A network of Muslims affiliated by email has decided to appeal to the Nigerian authorities on the basis of Islamic law, arguing that the punishment was not Islamically appropriate in the first place, as the governor of Zamfara indicated he would be receptive to such arguments. Brother Na'eem Jeenah 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, The Voice, in South Africa and coordinator of Masjidul Islam in Johannesburg.
Although the punishment has already been carried out against Bariya, Muslim leaders are still presenting legal perspectives to the authorities, in the hopes 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 appropriate shari'a (Islamic law) 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?
The majority shari'a (Islamic law) opinion is that pregnancy is not admissible as proof of zina (fornication) 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.
The majority position rejecting pregnancy as evidence in zina cases is also based upon the fundamental shari'a principle that hadd punishments are not to be 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 the hudud in all cases of doubt. Because circumstantial evidence always entails an element of doubt, the majority view avoids it in hadd prosecutions.
The majority position also reinforces the Quranic protection of women in these verses, an important recurring theme in Islam. 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.
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, no Islamic school of thought would allow zina punishment. 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.
Moreover, Islamic jurisprudence also strongly discourages hadd (Quranic mandated) punishment where there is anything mitigating against it, such as the health of the defendant, or their family's dependence upon them. Another hadith narrated by Tirmidhi says, "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.
To be enforceable by the state, a zina 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.
In conclusion, the hadd 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 punishment against Bariya in light of all the mitigating evidence in this case.