The Hudood Punishments in the Northern Nigeria: A Muslim Criticism

By

Sanusi Lamido Sanusi

[LAGOS]

OCTOBER 1, 2002

lamidos@hotmail.com

Prepared for publication in ISIM NEWS, the quarterly publication of the Institute for

the Study of Islam in Modernity, Leiden, Holland

I. Introduction: The background to discourse

The election of civilian governors in northern Nigeria in 1999 and the decision taken by several of them to introduce the full range of punishments in Muslim criminal law has been the subject of international and local controversies. Many theories have been put forward in an attempt to understand the quest of the northern Muslim elite and the masses of the population for authenticity and the transformation of the ideological landscape through the introduction of the totalizing vision of a distinct Muslim ummah ruled by divine law, an island of piety in an otherwise secular, Christian and “animist” nation. I have elsewhere reviewed the various explanations proffered by both proponents and opponents of this vision[1] as well as the intellectual roots of the various Islamist discourses in the Nigerian political context.[2] Suffice it to say here that, as noted by Karl Popper, periods of disintegration and uncertainty tend to breed totalizing visions as people grope for an anchor. This, according to him, is as true of what he calls “theistic historicisms” like the Jewish concept of “chosen people” as it is of secular ones like Plato’s Forms, Hegel’s historical idealism and Marxian materialism.[3] If this is the case, then it is not a mere coincidence that the emergence of neo-fundamentalist politics in Nigeria is witnessed at a point when the northern Muslim elite seems to have lost control of the federal government and the lucrative posts previously held by its members from which the resources from oil exports were dispensed.

After the annulment of a democratic election by a military government in 1993 and a succession of corrupt and dictatorial regimes headed by Muslim military officers of northern extraction the north found itself increasingly alienated in the scheme of Nigerian politics. Every Nigerian Head of State from 1979 to 1999 was a Muslim northerner, with the exception of an interim leader from the south[4] who was a figure-head for a few months between the two administrations of generals Babangida and Abacha. When the military finally decided to hand over to civilians in 1999, what became clear was that the rest of the country was committed to a “power-shift” and determined not to allow a northern Muslim become the next president.[5] The misguided and unjustified tendency to blame all Muslims and northerners for the nation’s woes and their castigation as corrupt, power-hungry incompetents, coupled with their perceived marginalisation in the new political configuration heightened the sense of insecurity and disintegration of the power bloc.

Unlike the concept of “God’s chosen people” or the philosophies of Heraclitus, Plato, Hegel and Marx, which all originated in times of crisis, the concept of Shari’ah is not a novel one in the northern Nigerian environment. What is recent is the appropriation of that concept (and religious symbols in general) for the purpose of reviving a hitherto lost sense of a common identity and the sublation of individual peculiarities into a homogeneous group, the northern Muslim ummah. The call for a return to Shari’ah and to Islamic authenticity both complements and reinforces the tribal social life of the north. “Tribalism”, as used by Popper, is “the emphasis on the supreme importance of the tribe without which the individual is nothing”.[6] This “tribe” may be an ethnic group, a class or some other collective as, in our case, the northern Muslim people.

The tribalisation of northern Muslims has a dual effect relevant to our analysis. On the one hand it accentuates the difference between northern Muslims and the rest of the country, thus increasing the potential for conflict with “other” groups and collectivities. Second, and more important for us, it pretends away distinctions between sub-units of the new “tribe”. Differences among members on the basis of, say, class and gender, are blurred. The rich and powerful, the politicians and the farmers, merchants and laborers, peasants and emirs, men and women- all these become one homogeneous group with one common interest, the interest of the tribe. This interest is reduced to the strict application of the fixed punishments prescribed in sacred texts while relegating such other concerns as poverty, corruption, mismanagement of public funds and oppression by class and gender. The attempt at concocting an artificial, contingent harmony and imposing it on conflicting interests is resisted by those members of the tribe who contest the very definition of that interest and expose its internal contradictions.[7] This resistance discommodes the new leaders of the tribe and leads to dialogue and conflict within the tribe itself, as members resist the appropriation of its symbols in the service of its dominant elements, without regard to the interests of the poor, the weak and the disenfranchised. This, in my view, is the defining character of the debate within and among Nigerian Muslims on the question of Shari’ah and the method and timing of its implementation. It reflects what Edward Said refers to as “a struggle within Islamic societies over the definition of Islam”[8] itself.

II. Levels of discourse

This paper is principally a paper in Islamic jurisprudence and Qur’anic exegesis, critiquing the amputation of convicted thieves and the death sentences passed on two northern Nigerian Muslim women[9] for alleged fornication based on evidence in the form of pregnancy and childbirth after divorce. However, the reader will note that its criticism of the rulings is, implicitly, a Muslim criticism of the timing and manner of implementation of the Shari’ah criminal law in northern Nigeria.

At this point one should perhaps make a distinction between various forms of criticism and levels of discourse. The “international community” (ie the United States and its western allies), human rights groups and most non-Muslim critics have argued that the fixed punishments (hudood) of flagellation (for intoxication, slander and fornication), amputation(for theft and highway robbery) and lapidation (for fornication and, in some schools, sodomy) in Muslim criminal law are a violation of fundamental human rights. They have widely and vociferously described them as “inhumane”, “uncivilized” and “barbaric” and thus inconsistent with this age and “modern civilization”. Most Muslim critics of the implementation of Shari’ah do not support this position[10] and I have elsewhere critiqued it comprehensively.[11]One of the enduring legacies of A.J Ayer and the Oxford philosophical school of logical positivism is a radically subjectivist ethical theory whose arguments are often too compelling to be ignored. To say that something is “barbaric” or “immoral” or “uncivilized” is no more than to express a personal opinion, a disapproval of or abhorrence for that thing. It is not a statement of fact and is therefore not in any way objective or binding on others. To quote Ayer, saying for instance that someone has “a distorted or undeveloped moral sense…signifies merely that he employs a different set of values from our own.”[12] The principal philosophical error of the “international community” is the presumption that its conception of what is “humane”, “moral” or “civilized” is an objective, universal one, capable of grounding in unanimously shared utilitarian or empiricist proofs. The weakness of this line of argument as applied to Muslim law becomes clear when we consider that imprisonment, detention, hanging, the electric chair and all forms of punishment (sanctioned by different legal dispensations including western ones) can also be easily described as “inhuman”, “barbaric” and “uncivilized”, depending on whose standards are employed. Indeed the debate even within contemporary western paradigms on the question of capital punishment is a pointer to the philosophical weaknesses of this line of argument.

Muslim critics in general conduct their discourse on a different plane, although it is politically expedient for the targets of their criticism to lump them along with international human rights activists. The very question of the legitimacy of implementing some of the hudood in an un-Islamic environment, particularly one in which social and economic justice are yet to be established has been raised by participants in the intra-Muslim discourse. For example, some Muslim critics have questioned the speed with which some of the states embarked on implementing the hadd punishment of amputation on thieves[13] without first establishing a strong welfare base. We know from the experience of the Sudan under Gaafar El-Numayri[14]that all attempts at implementing the hudood without consideration of the material conditions of the majority have ended in disaster.

The debate itself is part of a wider debate in Islam on the interpretation of Qur’anic verses and their application in specific historical contexts. Perhaps the most lucid exegesis of the verse prescribing amputation I have come across in any language is to be found in Muhammad Asad’s English translation, The Message of the Qur’an. In his commentary on this verse, Asad posits that “the cutting off of a hand in punishment for theft is applicable only within the context of an already existing, fully functioning social security scheme, and in no other circumstances.”[15] He begins with the premise that “the extreme severity” of this hadd “can be understood only if one bears in mind the fundamental principle of Islamic Law that no duty (taklif) is ever imposed on man without his being granted a corresponding right (haqq); and the term duty also comprises, in this context, liability to punishment.”[16] Asad then argues convincingly that among the “inalienable rights” of every Muslim is that he “must be assured of an equitable standard of living commensurate with the resources at the disposal of the community.” [17]The Islamic state, Asad adds, “must be so constituted that every individual, man and woman, may enjoy that minimum material well-being…for there can be no real happiness and security and strength in a society that permits some of its members to suffer undeserved want while others have more than they need.”[18] Where the state does not “fulfil its duties with regard to everyone of its members, it has no right to invoke the full sanction of criminal law (hadd) against the individual transgressor, but must confine itself to milder forms of administrative punishment.”[19]

Raquibuz Zaman concurs with Asad, arguing that “before anyone’s hand can be cut off, the Islamic state must ensure that every citizen, Muslim as well as non-Muslim, has economic, social and political protection and security.”[20]According to the former Chief Justice of the Egyptian Supreme Court and a leading jurist, Said al-Ashmawy, in an interview with Joyce Davis, the hudood “punishments are to be applied if we reach a just society in which everyone can find political and economic justice.”[21]

These arguments have formed the basis of Muslim criticism of amputation sentences in northern Nigeria. Ibrahim El-Zakzaky, leader of the Muslim Brothers, a radical Islamist Group, predicated his opposition to the hudood on these premises. Radical Muslim intellectuals have been scathing in their criticism of the implementation of these laws in what is by all indicators one of the poorest parts of the globe.[22] The prolific and popular northern Muslim columnist, Aliyu Tilde, has made similar arguments.[23]

I have elsewhere tried to analyze this debate using the tools of Discourse Theory and shown the need to approach legal rulings in a discursive manner, such that “the meaning of a term is understood in terms of the context (social, historical, economic) that gives it meaning.”[24] I argued in the paper that this is consistent with the jurisprudence of ‘Umar, the second caliph of Islam, as reflected in his suspension of the amputation in the year of famine, his refusal to give the victorious companions four-fifths of the conquered territory of Iraq as prescribed in the Qur’an, and his suspension of compulsory payment of alms to non-Muslims. Each of these acts reflected a comprehension of injunctions within a given discursive and thus a possibility for non-compliance in a different discursive horizon.

Thus Muslim thinkers who argue against the implementation of the sentence of amputation do so not on the basis of the argument that it is wrong or inhumane but on the strict understanding that the state can apply this punishment on citizens only after it has provided for their welfare. The higher the quality of life of all citizens the more unjustifiable theft becomes and thus the more deserving of the harshest punishment. This perhaps underlies the Qur’anic choice of the word “zulm” (injustice or wickedness) in referring to the crime of theft.[25] What is immoral, if immorality be the term, is not the form of punishment but its callous implementation by politicians who have failed (and continue in their failure) to live up to their responsibilities to the citizenry and emulate the standards set by the leaders of the first Muslim community.

These arguments are of course rejected completely by the various manifestations of what Roy calls “neo-fundamentalism”, a movement characterized by its rhetoric on the need for a strict application of the Shari’ah, but which lacks a coherent political theory.[26] This group does not recognize the critical role of a Discursive Horizon in conferring meaning on legal terms. To its members, as noted by Said, these matters are “ahistorical categories, not subject to and therefore outside the critical scrutiny of true believers, who are supposed to accept them on faith.”[27] But precisely because the implementation of the penal laws has been appropriated as the proof of return to authentic Islam, the system is wired towards supplying evidence of its sincerity by “reviving” the law. Indeed all those states that have passed new criminal laws incorporating the hudood but not yet amputated any hands and/or feet are said to be unserious and insincere in their commitment to Islam and the Shari’ah. Preachers, particularly of proto-Wahhabi persuasion, whip up popular sentiment against these governors and point out as role models those states that have carried out these sentences with quasi-sadistic despatch and alacrity. The result is that a number of rulings are made which contravene the law itself and which have caused international uproar and exposed the religion to misunderstanding and avoidable ridicule. Prime among these are the sentences on the two divorcees mentioned above which I will analyse in what follows from the perspective of Maliki jurisprudence.

III. Pregnancy as proof of zina in Maliki law: A critical reading of        Khaleel’s Mukhtasar.[28]

In the chapter “on the hadd of zina and related matters”, Khaleel sets out the three admissible proofs of zina(fornication) in Maliki law in the following terms. “(Zina) is proven by:

1. A single confession (Iqrar) unless it is withdrawn in any manner whatsoever (mutlaqan) or (unless) the confessor runs away (after confessing) even if this happens within the course of implementation of the hadd punishment;

2. Testimony (of four witnesses to the act ie Bayyinah). The hadd is not to be set aside (after this) even if four women testify to the woman’s intact virginity; and

3. Pregnancy in an unmarried woman, or in a slave woman whose owner does not acknowledge (being responsible for) it. Any claim by the woman that she was raped is not acceptable unless where accompanied by corroborating proof.”[29]

The states implementing Shari’ah have adopted this position and thus recognize any of these three as legitimate basis for convicting a Muslim for the crime of zina and carrying out the hadd. The first and second proofs above are accepted unanimously by the Schools of Law, since proof by acknowledgement or confession (iqrar) was accepted by the Prophet and proof based on testimony of four witnesses (bayyinah) is required by the Qur’an. Of the established Sunni schools, only the Maliki school accepts pregnancy as prima facie evidence of zina and a basis for the hadd. In all other schools, subject to a few minor qualifications, pregnancy is at best circumstantial evidence and conviction only takes place based on confession. I have elsewhere critiqued the Maliki ruling on this matter and endorsed the view of the majority[30] so this will not be discussed here. What will be established, however, is that although in theory pregnancy is proof of zina in Maliki law, in practice it is impossible to convict a divorcee or widow and punish her for zina based on pregnancy in that school of law. On a proper understanding of Maliki jurisprudence such women can only be convicted based testimony or confession. Elaborating on this point is the subject of this section of the paper.

Both Safiya Hussein and Amina Lawal were convicted based on 1) their confession to the act of fornication and 2) the fact of pregnancy and childbirth out of wedlock. The proof of confession is easily dispensed with, and we will show later that those confessions simply reflected the failure of the system to provide appropriate guidance such that both women incriminated themselves in the courts of first instance. For now it is sufficient to point out that the “confession” effectively became invalid when it was withdrawn on appeal.

The Sokoto Shari’ah Court of Appeal upheld Safiya Hussein’s right to withdraw her confession even though government lawyers had tried to dispute that right. In acquitting her, however, the court did not address the substantive issue of proof based on pregnancy, relying instead on the more expedient technical point that the alleged offence was committed before the state passed the new Shari’ah criminal code. In the case of Amina Lawal, the Upper Shari’ah Court in Funtua, which recently heard the appeal, ruled that she could not withdraw her confession, and concurred with the ruling that pregnancy was proof of zina given by the lower Shari’ah Court.

The error of the ruling on confession is self-evident from the text of the Mukhtasar quoted above which explicitly counts confession as proof “unless it is withdrawn in any manner whatsoever.” It is trite Islamic Law that in matters involving the hadd apart from the offence of slander (in which the right of humans is also involved) withdrawal of confession is possible, even encouraged. To quote Schacht, “in contrast with the acknowledgement concerning other matters, the confession of an offence involving a hadd can be withdrawn (ruju’); it is even recommended that the kadi should suggest this possibility to the person who has confessed, except in the case of false accusation of unlawful intercourse.”[31] Lawal’s lawyers have appealed the ruling at the State Shari’ah Court of Appeal in Katsina, the same level at which Hussein’s sentence was quashed. Without doubt this particular ruling on confession will be overturned, leaving us with the question of pregnancy, which is yet to be addressed by the appeal courts. We now turn to this question.

A pregnant woman is either married or unmarried. An unmarried woman is either previously married or not. Each of these categories has rulings in family law pertaining to the legitimacy of the pregnancy and only when this is understood can the text of the Mukhtasar on the third proof of zina be properly interpreted.

In the case of a woman or girl who is known never to have been married and who is resident in a locality (that is, not a traveler), pregnancy is taken as prima facie evidence of zina in Maliki Law. As stated by Khaleel, even if she claims she was raped this claim is not to be accepted unless it is accompanied by corroborating signs which, according to commentators, may be for instance that she came bleeding or crying at the time it happened.[32]

In the case of a married woman who has a child it is presumed that the child belongs to her husband in so far as a period of not less than six lunar months has elapsed between the date on which the marriage was contracted and the date of birth of the child. This is the unanimous position of all Sunni schools of law.[33] Where the child is born less than six lunar months (175 days) from the date of marriage, the husband’s acknowledgement is required to establish its legitimate attribution to him.

This leaves us with the final category, women who are divorced or whose husbands have died and who are found to be pregnant and to have a child without having first remarried. This is the category into which both Safiya Hussein and Amina Lawal fall. The basic operative rule Maliki Law is that so long as the child is delivered within the recognized gestation period of pregnancy then it belongs to the (former/dead) husband automatically unless (in the case of a living former husband) he repudiates the child  through the oath of Li’an (which will be explained below)[34]. In the chapter “on Iddah (the waiting period for divorcees and widows) and related matters” the author of the Mukhtasar has this to say:

“And if she gives birth to a child after (the waiting period) before expiry of the maximum gestation for pregnancy it is attached to the (former/dead) husband unless the husband (if alive) rejects it with the oath of Li’an. If she has doubts about the presence of pregnancy she is to tarry. And is (the maximum gestation) five years or four years? There is a dispute.”[35]

Evidently, only where the divorcee or widow has a child after four or after five years from the date of divorce or husband’s death is there a basis for taking this pregnancy as proof of zina. But even this is not at all certain in Maliki Law. Khaleel quotes Malik’s fatwa from the Mudawwanah to the effect that “were she (ie the divorcee or widow) to remarry four months short of the fifth year (from date of divorce or husband’s death), and then have a child in the fifth month (of the new marriage), it belongs to neither husband and she should face the hadd.” Khaleel then adds, the word “wastushkilat”, referring to this ruling, indicating that it is viewed as problematic (by some of the shaykhs- prominent jurists- of the Maliki school).[36]

The ruling is basically this. A previously married woman remarries after four years and eight months of the end of her last marriage and has a baby after five months of the new marriage. Because five months is less than the minimum gestation the child does not belong to the new husband. However the total period between termination of last marriage and birth is five years and one month ie. beyond the maximum term (which is here taken as five years). So the child is not the first husband’s. Malik therefore ruled that in such a circumstance the pregnancy is proof of zina, the child is illegitimate and the hadd should be applied on the woman.

As noted by Khaleel this fatwa of Malik’s has been received with skepticism by Maliki jurists. ‘Ulaysh mentions Abdul Haqq and Lakhmi among the shaykhs that find the ruling problematic “since the maximum gestation of five years was not fixed by Allah nor His Messenger as to warrant distancing the child from the first husband and lapidating the woman.”[37] He also quoted Abul Hasan al-Qabisi as viewing with gravity “that a child’s legitimacy from the first husband be denied and a woman be lapidated for having a child after five years by one month as if the bar of five years was fixed by Allah and His Messenger.”[38] Adding to the complexity of the issue is the fact that the jurists differ widely over what the maximum gestation is. Indeed Malik himself has given conflicting rulings. Al-Dasuki sums the position up in his Hashiya when he states that “ it has been reported from Malik that the maximum term is six years and narrated from him that it is seven years. The inconsistency is a shubha (uncertainty which prevents the hadd). So reflect on this.”[39]

The sum of this argument is the following. Where a divorcee or a widow has a child within the maximum gestation the child belongs automatically to the previous husband unless he is willing to go through the process of Li’an. Where the maximum gestation is exceeded then, according to Imam Malik, the pregnancy is prima facie evidence of zina. However this maximum gestation has not been fixed in the Qur’an or Hadith and the jurists differ widely on its limitation[40]. Malik himself has on considerable authority placed it on different occasions at four, five, six and seven years. Because of this there will always be an element of uncertainty on the question of maximum gestation and therefore the legitimacy of the child and its attribution to the former husband should be presumed. The jurists clearly do not accept the Imam’s ruling on implementing the hadd on a widow or divorcee even where her pregnancy extends beyond five years. Indeed the mere fact that Khaleel draws attention to the dissenting views of Lakhmi, Qabisi and ‘Abdul haqq on this ruling is a pointer to his own reservations. We have shown that these reservations are implicitly reinforced by leading commentators of the Mukhtasar, particularly Muhammad ‘Ulaysh(in the Minahul Jaleel) and ‘Allama Shamsuddeen al-Dasuki (in his  Hashiya).

There is a final, related question in comparative jurisprudence. It is clear from the text of the Mukhtasar that only when the former husband denies the child through Li’an can the child’s legitimacy be questioned. In this Maliki Law differs a bit from the Hanafi School. In the latter school, where a divorcee has a child within permissible gestation (two years in their case), the mother remaining unmarried, this is taken as “conclusive proof that he is the legitimate child of that man unless (a) the husband had refused, or refuses, to own the child; or (b) the child was born after the expiration of six lunar months from the date on which the woman had accepted that the period of her iddat had come to an end.”[41]

This second condition is not accepted by Maliki jurists. ‘Ulaysh writes in his commentary on the Mukhtasar that “her case is not adversely affected were she to acknowledge completion of her iddah. This is because menstruation as a pointer to the absence of pregnancy applies to a majority of cases only (ie not to all cases) since a few pregnant women do indeed menstruate.”[42]In other words, the fact of menstruation by a woman during iddah is not to be taken as conclusive proof of the absence of pregnancy.

This leaves us with that single condition as contained in the Mukhtasar. The process of Li’an is one in which a husband takes an oath before a court four times swearing by Allah the Almighty that his wife is guilty of zina. After that he then says “Allah’s curse be upon me if I am a liar in my accusation of zina against my wife (and he should name her). Once the husband takes this oath the child is not his. However the woman is only subjected to hadd if she fails to take a counter oath in which she also swears four times by Allah the Almighty that her husband is a liar in his accusation of zina against her. After that she says “Allah’s wrath be upon me if he is truthful in his accusation of zina against me.”[43]

IV. Practical Implications

What becomes obvious is that although in theory Maliki Law considers pregnancy in the unmarried woman as proof of zina, in practice it is impossible to convict a previously married woman of zina and lapidate her, unless there are four witnesses to the act or unless she voluntary confesses and refuses to withdraw that confession, her being mature and of sound mind and aware of the meaning of the crime and the gravity of the penalty. The difficulty of convicting her arises because quite apart from the very long gestation period for pregnancy in Maliki Law of Personal Status, the contradictions among jurists in fixing it are considered by leading jurists of the Maliki School sufficient reason to prevent the hadd in criminal law. This conclusion is inescapable from a critical reading of the Mukhtasar and its commentaries. Furthermore, whereas other schools have taken her acknowledgement of the completion of her waiting period as proof of absence of pregnancy, Maliki law gives her the benefit of doubt even  in this circumstance.

In consequence, for all practical purposes pregnancy is not proof of zina in a previously married woman  in Maliki law, and only the former husband has the locus standi to initiate action against her. If he does he must go through the grave process of li’an, taking a major oath and invoking God’s curse upon himself, risking having his ex-wife stoned to death on the basis of suspicion- since he was presumably not an eye witness to the act of zina of which he accuses her.

In this respect, Maliki law paradoxically offers widows and divorcees more protection than other schools. This is because in the three other schools of law a child born after expiry of gestation is not automatically considered as the legitimate son of the previous husband, even though lapidation can only take place based on confession by the woman. In Maliki law as we have seen, there is considerable authority for presuming its legitimacy due to  the quasi open-ended gestation period. This is why in spite of the ruling on pregnancy it is difficult to find historical evidence of lapidation based on it. Indeed in the Islamic caliphate of pre-colonial northern Nigeria Christelow has concluded, based on available data, that with the exception of flagellation for fornication and consumption of intoxicants, the hadd penalty was seldom applied.[44] The sentences being passed in northern Nigeria reflect ignorance of or undue politicization of the law, rather than a strict application thereof.

The converse is true in the case of previously unmarried women. Here Maliki law places upon them the burden of proof. It is almost as if having gone to extremes to give divorcees and widows benefit of the doubt, the jurists make up by giving those who have never married no such benefit, at the risk of convicting victims of rape for zina. For all practical purposes pregnancy as proof of zina can only be realistically invoked in the case of previously unmarried women, for whom the hadd is 100 lashes.

V.Conclusion

The last section leads to interesting questions in legal theory, as we try to understand and unravel the logic of Maliki jurists. This will hopefully be the subject matter of a forthcoming paper. For now, what is obvious is that pregnancy and childbirth should not have been the basis for suspecting, much less charging and convicting Amina Lawal and Safiya Hussein for the crime of zina in received Maliki law. To compound the issue each of them reportedly had the child less than two years after date of divorce, long before the point at which a disagreement exists between the Imam and the Shaykhs. With proper guidance and due process the state should not have a locus standi to prosecute the women and they would not have been placed in a position where they incriminated themselves and thus stripped themselves of the in-built protection in Maliki Law.