Ethics and world religions

Ethics and World Religions

Interpretations of Shariah in relation to adultery and how interpretations of Shariah relates to the case

Sharia Law originates from the teachings of the Koran and also from the Sunna which is the practice of Prophet Mohammed is carried out in different extent in various Islamic countries. Under the provisions of Sharia law, there are particular set of offences which are known as Hadd offences which are punishable by stipulated penalties such as stoning, whiplashes or the cutting down of hand. However the penalties for Hadd offences are not universally adopted as binding law in some Islamic nations. These Hadd offences are assigned specific penalties, stipulated by the Koran and also by the Prophet Mohammed. One of them is adultery. These sexual offences are penalized by stoning to death or flogging. Several Islamic nations have stipulated adultery as criminal offences under law, but they are not labeled as Hadd offences since they do not carry the Hadd penalty. On the contrary they are punishable by a prison term. In the present case of Amina Lawal, it has propelled a civil unrest with outbreak or riots between Christians and Muslim communities regarding the extent of rule of Sharia. The overwhelming majority are of the opinion that in sentencing Lawal, the Islamic Court overlooked a previous ruling by the federal courts that considered the death penalty as unconstitutional for offences like adultery. (Steiner, 4)

As the Sharia law is construed and practiced in various forms across the world, not all primarily Islamic societies carry out such penalties from committing a Hadd offense. Similar to a lot of Middle East nations, Egypt recognizes Sharia as a constituent of its jurisprudence, but prefers not to enforce Hadd penalties in its severe form as a part of the state law. There adultery is often penalized with confinement in jails for short duration. Many regions like Sudan, Saudi Arabia, Pakistan and Iran have all espoused the Sharia penalty code; however continue to enforce penalties with differing intensities of consistencies. Among the Islamic nations, Iran is one among the few nations known to have imposed death sentences by stoning. In a lot of other nations, these sentences are sometimes commuted to lashing or jail terms. Nigeria's Sharia law seethed to an internal dispute till 2002 when Amin Lawal faced adultery charge in a Sharia court. Her sentence had forced ire from human rights groups who are against the death penalty and physical punishments. The public outcry coupled with international pressure heaped before her appeal and when the Sharia court heard her arguments during September 2003, the court reversed her death sentence, stating that the authorities had not permitted her to sufficiently protect herself in the original trial. Ever since the verdict, the court officials in Nigeria have cautiously traveled the line between religious laws and the national court systems and several of the differences between the two systems have calmed down. (Sharia Law and Nigeria)

Viewed from another perspective, it assumes the duty of all Muslims and particularly the ulama i.e. The religious scholars everywhere to evaluate if the Islam truly prescribes this punishment for 'zena' which is the illegal sexual intercourse between a man and woman. As Islam is the epitome for sexual purity, it regards all sexual intercourse outside the marital bond as sinful. Therefore it does not make any distinction between adultery and fornication or makes difference between the two circumstances whether both the persons are single or one of the parties or both are married. The Koran is the final frontier of the Shariah as Allah has guaranteed its integrity. Flogging is stated in Koran and nowhere there is the statement of the word stoning or death by stoning i.e. Rajm. According to verse 24-2 "the women and the man guilty of adultery or fornication flog each of them'. It is worthwhile to examine how this pre-Islamic punishment has seeped into Islam? It is the version of the jurists to consider that the Koranic punishment in Verse 24(2) which applies to the fornication and in the case of adultery, the Sunnah of the Prophet stipulates stoning to death. (Shahbuddin, 7)

The maximum accepted collection of Hadith Sahih has given 4 entries under 3829, 8804, 8805 and 8824 that points to stoning by death. The case covered under 4829 entailed Jews those who were stoned to death as per the Law of the Torah. According to 8805 a married male belonging to the tribe of Bani Aslam who had committed the act of unlawful sexual intercourse and bore witness on four occasions against himself was ordered by the Prophet to be stoned to death. However 8804 and 8824 eclipse one another. Moreover in case of both, the narrator admits his lack of knowledge if the stoning to death was undertaken prior to or following the revelation of the Koranic verse 24-2. In the instant case of Amina, there has been an element of gender injustice in the operation of the conventional law that lets the male partner to be acquitted, although he has coerced the female in having sex. When the woman reports about the matter, her complaint is considered as a testimony against her and thus amounts to acknowledgement and needs no more proof whereas it is needed to get four witnesses against the man. Besides, the women might give birth to a child, as it happened in case of Amina which is acknowledged as proof of zena against the woman. However the man does not suffer from any such disability. Here Amina has reportedly named the man from whom she has begotten her daughter; however the Shariah court is very conservative to apply the genetic test. (Shahbuddin, 7)

Against popular belief, under Chapter 24 of the Islam's holy book, the Koran gives an express instruction to believers to whip persons found guilty of adultery. According to Maulana Muhammad Ali, an important Muslim scholar, stoning to death was not at all ever thought by Islam as a form of punishment for adultery. In the opinion of Roman Catholic Arch Bishop of Lagos, Dr. Anthony Olubunmi Okegie, stated that the official text of the Koran only states about a punishment of designated number of lashes for such type of offence and not stoning to death. Nevertheless the penalty of stoning to death was included later by Omar, the second Calif. It has been held by a lot of Muslims academicians and judges that the Koran at no point refers to the executions by stoning. According to him, a vast multitude of people consider Shariah to be severe and an extreme form of treatment which is not. In his view, amputations and pelting stones are believed to be used exclusively as the last resort and exclusively within those Islamic societies which have been able to remove poverty as also corruption. However neither condition has been able to be achieved either in Nigeria or in other nations in which stoning is a punishment form. (Punishment for non-marital sex in Islam)

2) Prevalence of Sharia in Northern Nigeria:

The year 2000-2001 saw the reintroduction of Sharia in 12 states of Northern Nigeria which has a predominantly Muslim population. A table showing the dates of introduction of Sharia law in the northern states of Nigeria is shown in Exhibit -I. Introduction of Sharia in resulted in significant tensions in Nigeria and triggered a lot of religious and ethnic clashes taking a toll of thousand of victims. The divide between the north which is mainly Muslim and the south populated mostly by Christians also deepened and put in a new identity by the population inhabiting the middle belt in Nigeria. Christians account for 40% of the population while the Muslim representation is 50% while the followers of traditional African religions are close to 10%. Taking this in account, Nigeria is one of the largest Muslim nations in the world. This type of structure has taken shape since centuries. Christian influences arrived with the English from the sea-side whereas the Muslim priest and scholars preached their missionary work from the Northern part. (Pitaszewicz, 87)

During the British regime in Nigeria's northern states, they discovered a well-organized and efficient legal system managed by independent emirs. The regulation of the Sharia called by them "the Muslim law" were made applicable in civil and penal cases and were executed by the Alkali Courts in the regions and by the Courts of Appeal created under the patronage of emirs. The British colonial rule regarded the Sharia as a constituent of the legal system functioning in Nigeria, controlled to the Anglo-Saxon system of the Common Law and Statute Law. Besides, the British rule was against the Sharia in its giving verdict of penal cases, and it identified some of its authority repulsive. For instance the punishment for theft was severance of the limbs, the punishment for drinking alcohol was whipping, whereas adultery and murder was penalized with stoning, crucification or decapitation. Every form of retaliation or mutilation of the body was rigidly prohibited and in its place was given imprisonment. Moreover the 'diyya' or blood money stipulated for killing or mutilating of a man was stopped. However, whipping as a punishment for theft and added offences remained in its applicability in local courts. (Pitaszewicz, 87)

Hence till 1960, the Alkali Courts applied the Sharia also in penal cases fulfilling the changes and bans launched by the British. Prior to the declaration of independence, the British signed a negotiation with Sir Ahmadu Bello, the Prime Minister of Northern Nigeria that resulted in approving of the Penal Code that continues to be valid today also. A catalogue of 20 criminal actions and its corresponding sanctions were created. It covered actions recognized by the Sharia as penalties imposed with particularly serious punishments. Punishments that lack humanitarian aspects such as limb amputation for theft, stoning to death for adultery, decapitation for killings and others have been changed with the sanctions from the British Penal Code. Hence, following earning its independence, the rules of the Sharia has mostly been applicable in cases of the civil laws. The Muslim Law or the common law in this system was made applicable by the Native Authority that had its independent police and prisons. Since the past four decades since October 1, 1960, the Penal Code has been enforced and was even recognized by the Constitution of 1999. (Pitaszewicz, 88)

Muslim law was reinstated in the years 2000 and 2001 which meant that it is applicable even in penal cases imposed with draconian approvals. The outcome of implementation of Sharia in Northern Nigeria was not without problems. Reinstatement of Sharia with the penal code resulted in acute disturbances in the social, political and economic life of the nation. When the religious laws were initiated, numerous people encountered with the issue of survival when they had shut down the places in which they worked, i.e. In bars vending alcohol, hotels and casinos or business of dubious distinction. In the State of Sokoto even prior to the execution of Muslim religious law, licenses for maintaining hotels and bars were revoked and the places were required to be shut down in the space of 48 hours. The worsening effect was that the implementation of the Sharia in northern states made Nigeria fragmented on religious lines. The Middle Belt, that for a lot of years continued to be under the political control of the North where Christian population lived and also the followers of conventional religions, happened to be the place in which vehement protests came towards the Hausa-Fulani drive. (Pitaszewicz, 90)

3) Difference in the interpretations of adultery in Sharia and mainstream Islamic law:

Presently, honor killings are pervasive among the Muslim populations. Analysing the nature of these crimes form the cornerstone of the interpretational difference between adultery in Sharia and mainstream Islam. In Islam, there is a distinction between two kinds of honor viz. sharaf and ird. Sharaf refers to the honor of a social unit, as also the individuals where it can go up or down. The lack of success by an individual to adhere to what is defined as adequate moral behavior weakens the social position of the family. The sharaf of the family might be raised by the model behavior like hospitality, generosity, courage in battle etc. Sharaf is the western counterpart of dignity. As against this, ird is related to the honor of women and its value can only go down. Likewise, it translates approximately as the Western equivalent of chastity or purity. Similar to chastity or purity, commendable moral behavior is unable to raise a women's ird, but misconduct lowers it. (Feldner, 28)

Crimes under Islam can be broken into three leading categories which are Hadd, Tazir, Quesas. Of these Hadd crimes are of the most serious types under the Islamic law and Tazir constitutes the ones with the least seriousness. Some of the Western writers apply the felony analogy for Hadd crimes and misdemeanor markings for Tazir crimes. The parallel is correct to some extent, but not true in its entirety. Common law has no comparable form of Quesa crime. Adultery comprises Hadd crime and along with it is included theft and defamation. Besides, there are false accusations of adultery or fornication i.e. robbery, alcohol and other intoxicants. Koran prescribes specific punishment for adultery. However some more liberal Islamic judges do not take into account apostasy from Islam or drinking wine as Hadd crimes. The more liberal Islamic do not regard apostasy from Islam or wine drinking as Hadd crimes. The more liberal Islamic states view these crimes as Tazir or a lesser crime. (Islamic Law - Myths and realities)

It is a fact that Hadd crimes have fixed punishments as they are fixed by God and find place in the Koran. Hadd Crimes happen to be crimes against God's law and Tazir crimes and crimes against the society. Some safeguards are there for Hadd crimes which go unnoticed in the media. A judge is only able to impose the Hadd punishment at the time when the individual confesses to the crime or there are sufficient witnesses to the scene of the crime. The normal number is two; however in situations of adultery four witnesses are needed. The media leaves the public with the idea that the all are punished with baseless evidence or less proof. Islamic law possesses an extremely high degree of proof for the most severe crimes and punishments. In cases where there is doubt as regards the responsibility of a Hadd crime, the judge must consider the crime as a lesser one i.e. Tazir crime. In case there is no confession to a crime or there are no sufficient witnesses to the crime, Islamic law needs the Hadd crime to be penalized as a Tazir crime. As regards Tazir crime, Islamic Society has transformed a great deal from the period of Prophet Mohammed. (Islamic Law - Myths and realities)

Shariah Law has been encoded in written form and its applicability is statutory in nature. The Islamic concepts of justice debate that a person must be aware regarding the crime and also its possible punishment. For instance, in Egypt, they have a parliamentary process having a formal penal code recorded and based on the principles of Islamic Law, but Saudi Arabia permits the judge to fix the Tazir crimes and punishments. Modern Islamic law identifies a lot of variations between these two nations. Besides, it permits a lot of flexibility as regards the punishment is meted out to an offender. The major myth of several people remains that judges in Islamic countries have fixed punishments in case of all crimes. In fact, the judges possess increased degree of flexibility compared to judges under the common law. (Islamic Law - Myths and realities)

4) Reaction of law codes, religious codes, and human rights documents to the Case adultery & other differences:

With the mounting of international pressure on the trial of Amina Lawal, Minister for State for Foreign Affairs issued a communique in which he stated that the latest stream of remarks and interest within the International Community on the trial of Amina Lawal involves completely the interest of the Nigerian government. He assured that henceforth nobody would be demeaned by stoning to death in Nigeria. Amina Lawal was not subjected to abuse of rights and the Nigerian govt went ahead to protect their rights. The federal govt intervened and ensured that no one will be dehumanized. Nevertheless, it is not apparent that what action the federal govt. took beyond these announcements and the govt officials were unsuccessful in their agreeing that the very trials of these women for adultery and also death sentences that were pending on them were dehumanizing in its form. (the Federal government's position on Sharia)

At the global forum also, the introduction of Sharia in 2000 unexpectedly placed Nigeria into the limelight. The death sentences by stoning imposed on Amina Lawal were at the heart of hitherto unseen intensity of public attention which instigated reactions of wrath among the women's organization, human rights organization and parliamentarians, Christians bodies as also members of the general public in a lot of nations. Their cases were the target of a massive public complaint, appeals and petitions from across the world. Some of the Western governments and intergovernmental establishments especially the EU even raised the matter of Sharia with the Nigerian govt at the private and public forum. Their diplomatic approaches could thus be less challenging as regards Sharia compared to other patterns of human rights violations in Nigeria, particularly as their criticisms would not be seen as directly implicating federal government authorities and agencies, apart from the terms of their lack of success to face the matter. (International Reactions to Sharia in Nigeria) as states of northern Nigeria began to introduce new Sharia penal codes in 1999, the crimes of adultery are punishable by stoning to death. Zina is also the crime of premarital consensual sexual relations for which the punishment is 100 lashes. International Human Rights standards suggest that that the death penalty is solely applied in case of the most serious crime. Besides, the criminalization of consensual sexual relations at above the age of consent is regarded as human rights violations. Besides, international justice also opposes the use of death penalty in these cases. (Human Rights in Nigeria)