Comunit� di Sant'Egidio

Sona Khan, avvocato ed esperta di diritto islamico, si � occupata del caso di Amina e ci spiega perch� si salver�.

24/09/03

Sona Khan, avvocato presso la Corte Suprema in India, � esperta di diritto islamico e nota per il suo impegno internazionale per la difesa dei diritti delle donne. Recentemente si � occupata del caso di Amina Lawal in Nigeria.

Abbiamo incontrato la Signora Khan ad Achen, a margine delll�incontro per la pace  �Tra guerra e pace religioni e culture si incontrano�, nel corso del quale ha partecipato, assieme a Sr. Helen Prejean, a Lance Lindsey, a Misaki Yagishita ed a Mario Marazziti alla tavola rotonda dal titolo �L'abolizione della pena di morte: un obiettivo per il XXI secolo.�

In prossimit� della sentenza di appello di Amina, che sar� resa nota il 25 settembre, riportiamo uno stralcio dell�intervista che ci ha concesso.

Carlo Santoro, Comunit� di Sant�Egidio

 Signora Khan, anzitutto tutti vogliono sapere: secondo lei Amina si salver�?

 Ne sono certa. Amina si salver� perch� non � possibile che un tribunale possa mettere a morte una donna senza avere una sola prova certa della colpevolezza (la bambina non � infatti una prova), senza i testimoni richiesti dal codice, avendo gi� scagionato il coimputato. Se infatti la Corte non potr� sostenere che Amina ha avuto la bambina da sola, perch� ci� � naturalmente impossibile, come mai l�uomo non � stato ritenuto colpevole? La Corte di appello dovr� tenere conto di molte cose:

Non ci sono testimoni che dicano di aver visto Amina di aver avuto i rapporti di cui la si accusa.

Ci sono invece i testimoni che hanno visto l�uomo visitare spesso Amina.

Amina non � un�adultera. Io sostengo che siamo in presenza non di un adulterio, ma di una violenza carnale, a cui Amina ha dovuto sottostare, forse con la speranza che l�uomo avrebbe provveduto al sostentamento suo e della bambina. Amina � la vittima, non la colpevole. Inoltre faccio notare che in effetti l�uomo � conosciuto per essere uno abbastanza benestante. Il suo dovere sarebbe stato quello almeno di aiutare Amina e la figlia. Invece neanche questo. La legge islamica difende la donna e il figlio, non la condanna, se non ha commesso nessuna colpa. La legge difende anche Amina che � stata abbandonata.

Inoltre riportiamo integralmente una interessante memoria che la Signora Khan ci ha inviato qualche giorno fa per spiegare in maniera pi� dettagliata su cosa si basa la difesa di Amina Lawal.

IN DEFENCE OF A CONDEMNED WOMAN

BY SONA KHAN

Like India, Nigeria was also under the British rule before independence. After independence, a well-written constitution to enjoy its democratic independence and freedom from the colonial rule, guaranteeing its people protection of their basic human rights was acquired. During the colonial rule, in Northern part of Nigeria, in all civil and criminal matters, traditional Muslim law of Maliki school of thought was applied by the Alkalai and Mazalim courts of the Emirs, except matters involving issues of land tenures, where the customary law prevailed. The Southern part was governed by customary law and continues to be so. British did not interfere with the native laws, religion and customs of their colonial subjects. Thus the supremacy of Sharia law was consolidated. As independence approached, Nigeria felt the need for modernizing its criminal law, as was contemplated in other societies. A new Penal Code was promulgated in 1959, followed by a Code of Criminal Procedure in 1960, based on the Sudanese Criminal Code, which traces its origin from the Indian Penal Code, drafted by Lord Maculay in 1937. The new code did retain provisions for Islamic punishment in the matter of Hadd offences, like fornication, false accusation of chastity, wine drinking etc., in addition to or substitution to the punishment prescribed in the code for such offences. The establishment of criminal liability as per the Criminal Procedure Code is an essential prerequisite and the Penal Code administered through the existing court system. This provision makes it mandatory for the essential training of Muslim judges.

The Maliki School of Muslim jurisprudence took its name from a jurist, Malik Ibn Anas (710-95) of Medina. His writings included Al Muwatta (the Beaten Path). This is a very well researched work of comprehensive understanding of current practices observed in Medina, relying heavily on Hadiths. A group of lawyers and other intellectuals appreciated his work and started to take deep interest in this research as they found these teachings to be of great practical value as they were unspeculative, both of law and rituals, mainly based on the traditions of the Prophet. The earliest available book on the traditions of the Prophet is Malik�s Beaten Path. His group later came to be known as the Maliki or Malikite school of thought. The group evolved a very scientific method of verifying Hadiths and the methodology developed is known for its refined and logical procedures. The French and Italian translations of all his legal books are available. The French and Italians in their North African colonies for administration and governance of their Muslim subjects heavily used these texts.

Two weeks ago, an Islamic court confirmed an earlier awarded death sentence in March this year by a Sharia Court, in Bakori in the State of Katsina, upon a 30 years old divorcee, Amina Lawal, mother of an eight months old female child, Wasila, in Northern Nigeria for the offence of fornication. She is sentenced to die by stoning. She is described as having been friendly with Mahmud Yahaya. He admitted being friendly with the accused for the past eleven months but denied being the father of Wasila. She became pregnant after and during their friendship and gave birth to Wasila in January this year. According to Amina, he seduced her with an offer of marriage. Mohmud Yahaya swore on the Quran that he is not the father and was acquitted or probably discharged by the court of the charges of adultery. Amina has been convicted on the bases of her own admission that Mahmud Yahaya lured her on the promise of marriage. She had no lawyer to represent her at the time of trial. It is widely believed that the Nigerian parliament has sanctioned the more use of Sharia laws since 2000 to keep people under control and to discourage dissent of the establishment.

Under the Muslim law, issue for consideration and enquiry before the court is limited. It is simply who is Wasila�s father and if the child was born outside marriage? The punishment for adultery or fornication is death by stoning or 100 lashes respectively. Amina, a divorcee, could not legally be given death sentence by stoning, if she was married and had committed adultery, she could have been, on being proved guilty of the offence. In the absence of a co-accused, to be held solely guilty of adultery or fornication, one of the Hadd offences is illegal and un-Islamic. Considering the very nature of the offence, which takes two persons to complete the offence, she could not by herself commit the offence she is charged with. Therefore, holding her alone guilty is wrong and illegal.

Being a divorcee, Amina was free to marry again. In Muslim law, adultery or fornication is not a matter of personal freedom of any kind. The other important questions are: what was the community, doing when Mahmud Yahaya was courting Amina? Was she a destitute? Where were family members and relatives and why did they not exercise their normal social controls in built in the society when Mahmud Yahaya was meeting Amina intimately. An Islamic society, invoking such punishments have inbuilt socio-economic mechanism of its own to make sure that people remain in faith and follow the prescribed path and conduct. An Islamic State and ruler being a representative of God on earth has an obligation to make sure that people get their due and such punishments are not required to be invoked because people will not have the need to go astray. Harsh punishments for Hadd offences are deterrent to prevent the commission of such offences as to be ordered to die by stoning or being lashed. It would be important to know under what socio-economic circumstances Amina was placed after her divorce that she could be seduced on a promise of marriage? Did she have any money of her own or a job to survive with dignity? How did the state take care of her when she was divorced?

The concept of a single person in society does not exist in Islam. Marriage is a Sunna and is highly recommended for every Muslim living in faith. It is important to know the level of Amina�s knowledge of faith and Muslim law, under which she stands operated? Did she really know the consequences of her friendship with Mahmud Yahaya? Was she in faith at the time of commission of the offence? Did she also know her rights under the prevailing Criminal Procedure Code of her judicial system? Though ignorance of law is no excuse but in view of the provisions of section 235 (1) of the Nigerian Criminal Procedure Code, she had some rights and being informed of these rights correctly was the duty of the trial court. The said provisions provide:

For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the court may if the accused so agrees, at any stage of an enquiry or trial, after explaining to the accused the effect of subsections (2) and (3), puts such questions to him as the court considers necessary and in such case shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defense.

Subsection (2) says:

The accused shall not render himself liable to punishment by refusing to answer such questions to them; but the court may draw such inference from such refusal as it thinks fit.

Subsection (4) of section 235 of the Nigerian Criminal Procedure Code says:

The sole purpose of such examination shall be to discover the line of defense and to make clear to the accused person the particular points in for the prosecution which he has to meet in his defense and there shall be nothing in the nature of a general cross-examination for the purpose of establishing the guilt of the accused.

Subsection (2) makes it mandatory for the court to inform the accused, the availability of the right of silence. In the absence of a competent lawyer or legal help, it is the duty of the court to protect her legal rights and interest. Was Amina explained these provisions and the nature of punishment the charges attracted? Would she still have made the statement before the court that the Mahmud Yahaya on the promise of marriage lured her and the birth of the child was a result of such allurement! If not for herself at least for the sake of her child she would probably have remained quite and she could have rightfully done so.

Muslim law does not sanction any physical relationship between man and women without marriage. The concept of consensual or participatory sexual act does not mitigate the offence.  It is an equal crime for both. Without the active collusion and participation of a man, offences of adultery and fornication cannot be committed. When Mahmud Yahaya denied being the father of the child while admitting to be friendly with Amina for eleven months, why an enquiry in to facts of the matter, including the DNA test etc. as to who else could be the father of Wasila, was not conducted? In the absence of such enquiry, it is legally imperative that the case be remanded back for fresh trial and correction of procedural flows.

For Hadd crimes, it is held that punishments are determined and prescribed in Quran hence they rest there. Marital loyalty and purity of individual conduct are divine requirements and there is nothing a judge can do but to simply execute the prescribed punishment. The Quran also provides for men to keep their eyes down and not to look straight in the eyes of a woman and vice versa unless they were husband and wife. There are several other such mandates to conduct oneself in order not to reach the stage of commission of the Hadd offences. What is the State doing in order to promote such moral education amongst its people?

If they commit Hadd offences, inspite of the prohibition and mandate not to do so and are established to be believers, the common sense says that they could not be, in view of the nature of the prescribed punishment.  Under Muslim jurisprudence, the commission of the crime must be established before conviction as per the prescribed procedure. The procedure under Muslim law is that there should be at least four male eyewitnesses to the offence of adultery or fornication and if the witnesses are all women then they need to be eight. Two women eyewitnesses for every male eyewitness are mandatory. Neither the said admission of Amina that she was seduced Mahmud Yahaya on a promise of marriage will be enough to hold her guilty nor swearing on Quran by Mahmud Yahaya that he is not the father of the child would be enough to acquit him. In the absence of required number of eye witnesses, Amina would be repeat her charge four times that there are no eye witnesses to her statement than her and being a believer she makes the statement.  What ever her statement, has to be so believed by the trying judge. The co-accused will also follow the same procedure to deny or accept the charge, four times. Both should be given time to reconsider their statement every times it is made.  It is provided that if a wrong statement is repeated the fifth time, the wrath of Allah shall be on any one doing so. It is clear that procedure adopted by the trial court is not in accordance of principles of Muslim jurisprudence. Therefore, the prescribed punishment is illegal and un-Islamic and Amina cannot be held guilty like this hence the stated punishment cannot be carried out.

In the entire Muslim jurisprudence, there is no provision and scope of a person swearing on Quran and making a statement to defend himself or herself. A Muslim is always expected to speak the truth. The prescribed number of independent eyewitnesses is mandatory. The contents of Quran as revealed to the Prophet are words of God. Once printed after compilation, and called Quran, those words acquire a form. Islam forbids idolation of any form or object, except of the God himself who has no form; therefore, swearing on Quran is an act of idolation, against the mandate of Islam. The Sharia court in the case of Amina is guilty of not following the prescribed judicial procedures as mandated and is also guilty of idolation by accepting the statement of Mahmud Yahaya, and allowing him to swear on Quran. Both acts are un-Islamic. The judge(s) are guilty and the prescribed punishment for such misconduct is 100 lashes on each count, besides withdrawal of their judicial powers and nullification of their judgment so passed.

Provisions of section 258 of the Nigerian Criminal code provide that any one who commits the offence of rape is liable for an imprisonment of life, with or without whipping, while the provisions of section 238 provide for a life imprisonment or imprisonment for a lesser term and shall also be liable to fine.

The Nigerian parliament is supreme under the provisions of the constitution. Quite a good number of members of parliament are neither educated enough nor not duly trained in the understanding of Muslim jurisprudence. At the same time the judges are passivists. They lack the needed judicial activism as needed for the understanding of Muslim jurisprudence and imperative in the matter of administration of justice. The judiciary waits for the parliament to change laws and parliaments all over the world are only busy fighting the survival or non-survival of the parties in power. People and delivery of justice is not on their agenda. Proper laws are an instrument socio-political stability, which go a long way in upgrading the quality of life of the people and consequently the prosperity of the nation.

Under the common law system, a distinction is made between participating and accidental victims of sexual crimes. In Muslim law, consent or participation has no scope. By virtue of the nature of human anatomy, a woman cannot commit a sexual crime alone or rape a man; therefore, woman is always a victim. In view of the fact that Muslim law does not permit even the consensual sexual relationship without marriage, the act of adultery or fornication is a rape? Prophet encouraged the use of human reasoning along with divine truth and the human reasoning makes it clear that for a sexual offence of adultery, it is the man, who alone can commit because the woman can neither give consent nor permit it if it was not her husband. Therefore, woman�s role is only incidental and not fundamental or primary.  To serve the cause of Islam, instead of spending so much energy and time on political Jihad, a really needed Jihad is in the area where the lives of the common man is effected due to unjust and misconduct of Muslim system of governance. Such a Jihad would help Muslims think of ways of helping confused Muslim societies in the understanding of Muslim jurisprudence to enable them govern in a proper and just manner. One of the issues would be to bring about considered opinion of jurists in view on issues like who is the primary accused in the matter of sexual offences. A due compensation should be provided to the victims of the lust of men. Muslim societies are failing miserably in terms of application of required standards of Muslim law and jurisprudence in administration of justice. The new regime of Afghanistan is said to be looking in to the matter and is said to be making a law that for adultery and fornication, only the man would be held guilty and punished accordingly. A very healthy move indeed to infuse confidence of good governance amongst the people of Afghanistan. I sincerely hope that the declining quality of justice, especially where women are concerned is a source of great concern for the world. As in the instant case, Amina�s consent to the sexual act does not change the role of the Mahmud Yahahya or any other man involved. Without his active role, she could not get pregnant. He also knew what he was doing as a believer hence could not have indulged in a sexual act with her without marrying.  She was free to marry him, being a divorcee, therefore, the burden of guilt is heavy on the Mahmud Yahaya rather than on Amina to establish that while being friendly with her for eleven months, he was offering prayers while being alone with Amina Lawal and not indulging in adultery or fornication.