Small Victories, but the War Rages On
Human Rights Dialogue 2.10 (Fall 2003): "Violence Against Women"
November 5, 2003
Uché U. Ewelukwa responds to Ayesha Imam's "Working with Nigeria's Sharia Courts."
I admire the work that Ayesha Imam, BAOBAB, and other local women's groups in Nigeria are doing to ensure that Amina Lawal and other women who have death sentences hanging over their heads are freed. Furthermore, I agree with Imam that local organizations must take the lead role in the struggle for women’s rights, despite the fact that international human rights organizations can play a very useful role. However, the fact that local groups play a lead role does not mean that their strategies are immune to criticism. Local and international strategies should be scrutinized for their overall effectiveness in improving the lot of all women and creating a culture of respect for human rights.
Imam's comment that "not a single case we have brought has been lost; higher Sharia courts always quashed the conviction" is well taken; women’s organizations at the forefront of the struggle must be congratulated. Yet the cases that have been won are by and large unhelpful to the vast majority of women who still live under imminent threat of the Sharia legal system. The fact that the cases are rarely won on their own merits and convictions are frequently overturned only on technicalities is not a cause for celebration. Although the recent decision of the Sharia Court of Appeal of Katsina State to quash Ms. Lawal’s death sentence is welcome, it is important to note that the decision had no connection to any legal precedents and was limited to the specific facts of Ms. Lawal’s case. The battle was won, but the real war rages on.
Imam's faith in progressive interpretation of Sharia law is admirable, but I question the basis for her belief. Imam believes that to defend the rights of women like Ms. Lawal, organizations like hers should work mainly within the Sharia framework rather than draw on international human rights instruments or the Nigerian Constitution. She believes that more progressive and liberal interpretations of Sharia law are possible and that human rights concepts exist in Muslim laws. Although BAOBAB asserts a right to call on international human rights law to protect rights, it has chosen not to because it claims it has not needed to do so.
Experts in Sharia law readily acknowledge that there is little scope for variation of interpretation in the application of Nigeria’s Sharia law. The reason is obvious: Nigerian courts follow the Maliki interpretation, notwithstanding the variety of choices of interpretation within Sharia law. The Sharia penal codes are an attempted codification of the Maliki school of thought. It is generally expected that gaps and lack of clarity will be remedied by reference only to the Maliki school. The result, as Muhammed Tabiu of the faculty of law at Bayero University, Kano, noted at a recent conference, is that in Nigeria "departures from the Maliki School to other interpretations are rare, although not totally unknown." He concludes that although the door for admitting other interpretations of Sharia law is not totally closed, "the provisions that require courts to adhere to the Maliki view are clearly a setback to any expectations for reform being achieved through judicial activism or reinterpretation."
Given the remote possibility of more progressive interpretation of the new Sharia penal codes, women's rights groups in Nigeria must consider challenging the constitutionality of some of the provisions of the Sharia penal legislation that are the root cause of the current crisis in northern Nigeria. That would be a better strategy than the current piecemeal attempt to achieve justice for a handful of women. As long as these laws are in force, all Muslim women in northern Nigeria, particularly the poor and uneducated, will continue to live under an imminent sentence of death. Women's rights advocates must therefore take up legal cases and advance legal arguments that can help establish useful precedents with much wider application than is currently the case. It is also important for them to acknowledge that some provisions of the new Sharia legislation clearly violate the Nigerian Constitution and international human rights law.
Nigeria is party to a host of international human rights instruments, including the International Covenant on Civil and Political Rights, the Convention against Torture, and CEDAW. Where the provisions of international human rights treaties are incorporated into Nigerian law, there may be no need to make arguments based specifically on international human rights norms. However, where Nigeria has ratified a given human rights instrument but these norms are not fully reflected in existing law, there may be a need to draw directly from the international human rights instruments.
In her discussion of international human rights law, Imam states that it is deficient in many ways. Indeed, it is true that it has been difficult to translate the normative prescriptions of international human rights instruments into practical realities for African women, due to institutional and enforcement problems in the human rights regime, as well as the secondary position allotted to social and economic rights in the human rights regime.
However, international human rights norms are nevertheless powerful weapons that local groups must use: they provide a sound moral and legal basis upon which the international community can pressure states; they allow transnational, transcultural, and transreligious moral judgments, especially in egregious situations where life and limb are seriously threatened; and they represent a rare positive and public expression of a state’s voluntary undertaking of international responsibility binding on all state officials.
Strategies are not mutually exclusive, nor do the courts provide the only stage for the struggle for the realization of women’s rights. In addition to the community enlightenment campaigns already being carried out by women's groups, social reform, training for judges, and basic education for girls to empower them and strengthen their position in Nigerian society must all be advanced parallel to the waging of courtroom battles if violence against women in Nigeria is to be diminished.