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. > > >_________________________________________________________________ >Send and receive Hotmail on your mobile device: http://mobile.msn.com > >~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ > >To unsubscribe/subscribe or view archives of postings, go to the Gambia-L >Web interface >at: http://maelstrom.stjohns.edu/archives/gambia-l.html >To contact the List Management, please send an e-mail to: >[log in to unmask] > >~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ _________________________________________________________________ Chat with friends online, try MSN Messenger: http://messenger.msn.com ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html To contact the List Management, please send an e-mail to: [log in to unmask] ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~