veiled4allah: Amina Lawal's victory veiled4allah: Amina Lawal's victoryReading the hour-long ruling in the local Hausa language, Judge Ibrahim Mai-Unguwa argued that only one judge was present during Lawal's initial conviction in March 2002, instead of the three required under local Islamic law. He noted that under some interpretations of Shariah, babies can remain in gestation in a mother's womb for over five years, opening the possibility that her ex-husband -- whom she divorced two years before giving birth -- could have fathered the child.As I explained when I first posted on this issue last December, the conviction of Lawal was a travesty perpetrated by people who are either ignorant of Islamic jurisprudence or uninterested in applying it properly.
Mai-Unguwa also said the policeman who first arrested Lawal in 2002 should have been flogged because he did so in violation of Islamic law, which requires four witnesses to the crime. Lawal was not "caught in the act," Mai-Unguwa said.
Ibrahim, the defense lawyer, welcomed the decision.
"It's a victory for law. It's a victory for justice, and it's a victory for what we stand for -- dignity and fundamental human rights," she said, smiling broadly.
Lead prosecutor Nurulhuda Mohammad Darma said he was "satisfied" with the ruling. The state has 30 days to appeal, but Darma said that was unlikely.
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Subject: Re: Amina Lawal\'s victory
asalam alikum dear nijabiparalegal:-)I am neither a lawyer nor well versed in sharia. But as a woman and muslimah, I am concerned
about a few things; where does sharia explain a woman can gestate for 5 years and further, who
explains the implications of a woman carrying one man's fetus, and due to change of circumstance
is with another man (within a Islamic context)what then are the paternity issues; if a woman can gestate for 5 years
is she free to marry? did she count iddah? she would have to count 3 cycles--a gestating woman may not
be cycling normally...does this all sound strangely confused?
Perhaps it is my lack of knowledge in sharia that these questions arise...I'm not sure,
but if science is being held up as the basis in front of the world to define innocense,
for the sake of our religion, let us hope that women can actually gestate for 5 years, otherwise this is
a mockery. I'm not arguing against freeing Amina, I'm questioning
how sharia is being interpreted or not, for political convenience.
Subject: Re: Amina Lawal\\\'s victory
The Islamic basis is discussed here. I think that this article will be helpful to you in understanding the sources of the rule in the Maliki madhhab.Subject: Re: Amina Lawal\'s victory
Do I understand correctly that if the pregnancy had occurred more than 5 years after the divorce (or if there had been 4 witnesses), then Amina Lawal should have been convicted and stoned to death?Do the judges determine the punishment or is that defined in sharia?
Subject: Re: Amina Lawal\\\'s victory
There is a difference between adultery de facto and adultery de jure. Adultery de facto is any time where a person who is married has sex with someone other than their spouse. Adultery de jure is what the law defines as a criminal offense. Not every instance of adultery de facto is adultery de jure. It must meet the standards of proof.The primary standard of proof is four witnesses to the act of sexual penetration. As you must realize, this is something that almost never occurs. It certainly did not occur in Amina Lawal's case.
In the absence of witnesses to the actual act of sexual intercourse, there are two alternate methods of proof. One of these is a confession; the confession must be voluntary and may be retracted without penalty according to most scholars. The prosecutor in the Lawal case attepted to claim that there was a confession, but the appeals court ruled that the confession had not been properly taken and was therefore invalid.
That leaves the third possible method of proof, which is pregnancy, on the grounds that pregnancy is a pretty clear proof that some sexual intercourse has taken place. There is a difference of opinion among scholars about whether pregnancy by itself really can serve as a proof. Some scholars think that it cannot. The school of jurisprudence that is used by Nigeria thinks that it can.
There's something here that is largely overlooked by these discussions. If a woman is married, the child is presumed to be her husband's unless it has been established that he is unable to have fathered it. For instance, he is impotent, or he was living in another country. In nearly all cases, any child born to a married woman is presumed to be her husband's and therefore does NOT prove adultery.
So pregnancy really only can serve as a proof if the woman is unmarried BUT - and this is the overlooked part - the death penalty does not apply to unmarried women, only to married women.
That's what's so screwed up about this. Amina Lawal is a divorcee. She should never have been charged with adultery in the first place nor had the death penalty applied to her.
Let me summarize this again. For a married woman, there must be four witnesses to the act of sexual intercourse or a confession on her part. Otherwise, not only is she blameless and innocent, but she can prosecute her accusers for slander and they'll be the ones who are punished. The four witnesses thing almost never happens and confessions are subject to strict scrutiny and are probably not admissible. So adultery convictions against married women should almost never occur. If they do, there's probably been some perversion of justice.
For unmarried women like Amina Lawal, there is no death penalty. Because of the unlikelihood of four witnesses or confession as noted above, the main way that a charge of fornication might be brought against an unmarried woman is by evidence of her pregnancy - for those who accept this and not everybody does. For those who don't, a conviction of fornication against an unmarried woman is almost as unlikely as a conviction of adultery against a married woman. It should almost never occur.
For those who do accept the evidence of pregnancy, there are rules set up about what pregnancies count. This generally applies if the woman gets married after the alleged act, or was married before it. If she gets married after it, the baby might be her husband's instead; if she was married before it, the baby again might be her husband's. So there needs to be some rule about the minimum and maximum possible length of a pregnancy. From my understanding, the minimum length of pregnancy is six months. So if a woman gets married and six months later has a baby, the baby is presumed to be her husband's because it might have been a short pregnancy. There are different opinions about the maximum length of a pregnancy; the one followed in Nigerian jurisprudence is five years. So even if the child was born five years after a divorce or the death of the husband, the child is still presumed to be his because it might have been a super-long pregnancy.
So an woman who gave birth less than six months after her marriage, or a divorcee or widow who gave birth more than five years after the end of her marriage are the only people against whom the pregnancy proof could possibly apply. But again, there is no death penalty in these cases. If Nigeria had put Amina Lawal to death, they would have done so wrongfully. A person who kills another wrongfully is a murderer and is to God as though they had killed all of humankind together (Quran 5:32). The death sentence would be a total perversion and travesty of justice and those who carried it out would be called to account for their crime before God.
Finally, there is always judicial discretion even if all the standards of proof are met. I discussed this somewhat here.