Women's reproductive and sexual rights and the offence of Zina in Muslim laws in Nigeria
Pambazuka News: Weekly Forum for Social Justice in Africa
Ayesha M Imam (2006-03-09)
To mark International Women's Day, we publish today a number of articles on Islam and human rights. In this compelling article by Ayesha Imam, women's reproductive and sexual rights within Muslim Nigeria are considered. With the recent "Sharianization" of parts of the country, new offences have been created, mostly surrounding sexuality, which has had a negative effect on women's rights. Imam argues that while Sharia (Muslim laws) are neither uniform nor God given, the opposition between conservative and liberal jurisprudence has prevented progressive scholars and activists from establishing Muslim laws that ensure and protects the rights of women. She highlights what can be done to oppose these forces, and argues that one of the most important aspects of this task involves a "demystification" of Sharia for the Muslim communities of Nigeria (and elsewhere).
Amina Lawal was convicted of adultery in March 2002 and sentenced to stoning to death. In the wake of a new Sharia Penal Code in Katsina State, religious right vigilantes instigated a case against her for having a child after divorce without remarrying. The alleged father swore that he had not had sexual relations with her and was released. These events occurred during a heated controversy in Nigeria about the nature and desirability of Sharia (Muslim laws), rights in Muslim laws, constitutional rights, international human rights and their relationship(s) to each other. Ms. Lawal's case was immediately adopted by a coalition of Nigerian non-governmental organizations (NGOs) that provided her with lawyers, safe houses, medical care, and emotional support over the eighteen-month ordeal. She also became the object of world attention, media and protest campaigns, many of which excoriated "Islamic law" as brutal and called on Nigeria's president to pardon her and repeal the Sharia Acts. In September 2003, Amina Lawal won her appeal in the state Sharia Court of Appeal and was acquitted (Lawal Kurami v. the State).
This case is perhaps one of the best known concerning the introduction of Sharia Penal Codes in several Nigerian states in 2000. Zina, or unlawful sexual intercourse, includes adultery, punished by stoning to death, and fornication, penalized by whipping. In some of the states, men may be imprisoned in addition. These cases have been integral to the opening up of issues relevant to ensuring and developing women's reproductive and sexual rights, and to understanding them in ways that recognises and respects both local cultures and contexts, as well as international rights agreements. The tensions between conservative religious politics and crude antiterrorism policies which are often blatantly Islamphobic must be considered in this discussion, which also involves local cultures containing a complicated mixture of ideologies and social practices, structured by power relations.
International human rights treaties and agreements, like local cultures, must thus require a "claim and critique" strategy - being aware of both local cultures and international human rights discourse, while at the same time not privileging either as superior, and thus being able to critique both. This is important so that human rights principles actually guarantee people their rights in their day to day lives; this requires that they are claimed and respected by local cultures, and are not merely written texts, so that they are seen as social and historical products, affected by the power politics and of the cultural traditions of the dominant groups in their own contexts.
Understanding that human rights constructions are themselves subject to power structures makes it possible to recognise the Western European influences on the construction of rights today. But it is also possible to accept the universality of the notion of rights, which are not static and are constantly reconstructed by those whose lives are impacted by them.
Approaches to human rights must also be constantly reconstructed. It is important that local cultural-religious norms and traditions, as well as formal national and international rights regimes must be simultaneously drawn from and negotiated with. Women's rights groups have been integral to this process. Even though many of these groups are often regarded as in opposition to family, religious or ethnic community, they are in fact challenging not the communities themselves, but the current definitions of culture and norms of that community, and the powers of the cultural gatekeepers to maintain those definitions. It is with this background in mind that this article looks at the politics and activities surrounding zina cases under the Sharia Penal Codes in Nigeria.
Nigeria has seen a growth in religious essentialism and conservatism. However, the introduction of Sharia in Nigeria has had more to do with emotional political appeal, especially due to economic and educational issues, rather than religious sentiment.
Reactions to Sharianization were many. Christian and non-Muslims feared the imposition of Muslim religious laws on them. Human rights and other NGOs activists (including Muslims) were concerned about the religious rights of non-Muslims and the violation of constitutional provisions of secularity. Both Muslim and non-Muslim women's rights activists were concerned that Sharia would be used as a rationale to discriminate against women and restrict their rights.
Muslim communities reactions to Sharianization were also varied - Ibrahim el-Zakzaky of the Muslim Brothers, who had previously called for the Islamization of Nigeria, opposed Sharianization on the grounds that passing and implementing harsh punishments without first ensuring just socioeconomic relations was not Islamic. Others were afraid of political abuse by those with power; as Muslims they did not want to oppose Sharia, but they did not feel they had the skills to criticize potential corruption without the ability to read Arabic or years of study of Islamic jurisprudence. Thus, there was an "uneasy public silence." However, upon the passing of the laws there was much celebration, as many associated Sharia with morality. Morality was seen not only as sexuality, but also in terms of safety and anti-corruption, which the poor suffer most from.
The Sharia Penal Codes have created some new offences in Nigerian law, mostly around sexuality. They also recognise stoning, retributive punishments and blood fines. In theory, these laws apply to Muslims only, but it remains an open question whether Muslims have the right to choose to be governed by general Nigerian law, without having to renounce their religious identity.
Also still unresolved and ambiguous is that of the contradictions and gaps between the new Sharia Penal Codes and the Criminal Procedure Codes that determine procedures and evidence: What counts as evidence? What are the procedures? How are offenses actually defined? Further, whether the Sharia acts themselves or the nature of the punishments are subject to international human rights law has been debated. Nigeria is in fact a state party to several international human rights covenants. However, although such agreements may give rise to obligations under international law, unless they have been specifically incorporated into domestic law, they give no basis for claims in national courts. The interplay between domestic Nigerian multiple and parallel legal systems of secular, Muslim and customary laws is also problematic as they give differential rights on different issues, and jurisdiction can be contentious. Whose version of Sharia is to be upheld is another area that requires further definition.
Sharia is neither directly God given, nor uniform through Muslim history or different communities. In principle, Muslim laws are to be developed by reliance on the Qu'ran. The second source is the sunnah - traditions of the Prophet. Next is ijma, consensus about what that law is, by qiyas (analogy) and ijtihad (interpretive reasoning). At each stage there are disagreements that have led to diversities - thus, Muslim laws are and always have been subject to discussion or controversy.
Further, there are four main schools of Islamic jurisprudence among Sunni Muslims (who constitute about 80% of all Muslims). There are many similarities, as well as wide divergences. However, the scholars behind these schools did not see themselves as setting down a God-given legal code to be obeyed by all Muslims for all time. On the contrary, they were quite categorical that Muslims were not obliged to follow them if they did not believe that their reasoning from the Qu'ran and the sunnah were right. They had no intention of making their views final and binding on all Muslims. The stereotype of a single, uniform or divinely revealed Islamic law is false. However, this myth has been useful for Muslim conservatives and this can indeed by seen in Nigeria regarding reproductive and sexual rights.
In terms of zina, there are three main possibilities: zina can be seen as a sin that Allah will punish directly, except where there are voluntary or repeated confessions; the law can be seen as a deterrent but which requires high standards of proof and evidence which result in few prosecutions and rare convictions; and the politically motivated aggressive enforcing of morality through restrictive legislation and enthusiastic prosecutions. This latter case is what has been happening in Nigeria. In terms of reproductive rights for women, Sharia is equally diverse. Most Muslim jurists agree that fertility management is permissible, and that pleasure in sexual intercourse is a right for both men and women. Most also agree that Islam does not sanction female genital mutilation. Despite this, the religious right in Nigeria have described fertility management as promoting immorality and zina, and have thus attempted to prevent it.
This opposition between conservative and liberal constructions of Muslim laws, and the myth of a single uniform (conservative) Sharia, has enabled the Muslim religious rightwing to prevent progressive Muslim scholars and rights activists from establishing the legitimacy of their positions in fiqh (jurisprudence), Sharia, or non-religious laws. Ironically, many progressives and leftists in the West do the same, dismissing critical voices from within the Muslim world as "Westernized" and inauthentic. It is important to recognize dissenters as equally authentic members of the community.
Many groups are actively organising in Nigeria to establish protection for women's rights under this new Sharianization. The primary strategy of these organisations is defending those convicted by focusing on appeals in the Sharia courts, thus buying much needed time as well as getting closer to the higher courts, which have been historically more fair to women. Appealing, with the use of arguments in fiqh, deficiencies in the acts and the bias against women in their implementation could be recognised. Alternative Muslim juristic views can also be cited. Gaining an acquittal also serves to indicate that no conviction should have been made, and is thus a vindication of the person wrongly convicted. Pursuing appeals also serves to demonstrate that people have the right to appeal and challenge injustice, including those perpetuated in the name of religion. The success of those appeals shows that it does make a difference - far fewer women and men have been charged with zina or sentenced to stoning since Amina's case, and the two that were, have successfully appealed and were discharged within three months.
These same women's and rights groups have also sought to demystify Sharia to the general public, through seminars, workshops, training, public discussion, lectures, articles, pamphlets, books and radio and television talk shows. This includes groups like the Constitutional Rights Project, BAOBAB for Women's Human Rights, the Women's Action Collective with Women's Action Research and Documentation, and the Nigerian office of the International Human Rights Law Group.
Demystifying Sharianization in Nigeria also involves critiques of the current class- and gender-bias in content and implementation. The poor have been the most subjected to harsh punishments. There have been fewer convictions of men than of women for adultery or fornication. Moreover, men convicted of violent sexual offences, like rape and sexual assault, have received less severe punishments (usually fines, imprisonment, or acceptance of pleas of illness and insanity), despite the stronger punishments available in the Sharia Penal Codes that are routinely meted out for consensual sex outside marriage. Women have clearly been discriminated against. Judges have ignored or dismissed women's allegations of rape and coercion in zina cases. Before Amina Lawal's acquittal, convictions of adultery/fornication brought against women used different and discriminatory standards of evidence than those used for men - that of pregnancy outside marriage.
The task at hand is therefore much larger than simply working to make Sharia work for women - it includes reeducation and awareness raising to change age old attitudes, while at the same time valuing local traditions and culture.
International media coverage of these cases, and of the Amina Lawal case in particular, has been staggering, relatively speaking. News reporting and petitions that have appealed to human rights have had conflicting results. While a growing awareness of rights abuses has been gained, a certain amount of hypocritical action is identified: the response of many Nigerians has frequently been to ask why people in the West are apparently so concerned about the life of one Muslim woman in Nigeria, when they have been killing large numbers of Muslim men, women, and children and are responsible for the horrors of war and its aftermath in Iraq.
While international solidarity is important to local rights struggles, and campaigns and petitions have the potential to be successful, it must be done in a way that does not portray stereotypes, nor hinder the actual protection and defense of women's and human rights. Further, the international media and protests have largely ignored the existence of dissent among Muslims, and have downplayed the existence of protests and campaigns enacted within Nigeria. The tendency to treat the Muslim world as uniform only helps to legitimize the religious right's monopolistic claim to speak for all Muslims and to de-legitimize the assertions of progressive scholars and rights activists. Downplaying local organizing has the clear implication that it is the pressure and power of external foreign interests that is important and not the strengthening of local cultures of rights.
In order to move forward, using local structures and mechanisms (judicial appeals, informal dispute resolution, mock tribunals organized by local NGOs, networks of sympathizers and campaigns) to resist retrogressive laws or interpretations of laws and the forces behind them is the priority. Doing so strengthens local counter-discourses and often carries greater legitimacy than outside pressure. Further, using local structures and discourses can really address the local political power struggles that are behind the political use of religions and ethnicities.
Reforming laws is of utmost importance, and will require expanding public education on Muslim laws, juristic opinions and debate on the contents of laws. This task also necessitates building solidarity among a variety of stakeholders to develop shared understanding and common strategies and platforms for women's and human rights. Local groups must find ways to interact with and influence mass international media, to make it more accurate and nuanced. These groups must also negotiate with and influence the policies of international agencies to create informed and respectful solidarity. Campaigning for governments and media to support international policies that sustain economic justice and rights would give hope worldwide so that poverty and uncertainty do not continue to be conditions in which religious right sentiments and actors find support for discourses and laws that violate rights.
* This up-dated paper contains both summary and extracts from a longer paper, which is an edited version of a paper published in "Where Human Rights Begin-Health, Sexuality, and Women in the New Millennium," edited by Wendy Chavkin and Ellen Chesler, Rutgers University Press, November 2005.