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Islamic
Legal Analysis of Zina Punishment of Bariya Ibrahim Magazu, Zamfara,
Nigeria
by
Asifa Quraishi, Esq.
January
20, 2001
Question Presented:
Is the hadd punishment
for zina the proper sharia punishment for an unmarried pregnant girl, who
claims that the pregnancy resulted from unwanted sexual relations with
three men in an arrangement made by her father as payment for his debt?
Short Answer:
The majority shari'a
opinion is that pregnancy is not admissible as proof of zina because it is
merely circumstantial evidence. These
jurists reject the element of doubt introduced into prosecutions based
upon circumstantial evidence, especially for zina, where the Quran
specifically demands four eyewitnesses to such charges.
This majority position is the most compelling one and therefore,
the zina conviction against Bariya Ibrahim Magazu, being based only upon
the circumstantial evidence of her pregnancy, should be overturned.
Even under the minority
Islamic legal school (Maliki) which allows pregnancy as proof of zina,
this proof is negated where there is evidence of coercion, where there is
any element of doubt, or where there is mitigating evidence against
punishment of the particular defendant at hand.
In this case, there is evidence of coercion and doubt, as well as
mitigation. Therefore, the
zina conviction of Bariya Ibrahim Magazu should not stand.
Analysis:
The crime of zina
(consensual extra-marital intercourse) is a hadd (God-specified) crime
established in the Quran. In
Surah al-Nur, the Quran specifically requires four eyewitnesses to prove
the crime of zina. (See Surah
24, verses 2-4). The issue at
the heart of this case is whether other forms of proof (short of a
confession), suffice for this hadd punishment.
Namely, is pregnancy of an unmarried woman itself proof of zina in
the absence of four eyewitnesses?
I. The majority of the
classical schools of Islamic law hold that unmarried pregnancy, being only
circumstantial evidence, is not admissible as proof of zina.
The majority of the
major Islamic schools of law take the Quranic verses on zina as
establishing an exclusive method of proof of the crime - that is, it must
be by eyewitness testimony (or confession) only.
Anything else is merely circumstantial evidence and not admissible
in a hadd prosecution. Thus, unmarried pregnancy, being neither eyewitness testimony
nor confession, is not admissible as proof in a zina case.
This is the position of the Hanafi, Shafi'i and Hanbali schools of
law. (See Muhammad Ibn
Quddamah Al-Maqdisi, Al-Mughni 'Ala Mukhtasar al-Kharaqi, Vol. 8, p. 129,
145 (1994); see also Ma'amoun M. Salama, General Principles of Criminal
Evidence in Islamic Jurisprudence, in The Islamic Criminal Justice System,
p.110 (M. Cherif Bassiouni, ed. 1982)).
A. The majority
position is based on the text and spirit of the Quranic verses on zina and
minimizes the introduction of doubt into these prosecutions, in accordance
with fundamental principles of Islamic hadd jurisprudence.
The majority opinion is
based on the view that the Quranic verses describing evidence in hadd
cases establish an exclusive evidentiary standard.
Thus, this view takes seriously the Quranic condemnation of anyone
who charges a woman with zina and does not bring four eyewitnesses in
support of this charge. (See
Quran 24:4) The Quran's specific demand for witnesses means that this is
the only acceptable means of proof of this hadd in the eyes of God.
Based on this reasoning, the Hanafi, Shafi'i and Hanbali schools of
law do not accept any presumptions or circumstantial evidence such as
pregnancy as evidence in any hadd cases because they contradict the
Quranic demand for testimonial evidence.
(See Salama, p. 110-13.)
The majority position
rejecting pregnancy as evidence in zina cases is also based upon the
fundamental shar'i principle that hadd punishments are not to be carried
out if there is any element of doubt.
(See Tirmidhi hadith: "idra'u al-hududa bi'shubhat"
("drop the hudud in all cases of doubt").).
Because circumstantial evidence always entails an element of doubt,
the majority view avoids it in hadd prosecutions.
After all, just as being drunk does not necessarily mean that one
voluntarily consumed alcohol, similarly, the state of being pregnant does
not alone mean that one engaged voluntarily in consensual extra-marital
intercourse. The classical
Muslim scholars acknowledge that one might become pregnant through other
means - for example, unknowing intercourse while asleep, a mistaken belief
of one's marital status, or worse, coercion to have intercourse against
one's will. (See al-Maqdisi,
al-Mughni, vol. 8.) With
modern medical advances, this cautionary approach of the shari'a is
commendable, for we now know that one might become pregnant through
artificial insemination where there is no intercourse at all.
The existence of all of these possibilities introduces an element
of doubt into any prosecution for zina which relies on unmarried pregnancy
as evidence. It is for this
reason that the majority of schools of Islamic law wisely reject pregnancy
as evidence of zina.
Finally, the majority
position also reinforces the Quranic protection of women in these verses,
an important recurring theme in Islam.
(See Asifa Quraishi, Her Honour: An Islamic Critique of the Rape
Provisions in Pakistan's Ordinance on Zina, Islamic Studies Occasional
Paper #38 (1999) (Islamic Research Institute, International Islamic
University, Islamabad, Pakistan), attached).
Pregnancy, of course, only applies to women.
Yet the Quranic verses specifically assert the need to protect
women against charges of zina with anything short of four eyewitnesses.
If pregnancy is allowed as proof, the woman-affirming spirit of the
Quranic verses is lost.
B. There is a minority
view which allows circumstantial evidence (such as pregnancy) in hadd
cases, but it should not be applied if other circumstantial evidence
probative of truth is excluded.
A minority of Muslim
jurists have held that certain types of circumstantial evidence is
allowable in hadd cases. These scholars reason that the Quranic references to hadd
evidence indicate a general form of proof of anything manifesting the
truth, and is not limited only to the testimony of witnesses.
(See Salama p. 110-11, 120-21.)
Imam Malik and reportedly Imam Ahmad Ibn Hanbal held this view.
In zina cases, these jurists also look to the reported statement of
Umar ibn al-Khattab that "adultery is public when pregnancy appears
or confession is made." (See
Abu Da'ud, Sunan, vol. 3. No. 4404.)
Thus, the Maliki school of law admits a variety of types of
non-eyewitness evidence in hadd cases, such as pregnancy in zina cases
(see ad-Dardir, ash-Sharh as-Saghir (Hashiya "Bulghat a-Saliq"
by Ahmad as-Sawi), Vol. 4, p. 454), the smell of wine and vomiting in
prosecutions for alcohol consumption, and hearsay.
(See Salama, p. 115, 121.)
Thus, those jurists who
allow circumstantial evidence such as pregnancy in hadd cases do so with
an eye to allowing any strong non-eyewitness evidence which tends toward
the truth. In the case at hand, therefore, even if the court followed
the minority Maliki view allowing circumstantial pregnancy evidence as
proof of zina, then other circumstantial evidence of truth should also be
allowed, especially evidence that the intercourse was not consensual (thus
negating an essential element of the crime of zina).
C. The majority
position is the most compelling one and should be followed in this case.
The majority position
disallowing circumstantial evidence of pregnancy in zina cases is the most
compelling one when viewed in the spirit of the Quranic verses condemning
any accusations of women without four eyewitnesses and the importance of
avoiding doubt in hadd punishmentss.
Moreover, it has been said that Nigeria's own Sokoto caliphate
history of taking the best approaches from all of Shari'a was an inspired
approach. This history should
also inform the application of the newly-enacted hadd criminal codes in
Nigeria. Nigerian courts
should take the most compelling and Islamically careful opinions in
carrying out the punishments required by God.
Therefore, pregnancy should not be considered admissible proof of
the charges against Bariya Ibrahim Magazu for zina.
The court should follow the majority opinion among the four schools
of law that four witnesses or her confession is the only means of proving
this crime. Therefore, any
conviction based upon her pregnancy should be overturned.
II. Even if the court
adopts the minority view allowing pregnancy as proof of zina, the proof is
rebuttable by evidence that the woman did not consent to the intercourse.
Even the minority
Maliki position that allows pregnancy as proof of zina does acknowledge
the possibility that pregnancy can result from an unwilling sexual
encounter. Thus, the Maliki
school allows a woman to rebut a pregnancy-based zina prosecution with
evidence of coercion. (See
Malik, al-Muwatta, Sec. 41:4, p. 392.)
This can come in the form of evidence of physical resistance
(bruises, crying out, etc.), or of immediate "sudden response"
assertions that the intercourse was coerced.
(See ash-Sharh as-Saghir, vol. 4 p. 454.)
In the case at hand,
evidence of coercion exists in Bariya's claim that she was compelled to
have intercourse as payment for her father's debt to three men.
Should she be able to prove this assertion, even the Maliki school
would not allow zina punishment. Moreover,
the court should not require only eyewitness testimonial evidence in
support of a coercion defense, because (as established above), the Maliki
school admits circumstantial evidence in hadd cases.
It would be self-contradictory to allow circumstantial evidence of
pregnancy but deny circumstantial evidence of coercion in the same case.
In the case at hand,
the fact of coercion would be inherent in any evidence indicating that
Bariya was compelled to have sexual relations as payment for her father's
debt. Also, any indications
of her resistance to the men themselves would provide further proof of
coercion negating a zina conviction.
III. Even if the court
adopts the minority view allowing pregnancy as proof of zina and Bariya
cannot prove coercion, the punishment cannot be carried out against her if
there is any element of shubh (doubt) in the case.
All schools of Islamic
law agree that the punishment for a hadd crime is not to be carried out
where there exists any element of doubt.
This is based upon the fundamental shar'i principle that doubt
suspends hadd punishments. (See
Tirmidhi hadith "idra'u al hududa bi' shubha" ("drop the
hadd punishments in cases of doubt"), "al-hudud tusqat bil
shubha" ("hadd punishments are suspended in doubtful
cases"), Ibn Rushd, Bidayat al-Mujtahid, Vol. 6, p. 113.)
Examples of doubt in zina cases include (as mentioned above)
evidence that the defendant was asleep, or mistaken about her or his
marital status with the other party, or that she or he was coerced.
Ibn Farhun holds that evidence of foreplay (by which semen might
have been ejaculated even without intercourse) creates doubt.
Abu Hanifa has stated that where there is any financial arrangement
connected to the act of intercourse, it is doubtful as zina, (see ash-Sharh
as-Saghir, Vol. 4, p. 448) as is arranging for someone to have sex with
your slave (see Bidayat al-Mujtahid, Vol. 6, p. 113) -- an example
somewhat comparable to Bariya's claim that her intercourse was arranged by
her father.
Moreover, Islamic
jurisprudence also strongly discourages hadd punishment where there is
anything mitigating against it ("yurahat takfif"), such as the
health of the defendant, or their family's dependence upon them.
(See Tirmidhi hadith "Avoid punishments so long as there is
room for avoiding them," "Keep the Muslims away from punishments
wherever possible. If there
is any way out for an offender to escape punishment, acquit him.
It is better for a judge to err in acquittal than in
conviction.") In this
case, there are several mitigating factors: Bariya is very young and
apparently a victim of serious adversity and possible abuse by her father
and society, and she presumably has no previous deviant record
Thus, even if she is not able to prove coercion, there is surely
enough mitigating evidence to suspend the zina hadd punishment against
her.
IV. To be enforceable
by the state, a hadd crime must be part of a fully-formed shari'a legal
system; if shari'a is applied piecemeal then the state perpetuates
injustice in the name of Islam.
The crime of zina is
only one of many hadd crimes specified in the shari'a, and a very small
part of Islamic jurisprudence as a whole.
Each element of the law articulated by the classical Islamic
scholars is done with this in mind, such that many elements rely upon the
existence of other parts of the whole. For example, Caliph Umar ibn al-Khattab established that the
hadd punishment for theft would be suspended where the state had not
fulfilled its Islamic obligation of public welfare in a time of famine.
This principle applies also to a failure by the state to respond to
all potential hadd criminal activity.
For example, rape is established under the hadd of hiraba by
classical Islamic jurists. (See
Quraishi, Her Honour, p. 20), but modern enactments of shari'a today
rarely include the hiraba of rape among their criminal codes.
In this case, the prosecution of Bariya for zina is unjust if there
is no simultaneous avenue for her to legitimately assert a shar'i rape
charge. (Moreover, any
failure by her to complain of the rape immediately after the event would
be perfectly understandable in such a situation, and should not be used
against her as evidence that the intercourse must have in fact been
consensual.)
In conclusion, the zina
punishment should not be carried out against Bariya Ibrahim Magazu.
Her conviction cannot stand only upon the fact of her unmarried
pregnancy and even if this evidence is admissible, it is rebutted by her
evidence that the intercourse was coerced.
Finally, the court should be especially reluctant to carry out a
zina punishment against Bariya in light of all the mitigating evidence in
this case.
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