Jenda: A Journal of Culture and African Women Studies (2001)
ISSN: 1530-5686
SAFIYATU’S CONVICTION UNTENABLE UNDER SHARIA
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Jenda: A Journal of Culture and African Women Studies (2001) ISSN: 1530-5686 SAFIYATU’S CONVICTION UNTENABLE UNDER SHARIA |
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Buba Iman
This Day (Lagos)
December 11, 2001
From the onset I must admit that I was not present in the Upper Sharia Court Gwadabawa during the proceedings of the trial. I was also not opportune to read the record of proceedings of the case. The only materials I have in my disposal are news from Television, Radio and Print media (especially Weekly Trust and Daily Trust).
Notwithstanding this serious handicap, I feel strongly that one should make legal comments within the purview of Sharia to highlight certain salient issues about the procedure adopted before and during the trial of Safiyatu Huseini of Zina by the Qadi Mallam Muhammad Bello of the Upper Sharia Court Gwadabawa.
The fact that there is presently a pending appeal before the Sharia Court of Appeal Sokoto, this will not preclude one from proffering legal comments, as Sharia or Islamic law encourages superior legal opinions to be made during a trial and even after. As a matter of policy, each Judge should be assisted by a Mufti whose duty is to render legal advice from time to time to the Judge so that justice is dispensed according to the laws of Allah. Under the Sharia therefore, there is nothing like committing contempt of court when a case is sub-judice.
From the available records one can safely assert that Safiyatu Huseini was suspected by a group of Hisba of carrying an illegitimate pregnancy and upon which she was apprehended and taken to the Police for investigation. It was the police which took her to Upper Sharia Court Gwadabawa after completing their investigations. This assertion was corroborated by both the Police Gwadabawa and the Sokoto Sharia Committee Chairman Sheik Muhammad Mode Abubakar (See Weekly Trust November, 28-2001).
One can also assert that the Police/Hisba were made a party as a result of which the Judge extracted a confessional statement from Safiyatu that she had an illicit sexual intercourse with one Yakubu. It is also not in dispute that when Safiyatu was first brought before the Upper Sharia Court Gwadabawa, she was not pregnant, as she was infact carrying a baby.
In a nutshell, there was an extra-judicial function perpetrated by the Police. Also the Hisba Group on their part had carried out some spying activities on Safiyatu which resulted in her being accused of committing Zina based on alleged illegitimate pregnancy. Their action can best be termed as over zealousness to implement the newly introduced Sharia in Sokoto State.
Zina or adultery is divided into two. Zina committed by a girl or an unmarried man and Zina committed by a married woman or divorcee and a married man or once married. This distinction becomes necessary because punishment (Hadd) varies for each group.
Punishment of Zina for a girl or man who never marries is 100 strokes of lashes. (See Suratun-Nur verse - 2) while the punishment for a married man or woman is death by stoning. This punishment was unanimously upheld by all the Islamic Jurists on the basis of the famous Hadith reported by Abi Hurairah. (See Fiqhus-Sunnah Vol. 2 Pg. 347) see also Fat Hur-raheem part 3 pg. 50).
Before any person (Muslim) is convicted of the offence of Zina one of the following facts must be established:
1. Production of 4 (honourable) witnesses, all of them at the same time saw the actual sexual intercourse.
2. Confession: The person making the confession must be adult, sane and such confession is given out voluntarily without inducement or rebuke.
3. Lian (action of imprecation): Failure of the husband or the wife to take the 4 judicial oaths denying committing Zina. This situation arises when a husband makes an allegation against his wife that she either committed Zina, or the pregnancy is not his or disowns the paternity of a particular child of the wife. If the husband confirmed his allegation against the wife by swearing on the Holy Quran 4 times and adding with 5th Oath that if the allegation he levied against the wife is false, may the curse of Allah descend on him. And where the wife, refuses to rebut this allegation by swearing 4 times denying such allegation, her failure to do so shall be a conclusive proof that she really committed Zina and shall be punished accordingly i.e. death by stoning (Rajamu).
4. Evidence of Pregnancy: This form of proof is only exceptional to Maliki Law School. The other schools, namely Shafii, Hanbali, Hanafi and even the Shia do not recognize evidence of pregnancy as proof of Zina.
It is not very difficult to find some contradictions even under the Maliki Law School, which recognises this type of proof as the school has fully recognises Lian as a proof to establish an illegitimate pregnancy where the other party fails to take the 4 Judicial Oaths to rebut the allegation levied against him/her.
Evidence of Pregnancy as proof of Zina may only be relevant where a girl (bikr) carries a pregnancy which in this case her punishment should not be death by stoning but stroke of 100 lashes. On the whole, it is safer to regard evidence of pregnancy as proof of Zina as rebuttable presumption/proof. Situations abound where pregnancies are taken outside wedlock, but Sharia does not take cognizance of them as Zina. Take for example, the case of pregnancy caused as a result of rape or pregnancy caused as a result of void or invalid marriages.
Adultery under the Islamic Law is one of the grievous sins and if a Muslim is convicted of adultery, the correct sentence is death by stoning if the convict is ever married (Muhsin) and if never married (bikr) is 100 strokes of lashes.
Allah (S.W.A.) in His infinite wisdom, while prescribing severe punishment for Zina at the same time laid down stringent standards of proof and procedure for the conviction of Zina. The punishment serves as a deterrent to adulterers and fornicators while the standard of proof protects individuals and the Muslim Ummah at large from committing slander and character assassination.
There is no evidence at our disposal to show that since Allah (S.W.A) decreed the Hadd of Zina to date there was any case of Zina which conviction was passed on the basis of the testimony of 4 honourable witnesses. Conviction of Zina, during the lifetime of our Messenger Muhammed (S.A.W), the four Orthodox Caliphs and the rest of the companions were established only by way of confession or lian.
Having said all these, it is now pertinent to ask or examine the following issues, which directly have bearing to the trial and subsequent conviction of Safiyatu Huseini of Zina by Gwadabawa Upper Sharia Court:
1. When was Safiyatu divorced and when was she pregnant?
2. Under the Sharia, is it lawful for Hisba Group or any person for that matter, to spy on women who carry suspected illegitimate pregnancies?
3. Is it lawful under the Sharia for a Hisba group to apprehend a woman and take her to Police station for investigation on mere suspicion that she is carrying an illegitimate pregnancy?
4. Is it allowed under the Sharia for a Hisba Group or the Police to carry some investigation in the case of Zina on behalf of the Court?
5. Who is the Complainant? And what is the nature of the claim or right complained of?
6. Did Safiyatu really confess to committing Zina or was her confession taken as a result of the investigation carried out by the Hisba Group and the Police?
7. Was Safiyatu pregnant when she was first brought before the court?
In attempting to answer these questions one has to rely once again on the print media especially the Weekly Trust and the Daily Trust.
According to Mallam Muhammad Bello, the Judge of the Upper Sharia Court Gwadawaba, Safiyatu’s case was brought to him by the Police in writing by way of First Information Report. If this is the case, the Police must have first investigated the case based on the complaint against Safiyatu by the Hisba Group accusing her of committing adultery for being a divorcee and pregnant. This assertion was also confirmed by the Chairman Sharia Implementation Committee, Sheik Mohammad Mode Abubakar who insisted that the accusation of Zina made by the Hisba Group against Safiyatu did not at all amount to spying. Sheik Abubakar further added, the Hisba Group had only assisted the Government in eradicating all these social vices.
It is evidently clear that Safiyatu was not pregnant when she was first brought to court by the Police/Hisba. In fact several pictures of Safiyatu showed that she was carrying a baby girl at the material time. So evidence of pregnancy as proof of Zina was not before the Court.
The fact that Safiya was convicted of Zina by stoning to death, it presupposes that she is a Muhsin (married or divorcee). The only evidence or issue for determination before the Court therefore, was the issue of paternity of Safiyatu’s baby which neither Safiyatu nor her former husband ever complained of.
Sharia does not generally recognize public prosecution whether civil or criminal cases except in the case of Ridda, Shurbul-Hamr (Taking of Alcohol) or Rebellion against the state. It is also difficult to separate the substantive law from the procedural law when deciding Hudud cases especially that of Zina.
It is also important to note that, it is only the Court, in this respect the Judge who has the sole authority to receive complaints and take evidence. Any complaint, investigation or evidence received by any person or authority other than the Judge is void. Under the Sharia, there is nothing like preliminary investigation or filing First Information Report before a Sharia Court. Determining who is the complainant by the Judge is a fundamental issue in trying all cases especially that of Zina.
Under the Sharia, the executive arm of the government, i.e. the Police and the Hisba Group for that matter are completely excluded from any judicial function in order to protect the independence of Judiciary and dispense justice in accordance with the Laws of Allah (SWA). The duty of the Executive with regards to Hudud (crimes) is to prevent the commission of the crimes but once a crime is committed, it is the victim or one whose right has been violated to initiate legal action before the Court of Law. The Locus Standi as obtainable under the common law is given a very narrow interpretation under the Sharia.
Having considered all the facts and issues at our disposal, it is my humble submission that should Safiyatu’s case go on appeal before the Sokoto State Sharia Court of Appeal, the decision and judgment of Gwadabawa Upper Sharia Court should be set aside and the following orders be made o the following grounds:
1. There was no legal claim or complaint (cause of action) before the Upper Sharia Court Gwabawa as both the police and the Hisba group are incompetent under the law to lodge a complaint against Safiyatu of committing adultery. They cannot be parties to this case. The proper parties are either Safiyatu’s former husband coming to the court to disclaim the pregnancy or the paternity of the baby or Safiyatu herself coming to court to confess that she committed Zina. And since there is no proper claim and no complainant recognized by Sharia, the Gwadawa upper Sharia Court Judge was duty bound to dismiss the complaint of Zina lodged by the Police/Hisba against Safiyatu.
2. Evidence of pregnancy as a proof of committing Zina can only be upheld where a husband or former husband disowns the pregnancy by way of Lian or where a woman on her violation comes to court and confesses that she committed Zina as a result of which she is pregnant. Though the Gwadawa Judge erroneously assumed jurisdiction to try the case when there was no complaint known under the Sharia as both the Police and the Hisba Group cannot lay complaint against Safiyatu of committing Zina, he should have adverted his attention to the issues of Lian or Paternity of the child. Under the Sharia, a child born six months of the time of pregnancy is deemed to be a child from that marriage. This is the minimum period of gestation. The maximum period of gestation under the Maliki law is five years. The Legal position is therefore, where a divorcee becomes pregnant within the period of five years that pregnancy or child is deemed to be legitimate child of the former husband unless and until disowned by way of Lian by the former husband.
3. Going by several authenticated/sound Hadiths on confession of Zina, it was a wrong decision for the Gwadawa Judge to have acted on confession by Safiyatu extracted by the Police/Hisba Group. Before a confession is termed valid confession, it should be given freely and voluntarily. Safiyatu, on her violation should come to the court and say that I have committed Zina by this pregnancy. Safiyatu was apprehended, taken to Police and made not only to confess that the pregnancy was outside wedlock but was forced to say that it was one Yakubu who pregnanted her.
4. Safiyatu Huseini should be discharged and acquitted of committing Zina, but should be sentenced to 80 (eighty) stroke of lashes for making false and injurious allegation against Yakubu of committing Zina. (Suratun-Nur Verse 4).
5. Likewise, the Hisba Group who spied on Safiyatu Huseini, apprehended her and taken to the Police for investigation and subsequently lodged a complaint against her of committing Zina should be similarly sentenced to 80 (eighty) stroke of lashes each for false allegation against Safiyatu Huseini for committing Zina. (Saratun-Nur Verse 4).
6. Any enabling law passed by the Sokoto state Assembly vesting power or authority on any individual or group of persons to spy on women or men for alleged commission of Zina should be repealed forthwith, as such law contravenes the provisions of the Qu’ran the Sunnah of the Holy Prophet as well as the entire Sharia on Hadd for Zina propounded by the Islamic Jurists.
Copyright 2001 THISDAY (Lagos)
Citation Format
Iman, Buba (Reprint, 2001). SAFIYATU’S CONVICTION UNTENABLE UNDER SHARIA. Jenda: A Journal of Culture and African Women Studies: 1, 2.