The second aspect of al-kifāyah is related to the Khaleefah being free from any disability which could affect his ability to rule. This is an important topic because in a future Rightly Guided Khilafah i.e. one in which the ruler is elected, the Khaleefah will be an elder statesman who would have held a military command and potentially fought in many battles prior to coming to office. Therefore, it’s possible he will have some injuries, scars and disabilities from his military service. Abu Sufyan who was commander of the Tulaqaa’[1] at the Battle of Hunayn, lost an eye during the subsequent Siege of Ta’if[2] even though he had only been Muslim for 4 weeks!

Al-Mawardi listed three types of physical defects[3] which may exclude the Khaleefah from contracting the bay’ah:

1. a deficiency in the senses
2. a deficiency in his limbs
3. a deficiency in his mobility

There are no specific texts for these, so whatever incapacity causes the Khaleefah to be unable to fulfil the task of ruling would be applicable here. Taqiuddin an-Nabhani says, “it cannot be said that losing limbs from his body necessitates removal or not, in the same way that it cannot be said that if he is afflicted by a specific illness it necessitates his removal or not. This is because there is no text regarding this at all. Rather the Shari’ah rule is that the one incapable of executing the actions which they have been commissioned for, necessitates their removal, whatever the reason for this incapacity.”[4]

This topic falls under manat ul-hukm (reality of the rule) and is for the experts to decide upon, with the Mazalim Court providing the final judgement. Taqiuddin an-Nabhani says, “As for how should the capability be defined, this requires examination since it could be connected to bodily or mental illness etc., and for that reason it is left undefined for the Mazalim Court to confirm that, for example, the candidates for the Khaleefah fulfill the necessary requirements.”[5]

Al-Mawardi’s list of disabilities which affect the Khaleefah’s ability to rule

Many of the disabilities that al-Mawardi lists here can be mitigated to some extent through advances in modern technology. Speech to text for those with no hands, prosthetic limbs, hearing aids and spectacles etc, were not available in the 11^th century when al-Mawardi laid down his list of disabilities that affect the Khaleefah’s ability to rule.

It should be noted that kifāyah is not a pillar (rukn) of the bay’ah. This means if the bay’ah has been legally convened to a Khaleefah, and then during his term of office something occurs which affects his ability to rule, the Khaleefah will remain in office while under investigation. If the disability is serious enough then it will make the bay’ah fasid (defective) and the Mazalim Court will issue a judgment forcing the Khaleefah to leave office. Until this point though, the Khaleefah remains in office and obedience to him is obligatory. This is different to a rukn of the bay’ah being violated such as the Khaleefah becoming a murtad (apostate), irreversibly insane or captured and imprisoned by an enemy with no immediate hope of release. In these cases, the bay’ah becomes void (batil) and the Mazalim Court issues an immediate annulment of the contract. But even before the judgment from the Mazalim, there is no obedience to the Khaleefah because there is no bay’ah.[6] This protects the state and interests of Islam, because the Khaleefah under duress in a foreign prison could issue orders which seriously affect the interests of the state, or an apostate Khaleefah could issue executive orders which contradict Islam.[7]

It should be noted that al-Mawardi makes a distinction between contracting the bay’ah with the disability, and continuing in office with the disability. Since the bay’ah is a contract then it is either sahih (correct), batil (void) or fasid (defective). This will occur at the time of contracting the Khaleefah or while he is in office. Taqiuddin an-Nabhani says, “all the texts which have been related in regards to the conditions of the Khaleefah; they are comprehensive texts which encompass the perpetual characteristics that are necessary for the one described, which indicates that they are conditions of continuation and not simply conditions for the taking the position alone.”[8]

Disability	Excluded from contracting the bay’ah	Excluded from continuing in office
Fainting	no	no
Temporary loss of intellect (mental illness)	yes	yes if severe, otherwise no
Permanent loss of intellect (brain damage)	yes	yes
Weak-sighted	no	no
Partial blindness (unable to recognise people)	yes	yes
Total blindness	yes	yes
Smell	no	no
Taste	no	no
Partial deafness	no	no
Total deafness	yes	yes
Speech impediment	no	no
Unable to speak (mute)	yes	yes
Blemishes, scars disfigurement[9]	No but some ulema say yes	no
Loss of private parts	no	no
Loss of both ears	no	no
Loss of one hand	yes	No but some ulema say yes
Loss of both hands	yes	yes
Loss of one leg	yes	No but some ulema say yes
Loss of both legs	yes	yes

Notes

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[1] Tulaqaa literally means ‘the freed ones/ and the term specifically applies to those who were freed and pardoned from the Quraish when Makkah was conquered

[2] al-Baladhuri, ‘The Origins of the Islamic State’ a translation of kitab futuh al-buldan. Translated by Philip Hitti, Gorgias Press, 2002, p.208

[3] al-Mawardi, Op.cit., p.30

[4] Taqiuddin an-Nabhani, ‘An Introduction to the Constitution and its obligation’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah, Article 38, p.123

[5] Ibid, p.73

[6] Ibid, p.124

[7] Ibid, p.124

[8] Ibid, p.123

[9] Some scholars said it would lead to mockery of the Khaleefah and lessen the majesty of his office.