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Cablegate: Amina Lawal: The Judgment

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 03 ABUJA 001974

SIPDIS


E.O. 12958: N/A
TAGS: PGOV PHUM KIRF NI
SUBJECT: AMINA LAWAL: THE JUDGMENT

1. Summary: Amina Lawal's conviction for Zina (adultery) was
overturned by the Katsina State Shari'a Court of Appeal on
September 25. The decision by four appeals judges to one on
the panel agreed with the defense on several counts and found
no evidence for the prosecution. Post presents the
translated summary of the judgment. End Summary.


Background
----------


2. Amina Lawal is a divorced woman from a small village in
the Northern State of Katsina. Eleven months after her
divorce she was arrested by local police, who observed that
she was pregnant, and charged with her with Zina (adultery)
under Shari'a law. She supposedly confessed to police, was
convicted in early 2002, and sentenced to death by stoning.
After multiple appeals and delays, the Katsina State Sharia
Appeals Court began hearing arguments on the case on August
27, 2003 and handed down a judgment in favor of Ms. Lawal on
September 25. The man with which Amina Lawal allegedly
committed adultery never confessed to the crime. As there
were no witnesses to the act and he did not confess, one or
the other being required under Shari'a, the man was acquitted
during the first trial and released.


The Appeal
----------


3. Ms. Lawal's appeal centered on four main points:


-- Without four witnesses to the act of adultery, there must
be a confession and the accused must be allowed to withdraw
any confession made. There were questions about the
confession, and in any case it had since been retracted.


-- The Nigerian court could only convict for something that
was a crime under Nigerian law at the time of the crime. As
the statute embodying Shari'a for criminal offenses had not
been enacted at the time the alleged offense occured, the
case was ex post facto. Moreover, as court procedure for
implementing the law had still not been passed by the
legislature and gazetted, the court could not have followed
any legal Nigerian criminal court procedure.


-- Complicated Shari'a-based arguments that adultery might
not have occured, under the Maliki school (predominant in
Nigeria) of Islamic jurisprudence, if the baby was born
within five years of the divorce, and that only her husband
or the four witnesses to the act (not the police simply
noticing her pregnancy) could charge her with adultery.


-- Notwithstanding the contention above that no legal code of
procedure was in place, there were many obvious procedural
flaws ranging from not explaining the crime and law to the
accused (especially that she could only be convicted if she
confessed, and that she could confess to a lesser crime), to
those giving testimony to the court swearing by the Quran
instead of "by God," to the accused not being represented by
legal counsel nor being allowed to call witnesses, to there
being only one judge instead of the required three at the
trial.


The Prosecution
---------------


4. The prosecution claimed that:


-- Amina Lawal understood the crime, did confess, and the
confession was not withdrawn.


-- Shari'a as a body of law and procedure predated the crime
and the court proceedings, therefore the charge was not ex
post facto and Shari'a court procedure existed in the absence
of legally gazetted specific legislation.


-- Even more technical Maliki arguments that the five-year
presumption that the child was the husband's did not apply
because the (divorced) accused did not give the baby to the
(ex-) husband, and that in the absence of eyewitnesses or the
husband charging her, the police could charge her under the
theory that "anyone seeing wrong should bring it to justice."


-- Legal arguments on procedure that explanations of the law,
legal counsel, witnesses, and three judges are not necessary
if the crime is obvious and confessed by the accused.


4-1 Judgment Freeing Lawal
--------------------------


5. Four of the five Shari'a Appeals Court kadis (judges)
decided that the lower court's ruling should be overturned
for several reasons, essentially agreeing with the appeal
that the confession was invalid, that even if it had been
valid it could be withdrawn, that the charge was ex post
facto application of Nigerian law, that the baby had not been
proven not to be the (ex-) husband's, and that the police (as
opposed to eyewitnesses or the husband) had no authority to
charge her with adultery. On procedure, the court said that
existing Shari'a sources should be applied but also that they
must be gazetted. They also upheld all the specific
challenges on procedures at the trial.


6. COMMENT: Thus it appears the judges waffled on whether
Shari'a could be applied in criminal cases before court
procedure for such cases had been enacted or gazetted. As
this was the only challenge to use of Shari'a in principle
after enactment of Shari'a-based penal codes for various
northern Nigeria states, and court procedures have not been
gazetted, both sides in the controversy still have legal
ground to challenge Shari'a criminal court decisions without
challenging whether Shari'a for criminal cases violates the
Constitution or human rights law and international agreements
per se. END COMMENT.


7. The four judges did include some zingers, reminding that
in an adultery case it was up to the accusers to prove their
charge and that accusers who could not prove it should
receive 40 lashes. Moreover, if there were any doubts, they
should have been decided in favor of the accused. The fifth
appeals judge, Sule Sadi Kofar Bai, ruled against the appeal,
essentially agreeing with the prosecution's presentation on
all of the particulars. He too added a zinger, claiming that
the Shari'a courts were not bound by Nigeria's Constitution.
On the basis of the four judges' decision, Lawal was
discharged and formally acquitted of all charges.


Text of the Majority Ruling
---------------------------


8. (Begin text translated from the original Hausa, with
parenthetical explanations added by the Embassy)


The Court sat with its full 5 members comprising


Honorable Grand Kadi Aminu Ibrahim Katsina
Honorable Kadi Suleiman Muhammad Daura
Honorable Ibrahim Mai Unguwa
Honorable Shehu Mu'azu Dan Muba
Honorable Sule Sadi Kofar Bai


In his lead judgment, Honorable Grand Kadi Aminu Ibrahim
Katsina recounted the entire proceeding before them, the
arguments and replies of the Appellant Counsels.


In their 25 September Ruling, the Shari'a Appeal Court held:


- The duty of the police is important. However, they should
not have charged the Appellant for an offence, as it is not
necessarily their constitutional responsibility.


- For an offence of Zina (adultery) to be proved, the two
accused persons must be seen performing the act of adultery
openly by at least 4 responsible male adults, which is not
the case of this appeal.


- The discharge of the second accused (i.e. the man who
committed adultery with her) by the trial court, without
establishing these 4 witnesses who saw the act of adultery,
was done in error and cannot be sustained before this Court.


- The administering of swearing by the Holy Quran adopted by
the trial court is not a proper procedure.


- Since the Appellant was not the wife of the second accused
(at the trial, under the Shari'a she cannot be charged for
adultery (by him).


- Where anybody accuses someone of Zina (adultery) and cannot
prove it, the person should be flogged 40 times.


- It is an abuse of the Shari'a Penal Court Law for a judge
to sit alone at the trial when the Law provided that a judge
should sit with two other members.


- It is true that the Holy Quran, the Hadith and the Sunnah
of Prophet Mohammed, Ijmah, Qiyas, Ijtihad and Al-Urf should
apply in Shari'a to arrive at judgment. However, there is
need for it (procedure from these sources) to be gazetted.


- The State (the prosecutors) cannot choose and pick what
they want in the Shari'a Penal Court Law of Katsina State.


- The commencement date of the Katsina State Shari'a Penal
Code (being applicable) is as provided for in the law, June
2001.


- Four witnesses have not been established, therefore the
Appellant must be discharged and acquitted.


- The confession of the Appellant (Lawal) is not valid.


- The Trial Court did not give opportunities for the
Appellant to withdraw or retract her confession.


- If the Appellant had allegedly confessed and the second
accused refused to confess, then it cannot be (a conviction
for) adultery.
- The accused person cannot swear by the Quran, they can only
swear by God.


- The record of the trial court is clear that the Appellant's
confession was not allowed the process of IHIZARI (allowing
her to confess to a lesser crime).


- There is doubt in the trial court record on the confession
of the Appellant, and where such a doubt exists, it must be
resolved in the favor of the accused person. The court
recounted the entire story of Ma'is to buttress this point.


- The Appellant's pregnancy and childbirth could have been
the product of the former husband. The burden of proof is
only on prosecutor, not on the accused.


- An Appellant can withdraw her confession at any time before
the judgment. When that is done, the trial court must accept
it.


- An alleged Appellant must be advised at least 4 times the
opportunity to withdraw or retract her confession.


- Where an Appellant withdraws or retracts her confession,
she cannot be punished.


- Islam and Shari'a provide for Freedom, Protection and
Justice, and because of all the above reasoning, the Court
should dismiss all the charge against the Appellant.


The Court discharges and acquits the Appellant.
MEECE

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