Dear Members,
Please find below an article that will go some way to clarify the position
of the Sharee'ah when it is implemented for the sake of rendering Justice as
oppose to when use as a "control mechanism"against defenceless members of
society.I hope this article and the others to follow will make the topic
easily accesible and understandable.
Thaks for your time and thanks to all the brothers ans sisters who have
expressed doubts about the way some ignorant people have hijacked the
religion to further their own hidden agendas.
AMINA LAWAL: SEX, PREGNANCY AND MUSLIM LAW
By SANUSI LAMIDO SANUSI
Permit me to make a minor, but critical, correction to Mustapha Isah Kwaru’s
translation of my BBC Hausa service interview on the above in the Daily
Trust edition of Wednesday, August 21, 2002 (see "Islamic cleric gives
conditions for Amina’s appeal). In his report, Kwaru wrote, inter alia, that
"to prove his claim, Sanusi Lamido quoted the Imam Malik who…said that ‘he
found a woman who delivered three times within twelve years’ which indicates
that a pregnancy could take the duration of four years." It should be
evident to all those who actually listened to the interview that this
innocent, if ridiculous, error of translation and paraphrasing (even though
placed in inverted commas) greatly distorts my statement. Indeed the
statement quoted above is nothing short of silly and is the logical
equivalent of saying "a woman had one child in twenty years and this proves
that a pregnancy could last for twenty years." Such an argument can never
come from a jurist of Imam Malik’s stature.
What I said, which I repeat and expand on here for the record, was that
"Imam Malik said he knew a woman who had three pregnancies in twelve years
and each of the pregnancies lasted for four years." The difference between
the two statements is evident and I thank one of your readers for calling me
from Kano to seek clarification, a call that alerted me about the error. Let
me clarify for the umpteenth time the position of Islamic Law on this
matter.
Sex and pregnancy are linked both to Muslim family law and to Muslim
criminal law and the failure to recognize this is the root of the ridiculous
verdicts on Safiya Hussein and Amina Lawal. Muslim jurists have made
extensive comments on the gestation of pregnancy in family law because its
determination is critical to establishing nasab, or the progeny of a child.
Jurists are agreed that the minimum gestation for a pregnancy is six lunar
months, which the Maliki jurist al-Dasuqi specifies as 175 days in his
Hashiya. They then differ on the maximum gestation because there are no
texts from the Qur’an and Hadith to rely on in this matter. Opinions are
based on conclusions from empirical evidence (or Istiqra’) and the knowledge
of embryology at that time was also influenced by a widespread belief in the
"sleeping foetus."
Most jurists of the Ithna-‘ashari (or "twelver") school of Shiism hold that
the maximum gestation is nine lunar months. An isolated ruling in the Maliki
school, attributed to Muhammad Ibn al-Hakam, places the bar at twelve months
(and this is what was adopted by Syria in its Muslim personal laws). Abu
Hanifa places the bar at two years based on an opinion expressed by Aisha
the wife of the Holy Prophet (S.A.W.). This was not a Hadith. As for Imam
Malik, the Imam al-Darqutni reports that "Malik often said: ‘This our
slave-girl, the wife of Muhammad Ibn ‘Ajlan, is a truthful woman. Her
husband is also a truthful man. She had three pregnancies in twelve years.
Each pregnancy lasted four years.’" Based on this Malik placed a bar of four
years on gestation. Interestingly, relying purely on Malik’s testimony, the
Imams al-Shafii and Ibn Hanbal both followed suit and adopted four years as
maximum gestation period. Most Maliki scholars place the limit at five
years. Some of them, particularly in the Maghreb, place it at seven years
(and this is what applies today in Morocco). According to Imam Ibn
al-Qayyim, there is even a view that places it at twelve years.
In any case the point is this: If a married woman, or a divorcee or widow
conceives and is delivered of a child in a period not shorter than 175 days
from the last date she could reasonably have slept with her husband (which
excludes for example a woman married to a man living in a different country
and who is known not to have met her after the marriage in most schools of
law other than the Hanafi) and not longer than the adopted maximum of
gestation, then the child is the husband’s. In Maliki law therefore, a if a
divorcee or widow has a child in a period not exceeding four (or five or
seven, depending on dispensation) years from the date of divorce or
husband’s death the child is the husband’s. This is family law. Of course
the states implementing Shariah have the option of adopting a gestation
period different from that adopted by Maliki jurists. A number of countries
have done this, limiting gestation to 12 months based on scientific evidence
since, as mentioned above, there is no text from the Qur’an or the prophet
supporting the opinions of jurists in this matter. But our states are yet to
do so and the judges have not in their judgments explicitly stated their
basis for jettisoning the Maliki view.
The matter becomes subject of criminal law only where the child is delivered
after the expiry of the maximum gestation period. In such an instance, the
pregnancy constitutes circumstantial evidence for adultery in the Hanafi,
Shafii and Hanbali schools of law and prima facie evidence thereof in Maliki
law. Only in such an instance does the state have a locus standi to ask the
accused the source of her pregnancy. When this happens, to further shed
light on Muslim law, the woman will react in one of four ways:
She claims she was raped;
She claims another shubha other than rape, e.g. That a man slept with her
when she was asleep or she genuinely believed she had a legal relationship
with the man etc.
She refuses to enter a plea of innocence or guilt i.e. she refuses to speak;
or
She admits that she committed adultery.
In the first case she is free in all sunni schools other than the Maliki.
Maliki law accepts her testimony only if backed with proof of rape like
bleeding or her screaming for help when it happened. This is quite clear
from Khaleel’s Mukhtasar. In the second case she is free in all schools of
law. In the third case she is free in Hanafi law and also in Shafii law as
reported by Imam al-Nawawi in his Raudha. In the Hanbali school she is free
according to the dominant opinion. In Maliki law she is convicted based on
the fact of pregnancy and this is a second opinion in the Hanbali school,
attributed to Ibn Taimiya by the author of Manar al-Sabil. Her silence is
taken as a confession of guilt given the fact of pregnancy. Finally, in the
event that she confesses to adultery being the source of her pregnancy she
is convicted in all schools of law based on her confession. If she withdraws
the confession then we return to the three preceding scenarios and read from
there the position of each school, as we are left again only with the fact
of pregnancy. I have in other pieces articulated my own preferred opinion in
this matter, and the objections raised against the Maliki position by other
jurists including Ibn Hazm. All of that is in the present case irrelevant
since it only arises if the pregnancy exceeds the recognized gestation
period.
In the case of Amina Lawal (and the earlier case of Safiya) the babies were
delivered well within the gestation period. They could only be tried based
on one of the following three possible events:
1.That the woman, being of sound mental health and fully aware of the
consequences, voluntarily brings herself to the court and confesses to being
pregnant from adultery. She is then convicted based on her confession, which
she is free to withdraw at any point before or during the punishment. The
partner is not convicted unless he confesses when asked or volunteers a
confession as well. (This is based on sound traditions).
2. That four male, reliable eye-witnesses testify to having caught her in
the same act of sexual intercourse with a man other than her husband. (This
is based on Qur’anic text). Or
3.That the husband repudiates the child and takes an oath of Li-an to the
effect that the woman is an adulteress and she fails or declines the counter
oath affirming her innocence. (This is based on Qur’anic text).
It is the right of Amina, as it was the right of Safiya, that the men who
alleged that she committed adultery be required to produce four eye
witnesses to the act. If they fail then each of them should be given 80
lashes of the cane for slander. This is the law of Allah. The point is not
whether Amina committed adultery De facto but if she committed it De jure.
Adultery is committed every day, but only those against whom admissible
proof is established are punished by law.
What is happening in the states implementing shariah is a travesty of
Islamic Law with the result that it is exposed to ridicule and criticism. On
the one hand, we completely ignore the Maliki position on the gestation for
pregnancy. On the other hand we adopt its controversial ruling on pregnancy
constituting prima facie proof of adultery, even though the conditions for
invoking the ruling have not been met. I have previously made all of these
points in other interventions although we never seem to read with an honest
mind. I have no doubt that once again "the true believers" will hurl attacks
and accuse me of being Salman Rushdie. I intend to continue resisting the
temptation to defend myself against diversionary personal attacks while
focusing on the objective of educating Muslims about the abuse of their
religion in the hands of ignorant people. The critics should pick up the
challenge of researching Islamic law and refuting my arguments rather than
resorting to the irritating habit of labeling me an "enemy of Islam" or
"enemy of shariah". In doing this they will contribute not just to their own
education but to that of Nigerian Muslims in general.
And Allah knows best.
With the very best of good wishes,
Musa Amadu Pembo
Glasgow,
Scotland
UK.
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Da’wah is to convey the message with wisdom and with good words. We should
give the noble and positive message of Islam. We should try to emphasize
more commonalities and explain the difference without getting into
theological arguments and without claiming the superiority of one position
over the other. There is a great interest among the people to know about
Islam and we should do our best to give the right message.
May Allah,Subhana Wa Ta'Ala,guide us all to His Sirat Al-Mustaqim (Righteous
Path).May He protect us from the evils of this life and the hereafter.May
Allah,Subhana Wa Ta'Ala,grant us entrance to paradise .
We ask Allaah the Most High, the All-Powerful, to teach us that which will
benefit us, and to benefit us by that which we learn. May Allaah Subhanahu
Wa Ta'ala grant blessings and peace to our Prophet Muhammad and his family
and
companions..Amen.
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