ANNOTATING SAFIYA

ANNOTATING SAFIYA'S DIARY: THE REFUTATION OF "RUSHDIE-FICATION"

I have followed with keen interest the various reactions to the publication of my diary. Poor Lamido Sanusi, whose only crime was that he offered to publicise the entry, has been vilified by some readers of the Weekly trust and New Nigerian as the Salman Rushdie of Nigeria. You see, our men (O God bless their good souls!) refuse to believe that I, mere woman that I am, could have written that diary. Fortunately, Sanusi seems amused by it all. When I last spoke to him, he said he was enjoying himself right there, "in the eye of the storm" as he put it. It seems he even ventured to write two rejoinders, one on gamji.com ("In the Eye of the Storm") and the other in the New Nigerian, "In Defence of the Adulteress' Diary"-18 & 19 December). He really did not have to do all that for my sake, poor soul. He has always said there was a distinction between a writer and a demagogue. A demagogue tells his readers what he thinks they want to hear, then promptly seeks elections based on the garnered popularity. A writer tells them what he believes they ought to hear, and by making them hear it he makes his contribution to setting them free. I often wonder if Sanusi read Tolstoy. He it was who wrote:

" According to the hypocritical theory of the day, man is not free to transform his life. Man is not free in his actions, but he is free to admit or to deny the truth he knows. When truth is once admitted, it becomes the basis of action…. Man's freedom consists in the recognition of the truth revealed to him. There is no other freedom. Recognition of truth gives freedom, and shows the path along which, willingly or unwillingly by mankind, man must advance."

I feel a little sorry for some of the contributors to this debate. They seem afraid that somehow Islam or Muslims will suffer from a robust debate on the implementation of Shariah. Islam is not a creaking, time-barnacled barque that will crack at the first signs of rough weather. To quote Tolstoy yet again, "Nothing true and good can be destroyed by the realisation of truth, but will only be freed from the alloy of falsehood!"

The "Rushdie-fication" (henceforth rushdification-with apologies to the Queen of England) of Sanusi reflects in part the ignorance of many in our society. Practically every statement made in "The Adulteress' Diary" was based on available literature on Muslim Law, history and politics, and in this entry I will annotate those areas which our men seem to consider controversial. From reading the various reactions these would seem to be three. First, they fault my claim that I was convicted based on the fact of pregnancy and that I would not have been acquitted even if I said I was raped. Some writers held that this was a misrepresentation of Maliki Law. Second, it would seem many were outraged by my assertion that the law under which I was convicted is not Allah's Law. This perhaps accounts more than anything else for those reactions that were negative. The final grouse has to do with what is seen as the feminist dimension to the arguments in the Diary, and the alleged insinuation that the Shariah is unfair to women. I will take the points in turn.

On the first point, my comment was based on the Mukhtasar of Khaleel, the most widely accepted authority on Maliki Law in our lands. Here is what Khaleel says in the "chapter on the hadd of zina and related matters: "(Zina) is proven by (1) Confession made once unless it is withdrawn in any form whatsoever (mutlaqan) or (the convict) runs away (after confessing) even if during punishment; (2) Testimony (of four witnesses to the act). The hadd will not be set aside (even) if four women testify to the woman's virginity (after the fact); and (3) Pregnancy in an unmarried woman, or a slave woman whose owner does not affirm (having had intercourse with her.) No claim of rape (made by her) is to be accepted without corroborating proof!" (See Minahul Jaleel, Sharh 'ala Mukhtasar Sidi Khaleel by Shaykh Muhammad 'Ulaysh, Vol 9, pp 255-9). These are Khaleel's words in the Mukhtasar. The "proof" required of me had I claimed rape is, according to the commentary, to for instance come bleeding or screaming at the time of the rape (Ibid. p. 259). You see had I been convicted based on my confession, the case would be considered over in Law the moment I ran away and I would be free to say I lied. The truth is I was convicted based on pregnancy and so must prove my innocence or face death (unless I escape based on the technicality that I was charged to court before the laws came into effect).

Let me try and reason with our Muslim men on this point, without the complications of "legalese". Assume you had a teenage daughter in a secondary school in one of the Shariah states of the north. During the holidays you discover she is pregnant and on interrogation she confesses that her principal raped her or tricked her or otherwise took advantage of her. She was too afraid or ashamed or naïve to report the matter. As you agonise over this problem, the local hisbah committee hears about it and reports to the police who investigate and prosecute your daughter under Shariah Laws for fornication- based on the proof of pregnancy. Brought before the alkali she repeats her story and the principal is summoned before the court. He flatly denies ever having slept with your daughter and, since she does not have four witnesses, he is promptly acquitted without further questions and allowed to return to his job unmolested. Meanwhile this is the judgement on your daughter. She is pregnant without a husband and has failed to prove that her intercourse was non-consensual so she is guilty of fornication. Consequently, she is to have the baby and return after her post-natal menstruation for 100 lashes in public for the crime. If she is unlucky, she will also have a further 80 lashes for slandering her principal. Your daughter goes through the humiliation of rape, the difficulties of pregnancy, the pains of labour, the stigma of having a bastard child and 180 lashes. Nothing, repeat nothing, happens to the man who raped her! This is the law. I know men are dense but surely even a man can see how ridiculous this is! Can any true Muslim attribute this travesty of justice to the God he worships? This is the law under which I was convicted. The issue is not whether or not I was in fact raped. It is, rather, that this fact would have made no difference, rendering the matter irrelevant. Without this law I would never have been dragged to court in the first place and those who accused me of adultery would have been appropriately treated as "liars in the sight of God". You may sneer at me now, and insist that I deserve to be stoned to heaven. Just remember that tomorrow it may be your daughter, or your sister or your wife.

Now we can address to the second point. I wrote in my first entry, and I repeat here, that this Law is not Allah's law, even if it is consistent with the rulings of Maliki jurists. In truth I need no further justification that the illustration above. But you see our world is a difficult one. The rushdifiers of my friend Lamido Sanusi in reality know no better. So let me state here that in making my claim I relied on the great sunni jurist, Ibn Hazm al-Zahiri and his magnum opus, al-Muhalla (Vol. 11; pp 155-7). This is what Ibn Hazm wrote in connection with jurists of the Maliki and, to a slightly lesser extent, the Hanafi schools of law:

"We know of no one more precipitate (than them) in prescribing the hadd punishments in uncertainty when it is not binding and, at other times (arbitrarily) setting it aside where Allah and His Messenger have prescribed it." Ibn Hazm proceeded to give examples where Maliki jurists, based on Ijtihad (opinion), have produced a law which is not Allah's law. Among them that Maliki law condemns a man to death for murder even if he was defending his own life based on the oath of two members of his family who may be the worst human beings on earth, and will not commute the sentence if 100 of the best Muslims around swore on his behalf; (Incidentally, it was on the basis of this law that a Katsina Shariah court recently sentenced a man to "death by knifing", in a "landmark judgement"!); that the Malikis pass death sentences on the basis of the witness of useless people whose testimony would not gain a man two pennies in the Maliki law of contract; they kill a Muslim who refuses to say his prayers even if he affirms that he believes in it and that it is a binding religious duty; they kill one who conceals his disbelief even if he openly repents but do not kill one whose disbelief is manifest if he repents and there is no difference between the two; On theft they cut off two feet without any established text from the Qur'an or hadith or consensus; in one of their rulings if a thief's left hand is cut in error they say his right should still be cut thus cutting off two hands in one theft whereas Allah never specified the right from the left, and so on.

What is relevant to us in this long list of examples is the following statement by Ibn Hazm: "As for zina, the Malikis impose the hadd based on conception and perhaps it results from rape!" (ibid. pp155-6). If anyone thinks the Diary's assertion on this point is unIslamic he is referred to Ibn Hazm on this point. As for the reason for which all schools of law other than the Maliki restrict themselves to four witnesses and voluntary confession as the proof of zina, Lamido Sanusi had articulated them in two papers of his, Class, Gender and a Political Economy of Shariah and The Class Character of Religious Revival. Both can be reviewed on his web-page www.gamji.com/sanusi.htm. The reader can also refer to Sanusi's recent article in the New Nigerian, "In Defence of the Adulteress' Diary", and to Ibn Qudamah's Al-Mughni (vol 10); Al- Jaza'iri's Kitabul Fiqh alal Mazahib al- Arba' (Vol. 5) ; M. Abu Hassaan's Ahkam al-Jareemah wal 'uqubah fil-Shariah al-Islamiyyah and Dr Abul Ma'ati's Al-Nizam al-'Iqabi al-Islami. In most dispensations that I know of, including nations that are traditionally Maliki, this obnoxious law has been dropped. An example is the Sudan, which is Maliki. Section 147 of the Islamic Criminal Code restricts proof of adultery to the testimony of four male witnesses and confession by the offender. It states specifically that retraction of the confession or the testimony of one of the witnesses remits the penalty. In 1985 in Pakistan, a shariah court convicted a blind girl called (can you imagine!) Safiya for zina based on pregnancy from rape. The Muslim people of Pakistan were so appalled by the gross injustice they took to the streets in demonstrations which forced the Pakistani Federal Shariah Court to overrule the lower court (See Safia Bibi Vs The State (1985) 37 Pakistan Law Digest {Federal Shariat Court} 120).

The reason scholars in other Muslim nations dropped this law (which some Nigerian Muslims have been asking our ulama to do since the case of Bariya in Zamfara) is that it is defective in a number of areas. First it lacks clear basis in the texts of the Qur'an and Hadith, which is why it is rejected by the majority. It is almost a "notorious fact" in jurisprudence that in matters of hudud, or fixed punishments, there is no room for widening the scope beyond that which was defined by Allah and His Messenger. Circumstantial evidence may be used as a basis for punishment under ta'zeer (or deterrence), but certainly not under hudud. So the first criticism is that the law is based on opinion, not on texts.

Secondly, it convicts a woman for zina based on pregnancy that may or may not result from consensual illicit sex, placing the burden of proof of innocence on the accused. This flies in the face of the legal precept that presumes the innocence of a suspect unless guilt is proven. The standard Maliki response is that this conforms to their principle of sadd al-zaree'ah, which aims at "closing the paths" that may lead to sin. By punishing pregnancy, the scholars are willing to risk a few wrong convictions in the interest of the wider issue of protecting family values. In any event, it is said, even where we have four male witnesses we are not 100% sure of their truthfulness so we are never free of uncertainty. This argument was most vigorously put forward by the Hanbali Ibn Taimiya who shares Malik's passion for sadd al-zaree'ah. It is a faulty argument on several scores. First, in a hadith reported by Al-Tirmidhi and Ahmad Ibn Hanbal from Aisha, the Prophet says: " remit the fixed punishments from Muslims as best you can. If you find an escape route for a Muslim let him go. It is better for the Imam to err in acquitting (the guilty) than to err in punishing (the innocent)." (It is based on this hadith that I wrote in my first entry-it is better for 1,000 adulteresses to escape than for one innocent Muslim to be convicted of adultery). Secondly, the comparison with four witnesses is untenable. The reality is that women get pregnant due to rape and due to their vulnerability as women, as members of the poor classes and as uneducated persons, especially those of us who are from villages.

Thirdly, the law tilts the balance of justice against the woman. Whereas the law on zina in the Qur'an and Sunnah places the burden of proof equally on both parties to the act, the inclusion of pregnancy as proof of zina unfairly imposes a higher burden of proof on one party to a crime committed by two persons. Because only women get pregnant the issue of discrimination based on gender is a logical fallout of this situation. The solution is simple. Either drop the law, which other scholars have done, or extend the ijtihad to men by convicting them based on the circumstantial evidence of paternity established on the basis of modern science. You can not eat your cake and have it- convict a woman even where the possibility of innocence exists but acquit the man based on an even less likely possibility of innocence. A criticism of this law is not a criticism of shariah, if we understand the shariah as the law of Allah and His Prophet. At worst, it is a criticism of the opinion of some scholars and the insistence of our contemporary law-makers on adopting this opinion without concern for its grotesque implications. This decision exposes Islam to ridicule when in fact it is not a correct one in Islamic jurisprudence.

Now that I have annotated the diary I invite our men to address the real issues and stop chasing shadows. We should ask those drafting shariah laws in the north to recognize that there is no room for intellectual laziness. They should research these matters and make the right amendments so that justice will prevail. I cannot change the law. The alkali has no choice but to judge according to the law as given to him. I cannot stop some men from resisting change and attacking its proponents. I am however convinced, jokes apart, that most readers have the capacity for seeing the truth when it is placed before them. We are in a democracy. It is left to this majority to take a decision now. Either insist that the laws being passed in Allah's name should be Allah's laws, or be accomplices in the abuse of religion and its appropriation to legitimate crude injustice. It is my hope that, even if I die, my diary would have served the purpose of contributing positively to Islam and the Shariah.

December 2001