Sharia Appeal Court Frees Safiya

March 26, 2002

Agaju Madugba, Ahmed Oyerinde

Sokoto, Abuja And Kano

Reprieve finally came for Safiya Husseini Tungar-Tudu when the Sokoto State Sharia Court of Appeal yesterday upturned the judgment of death by stoning passed on her by a Gwadabawa Upper Sharia Court.

In a quick reaction, Sokoto State Governor, Alhaji Attahiru Bafarawa, said the court's decision is a victory for Sharia law.

Safiya was last October sentenced to death for adultery by the lower court while her co-accused, one Yakubu Abubakar was discharged and acquitted. She, however, appealed the decision of the court.

But in its ruling yesterday, the Sharia Court of Appeal presided over by the state acting Grand Khadi, Alhaji Mohammed Bello Silame discharged and acquitted Safiya of the allegation of adultery.

The Sharia Appeal Court ruled that the lower court lacked jurisdiction since the islamic legal code was not in force in the state as at the time Safiya allegedly committed the offence.

In the ruling read by Mohammed Tambari Usman on behalf of the three other judges, the court also held that the lower court failed to ascertain Safiya's mental state when she allegedly made the confessional statement that she had committed adultery.

Tambari stated that the Gwadabawa lower court should have also found out the date, time and location where the offence was allegedly committed.

"Failure to do this contravenes the provision of the islamic sharia code," the judges said.

The court held that "in islamic law, if an accused confesses and withdraws the confession after the judgment, the court should accept the withdrawal."

Similarly, the judge said that after conviction, the court should have told Safiya that she had the chance to defend herself by appealing against the judgment.

"The court in Gwadabawa did not do this and therefore, its final judgment was faulty," Tambari continued.

According to the judge: "The appellant's counsel, Abdulkadir Imam, has the right to withdraw her confession."

Said he: "The lower court has not also explained to Safiya what zina (meaning adultery) is, how it is committed and its punishment."

The judges of the Sharia Court of Appeal also averred that the lower court erred by not undertaking an elaborate research to determine the paternity of Adama, Safiya's child.

On the paternity of Adama, the Appeal Court said "Safiya can file a suit to find this out."

Similarly, the judge said: "It was wrong for the police to spy on Safiya and charge her to court."

Tambari further said that since sharia law took effect in Sokoto State on December 31, 2001 while Safiya was charged for adultery on December 23, 2000, it could only mean that the law was retroactive in the case of Safiya.

"The alleged offence was committed before the implementation of the sharia legal code," the judge said.

"Based on these grounds, several other qur'anic verses and prophetic traditions, I therefore discharge and acquit Safiya," he stated.

Shouts of "Allahu Akbar! Allahu Akbar!!" (God is the greatest) rent the air of the courtroom as soon as the earlier judgment on her was quashed.

Safiya was all smiles as she cuddled her baby. She was whisked off by her counsels in a Mercedes Benz (190) with registration number Sokoto AJ 8485 KK.

As early as 8 a.m, the court room was already filled with journalists, among them, those that had arrived from different parts of the world.

Safiya was October 9 last year condemned to death by stoning for adultery by a Gwadabawa Upper Sharia Court.

The man she named as responsible for her pregnancy was also charged with adultery, but was acquitted by the same court that convicted Safiya.

A confession of adultery, which the man allegedly made to her family, in the presence of two policemen was retracted in court. Under Islamic law, if a man withdraws his confessionn, he must be acquitted, unless four men can testify to having witnessed the adulterous act.

The judgement passed on Safiya attracted both local and international outrage and condemnation with several rallies in foreign capitals calling for her freedom. The foreign press such as the influential New York Times and The Guardian of London expressed openly in editorials their reservations about the judgement.

Last christmas eve, about 3,000 people in Italy held a vigil in front of the Nigerian Embassy in Rome to pressure the government to spare Safiya's life.

Meanwhile, the acquital of Safiya by the Sharia Court of Appeal has elicited reactions locally and internationally.

The Minister of Women Affairs and Youth Development, Hajia Aisha Ismail, described the discharge and acquittal of Safiya as a victory for women.

"Her victory is not just for her alone but for all the women in this country," Ismail said, adding "If she had lost the case, the guilt and burden of adultery would have rubbed off on the women folk in this country."

The minister said Safiya's case represents a new dimension in the discrimination and marginalisation of women in the Nigerian society.

She commended the judicial system for its fairness in the case and noted that with the current verdict, Nigerian judiciary has recorded another landmark, adding "the new system of government (democracy) that we have on ground has made this possible."

She also disclosed that the National Poverty Eradication Programme (NAPEP) would play a major role in the rehabilitation of Safiya.

President of the National Supreme Council for Sharia in Nigeria, Dr. Datti Ahmed, expressed delight over the discharge and acquital of Safiya by the Sokoto Sharia Court of Appeal.

Ahmed, who spoke on the British Broadcasting Corporation (BBC) Hausa service, said that he was happy with the way the case had ended, adding "we knew the case would be like this."

He said after Safiya was convicted of adultery and sentenced to death by the Sharia court, his council received lots of letters on the issue.

He said: "Based on that we discussed the matter with a number of Islamic scholars and they assured us that Safiya will be set free at last." Ahmed said the scholars who picked holes in the earlier judgement noted that Safiya wouldn't have been convicted if she was educated enough to understand her case.

Mrs Ayo Obe, president of the Civil Liberties Organisation (CLO), lauded the verdict, but said that gratitude must be extended to the court for its ruling.

"We should be grateful to the appellate court for pulling out of the fire the chestnut which the state sharia court have put into it by their verdict," she told the News Agency of Nigeria (NAN).

Obe, however, said that there was still the question of whether discriminatory punishments were constitutional.

Mrs. Christie Onyekachi, Executive Director, Gender Rights Project, who shared Obe's views, said that she would take up the issue of legality or otherwise, of discriminatory laws, with the state.

'We are really glad for the verdict as a life has been saved," Onyekachi said, but stressed that she would challenge discriminatory laws associated with the sharia legal system.

She wondered why someone who was guilty of rape should be sentenced to only 10 years' imprisonment, while Safiya got the death penalty for allegedly committing adultery.

Such discriminatory laws, she pointed out, were not in the interest of the society.

However, human rights lawyer, Chief Gani Fawehinmi (SAN), was cautious in his reaction to the verdict, saying that he had yet to see a copy of the ruling.

"I will have to take time to see the judgment before commenting on it so that I will be able to direct my reactions appropriately," he said.

German Foreign Minister, Joschka fischer hailed the release of Safiya as a "victory for law and humanity."

"Independent of this success, the German government remains concerned about the violations of human rights in several of Nigeria's states since the introduction of a penal code based on (the Islamic) Sharia law," Fischer said in a statement.

"We continue to call on the Nigerian government to respect its obligation to protect human rights and to apply them throughout the entire country," Fischer said.

The decision was also welcomed by the influential Sant 'Egidio community, a Roman Catholic charity based in Rome with strong African links.

"It is a great victory for women and a defeat for the death penalty," Sant 'Egidio said in a statement

"It is a sign of hope.. and a decisive measure which could save the lives of other women still menaced by stoning."

Meanwhile, Bafarawa said Safiya's acquittal is victory for Islamic law and vowed to forge ahead with the implementation of Sharia despite Attorney-General's Kanu Agabi called for a review.

Addressing a press conference yesterday shortly after the judgement setting Safiya free by the state Sharia Court of Appeal, Bafarawa said he would continue with the Islamic legal system no matter the situation.

The governor who described Safiya's judgement as a vindication of the Sharia legal system, challenged those criticising the system to fault any of the reasons given by the appeal court for discharging and acquitting the woman.

He said he personally received over 500 letters from all over the world regarding the case, adding that most of them were based on wrong assumptions due to lack of knowledge and understanding of the Islamic legal code.

He said that contrary to allegations by some international organisations and human rights groups, Sharia laws recognised human rights of the individual more than any other laws.

To buttress his claim, Bafarawa recalled that since Safiya's case started, she was never detained for even a second despite the severity of the allegation, thereby guaranteeing her right under Islamic law.

He said that those who were agitating for the immediate release of Safiya without the law taking its course were the ones who have prolonged the case due to their ignorance of the case and the Islamic laws.

This, he said, was because if she had not appealed the ruling, the court would not have compelled her to appear before it for execution of the judgement especially if she decided to runaway from the court.

His words: "no matter how complicated a case, the last resort is the court of law, we believe in the ability of the Sharia courts to discharge and dispense justice to all and sundry."

He likened Safiya's case to that of O.J. Simpson, which he said did not attract any comment from American government up to the end of it in spite of the fact it drew wide media coverage and publicity.

The governor lamented what he called undue pressure from the human rights groups on the executive arm of the government to interfere with the course of justice.

"As a responsible government committed to the welfare and development of all people in the state and as a democratic and people oriented government, we would not like to lose any of our citizen", Bafarawa said.

P.M. News

Appeal Court Frees Safiya

March 25, 2002

Lagos

A court in Sokoto this morning upheld the appeal of Safiya Husaini who had been convicted of adultery under Islamic law and sentenced to death by stoning.

Safiya won her case after the court said the original ruling was unsound.

In the courtroom, Safiya, smiling broadly,was surrounded by the world's media holding her one year-old daughter in her arms.

It was the conception of this child out of wedlock that had been proof enough at the first trial of her adultery.

But in today's ruling,the judge said that, because the alleged act had taken place before adultery became a criminal offence under Islamic law, the case should be dismissed. Anti-adultery laws, however, remain on the statute books in Nigeria's northern states.

Under Islamic law as practised in Nigeria, pregnancy outside marriage - even for a divorcee - is sufficient evidence to convict a woman. In the case, the man accused of fathering the child was found not guilty.

President Olusegun Obasanjo, who is himself a devout Christian, had called for Safiya's acquittal.

Prosecution lawyer, Mohammed Bara'u Kamarawa argued last week that witnesses were not needed because the evidence - Adama's birth last year - was enough. The prosecution further argued that Hussaini had initially confessed to adultery, a claim the defence denied.

Hussaini and her lawyers say she was impregnated by her former husband before their divorce "some years ago." Although the infant was born more than a year after the marriage ended, the defence argued that up to seven years can pass between conception and birth under Islamic law despite the biological improbability.

During the original case, Hussaini claimed to have been raped by her neighbour, Yakubu Abubakar. She withdrew the rape accusation after Abubakar fled, apparently fearing arrest.

In a positive sign for the defence, Bello Silame, the chief Islamic judge presiding over the appeal, had noted the alleged adultery occurred before Shariah law came into effect last year. Kamarawa, the prosecutor, agreed but argued that Shariah law should be applied retroactively.