NEW ZEAL FOR SHARIA PENALTIES REFLECTS POLITICAL CLIMATE, SAYS RIGHTS ACTIVIST
By Charles Cobb Jr., Washington, DC

November 13, 2003 – (allAfrica.com Interview) In late September this year, people all over the world breathed a sigh of relief after a Nigerian Sharia court upheld the appeal of Amina Lawal against her conviction for adultery. The intensity of the international reaction related to her punishment.
Lawal was found guilty and sentenced in 2001 to death by stoning, a penalty that astounded and appalled many. But on September 25 the appeal judges held that pregnancy outside of marriage is not proof of adultery, that Lawal's alleged confession was no confession in law, and, that her rights of defence had not been properly recognised by the lower courts.

Amina Lawal's trial in a Sharia court followed the decision by a number of states in the Muslim north of Nigeria to introduce Sharia judgement and penalties for a widened range of offenses, among them, adultery. The issue threatened to polarise Nigerian opinion between Muslim and Christian and made the case internationally notorious, triggering Internet petitions, offers of asylum and public protests. Key among a coalition of groups in Nigeria supporting Lawal was Baobab for Women's Human Rights who commented after the verdict: "This sweeping judgement of the Katsina state Sharia Court of Appeal indicates that Ms. Lawal should not have been charged, much less convicted."

Ayesha Imam is a leading member of Baobab for Women's Human Rights who in 2002 won Canada's John Humphrey Freedom Award in recognition of her and Baobab's work in defending and developing women's human rights in secular, customary and Muslim religious laws in Nigeria. She talked to Charles Cobb Jr. about the Lawal case.

Does the decision on Amina Lawal change anything fundamentally? And what are the implications for other women who might be convicted under Sharia law and penalty?

Well, the first thing is that the decision technically is not a binding precedent, except in Katsina State. All of the states are autonomous of each other; it is a federal system. It will have strong persuasive influence on other cases outside of Katsina State because the acts on which all the charges are based differ very little. So it will be quite hard for the Sharia court of appeal in, say, Bauchi to rule something completely different from something the court of appeal in Katsina State has done. Technically they can, but it would be very odd.

On the implications of it - although it was a four-to-one majority and not a consensus, the fact that the majority did find for Amina on every single ground of the appeal means that they have said fairly clearly that they don't consider pregnancy outside of marriage to be sufficient proof of adultery in itself. And that they also don't approve of confessions being coerced or intimidated out of people. And to the extent that any court follows this, it is going to extremely unlikely for there to be a conviction in the absence of four eyewitnesses, a condition that is rather hard to achieve.

Does this get to any of the broader issues that are really political issues that surround the application of Sharia law?

Yes and no. The decision is actually based on very old arguments and precedents in Muslim law - dating back three or four hundred years. So it's not new argument responding to this current political situation. On the other hand, the climate in which the acts were passed was clearly a political climate. It wasn't a religious resurgence that led to passage of the act [introducing new applications of Sharia law]. It was a political move for popular support, if you see what I mean. It was part of that governor's platform that he was going to do this; he wasn't voted in on that basis. He simply, in my opinion, had no other credible program, so chose this.

To that extent, what is very clear is that in all of the states where there are these kinds of acts, they are not part of a continuous long history, but part of a political movement around the identity of being Muslim as in the Sudan, South Pakistan and now Nigeria also. The rate of conviction is very, very high compared to places like Libya where these laws have actually been on the books for hundreds of years. And clearly, the zeal with which the lower courts have been convicting has partly to do with the ignorance of how the law will operate because these laws are new in Nigeria, at least since independence. So none of the judges now sitting on these cases have any experience in it.

Secondly, it had to do with showing that they were really implementing the law. And so we have always said - the Nigerian defenders of the appeal -- the higher we get up into the appeals court, the Sharia court, the more sure we are that the convictions would be overturned because the original idea of the law was as a deterrent rather than a punishment.

Here in the United States, largely non-Muslim, it is difficult to understand how, in a country like Nigeria, you can have one chunk of it - 12 states in this instance - governed by a set of laws that seem to take precedence over the federal law that presumably is supposed to hold in the entire nation.

First of all, that is not completely true. The history is that Nigeria has actually always had, throughout its colonial and post-colonial or independence period, three sets of law: one of which is called federal law or general law or secular law, but which many people see as being influenced by a
Christian historical background like, for instance, the fact that the working week is Monday through Friday and not Saturday to Thursday.

The second system has been what are in fact varying systems of customary laws which are the laws and practices of people prior to colonialism but which were adapted throughcolonialism so they're not the pristine pre-colonial forms and in fact what happened very often during the process of colonialism was that British patriarchal colonialism added to indigenous patriachalisms and they became even more biased against women than they were prior to the colonial period.

And the third system was Muslim laws. So in fact, we've always had three parallel systems with Muslim laws and customary laws generally being the ones that most people turned to in terms of family and personal status law. How most people got married, divorced, got child custody, how they inherited was not ever according to secular law; it was always according to either Muslim laws or some version of customary law, whether it was Igbo customary law or Ibibio customary law or whatever, because customary law is not the same everywhere.

And then, what happened from 1999 on was that as part of political moves some states started passing acts that purported to extend the purview of Muslim laws from family and personal status law into other areas. The idea is that it should extend to all other areas, but in fact, so far, it has only been around what are called the Hadd offenses which are adultery, sodomy, drunkenness and theft. They are offenses that are specified in the Koran. Everything else is continuing as it was before. But one of the things that you have to bear in mind is that the punishments that are being specified in Sharia are not necessarily given in the Koran. For example, the Koran makes no mention of stoning to death.

There have always been parallel systems but the idea was that people should be able to choose whether they wanted to abide by customary laws or whether as Muslims they wanted to abide by Muslim laws or whether they wanted to abide by secular laws. Now the politics of it makes it very difficult in this context to see whether or not people who are Muslims would have a choice. People who are not Muslims continue to have a choice.

That is what the religious right is arguing as a defense against the claims that this is tantamount to having a state religion. They are saying, 'Well it is not, because the state continues to run three systems and people who are not Muslims may choose.' One of the things that they say very often is that if a Muslim and a Christian get caught stealing, the Christian will not be subject to the possibility of amputation but the Muslim will.

I should also point out here that many sections of the religious right are saying that they will impose Muslim laws in the state including on non-Muslims. And in practice, it has been done.

Yes. Isn't that part of the tension in some of these northern Sharia states?

But the problem is, whether it has been done as part of the state or whether it has been done by vigilantes. In Kano, for example, a group of vigilantes burnt down a beer parlor in Kano city belonging to a non-Muslim. And, the state prosecuted the vigilantes. But what happened there was that the man whose property had been burnt withdrew the case. The reason that he gave formally for doing this was that he had many neighbors and he understood it wouldn't happen again and that in the interest of good neighborliness [he wasn't going to pursue the issue]. We don't know to what extent there was actually coercion or intimidation or whether it was simply a gesture of, 'Okay, fine. Let's forget it.'

Nonetheless, people in Kano are still able to buy alcohol whereas it is much more difficult in Zamfara because there is also a difference in the state government.

So theoretically, you could have twelve different attitudes for twelve different states.

Probably you have three or four attitudes with Kano state and maybe Kaduna too at one end of the scale who, left to themselves, without pressure from vigilantes, would not have passed the [Sharia] acts, and Zamfara state at the complete other end, having passed the acts without any pressure at all.

Do the vigilante groups arise with the passing of the Sharia acts or were they in existence before? Are they a political factor? If so, how big a factor?
No. One of the ironies in Nigeria is that the groups that had always been arguing for Muslim laws, the groups that would have been called "fundamentalists" before - and I don't usually use the word when I am talking about Nigeria, I usually refer to the religious right -- when the laws
came out they were very, very clear that in fact, without a change in the socioeconomic system such that there is no poverty, so there is no excuse for stealing, they were not in favor of passing these acts with such specific and harsh punishments. That's the 'Muslim Brothers' in Nigeria.

Whereas, groups like the Izala which had always argued about Islam more or less on the basis of changing the way you live, and your attitude towards things but not really about changing the law, once the acts started being passed, were strongest in support. The Hizba groups are groups that have formed after the acts have been passed in order to push for them and implement them.

Again, they differ from state to state. In some states they are completely unofficial and don't have backing from the state. And in some states they have a quasi-official status and in Zamfara they are very nearly the personal shock troops of the governor.

Of course the case of Amina Lawal was very dramatic; we were looking at the prospect of a woman being stoned to death. But what about other cases?

The act I know best is the Zamfara act, but they are all much the same. Most of them copied the Zamfara Act virtually word for word. And the acts don't just call for stoning. The text of the acts gives a whole series of penalties that include imprisonment, fines, and so on. The fact that a lot of the judges have only been passing the maximum punishment I think is indicative of the political context, or their perception of the political context, rather than the laws themselves. And that's one reason why having this case (Amina Lawal's) is useful. Because it also says that in other cases we are going to be looking at the process of evidence, whether or not people have a defense and so on.

One question I have is whether or not, in the future, we will be looking at other cases that have penalties that seem extreme?

I think there are only three penalties that the West considers to be really difficult: Stoning, certainly in adultery, - we have yet to see how we fight these sodomy cases that have come up but certainly in adultery it is going to be really, really difficult to ever get a conviction. Whipping, which has happened and continues to happen to both women and men. In fact, one of the cases we are fighting right now is a case where the man in question did not deny fatherhood of the child and so he is also being sentenced to be stoned to death. Imprisonment and fines and lectures and community service are things that are accepted in the West also. You will find some people arguing that life imprisonment is worse than death.

Is a woman in Amina Lawal's circumstance able to integrate successfully back into her normal life, back into society or is she still vulnerable to either pressure or ostracism?

In fact, she has been wanting to get married again but was persuaded by us that it might not be a good idea while the appeal was still going on. There will be people, obviously who want to ostracize her or want to gossip about her and there will also be people who say, 'Enough is enough!'.

I want to point out that the impression that many people have that these are laws and norms that govern everybody's life in northern Nigeria or in
the Muslim communities of northern Nigeria, is not true. At least one of the cases was brought because the father of the woman in question was trying to get child support from his grand-daughter's father. Clearly, he was not trying to get his daughter killed. The fact that he thought of going to the court to try and get child maintenance indicates that this is not an unusual occurrence.

Finally, did international pressure play a role in this, and to what extent should there be international involvement given the cultural complexities within this issue that are quite distant from other parts of the world?

My general stance on international pressure is that it is something, the usefulness of which varies from case to case, and may vary at different stages within a particular case. We - that's the coalition of NGOs and activists in Nigeria who have been fighting the case - have been saying, for example, that writing petitions to the president when the case had not even reached the federal level was not very helpful.

Why?

Basically because until the case reaches the federal level he doesn't have the authority to pardon anyway. Secondly, we had said that in this particular case (Amina Lawal) that because so many of the petitions were based on completely inaccurate information they would be counter-productive. A lot of the petitions kept saying that the Supreme Court had upheld her sentence and it was just not true. And thirdly, in this particular case, if petitions are not carefully couched and seem to be saying things like 'Islam is barbaric and savage' then they are not very likely to persuade people to do as you want them to do.

On the other hand, there have been cases in which international pressure was very important. With this case what we were really afraid of was that the language and the style of the petition was likely to do two things: One, cause, or result in another backlash from the religious right. That was what happened in the Bariya Magazu case. She was the first case in Zamfara State. They said she was 18 or 15 respectively, but actually she was 13 when she got pregnant. In her case because she had never been married before her sentence was whipping. What the governor did was have [the carrying out of the sentence] brought forward so that the appeal could not be heard and, in fact, timed it to coincide with a big march that had been planned against it. Fortunately it was not a death sentence.

The other thing that we were trying to avoid was the sense that [Muslim] people in Nigeria - including people who are very uneasy about the way that these acts have been passed, about the contents of them, about the nature of the convictions - [should not] have to feel defensive about being Muslim and wind up saying, 'Oh yes, that's what it [Sharia] says' although it doesn't say that. As a part of that, when everything is seen as the West criticizing us, it really makes it a lot more difficult for us to make the point that respect for rights can be incorporated into different versions of Muslim law, and have been incorporated.

From: http://allafrica.com/stories/200311131020.html