Imamah is obligatory not because it is reasonable
thing to do but because reason should not seek to determine obligatory
matter. It is an obligation upon Mujtahids until they designate a
Khalif/Caliph or upon qualified individuals until one of them is established
as Imam.
• Ibn Khaldun presents Khalifah to be a continuation of Nubuwwa. In
conjunction with his general theory of solidarity, he argues for the need for
a strong central authority that imposes its will on the public not only in
worldly matters but also in matters concerned with afterlife. This role is thus
filled by the people of Shari‛ah and whomever substitutes for them namely
“Khilafah”. Thus the Khilafah role is to strike a balance between the “natural
tendencies of man to follow his immediate desires, and the political
necessity to force people to be rational and considered of the worldly
needs of the society at large. In other words, the Khalifah’s role extends
beyond the mundane affairs to cover issues prescribed by the Shari‛ah.
• While majority of the Muslim jurists agreed that there is a need for a
system of Khilafah, and that its establishment is considered obligatory on
the Community, there are also dissenter to the idea, among others al-
Asamm. According to latter, the issue in hand is whether the obligation is
derived from rational grounds or imposed by heavenly laws. Those who
subscribe to the former view argue that rational beings tend by nature to
submit to a leader who would keep them from inequity and settle their
conflicts and disputes. Without rulers, men would exist in a state of utter
chaos and unmitigated savagery.
• Those who base the obligation on the revealed law rather than reason
maintain that some of the legal functions performed by the sovereign might
conceivably not have been required by the faith. However, according to the
revealed law, one must submit the conduct of his affairs to the leader
sanctioned by the faith.
• Authorities:
i. Surah An-Nisaa 4:59: “O ye who believe! Obey Allah, the
Messenger and those of you who are in authority..”
ii. Hadith reported by Abu Hurayra: “You will be ruled after me
by some who are kind, and some who are corrupt. Listen to
them and obey them in all that is right. The good they do will
be for your benefit and theirs; the bad they will do will be
for you and against them.”
IS KHILAFAH THE SAME AS IMAMAH
• Imam refers and signifies leadership with more emphasis on the spiritual
affairs of the community. It is noted that the term Imamah and Khilafah are
used synonymous and have been used interchangeably by the jurists.
• There exist different interpretations among the Shi‛ite and the Sunni jurists
over the term Imamah on the political aspect of the term. They, however,
seem to be consistent in so far as the religious aspect is concerned.
• The Shi‛ite jurists have made a distinction between the terms of Khilafah
and Imamah. According to them, khilafah refers only to secular-political
rulers. According to the Shi‛ite doctrine of politics the first three of the four
rightly guided Khalifs/Caliphs (Khulafa al-Rashidun) were temporal leaders
and only Ali bin Abi Talib can be referred to as Imam for he combined
both temporal and spiritual qualities of leadership.
• Consequently, the Shi‛ite refer to all their spiritual and political leaders as
“Imams” and avoiding the use of other expressions such as Khalif, Amir or
Sultan, contrary to the Sunni approach.
• The Shi‛ite theory of Imamah is well founded on the principle of continuation
of divine guidance through infallible (ma’sum) Imams and hereditary
succession resulting in the belief that political as well as religious authority
rests with the members of the family of the Prophet.
• This understanding of Imamah contrasts with the Sunni’s theory on the issue.
The Sunnis emphasised that the counter assumption justifies majority rule.
Yet the Sunni’s have not rejected prophetic leadership. However, the idea
of divinely infallible Imams and the theory of hereditary succession are
inconsistent with the Sunni political thought.
APPOINTMENT OF A HEAD (CALIPH/IMAM) –
CONDITIONS

1. Should be a Muslim
2. Should be a male
3. Should be an adult
4. Should be sane
5. Should be a citizen of the Islamic State
6. Should be just and God-fearing
7. Should be a freeman
8. Should be a competent and skilled person
1) Should be a Muslim
• The head of Islamic state must be a Muslim and cannot be given to an
unbeliever, nor is it allowed to obey them. This is due to the fact that, in
case of dispute between the rulers and the ruled both have been ordered
to refer the matter to Allah and His Messenger and it is only a Muslim ruler
who can agree to refer the dispute to Allah and His Messenger.
• Authorities:
i. Surah An Nisa 4:59: “O ye who believe! Obey Allah, and obey the
Prophet and (obey) those who are in authority from among you.”
ii. Surah An-Nisa 4:141: “And Allah will never give the unbelievers any way
(of authority) against the believers.”
iii. Hadith: “We will not dispute and fight with our rulers unless we see signs
of (such) open disbelief in their deeds which may provide us with a
justification from Allah (to stand up) against them.”
iv. Hadith when the Companions asked the Prophet’s permission to rise
against bad rulers, he replied: “No (you cannot rebel against them) so
long as they continue to establish Salat among you.”
2) Should be a Male
• It is forbidden for a female to be made a Khilafah, as the authority is only
given to man, not a woman.
• Authorities:
i. Surah An Nisaa 4:34: “Men are in charge of women.”
ii. Hadith: “Verily, that nation would not prosper which hands over the reigns
of its government to a woman.”
• This condition has been questioned and argued that women can also hold
political positions in Islam as there is no Qur’anic verses exist that prevent
women from holding positions of leadership and the Hadith quoted above
has been shown to be extremely unreliable on several counts.
• It is an isolated and uncorroborated one and therefore not binding in
Islamic law, and in addition there is reason to believe it may have been
forged in the context of the battle, which Aishah the Prophet's widow led
against the fourth Khalifah Ali. In view of the examples set by women
rulers in history, it is also clearly untenable and false.
3) Should be an adult

• It is forbidden to appoint a child or minor as the head of an Islamic state.

• Authorities:
i. Surah An Nisaa 4:5 : “And do not make over your property, which Allah
has made for you a (means of) support, to the weak of understanding.”
ii. Hadith narated by Ali Abi Talib: “Accountability is lifted off three persons:
The dormant until he awakes, the boy (adolescent) until he reaches
maturity and the deranged until he regains his mind.”
iii. Hadith: “The pen has been raised off three persons: The deranged in his
mind till he restores his mind, the dormant till he wakes up and the
adolescent till he reaches maturity.”
iv. Hadith of the Prophet where he refused a child to give him Bai’ah
(Abdallah b. Hisham).
• Therefore, since a minor is not under any liability by Shar’a, so it is unlawful
for him to become Caliph or to hold any post of authority for he is not
responsible for his own actions.
4) Should be sane

• The Caliph must be sane; it is unlawful for a Head to be

insane.
• Authorities: Hadith: “The pen has been raised off three
persons: The deranged in his mind till he restores his mind,
the dormant till he wakes up and the adolescent till he
reaches maturity.”
• The mind is the condition for responsibility and for the validity
of actions. The Caliph enacts the rules and executes all the
legal duties, it is therefore unlawful to have an insane Caliph
because the insane cannot look after himself, nor is he
responsible for his own actions, thus he cannot look after the
affairs of the people by greater reason.
5) Should be a citizen of the Islamic State

• According to the jurists, the Caliph must be residing in an

Islamic state, among the believers.
• Authority: Surah Al Anfal 8:72: “And those who have declared
their belief in Islam but have not migrated (to the Islamic
State), you have nothing to do with their guardianship until
they migrate.”
6) Should be just and God-fearing
• The Caliph must be a person who is just (‘Adl) and not a ‘Fasiq’ (rebel).
Justice is an obligatory foundation for contracting the Khilafah and for its
continuity.
• Authorities:
i. Surah An Nisaa 4:58: “Verily Allah commands you to make over trust (i.e.
position of responsibility) to those who are trustworthy,”
ii. Surah At Thalaq 65:2: “Let there witness two just (men) from among you”.
iii. Surah Al Hujurat 49:13: “Verily the most respectable of you in the sight of
Allah is the one who is most God-fearing.”
iv. Surah Al Baqarah 2:247: “He said: Verily Allah has chosen him (to rule
over you) in preference to you, and He has increased him abundantly in
knowledge and physique.”
v. Hadith: “By God we do not assign the affairs of our government to any
one who aspires for it or is greedy in respect of it”
7) Should be a freeman

• A slave cannot be a Khilafah as a slave is under his master’s

sovereignty, so he cannot run his own affairs, therefore he has
no power to run other people’s affairs and be a ruler over
them.
8) Should be a competent and skilled
person
• The Caliph in carrying out his duty to the state based on the
Bay’ah (oath) of the people must be physically able (non-
handicapped), spiritual, brave, and helpful to protect the
ummah against its enemies. His eyes, ears, tongue, and body in
general should be in working condition.
• He must be politically, militarily, and administratively
experienced i.e. able to conduct the affairs of the state in a
proper manner. All the four Caliphs had the three qualities in
them.
• This condition is important because it would ensure wise
handling of the subjects and able maintenance of their
interests.
METHODS OF APPOINTMENT OF HEAD OF
ISLAMIC STATE
• First and foremost, supreme leadership is
established in several ways:
1. Selection by the electors,
2. Appointment by a predecessor
3. By force
1) Selection by the electors

• The jurists in general suggest that the Khalifah is selected by a group of the
best, most Islamically knowledgeable people in the society and not by a
general vote of everyone.
• This group is called majlis al-shura (consultative council). The members of
majlis al-shura are chosen from experts who are learned in Islam, and they
in turn choose the Khalifah.
• However, there is a considerable disagreement among the scholars on the
number of electors necessary for the valid investment of the sovereign.
• Some have argued that he would be invested by no fewer than the
“generality” of the electors throughout the land in order for his election to
be unanimously approved and his authority universally accepted.
• However, this view is refuted by the vote of allegiance to Abu Bakr, given
by those who were present, without waiting for the arrival of those who
were absent.
• Another group has maintained that the minimum number of electors for a
binding election is five, who may unanimously agree on a candidate or
concur in the choice made by one of them.
• They support their argument on two grounds.
1. The appointment of Abu Bakr, was sealed by the consensus of five men
whose lead was followed by the rest of the population.
2. Practice of Umar, who set the number necessary for consultation at six, one
of whom may be invested by agreement of the remaining five.
• This is the view upheld by most jurists of Basra.
• On the other hand, scholars from Kufa have argued, that only three persons
are needed. One of them taking office with the agreement of the other
two, thus constituting one ruler and two witnesses, as in the case of marriage
contract, which is validated by one guardian and two witnesses.
• Still others have asserted that the election of the sovereign would be
binding if undertaken by a single person. This is based on practice al-
Abbas who has said to ‘Ali: “Give me your hand so that I may pledge you
may allegiance and let the people say, ‘The uncle of the Messenger, has
nominated his cousin.’ No two persons would then disagree with you.”
2) Appointment by the predecessor
• Scholars have different opinions regarding the validity of the succession
and the establishment of the leadership without formal appointment or
screening.
• Some Iraqi jurists tend to accept such assumption of power as legitimate
rendering the succession valid and making it obligatory on the Community
to obey the ruler/head, even though no proper choice by the electors has
taken place.
• They contend that the goal of the selection process, which is to recognise the
worthy candidate, has in this case been realised owing to the excellence of
the person concerned.
• It is vital to note that the majority of jurists and theologians are of the view,
however, that establishment in office could only take place as a result of
free choice, but that the electors have to invest him. Once they agree to do
so, they complete the due process, because the office of the Head is an
appointment that is conferred by someone empowered to do that.
• It is equally important here to make reference to the position of Prophet
Muhammad as the first Head of the Islamic State.
• First, he left behind no explicit instructions or nomination for the election or
appointment of his successor. Secondly, it is explicitly stated in the Qur’anic
injunction that all matters affecting the Ummah should be decided by
consultation.
• The Companions rightly inferred that with the passing away of the Prophet,
selection and appointment of Head of the Islamic State had been left to the
elective discretion of the Muslims, which was to be exercised in accordance
with the spirit of the said Qur’anic injunction.
• The first Caliph, Abu Bakr, when his last moment came, although he was
personally convinced that Umar was the fittest person to be the Caliph, he
did not forthwith nominate him as his successor but consulted the most
prominent among the Companions, jointly and severely, and then dictated
his will in favour of Umar.
3) By force

• If the current Khalifah forces someone on the people to be the

next Khalifah, but that person is righteous, the people must
accept him as long as he remains righteous.
• Similarly, if there is no Khalifah (again, the situation today), it is
permitted for someone to forcibly seize power and declare
himself the Khalifah if he guarantees to abide by his
responsibilities under Islam.
DISMISSAL OF THE HEAD OF ISLAMIC
STATE
• In general, the jurists have agreed that a head of Islamic state can be
dismissed from his office if there is a failure to undertake or to adjudicate
in strict accordance with the Book of God and the Sunnah of the Prophet.
• In Islam, power emanates not from the consent of the governed, not as a
prerogative of the ruler, but from Allah. As Head of the Islamic State, he is
a trustee who is under obligation to enforce and uphold Divine Law.
• Authorities:
i. Hadith: “There is no obedience for those who disobey Allah.”
ii. Hadith: “There is no obedience in sin; it is only in virtue.”
• Besides that, when the khalifah is no longer capable of discharging his duty,
for instance due to insanity that would affect his mental judgment and thus
inability to perform as Head of the Islamic State i.e. unable to have that
knowledge conducive to the exercise of independent judgment; lack of
prudence in ensuring wise handling of the subjects and able maintenance of
their interests, etc.
• When the head of Islamic state possess an inappropriate behaviour or
misconduct i.e. immoral behaviours such as corruption.
• Authorities:
i. Surah Al Kahfi 18:28: “And obey not a person whose heart We have
permitted to become unmindful of Our remembrance, one who is
following the dictates of his own desires and his case is that in which due
limits are transgressed.”
ii. Surah As-syu’ara 26:151-152: “Obey not those who overstep the limits
(We have set) and create trouble on the earth, and have no tendency to
reform themselves.”
RIGHTS OF THE HEAD OF THE ISLAMIC
POLITY
1. The Ummah must obey the Head of the Islamic polity. It is a right of the Head
of the Islam State to determine total obedience from the Ummah as a whole
unless he falls under the exception.
• Authority: Surah An Nisa 4:59: “O you who believe, obey Allah and obey His
Messenger and those from among yourselves who hold authority…”
2. Being the Head of the Islamic polity does not mean that he foregoes his
personal rights i.e. right to privacy, etc. The Ummah is expected to respect the
rights of the Head of the Islamic State.
3. As the Head of the Islamic polity, he has the right to come up with suggestions
or recommendations in the administration of the State or the day-to-day
running of the State affairs provided such suggestions or recommendations
are not in conflict with the Book of God or Sunnah of the Prophet.
4. Just like any other citizen of an Islamic State, he is entitled to his freedoms i.e.
expression/speech, association, assembly, etc.
5. He has the right to check on the performance of his members of administration
and entitled for all information regarding their performance
DUTIES OF THE HEAD OF THE ISLAMIC
STATE
1. To enforce and uphold Divine Law in running the affairs of the State.
• For example, in an Islamic State the legislature has no right to make laws,
the executive has no right to issue orders and the law courts have no right to
decide cases in contravention of the teachings of the Qur’an and the
Sunnah. If they do so, the Muslims have no obligation to obey them.
• In other words, he is supposed to safeguard Islam in its original form, and to
protect against the introduction of new things (bid’a) into Islam.
2. As Head of the Islamic State, he is bound to be just to each and everyone..
• If there is no justice in the way the Head runs the affairs of the State, there
can be no justice in the society in general
• In other words, he must establish justice (including punishments for crimes)
among the people.
• Authority: Surah Al Maidah 5:8: “Let not the enmity of any people seduce
you from doing justice (to them). Do justice (in every case) for it is nearer to
piety.”
3. He is under obligation or a duty to safeguard life, property and honour of all
citizens in an Islamic State.
• In other words, as Head of the Islamic State he must make sure fundamental human
rights of the citizens are safeguarded and protected as well.
• Authority: Hadith of the last sermon of the Holy Prophet enunciated some
fundamental principles of the Islamic State. One of them was: “Most surely, your life,
your property and your honour are as sacred as this day of hajj (pilgrimage).”
4. As Head of the Islamic State, one of the major duties is for him to establish the
system of Zakat and that he carries on his shoulder the responsibility of providing
for all those who are destitute and helpless.
• Auhtorities:
i. Surah Az Dzariyaat 51:19 : “In their wealth the beggar and the destitute have
their due.”
ii. Surah At Taubah 9:103: “Purify them (of vice) and develop them (in virtue) by
taking Zakat from their wealth and pray for them.”
iii. Hadith: “Allah has made Zakat obligatory upon the Muslims. It is to be collected
from the wealthy among them and distributed among their needy ones”
iv. Hadith: “The Government is the guardian of any one who has no other means.”
5. Unlike the Head of a Secular State, his duty is not merely to maintain
internal order, to defend the frontiers and to work for material prosperity
of the country.
• Rather, his first and foremost obligation is to establish the systems of Salat
and Zakat to propagate and establish those things which are considered to
be ‘virtues’ by God and His Messenger, and to eradicate those things which
have been declared ‘vice’ by them.
• Authority: Surah Al Hajj: 22:44: “(Muslim are) those who, if we give them
power in the land, establish the systems of Salat (worship) and Zakat (poor-
due) and enjoin virtue and forbid evil.”
6. As Head of the Islamic State, he is under a duty to make consultation as
part and parcel of his administration especially while dealing with
collective affairs.
• Authority: Surah As Syura 42:38:“They manage their affairs by mutual
consultation.”