Daily Trust (Abuja)

Katsina Adulteress: the Way Out

OPINION

July 17, 2002

Taufiq A. Husseini And Hadiza Hamza

 After the famous Safiya adultery case of Sokoto, another adultery charge is rippling the people, this time in Katsina State. However, in our bid to finding the truth of this matter certain things should be considered so as not to discredit the nascent Shari'ah law in some northern states.

 In the first place who brought the pregnant woman facing the adultery charges in a Shari'ah court in Katsina to the attention of the court? Was it the Hisbah, the police or did the woman come out of her own volition? If it were the police or the Hisbah groups who brought her to the court then the process is faulty because they are not supposed to spy on her. It has never been the practice of the Rasul SAW. For example the case of el-Ghami-diyyah during the life of the Prophet SAW is a good precedent. The woman lived within the ummah and nobody reported her pregnancy despite her not being married. She however reported herself to the Rasul out of her deter-mination to earn Allah's forgiveness. The prophet told her to go and give birth first. She came back after she had delivered and he said she should go and breastfeed the child. Afterwards el-Ghamidiyyah still came back and then the sentence was carried out.

 In the case of Ghamidiyyah, scholars have observed that she was sent back three times in order to withdraw her statement but she insisted, a prominent companion of the prophet was asked as to why Rasul was sending her back he said it was the Rasul's wish that she withdrew her confession. Had it been she did not come back, the Rasul would not have sent for her.

 It should be noted that if this woman had withdrawn her statement, or did not come back the Rasul SAW would not have assigned people to find her to be sentenced and executed. In the same vein, the case of the adulteress in a Katsina Shari'ah court should be reviewed accordingly. We call on the judges to be very careful, as any mistake is capable of soiling the image of Islam.

 Secondly, those who say there is no injunction of stoning the adulterer or adulteress in the Holy Qur'an have to go back and study the Qur'an and Hadith because therein lies penalty of stoning adulterers to death.

 Therefore the verdict of stoning to death passed on an adulteress in Katsina is correct and it derived from Qur'an 24: i.e. Surat el-Nur, however, a Naskh, i.e. abrogation of recitation had occurred but not an abrogation of the punishment. This verse reads as follows: Al Shaykhu wal shaykhatu idha zanaya farjumuhuma albattata, nakalan min Allah . . . "Married man and woman if found committing adultery be both stoned to death".

 And the second rightly guided caliph Umar Bin Khattab (RA), in Sahih Muslim vol 3, further explained it on pp 911-922 nos 4191 - 4225, contrary to the claim of some people that the law was enacted by Umar as one Sanusi Lamido put it some time ago in Weekly Trust of November 9- 15, 2001. Umar (RA) could not enforce what Allah or his prophet did not allow, but he rather averred what he saw the prophet doing by simply stating:

 "The Rajm (stoning) is prescribed in the Qur'an to the married men and women who fornicate, and later confesses or pregnancy appears . . . I fear one day will come when some will reject this injunction claiming that we do not see it anywhere in the Qur'an."

 Moreover, during the lifetime of the Rasul SAW, a man, Ma'iz Bin Malik el-aslamy, committed adultery and was stoned. Another event was when a group of Jews came to the Prophet Muhammad SAW and asked him to give a verdict on one of their leaders caught fornicating. They went to the prophet because they did not want to stone the man because he was one of their leaders, they went to the prophet to get a lesser punishment, the Rasul SAW made them read from the Torah (Old Testament) and the verse was found beneath the hand of one of them who tried to barricade it from being seen, the two Jews were sentenced to death by stoning and the execution took place on the order of Prophet Muhammad SAW.

 From the above one can clearly make out how wrong Sanusi Lamido was to attribute the Rajm (stoning) to Umar Bin Khattab, that was a misconception and the fear is that many Muslims without the knowledge of Naskh (abrogation) could easily be misguided.

 It is pertinent to understand that it is not in the interest of Shari'ah to amputate, stone, cane or even imprison, but the main objective is to deter people from committing offences. The Shari'ah is also not supportive of witch hunting individuals. As such, it made certain rules as to the reporting of any act of adultery. These are: The testimonies of four reliable witnesses who saw the act being committed at the same time, and must have witnessed the penetration of the female sexual organ by the male sexual organ, (nothing less than that will be accepted in any Shari'ah court); Self confession.

 It should be noted that Shari'ah made the chances of convicting fornicators wrongfully slim. How possible is it that four men will stumble onto the adulterers no matter how dull the persons involved in the act of are? Indeed it is quite unlikely. Hence the Shari'ah will not accept anything less than that, because it is better to err in forgiveness than to execute an innocent soul. Moreover where only three persons saw as required and the fourth person admits to only seeing the accused naked or laying on the bed, the three other persons stand liable to punishment which will teach them not to poke their noses into other peoples' business.

 The second factor is self-confession, this has a lot to do with one's Iman (faith) and how one fears Allah (Taqwah), i.e. the fear of being exposed on the Day of Judgment. In this case, one can voluntarily seek to cleanse oneself from ones sins by confessing to a Shari'ah court judge. Knowing the consequences, one prepares to accept the outcome of one's actions be it stoning or caning. It should be noted that if the one confessing however withdraws the statement, or the pregnant unmarried lady shows evidence of being overpowered or raped, both would not be convicted. An example was when the Rasul SAW ordered Ma'iz Bin Malik to be stoned. Ma'iz ran away when he felt the pain of the stones and requested that he be taken back to the prophet SAW but the people refused because there was no alternative order from the Rasul SAW. Afterwards, they reported the incident to the prophet and he wished they had returned the man to him, to withdraw his confession. Likewise the pregnant unmarried woman cannot be found guilty of adultery, as her pregnancy does not necessarily prove that she committed adultery. During the time of the caliph Umar RA, he held that the pregnancy of an unmarried woman was sufficient proof for zina. However in this contemporary world the Ulamas have reached a consensus that pregnancy alone is not sufficient proof of zina. The reasons are: in the face of increasing advances in science and technology, a test tube baby cannot be said to be a product of zina. The process involves clinically introducing sperm into the ovum in the laboratory; sperm deposited between the thighs of a woman could roll down into her; she could be maliciously intoxicated and raped.

 Indeed there are several more ways in which an unmarried woman may get pregnant without necessarily com-mitting zina. And it is known throughout the four Islamic schools of thought that whenever an ambiguity, however little, occurs in the process of executing a Hadd (stoning, amputation etc) the judge should not pass the hadd punishment but look for other ways to punish the accused.

 In conclusion, in the interest of Islam and its legal code the Shari'ah, we will like to urge all Muslims to avail themselves of Islamic religious knowledge. To the Katsina Shari'ah court handling this case, we wish you Allah's guidance in your ruling. This case and all evidence brought before the court should be reviewed critically before passing a verdict. This is because after the Safiya case (In Sokoto), another mistake could portray Islam and Shari'ah as unserious and biased against women, as the west is always portraying.