SHARIAsource

Early zeal for application of the reinstated Islamic criminal law resulted in two zināʾ cases which attracted worldwide attention in 2001-2003: the cases of Safiyatu Hussaini and Amina Lawal, litigated in the Sharia Courts of Sokoto and Katsina States, respectively. Vol. V makes available English translations of the records of proceedings and the judgments of all the courts in which these two cases were litigated. Also included is various collateral information, including an annotated bibliography of Islamic authorities cited, brief biographies of the judges, and an essay by one of the lawyers involved in the defense of both cases.

These materials are a part of The Nigeria Papers – a SHARIAsource Special Collection, compiled and edited by Independent Scholar Philip Ostien and others. 

Two accused persons, both previously married to other persons, were charged with the crime of committing zinā (fornication), which is prohibited in the Islamic Penal Code of Sokoto State, Nigeria. The man denied the charge and declared his innocence in court. The woman admitted to having sexual intercourse with the accused man and to being pregnant as a result. The Court held that the crime of zinā (fornication) is proved by a valid confession, the evidence of four witnesses, or by pregnancy outside of marriage. Because the first accused person denied that he had made an earlier confession, a confession could only be verified by the testimony of four witnesses. Because only two witnesses had given such testimony, the confession was not valid. The Court also held that retraction of a confession is permissible. Therefore, even if the first accused, the man, had earlier confessed, his denial of the charge in court amounted to a valid retraction of the confession. The Court convicted the second accused person, the woman, on the basis of her in-court confession and sentenced her to death by stoning after childbirth and weaning. The woman successfully appealed her conviction.

This case is an appeal of a zinā (fornication) conviction by the Upper Sharīʿa Court of Gwadabawa, Nigeria, on several grounds, including: the trial court's lack of jurisdiction on the grounds that the Sharīʿa Penal Code upon which the appellant's trial and conviction was based came into existence after the alleged commission of the offense, and the failure of the trial court to explain the nature of the crime to the accused person. During the proceedings, the Appellant's counsel retracted the confession that the appellant had made to the trial court. The Court held that a person cannot be punished for an offense not known to law at the time of commission. The Court further determined that, because the Sharīʿa Penal Law of Sokoto State had not been enacted at the time the offense was committed, the conviction was invalid. Furthermore, it determined that the confession of the Appellant before the trial court was invalid due to the defects in the charge and the failure to explain the offense to the Appellant. Even if the confession had been valid, its retraction upon appeal was valid because retraction of confession is valid at any time before judgment. Pregnancy by a divorced or widowed woman is not conclusive proof of zinā where such pregnancy occurs within 5-6 years of the previous marriage. It is an overriding principle (according to the doubt canon) that where doubt exists, fixed criminal penalties (ḥadd penalties) should be avoided. The Court quashed the conviction.

Two people were accused of jointly committing the offense of zinā (fornication). The Court determined that zinā is established through a confession, the evidence of witnesses, or pregnancy in the case of an unmarried woman or a woman without a husband. As a divorcee, the woman’s confession, pregnancy, and birth of a child constituted sufficient proof of the commission of zinā. The Court convicted her and sentenced her to death by stoning. The Court further determined that the accused man’s declaration of innocence backed by an oath on the Qurʾān was sufficient to exculpate him. The Court discharged him. The woman appealed her conviction.

Amina Lawal appealed her zinā (fornication) conviction by the lower court on several grounds, including: the inconclusive proof of zinā by the appellant's pregnancy because she had been married within the previous five years; the improper constitution of the Court as the kadi (qāḍī) had sat alone, without two other members, as required by law; and the invalidity of the appellant's confession by the failure of the Court to explain the meaning of zinā. Along with the grounds of appeal, the appellant’s counsel tendered a retraction of the confession that was made before the lower court. All grounds of the appeal failed. The Court held that the appellant’s confession before the lower court was valid as her testimony there indicated that she understood the meaning of zinā. This valid confession coupled with her failure to assert that her divorced husband fathered the child constituted proof of commission of zinā. The Court determined that sharīʿa (based on its understanding of Qurʾān, ḥadīth [prophetic reports], ijmāʿ [consensus], ijtihād [interpretation], and ʿurf [custom]) is supreme and overrides legislative enactments on the composition of the court. Therefore, the failure of the trial court to be constituted as required by legislation does not invalidate the decision, because the decision was issued in compliance with the dictates of sharīʿa. Amina Lawal successfully appealed this decision to the Sharia Court of Appeal.

Amina Lawal appealed the decision of the Upper Sharīʿa Court, Funtua, upholding her conviction of the capital crime of zinā (fornication) by the Sharīʿa Court of Bakori. As she had done in the appeals court, the Appellant retracted the confession made before the trial court. The Court held that a single confession is not a sufficient ground for a zinā conviction. Therefore, it determined that the Appellant's confession before the trial court was not a sufficient basis for conviction. Further, it determined that retraction of a confession for an offense that impinged on the “rights of God” [ḥuqūq Allāh] (such as zinā or alcohol consumption) is permissible and valid even after judgment, if made before the execution of a sentence. The Court also held that a child born by an unmarried woman within seven years of a former marriage is affiliated with the former husband [following the paternity canon in Islamic law], and under such circumstances, childbirth does not constitute proof of zinā. The Court allowed the appeal and quashed the conviction.

In this literary source purportedly recounting early episodes of judges, Abū Yūsuf (d. 182/798) issues a clever ruling for ʿAbbāsid Caliph Hārūn al-Rashīd, effectively saving his son – a prince – from an accusation of zinā (fornication or adultery) by operation of the “doubt canon,” which requires legal officials to “avoid criminal punishments in cases of doubt.” The doubt here is a judicial knowledge, rather than established evidence by a confession or witnesses. He is rewarded by being made Chief Judge (qāḍī al-quḍāt) of Baghdad.