The viability of cash waqf models under the existing laws in Nigeria : a focused study on corporate, Takaful and cooperative models

Abstract

This research examines the prospects for implementation of cash waqf models in Nigeria without violating any law. As there are many cash waqf models being implemented across the globe, this study focuses restrictively on three key models, namely; Corporate Cash Waqf Model; Islamic Insurance (Takaful) Model [which are in two sub-models of Takaful Plan Model and Waqf Fund Wakalah Model]; and Cooperative Cash Waqf Model (Waqf Ta’wun Ijtima`i). While Cash Waqf simply means the dedication of an amount of money as waqf (Islamic endowment), its models are the various means, methods and schematic plans and practices by which it is being implemented. The models may therefore vary from one jurisdiction to another, depending on each legal regime, among others. Thus, the fact of a successful implementation of any model in any country cannot justify introducing and implementing it without due regard to the legal reality in the other country. To this extent, this study has explored the existing laws in Nigeria to determine if the three focused models can be implemented without legal inhibitions. It is found that implementation of the focused Cash Waqf Models is viable under the existing laws in the nation. This can be realised by exploring enabling legal tools like the 1999 Constitution; Company and Allied Matters Act (CAMA), 1990; Insurance Act, 2003; National Insurance Commission (NAICOM) Act, 1997; Guidelines for Takaful-Insurance Operation, 2013; and, the Cooperative Laws of various States. Based on these laws, the Islamic Finance Institutions to play active role in the scheme will include Banks, Microfinance, Takaful Companies and Muslim/Islamic Cooperative Societies. To properly employ corporate institutions like Company Limited by Shares (Ltd/Plc.), Company Limited by Guarantee (Ltd/Gt) or Incorporated Trustees to implement cash waqf, the research identified the need for a Separate Cash Waqf Fund to be set up to avoid vesting the cash waqf in the corporate bodies while they only play the roles of waqf managers. For desired improvements and better legal facilitation of the implementation of the focused Cash Waqf Models in the country, it is recommended that various States should enact Waqf Laws in which adequate provisions are made for Cash Waqf with approval for the focused Models. In States where it may be difficult to specially enact such Laws, such as States in the Southern Region, Charity and Endowment (C & E) Laws is recommended. In such C & E Laws, specific provisions should be made for “Religious Charity and Endowment” in which necessary provisions are made for “Islamic Religious Charity and Endowment (Waqf)”. Significantly, this research has made far reaching findings and their consideration will provide useful guide on implementation of the focused Cash Waqf Models under the existing laws in the country. The research has been actualised by qualitative research methodology, content analysis; semi-structured interviews; observations; discussions; internet explorations and field work. The interviewees included Law Lecturers and Students, Islamic Studies Lecturers and Students; Community Leaders; Philanthropists; Lawyers; Judges; Court Officials; Muslim Scholars; Imams; as well as Non-Muslims. Though there is still room for some reforms to put in place facilitating laws, yet it can be safely concluded that, based on the findings from this research and the available enabling laws, Corporate Cash Waqf Model, Islamic Insurance (Takaful) Cash Waqf Model and Cooperative Cash Waqf Model are viable for implementation under the existing laws in Nigeria.