The Administrative and Jurisprudential Challenges Affecting the Collection of Zakat by a State

TABLE OF CONTENTS

LIST OF ACRONYMS

GLOSSARY OF TERMS

1. INTRODUCTION
1.1 Background
1.2. Statement of the Problem
1.3 Justification of the Study
1.4 Research Questions
1.5 Research Methodology
1.6 Hypothesis
1.7 Statement of the Objective
1.8 Theoretical Framework
1.9 Conceptual Framework
1.10 Limitations
1.11 Literature Review

2. THEORETICAL FRAMEWORK. ANALYSING THE JURISPRUDENCE CONCERNING THE COLLECTION OF ZAKAT BY A STATE
2.1 Introduction
2.2 The Theory behind the Collection of Zakat during the time of Prophet Muhammad
2.3 The Theory behind the Collection of Zakat during the Caliphate Times
2.4 The Theory behind the Collection of Zakat during the Post Caliphate Era
2.5 Conclusion

3. THE ADMINISTRATIVE AND JURISPRUDENTIAL CHALLENGES THAT AFFECT THE COLLECTION OF ZAKAT BY A STATE
3.1 Introduction
3.2 Compulsory Zakat Collection
3.2.1 The Case of Sudan
3.2.2 The Case of Pakistan
3.3 The Administrative and Jurisprudential Challenges That Affect the Collection of Zakat by a State
3.4 Conclusion

4. RECOMMENDATIONS
4.1 Introduction
4.2 Recommendations

5. CONCLUSION

BIBLIOGRAPHY

LIST OF ACRONYMS

illustration not visible in this excerpt

GLOSSARY OF TERMS

illustration not visible in this excerpt

1. INTRODUCTION

1.1 Background

Zakat is the obligation of almsgiving within Islam.^[1] It is the third pillar^[2] of Islam and is a requirement for all believers.^[3] This research concerns the collection of zakat by a state and its administrative and jurisprudential challenges. History has shown that the collection of zakat used to be done at the state level since the time of Prophet Muhammad^[4] (peace be on him)^[5], until the downfall of the Islamic rule through colonization^[6] during the 18th and 19th centuries.^[7] As a result of the colonization of Muslim lands, there has been a discontinuity in the collection of zakat by the state for centuries.^[8] However, this research has identified that some of the Muslim countries have begun to institutionalize the collection of zakat by choosing to implement the compulsory zakat collection system. This is a system where the government is responsible for the assessment, collection and distribution of zakat.^[9] Some examples of countries already operating this system are Pakistan^[10], Saudi Arabia^[11], Sudan^[12], and Yemen^[13].

1.2. Statement of the Problem

State controlled zakat collection is the most effective way of collecting zakat.^[14] However, this system is not without challenges that inhibit the size of zakat revenue to be realized. These challenges are administrative and jurisprudential. A number of publicists^[15] have written several books and articles on the collection of zakat by a state. However none of them have considered the fact that this system faces challenges when it comes to the collection of zakat. This research, therefore, has attempted to add to the existing literature by identifying what these administrative and jurisprudential challenges are that affect the collection of zakat by a state.

Muslim scholars^[16] have also been identified who have consistently since the time of the Prophet (peace be on him) argued for the collection of zakat by a state,^[17] but have failed to discuss that this system may be facing administrative and jurisprudential challenges that limit the revenue collected through zakat. These scholars were more concerned with the philosophies behind arguing a case for the collection of zakat by a state. Consequently, this research took upon the task of investigating through the case study approach what challenges certain selected countries faced in the collection of zakat, and whether these challenges are administrative and jurisprudential in nature and accordingly pointed out some recommendations that would aid in overcoming the identified challenges.

1.3 Justification of the Study

The problem identified here is that there are a number of challenges that affect the collection of zakat by a state, which has the effect of limiting the amount of revenue collected. These challenges are identified by this research as administrative and jurisprudential. The justification, therefore, of studying this problem is to address these challenges by coming up with several recommendations. Zakat is a method by which poverty can be alleviated and wealth can also be equitably distributed in a society. Hence, having a zakat collection system that is not affected by administrative and jurisprudential challenges is important in realising the objective of zakat as a method of poverty alleviation and equitable wealth distribution in a society.

1.4 Research Questions

The research questions examined are: one, whether administrative and jurisprudential challenges affect the collection of zakat by a state? And two, whether these challenges affect the amount collected in zakat by a state?

1.5 Research Methodology

This research is chiefly qualitative. The research methodology employed is the explanatory approach and the use of the library. The explanatory approach aided in first selecting the states that collect zakat, second describing the manner in which such states collect zakat and explaining the problems encountered by such states in the collection of zakat. The use of the library facilitated most of the research from whence a number of books and journal articles were considered and upon which the literature review is based.

In other words, this research adopted the descriptive, explanatory and exploratory approach by studying selected Muslim states collecting zakat and inquiring into the legal challenges faced by these states by putting together and assessing the data that already exists hence ousting the need for quantitative research methods.

1.6 Hypothesis

This research proceeded on the presumption that the collection of zakat by a state is more effective as compared to voluntary zakat collection by various charitable institutions established for the purpose of collecting zakat. The research also proceeded on the presumption that there are administrative and jurisprudential challenges that limit the effectiveness of the collection of zakat by a state. In defining its hypothesis, this research did not refer to or have in mind any particular country.

1.7 Statement of the Objective

The general objective of this research was to examine whether there are challenges that affect the amount of revenue collected by a state through zakat, to identify these challenges, the reasons that they exist and the circumstances that create them. An examination of a number of states that collect zakat was carried out to examine this objective.

Further subsidiary objectives are to introduce the concept of zakat, to define it and to discuss the jurisprudence^[18] surrounding it, to introduce the Muslim scholars who have written about zakat and argued for its collection by a state, to highlight the philosophies that led to the development of the collection of zakat and to identify the gap in the literature relating to the study of zakat collection by a state. A further objective was to indicate a number of recommendations to address the challenges identified in the collection of zakat by a state.

1.8 Theoretical Framework

The historic approach^[19] facilitated this research. In particular the Islamic school of thought.^[20] The Islamic school was relied on in relation to the collection of zakat because this school of thought was useful in understanding the history and development of zakat and its collection by the state.^[21] Various theorists^[22] under this school have also supported the collection of zakat by the state. This research also supports the collection of zakat by the state and relies on the views of Al Bukhari and Muslim^[23] who continued the tradition of supporting the collection of zakat by the state. According to them the aim of collecting zakat was to cater for the welfare of the poor, needy and debtors among others and they therefore supported the view that there is a need to make mandatory payment of zakat to the state.^[24]

The scholar Abu Hanifa also justified the concept of forcibly collecting zakat by the state.^[25] He emphasized the collection of zakat by the state for catering towards the welfare of the poor, needy, wayfarer and debtors within the Muslim community. The scholar Malik Ibn Anas also confirmed his support for the collection of zakat by the state.^[26] His view being that such collection must be in support of the poor.^[27] Imams Shafi and Al Ghazali speak of avoiding human discretion in the collection of zakat. This discretion is more common where charitable institutions exist to collect zakat voluntarily paid to them by zakat payers.^[28] Their view, therefore, also gives support to the collection of zakat by the state.

However, neither of these theorists has considered that there may be challenges affecting the collection of zakat by a state. Their concern has mainly been for the welfare of the poor and on the equitable distribution of wealth. Accordingly, in their opinion, a state ought to be the collector of zakat if the objective of catering for the welfare of the poor and equitably distributing wealth in the society is to be realized. This research in as much as it agrees with these theorists goes a step further to state that there are challenges affecting the collection of zakat by the state. Accordingly, it goes ahead to identify these challenges as administrative and jurisprudential and addresses the extent to which these challenges affect the collection of zakat by a state.

Thus the historic approach was important since it is concerned with viewing events as they occurred by understanding the history and development of the collection of zakat and discussing actual challenges that have arisen in the field of the collection of zakat by a state.

1.9 Conceptual Framework

This section defines the term zakat. Zakat literally has been derived from the Arabic root word that carries the meanings of “that which purifies”^[29], as well as “that which fosters”,^[30] that is, growth and increase. According to Ataina and Achmad^[31] the meaning of growth of zakat is that by paying zakat, it might lead to the escalation of property in this world and also development of religious merit in the hereafter.^[32] Furthermore, zakat also has been mentioned in the Holy Quran together with other terms such as sadaqat (donation), which also carries the meaning of connotation of giving and charity.^[33]

Zakat is the amount of money that every adult, mentally stable, free, and financially able Muslim, male and female, has to pay to support specific categories of people. There are eight groups of people who are qualified to receive zakat, as mentioned by Allah in the Holy Quran at Chapter 9 Verse 60 that includes al-Fuqara’ (needy/strained), al-Masakin (poor/deficient/lacking), amil (has right to collect zakat), mualaf (convert/reconciled to Islam), al-Riqab (slave), al-gharimin (people in debt), fi-sabilillah (Allah’s cause) and Ibn as-sabil (traveler/wayfarer).^[34]

Zakat has been divided into two main categories, which are zakat of al-fitr and also zakat of wealth.^[35] Zakat of al-fitr is the zakat, which need to be paid by Muslims once a year during the month of Ramadan^[36] before the Muslims festive season celebration known as Eid.^[37] The basis for paying this type of zakat is found in the report narrated by Ibn Umar who said: “The Prophet enjoined zakat al-fitr assessed as a saa’^[38] of dates, or a saa’ of barley, upon all the Muslims, slave and free, male and female, young and old, and he commanded that it be paid before the people went out for the Eid prayer.”^[39]

Zakat of wealth is the zakat which needs to be paid by Muslims once a year and is to be paid on livestock (camels, cattle and sheep); gold and silver and, nowadays, paper currency; trade goods;^[40] and what is produced by the earth, which includes two things,^[41] which are; crops and fruits and buried treasure, that is, wealth buried in the ground that is found by a Muslim.

Table 1 below shows a list of the categories on which zakat of wealth is due and the amount to be paid on such categories.

illustration not visible in this excerpt⁴²

Source: Al Sayyid Sabiq, “Fiqh us Sunnah: Az Zakah and As Siyam” (Translated by Muhammad Saeed Dabas and Jamal al Din m. Zarabozo, Islamic Printing & Publishing Co, Egypt, 2000) at p. 275.

1.10 Limitations

There are two main limitations to this research, one being that the author is a Muslim and therefore the possibility of bias exits and two that the findings of this research are limited to Muslim states that collect zakat. The reason that Muslim states are chosen for the study is because Muslim states to an extent apply Islamic law, which in Arabic is referred to as Shariah^[43]. Islamic law requires that Muslims pay the zakat and the historical school of thought has shown that the obligation to collect zakat has since the time of the Prophet been vested in the Muslim state. Secular states do not collect zakat, and therefore there was no need to include these states in the study.

This research is specific to the collection of zakat by a Muslim state and the administrative and jurisprudential challenges that affect a Muslim state in its collection of zakat. The findings of the study can only be disseminated to the Middle East, parts of Africa and Asia where the state enforces and applies Islamic law. In Kenya where the author comes from, Islamic law is enforced through the Kadhi Courts. Such enforcement is limited only to personal law and the personal law as identified in the Kadhis Court Act^[44] and the Constitution of Kenya^[45] does not envisage the collection of zakat, it is only limited to issues relating to personal status, marriage, divorce and inheritance of consenting Muslim parties to the jurisdiction of the Kadhis Court.

1.11 Literature Review

Ilyas Ba-Yunus in his book titled “A Note on the Social Implication of Zakat in Modern Times”^[46] reviewed a number of articles that supported the fact that throughout the history of Islam, governments played an important role in the collection of zakat.^[47] Hasanuz Zaman on the other hand in his paper titled “Zakat and Ushr. Draft Examined”^[48] went a step further and identified that the government in the collection of zakat may decide to take either one of the two ways of collecting zakat.^[49] These methods are the compulsory zakat collection and the voluntary zakat collection. In the former, it is the government’s responsibility to collect the zakat and zakat payers are under an obligation to make the payment to their government.^[50] In the latter, the government does not have the responsibility to collect the zakat, but instead zakat is collected by the various charitable institutions established in the countries where zakat is paid, such countries either being Muslim states or non Muslim states having a minority Muslim population.^[51]

In examining which of the two methods is most effective Abidin Ahmed Salama in his “Prospects of Poverty Elimination through the Institution of Zakat: A Case Study of OIC Member Countries”^[52] using the Sudan experience in the collection of zakat pointed out that when the zakat is collected properly and in the right way according to the Shariah by the government it can alleviate poverty.^[53] Accordingly, many researchers including Aidit Ghazali in his paper titled “The Phenomenon of Zakat Payment Through Unofficial Channels - An Empirical Analysis"^[54] are now investigating zakat collection for long-term rehabilitation programmes since it has emerged that a number of charitable institutions have also emerged that collect zakat^[55] and this has led to a sizeable amount of potential zakat revenue remaining outside the control of such institutions since there are no detailed rules on assessment, coverage and collection of zakat within which these institutions operate.^[56]

Jamil Othman in using Malaysia as his case study discussed in his paper titled “Zakat: A Case Study of Malaysia”^[57] the issue of the emergence of charitable institutions collecting zakat. Othman found that in Malaysia a large percentage of zakat is paid through charitable institutions,^[58] which according to this thesis is as a result of inefficiencies in the Malaysian governments’ collection efforts and lack of confidence in the governments’ collection of zakat among other reasons.

A number of countries operating the compulsory zakat collection system have their own rules in terms of the assessment, coverage, methods of collection of zakat and so on^[59], which according to Abdallah Al Tahir^[60] means that there is no uniform way in which zakat is collected since each government can decide to assess zakat on a particular category of items which another government does not consider^[61] and this according to the thesis has the effect of limiting the amount collected through zakat.^[62]

This research in reviewing the existing literature concerning the collection of zakat noted that despite literature supporting the collection of zakat by the state there is no discussion on the fact that this system may be faced with challenges that inhibit the collection of zakat and prevent it from realizing its full potential. Hence, this research investigates whether there are factors or challenges that limit the effectiveness of the collection of zakat by a state.

2. THEORETICAL FRAMEWORK. ANALYSING THE JURISPRUDENCE CONCERNING THE COLLECTION OF ZAKAT BY A STATE

2.1 Introduction

This research is centred on the historic approach^[63], in particular the Islamic school of thought.^[64] It relies on this school in relation to the collection of zakat because the Islamic law rests its validity on historical events and their interpretation and as a result this school of thought is useful in understanding the history and development of zakat and its collection by a state.^[65] Various theorists^[66] under this school have supported the collection of zakat by a state. Thus, the historic approach is important since it is concerned with viewing events as they occurred by understanding the history and development of the collection of zakat and discussing the actual challenges that have arisen in the field of the collection of zakat by a state.

2.2 The Theory behind the Collection of Zakat during the time of Prophet Muhammad

The historical school of thought, in particular the Islamic school of law has shown that since time immemorial zakat used to be collected by the Islamic state.^[67] Zakat, as a general obligation, had begun to be legislated during the period when Prophet Muhammad (peace be on him) was still in Mecca that is before his emigration to Medina.^[68] This school identified the earliest form of zakat as the zakat al fitr that is an amount paid in charity by Muslims after the end of the Islamic holy month of Ramadhan^[69] to the poor.^[70] When this law was set out the theory behind it was to aid the poor persons and slaves who as a result of having accepted Islam were being discriminated against and boycotted by the Meccan elites.^[71] However, at this point in history, the obligation to pay the zakat al fitr was purely on religious grounds.^[72] The money paid to the poor in charity was simply seen as an act of virtue and spiritual well being.^[73]

The payment of zakat became obligatory to the state after the Prophet established a government in Medina.^[74] The theory behind the obligatory nature of zakat at the establishment of a government, according to Yusuf Al Qaradawi was that the collection of zakat at that time became important in order to have the government function and cater for the welfare of its population.^[75] In that respect the collection of zakat by the state became important in order to ensure that wealth was distributed equitably.^[76] This theory of equitable wealth distribution has been alluded to in the Qur’an.

Chapter 9 verse 60 of the Qur’an states:

The alms are only for the poor and the needy, and those who collect them, and those whose hearts are to be reconciled, and to free the captives and the debtors, and for the cause of Allah, and [for] the wayfarer; a duty imposed by Allah. Allah is Knower, Wise.^[77]

This passage is important in jurisprudence as it identifies eight proper beneficiaries of zakat. It also goes to show that the objective of having the state collect zakat is in the alleviation of poverty and hardship and in ensuring that wealth is distributed to those who need it the most.^[78] The first group of recipients is the poor (fuqara in Arabic), those who are in material need. The second group of recipients, the needy (masakin in Arabic), is also similar.^[79] The theory behind having the first and second groups of zakat beneficiaries as the poor and needy is in the consideration that when the Prophet emigrated to Medina with his followers, they left behind all their belongings in Mecca and came to Medina empty handed.^[80] Thus one of the reasons for collecting zakat was to distribute it to these groups so that they would be able to meet the basic necessities of life.^[81] Consequently, it was important to first cater for these groups, since the objective of zakat is to alleviate poverty.

The third category of recipients is “those who collect them.” This has been interpreted as an allocation to cover the cost of collecting and distributing alms.^[82] Historically, when zakat was collected by Muslim states as a tax, this category was used to justify state administrative costs.^[83] The fourth category of recipients is “those whose hearts are to be reconciled.” It is not clear whether the hearts of this group are fully reconciled or in the process of reconciliation.^[84] Thus, one interpretation would include only members of the Muslim community (possibly recent converts).^[85] Another would include those who are sympathetic to Islam, but are not yet believers.^[86] This second interpretation when it comes to the distribution of zakat has been used to justify financial support for missionary activities and for potential converts.^[87]

The fifth and sixth rightful recipients are captives (al-riqab) and debtors (al-gharimin). Although debtors may include those who are enslaved, it may include others who are burdened by debt.^[88] The seventh category of zakat recipients is “for the cause of Allah.” Historically, this was used to support those who served as warriors for the defense of Islam.^[89] However, in the absence of a limiting hermeneutic in the fiqh^[90] literature, it could be used for a wide range of activities that support this broad purpose. The final category of recipients is the “wayfarers.” This seems to justify expenditure of zakat monies to support travelers.^[91] It may even apply to wealthy travelers if they do not have access to their wealth.^[92]

[...]

---

^[1] Monzer Kahf (1991), “Zakat: Unresolved Issues in Contemporary Fiqh”, in Development and Finance in Islam, Sadeq et.al (eds.). International Islamic University Press, at p. 174.

^[2] Islam has five primary obligations, or pillars of faith, that each Muslim must fulfill in his or her lifetime. They are as follows: Shahadah, profession of faith, is the first pillar of Islam, Salah, prayer, is the second pillar, Zakat, almsgiving, is the third pillar, Sawm, fasting during the holy month of Ramadan, is the fourth pillar of Islam and Hajj, the pilgrimage to Makkah, is the fifth pillar and the most significant manifestation of Islamic faith and unity in the world. The five pillars of Islam define the basic identity of Muslims - their faith, beliefs and practices and bind together a worldwide community of believers into a fellowship of shared values and concerns.

^[3] Hammudah Abdalati, “Islam in Focus,” (Al Jumah Press, Riyadh, Saudi Arabia, 1999) at p. 5.

^[4] That is the time the Prophet emigrated to Medina from Mecca in 622 CE and established a state. This has been explained in Yetkin Yildirim, “Peace and Conflict Resolution in the Medina Charter,” Peace Review: A Journal of Social Justice, 18:109–117 at p. 110.

^[5] Peace be on him is a phrase that practising Muslims often say after saying (or hearing) the name of one of the Prophets of Islam.

^[6] Ba-Yunus, Ilyas (1980) "A note on the Social Implication of Zakah in Modern Times" in Raquibuzzaman (ed.), Some Aspects of The Economics of Zakah, op. cit., pp. 179-183 at p. 179.

^[7] Thomas M. McDonnell, The West's Colonization of Muslim Land and the Rise of Islamic Fundamentalism, in The United States, International Law, and the Struggle Against Terrorism (2010) at p. 15.

^[8] Ba-Yunus, Ilyas (1980) "A note on the Social Implication of Zakah in Modern Times" supra note 6 at p. 3.

^[9] Fazlur Rahman, Islam and Modernity: Transformation of An Intellectual Tradition (University of Chicago Press 1982) at p. 32.

^[10] Islamic Republic of Pakistan, Zakat and Ushr Ordinance 1980.

^[11] Saudi Basic Law, Article 21. (“Zakat shall be levied and dispensed to its legitimate beneficiaries.”), Decree No. 61/51 Dated 5/1/1383 on Zakat. It is further elaborated by Ministerial Resolution No. 393 Dated 6/8/1370 (13/5/1950 CA).

^[12] The Constitution of The Republic of The Sudan 1998, Art. 10, The Law of the Zakat Fund of Sudan 1980 and the Zakat Law of 1989 and The Zakat and Taxation Law of Sudan 1984.

^[13] Constitution of The Republic of Yemen 1994, Article 21 (“The state shall collect the zakat and shall spend it through its legal channels in accordance with the law.”).

^[14] Salama, Abdin Ahmed (1990), “Voluntary and Compulsory Applications of Zakah: A Case study of Sudan 1405-1410 H”, paper presented at the Third International Conference on Zakah, Kuala Lumpur, Malaysia, May 14-17, 1990 at p. 4.

^[15] For example: Al Qaradawi, Yusuf (1973), Fiqh al Zakah, Mu’assasat al Risalah Publishers, 2nd printing Beirut (in Arabic), Ba-Yunus, Ilyas (1980) "A note on the Social Implication of Zakah in Modern Times" in Raquibuzzaman (ed.), Some Aspects of The Economics of Zakah, op. cit., pp. 179-183, Ghazali, Aidit (1988) "The Phenomenon of Zakah Payment Through Unofficial Channels - An Empirical Analysis", Kulliyyah of Economics, International Islamic University, Malaysia, Kahf, Monzer (1999), "Zakah: Performance in Theory and Practice", paper presented at the "International Conference on Islamic Economics Towards the 21st Century", Kuala Lumpur, August 1999. See also: Rahman, Saha Muhammed Habibur (1980), “Zakat- A Case for Equitable Distribution of Income and Wealth”, in K.T. Hosain et al (eds.), Thoughts on Islamic Economics, Islamic Economics Research Bureau, Dhaka, pp.94-101, Shirazi, Nasim Shah (2004) , “Prospects of Poverty Elimination through the Institution of Zakat: A Case of OIC Member Countries”, International Conference on Poverty in the Muslim World & Communities, IIUM, 14 – 1 December, 2004.

^[16] Such as Imam Abu Hanifa, Imam Malik, Imam Shafi, Imam Ghazali cited in Timur Kuran (2005), "The Absence of the Corporation in Islamic Law: Origins and Persistence", American Journal of Comparative Law 53, pp. 785-834 [798 799], Abu Hamid Al-Ghazali, Mysteries of Zakat, Translated by Nabih Amin Faris 65 (Ashraf Press, Lahore 1974), and Al Mawardi, Abu al Hasan ‘Ali bin Muhammad (1973) al Ahkam al Sultaniyyah (Circa 450), al Babi al Halabi Publishers, 3rd printing, Cairo (in Arabic).

^[17] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, Mu’assasat al Risalah Publishers, 2nd printing Beirut (in Arabic), at p. 749.

^[18] Jurisprudence has been defined as the theories or philosophies about law in D'Amato, Anthony, "The Relation of Theories of Jurisprudence to International Politics and Law" (2011). Faculty Working Papers. Paper 1, at p 1.

^[19] R.W.M. Dias, “Jurisprudence,” 5th ed. (Butterworths, London, 1985), at p.355.

^[20] This thesis is confined to the four main Islamic schools of thought, within the Sunni sect. These schools are the Hanafi, Maliki, Shafi’e and Hanbali schools of thought respectively.

^[21] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, supra note 17, at p. 749.

^[22] Malik Ibn Anas, Al-Muwatta of Imam Malik Ibn Anas: The First Formulation of Islamic Law, § 17 zakat (Aisha Abdurrahman Bewley trans., Madinah Press Inverness 2001 edition), Al Qaradawi, Yusuf (1973), Fiqh al Zakah, Mu’assasat al Risalah Publishers, 2nd printing Beirut (in Arabic), at p. 749, Al-Ghazali, A. (1989). On the Islamic Doctrine in Economic Development, Reflections on Islamic Economics Series, Al-Wafaa Printing and Publishing, Al-Mansoura, Egypt, Al-Hilali, Muhammad Taqi-ud-Din and Muhammad Muhsin Khan (1404H), Translation of the Meanings of the Noble Qur’an in the English Language, King Fahd Complex for the Printing of the Holy Qur’an, Madinah, Abu Hamid Al-Ghazali, Mysteries of Zakat, Translated by Nabih Amin Faris 65 (Ashraf Press, Lahore 1974), Al Mawardi, Abu al Hasan ‘Ali bin Muhammad (1973) al Ahkam al Sultaniyyah (Circa 450), al Babi al Halabi Publishers, 3rd printing, Cairo (in Arabic), Ibn Kathir (1997), Al Bidayah wa al Nihayah (Circa 774H), Hajar Publishers, Riyadh (in Arabic), at p. 437-39), Wael Hallaq, A History of Islamic Legal Theories: An Introduction To Sunni Usul Al-Fiqh 10-15 (Cambridge 1997) among others.

^[23] Quoted in Irshad Abdal-Haqq, Islamic Law: An Overview of its Origins and Elements, J. ISLAMIC L. AND CULTURE 27, 36 (2002) at p. 11.

^[24] Ibid at p. 11-12.

^[25] Marshall G. S. Hodgson, The Venture of Islam: Conscience And History In A World Civilization, Volume 1: The Classical Age of Islam 97, 98 (U. of Chicago 1985) at p. 102.

^[26] Malik Ibn Anas, Al-Muwatta of Imam Malik Ibn Anas: The First Formulation of Islamic Law, § 17 zakat (Aisha Abdurrahman Bewley trans., Madinah Press Inverness 2001 edition) at p. 47.

^[27] Ibid at p. 47.

^[28] Sheikh, Abdul Aziz (1980). Concept of Zakah: A survey of Qur’anic Texts and Their Explanation in Shari’ah and Contemporary Economics. In M. Raquibuzzaman (Ed.). Some Aspects of Economic of Zakat, pp. 3-68.

^[29] Siddiqi, S. A. 1968, Public Finance in Islam, S. H. Muhammad Ashraf, Lahore, Pakistan, at p.37.

^[30] Zayas, F. G. 2003, The Law and Institution of Zakat, Kuala Lumpur: The Other Press, at p.41.

^[31] Ataina Hudayati & Achmad Tohirin 2010, ‘Management of zakah: centralized vs decentralized approach’, Proceedings of Seventh International Conference – The Tawhidi Epistemology: Zakat and Waqf Economy at p. 350.

^[32] Ibid at p.352.

^[33] Hairunnizam Wahid & Radiah Abdul Kader 2010, ‘Localization of Malaysian zakat distribution: perception of amil and zakat recipients’, Proceedings of Seventh International Conference – The Tawhidi Epistemology: Zakat and Waqf Economy, at p.462.

^[34] Abu Sa'ud: Khutut Ra'isiyyah fi al-Iqtisad al Islami, (Kuwait, IFSO. 1978) at p. 68.

^[35] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, supra note 17, at p. 749.

^[36] Ramadhan is the 9th month of the Islamic calendar, and is observed as the month of fasting.

^[37] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, supra note 17, at p. 753.

^[38] What is meant by a saa’ here is the measurement of the Prophet which is four times the amount that may be held in the two hands of a man of average build. It is acceptable to give a saa’ of the local staple food such as rice etc.

^[39] Sahih Al-Bukhari, The Translation of The Meanings of Sahih Al Bukhari, Volume 2: Ahadith 876-1772 (Dr. Muhamad Muhsin Khan trans., Darussalam 1997)), Hadith number 1503.

^[40] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, supra note 17, at p. 754.

^[41] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, supra note 17, at p. 754.

^[42] Nisab is the amount one’s net worth must exceed for the Muslim owner to be obligated to give zakat.

^[43] Shariah refers to a body of Islamic law. In the Islamic state Sharia governs both public and private lives of those living within the state. Sharia governs many aspects of day-to-day life, including politics, economics, banking, business law, contract law, and social issues. Some accept Sharia as the body of precedent and legal theory before the 19th century, while other scholars view Sharia as a changing body, and include reform Islamic legal theory from the contemporary period.

^[44] Republic of Kenya, The Kadhis Court Act, Chapter 11 of the Laws of Kenya, Revised Edition 2008 (1998) Published by the National Council for Law Reporting, Nairobi, Section 5.

^[45] Republic of Kenya, The Constitution of Kenya, Revised Edition 2010, Published by the National Council for Law Reporting, Nairobi, Article 170 (5).

^[46] Ba-Yunus, Ilyas (1980) "A note on the Social Implication of Zakah in Modern Times" supra note 6 at p. 180.

^[47] Ibid at p. 180.

^[48] Hasanuzzaman. S.M. (1979) "Zakat and Ushr. Draft Examined", Islamic Order, Vol. 1, No. 3, 1979.

^[49] Ibid at p. 72.

^[50] Ba-Yunus, Ilyas (1980) "A note on the Social Implication of Zakah in Modern Times" supra note 6 at p. 181.

^[51] Ibid at p. 181.

^[52] Salama, Abdin Ahmed (1990), “Voluntary and Compulsory Applications of Zakah: A Case study of Sudan 1405-1410 H”, paper presented at the Third International Conference on Zakah, Kuala Lumpur, Malaysia, May 14-17, 1990 .

^[53] Ibid at p. 6.

^[54] Ghazali, Aidit (1988) "The Phenomenon of Zakah Payment Through Unofficial Channels - An Empirical Analysis", Kulliyyah of Economics, International Islamic University, Malaysia.

^[55] Ibid at p. 78.

^[56] Ibid at p. 82.

^[57] Othman, Jamil et al (1990) "Zakat: A Case Study of Malaysia", paper presented at the Third International Conference on Zakah, Kuala Lumpur, Malaysia, May 14-17, 1990.

^[58] Ibid at p. 3.

^[59] Russell Powell, Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor,__WASH. & LEE J. SOC. JUST. & C.R. Washington and Lee Journal of Social Justice and Civil Rights__(2009) at p.40.

^[60] Al Tahir, Abdallah (1997), "Zakat Proceeds and Developments of Society," in Monzer Kahf (Editor), Economics of Zakah, Book of Reading No. 2, Islamic Research and Training Institute, Islamic Development Bank Group, Jeddah, pp. 507-64.

^[61] Ibid at p. 510.

^[62] Ibid at p. 515.

^[63] R.W.M. Dias, “Jurisprudence,” 5th ed. (Butterworths, London, 1985), at p.355.

^[64] This thesis is confined to the four main Islamic schools of thought, within the Sunni sect. These schools are the Hanafi, Maliki, Shafi’e and Hanbali schools of thought respectively.

^[65] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, Mu’assasat al Risalah Publishers, 2nd printing Beirut (in Arabic), at p. 749.

^[66] Malik Ibn Anas, Al-Muwatta of Imam Malik Ibn Anas: The First Formulation of Islamic Law, § 17 zakat (Aisha Abdurrahman Bewley trans., Madinah Press Inverness 2001 edition), Al Qaradawi, Yusuf (1973), Fiqh al Zakah, Mu’assasat al Risalah Publishers, 2nd printing Beirut (in Arabic), at p. 749, Al-Ghazali, A. (1989). On the Islamic Doctrine in Economic Development, Reflections on Islamic Economics Series, Al-Wafaa Printing and Publishing, Al-Mansoura, Egypt, Al-Hilali, Muhammad Taqi-ud-Din and Muhammad Muhsin Khan (1404H), Translation of the Meanings of the Noble Qur’an in the English Language, King Fahd Complex for the Printing of the Holy Qur’an, Madinah, Abu Hamid Al-Ghazali, Mysteries of Zakat, Translated by Nabih Amin Faris 65 (Ashraf Press, Lahore 1974), Al Mawardi, Abu al Hasan ‘Ali bin Muhammad (1973) al Ahkam al Sultaniyyah (Circa 450), al Babi al Halabi Publishers, 3rd printing, Cairo (in Arabic), Ibn Kathir (1997), Al Bidayah wa al Nihayah (Circa 774H), Hajar Publishers, Riyadh (in Arabic), at p. 437-39), Wael Hallaq, A History of Islamic Legal Theories: An Introduction To Sunni Usul Al-Fiqh 10-15 (Cambridge 1997) among others.

^[67] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, supra note 3 at p. 749.

^[68] Ibid at p. 750.

^[69] This is the 9th month of the Islamic calendar, and is observed as the month of fasting.

^[70] Hasanuz Zaman, “Definition of Islamic Economics,” in Journal for Research in Islamic Economics, Vol. 1, No. 2, 1404H, pp.51 – 53.

^[71] Al-Ghazali, A. (1989). On the Islamic Doctrine in Economic Development, Reflections on Islamic Economics Series, Al-Wafaa Printing and Publishing, Al-Mansoura, Egypt at p. 19.

^[72] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, supra note 3 at p. 750.

^[73] Al-Ghazali, A. (1989). On the Islamic Doctrine in Economic Development, supra note 9, at p. 23.

^[74] Ibid at p. 31.

^[75] Al Qaradawi, Yusuf (1973), Fiqh al Zakah, supra note 3, at p. 752.

^[76] Al-Ghazali, A. (1989). On the Islamic Doctrine in Economic Development, supra note 9, at p. 24.

^[77] Surah 9:60 (The Quran).

^[78] Al-Ghazali, A. (1989). On the Islamic Doctrine in Economic Development, supra note 9, at p. 27.

^[79] Encyclopaedia of Islam, Zakat (C.E. Bosworth ed., Brill 2004), article on “Miskin”.

^[80] Ibn Hisham (1955) Al Sirah al Nabawiyyah (Circa 218H), al Babi al Halabi Publishers, Cairo (in Arabic) at p. 109.

^[81] Al-Ghazali, A. (1989). On the Islamic Doctrine in Economic Development, supra note 9, at p. 27 – 28.

^[82] Hanna E. Kassis, A Concordance of The Qur’an 431(Berkely 1983) at p. 266.

^[83] Powell, Russel, “Zakat: Drawing Insights for Legal Theory and Economic Policy from Islamic Jurisprudence,” at p. 7. Available at: http://ssrn.com/abstract=1351024 Last accessed on March 2012.

^[84] Ibid at p. 7.

^[85] See The Quran 9:60 (Yusef Ali translation) (“those whose hearts have been recently reconciled”).

^[86] See The Quran 9:60 (Pickthall translation) (“here reconciliation is not completed”).

^[87] Monzer Kahf, Ed., Economics of Zakat: A Book of Readings 20 (Monzer Kahf, ed., (Islamic Research and Training Institute 1997) at p. 31-32.

^[88] Abu Hamid Al-Ghazali, Mysteries of Zakat, Translated by Nabih Amin Faris 65 (Ashraf Press, Lahore 1974) (Al-Ghazali limits the amount that a debtor may receive to the extent of indebtedness in a separate discussion from manumission payments.).

^[89] Ibid., at p. 62

^[90] Fiqh is an Arabic word, which means Islamic jurisprudence. Fiqh is an expansion of the code of conduct (Shariah) expounded in the Quran, often supplemented by tradition (Sunnah) and implemented by the rulings and interpretations of Islamic jurists. Fiqh deals with the observance of rituals, morals and social legislation in Islam. There are four prominent schools (madh'hab) of fiqh within Sunni practice and two within Shi'a practice.

^[91] Powell, Russel, “Zakat: Drawing Insights for Legal Theory and Economic Policy from Islamic Jurisprudence,” at p. 8. Available at: http://ssrn.com/abstract=1351024 Last accessed on March 2012.

^[92] Abu Hamid Al-Ghazali, Mysteries of Zakat, supra note 26, at p. 63.