American Muslims need to speak out against violations of Islamic Shariah law.
We know that Nigeria is a budding democracy and the Government is allowing local states to adopt Shariah law to exert their own rights. But we American Muslim women can not sit back and watch Shariah penal codes being played out by patriarchal Muslims at the expense of a woman who is wrongfully accused of Adultery "Zina".
According to Islamic Law, the act of intercourse itself has to be witnessed simultaneously by four fair witnesses in order for a person to be charged with adultery. The act of "intercourse itself" means the act of "actual penetration". For example, establishing that someone was alone in bed with another person of the opposite sex does not satisfy the high standard of proof required for an adultery charge. This requirement makes it almost impossible for anybody to be accused of adultery unless they are committing the act in public, and hence corrupting public morality.
Islam believes deeply in the individual's right to privacy. For this reason, spying on each other and gossiping is strongly admonished. So, if a person engages in a prohibited conduct privately, judgment is God's (as it always is). It is only when this conduct is engaged in publicly in defiance of public morality that society is entitled to exact punishment or restitution.
Traditionally, the punishment for married persons committing adultery (whether male or female) is stoning to death and for unmarried people are 100 lashes. The Quran does not mention death by stoning. In fact, it is part of biblical law. Early Muslim jurists, however, adopted the principle that where the Quran is silent on a matter, it is permissible to supplement Shari'ah (Islamic) law by existing biblical law. This principle is based on the belief in the unity of revelation in the Abrahamic faiths.
The tough requirements for establishing adultery were instituted to protect women against idle gossip, slander and worse. A case in point is the story of Aishah, the Prophet's wife who was left behind in the desert while her caravan moved on unknowingly without her. She was found by a stranger and brought back home to the Prophet. Harmful gossip circulated in the community, and both the Prophet and Aishah were pained by it. Some men recommended that the Prophet put an end to this situation by divorcing her. Distraught and upset, Aishah went to stay with her parents. Then, God sent a revelation exonerating her: "And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations) flog them with eighty stripes and reject their evidence ever after: for such men are wicked transgressors." This was the occasion upon which adultery rules were revealed to protect Muslim women from insidious gossip.
Furthermore, generally in Islamic law pregnancy without being married is not evidence of adultery. This is because Muslim jurists wanted to give Muslim women the benefit of the doubt, given the gravity of the charges. They noted that a woman may have gotten pregnant by means
beyond her control such as rape or some other form of fertilization. The Maliki school of thought differs with the other schools on this point. It considers pregnancy a prima facie evidence of adultery. However, the Maliki school of thought balances the harshness of this presumption with a substantive protection extended under the concept of the "sleeping child."
Some states in Nigeria, including the one trying Amina Lawal, have adopted Shariah law and follow the Maliki school of jurisprudence. Under this concept, if a woman is separated from her husband through death, divorce, or some other reason for as many as four (in other jurisdictions, up to seven years) and has a child during this period, the child is attributed to the husband. The jurisprudence underlying this concept is complicated and rests on certain early precedents, but
its effect is to give the woman immunity from adultery charges during this protected period, unless she freely and knowingly confesses to adultery.
Ironically, in the case of Amina Lawal the Nigerian courts have been inconsistent. First, Lawal is unmarried. So even in the Maliki tradition, if she committed adultery, her punishment would not be stoning, but lashing. Further, since she is still within the protected period following her divorce from her husband, she should not have been even hailed into court or questioned about her pregnancy. The "sleeping child" presumption should have protected her completely.
It is reported that Lawal confessed to adultery during the process of interrogating her. But there are serious questions as to whether this confession was either informed or free. Furthermore, it is also reported that she later recanted. Under Islamic law that is enough to throw out the confession. The court of appeals in Nigeria refused to do so.
Consequently, the Nigerian courts have not followed even their own Maliki jurisprudence in trying the case of Lawal. Her case appears to have been driven more by political and tribal considerations, than Islamic ones.
Shedding light on how Islamic Law is distorted and misused will depend upon how much interest American Muslims take in this subject. Muslim Women must act in the service of their cause rather than expect others to do it for them.
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