Mr. Pembo,
Thank you for forwarding sending us that article. You elaborated a lot on
the judicial procedure but based on your knowledge in these matters, what is
the prescribed punishment for a woman convicted of adultery?
Thank you for your time.

Ousman


>From: Musa Amadu Pembo <[log in to unmask]>
>Reply-To: The Gambia and related-issues mailing list
><[log in to unmask]>
>To: [log in to unmask]
>Subject: Fwd:Amina Lawal: Sex,Pregnancy and Muslim Law.
>Date: Tue, 3 Sep 2002 14:07:22 +0000
>
>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.
>[log in to unmask]
>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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