By
Sanusi
Lamido Sanusi
LAGOS,
August 22, 2002
(Strictly personal)
Permit me to make a minor, but critical, correction to Mustapha Isah Kwaru’s translation of my BBC Hausa service interview on the above in the Daily Trust edition of Wednesday, August 21, 2002 (see “Islamic cleric gives conditions for Amina’s appeal). In his report, Kwaru wrote, inter alia, that “to prove his claim, Sanusi Lamido quoted the Imam Malik who…said that ‘he found a woman who delivered three times within twelve years’ which indicates that a pregnancy could take the duration of four years.” It should be evident to all those who actually listened to the interview that this innocent, if ridiculous, error of translation and paraphrasing (even though placed in inverted commas) greatly distorts my statement. Indeed the statement quoted above is nothing short of silly and is the logical equivalent of saying “a woman had one child in twenty years and this proves that a pregnancy could last for twenty years.” Such an argument can never come from a jurist of Imam Malik’s stature.
What
I said, which I repeat and expand on here for the record, was that “Imam Malik
said he knew a woman who had three pregnancies in twelve years and each of
the pregnancies lasted for four years.” The difference between the two
statements is evident and I thank one of your readers for calling me from Kano
to seek clarification, a call that alerted me about the error. Let me clarify
for the umpteenth time the position of Islamic Law on this matter.
Sex
and pregnancy are linked both to Muslim family law and to Muslim criminal law
and the failure to recognize this is the root of the ridiculous verdicts on
Safiya Hussein and Amina Lawal. Muslim jurists have made extensive comments on
the gestation of pregnancy in family law because its determination is critical
to establishing nasab, or the progeny of a child. Jurists are agreed that
the minimum gestation for a pregnancy is six lunar months, which the Maliki
jurist al-Dasuqi specifies as 175 days in his Hashiya. They then differ
on the maximum gestation because there are no texts from the Qur’an and Hadith
to rely on in this matter. Opinions are based on conclusions from empirical
evidence (or Istiqra’) and the knowledge of embryology at that time was
also influenced by a widespread belief in the “sleeping foetus.”
Most
jurists of the Ithna-‘ashari (or “twelver”) school of Shiism hold
that the maximum gestation is nine lunar months. An isolated ruling in the
Maliki school, attributed to Muhammad Ibn al-Hakam, places the bar at twelve
months (and this is what was adopted by Syria in its Muslim personal laws). Abu
Hanifa places the bar at two years based on an opinion expressed by Aisha
the wife of the Holy Prophet (S.A.W.). This was not a Hadith. As for Imam
Malik, the Imam al-Darqutni reports that “Malik often said: ‘This our
slave-girl, the wife of Muhammad Ibn ‘Ajlan, is a truthful woman. Her husband
is also a truthful man. She had three pregnancies in twelve years. Each
pregnancy lasted four years.’” Based on this Malik placed a bar of four
years on gestation. Interestingly, relying purely on Malik’s testimony, the
Imams al-Shafii and Ibn Hanbal both followed suit and adopted four years as
maximum gestation period. Most Maliki scholars place the limit at five years.
Some of them, particularly in the Maghreb, place it at seven years (and
this is what applies today in Morocco). According to Imam Ibn al-Qayyim, there
is even a view that places it at twelve years.
In any case the point is this: If a married woman, or a divorcee or widow conceives and is delivered of a child in a period not shorter than 175 days from the last date she could reasonably have slept with her husband (which excludes for example a woman married to a man living in a different country and who is known not to have met her after the marriage in most schools of law other than the Hanafi) and not longer than the adopted maximum of gestation, then the child is the husband’s. In Maliki law therefore, a if a divorcee or widow has a child in a period not exceeding four (or five or seven, depending on dispensation) years from the date of divorce or husband’s death the child is the husband’s. This is family law. Of course the states implementing Shariah have the option of adopting a gestation period different from that adopted by Maliki jurists. A number of countries have done this, limiting gestation to 12 months based on scientific evidence since, as mentioned above, there is no text from the Qur’an or the prophet supporting the opinions of jurists in this matter. But our states are yet to do so and the judges have not in their judgments explicitly stated their basis for jettisoning the Maliki view.
The
matter becomes subject of criminal law only where the child is delivered after
the expiry of the maximum gestation period. In such an instance, the pregnancy
constitutes circumstantial evidence for adultery in the Hanafi, Shafii
and Hanbali schools of law and prima facie evidence thereof in Maliki
law. Only in such an instance does the state have a locus standi to ask
the accused the source of her pregnancy. When this happens, to further shed
light on Muslim law, the woman will react in one of four ways:
1.
She claims she was raped;
2.
She claims another shubha other than rape, eg. That a man slept
with her when she was asleep or she genuinely believed she had a legal
relationship with the man etc.
3.
She refuses to enter a plea of innocence or guilt ie she refuses to
speak; or
4.
She admits that she committed adultery.
In
the first case she is free in all sunni schools other than the Maliki. Maliki
law accepts her testimony only if backed with proof of rape like bleeding or her
screaming for help when it happened. This is quite clear from Khaleel’s Mukhtasar.
In the second case she is free in all schools of law. In the third case she is
free in Hanafi law and also in Shafii law as reported by Imam al-Nawawi in his Raudha.
In the Hanbali school she is free according to the dominant opinion. In Maliki
law she is convicted based on the fact of pregnancy and this is a second opinion
in the Hanbali school, attributed to Ibn Taimiya by the author of Manar al-Sabil.
Her silence is taken as a confession of guilt given the fact of pregnancy.
Finally, in the event that she confesses to
adultery being the source of her pregnancy she is convicted in all
schools of law based on her confession. If she withdraws the confession then we
return to the three preceding scenarios and
read from there the position of each school, as we are left again only with the
fact of pregnancy. I have in other pieces articulated my own preferred opinion
in this matter, and the objections raised against the Maliki position by other
jurists including Ibn Hazm. All of that is in the present case irrelevant since
it only arises if the pregnancy exceeds the recognized
gestation period.
In
the case of Amina Lawal (and the earlier case of Safiya) the babies were
delivered well within the gestation period. They could only be tried based on
one of the following three possible events:
1.That
the woman, being of sound mental health and fully aware of the consequences,
voluntarily brings herself to the court and confesses to being pregnant from
adultery. She is then convicted based on her confession, which she is free to
withdraw at any point before or during the punishment. The partner is not
convicted unless he confesses when asked or volunteers a confession as well.
(This is based on sound traditions).
2.
That four male, reliable eye-witnesses testify to having caught her in the same
act of sexual intercourse with a man other than her husband. (This is based on
Qur’anic text). Or
3.That
the husband repudiates the child and takes an oath of Li-an to the effect
that the woman is an adulteress and she fails or declines the counter oath
affirming her innocence. (This is based on Qur’anic text).
It
is the right of Amina, as it was the right of Safiya, that the men who alleged
that she committed adultery be required to produce four eye witnesses to the
act. If they fail then each of them should be given 80 lashes of the cane for
slander. This is the law of Allah. The point is not whether Amina committed
adultery De facto but if she committed it De jure. Adultery is
committed every day, but only those against whom admissible proof is established
are punished by law.
What
is happening in the states implementing shariah is a travesty of Islamic Law
with the result that it is exposed to ridicule and criticism.On the one hand, we
completely ignore the Maliki position on the gestation for pregnancy. On the
other hand we adopt its controversial ruling on pregnancy constituting prima
facie proof of adultery, even though the conditions for invoking the ruling
have not been met. I have previously made all of these points in other
interventions although we never seem to read with an honest mind. I have no
doubt that once again “the true believers” will hurl attacks and accuse me
of being Salman Rushdie. I intend to continue resisting the temptation to defend
myself against diversionary personal attacks while focusing on the objective of
educating Muslims about the abuse of their religion in the hands of ignorant
people. The critics should pick up the challenge of researching Islamic law and
refuting my arguments rather than resorting to the irritating habit of labeling
me an “enemy of Islam” or “enemy of shariah”. In doing this they will
contribute not just to their own education but to that of
Nigerian Muslims in general.
And
Allah knows best.