An Introduction To Islamic Criminal Justice: A Teaching and Learning Manual
An Introduction To Islamic Criminal Justice: A Teaching and Learning Manual
An Introduction To Islamic Criminal Justice: A Teaching and Learning Manual
Mamman Lawan
University of Warwick, UK & Bayero University, Kano, Nigeria
©2011 UKCLE
Contents
Introduction ......................................................................................................3
Aims and Objectives.............................................................................................................. 3
Teaching Methods................................................................................................................. 4
Course Outline ...................................................................................................................... 5
Assessment methods ............................................................................................................ 6
Materials ................................................................................................................................ 6
Chapter One ....................................................................................................7
Preliminaries and Sources of Islamic Law ............................................................................ 7
Seminars ............................................................................................................................. 13
Assessment: Essay Question ............................................................................................. 15
Reading ............................................................................................................................... 16
Chapter Two ..................................................................................................18
Crimes and Punishments .................................................................................................... 18
Seminars ............................................................................................................................. 34
Assessment: Essay Question ............................................................................................. 35
Readings ............................................................................................................................. 36
Chapter Three................................................................................................39
Evidential Law of Crime (Proof) .......................................................................................... 39
Seminars ............................................................................................................................. 43
Assessment: Essay Question ............................................................................................. 44
Readings ............................................................................................................................. 45
Chapter Four..................................................................................................47
Case Study One: Nigeria .................................................................................................... 47
Seminars ............................................................................................................................. 64
Assessment: Essay Question ............................................................................................. 64
Readings ............................................................................................................................. 65
Chapter Five ..................................................................................................67
Case Study Two: Pakistan .................................................................................................. 67
Seminars ............................................................................................................................. 84
Assessment Essay Question .............................................................................................. 84
Readings ............................................................................................................................. 85
Cases .................................................................................................................................. 86
Chapter Six ....................................................................................................88
Implications of Applying Islamic Criminal Law .................................................................... 88
Seminar ............................................................................................................................... 92
Assessment: Essay Question ............................................................................................. 92
Readings ............................................................................................................................. 93
Bibliography ...................................................................................................96
Translations ......................................................................................................................... 96
Books .................................................................................................................................. 97
Chapters in Books ............................................................................................................... 98
Journal Articles.................................................................................................................... 98
Other Sources ................................................................................................................... 102
Appendix A: Table of Offences ....................................................................103
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Introduction
This teaching and learning manual has been developed with the aim of
supporting teachers and students who have both an interest in Islamic
Criminal Justice and a general interest in Islamic law. The content of this
manual is equally educational, irrespective of whether the reader is part of a
Muslim or non-Muslim jurisdiction. The present teaching manual is a part of
an ongoing programme intended to make material available for a range of
Islamic law modules. Accordingly, it is highly recommended that this be
utilised with the companion Sources of Islamic Law manual, which provides a
useful background to the origins and sources of Islamic law. Equally useful
material is the Glossary of Arabic Terms which facilitates non-Arabic speakers
in their understanding of some of the basic concepts of Islamic legal tradition.
Finally Approaches to Teaching and Learning Islamic Law is an invaluable
guide that should be read with this manual.
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advocating for the application of the Islamic criminal justice system within their
respective jurisdictions. Countries such as Saudi Arabia, Iran, Sudan,
Pakistan and Nigeria have demonstrated the application of the law in varying
degrees. Thirdly, the use of the law has had wider implications. This is
particularly so when one considers the compatibility of this law with
international human rights treaties, to which the Muslim countries are party.
These are but a few reasons as to why the Islamic criminal justice system has
became an important, and arguably, the most discussed branch of Islamic
law.
Teaching Methods
This manual is suggestive as to how a teacher may advance the course and
has been tailored towards both the undergraduate and postgraduate level.
The teaching and learning sessions are both indicative and flexible and allow
for appropriate modification as to the assessment and teaching time.
Accordingly, although this manual has been developed to fit into a half module
to be run for ten lecture sessions in a term, this may be subject to appropriate
change. It is also recommended that a two hour weekly lecture session
coupled with a one hour seminar session every fortnight will be sufficient to
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cover the course outline proposed. Furthermore, it is suggested that the
seminars take the form of group work in order to advance the lectures.
Course Outline
There are six topics which are considered to be an integral part of this
manual. It is suggested that that these may be taught over a period of ten
weeks, however this duration may be expanded or reduced at the discretion
of the lecturer (see above).
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3. Evidential Law of Crime (Proof)
Assessment methods
For a course of one-term duration, it is recommended that the assessment
take the form of either a two hour examination coupled with an assessed
research piece of 2,500 words or a single supervised assessment of 5,000
words.
Materials
There is no single recommended text for this module but towards the end of
each chapter, a recommended reading list for each chapter has been
produced. It will be useful in practice to ensure that these texts are available
in the library, or alternatively copies are incorporated into resource packs for
the students. For a more detailed bibliography of Islamic criminal law
publications, the companion manual Islamic Law Bibliography may be
consulted.
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Chapter One
Objectives
A discussion on the sources of Islamic law should be made part of the early
topics to be introduced to students and detailed information on this subject
can be found in the companion Sources of Islamic Law manual. It is
recommended that this chapter is taught over two lectures and one seminar,
further details of which are to be found in this chapter. The sessions should be
tailored so as to accommodate students who potentially have varying degrees
of exposure to Islam. It may be fair to assume that the majority students from
non-Muslim Jurisdictions are more likely to have limited knowledge of the
religion and little opportunity to develop Islamic thought. It is important that
those students from Muslim jurisdictions consider whether the implementation
of the laws they may be familiar with do in fact correspond with the spirit of the
religion. A more detailed analysis of this area may be can be found in the
companion Course Manual on Sources of Islamic Law.
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1. Sources of Islamic Criminal Law
It is appropriate for the first lecture to begin with an introduction to the initial
core sources of Islamic law: the Qur’an and the Hadith, before considering the
secondary sources. It will be useful to discuss the Middle East prior to the
Islamic period and the subsequent profound revelation to the Prophet
Muhammad. It may be appropriate to discuss the timeframe involved for the
revelation. The audience may be provided with information as to how the
Qur’an came to be ordered following the death of the Prophet. The relevant
verses of the Qur’an that lay down the foundations of Islamic law should be
considered.
The other sources to be considered are secondary ones. These include the
consensus of opinion of Muslim jurists (Ijma), analogical deduction (Qiyas),
independent reasoning (Ijtihad) and others. Why does Islam allow for the use
of secondary sources? Quite simply, they provide a means of ensuring
dynamism of the law since the primary sources are finite. In the area of
discretionary punishments (Ta’zir) for instance, the offence could be an act
criminalised through the consensus of jurists rather than any of the primary
sources. How can this be illustrated? A good example to draw to the attention
of the audience is that the punishment for drinking alcohol is in the form of 80
lashes. This is said to have been arrived at through analogical deduction by
Ali, the fourth caliph. The secondary sources also tend to expand on the
traditional offences.
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may be drawn to the similarity between the overall objective of an Islamic
criminal justice system and other similar systems i.e., that is that both intend
to build and maintain an orderly society.
Students may be asked at this stage to consider whether Islamic law can be
divorced from Islam. It will be interesting to ask at the outset whether the
audience thinks Islam has developed a unique approach towards the
protection of life and property with the punishment it imposes for murder and
theft. Do they feel that the methods are working? Types of punishments aside,
can a comparison be made as to why punishment is imposed between an
Islamic based and non-Islamic jurisdiction? What does the audience think are
the main factors for punishment? Is it to act as deterrent to others or to punish
the offender or are there any other reasons?
Another question that can be put at this stage is how the Islamic criminal
justice system specifically seeks to protect Muslims and their faith by
prohibiting apostasy. The students may be asked to consider whether Islam
offers women protection under Islamic law. Final questions may be raised in
relation to the reasons as to why students think alcohol is criminalised in
Islam. An interesting point for consideration is that the British Medical
Association states ‘Alcohol misuse is associated with crime, violence and anti-
social behaviour, and can impact significantly on family and community life.’
This begs the question as to whether in light of such research; students have
an appreciation as to why the consumption of alcohol is prohibited in Islam.
3. Criminal Responsibility
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person shall be held responsible only for those criminal acts which he has
personally committed is necessary.
Say: “Shall I seek for (my) Lord other than Allah, whom He is the
Cherisher of all things (that exist)? Every soul draws the meed of its
acts on none but itself: no bearer of burdens can bear the burden
of another. Your return in the end is towards Allah. He will tell you the
truth of the things wherein ye disputed” (6:164).
Who receiveth guidance, receiveth it for his own benefit: who goeth
astray doth so to his own loss. No bearer of burdens can bear the
burden of another: nor would We punish until We had sent down a
messenger (to give warning) (17:15).
Does the audience think that there are any exceptions to criminal
responsibility? At what age must a person be held accountable for his actions
according to Islamic tradition? In order to discuss this, reference to relevant
verses of the Qur’an and traditions of Prophet Muhammad or his companions
must be referred to. The audience may be asked to consider and discuss the
fact that Ali, the fourth Caliph, once said “Do you know that no deeds good or
evil are recorded (for the following) and are not responsible for what they do:
What should happen to a person who is forced to utter words that may be
construed as amounting to renouncement of religion? Is such a person
criminally liable? It has been related that Ammar bin Yassir, together with his
parents, was made to utter words which could be construed as recantation
under duress. The Prophet confirmed that this does not amount to disbelief.
Later verse 106 of chapter 16 of the Qur’an was revealed and this endorsed
the prophet’s judgement.
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Seminars
This topic is such that the teaching of it can be covered in either one or two
seminars. This may be determined by the familiarity the students have with
Islam and its development. Students should be encouraged to critically
assess the information provided in both the lectures and reading. Below are
two suggested seminar structures.
3. When did the Hadith become a source of law during the development
of Islamic law?
4. Describe and explain the relationship that exists between the Qur’anic
provisions and Hadith.
5. Why are some Hadith and the contents of the same questioned
amongst some circles?
how Islamic law developed and key relevant figures in this regard
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Seminar Two: Secondary Sources
4. Does Ijma as a source of law have any boundaries, if so, what are
these?
5. Define Qiyas and Ijtihad and the differences between the two
6. How has Qiyas and Ijtihad influenced the development of Islamic law, if
at all?
7. It has been said that the gate of Ijtihad has been closed. What does
this mean?
How some areas of Islamic law have remained stagnant for centuries
and in others has evolved significantly.
When the majority of development occurred and the reasons for this.
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Assessment: Essay Question
A discussion on the history of the schools of Islamic law and both their
similarities and differences.
2. Describe and evaluate the emergence of Sunni and Shia sects and the
main similarities and differences between the same.
The key factors that have contributed towards the shaping of Sunni and
Shia identity.
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Reading
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet &
Maxwell pp. 3-18.
M.Z.Siddiqi, Hadith Literature Its Origin, Development and Special Features (1993)
Cambridge: The Islamic Text Society
Taha J. al-Alwani, “The Crisis in Fiqh and the Methodology of Ijtihad” (1991) Vol. 8
The American Journal of Islamic Social Sciences pp. 317-337.
Supplementary reading
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford
University Press pp. 1-39
F. Rehman, Islam 2nd edition (1979) Chicago: The University of Chicago Press pp.
30-42; pp. 68-84
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J. Burton, The Sources of Islamic Law. Islamic Theories of Abrogation (1990)
Edinburgh: Edinburgh University Press pp. 1-14.
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Chapter Two
Objectives
Consider the punishment for the offence and sources from which this
has been derived
The practice of Islamic criminal law has often attracted fierce criticism and
debate from across the globe. There appears to be an assumption, albeit
arguably misguided, that punishments such as flogging and stoning to death
are practices which Islam is ready to implement. It would be worth asking at
the outset what the general consensus of the class is in this regard. Have
their answer been influenced by the media? Has the interpretation of Islamic
Law been distorted by leaders so as enable them political gain? Have the
countries that have employed Islamic criminal law succeeded in terms of a
reduced rate of crime? In order to address whether the critics of Islamic
criminal law are justified in their claims or whether their arguments are flawed
as a result of misconception, close examination of the law is required.
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It is at this juncture that the lectures should delve into substantive Islamic
criminal law. It will be useful to consult the ‘table of offences’ which can be
found towards the very end of the manual. For purposes of clarity, it is
recommended that the session discuss the three traditional Islamic
classifications of offences which are as follows:
Useful questions to put at the outset include whether the law of equality exists
in Islam. If so, does the audience think the authority is derived from the
primary or secondary sources? The attention of the audience could be drawn
to the following verse from the Qur’an:
And therein we prescribe for them: a life for a life. An eye for an
eye. A nose for a nose. An ear for an ear, a tooth for a tooth (5:
45).
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(i) Intentional Killing or Homicide (Qatl al-‘amd)
Does the Qur’an say anything about intentional killing? If so, what position
does it take in respect of this? Homicide is prohibited because life is sacred
and shall therefore not be taken as is provided by the law. Qur’an 6:151 may
be referred to as follows:
Say: "Come, I will rehearse what Allah hath (really) prohibited you
from": Join not anything with Him; be good to your parents; kill not
your children on a plea of want, We provide sustenance for you
and for them; come not nigh to indecent deeds, Whether open or
secret; take not life which Allah hath made sacred, except by
way of justice and law: thus doth He command you, that ye may
learn wisdom. (6: 151)
Does the Hadith say anything of the law of equality? Does it also correspond
with the Qur’an and also prohibit homicide and confirm the death penalty for
the offence?
Ibn Mas’ud narrated that the prophet said: “The blood of a Muslim
who testifies that ‘there is no god but Allah and that I am Allah’s
Messenger’ may not be lawfully shed but for one of three reasons:
a married man who commits fornication; a life for life; and one who
turns away from his religion and abandons the community (Bukhari
& Muslim).
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(ii) Killing by Mistake (Qatl al-khat’a)
a. A Muslim state;
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“Never should a believer kill a believer, except by mistake. And
whoever kills a believer by mistake, it is ordained that he should
free a believing slave, and pay compensation to the deceased's
family, unless they remit it freely. If the deceased belonged to
people at war with you, and he was a believer, the freeing of a
believing slave is enough. If he belonged to people with whom you
have a treaty of mutual alliance, compensation should be paid to
his family, and a believing slave be freed. For those who find this
beyond their means, a fast for two consecutive months is
prescribed by way of repentance to Allah for Allah hath All
knowledge and All wisdom.”
It will be interesting to ask the audience what they think the Islamic position is
in respect of this prior to discussing the law. It should then be explained that
although invariably Muslims live together with non-Muslims, under classical
Islamic law the two do not enjoy the same rights. The verses and Hadiths
above on intentional and mistaken killing refer to situations where the
deceased was a Muslim. Perhaps the starting point would be the general
position of the law. This is that a Muslim is not killed for the killing of a non-
Muslim who belonged to a state at war with the Islamic state. But what if the
deceased non-Muslim belonged to a state which has entered into a covenant
with the Islamic state (known as Mu’ahid)? It is commonly agreed by scholars
that his Muslim killer shall be killed. Where the deceased non-Muslim is a
dhimmi (a tax-paying non-Muslim living within the Islamic state and therefore
under its protection) reference to the various views of Muslim scholars should
be made. For instance, Shafi’i, Maliki and Hanbali schools opine that his
Muslim killer shall not be killed in punishment whereas the Hanafi school
opines that the Muslim must be executed.
On the other hand, Abdur-Rahman bin Al-Bailamani narrated that the Prophet
killed a Muslim for a man who had made a covenant and said “I am the most
worthy of those who guarantee their protection.”
What would happen if the housekeeper did not wish to exercise her Islamic
right of retaliation and instead opted for some form of compensation? Is this
an acceptable practice within Islam? What do the primary sources say in this
regard? This is an appropriate time to discuss the concept of blood money or
diyyah, which may be applied in circumstances where certain unintentional
injuries have been inflicted. Where the law of equality applies, the victim or his
family are entitled to dispense with the physical punishment and accept blood
money as an alternative. This has been specifically stipulated in the Qur’an:
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O ye who believe! the law of equality is prescribed to you in cases
of murder: the free for the free, the slave for the slave, the woman
for the woman. But if any remission is made by the brother of the
slain, then grant any reasonable demand, and compensate him
with handsome gratitude, there is a concession and a Mercy from
your Lord. After this whoever exceeds the limits shall be in grave
chastisement (2: 178).
Miss Campbell was sentenced to five days community service and ordered to
attend an anger management course. She was further ordered to pay medical
bills amounting to £185.00. In light of the sentence given, does the audience
think the housekeeper may have been happier with an Islamic court dealing
with this matter? Can the audience see how some people may opt for
recourse in the Islamic courts if they had this opportunity available to them? If
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the housekeeper was feeling particularly forgiving, she could of course have
also pardoned the offender and not received any form of compensation.
How does one begin to teach arguably one of the most controversial aspects
of the Islamic criminal justice system? Let us start with a definition. The term
Hudud (which is plural for hadd) means a restraint or prohibition. It refers to
offences specified in the primary sources of the Shari’a, which comprises of
the Qur’an and Sunna and their punishments are prescribed therein. Offences
that fall within this category are considered to be offences against Allah or
offences against public justice. These offences and their subsequent
punishments have been clearly specified in the primary sources. It was
intended that these be defined with such clarity so as to remove any trace of
ambiguity, both in terms of the ingredients required for establishing the
offence and the punishment allocated. Accordingly, once a hudud offence has
been established and the conditions for applying the punishment satisfied, the
court is divested of any discretion in the matter.
The audience may be informed of the types of offences that fall within this
category. This includes defaming chaste women (qazf), highway robbery
(hiraba) and apostasy (ridda). For the purposes of this manual however, three
separate offences of adultery and fornication (zina), theft (sariqa) and drinking
alcohol (shurb al-khamr) will be considered in further detail. The audience
ought to be made aware that there is controversy as to whether drinking
alcohol and apostasy forms part of Hudud (El-Awa 1982; Kamali 1998, 2008).
This topic may be of interest to students, particularly amongst those from non-
Muslim jurisdictions where consensual intercourse between adults is not
illegal. What is the definition zina? The point should be made from the onset
that under the Islamic legal tradition, both adultery (involving married persons)
and fornication (involving non-married persons) are referred to as zina. This is
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the act of sexual intercourse between a male and a female who are not
married to one another. Their consent is irrelevant. The audience should be
made aware that actual physical penetration is an essential ingredient for the
offence of zina and any act which falls short of this does not suffice. In
accordance with both the Qur’an and the Hadith, men and women are to be
equally punished for committing this offence.
What are the ingredients for the offence of zina? What is the required
standard of proof for an offence of zina? How does this compare with the
English standard of ‘beyond all reasonable doubt? The Islamic criminal
standard of proof is by contrast far more stringent and requires solid proof
beyond any shadow of doubt that the accused has committed zina. This is
perhaps one of the most difficult standards ever to have been set in any
jurisdiction. Why is this standard almost impossible to meet? Furthermore,
how can one be so sure that an unlawful act has indeed taken place? Muslim
jurists have unanimously agreed upon the following two means of proving
zina:
(a) A confession made by the accused which is clear in its entirety and
made of his free will. This must be made four times and before a Judge
(Qadi). Should the confession be subsequently withdrawn, then this is
his entitlement and he must not be punished on the basis of this
confession alone as there is no longer any proof that the prohibited act
occurred.
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How does this compare with a person whom, without legal representation at
the police station confesses to committing an offence? His own evidence may
be used against him despite any subsequent withdrawals of his confession
and irrespective of the severity of the offence of which he is accused.
What is the opinion of the audience now in terms of the general assumption
that Islam readily wishes to find a person guilty of zina? Can the possibility of
obtaining witness evidence be considered remote? What would happen if an
accusation is made but cannot be proved? The Qur’an specifically deals with
the issue of false accusations being made against chaste righteous women
and whilst it offers women protection, it also stipulates that the punishment for
those who make such false accusation is 80 stripes.
It is appropriate now to speak of the punishment for this type of offence and
the sources from which this has been derived. In the case of fornication, the
Qur’an (24:2) provides 100 stripes punishment and the Hadith has added that
the guilty person also be exiled for one year. But from where does the act of
stoning to death as a means of punishment originate from? Scholars submit
that the punishment for adultery is not provided in the Qur’an. It is in fact
found in the Hadith one of which was narrated by Ubada bin As-Samit that the
Prophet said: “Take from me accept from me, undoubtedly Allah has now
shown path for them (adulterers). For unmarried persons (guilty of
fornication), the punishment is 100 lashes and an exile for one year. For
married adulterers, it is 100 lashes and stoning to death” (Muslim).
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this ‘honour killing’. The audience may be asked some pertinent questions at
this point. Is it permissible in Islam to take the life of someone who has a
‘friendship’ with the opposite sex? It is acceptable that this killing is said to
have been carried out by her relatives? Would the situation be different if, for
the same reasons, she was killed by others? She was not accused of having
a physical relationship with the boys, is this relevant? Does it matter how
many people witnessed this ‘friendship’? Does Islam allow for any
circumstances where an individual may be buried alive?
The audience may be reminded that zina will be discussed in much greater
detail later in the module.
There is no dispute that the act of theft is strictly forbidden in Islam. The main
purpose for which theft is prohibited is to protect property. There are specific
Qur’anic and Prophetic provision in this regard and it is suggested that these
should be discussed. The Qur’an states “And do not eat up your property
among yourselves for vanities, nor use it as bait for the judges, with intent that
ye may eat up wrongfully and knowingly a little of (other) people's property”
(2:188). The Prophet is said to have stated during his farewell pilgrimage in
632 A.D. that “your lives and properties are forbidden to one another till you
meet your Lord on the Day of Resurrection.”
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What are the strict conditions under which punishment is applied? The
following is a useful guide:
(i) British courts may take the value of the item stolen into consideration
for the purpose of determining whether it is in the interest of the public
to prosecute. Similarly, Islamic criminal law requires a minimum value
(nisab) for the stolen goods. It is stipulated that this must at least be a
quarter of a dinar or the equivalent. Aisha narrated that the prophet
said: “A thief’s hand should not be cut off except for a quarter of dinar
and upwards” (Bukhari & Muslim). Are the views of the different
schools identical in this regard? The Maliki School relies on this Hadith
for fixing the nisab at a quarter of dinar minimum. The Hanafi School on
the other hand fixes the nisab at 10 dirhams rand relies upon a Hadith
reported by Ibn Abbas.
(ii) The stolen property must be owned by someone and must be under
care and punishment (hirz). Theft of government property does not
attract the punishment because the thief is a part-owner. He could be
punished by other means.
(iii) The thief must have been reasonably provided for by the state. The
second caliph, Umar bin Al-khattab, is said to have suspended the
punishment for theft during a period of starvation.
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owned by a Muslim. What if a sister steals from her brother? It would seem
she will escape punishment under hadd as the taking of property belonging to
a near relative is an exemption.
The lecturer should not avoid the controversial aspect of the topic which is the
punishment for theft. This takes the form of amputation of the hand and is
provided in Qur’an 5:38. The discussion could even reiterate the point that the
punishment is applied strictly by making reference to the Hadith narrated by
Aisha. The Prophet, following a plea of mitigation to him on behalf of a thieve
woman from an influential clan (called Makhzumi), said: “Are you interceding
regarding one of the punishments prescribed by Allah?” He then got up and
gave an address saying: “O people, what destroyed your predecessors was
just that when a person of rank among them committed theft, they left him
alone; but when a weak person among them committed theft, they inflicted the
prescribed punishment on him” (Bukhari & Muslim).
Can Shakespeare shed some light as to one of the reasons why alcohol may
be forbidden in Islam? It seems he can. ‘O God, that men should put an
enemy in their mouths to steal away their brains! That we should, with joy,
pleasance, revel, and applause, transform ourselves into beasts!’ William
Shakespeare, Othello.
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To include the offence of drinking alcohol amongst class discussions is
important for a number of reasons. Firstly, the Prophet described it as “the
mother of all vices” (Umm al-Khaba’ith) because its intoxication effect could
potentially lead to the commission of further offences. In order to engage the
audience, it may be useful to put relevant questions to them. Do they think
that there is any truth in the belief that alcohol can lead to the commission of
further offence? Were they aware that the British Medical Association advised
an All Party Group of MPs that alcohol is a factor in 60-70% of homicides,
75% of stabbings, 70% of beatings and 50% of fights and domestic assaults
(Alcohol and Crime: Breaking the Link. All-Party Group on Alcohol Misuse,
July 1995).
By way of definition, it would be useful to refer to the Hadith which Ibn Umar
narrated that the Prophet said: “Every intoxicant is khamr (wine) and every
intoxicant is forbidden” (Muslim). Similarly, Jabir also narrated that the
Prophet said: “if a large amount of anything causes intoxication, a small
amount of it is prohibited” (Ahmad and Al-Arba’a).
What is the punishment for drinking alcohol? The lecture should state that
generally, drinking alcohol is punishable with 80 lashes. It must be specifically
mentioned however that this punishment is not provided for in the Qur’an but
it is rather derived from a Hadith. Anas bin Malik narrated that a man who had
drunk wine was brought before the Prophet and he gave command regarding
him and the man was punished with about 40 stripes with two palm branches.
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Anas said Abubakar also did that but Umar became the caliph, he consulted
people and Abdur-Rahman bin Auf said “the mildest punishment (for drinking
wine) is 80 (stripes)”. So Umar fixed that (Bukhari & Muslim). The Maliki,
Hanafi, and Hanbali schools of thought all follow this tradition but the Shafi’i
school limits the punishment to 80 stripes
(a) Acts that technically do not amount to either qisas or part of hudud.
Examples include theft of an item, the value of which is below
nisab and illicit sexual acts which do not amount to intercourse.
(b) Offences which are normally punished under hadd but because of
some doubts (shubha) or because of want of required proof, they
cannot be so punished, although it is plausible that the accused
person is guilty of the offence. An example to illustrate this point is
that a man may be punished under ta’zir if it is established that he
stayed with a prostitute in a secluded place for a long time. This is
because it is probable but not certain, that he has committed the
offence of zina.
(c) Acts which are prohibited in the Qur’an or Hadith or are contrary to
public welfare but which are not under qisas or hudud. Examples
include the consumption of pork, usury, embezzlement or breach of
trust by a public officer, false testimony and bribery. This list is not
exhaustive.
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(d) Acts that violate Islamic norms such as obscenity, provocative
dress or a wife’s refusal to obey her husband.
The lecture should also briefly mention the forms of punishment allocated
under ta’zir. The most common forms are flogging, imprisonment or
banishment, public rebuke, exposure to public scorn (tashhir), or warning. It
could even take the form of a death sentence when the offence involved is so
serious. What constitutes a ‘serious’ offence? These include spying for the
enemy, homosexual acts, spreading heresies or sorcery. The Maliki School
amputates the right hand in the case of forgery of documents.
In the case of flogging, mention should be made of the varying juristic views
on limits. For instance, the Malikis do not have a limit and the punishing
authority determines the amount of times a person is to be lashed. Other
schools opine that the number of lashes may not exceed those allocated for
hadd offences. Because the schools differ on the number of lashes in the
hadd offence of drinking alcohol (e.g. it is 40 lashes under Shafi’i), their
maximum numbers also vary. Thus according to the Shafi’is, the maximum
lashes should be 39. The Hanafi School too fixes 39 but on the basis that it is
one less than the least hadd punishment for drinking alcohol (i.e. by a slave).
Some Shafi’i and Hanbali scholars opine that ta’zir should not exceed 10
lashes based on the Hadith narrated by Abu Burda Al-Ansari which says “No
more than 10 lashes are to be given except in the case of one of the
punishments prescribed by Allah the Most High [i.e. Hudud crimes]” (Bukhari
& Muslim).
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Seminars
A discussion on the main points of murder with and with and without
intention and killing of a Muslim and non-Muslim.
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Seminar Two: Punishment and Provisions
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The law surrounding the killing of a non-Muslim
Readings
Al-Alfi, A. A. (1982) "Punishment in Islamic Criminal Law" in Bassiouni, M. C., The
Islamic Criminal Justice System (ed.), New York: Oceana Publication, Inc., pp. 227-
236.
Bassiouni, M. C. (1982), The Islamic Criminal Justice System (ed.), New York:
Oceana Publications, Inc.,
Ebrahim, G. (2004), “Murder in the Criminal Law of Iran and Islam”, Journal of
Criminal Law, 68(2), 160-169.
Kamali, M. H. (2008), “Human Rights and the Shari’ah: Re-thinking the Hudud
Penalties”, Keynote Address delivered at the International Conference on ‘Islam, the
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Application of Shari’ah and Human Rights’, British Institute of International and
Comparative Law, London, 5 June 2008, http://www.biicl.org/events/view/-/id/286/
Mahmood, T. (2005) Criminal Law in Islam and the Muslim World: A Comparative
Perspective, Institute of Objective Studies
Peiffer, E. (Spring, 2005), “The Death Penalty in Traditional Islamic Law and as
Interpreted in Saudi Arabia and Nigeria”, 11 William and Mary Journal of Women and
the Law, 507.
Peters, R. (2005) Crime and Punishment in Islamic Law: Theory and Practice from
the Sixteenth Century, Cambridge and New York: Cambridge University Press.
Powers, P.R (2007) “Offending Heaven and Earth: Sin and Expiation in Islamic
Homicide Law” Islamic Law and Society, Vol. 14, No. 1, pp. 42-80
Schmalleger, F. (1993) Criminal Justice Today. Englewood Cliffs, NJ: Prentice Hall.
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Struensee, V.V. (Spring, 2005), “Stoning, Shari’a, and Human Rights Law in Nigeria”,
11 William and Mary Journal of Women and the Law Spring, 2005, 405.
Voll, J. (2007) “Crime and Punishment in Islamic Law; Theory and Practice from the
Sixteenth to the Twenty-first Century”, Islamic Law and Society,
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Chapter Three
Session 5
Objectives
1. Shahada
The lecture should first focus on shahada, which is the general rule of
testimony and is the testimony of two male witnesses or one male and two
female witnesses. From where does this rule originate? This is based on the
provision 2:282 of the Qur’an. Discussions may be initiated on the two-female-
equal-one-male principle as the general classical view for it is not as simple
as it is often presented. Is this rule interpreted accurately? It is important to
point out that jurists have generally agreed that the provision on testimony
was revealed by way of instruction rather than binding legal precept. It may
therefore be argued that it is not necessary to maintain the inequality (Al-
Alwani 1996; Shah 2006).
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Another point to consider is that although Qur’an 2:282 was revealed in the
context of a financial transaction, it is the basis for general evidential
requirements in other aspects of Islamic law, including crime. Students may
also be encouraged to challenge the argument that the testimony of women is
not admissible in hudud offences and especially that the view is not consistent
with numerous verses of the Qur’an (Shah 2006).
The lecture should also do some comparative analysis between the evidential
requirement in civil and criminal matters. For instance, while incomplete
evidence (e.g. testimony of only one witness), is made good by taking an oath
in civil matters, this is not the case in criminal matters. Similarly, a judge’s
personal knowledge is irrelevant although under Hanafi, Shafi’i and Shiite
Schools it may be sufficient proof in other matters.
Can the audience think of any offences where there exists an exception to this
general rule? The lecture should proceed to discuss the offence of zina. This
requires the testimony of four (male) reliable witnesses who must have seen,
at the same time, the actual act of sexual intercourse taking place.
Students may be asked to examine why the proof of zina has been made so
rigid. By way of a guide, the students may be referred to Qur’an 4:15. This
originally laid down the requirement of four witnesses in cases of zina and it
may be useful to initiate discussions on this. They may also be referred to
Qur’an 24:4, which deals with defamation of character and demonstrates the
implication of failing to produce four reliable witnesses in charges of adultery.
It may be added that the requirement of zina was so hard to satisfy that no
case was established by means of witnesses throughout the lifetime of the
Prophet. Although the Prophet had himself applied the punishment of stoning,
this was always on the basis of confession.
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2. Confession (Iqrar)
Abu Huraira narrated that a Muslim came to the Prophet in the mosque and
said “O Messenger of Allah, I have committed fornication.” The Prophet
turned away from him and the man came round facing him and he repeated
the confession. He turned away from him till he repeated it four times. Then
the Prophet asked him “Are you mad?” He replied “No.” He asked “Are you
married?” He replied “Yes.” The Prophet then said “Take him away and stone
him to death” (Bukhari & Muslim).
Imran bin Husain also narrated a similar Hadith where a woman of Juhaina
came with pregnancy to the Prophet and confessed conceiving it through
adultery. The Prophet ordered that she be taken care of until after delivery.
After she delivered, she was brought back to him and he ordered her to be
stoned to death (reported by Muslim). Jabir bin Abdullah narrated a similar
Hadith as it happened on a man from the tribe of Bani Aslam (reported by
Muslim).
Abu Umaiya Al-Makhzumi narrated that a thief who had made confession was
brought to the Prophet but no goods were found with him. The prophet told
him “I do not think you have stolen” and the man replied: “yes I did”. He
repeated it for him twice or thrice, so he gave command regarding him and his
hand was cut off (Abu Dawud and Ahmad and An-Nasa’i).
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3. Circumstantial Evidence
There are other important issues which may be raised in respect of proof.
One of them is circumstantial evidence (Qara’in). Students may be asked to
investigate whether circumstantial evidence is admissible in proof of hadd or
qisas offences. The audience may be asked to provide their opinion as to
whether a person, whose breath smells of alcohol, ought to be punished. The
differences of opinion among jurists may provide important materials with
which to discuss the issue. For instance, according to Imam Abu Hanifa and
Imam Shafi’i, the smell of wine from one’s mouth is not sufficient proof to
apply the punishment for drinking alcohol. They argue that the smell could be
of something else which resembles wine. But the Maliki and Hanbali Schools
accept the testimony of two witnesses to the effect that the accused person
reeks of alcohol as proof of alcohol consumption. (Peters 2005: 15).
It may be relevant to cite case law from Nigeria, which is a Maliki jurisdiction,
at this juncture. Safiya Hussein and Amina Lawal were sentenced in Sokoto
and Katsina States respectively to stoning to death. This was a decision made
by the lower courts and was based on the fact that they both had children
outside of wedlock. This decision was made in light of the Maliki principle.
Both sentences were however quashed as a result of subsequent appeals. In
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addition to technical grounds, the appellate courts held that pregnancy
simpliciter was no proof for zina because the maximum gestation period under
Maliki law is five years (ibid).
Seminars
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If the facts in this case are accurate, whether they are in accordance
with Islamic law
1. Some Islamic law scholars submit that they are against all types of
capital punishment stipulated in the Arab, Islamic, Western and
Eastern countries. The basis for this position is that they believe those
jurisdictions which impose capital punishment do not achieve the
Divine Justice that seeks the preservation of life by all possible means.
Furthermore, they opine that trials involving the death penalty are bias
and unfair.
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Readings
Peters, R. (2005) Crime and Punishment in Islamic Law: Theory and Practice from
the Sixteenth Century Cambridge and New York: Cambridge University Press.
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Press.
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Chapter Four
Objectives
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Background
Session six should start with introductory matters such as the country’s
majority Muslim population; its membership of the Organisation of Islamic
Conference (OIC); and that Islamic law has been applied in various degrees
at all times in the country. Such an application of Islamic law has however
been limited to the predominately Muslim Northern part of the country.
Although there have also been Muslims in the South, for historical reasons,
the law has never been formally applied there.
The focus of the case study should be the current state of Islamic criminal
law. However, it is suggested that an historical overview be given in order to
place the discussions into a proper context. This could be done by briefly
looking at the application of Islamic criminal law during three different times. It
is recommended that this be before colonialism, during colonialism and after
colonialism up to 1999.
1. Historical Overview
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Usman Danfodio. The movement saw the establishment of Islamic law and
the consequences of this under the Sokoto caliphate. Islamic criminal law, in
the form of qisas, hudud and ta’zir and its procedural counterpart was applied
in full. The caliphate followed the Maliki School of law. The caliphate was
ended by the British invasion. Because of the history of the Sokoto caliphate,
the application of Islamic law in Nigeria generally refers to its application in the
Northern part of the country.
The British adopted different systems of rule over the two Protectorates. In the
North, it used the indirect rule system whereby people were ruled through the
existing traditional institutions. However, with the exception of personal law
matters, Islamic law was replaced with modern law. This was because the
British felt it was archaic and incapable of coping with the dynamics of the
colony.
According to the Supreme Court Ordinance No. 4 of 1876, native law and
custom was to apply only when it was neither ‘repugnant to natural justice,
equity and good conscience nor incompatible with any colonial legislation’.
These were the validity tests and the Islamic criminal law system was
discharged. Accordingly, the newly established native courts outlawed the
death penalty and other “inhuman” punishments such as amputation of the
hand.
The Criminal Code was enacted for application in the Southern part of
Nigeria. In the north however, the Penal Code was made applicable as a
modified version of ‘Islamic’ penal law (e.g. drinking alcohol not for medicinal
purpose was criminalised). At all times, there were provisions in various
legislation on the validity tests. This position continued up to independence in
1960, despite several structural changes.
Federal and Regional (later State) legislation all replicated the colonial
hybridity of laws and non-application of customary criminal laws. In fact, the
1979 Constitution under s. 33(12) clearly refused to recognise any unwritten
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penal law; the written one being, by its interpretation, a law made by a
legislative body in the exercise of law-making constitutional powers. Because
classical Islamic penal law had been mainly derived from the Qur’an and
Hadith, it clearly fell within the unwritten penal law category and accordingly, it
was not recognised. Native courts have subsequently been renamed Area
Courts in the North and they continue to apply the Penal Code in criminal
matters.
This part of the lecture should also give a brief introduction of how Islamic
criminal law was reintroduced in Nigeria. It should discuss how the Zamfara
State caused significant change barely two months after inauguration. The
Governor of the State constituted an 18-member law review committee to
examine and review all existing laws and edicts to make them conform to the
traditions, culture, values and norms of the people of the state. The committee
submitted its report and recommended that Islamic criminal law could be
applied fully without offending any of the provisions of the 1999 Constitution.
In January 2000, the state enacted the Shari’a Penal Code Law by codifying
the classical Islamic penal law derived from the Qur’an and Hadith. This was
based on the Maliki School of jurisprudence. This meant that section 36(12) of
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the 1999 Constitution, which required offences and punishments to be
formally enacted by a legislative body had been complied with. The powers
for such codification were derived from sections 4(7), 6(5) (k), 277 and 278 of
the Constitution. The governor declared publicly that the state will henceforth
apply the Islamic legal system in full.
Many other states in the North followed the Zamfara initiative at various times
between 2000 and 2001. These were Bauchi, Borno, Gombe, Jigawa,
Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto and Yobe. Each of these states,
except Niger, codified the classical Islamic criminal law by enacting a Shari’a
Penal Code Law which repealed the existing Penal Code. Bauchi, Jigawa,
Kebbi, Sokoto and Yobe states merely adopted the Zamfara Penal Code Law.
The Laws of all the states are substantially the same with the Law of Zamfara.
The Niger State merely amended the existing Penal Code to make it
compliant with classical Islamic criminal law.
Court Structure
Zamfara and most other states also enacted the Shari’a Courts Law and
established Shari’a Courts and Upper Shari’a Courts. These replaced the
Area Courts and Upper Area Courts. The Penal Code Laws were made
applicable before the Shari’a Courts and to persons who profess “the Islamic
faith and/or every other person who voluntarily consents to the jurisdiction of
any of the Shari’a Courts” (section 3 of the Kano Law). The territorial
jurisdiction of each Shari’a Court is specified and that of the Upper Shari’a
Courts made unlimited. The Upper Shari’a Courts are given jurisdiction to try
all offences under the Shari’a Penal Code Law and the Shari’a Courts are to
try all offences except homicide, adultery and robbery. In terms of application,
in Kano for instance, and as the title suggests, the Criminal Procedure Code
(Amendment) Law 2000 made provision for Islamic criminal procedure.
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The re-introduction of Islamic criminal law brought about the expansion of the
jurisdiction of the Shari’a Court of Appeal. Previously, it’s purely appellate
jurisdiction was confined to Islamic personal law matters. These emanated
from either the Upper Area Courts exercising original jurisdiction or an
appellate jurisdiction when the court of first instance happened to be an Area
Court. The lower courts were empowered to entertain cases bordering on
transactions (mu’amalat) and non-capital offences. This it meant that their
jurisdiction was wider than that of the Shari’a Court of Appeal. Therefore
appeals on those matters went to the State High Court Appellate Division,
which constituted of two justices whom, in most cases, were Muslims though
not necessarily trained in Islamic law.
Appeals now from the Upper Shari’a Courts in criminal and civil matters go to
the Shari’a Court of Appeal leaving the (Appellate) High Court with appeals
coming from the Magistrate Courts. It is the Upper Shari’a Court (Appellate
Division constituting two judges) that entertains appeals from the Shari’a
Courts. This expansion has however raised a practical problem. It is that the
(Federal) Court of Appeal which normally hears appeals from the Shari’a
Court of Appeal may not have jurisdiction to hear its criminal appeals because
the Constitution limits appeals from the Shari’a Court of Appeal to the Court of
Appeal applies only to cases on Islamic personal law.
After the historical overview and the discussion of how Islamic criminal law
was reintroduced in 1999, the lecture should proceed to examine the various
provisions of the substantive law as codified by the Penal Codes. We suggest
that this be covered in session seven. It would be better to look at the same
crimes and punishments discussed under the classical Islamic criminal law in
the previous sessions for the purposes of consistency.
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It will be discovered that the various Shari’a Penal Code Laws substantially
cover the classical Islamic criminal law areas of qisas, hudud and ta’zir. The
provisions of the laws should be examined in these three areas. The
provisions are either identical or one law is a reproduction of another. The
discussions may focus on the earlier laws i.e. laws of Zamfara and Kano. The
laws of Niger may occasionally be referred to because of its peculiar
approach.
The provisions made in respect of homicide and hurt are substantially the
same as the classical provisions. Students may be asked to examine the
following:
Section 199 of the Zamfara Code provides that “whoever being a mukallaf [a
fully responsible person] in a state of anger causes the death of a human
being;
(a) with the intention of causing death in [sic] such bodily injury as is
probable or likely to cause death with an object either sharp or heavy;
or
(b) with a light stick or whip or any other thing of that nature which is not
intrinsically likely or probable to cause death, commits the offence of
intentional homicide (qatl al-amd)”.
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The lecture should proceed to look at the three alternative punishments for
the offence of intentional homicide. These are as follows:
Death penalty
Compensation (Diyyah)
If the relatives remit the death penalty and the payment of diyyah, this form of
punishment is given.
It should however be noted that there are three circumstances under any of
which intentional homicide is punishable with the payment of diyyah only and
not with death. These are:
(a) “where the offender is an ascendant of the victim or where the intention
of the ascendant is clearly shown to be the correction or discipline of
the victim; or
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(b) where the offender, being a public servant acting for the advancement
of public justice or being a person aiding a public servant so acting
exceeds the powers given to him by law and necessary for the due
discharge of his duty as such public servant or for assisting such public
servant in the due discharge of such duty and without ill will towards
the person whose death is caused; or
(c) where the offender, in the exercise in good faith of the right of private
defence of person or property, exceeds the power given to him by law
and causes the death of the person against whom he is exercising
such right of defence without premeditation and without any intention of
doing more harm than is necessary for the purpose of such defence.”
The law also covers cases where a relative of a deceased person (waliyy al-
damm) causes the death of the person alleged to have killed the deceased.
Such a killing is an offence under the following circumstances:
(a) it is proved that the person whose death was caused was the one who
killed the deceased, the offence is punishable with imprisonment for six
months and caning which may extend to 50 lashes; or
(b) it is not proved that the person whose death was caused was the one
who killed the deceased or it is so proved but the killing was justifiable
in law. The waliyy al-damm shall be deemed to have committed
intentional homicide punishable accordingly.
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Bodily Injury
Voluntary bodily injury or hurt forms part of qisas and as such it is punishable
by way of retaliation, as it is under the classical Islamic criminal law (“an eye
for an eye”). The victim can however elect to take compensation (diyyah)
instead. The compensation is fixed according to a schedule appended to the
Penal Code. In addition to the compensation, the person convicted is
punished by a maximum of 20 lashes and in Zamfara imprisonment for up to 6
months (z s. 126; k s. 163). The Niger Penal Code does not mention
retaliation. It provides that in addition to the punishment contained in the
Penal Code of 1960, the convict “shall pay a sum of no less than N10,000.00
as compensation to the victim” (s. 68A (2) [i]).
In the Katsina State, a case of bodily injury has been recorded. On 26 May,
2001, a court in Malumfashi ordered that the right eye of one Ahmed Tijjani be
removed for blinding a man in an assault. It has been reported that the victim
was allowed to choose between demanding retaliation (i.e. an eye for an eye)
or compensation of 50 camels. It is not known whether the sentence has been
carried out (Peters 2003).
Blood-money (Diyyah)
Although the Laws have covered all the classical hudud cases, discussions
here should be limited to three of them i.e. adultery and fornication (zina),
theft (sariqa) and drinking alcohol (shrub al-khamr). This is in order to make
the discussions consistent with the previous lectures on the classical
substantive law.
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Adultery & Fornication (Zina)
It is important to point out to students that unlike the classical law, the Codes
categorise sodomy under hudud. It is regarded as zina and punished as such
(s. 130-131 Zamfara; s. 128-129 Kano). With the exception of Kano, rape is
also put under this category and the term of imprisonment for the rapist is for
life. Under Kano and Zamfara Codes, the rapist is also made to pay the victim
compensation equal to a proper bride price (s. 128-129 Zamfara; s. 126-127
Kano).
An interesting issue which may emerge from the examination of the Codes is
that a number of them have omitted to provide for proof. This is apparently
because evidence is a matter which falls within the exclusive legislative list
under the Constitution (i.e. only the federal legislature could legislate on it).
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But Kano and Niger codes require either confession or four witnesses (four
male witnesses or eight female witnesses) as the only proof for zina and rape
(s. 127, Explanation, Kano; s. 396 Code of Criminal Procedure, Kano; s. 68A
(3) [b] Niger).
The lecture should explore further and explain that the Shari’a Court laws
stipulate that the applicable laws of the Shari’a Courts shall be based on the
Qur’anic provisions and Prophetic traditions (Hadiths). The laws state that this
should be coupled with the jurisprudence of the Maliki School of law. The
implication of this is that classical evidential provisions have thereby been
incorporated in circumstances where no proof provisions have been made.
That has been a reason why the courts have in some cases relied upon the
Maliki principle, which admits pregnancy outside wedlock as proof of zina.
There are at least three cases in this respect and they are as follows:
A pregnant seventeen year old girl was found guilty of premarital sexual
intercourse by a court in Zamfara. Accordingly she was punished with 100
lashes in 2001.
Safiya Hussaini
Amina Lawal
A female from Katsina was also found guilty of adultery by a trial court based
in Bakori because she bore a child outside wedlock. She was therefore
sentenced to death by stoning. An Upper Shari’a Court in Funtua upheld the
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sentence in 2002. However, on a later appeal to the Shari’a Court of Appeal,
the sentence was quashed.
Theft (Sariqa)
The codes have not stipulated the nisab, namely the minimum value of
property which if stolen, would attract hadd punishment (s. 46 Zamfara; s. 46
Kano). Recourse must therefore be had to the classical (Maliki) law which
fixes the nisab at one quarter of a dinar. The punishment for a first-time thief
is amputation of the right hand from the wrist. In the event of subsequent
recidivism, the left foot, the left hand and the right foot will be amputated (s.
145 Zamfara; s. 134 Kano).
There are circumstances in which the hadd punishment for theft shall not be
applied. The offender will in these cases be punished with imprisonment not
exceeding one year and be given 50 lashes. The Niger code does not make
such a provision. However it is found under s. 147 of the Zamfara Law which
is similar to s. 135 of the Kano Law and is as follows:
“The penalty of hadd for theft shall be remitted in any of the following cases:-
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3. Where the offence was committed under circumstances of necessity
and the offender did not take more than he ordinarily requires to satisfy
his need or the need of his dependents;
4. Where the offender believes in good faith that he has a share (or a
right or interest) in the said stolen property and the said stolen property
does not exceed the share (or the right or interest) to the equivalent of
the minimum value of the property (nisab);
6. Where the offender returns or restores the stolen property to the victim
of the offence and repents before he was brought to trial and he is a
first time offender;
7. Where the offender was permitted access to the place of custody (hirz)
of the stolen property;
Students should be referred to a number of cases where this new law of theft
has been applied. A good illustration of this is as follows:
Bello Jangebe
This matter was recorded in the Zamfara State and arose when the accused
was found guilty of stealing a cow. The court ordered his right hand to be
amputated and the punishment was carried out in the state capital Gusau, in
2000.
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Commissioner of Police vs. Danladi Dahiru
This matter was heard before the Upper Shari’a Court, in the Kano state. The
accused was a 22 year old Muslim who was charged with the offence of theft,
contrary to section 133 of the Shari’a Penal Code Law 2000. It was alleged
that in 2001 he stole two sewing machines and some textile materials. The
stolen items amounted to the value of N23, 400.00. Three witnesses (two of
whom were the victims) testified for the prosecution and the accused
subsequently confessed to the crime. The confession was said to have
witnessed by three other witnesses. Later the same year, the court decided
that the offence had been established and the accused was accordingly found
guilty. The court ordered that his right hand be amputated in accordance with
section 134(1) of the Law.
This matter was appealed by the defence and was heard before the Shari’a
Court of Appeal Kano. The appeal was based on the following six grounds
and included the following submissions:
1. The lower court had erred in Shari’a by relying on both the evidence of
the three prosecution witnesses and the confession of the accused.
This was because both were considered not to be reliable for the
purposes of securing a conviction for the offence of theft.
2. The lower court failed to administer the concluding remarks (izar) to the
accused person before the judgement.
The appeal by the defence was successful. In its judgement in 2003, the
Shari’a Court of Appeal found irregularities and non-compliance with the trial
proceedings, contrary to the Criminal Procedure Code (Amendment) Law
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2000. Thus pursuant to section 410 (2) of the Law, the Appeal court set the
sentence aside ordered for a retrial before the Upper Shari’a Court, Rijiyar
Lemo, Kano.
Within the Kano state, “whoever takes or injects or inhales any substance for
the purpose of intoxication shall be punished with caning which may extend to
80 lashes or with imprisonment which may extend to one year or both” (s. 136
[2]).
There are cases where the punishment for drinking alcohol has been ordered
since the reintroduction of Islamic criminal law. This has been illustrated by
the Upper Shari’a Court in Kano, which has tried several cases of alcohol
consumption. Although Court records are unavailable, in each case, it was
ordered that the offender be given 80 public lashes in accordance with s.
136(1) of the Law. One of these instances was in 2001 when both Nuhu
Abdullahi and Sa’adu Aminu were caned 80 lashes publicly for the
consumption of alcohol. Similarly, Umaru Bubeh was sentenced to 80 public
lashes.
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(iii) Discretionary Punishments (Ta’azir)
Provision has been made under the Penal Codes for offences which fall
neither under qisas nor under hadud or which may have fallen under hudud
but do not for a technical want. Offences such as criminal assault and
kidnapping, abduction and forced labour, lesbianism etc. fall within this
category and have for instance, been accommodated for by Chapter X of the
Kano Shari’a Penal Code Law. The form of punishment to be ordered under
ta’zir is dependent upon the discretion of the judge (qadi).
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Seminars
Examine and analyse the attitude of the courts in Nigeria to the newly
reintroduced Islamic criminal justice system. How does this compare
with the primary sources? Have the courts deviated from the primary
sources and if so, to what extent?
It has been said that some Christians who are resident in those states
where Shari’a law has been reinstated are concerned that their rights
will not be equally protected before the Shari’a courts. They opine that
the new laws create an atmosphere of intimidation.
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Readings
Struensee, V.V. (Spring, 2005), “Stoning, Shari’a, and Human Rights Law in Nigeria”,
11 William and Mary Journal of Women and the Law Spring, 2005, 405.
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Chapter Five
Objectives
Modification of the hudood law on zina with the adoption of the Women
Protection Act 2006.
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Background
Pakistan is a large South Asian country carved out of the Indian sub continent
with the departure of the British in 1947. It has a population of approximately
160 million, the pre-dominant majority of which profess the Muslim faith
making Pakistan the second largest Muslim country in the world. Under her
constitution, Islam is the state religion and the guiding force and reason for of
its existence. This has led to an on-going tension between the various legal
norms forming the legal system including the constitution and statute law as
well as customary norms. An important aspect of this case study is to explore
the interplay of laws with divergent and multiple normative bases leading to a
hybrid legal system which is neither fully based on religion nor entirely
secular.
Islam and ‘islamisation’ has been employed by both political forces and
military regimes. This has been in order to create support for their power and
to seek allies within sections of society who believe that Pakistan ought to be
run in accordance with principles of Islam and Islamic law. In actual fact
though, the scope of Islamic law was confined very much to the domain of
personal status law.
Until 1979, the criminal law was a field governed by codified laws of the
colonial era such as the Pakistan Penal Code 1860 and the Code of Criminal
Procedure 1898. In 1979, a set of ‘Islamic’ laws in the area of criminal justice
known collectively as the Hudood Ordinances were promulgated by General
Zia-ul-Haq. These laws included:
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The preamble to the hudood ordinances declared that the object was to
modify the existing criminal law and to bring it into conformity with the
injunctions of Islam, as set out in the Qur’an and Sunna. The ordinances
divided punishment into the following two categories:
Framers of the hudood laws claimed that these were derived directly from the
primary sources, namely the Qur’an and Hadith. Critics however, point out the
fact that some of the hadd offences included in these laws are not mentioned
in the Qur’an. Likewise, the Hadith too, has more than one interpretation
regarding hudood offences some of which are jurisprudentially considered to
be of ‘weak’ authority.
At this point in the course, there is likely to emerge a discussion on the extent
to which the divine will in the Qur’an, may faithfully be translated, through
human intervention into legally binding law.
A number of points of criticism have been levelled against the hudood laws
and these are as follows:
1. It has been argued that the Hudood Ordinances depart from general
Islamic jurisprudence by making provisions both for the form and
measure of punishment.
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non-Muslim is discounted. Secondly, as a result of this lower
evidentiary value attached to the testimony of women and non-
Muslims, rapists and/or thieves are liable to escape maximum
punishment, even if the offence is proved beyond reasonable doubt. In
this regard the audience may be asked to consider section 7 of The
Offence against Property (Enforcement of Hudood) Ordinance 1979.
This requires that proof of theft liable to hadd takes one of the following
forms:
(a) The accused pleads guilty of the commission of theft liable to hadd or
(b) At least two Muslim adult male witnesses other than the victim of the
theft, giving evidence as eye witnesses of the occurrence. The Court
must be satisfied having regard to the requirements of tazkia al-
shuhood, that they are both truthful persons and they abstain from
major sins (kabair)
(b) at least four Muslim adult male witnesses giving evidence as eye
witnesses to the act of penetration necessary to the offence. The Court
must be satisfied that having regard to the requirements of tazkia al-
shuhood, that they are truthful persons and abstain from major sins
(kabair).
Under the section 8(b) of the same law, proof of zina or zina-bil-jabr liable
to hadd is the same and is as follows:
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“at least four Muslim male adult witnesses about whom the Court is
satisfied having regard to the requirements of ‘tazkiyyah al-shuhood’ that
they are truthful persons and abstain from major sins (kabair), given
evidence as eye witnesses of the act of penetration necessary to the
offence.
2. A further hurdle that the complainant of rape faces is where the victim
of rape is unable to prove the offence and the court finds that she
consented to sexual intercourse. In such circumstances, the charge
may be converted to zina (adultery or fornication) and the complainant
herself becomes the accused. Furthermore, if the complainant
becomes pregnant as a result of the rape, this is taken as proof that
consensual sexual intercourse outside of marriage has taken place. In
a number of cases the alleged rapist has been acquitted because of
lack of conclusive evidence. The woman complaining of rape, by
contrast, has been convicted of zina, for her failure to establish that her
pregnancy was the consequence of the rape. If the only witnesses to a
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rape or zina act are non-Muslims and the victim and offender Muslim,
then such witnesses stand disqualified.
3. Framers of this law have confused the Qur’anic verses relating to lian
or false accusations made by a husband against his wife and those
relating to qazfh or imputation and have extended their application to
the offence of rape as well. The purpose of the Qur’anic verses was to
protect the honour and reputation of human beings in general and
women in particular by requiring the stringent rule of producing four
adult male Muslims before condemning a person as an adulterer or
adulteress.
4. The Zina Ordinance has been controversial since the day it was
promulgated. Its working has resulted in adverse implications for
women on a number of counts. Before the Zina Ordinance was
enforced, adultery was dealt with under the Pakistan Penal Code.
Women could not be tried for zina as it was a crime coming in the
preview of adultery. Complaints could only be made by the husband of
the woman accused of the offence but women could not be punished
under the law. The offence was bailable and compoundable and if the
complainant chose to drop charges, or not to prosecute the offender,
criminal proceedings against the accused were automatically dropped.
Very few cases of adultery had been reported. This situation soon
underwent a drastic change when women were included within the
scope of punishment for the offence of adultery. Allegations of zina
suddenly soared into thousands. The Commission of Inquiry Report
states that:
“This clearly indicates that as long as it was only the male who
could be punished for adultery, there was a reluctance to
prosecute. The ordinance became a tool in the hands of those who
wished to exploit women.”
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5. It became clear in a fairly short period of time that the Zina Ordinance
was being used for reasons other than to bring ‘immoral’ men and
women to justice. The statement of appeals filed in the Federal Shari’at
Court between 1980 and 1987 is an indicator of the exceptionally high
rate of acquittal for women accused of zina.
“If any of your women Are guilty of lewdness, Take the evidence of
four (Reliable) witnesses from amongst you Against them; and if
they testify, Confine them to houses until Death do claim them, Or
Allah ordain them Some (other) way. The Qur’an 4:15
If two men among you Are guilty of lewdness, Punish them both. If
they repent and amend, Leave them alone; for Allah Is Oft-
Returning, Most Merciful. The Qur’an 4:16
Some writers on Islamic Criminal law have read the above verses as
applicable to zina (namely the illegal sexual intercourse between a man and a
woman) and as a precursor to the more strict hadd punishment.
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Students may be required to read the above verses as well as their
commentary to address the question of whether these verses deal with
homosexuality or zina.
Chapter 24 of the Qur’an then goes on to create the hadd offence of zina and
prescribes the punishment as follows:
The establishment of guilt must be proved beyond any doubt (not simply
reasonable doubt). Four male, adult, trustworthy Muslim witnesses must
testify that they saw the two persons committing the act of adultery and that
the man’s organ was inside the woman. Nothing less than committing a public
act of sexual intercourse such that four men would be standing close enough
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to confirm the actual act, will constitute the offence of zina and attract the
penalty mentioned above.
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“And those who launch A charge against chaste women, And
produce not four witnesses, (To support their allegation), - Flog
them with eighty stripes; And reject their evidence Ever after: for
such men Are wicked transgressors;- Unless they repent thereafter
And mend (their conduct): For Allah is Oft- Forgiving, Most
Merciful.” The Qur’an, 24:4-5.
A contextual analysis of the Qur’anic text raises the question of what brought
about the harsh statement towards extramarital sexual activity and more so to
allegations and insinuations thereof? The above verses were revealed
following the famous ‘Affair of the Necklace’, in which the Prophet
Mohammad’s wife Aisha, was inadvertently left behind by a caravan in the
desert as she went searching for her necklace that had gone missing. She
was spotted by one of the young, single men in the Prophet’s entourage and
brought back to Medina leading to widespread rumours about her time alone
with this man. The subsequent weeks turned into a nightmare for Aisha as her
honour and dignity had come under question and she was being suspected of
inappropriate behaviour. The verse therefore in no uncertain language,
silenced rumours against not only Aisha but for future generations of women.
It also proceeded to prescribe very harsh punishment for a person or persons
who attempt to slander a woman’s good name. See the Qur’an 24:13-19.
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Read together and in light of the context in which the verses were revealed, it
is evident that the focus of the pronouncements was to safeguard a woman’s
reputation and good name. It was not intended to flag up in the public gaze,
extramarital relationships of people. In fact, the Qur’anic advice is to walk
away from a place where rumour mongering or impropriety (of behaviour) is
rife. The Qur’an 24:16-17
The Qur’anic verses on zina must therefore be read together with the verses
on qadfh and not as separate laws. Asifa Qureshi (1997) is one of the very
few writers who can ‘see’ the connection in her ‘reading’ of the Qur’anic text
on zina. She believes that zina and qadfh verses of the Qur’an cannot be read
but as a composite whole; hence a legal formulation that separates the two
sets of verses into two different statutes is unacceptable and amounts to a
corruption of the religious text. She states that the main purpose of the
Qur’anic verses on zina and the punishment it prescribes is to protect both the
privacy of people and public morality. She further submits that this is linked
with the strict evidentiary threshold as well as protecting women’s honour.
However, G. Hussein and Baderin in their work do not appear to include or
read this interpretation in their reflections on the Qur’anic text on zina.
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Trend and Issues in the Application of Islamic Criminal law: Some
lessons from the field.
In plural legal systems such as Pakistan, laws derived from religious text
operate alongside constitutional provisions, secular civil and criminal law,
customary practices and more recently, international human rights law.
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1. Islamic Criminal Law of Hudood is widely used as an
Instrument of Personal Vengeance.
Humaira, a 30 year old woman lawfully married Mehmood Butt, against the
wishes of her parents. Humaira’s father was a sitting member of the Provincial
Legislature. Subsequent to the marriage, her father filed a case of zina
implicating Humaira and Mr. Butt. This was despite the fact that at the time he
made the complaint, he was aware that his daughter and the accused were
lawfully married. In apprehension of their lives and in order to avoid arrest, the
couple fled from their home and sought refuge in the Edhi Centre. Humaira’s
brother was in pursuit of the couple and he filed a first information report
(FIR). This stated that following a disagreement with her mother, Humaira had
left home and he required her ‘possession’. There was no mention at this
stage of the alleged abduction by her husband, Mr. Butt. Nor indeed was
there any mention of Humaira’s marriage to any other person, which was later
alleged to have taken place prior to her ‘kidnap’ by Mr. Butt. This application
was successful.
With the support of human rights activists, the case was eventually listed
before the High Court of Lahore and invoked the writ jurisdiction under the
constitution of Pakistan (Article 199). The judgment made by the Honourable
Justice Jillani is a landmark decision and important in more ways than one. It
draws strength from a combination of Islamic law, the constitution of Pakistan
and international human rights instruments. The decision emanates both from
the UN human rights regime and comparable documents from Islamic forums.
The complimentary manner in which these three differing frameworks are
intertwined has been crucial towards the development of a women-friendly
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and indeed human friendly interpretive strategy for securing human rights.
(Pages 512 –513 of the judgment sum up this argument and approach rather
well.)
This is another landmark case where the Federal Shari’at Court took suo
moto notice of a stoning to death sentence of a married woman Mrs. Zafran
Bibi. During the course of examination of the convicted woman (who was
originally a complainant) and her husband, it transpired that she had been
pressurised to accuse a person of zina bil jabr. This was in order to protect
the younger brother of her husband (who according to her statement used to
commit zina bil jabr with her). Zafran Bibi, who was sentenced to stoning to
death by the trial court, was acquitted by Federal Shari’at Court on the basis
of erroneous reasoning by the trial judge. This case which initiated in the
Kohat region of the North West frontier province of Pakistan hit the headlines
when Zafran Bibi was sentenced by the court of first instance. The public
outrage and wide support for her resulted in the superior courts hearing the
appeal and acquitting her of the offence of zina.
A finding from a review of the sample revealed the fact that there appears to
be a huge divergence between the approach, reasoning and decisions of the
subordinate courts and that of the superior judiciary in hudood cases. The
registration of cases under hudood offences, especially zina and zina bil jabr,
and their subsequent investigation and trial in subordinate courts appears to
be conducted arbitrarily. The cursory manner in which legal and Islamic law
knowledge is applied is painfully apparent in almost all such cases. This has
resulted in acquittals and the quashing of conviction orders of subordinate
courts by the superior judiciary. But what is most unsatisfactory is the fact that
despite consistent pattern of reversals and admonishment by the appellate
courts, the trend continues unabated as does the human suffering it entails.
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Complete disregard for basic human rights and the social implications for the
accused is a repetitive trend emerging from this research. There is a constant
stream of appeal cases where the woman’s reputation is forever tarnished for
being implicated in zina. This is made all the more stark where the male co
accused is acquitted for want of evidence while the woman is convicted for
her pregnancy. In the case of Zafran Bibi cited above, the Additional Sessions
Judge sentenced Zafran Bibi to be stoned to death. She was a married
woman, who had accused a person of zina bil jabr. She was found to be
pregnant, and despite her pregnancy antedating the alleged offence, the trial
court found her pregnancy a conclusive proof of her guilt (her husband was in
jail at the time of occurrence). The accused was, however, acquitted for want
of evidence. Upon appeal, the Federal Shari’at Court found the reasoning of
trial judge erroneous and held that the pregnancy of a complainant could not
be proof of her guilt. This was especially so in the instant case, where it was
antedated and the legitimacy of the child was accepted by her husband.
Zafran Bibi was acquitted by the Federal Shari’at Court.
The court noted that the police and subordinate courts failed to act in a lawful
and timely manner that may have prevented a triple-murder honour killing.
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Abdul Zahir and other vs. The State
The Court found that records were tampered with and false succession
documents were prepared by the accused and other parties. This was in an
attempt to obstruct the rights of a woman (wife of deceased).
The court found that the application of hudood was predominately arbitrary
and that the lower courts seem to have a tendency to want to convict. The
court considered this presumption of guilt to be against the principles of Islam.
The Court further criticised the conduct of the trial judge for he was found to
have failed to have performed his obligations. Additionally, the court was
critical of the police and it was said that they considered “the poor and the
minorities their fief”. The collection of evidence and the investigation was both
partisan and arbitrary.
The Court further observed that “The controversy around the applicability of
hudood laws in Pakistan is related more to the erroneous application of these
laws in the country, rather than the laws per se.”
Our review invoking Islamic criminal laws on hudood, on zina and zina bil jabr,
suggests that courts have failed to take the Qur’anic law to its logical
conclusion. The Qur’anic law on qadfh requires persons who give false
evidence and bring false cases which implicate women of illegal sexual
relations to be whipped. Additionally, their evidence must be forever
disregarded.
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One way to ensure the effective enforcement of qadfh law is by the suo moto
powers of courts. The Federal Shari’at Court believes that legislature must
amend the qadfh ordinance so as to empower courts to take people to task for
falsely implicating people in offences of zina and others of a similar nature.
This, the court holds, would undermine the tendencies of achieving personal
ends and ulterior motives through false cases of hudood against enemies or
‘runaway’ females of family.
It is too early to ascertain the impact of the Women Protection Act. However,
as a result of some preliminary research which has been conducted, it is
evident that no matter how apparently just and equitable a law, it is the
application that determines both the implications and outcome for women.
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Seminars
1. Are the hudood laws a faithful reflection of the Divine Will as expressed
in the Qur’an. If not, why has it found such ready acceptance in its
use?
1. Why and how does one explain the disparity between the judgments of
the trial and superior courts?
1. The judges of the superior courts in Pakistan have had more exposure
to a progressive, liberal interpretation of the law and religion and are
also aware of international human rights laws and willing to use them in
their judgments.
Ali, Shaheen Sardar & Rehman, Javaid (2001) Indigenous Peoples and Ethnic
Minorities of Pakistan. Richmond: Curzon Press.
El-Fadl, K A (2003) Speaking in God’s Name. Islamic Law, Authority and Women.
Oxford: Oneworld Publication.
Jehangir, A & Jilani, H (1990) The Hudood Ordinances: A Divine Sanction? Lahore:
Rohtas Books.
Kusha, H R (2002) The Sacred Law of Islam. A Case Study of Women’s treatment in
the Islamic Republic of Iran’s Criminal Justice System. Aldershot: Ashgate.
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Mernissi, Fatima (1991) Women and Islam translated by M J Lakeland. Oxford: Basil
Blackwell.
Quraishi, A (1997) “Her Honor: An Islamic Critique of the Rape Laws of Pakistan
from a Woman-Sensitive Perspective” Michigan Journal of International Law 18: 287-
320.
Zahur-ud-din, M (2003) New Islamic Laws (Hudood) 1979. Lahore: Mansoor Book
House.
Cases
Abdul Majeed vs. Ghulam Yaseen 1997 PCrLJ 896 (Federal Shari’at Court);
Ayoob and 8 Others vs. The State 1996 PCrLJ 642 (Federal Shari’at Court);
Lala vs. The State PLD 1987 SC 414 (Shari’at Appellate Bench);
Major Nasir Mehmood and another vs State and 9 Others 2002 PCrLJ Lah
408
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Mst. Faiz Begum v. The State 1995 P. Cr.LJ 1601.
Mst. Humaira Mehmood vs. The State PLD 1999 Lah 494
Zarina Bibi vs. The State 1997 PCrLJ 313 Federal Shari’at Court
87 | P a g e
Chapter Six
Session Ten
Objectives
As pointed out earlier, Islamic criminal law falls within the realm of public law.
The application of it therefore is inevitably bound to raise issues of both
national and international concern. This is mainly because Muslim countries
which apply the law have either plural legal systems, due to the legacy of
colonial rule, or are modern states amongst a comity of nations with
international obligations, or both. Moreover, there are hardly any such
countries which do not have a Muslim population. It is therefore suggested
that session ten be devoted to an examination of the implications of the
application of Islamic criminal law.
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The lecture should try to explain to students that in plural legal systems,
practical trial problems may be inevitable. In Nigeria for instance, homicide
cases or other capital offences under Islamic criminal law are tried only by
Upper Shari’a Courts on charges prepared by state counsel. Preparing these
charges normally take some time due to the bureaucracy between the police
and the Ministry of Justice. The cases are normally initiated by the police. By
the constitution, the police cannot detain suspects for longer than 48 hours
without charging them to court. So they simply have the accused arraigned
before the Magistrate Courts on the First Information Report (FIR). The
Magistrate Courts do not have jurisdiction to try Islamic law matters and for
this reason, they simply remand the suspects in prison custody. The police do
not arraign the suspects before the Shari’a Courts because they do not
prosecute there. When charges are finally filed before the Upper Shari’a
Courts by the state counsel, attendance of the suspects for trial (which is
necessary) becomes difficult. This is because prison authorities can only
produce the suspects based on production warrants issued by the remanding
Magistrates. In this situation, justice is delayed if not denied.
Real cases may be referred to. For example, the case of State vs. Ibrahim
Garba & Anr in Kano State may be cited. In it, a charge of armed robbery
contrary to section 140(b) of the Shari’a Penal Code Law of Kano State was
filed before the Upper Shari’a Court, Yankaba, long after the accused persons
had been remanded in prison by a Gyadi-Gyadi Magistrate Court. The trial
was delayed because they were not physically before the Upper Shari’a Court
nor could the Magistrate Court try them for lack of jurisdiction. The case of
State vs. Shehu Labaran, where the accused person was charged with the
offence of rape contrary to section 126 of the Kano Law before the Upper
Shari’a Court, Shahuci, after being arraigned before the Chief Magistrate
Court 19, Nomansland, suffered the same problem.
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penal system must cover all the ‘traditional’ crimes. One of these crimes is
apostasy (ridda). In fact it is classified under hudud offences. However, jurists
argue that apostasy simpliciter without fighting Islam does not amount to an
offence. On the other hand, modern secular constitutions guarantee the
freedom of religion or belief as a fundamental human right of all citizens. This
right entails the freedom to change one’s religion. Criminalising change of
religion therefore would conflict with the constitution, and traditionally,
constitutions take precedence over any other (local) law. This is exactly the
dilemma in Nigeria. Section 38 of the 1999 Constitution guarantees freedom
of religion or belief. Islamic criminal law cannot criminalise conversion from
Islam to any religion without being in conflict with the constitution. The fear of
such conflict is perhaps what explains the conspicuous absence of apostasy
on the list of offences in the Shari’a Penal Code Laws in Nigeria.
Applying Islamic criminal law would not only conflict with national constitutions
but with international human rights instruments as well. Interestingly, the
applying Muslim countries are bound by these instruments. In addition to the
change of religion issue which the Universal Declaration of Human Rights
(UDHR) and the International Covenant on Civil and Political Rights (ICCPR)
clearly sanction, Islamic criminal law appears to be incompatible with
international human rights law in many respects. For instance, punishments
such as stoning to death and amputation of the arm which it prescribes for
adultery and theft respectively may not be incompatible with liberal human
rights enunciations which frown at ‘inhuman and degrading treatment’ or any
punishment which violates the right to human dignity. It is based on
constraints of this nature that the cases of stoning and cutting off of the hand
handed down by the Shari’a courts in Nigeria came under so much criticism
locally and internationally.
Similarly, as was pointed out earlier, Islamic criminal law does not equate
Muslims with non-Muslims especially when the latter are from an enemy state,
a Muslim may not be killed for the killing of non-Muslim. Its evidential law does
not also equate Muslims with non-Muslims and males with females and the
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testimony of a non-Muslim is not admissible against a Muslim and two
females equal one male in testimonial capacity. These provisions appear to
be incompatible with the United Nations Charter, UDHR and ICCPR
provisions on equality of all human beings before the law as well the
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW). It is for these and other reasons that Islamic public law is seen as
needing reform before it could be applicable in the contemporary world (An-
Na’im 1990). However, it has been argued that although there are some
differences of scope and application between Islamic law and human rights,
that does not create a general state of dissonance between them (Baderin
2003). A contextual interpretation of the Qur’an, it is suggested, would lead to
a greater compatibility (Shah 2006).
While practical problems in the application of the law may not be difficult to
handle if there is will, the inconsistency (with national constitutions and
international human rights instruments) hurdle seems difficult, if not
impossible, to cross.
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Seminar
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Readings
Al-Alwani, T. J. (Summer 1996), “The Testimony of Women in Islamic Law”, The
American Journal of Islamic Social Sciences, Vol. 13 No. 2; also available at
http://www.alhewar.com/TahaTestimony.htm
Badr, G. M. (1978) "Islamic Law: Its Relation to Other Legal Systems" Vol. 26, The
American Journal of Comparative Law. pp. 187-198.
Jordan, D.A. (Spring 2003), “The Dark Ages of Islam: Ijtihad, Apostasy, and Human
Rights in Contemporary Islamic Jurisprudence”, 9 Washington and Lee Race and
Ethnic Ancestry Law Journal 55.
Kamali, M. H. (2008), “Human Rights and the Shari’ah: Re-thinking the Hudud
Penalties”, Keynote Address delivered at the International Conference on ‘Islam, the
Application of Shari’ah and Human Rights’, British Institute of International and
Comparative Law, London, 5 June 2008, http://www.biicl.org/events/view/-/id/286/
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Peters, R. (2003) Islamic Criminal Law in Nigeria, Spectrum, Ibadan.
Struensee, V.V. (Spring, 2005), “Stoning, Shari’a, and Human Rights Law in Nigeria”,
11 William and Mary Journal of Women and the Law
Spring, 2005, 405.
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Appendix A: Table of Offences
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