Working within Nigeria's Sharia Courts
Human Rights Dialogue 2.10 (Fall 2003): "Violence Against Women"
November 5, 2003
Until 1999, Muslim laws in Nigeria applied primarily to civil matters. Since the end of military rule in 1999, twelve of Nigeria’s thirty-six states have extended Muslim, or Sharia, laws to criminal matters. The implementation of Sharia penal codes has raised a number of concerns among human rights and women’s rights activists inside and outside Nigeria who argue that these laws adversely affect women. Human Rights Dialogue spoke with Ayesha Imam about the work of the Nigerian organization BAOBAB for Women’s Human Rights in protecting women’s rights in Nigeria within the context of Sharia law.
Dialogue: Could you tell us a bit about the law, especially Sharia law, in Nigeria?
Imam: Nigeria has three operating legal systems. The first is general law, a combination of British colonial law and acts or decrees that have been passed by federal government or states or military regimes since 1960. Next are customary laws, a variety of different laws of different peoples that are not in their pristine forms but were changed during the colonial process, often becoming less favorable to women’s rights. The third system is Muslim laws, referred to also as Islamic laws, or Sharia laws. Until 1999, customary and Muslim laws had been restricted largely to family and personal status law—marriage, divorce, child custody, inheritance. In principle, Nigerians had the choice of abiding by general, customary, or Muslim laws. So there have always been parallel legal systems, with some confusion about which law takes precedence over what and when.
Dialogue: How does this system affect Nigerian women?
Imam: Starting in 1999, a number of states in Nigeria began passing a series of Sharia acts, which had the objective of extending Muslim laws. In particular they passed Sharia criminal codes, which created new offenses and mandated new punishments for existing offenses. Consequently, criminal law came to include punishments like stoning or amputation, and the implementation of these laws clearly discriminates against women, although the legal texts are gender neutral.
Consider adultery: of the four Sunni schools of Muslim laws, only among Maliki adherents—but not all of them—is extramarital pregnancy in itself sufficient evidence of adultery. Hence, a minority opinion in Sharia laws is being enforced in Nigeria,1 and women are being held to a different standard of evidence in having to prove their innocence instead of the state proving their guilt. In defense of this patent unfairness, Islamist conservatives have tried to argue that stoning to death for adultery is divine punishment. That's not true: the Qur'an does not mention stoning for adultery. Indeed, the Qur’an has a verse that refers to adulterous women and men marrying each other—clearly impossible if they were dead!
Dialogue: How was the extension of Sharia law originally accepted in society?
Imam: The immediate context that allowed for the extension of Sharia laws came predominantly as a result of the religious and ethnic resurgences in response to the failures of the independence and nationalist promises, and from a cynical disillusionment with both the political arena and the existing judicial system as corrupt and self-serving. Nigerians also felt uncertainties and difficulties related to the poverty and social problems caused or exacerbated by World Bank structural adjustment programs. Identity politics—the use of ethnicity or religion to mobilize some populations and exclude others—which was institutionalized during British colonial rule and continued to be reproduced in post-independence Nigeria, thus took on some qualitatively new features, including laws that were enacted specifically because they were religious.
Ironically, the new laws were not the result of pressure from the religious right but came from the new governor of Zamfara State, who was faced with a small and recently created state with little infrastructure, few natural resources, and few formally educated people. He needed some way to make himself popular—and that was to claim to undertake "Sharianization." The governors of eleven other states (most but not all Muslim-majority states) either followed suit or were pushed into passing similar acts for fear of being seen as “anti-Sharia.”
Dialogue: In your work, do you have problems with vigilante groups and their influence on the Sharia courts?
Imam: Yes, the hizbah, vigilante groups of the religious right. These are the "muscle" elements that enforce the new laws. Hizbah are generally made up of young men who have no jobs, no prospects, and not very much education. Clearly they enjoy power and authority by becoming part of the hizbah and monitoring people and imposing their views of morality and behavior on others. Police are not by and large the ones initiating prosecutions; in many cases the hizbah groups are forcing the police into it, and then packing the courts in intimidating ways.
Dialogue: Have these groups particularly targeted issues that involve women?
Imam: Yes, because women are easy targets. As in most societies, the double standard makes women more responsible for morality than men, and they have not been politically organized to effectively defend their interests as women. We worry about this increasing mobilization of identity politics and the closure of options in the legal system because the trend in Muslim family laws has been positive (although there are still too many conservative or venal judges). The courts have increasingly recognized women's rights in Muslim family laws over the last twenty to thirty years. We fear that this will be reversed in the current climate of religious right conservatism.
Dialogue: What are some examples of this positive trend within Sharia courts?
Imam: There has been progress in many areas of women’s rights. In inheritance, especially of land, women’s entitlements had often been ignored by their families but are upheld in Sharia courts. Sharia courts have also been upholding rights of women to choose husbands and divorce independently, of girls to refuse forced early marriages, of widows and divorcées to have custody of their children and their children's property.
Dialogue: Why do you feel it is important to work within the Sharia courts rather than criticizing them from the outside?
Imam: If we only criticize from the outside, it doesn't do anything for the victim of the charge. If we go to court and win an appeal, it demonstrates that the victim should never have been charged. We have to critique both externally and internally. We must establish that even when abuses are perpetrated in the name of Islam, they can and must be challenged.
However, if we simply pressure for pardons, that is ineffective politically. A pardon says, "Yes, you committed the offence but we are very kindly not punishing you." Furthermore, if a pardon seems to be the result of external pressure, it may produce a backlash against the local culture of respect for human rights.
If people don't recognize rights at an everyday level, then international rights treaties and covenants are dead letters. People must say, "That's our right and we are going to do something to get it." When we win appeals, it strengthens the hands of the local women's and human rights activists and encourages victims to be less powerless in the face of the state and the religious right.
Dialogue: In your work with victims and their families, what discourse do you rely on? We know you draw on religion, but are you using a human rights framework as well?
Imam: Yes, we draw on religion a lot, but we refer to a point often contested by the religious right: Muslim laws are social constructions. These laws are not divinely revealed; very often, patriarchal interpretations have resulted in laws or practices that are biased against women, and for that matter, against the poor. We remind people of Qur’anic verses like "Women and men are protecting friends one of the other" (9:71). We point out that women—50 percent of the Muslim community—must also participate in the construction of Muslim laws.
We also assert the right to invoke international human rights law and national Nigerian law to protect rights. Although international human rights language grew from European intellectual history, Muslim nations and states did help to craft it. This is particularly true of international reproductive and sexual rights and women's rights more generally. We insist on being able to reclaim and contribute to international human rights discourse rather than allowing it to be seen as only western.
Dialogue: How are you trying to create a culture of women's rights awareness in Nigeria?
Imam: BAOBAB trains volunteer outreach teams that jointly organize campaigns and community programs, develop legal literacy materials, and run paralegal trainings so people become aware of women’s rights, whether in Muslim, secular, or customary laws or in international human rights conventions. We focus not simply on the legal texts, but on ways in which people can actualize rights acknowledged in them.
We also focus on critiquing law, since the rights acknowledged in laws may not be sufficient to defend and promote human and women’s rights. We call it legal consciousness rather than legal awareness so we can discuss how to work toward changing laws where they need to be changed.
Dialogue: Your work seems very focused on the local level. Do you see a role for international human rights organizations in this struggle?
Imam: I’m sure you are familiar with the case of Amina Lawal, who has been sentenced to stoning for adultery—her case is now under appeal.2 There were, and are, numerous international protests and letter-writing campaigns on Ms. Lawal's case that have been based on the inaccurate information that her appeal failed. The senders of the petition refuse to recognize that inaccurate petitions, especially those using inflammatory language, can result in further overreaction and backlash from the religious right and vigilantes in Nigeria. They might then take direct action instead of waiting for a resolution through the legal process. This is a real and immediate physical as well as psychological threat to Ms. Lawal and to her lawyers, as well as the human and women's rights activists supporting her.
International campaigns are often helpful tools, but there is a right place and time for them. In cases like this, where victims have chosen representation and have considerable local support, international human rights organizations need to support and strengthen the situation of the person whose rights have been abused.
It should be noted that Amnesty International's International Secretariat in London and its USA offices have been cooperating with us to stop these inaccurate petitions. They have stated publicly that they did not initiate or endorse the petitions, and they support the local groups in Nigeria working on Ms. Lawal's behalf. Yet other international groups, like Women Living Under Muslim Laws, have always worked in consultation with us. The principle has to be effectiveness, reciprocity, and respect.
Dialogue: Tell us a bit more about your legal strategy in the Amina Lawal case—have you chosen to appeal to international human rights?
Imam: Amina's appeal is couched first in terms of Muslim laws, with the argument that due process has not been followed in Muslim laws, and second, in terms of Nigerian secular law, saying, again, that constitutional rights have not been followed in issues of evidence and representation. Currently, we are not making appeals to international human rights.
Dialogue: Why is that?
Imam: Well, at the moment there is no need. In all the cases where we have won appeals, we have not needed it. Not a single case we have brought has been lost; higher Sharia courts always quashed the conviction. We have won both on Muslim and Nigerian secular laws, but usually on Muslim laws. But if we need to use international human rights law, we will.
However, human rights are not the exclusive province of international human rights law or international human rights organizations. Human rights concepts exist in Muslim, customary, and secular laws. When we refer to human rights, we don't always have to refer specifically to international human rights conventions. We can refer to human rights found in religious or secular discourses. International human rights law is quite insufficient in many ways and still needs to be developed itself.
Developing rights discourses—from the international treaties to the local level—and ensuring their fulfillment and enforceability is an area where all organizations and activists must work together, respecting diversity while developing solidarity and common understanding of principles, not just assuming it. That would be true universalization.