A network of Muslims affiliated by email has decided to appeal to theNigerian authorities on the basis of Islamic law, arguing that the punishmentwas not Islamically appropriate in the first place, as the governor ofZamfara indicated he would be receptive to such arguments. Brother Na'eemJeenah of Johannesburg South Africa is heading up the effort. He is president of the Muslim Youth Movement of South Africa, chairperson of the progressice Muslim communtiy radio station, TheVoice, in South Africa and coordinator of Masjidul Islam in Johannesburg.
Although the punishment has already been carried out against Bariya, Muslimleaders are still presenting legal perspectives to the authorities, in thehopes that justice will be served in the future.
An edited version of a legal analysis of the case follows:
Is hadd (Quranic mandated) punishment for zina (fornication) the appropriateshari'a (Islamic law) punishment for an unmarried pregnant girl, who claimsthat the pregnancy resulted from unwanted sexual relations with three men inan arrangement made by her father as payment for his debt?
The majority shari'a (Islamic law) opinion is that pregnancy is notadmissible as proof of zina (fornication) because it is merely circumstantialevidence. These jurists reject the element of doubt introduced intoprosecutions based upon circumstantial evidence, especially for zina, wherethe Quran specifically demands four eyewitnesses to such charges. Thismajority position is the most compelling one and therefore, the zinaconviction against Bariya Ibrahim Magazu, being based only upon thecircumstantial evidence of her pregnancy, should be overturned.
The majority position rejecting pregnancy as evidence in zina cases is alsobased upon the fundamental shari'a principle that hadd punishments are not tobe carried out if there is any element of doubt. A Tirmidhi hadith (tradition of the Prophet Muhammad) says: idra'u al-hududa bi'shubhat, or drop thehudud in all cases of doubt. Because circumstantial evidence alwaysentails an element of doubt, the majority view avoids it in hadd prosecutions.
The majority position also reinforces the Quranic protection of women inthese verses, an important recurring theme in Islam. Pregnancy, ofcourse, only applies to women. Yet the Quranic verses specifically assertthe need to protect women against charges of zina with anything short of foureyewitnesses. If pregnancy is allowed as proof, the woman-affirming spiritof the Quranic verses is lost.
In the case at hand, evidence of coercion exists in Bariya's claim that shewas compelled to have intercourse as payment for her father's debt to threemen. Should she be able to prove this assertion, no Islamic school ofthought would allow zina punishment. It would be self-contradictory to allowcircumstantial evidence ofpregnancy but deny circumstantial evidence of coercion in the same case.
In the case at hand, the fact of coercion would be inherent in any evidenceindicating that Bariya was compelled to have sexual relations as payment forher father's debt. Also, any indications of her resistance to the menthemselves would provide further proof of coercion negating a zina conviction.
Moreover, Islamic jurisprudence also strongly discourages hadd (Quranicmandated) punishment where there is anything mitigating against it, such as the health of the defendant, or their family's dependenceupon them. Another hadith narrated by Tirmidhi says, "Avoid punishments so long as there is roomfor avoiding them," "Keep the Muslims away from punishments whereverpossible. 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 inconviction." In this case, there are several mitigating factors: Bariya isvery young and apparently a victim of serious adversity and possible abuse byher father and society, and she presumably has no previous deviant record.Thus, even if she is not able to prove coercion, there is surely enoughmitigating evidence to suspend the zina hadd punishment against her.
To be enforceable by the state, a zina crime must be part of a fully-formedshari'a legal system. If shari'a is applied piecemeal then the stateperpetuates injustice in the name of Islam.
In conclusion, the hadd punishment should not be carried out against BariyaIbrahim Magazu. Her conviction cannot stand only upon the fact of herunmarried pregnancy and even if this evidence is admissible, it is rebuttedby her evidence that the intercourse was coerced. Finally, the court shouldbe especially reluctant to carry out a punishment against Bariya in light ofall the mitigating evidence in this case.