Nigeria: Amina Lawal - Summary of Appeal
Source:
BAOBAB for Women's Human Rights Amina Lawal and Yahaya Mohammed were arraigned before the lower Sharia court, Bakori, on the 15th January 2002, on a charge of adultery.
As mentioned in our last update of 30 August, following the judgement of 19th August 2002 which sentenced Amina Lawal to death by stoning, her lawyers immediately filed an appeal. WLUML has just received information from a member of the Coalition of Women's Human Rights Groups and Lawyers that, "Amina is in Abuja, with her baby and appears to be doing well and is confident that her Appeal will be won."
We can learn from the experience of the case against Safiya Husaini who was also sentenced to death by stoning in 2001. The Upper Area Court has heard the latest case against Amina and this is the court where Safiya's case began. Now that an appeal has been lodged, the case is at the Sharia Court of Appeal where, in the past, women's human rights groups and Safiya have received justice.
Amina's lawyers are therefore confident that the appeal against her sentence will succeed especially because the sitting judge, a Grand Khadi, is a qualified lawyer. In addition to this, his colleagues on the bench are better versed in Sharia and the procedural aspects of Law than those in the lower courts. Amina's lawyers are hoping that she will be discharged and acquitted. WLUML calls on friends and allies to remain ready to provide whatever support is necessary should the need arise.
SUMMARY OF APPEAL - AMINA LAWAL VS. THE STATE USC FT/CRA/1/02
30 August 2002: WLUML has been following the case of Amina Lawal since March 2002.
We are aware that numerous women's rights and human rights organisations have been expressing concern and launching appeals in support of Amina since her first court appearance on 22 March 2002.
These international, regional and national campaigns and efforts have increased the visibility of the case and raised awareness about the important issue of women being sentenced to stoning for alleged zina crime (sexual relations outside marriage).
However, throughout the case, Women's Rights Advancement & Protection Alternative (WRAPA) and BAOBAB for Women's Human Rights, a Nigerian organisation and acting WLUML regional coordination office for Africa and the Middle East, advised us not to initiate a call for action. They clearly stated that their preferred strategy in this case was, and continues to be, to pursue the case by prioritising local pressure and working through the Nigerian legal system. Both organisations are backed by a coalition of Nigerian women’s rights NGOs, from all over the country that are supporting Amina’s case and have been working on it since it began. They have also worked on similar cases in the past, some of which have been successfully resolved without ever coming to international attention.
BAOBAB for Women’s Human Rights has shared the summary of appeal of the case signed by Amina Lawal's lawyer, Hauwa Ibrahim, on 19th August 2002 and who continues to work in Amina's defence.
Amina's pregnancy and subsequent delivery of a baby girl as well as the alleged confession was used as conclusive proof to find her guilty of adultery and sentenced to death by stoning. Yahaya was set free because he denied committing adultery with Amina and subsequently swore on the Holy Qur'an, the trial Court discharged and acquitted him. The trial Court however, gave her a conditional bail after the Judgement.
On 28th March 2002, an appeal was filed on Amina Lawal's behalf by WRAPA (an NGO). Initial Counsels included Aliyu Musa Yawuri, Hauwa Ibrahim and Mariam Imhanobe. Other counsels subsequently joined. The issue of bail was addressed first by the Appellant's Counsels on the 21st May 2002 and the arguments were upheld on the 3rd June 2002.
On the 8th of July 2002, the substantive suit was argued by the Appellant’s Counsels on mainly 14 issues which are broadly divided into issues of law, facts and procedure. The issues of law rest on jurisdiction i.e. that even though the Katsina State law no. 5 of 2000 that 'A Sharia court shall be properly constituted if presided over by an Alkali sitting with two members' the trial court had one Judge (Alkali) sitting alone, and that was a fundamental breach of the Law. The said Law also provided for right of Counsel for an accused person, which the Appellant did not have. See S.10.
The Counsels argued that in Islamic Law under Sharia, the accused could withdraw her confession at any time even at the point of execution. That the burden of proof in a criminal case under our Constitution lies with the prosecution, not the accused to prove her innocence. The Counsels cited 9 items of proof that the prosecution must prove.
Other issues of fact, procedure and technicality canvassed included:
- That the charge is vague, there was nothing in the record of the trial Court indicating the time, place, date and with whom the said offence of Adultery was committed.
- That the word Adultery in the Penal Court 'ZINA' is an arabic word and ought to have been explained to the Appellant.
- That the Appellant was not given opportunity to call witnesses.
- That there is no place in the trial record that stated that Amina was validly married and so in the absence of that, the Judgement was given on assumption.
- That pregnancy should not be conclusive proof of adultery, that more has to be adduced.
- That doubt could be cast with the 'sleeping embryo' theory.
- Under Sharia Law, an accused is given a (second chance) ‘ihizarf’; this was not given to the Appellant.
- That the Sharia Penal Code of Sokoto State commenced on 20th June 2002 after the offence was committed.
- That the Police have no constitutional duty to go to the Appellant’s house and arrest her for committing adultery.
All the above grounds were supported with citation from the Qur’an, Hadith, Sunnah, IJimah, Qiyas, Ijtihad and Al-Urf.
The State Counsel prosecuted this case for the State on the 5th August 2002. He discountenanced all the above grounds and pleaded with the Court to confirm the Judgement of the trial Court. Some issues are pertinent for specific mention:
1)That the Sharia Penal Code came into operation on the 1st August 2002. He cited Katsina State Law No. 6.
2) He also cited S (1) (2) Katsina Sharia Law No. 6 that a Judge can sit alone.
3) That the Appellant’s alleged confession was a conclusive proof of adultery.
4) That Sharia does nor recognize the right of appeal.
5) That the Sharia is the supreme law of Muslims and that any argument based on the Constitution should be disregarded, because the Constitution of Nigeria is subservient to the Sharia.
Ihizarf was given to both Counsels and the case was adjourned to 19th August 2002 for Judgement.
In dismissing all the grounds canvassed by the Counsels for the Appellant, the Judges reasoned that Zina is a plain word with clear meaning and need not be explained.
That the issue of time, date, venue and with whom the offence was committed cannot be sustained because it is irrelevant.
That pregnancy alone by unmarried woman is a conclusive proof of Adultery.
That where there is confession in ‘ZINA’ no witness is necessary to prove anything.
That any Muslim that sees a wrong being committed by anyone at any time should arrest/stop the wrong. So the Police did the right thing by going to the Appellant’s house to arrest her for adultery.
That the argument of valid marriage by the Appellant’s Counsels cannot be sustained, because the Counsels did not prove that the Appellant was a young girl and not married.
On the issue of the vagueness of the [charge, the court held that since the Appellant] had confessed to adultery, that issue was of no effect – ‘it has been pushed off/aside.’
The Court held that Sharia Penal Code came up in August 2002.
With respect to the fact that the Judge sat alone, the Court held that the Katsina House of Assembly promulgated the law that provided for more than one Judge and it is the law of man. The Court held that they will abide by the law of God, which allows for one Judge.
The Court held that they will always uphold to the law of God – the Sharia, which is embodied in:
The Holy Qur’an
The Hadith and Sunnah of Prophet Mohammed (SAW)
Ijmah
Qiyas
Itjihad
Al-Urf
They further held that the Appellant cannot withdraw her confession.
The Court held in conclusion that, ‘to obey the law of Allah is better than 40 days of rain.'
The Court confirmed the sentence passed by the trial Court of Bakori and advised that the Appellant be stoned to death after she weaned her child.
The Appellant has 30 days to appeal. Counsels are now in process of appeal.
Hauwa Ibrahim
Defence Counsel of Amina Lawal & consultant to BAOBAB for Women's Human Rights
Amina's lawyers are therefore confident that the appeal against her sentence will succeed especially because the sitting judge, a Grand Khadi, is a qualified lawyer. In addition to this, his colleagues on the bench are better versed in Sharia and the procedural aspects of Law than those in the lower courts. Amina's lawyers are hoping that she will be discharged and acquitted. WLUML calls on friends and allies to remain ready to provide whatever support is necessary should the need arise.
SUMMARY OF APPEAL - AMINA LAWAL VS. THE STATE USC FT/CRA/1/02
30 August 2002: WLUML has been following the case of Amina Lawal since March 2002.
We are aware that numerous women's rights and human rights organisations have been expressing concern and launching appeals in support of Amina since her first court appearance on 22 March 2002.
These international, regional and national campaigns and efforts have increased the visibility of the case and raised awareness about the important issue of women being sentenced to stoning for alleged zina crime (sexual relations outside marriage).
However, throughout the case, Women's Rights Advancement & Protection Alternative (WRAPA) and BAOBAB for Women's Human Rights, a Nigerian organisation and acting WLUML regional coordination office for Africa and the Middle East, advised us not to initiate a call for action. They clearly stated that their preferred strategy in this case was, and continues to be, to pursue the case by prioritising local pressure and working through the Nigerian legal system. Both organisations are backed by a coalition of Nigerian women’s rights NGOs, from all over the country that are supporting Amina’s case and have been working on it since it began. They have also worked on similar cases in the past, some of which have been successfully resolved without ever coming to international attention.
BAOBAB for Women’s Human Rights has shared the summary of appeal of the case signed by Amina Lawal's lawyer, Hauwa Ibrahim, on 19th August 2002 and who continues to work in Amina's defence.
Amina's pregnancy and subsequent delivery of a baby girl as well as the alleged confession was used as conclusive proof to find her guilty of adultery and sentenced to death by stoning. Yahaya was set free because he denied committing adultery with Amina and subsequently swore on the Holy Qur'an, the trial Court discharged and acquitted him. The trial Court however, gave her a conditional bail after the Judgement.
On 28th March 2002, an appeal was filed on Amina Lawal's behalf by WRAPA (an NGO). Initial Counsels included Aliyu Musa Yawuri, Hauwa Ibrahim and Mariam Imhanobe. Other counsels subsequently joined. The issue of bail was addressed first by the Appellant's Counsels on the 21st May 2002 and the arguments were upheld on the 3rd June 2002.
On the 8th of July 2002, the substantive suit was argued by the Appellant’s Counsels on mainly 14 issues which are broadly divided into issues of law, facts and procedure. The issues of law rest on jurisdiction i.e. that even though the Katsina State law no. 5 of 2000 that 'A Sharia court shall be properly constituted if presided over by an Alkali sitting with two members' the trial court had one Judge (Alkali) sitting alone, and that was a fundamental breach of the Law. The said Law also provided for right of Counsel for an accused person, which the Appellant did not have. See S.10.
The Counsels argued that in Islamic Law under Sharia, the accused could withdraw her confession at any time even at the point of execution. That the burden of proof in a criminal case under our Constitution lies with the prosecution, not the accused to prove her innocence. The Counsels cited 9 items of proof that the prosecution must prove.
Other issues of fact, procedure and technicality canvassed included:
- That the charge is vague, there was nothing in the record of the trial Court indicating the time, place, date and with whom the said offence of Adultery was committed.
- That the word Adultery in the Penal Court 'ZINA' is an arabic word and ought to have been explained to the Appellant.
- That the Appellant was not given opportunity to call witnesses.
- That there is no place in the trial record that stated that Amina was validly married and so in the absence of that, the Judgement was given on assumption.
- That pregnancy should not be conclusive proof of adultery, that more has to be adduced.
- That doubt could be cast with the 'sleeping embryo' theory.
- Under Sharia Law, an accused is given a (second chance) ‘ihizarf’; this was not given to the Appellant.
- That the Sharia Penal Code of Sokoto State commenced on 20th June 2002 after the offence was committed.
- That the Police have no constitutional duty to go to the Appellant’s house and arrest her for committing adultery.
All the above grounds were supported with citation from the Qur’an, Hadith, Sunnah, IJimah, Qiyas, Ijtihad and Al-Urf.
The State Counsel prosecuted this case for the State on the 5th August 2002. He discountenanced all the above grounds and pleaded with the Court to confirm the Judgement of the trial Court. Some issues are pertinent for specific mention:
1)That the Sharia Penal Code came into operation on the 1st August 2002. He cited Katsina State Law No. 6.
2) He also cited S (1) (2) Katsina Sharia Law No. 6 that a Judge can sit alone.
3) That the Appellant’s alleged confession was a conclusive proof of adultery.
4) That Sharia does nor recognize the right of appeal.
5) That the Sharia is the supreme law of Muslims and that any argument based on the Constitution should be disregarded, because the Constitution of Nigeria is subservient to the Sharia.
Ihizarf was given to both Counsels and the case was adjourned to 19th August 2002 for Judgement.
In dismissing all the grounds canvassed by the Counsels for the Appellant, the Judges reasoned that Zina is a plain word with clear meaning and need not be explained.
That the issue of time, date, venue and with whom the offence was committed cannot be sustained because it is irrelevant.
That pregnancy alone by unmarried woman is a conclusive proof of Adultery.
That where there is confession in ‘ZINA’ no witness is necessary to prove anything.
That any Muslim that sees a wrong being committed by anyone at any time should arrest/stop the wrong. So the Police did the right thing by going to the Appellant’s house to arrest her for adultery.
That the argument of valid marriage by the Appellant’s Counsels cannot be sustained, because the Counsels did not prove that the Appellant was a young girl and not married.
On the issue of the vagueness of the [charge, the court held that since the Appellant] had confessed to adultery, that issue was of no effect – ‘it has been pushed off/aside.’
The Court held that Sharia Penal Code came up in August 2002.
With respect to the fact that the Judge sat alone, the Court held that the Katsina House of Assembly promulgated the law that provided for more than one Judge and it is the law of man. The Court held that they will abide by the law of God, which allows for one Judge.
The Court held that they will always uphold to the law of God – the Sharia, which is embodied in:
The Holy Qur’an
The Hadith and Sunnah of Prophet Mohammed (SAW)
Ijmah
Qiyas
Itjihad
Al-Urf
They further held that the Appellant cannot withdraw her confession.
The Court held in conclusion that, ‘to obey the law of Allah is better than 40 days of rain.'
The Court confirmed the sentence passed by the trial Court of Bakori and advised that the Appellant be stoned to death after she weaned her child.
The Appellant has 30 days to appeal. Counsels are now in process of appeal.
Hauwa Ibrahim
Defence Counsel of Amina Lawal & consultant to BAOBAB for Women's Human Rights
