Preview

“Even if I am unable to reach the highest branch of the tree laden with fruit, because my strength is insufficient, yet even he who stands beneath a mighty palm-tree will be protected from evil by its shadow. Perhaps I shall be able to find a place on a lower branch of this cypress which casts its shadow afar

Firdausi, Shahnameh: The Book Of Kings

Yes, the poet said it all. For it was the glowing desire on my part to secure the protection of my generation (indeed future generation) by the shadows of the “mighty palm-tree”, that makes me try Mallam Sanusi for the answers to some pertinent questions which keep ringing in my mind, bugging my conscience, calling for a lasting solution to what a colleague would term as “Shari ‘a controversy”. Although dialogues and intellectual expositions are by nature open ended. But yet, I still feel it right to strive to reach a stand where we can achieve unanimity in marrying the content of our books with that of our actions.

Over time, Mallam Sanusi stands outstanding in his criticism of the application of Hudood punishments; aspects of the Shari’a law, as they are being roiled out from books - according to his claims most times - and applied without caution, with particular reference to northern Nigeria, especially in the cases of Safiya Hussaini, Bariya Magazu and Amina Lawal.  I, for some time, have been screening his critiques in order to see where the wrongs are being perpetrated. But all that I was able to see over the years were the opinions and counter opinions of preceding jurists, with little reference to what actually happened in the court proceedings or a sound philosophical alternative in the light of Islam from which our present social milieu should draw its inspiration. We can all remember that in the case of Safiya Hussaini, even after the appeal, which ensured enough caution, Safiya couldn’t get away with it in the sight of the law. The argument of the lawyers that saved Safiya was the argument that hudood punishments were not in effect when she committed the monstrous act. As in the case of Amina Lawal we could see that even after the appeal, the ruling of the court was still the same. What then really is the problem? Are the laws truly being misapplied or is it Sanusi for some interest that wants controversy to prevail?

I had the opportunity to ask Mallam Sanusi after a friend has drawn my attention to a discussion that was going on about the “adulteresses” at Kanoonline.com Forum. I have in what follows reproduced the details of the dialogue as they appeared on the pages of kanoonline.com that I may be helped out in comprehending the issues as they are. For Sanusi Lamido Sanusi as far as I am concerned was not able to dispel the mist by coming up with a more plausible and succulent explanation of the circumstances. I will here appeal to the good sense of judgment of the reader and the better student of jurisprudence to more comprehensibly articulate the truth in such a manner that we may achieve the desired peace of mind, the succor in the protection that the shadow of the “mighty palm-tree” offers.

I hope that the reader will pardon us for the little spelling, punctuation problems and of course the semi-formal attributes that characterized the two postings, because the communication was solely instantaneous, and therefore much attention was given more to contents than to forms. 

09/13/02
Many thanks,

I apologise if I offend any sensibilities but I have a little time on my hands so I went into detail.
Sanusi

----------

09/13/02
Assalamu Alaikum,

Remember, genealogy is one of the main things that Shari'a came to protect and Islam is built on the philosophy of life that demands that we trust people and take them by their words until they prove otherwise. Not cynicism of the western world, which demands that we don't trust them until they prove trustworthy. That was why the other man, I mean the accomplice in Amina's case has to be acquitted and she, be convicted.

And added to this, what does Shari'a suggest in a situation where we have children of questionable ancestry? Does it demand that we ask the bearers of such children to explain or we should just leave them which will lead the entire community to be gossiping, denying them this and that, just because they have speculative ancestry?

Finally, I think and strongly believe that our intellectual giants today are in the position faith-wise and intellect -wise to sit down and come-up with a very comprehensive Fiqh. The ability to do ijtihaad is not and has never been an absolute prerogative of Malik, Abu Hanifah, Ibn Taimiyyah or any other highly revered person. At the risk of being immodest I will say, I think the books read by people like Sanusi could be larger in volume than those read by Malik and other revered scholars of our much "glorified" past. And on the level of piety I believe it is only Allah can judge.  Sai anjimanku Kanawa kaidai kaga bayi da kokari.

Ma'assalam
Ibraheem A. Waziri

----------

09/25/02
Salam alaikum

Indeed the question of pregnancy after iddah is one discussed by jurists. As a matter of fact the ruling that a woman who is divorced or whose husband  dies and then she delivers a child in less than the maximum gestation of  pregnancy-that the child is to the dead husband or, in the case of the  divorcee, the one who divorced her unless he goes through the oath of Li'an  and repudiates the child- this ruling is found in the chapter on iddah in  the Mukhtasar. Khaleel there mentions that there is a disagreement over whether this term is 4 years or 5 years in Maliki law, a position also  reported by Abu Zahra in his al-Ahwal al-shakhsiyyah.

You raise a related question: If a woman has had her iddah and seen her  period should she have any rights to be presumed innocent of zina if she   has a child after that before or after remarrying? In the school of Abu  Hanifa if a woman acknowledges that she has completed her iddah and she then  has a child more than 6 months after the date on which she completed the  iddah before remarrying the child does not automatically revert to the  husband unless he acknowledges it and the pregnancy is by implication circumstantial evidence of zina. If she has the child more than 6 months  after contracting the new marriage it belongs to the new husband.

In the Maliki school the ruling is different. If you read the commentary of  'Ulaysh on the Mukhtasar- the Minahul Jaleel- (this is all in the chapter on  iddah)- he says: "Her case is not adversely affected even if she had  acknowledged that her iddah is complete. This is because menstruation is a  pointer to the absence of pregnancy only in a majority of cases but some  pregnant women do menstruate." (ie menstruation is not conclusive proof of  the absence of pregnancy.) This issue is only relevant if the child is delivered more than 6 months  after completion of iddah. If it comes in less than six months after that  even if she is married the marriage is to be annulled and the child given to  her old husband because it is concluded that she contracted a marriage while  pregnant and therefore technically in iddah.In other words if a woman says  she has completed her iddah and then gives birth less than 6 months after  the date she claims, the fact of delivery is proof that she was lying. The  minimum gestation, remember, is 6 months so she must have been pregnant on  the date she claims she completed her iddah.

A second related question is this: If she has a child more than 4 or 5 years  after her last sexual contact with her last husband should the child be  automatically considered illegitimate and should she face the hadd? Again  the point is dicussed in the Mukhtasar and its commentaries. Khaleel reports a fatwa from Malik in the Mudawwanah cocerning if a divorcee  or widow marries after 4 years and eight months of her last contact with her  husband and then gives birth in the 5th month after marriage. Malik says  that the child is not for her last husband (because she had it 5 years and  one month after her last sexual contact with him ie beyond maximum  gestation). It also does not belong to the new one (because 5 months is less  than minimum gestation). So Malik ruled that it belongs to neither and she  should be stoned. Khaleel then adds an interesting word-wastushkilat-  meaning that maliki jurists have found this fatwa of Malik's problematic.

Commentators like Ulaysh and Dirdir( in sharhul kabir) say that scholars  like Lakhmi and Qasibi object to this ruling because the maximum term was  not fixed by Allah and His prophet and therefore its excession can not be  the basis for declaring a child illegitimate much less for stoning a Muslim  to death. Besides, according to them there is a dispute over this term even  from Malik himself and he is reported to have on occasion fixed it at 7  years.

On this point Dasuki says in his Hashiya: "Malik is reported to have said  the maximum term is 4, and 5, and 6 and 7 years at diffrent times. This  conflict is a shubha on the basis of which the hadd should be set aside."

When you read all of the points on this issue you are left with one  conclusion. Although in Maliki law pregnancy is proof of fornication it is  impossible to convict a widow or divorcee based on the fact of pregnancy. She is presumed innocent once the child is born within maximum gestation even if she acknowledges that she completed her iddah with periods. Where it exceeds the term she may be convicted but the punishment is set aside based  on shubha resulting to from different fatwas on the maximum the term itself  as in the Hashiya of Dasuki. Please cross check all of these points at your  
convenience.
 
So conviction based on pregnancy becomes theoretical and she can only be  convicted,in reality, based on 4 witnesses or voluntary confession, as in  the other schools. But her confession can be withdrawn at anytime in matters of hadd other than slander as is well known so Amina has by the mere fact of appeal withdrawn her confession leaving the pregnancy which is no proof  since it is within the term.

You raise a major question: Should children of doubtful legitimacy be  allowed to roam around and be subjects of gossip among the ummah? The answer  is simple:Gossip in Islam is haram and the Qur'an is explicit on this (wa la  yaghtab ba'dhukum ba'dhan). In Muslim law there is no child of doubtful  legitimacy. A child whose mother is known either has a legal father or does  not. If the father is unknown (as in a child found abandoned) he is presumed  to have a legitimate father who is unknown. A child is a bastard only where  his mother is convicted for zina resulting in the child's conception- as in  a previously unmarried girl- the so-called "single mothers" of our  generation. Once the law has attributed a child to a father he has a nasab  and any "gossip" or "allegation" is qadhf or slander on his mother. The only  reason any Muslim would engage in such gossip is ignorance of the law and we  cannot kill women as a solution to the ignorance of society. The solution is  education on the law which we are trying to achieve to the best of our  ability. The Zamfara governor recently referred to Safiya who went to Italy  as an adulteress. She has been acquitted by a court of the charge and if she  knew her rights she could sue him for slander and have him given 80 lashesunless he has witnesses to the act.

You say Amina had legal advice but she went ahead and convicted herself. Did  she really? Did this advice include the implications of her utterance? Was  Amina aware that if she said she committed adultery before the alkali he  would have no option but sentence her to death by stoning, and that if she  held her peace her former husband had responsibility for her child unless he  took the oath of Li'an? If she knew this why is she protesting the sentence.  I put it to you she did not receive proper guidance before she made her  ignorant statements and the qadi had the duty to consider her ignorance  which made her make the staements she did. Besides the upper court rejected  her withdrawal of confession against all principles of law.

 Finally, and I apologise for dragging this you raise the question of  maqasid. Unfortunately in life you sometimes have conflicting objectives.  You must remember that Malik and other jurists had wives and daughters and  neighbours and therefore were quite familiar with the normal terms of  pregnancy. Indeed most Ithna-athari jurists and the Zahiri school set a  maximum term of 9 months. Ibn al-Hakam said 12 lunar months and he was  supported in this by Ibn Rushd.A'isha, Abu Hanifa and a report from Ahmad  put it at 2 years. Why did Maliki jurists drag it to 4, 5, 6, 7 and even in  the extreme 12 years even though their contemporaries had shorter terms? To  
understand this you must understand that objects(Maqasid) can be in  conflict.

It is true that the shariah protects nasab. But remember 2 things: A bastard  has no rights and claims on its father in Muslim law. No one is obliged to  feed him or clothe him or train him or get him married and he has absolutely  no agnates or other family on the father's side. And all this for an offence  committed not by him but by his mother and her consort. is it not desirable  to save this innocent child from the adverse consequences of a crime of  which he is innocent- or should he suffer for the crime of his mother? Add  to that that the mother will be stoned to death on conviction. So he has no father and father's family, his mother is killed and he lives with the  stigma of beimng labelled a bastard. Second, pregnancy in Maliki law is a much stronger proof of zina than in  other schools. For this reason the Maliki school has to set conditions that  are very severe to save women from being killed based on pregnancy. Again  this is to save Muslim life from being taken in vain- and as you know the  protection of life-nafs- is ranked higher in maqasid than the protection of  nasab. In the science of Usul the maqasid are ranked and where the masalih  (good things) can not be attained together a lesser good is sacrificed.  Where the mafasid (bad things) can not all be avoided simultaneously the  worst is avoided and the lesser good tolerated. We sacrifice mukammilat for  tahsiniyyat, sacrifice tahsiniyyat for hajiyyat and sacrifice hajiyyat for  
dharuriyyat. Both human life (nafs) and progeny (nasab) are, as you know,  dharuriyyat (necessities). But the ranking of this class is the din  (religion) then nafs(life) then 'aql ( mind) then nasab or nasl (progeny)  then mal (property) and some add 'irdh (dignity). here there is even a  remote possibility that life may be unjustly taken in defence of nasab the  decision has to be in favour of protecting life, even if nasab be adversely  affected. Besides a man who brings up a Muslim child like his own has many  rewards from Allah for doing this and the child may grow up to be of service  to Islam.It is better for her to escape and for the child to have a father  who is not his biological father than to risk killing her in error and the  other consequences.

This may seem strange of course but it is not. We are all married and have  children but can we swear that we are the biological fathers of our kids? We  presume the innocence of our wives and the shariah compels us to- but surely  there are many bastards born in their father's houses but the fathers are  none the wiser. It is the same principle. The child is a legal child-we are  all legal children-hopefully but not always-the biological offspring of our  fathers.

The other side of the coin of course is that a young girl who is unmarried  is more likely to pay the price of pregnancy in Maliki law- but this is only  caning and the child-stigma notwithstanding- at least has a mother. I  believe, and Allah knows best, that the Maliki school is most uncompromising  in the case of a previously unmarried pregnant girl because what is at risk  when she is flogged is not her life but her dignity and this is ranked lower  on the scale than nasab. The law that protects nasab is willing to risk
sacrificing the reputation of a girl on the altar of protecting a higher  dharura. And Allah knows best.

 I hope I have responded sufficiently to your comment. If next time I do not  go into detail please do not take offence I am a bit tight for time.

Salam alaikum wa rahmatullah
Lamido

----------

09/30/02
Mallam Sanusi Lamido Sanusi: Kanoism or Kanoic tendencies?

Yes, true to God you responded to my comments, but please I will like you to further look into the affair for I believe there is still a shady area.  Let me put it this way: It is not my wish to see people dying for no just reason. I believe also that it has never been Allah’s wish. But people have to be punished when they start becoming nuisance to the society. But before a nuisance is discovered as agreed in the four schools of thoughts, the nuisance must confess or be caught in the act. The theory of SUSPECT in Islam does not exist, Islam also does not believe in interrogation. This is where Shari’a proves its superiority over any other legal system; it takes people by their own words where there is no witness. It respects one’s individuality more than any other legal system (one can even confess and later withdraw his confessions). It gives right to privacy more than any other legal system that is why it makes laws accommodating exceptions rather than the rules; taking the specific circumstance in preference of general circumstance as we have seen in the case of women who see their period while being pregnant.

Now let’s apply all aspects of the law unto Amina’s case according to the realities on ground and see where the judge faulted in the litigation. This lady confessed during court sessions that the “did”, did happen. Get me clear Mallam I DID NOT SAY SHE HAD LEGAL ADVICE, as in employing the services of legal expert by her or by the state for her. Who would give her leakage about the implications of her utterances. NO.  But I said “the judge tried saving her by creating excuses for her, if you like, giving her a subtle hint to withdraw her statements as you reported in your Adulteress Diary that Ali and some other esteemed companions of the holy prophet did.” But instead this lady did not; she iterated and reiterated that the child belongs to a man entirely different from her former husband. After then he saw no reason in his wisdom not to recommend the right and most appropriate punishment be registered on her. Remember in law, ignorance is not an excuse.

Secondly, the issue of Maqsud I raised was to understand why the people who took Amina to court should be caned as you impliedly suggested earlier. Because they took her case to court not because they felt and believed that she is an adulteress, but because they believe the child’s family tree is at the risk of being smeared.

Again the issue of children of doubtful legitimacy I raised has something to do with a situation where ladies who are known to have no husband but yet they are carrying children. If we go and ask them we will be accused and be convicted on the charges of slander, added to the fact that Islam is opposed to the idea of interrogation and if we allow them, we will leave the issue of their Nasab (genealogy) hanging in the eyes of the society and Shari’a will fail in one of its duties again, that of protecting our Aql(mind or conscience). And the children will have “doubtful ancestry” and Shari’a will inevitably fail again in its duty to protect their Nasab. Remember Sharia is carried out in the world of reality not that of imagination full of abstraction. What is the FIQH here?!

 Malam, as you have rightly pointed out, one of the maqasid of Shari’a is to protect our conscience (Aql) for us; meaning that it has to protect for us our sense of right and wrong and I think this is what brought out the ruling that a judgement passed by a Shari’a court cannot be reversed (Bashir Aliyu Umar has explained this in his rejoinder to your Adulteress Diary). Because reversing it as it has been done in the case of Safiya and as it is about to be done in the case of Amina, will spank our “dear” conscience. It is even what makes it easier for others to see Shari’a and Muslims as objects of ridicule. Here as opposed to your last argument, I think our conscience (Aql) and our (genealogy) Nasab are more important than our lives. Because it is certainly for our clearer conscience that nuisance among us should be punished and that punishment demands that sometimes some have to cease from existing.

Yes, this and many things need to be addressed properly. Know that you (Mallam Sanusi) and other intellectual giants of our time, the custodians of knowledge and wisdom, the inheritors of the seats of the holy prophet and his noble companions are about profaning our spiritual heritage if you do not come up with a more logical and comprehensive FIQH that will rhyme with the index and logic of our time, and you should revere God while you are doing this.

Finally, while I appreciate the effort you invested in responding to my comments I also feel a bit scratchy about your concluding statement, you said: “I  hope I have responded sufficiently to your comment. If next time I do not   go into detail please do not take offence I am a bit tight for time.” I used to think before that it is your responsibility, you the learned ones, the able ones to patiently listen and adequately respond to our Fatwa, as Allah instructs people of knowledge to always do. Remember what transpired between Abdullahi Ibn Ummu Makhtoom and the prophet of Islam that led to the prophet being rebuked by God. Unless if Mallam is tending to unleash his “Kanoic” tendency on me (a common practice of Kanawa against Zagezagi). Hide away the knowledge from my sight until when I am “convicted”, then spring to my defence with his sword-like pen claiming to save “Mutumin Zaria” his master whom he would that day a bow in kanoism that he is his lewd and licentious slave (laughter).

Most grateful I remain.
I love you all.

----------

Salam alaikum

I just read Ibrahim Waziri's posting on the above on kanoonline. I am attaching my latest write-up(an advance draft of which I had given Waziri), which is up on gamji.com and addresses a number of issues regarding hudood sentences in the north. The article contains detailed analysis of the Mukhtasar and its commentaries and annotates arguments I have repeatedly made over a number of years. The conclusions are not exactly new but the referencing would help brothers and sisters who wish to cross check arguments and test their validity.

Life in Islam is sacred. Allah says in many verses in the Qur'an, for example Al-Isra':33 "And do not take any human being's life which Allah has willed to be sacred except in the pursuit of justice" and this refers to  executing a legal judgement, killing in a just war or legitimate self  defence.

But beyond that, in the science of usul, we learn that not every jurist  considers nasan (genealogy) as one of the necessities. Ibn Ashoor for  instance makes a distinction between nasl(procreation) and nasab  (genealogy). The first is necessary, the second is not.

procreation is necessary to preserve the human race which is why the prophet  Lut condemned his homosexual people for "cutting off the path(to  procreation)". Nasab gives a child a father, agnate relatives, rights to  feeding and clothing and a right to inheritance. All of these can be given  by his mother and her relations. So nasab is  needed but not a necessity and  it is considered by this jurist as merely something that makes nasl complete  (ie one of the mukammilat al-nasl). I say this to show that even on the  question of nasab being one of the dharuriyyat of shariah there is a  dispute- which is not the case with life.  

For a fuller discussion of these issues I have referred Ibrahim to Ibn  Ashoor's Maqasid al-Shari'ah and Dr Al-Yoobi's Maqasi al-Shari'ah  al-Islamiyyah.

It seems to me, wallahu a'lam, that Maliki jurists have used this logic in  giving divorcees and widows this leeway. However for those women who are not  muhsanat, the punishment is 100 lashes so life is not at risk. Here the  jurists are willing to risk error on the side of caution because of the  overall importance of nasab which outweighs the passing pain of lashes. I  plan to give more thought to this and produce something as part of a  critical reading of Coulson.

I hope this comment and the article will serve the purpose of clarifying the issue. I hope you will place both at the disposal of your members.

Sanusi

----------

10/15/02
Assalamu Alaikum,

I have carefully and critically gone through your paper and I must confess that the issue as you addressed enjoyed the necessary attention that any dexterous jurist would give. Mukhtasar as you know for the past centuries, is considered among our scholars to be the eventual authority in jurisprudential debates. Its mastery has been for long a prerequisite to our study of the science of jurisprudence. Particularly in the area I come from in Zaria city and some parts of northern Nigeria; people since time immemorial do commit Mukhtasar into their memory as they do commit Qur’an into their memory.  I believe it will be unfair on our part if we attribute ignorance of the complex debates of Malik jurists about the issue of Huddood, pregnancy and divorce to the judges who passed the verdict on the “alleged” adulteresses.

The real problem is not in the judges, or their understanding of the law; it is not also in the maximum gestation period neither is it that of being “trigger happy” or “finger happy” (in the case of stoning) but that of their confessions (I mean the alleged adulteresses) and their persistence on their confessions after they have lodged their appeal; do we know that even after their appeals these ladies confessed again in the court proceedings that their children were a product of illegitimate relationships? In the case of Safiya Hussaini; it was after the case has attracted the intervention of the international community and some human rights (?)   (obviously anti Shari’a western) organisations that she was acquitted. In this we can see that not only nasab is at stake but the religion (deen), our conscience (Aql) and our dignity (irdh) or sovereignty as a Muslim nation/culture.

Mallam knows for certain that in everything there is adab(rule). My question here is what is the stand of shari’a in regard to an already passed judgement? What is appeal in Islam? What does the Prophet of Islam mean when he said “a judge who pass a judgment and err has one ounce of reward and the one who pass it and get it correctly has two ounces of rewards”, Bukhari and Muslim.

Again, I can remember a scholar telling me that circumstances in usul al-fiqh determine the type of judgement that should be passed on a culprit; it also sometimes defines the dharurriyats, how true Mallam?

  
Mallam you suggested that I should read Ibn Ashoor's Maqasid al-Shari'ah and Dr Al-Yoobi's Maqasi al-Shari'ah al-Islamiyyah. Fine and beautiful, but I think it is about time we start considering what the majority of the jurists I mean jamhoor agreed upon; the “consensus opinion”. Because if we choose to always cite opinions we will have myriads of them, there is always an alternative opinion, as a result of that we will NEVER, EVER act for a minute.

Yes, Mallam I truly need another paper that will dwell on these maqasid, circumstance and dharuriyyat; that will also elaborately speak more about the phrase “ignorance is not an excuse”. While you continue to write Mallam, we on our part will not get tired of asking questions. Because only then we will be able to graduate from having “superficial” knowledge of usul al-fiqh to being masters in the science of jurisprudence; of course a future inheritors and solvers of jurisprudential questions.

  
 
Most appreciative I forever remain.
Waziri

----------

10/17/02
Wa alaikum assalam,

I will try and go straight to the points.

I am not sure anyone I have read has made a connection between forbidding  zina and the protection of aql. Also I have never read in any work of usul  that aql or nasl (or aql AND nasl) are more important than nafs. This does  not mean no one has written so. If you have come across something please let  me have your reference. If however it is just a thought from you I respect  your right to think it but would appreciate your articulating the arguments  that upturn the ranking given in the conventional books of usul.

Second point is this. I have myself gone through the traditional zaure  lessons and I pray for the opportunity to return to it. It has its uses but  it also has its drawbacks. Prime among these is a focus on cramming and  literal translation rather than thinking, reflection and dialectical  reasoning. The whole argument on nasab in my paper is on the chapter on  Iddah-ie in family law. The issue of pregnancy and zina is in criminal law.

I believe I made it clear in "Amina Lawal: Sex,Pregnancy and Muslim Law"  that the problem is not so much not knowing the Mukhtasar, but not making  the connection between the two laws in defining what is meant by pregnancy  as proof of zina.

Thirdly the issue of confession I have dealt with in the paper. I will only  add this, which I avoided in our earlier discussion since you had your own  report of the trial. From the court records of the initial trial it would  seem many of the issues surrounding Amina's pregnancy, the question of the  man, his acceptance and denial, her naming him etc took place in the village  in the presence of the traditional ruler, family members and hisbah, but NOT  in court.

The trial itself seems to have been very brief. Amina was asked if she was  divorced and never remarried, and if she was pregnant and had a child after  divorve. To both she replied yes. then the alkali said "Amina kin san wannan  zina ne?" (Do u know this is zina) and she said "yes". This is not a  confession. First the alkali led her into incriminating herself due to  ignorance. Second zina was not defined in the court (or even, surprisingly)  in the Katsina state laws so how can we be sure they were referring to the  same thing. In any event the sunnah is thatshe should come of her own  volition to confess (which is itself discouraged). In the madh hab she can  be asked the source of her pregnancy if it exceeds gestation. Otherwise her  views or those of her husband are not required as the matter is settled by  law.

Third Ibn Ashoor is not by any means outside the mainstream of usuliyyun.  The question of nasab, as you may well know, has never been a point of  consensus in terminology-as opposed to deen, aql, nafs and mal. Some scholars count nasab among the dharuriyyat. Others use nasl. Still others use budh' which refers either to sexual gratification (as a necessity0 or  the "planting of seed inside the womb". This matter is as old as the works of shatibi. Ghazali, Amidi, Juwayni and other classical writers in Usul. There is no "consensus of opinion" in thsi particular matter. In any  case, Ibn Ashoor has the right to question that consensus. You have done so  by asserting that in your view aql and nasl are more important than nafs and  I have respected that right as long as you go beyond expressing a thought  into presenting a reasoned argument.

Yes, the circumsatnces should determine the judgement. What are the circumstances of the northern Nigerian Muslim village woman-in terms of  education and knowledge of the deen, material well being and ability to  resist temptation of small money, burden of children and the life of a  divorcee, general vulnerability to the wily deceit of men, general moral  standards and rectitude of the men and women, rich and poor, privileged and  deprived in her community? Would you say the circumstances call for a compassionate and understanding judgement accompanied by admonition, education and assistance or the maximum penalty?

Finally, I think the argument that we should kill a Muslim to prove to the western world that we are standing by our religion and culture is very  faulty. A Muslim(or non-Muslim) life can only betaken as instructed by Allah  and His Messenger. It matters not what the western world says. Do you not  see in the paper how Al-Lakhmi, Al-Qabisi and Abdul Haqq differ from their  Imam when they think obeying him will lead to taking a life without an injunction from Allah and His Messenger?

I think with this oI will put the matter to rest having said all I believe  needs to be said. The reader will make up his mind which arguments to  accept. Most important we should all research the law if we truly believe in  shari'ah. There can be no shari'ah without Islam and as we have seen with  Safiya's trip to Rome these errors merely expose our beautiful and just  religion to ridicule. Is it not amazing that Rome, from where christians and  Jews fled to Muslim kingdoms in search of sanctuary from a wicked church  that crucified ppl and burnt them on the stake is now a haven for a Muslim woman scared by her own inquisitors.

 You speak of environment? We are living in a pluralistic society. How many  Muslims have strong enough faith to be stoned to death or to watch their  beloved ones so stoned especially where there are questions of due process.  the weak of afith and in knowledge will detest their own religion and run  into nthe arms of christianity. Mark my words.

To be forewarned is to be forearmed. We know how Islam won converts by being  the face of justice and mercy. Are we that face in Northern Nigeria today?

----------

10/18/02
Assalamu Alakum,

Mallam don’t be tired pls. I am not responding to a challenge or feeling intellectually challenged in anyway. I am only engrossed in a desire to know. But you are making it to sound as if I am the one that is bringing something new by coming up with a “fiqh” in a very unconventional way (smiles). I think my reference point about the connection between the crime of zina and protection of Aql(Conscience) or nasl AND aql as you suggested will not be anything other than you or your responses to my comment earlier in this forum. You touched on the maqasid; I mean the “whys” of the Sharia. there you said Aql is one of them. It was then I started thinking that reversing the judgment could have the fatal effect of smearing our conscience. I asked this question in virtually all of my postings saying:

”Malam, as you have rightly pointed out, one of the maqasid of Shari’a is to protect our conscience (Aql) for us; meaning that it has to protect for us our sense of right and wrong and I think this is what brought out the ruling that a judgement passed by a Shari’a court cannot be reversed (Bashir Aliyu Umar has explained this in his rejoinder to your dulteress Diary). Because reversing it as it has been done in the case of Safiya and as it is about to be done in the case of Amina, will spank our “dear” conscience. It is even what makes it easier for others to see Shari’a and Muslims as objects of ridicule.”

And again I once said:
 ”Mallam knows for certain that in everything there is adab(rule). My question here is what is the stand of shari’a in regard to an already passed judgment? What is appeal in Islam? What does the Prophet of Islam mean when he said “a judge who pass a judgment and err has one ounce of reward and the one who pass it and get it correctly has two ounces of rewards”? Bukhari and Muslim.

But Mallam you did not address the question in any way. I just don’t know Mallam, probably I am confused or foolish.

Yes, Mallam you have your own version of the trial; at a point when the villagers thought they should give her cover as urged by the holy prophet for Muslims to hide the evil doings of fellow Muslims. This woman felt they wanted to cheat her by not forcing her accomplice to slaughter ram and provide other things for the welfare of her newborn baby. She went to the police and told them about the situation. This means she was the one who first took her to the law. When the judge asked her as to whether she knows that what she did was zina or not she answered in the affirmative. But it is true that the court have never at a time defined what zina is. And Amina really confessed out of ignorance. That was why I asked you in my earlier posting twice to please explain to us the claim of jurists about the phrase “ignorance is not an excuse”.

Certainly Mallam the circumstance put so many things at stake between our dignity (irdh) as muslim nation, our (aql) as muslims, the deen in itself as it is being exposed to ridicule on one side and the life of our beloved sister on the other side.

Yes Mallam we need so many things as you said:

”Yes, the circumsatnces should determine the judgement. What are the  circumstances of the northern Nigerian Muslim village woman-in terms of  education and knowledge of the deen, material well being and ability to  resist temptation of small money, burden of children and the life of a  divorcee, general vulnerability to the wily deceit of men, general moral   standards and rectitude of the men and women, rich and poor, privileged and   deprived in her community? Would you say the circumstances call for a compassionate and understanding judgement accompanied by admonition, education and assistance or the maximum penalty?”

I agree with you completely. I think the hodood punishment should have been postponed, but how about this thing of an already passed judgment? These jurists what do they mean?

Finally, I think I must here re-mention again: these things are still a bunch of puzzles for me and by God I do not have the intellectual wherewithal to solve them. I am sick. I need help.

Thank you and God bless
Waziri  

Review

I just don’t know, may be I carry within me some sorts of intellectual naivety. But in the Maliki law we know, pregnancy unless if proven otherwise is always an evidence of zina. And for a widow or a divorced, the maximum gestation period is said to be five solid years. But when a widow or a divorced makes a da’awah that her pregnancy or issue as in the cases of Safiya and Amina is a product of an illegitimate relationship, the question of gestation period will not come. And the issue of withdrawing her confessions also will not arise, since she already carries something that proves the existence of an intercourse with a man. Unless if she makes another da’awah that the child belongs to her former husband which, neither Amina nor Safiya made. And as we may all know in any legal theory, that presupposition should not fall within the premise of a court of law. Especially in a case like that of Safiya where millions of people heard her through BBC Hausa service giving the detail account of how the “did” did happen with a different person apart from her former husband as she gave during the court session. This added to the fact that cases once brought into the court of law must be defended by reason, because laws are moralistic, logical and real in attribute. They shouldn’t in anyway appear to be insulting the intelligence of people. Their significance is always in the loud pronouncement of the presence of justice and the primacy of its enforcement, than in the mere conviction or acquit ion of their victims. That is why they convict the innocent wherever his/her innocence cannot be proven even if the judge and the jury are sure of his/her innocence on a different count. They acquit the guilty wherever there is no proof against him/her even if the judge and the jury are sure of his/her crime on a different count.

At the level of the maqasid(objectives) of the Shari’ a. If we understand them to be independent of each other as they are normally presented i.e. the punishment for life is life; for wealth is amputation; for conscience is caning; for dignity is caning also; and for genealogy particularly adultery is life. Then we cannot claim that one is ranked above another. Especially when it comes to genealogy, because the punishment is whenever genealogy is violated in the case of adultery life is taken. Therefore how can we justify the ranking of life higher than genealogy? Unless if we understand the maqasid to be interdependent on each other. Even then, we will see that in the cases as that of Amina and Safiya, considering the fact that all the sharp pointers of law are against the reversal of the court rulings. Reversing it would have the fatal effect of conflicting with all of the maqasid save taking life. This, wherever the coin lies be it at the extreme height of the attainment of good (masalih) or at the lowest ebb of avoiding the worst (mafasid), considering the infant stage of our Islamic renascence. In any way there is no way a shubha could have been imported into the issue. No. Since the issue was already at the grip of the law and the defendants were standing to be witnesses against themselves. This reminds me of the incident during the time of the Holy Prophet as recorded in Kitabul Hudood in the famous Muwatta of Imam Malikand Bukhari. When some two people, two villagers according to Bukhari, who were ignorant of the law, came asking the Holy Prophet to judge between them with the book of Allah. The son of one slept with the wife of the other. There and then our beloved Prophet ordered that the son be caned and exiled for one year and summoned Unais Al-aslamiy to go and ask the wife, with clear instruction to stone her in the event of her confession. So she confessed and so she was stoned. 

Clarification: my stand

Though on the general application of the Hodood punishments in northern Nigeria, I for long understand with those who believe that such punishments should have been postponed, because of the present condition of the average northern villager. This against the position taken by some brothers who believe that our condition does not call for such postponement, since we are not yet poorer or less wiser than the people of the 7^th century, where the laws were applied in full measure, as seen in the hadith   referred to above.  If the Shari’ a states have chosen to continue to align themselves with the later opinion, since all have been reduced to a matter of perception. Then I will advice that they should learn to appear to be resolute on their decisions, lest they be intimidated or cajoled. They should know that their survival lies within their ability to implement what they believe to be Allah’s law. Let them not blink at the staring face of terror of any kind. Let them not appear to pass judgments today and compromise their stands on the same issue tomorrow, thereby subjecting everything of Islam and Muslims to ridicule, an activity akin to open war on the religion itself. Let them learn from the case of Mc Veigh, the Oklahoma bomber. America did not change her resolve to execute him in spite of scathing criticisms she earned from Europe. After all, in the history of law, there is no single civilization known by mankind that did not promulgate laws that allowed the taking off of human life. These laws were even sometimes built on more ignoble reasons such as treason. Men were killed and are being killed today for merely compromising the loyalty they have for their nation; a loyalty that is presumed to be there on account of fate, a loyalty that one is not a party to its sanctification.

I will only add that the Shari ‘a states must learn to redefine their priorities, or at least expand them in such a manner that women who are seemed to be more vulnerable to Hudood punishments will gain more surety to a better life. Let the state enforce the application of Muslim family laws in matters relating to divorce, widowhood, Iddah and the token sum that should be given to a divorced by her former husband.  It is also on the states to indicate their interest in the affair of divorced women and widows. For as recorded on the pages of history, the Holy Prophet of Islam engaged himself in seeing that widowed women whose husbands died in battlefield get new husbands.    

I rest my case.
Let the helper come, lest we loose the protection that the mighty palm-tree offers.