Weekly Trust   Kaduna

Amina: What next?

OPINION

August 23, 2002

Abdul-Azeez Suleiman

 The Upper Sharia Court in Funtua upheld a sentence of death by stoning handed down to 24-year-old Amina Lawal by a lower court at Bakori, thereby opening another hornet's nest in the controversy surrounding the extension of the application of the sharia beyond the family law confines.

 Amina Lawal, a divorcee, was found with a child without a known husband and sentenced to death by stoning by a Sharia Court in Bakori in accordance with Islamic law principles.

 This judgment drew a lot of uproar from national and international groups who saw it as a breach of Amina's fundamental right as a human being. The judgment has also raised a number of questions that require answers, which if not properly addressed could derail the confidence hitherto reposed in the ability of the present crop of leaders to implement the sharia legal system justly.

 Foremost on the list of discontentment is the way a man named by Amina as being responsible for the pregnancy was discharged by the court without allowing her to adduce evidence to prove her assertion.

 Following this is the issue of poverty and illiteracy, which has not been addressed by the authorities before embarking on the implementation of the criminal aspect of the sharia.

 And then there is the uncertainty on the fate of Amina's newborn baby if eventually the mother is stoned to death.

 The dilemma of Amina and her family began four months ago when she gave birth to a baby girl albeit out of wedlock.

 Checks in Kurami village revealed that Amina took the baby to the village head and informed him that one Yahaya Garba, a; married man had put her in the family way. She also complained that the man has refused to provide for the child since her birth. She said Yahaya did not buy a ram for the naming nor did he make any arrangement to give the baby a name.

 Conforming this story, Malam Yahaya Sani told Weekly Trust that consequent upon her complaint, the village head summoned a meeting of elders and invited the man.

 "She confessed before this gathering that she had put to bed outside wedlock," he said.

 He narrated that she mentioned one Yahaya Garba as the owner of the pregnancy, and that Yahaya actually accepted the deed and even made a down payment for the naming arrangement.

 Weekly Trust also gathered that apparently not satisfied with the arrangement, Amina took the matter to the police in Bakori.

 At the police station, Yahaya Garba confessed to the ownership of the pregnancy. But to Amina and everybody's dismay he denied having anything to do with the pregnancy.

 And as if to aggravate the matter, the Sharia Court in Bakori merely asked the man to take an oath and acquitted him while Amina was convicted and sentenced to death by stoning.

 This singular act had raised a stir among the village populace in general and Amina's immediate family in particular.

 "Surely our Allah is a just being. They should not attribute injustice to Him," mumbled Fatima, Amina's sorrow-stricken 50-year-old mother.

 These were the only words Fatima was able to utter before breaking once more into sobs.

 But Amina's elder brother and guardian Malam Lawal Suleiman was able to express gratitude to all the individuals and groups involved in the struggle for the freedom of his sister.

 He expressed shock that a court, which claims to be implementing a just system, should turn around to make an obviously one-sided decision.

 "The judgment is far from being just. This is not the path ordained by Allah," he said.

 The hopes of Amina and her family were boosted when various human right groups filed an appeal on her behalf at the upper court, Funtua.

 The grounds of appeal filed on 28th March 2002 by Aliyu Musa Yauri, learned counsel to the appellant read in part that the learned trial judge erred in law by finding Amina guilty as he did.

 Counsel to the appellant averred that the judge was in error when he convicted Amina while the necessary properties that constituted the offence of zina (adultery) were not properly explained to her even though she was in all respects an illiterate.

 Another ground of appeal challenged the procedure adopted by the trial judge when he sentenced Amina "even before her pleas were taken," and that she was not allowed the right to adduce evidence in her defence.

 The appellant claimed that the court did not accord the accused the recommended benefit of lizar (resolving every element of doubt in favour of the accused.)

 Further grounds challenged the jurisdiction of the court as according to the appellant, "the police or any authority has no powers to arraign a Muslim on charges of zina (adultery).

 The appeal also asserted that the judge erred in that he solely based his decision on the fact of the manifestation of pregnancy and or child delivery, which is not sufficient proof of zina.

 The appeal court presided over by Alhaji Aliyu Abdullahi Katsina on Monday, 19th August, 2002 dismissed all the grounds of appeal and upheld the decision of the court below.

 Dismissing the appeal, Qadi Abdullahi said that he had found no substance in all the grounds relied upon by the appellant.

 The judge said he drew authority for his decision from Muwatta Malik page 731 where the punishment of death by stoning was prescribed on any Muslim found guilty of adultery.

 He also relied on Ibn Kathir p. 381 where the Prophet (PBUH) was said to have directed one Unaiz to find out if a certain lady had actually committed adultery with her houseboy and get her stoned to death if confirmed.

 Another authority relied upon by the appeal court was Subulus-Salami volume 4 page 1207 in which thee penalty of death by stoning (Rajmu) was enjoined on any adulterer who confessed even once to the offence.

 The judge then disallowed the appeal ordered Amina to remain in the custody of her step father (Idris) pending the weaning of her baby.

 What happens to the baby afterwards is the pressing question that remained unanswered even by the court itself, as the judge of the upper sharia court simply told Weekly Trust that it was not the concern of the court.

 To most people who spoke to Weekly Trust at Kurami village, the government ought to make adequate provision for the welfare of the baby who from all intents and was innocent.

 However, Amina's brother has offered to take charge of the baby when the need arises.

 "I do not have any option. The child is innocent. The world must not be harsh to her for merely being born no matter the circumstances," said Lawal Suleiman.

 But it would take a lot of time and energy before Nigeria may witness its first execution by stoning for the human right groups and a section of the ulamah appear to be geared for a long-drawn battle for Amina's freedom.

 Weekly Trust learnt that while Amina's counsel has vowed to challenge the judgement to Supreme Court level, the human right groups have presently whisked Amina out of reach.

 "She only peeped in after the judgment and said goodbye to her mother before she was taken away to Abuja," explained Malam Idris her stepfather. 

Africa News

27/08

NIGERIA: Sharia: Waiting for the Faithfuls' Stones

The Shaira debacle has once again put Nigeria on global spotlight following last Monday's ruling, which confirmed the death sentence by stoning passed on Amina Lawal, a nursing mother in Katsina State, writes Funso Abdullahi, who has been following public reaction on issue.

 Throughout the 23 years that Prophet Muhammed preached the gospel of Islam, the only occasion where anyone was stoned to death was attributed to a weak hadith(saying of the prophet) which means that the authenticity of the hadith is doubtful.

 In the hadith where it was said the prophet ordered the stoning of an adulterer it was reported that "Ma'iz son of Malik came to meet the prophet and said 'make me clean'. The prophet said to him 'woe to thee, go back, ask for God's pardon and repent before him'. The man moved a short distance and returned to again request to be made clean.

 The prophet gave him the same reply as he had given him in the 2st instance but when he returned the fourth time, the prophet asked, "of what should I make you clean?" The man had replied: "of adultery". The prophet then asked if the man taken some intoxicant? Thereupon a man stood up and smelled the mouth of Ma'iz to find out that he was sober.

 The prophet asked if he had committed adultery and he replied in the affirmative. Prophet Muhammed then ordered that the man be stoned to death. When people began to throw stones at him he ran away, but Ma'iz was overtaken and stoned to death. When the prophet was informed about this scenario, he was said to have queried the man's assailants why they did not allow him to go free.

 In the sharia legal system now operational in 12 northern states of Nigeria, two women have been sentenced to death by stoning for committing adultery, in the last 2 years that the law has been in effect. The first, Safiyatu Hussaini Tungar was later freed by an appeal court in Sokoto as she was said to have committed the offence before the introduction of sharia in the state.

 The latest is that of 31-year-old Aminat Lawal, whose death sentence was, last week upheld by a sharia court of appeal in Funtua, Katsina State.

 The upper court presided over by Abdullahi Aliyu Katsina in confirming the sentence said: "We hereby uphold the judgment of the lower Bakori Sharia court that decreed that you be sentenced to death by stoning".

 Amina was found guilty of giving birth to a baby girl more than nine months after she was divorced indicating that she had committed adultery.

 The men with whom both women allegedly committed the offence were discharged after they swore by the Holy Quran that they had nothing to do with the women. This decision has left many wondering why paternity tests were not carried out on the men to determine if they were the fathers of the children born by the women.

 This decision by the court has made The National Coalition on Violence against women to conclude that the Northern states are upholding a pattern of selective punishment and discrimination against women, under the guise of religion.

 The coalition is worried that if this pattern of abuse of women's right is not nipped in the bud, it will mark the opening of a flood gate of more of such flagrant abuses of citizen's right to life, freedom from torture and other cruel, inhuman and degrading treatment".

 Using the quoted hadith on Ma'iz to buttress his view on the illegality of stoning a person accused of committing adultery to death, Dr. Muhammed Tawfiq Ladan an Ilamic scholar, noted that most modern Muslim jurists and scholars hold the opinion that the only punishment for adultery should be a hundred strokes of whip and that stoning to death was based on no credible authority since it cannot be found in the Quran.

 He said at a public lecture organised by the Women Advocate Research and Development Center (WARDC), that the case of Ma'iz: "had been considered a weakest kind of authority or hadith attributed to the prophet(PBOH) which cannot be taken to have abrogated a Quranic provision on the matter of proof and on the issue of punishment for adultery.

 Although the Holy Quran in 17 v 32 states that: "Nor come nigh to adultery, for it is an indecent deed and an evil way", a Muslim jurist and constitutional expert, the late Sayyid Maududi, noted that the punishment for an adulterer or an adulteress applies to: " a society where every trace of suggestiveness has been destroyed, where mixed gatherings of women and men have been prohibited, where public appearance of painted and pampered women is completely non-existent, where marriage has been made easy, where virtue, piety and charity are current coins and where the remembrance of God and the hereafter is kept ever fresh in men's minds and hearts.

 "These punishments are not meant for that filthy society where secular excitement is rampant, where nude pictures, obscene books and vulgar songs have been common recreations, where sexual perversions have taken hold of the cinema and all other places of amusement, where semi -nude parties are considered the acme of social progress and where economic conditions and social customs have made marriage extremely difficult".

 There is also the issue of how much right a state has to impose such laws on people who are deprived educationally, economically and otherwise. A Lagos-based lawyer, Abiola Akiyode-Afolabi, wondered if governors of the northern states of Nigeria have taken care of all the pressing economic matters in their states.

 She described the current situation as misapplication of the sharia, insisting that: "for sharia to be applied at all, a state must be a welfarist state, not a state that does not care about what happens to its citizens, there are millions of Al majiris in the north. what have the northern governors done about that?"

 Expectedly, since the verdict on Amina Lawal, local and international condemnation have poured in.

 Nobel laureate Professor Wole Soyinka, called for sanctions on states in the implementing the sharia legal system in Nigeria. Soyinka told the British Broadcasting Corporation (BBC) that the actions " which have been taken by these states are acts of breaking up the nation. That is why I insist that the federal government has to take a very firm stance on this.

 "Either it is agreed that states can unilaterally break off from the instrument that binds us together - which means that it is no longer one nation - or else [we] must insist that there must be... punitive internal sanctions against states which take such action that make them de facto independent states - theocratic states - within what is a secular constitutional arrangement".

 He insisted that the application of sharia, as it is being instituted in a number of states in Nigeria was against the country's constitution. Reacting to the sentence the Civil Liberties Organisation (CLO), a human rights group in Nigeria, expressed shock at the judgment. The statement titled: 'Do not let her die", "the absurd verdict of the sharia court of appeal in Funtua, Katsina State, confirming the sentence of death by stoning on Ms Amina Lawal. the young nursing mother accused of having a child out of wedlock"

 WARDC also condemned the judgment of the upper Sharia court describing it as legal eccentricity and a distress to the Nigerian legal system.

 WARDC described the judgement as misguided, inhuman, barbaric, anti-Islamic and an embarrassment to any democratic and civilised society.

 The centre noted that in March, the Attorney-General of the Federation and Minister of Justice, Mr. Kanu Agabi, wrote to the 12 northern states which had adopted the sharia penal code that their action was unconstitutional and wondered why "despite this declaration, the said northern states have remained adamant culminating in the present state of uncertainty".

 The body then condemned the lukewarm disposition of the attorney-general and called on him to take concrete steps to challenge the sharia penal code which they said has become a threat to the nascent democracy".

 Mrs. Afolabi said we have a constitution that is conflicting. Section four of the Nigerian constitution gives the State houses of assembly the power to formulate laws, while section 10 says Nigeria is a secular state while another section talked about the sharia law thus in the constitution there is recognition of the sharia.

 She explained that because the state governments have a right to make laws in the constitution, they have hinged the implementation of this law on that part of the constitution.

 Unfortunately, Afolabi said the constitution restricts sharia implementation only to civil matters concerning marriages, divorce among others, it did not expand to the issue of criminal law.

 She expressed the fear that sharia proponents meant business this time around and may want to use Amina's case to serve as a precedent as the upper sharia court in Katsina State in throwing away the appeal maintained that sharia is a divine law which cannot be questioned.

 Afolabi blamed the federal government for treating the issue of sharia as is being implemented in these 12 states with levity saying: "the federal government initially felt the issue will fizzle away".

 She reiterated that it is either the federal government takes the battle up front and take it to the supreme court to be resolved once and for all.

 The national co-ordinator emphasised that those who are in support of the judgment always find an excuse in the claim that the Nigeria constitution provides for capital punishment and asked that Nigeria would have to examine its laws again.

 Afolabi noted that there were findings that even in the day of Prophet Mohammed the stoning to death for adultery was applied only once and it was in the case of a man who came to report himself that he had committed adultery. She lamented that the federal government has to wait for somebody to await execution before it takes the sharia issue seriously.

 The National Coalition on Violence against Women in a release signed by its co-ordinator, Josephine Efah-Chukwuma, expressed disgust at the obvious discrimination against women in the 2 cases in view.

 The coalition noted: "It is now evident that the sharia law, as practised by states that have adopted it has no regard for human rights in general and women's right in particular.

 "The federal government cannot afford to sit on the fence and watch as the right of some citizens are abused more than others"

 The coalition informed that this is against Chapter 4 section 42(1) of the 1999 constitution which prohibits discrimination based on ethnic group, place of origin, sex, religion, political opinion, among others.

 The constitution, the coalition said further, prohibits federal or state religion as stipulated in Chapter 1 section 10.

 It noted further that Nigeria is a signatory to international human rights instrument, which prohibits torture and any other form of cruel and inhuman treatment and any form of discrimination against women.

 "We therefore call on the federal government to guarantee the physical and physiological integrity of Amina Lawal and her family by ensuring that the sentence is not carried out.

 "It should take necessary steps to ensure that the constitutional rights of every Nigerian (especially women) to freedom from discrimination, torture, cruel, dehumanising and degrading treatment are protected."

 Also a coalition of human rights organisations comprising Campaign for Democracy (CD), Civil Liberties Organisation (CLO) and Committee for the Defence of Human Rights (CDHR) last Thursday vowed to resist any attempt by the sharia court to execute the judgment on Amina, describing it as "barbaric, retrogressive, unjust, uncalled for and thereby unacceptable."

 CDHR in a statement signed by co-ordinator, Women Defence Project (WDP), Joke Adisa, said that it condemns "in strong terms the entirety of the animal-like ruling which in itself is a violation of the constitution of the Federal Republic of Nigeria."

 According to the organisation, "Section 388 of the penal code act/chapter 532 law of the Federal Republic of Nigeria which operates in the northern part of the country readily provides a maximum of 2 years imprisonment, option of fine or both against a woman found guilty of committing adultery."

 It argued that section 387 of the same act subjects Yahaya Muhamad whom Amina committed the act of adultery with to the same punishment but expressed its surprise that he has been found not guilty.

 "We strongly aver that since Nigeria as a secular state has a constitution which provides for the rule of law, there ought to be no justification for any isolated punishment," said the CDHR.

 CLO, in a release signed by the acting executive director, Chima Ubani, said Nigeria would be laughed to scorn in the comity of civilised nations and its already not-very-healthy image abroad further tarnished if a young woman would be stoned to death for having a baby.

 The group called on the Federal Government to take concrete steps to defend the constitution of the country which is being crudely subverted by the action of some state governors who illegally extended the jurisdiction of sharia to cover criminal justice.

 The European Union also said on Thursday that it planned to lobby Nigeria over the sharia appeal court ruling on Amina.

 "Our position on the death penalty is clear: we are against it. And we are concerned by this case as we would be by any other cases in any other countries on a similar issue," said a European Commission spokesman.

 France and Sweden also expressed concern over the ruling. "We urge (Nigerian) authorities to grant clemency," the French foreign ministry said in a statement, adding that it was "extremely preoccupied" by the ruling.

 And Swedish foreign minister Anna Lindh said: "I am greatly dismayed that a woman has been sentenced to stoning in the year 2002. I have raised the issue of capital punishment with the Nigerian government on a number of occasions, most recently at my meeting with foreign minister, Sule Lamido in Stockholm earlier this year," she said.

 But sharia is not all about cutting limbs and stoning people to death. Dr. Ladan explained other aspects of the sharia law, which he said is meant to concretise the ideals of the Islamic faith in practical life. He said the first and foremost basic right in the sharia law is the right to life and respect for human life.

 He quoted a Quranic verse which says "do not kill a soul which Allah has made sacred except through the due process of law".

 Therefore, he noted that due process of law requires a competent court of law to decide on the forfeiture on the right to life acting in accordance with the procedure laid down by the most authoritative guidance and source of law in Islam which is the Holy Quran.

 Ladan informed that under the sharia law, women have specific rights which include right of equality in status, worth and value, right to education, right to own and dispose of property, right to inheritance and dowry, right to custody of children especially minors after a divorce, if the wife dies or if she is not mentally and physically fit, the right is transferred to her mother or her other female relatives. 

 Niger cleric angered by 'fierce' int'l reaction to Sharia death sentence

 Sheikh Boureima Abdou Daouda, a rector at the University of Niamey's mosque, on Monday railed at international condemnation of the Muslim legal code, Sharia, after a woman in neighbouring Nigeria was sentenced to death by stoning under the system.

 "In Nigerian states that apply Sharia, many good things happen but you never hear about them. Only the forbidding, castigating side of Islam is ever shown," Daouda said in a message sent to AFP.

 "Nigerian Muslims have chosen to apply the Sharia, and they are free to do so," he said, explaining that the Muslim criminal code "only represents an infinitesimally small part of the Sharia."

 In the case of Amina Lawal, the young mother who was condemned to die by stoning for bearing a child out of wedlock, Daouda said he believed the sentence should not be carried out until "all possibilities for appeal" have been exhausted.

 Among those, he said, were establishing whether or not Lawal had fallen pregnant after being raped, if she was already pregnant when she left her husband or if she had been forced into prostitution "to survive".

 The father of Lawal's eight-month-old daughter must "also assume his responsibilities," Daouda said, before railing at the "fierce reaction" from the international community over the death sentence handed down against Lawal.

 "You'd think it is the only death sentence pronounced anywhere in the world," he said.

 "Why doesn't the international community protest as loudly ... to stop the executions of those on death row in the United States?" he asked, or "the massacres carried out every day" by Israelis against Palestinians, or even "the American bombs and missiles that are falling on Afghan civilians."

 More than 90 % of the people in Niger are Muslim, but the issue of the Sharia provokes vivid debate in the impoverished country, where church and state are officially separate.