In Nigeria, accused adulteress Safiya Husseini is waiting to appear before the appeals court on March 18. A lower court sentenced the 40-year-old divorcee to death by stoning as soon as she weans her one-year-old daughter. But the defense team says her first trial was flawed and hopes new developments in the case will win an acquittal.
Ms. Husseini's supporters complain that during her trial she did not understand the questioning and did not have counsel. Today, she does.
In her first trial, Ms. Husseini reportedly admitted to having intercourse with a married man in her village. But she has withdrawn her confession, which is permissible under Islamic law. Her lawyers say her confession was made under duress. Today, she says the father of her baby is the last of her three former husbands.
Hurera Akilu-Atta is a lawyer for Baobab for Women's Human Rights - a Lagos-based group supporting the legal team of Safiya Husseini. Ms. Akilu-Atta says the change in the defense is based on a concept in Islamic jurisprudence called the "Sleeping Embryo Theory."
"There is a provision under Muslim law saying that pregnancy in a woman [legally] lasts for seven years. If a woman is divorced, separated or widowed from her [last] husband, she may [legally] be [considered] pregnant for up to seven years. Any child born within that period is deemed to be her ex-husband's child," Ms. Akilu-Atta said.
The so-called "Sleeping Embryo Defense" has been used effectively at least once before. In late February, the Sokoto State Court of Appeals dropped charges against a divorced woman accused of adultery, Mallama Hafsatu Abubakar. She, too, said she’d been impregnated by her former husband.
University of California at Los Angeles Islamic law specialist Khaled Abou El Fadl is critical of Islamic jurists who say pregnancy alone is enough to condemn a woman for adultery. He says that properly practiced, Islamic law makes it quite difficult to prove adultery.
He says there must be four male witnesses of good standing to have seen the act, or the accused must confess.
Professor El Fadl says under the classical texts of Maliki jurisprudence, the basis for Sokoto State's Sharia law, the woman is given the benefit of the doubt – even if a former husband denies having intercourse with her.
"In the Maliki school of law, if the [former] husband denies having sex, you direct an oath to her to swear it happened. If she says 'yes', that is conclusive. It can not be rebutted, it is between her and God," Professor El Fadl said. "Only] a minority number of [classical Islamic] jurists argued that pregnancy can be taken as one of the venues to prove fornication [or adultery]. This position did not become widespread until the Wahabi movement, the Puritan movement of today. The rhetoric I have been hearing about pregnancy proving adultery or fornication is not consistent with the classical tradition [of Islamic jurisprudence]."
Ms. Husseini's legal team also says she can not be charged with adultery because she became pregnant before Islamic law came into force in Sokoto State in January 2001. Her lawyers say charging her with a crime would be applying the law retroactively.
They also say the judge should have told her she was entitled to a lawyer.
Professor El Fadl says the more puritanical "Wahabist" sect of Islam practiced in Saudi Arabia and allied countries has affected the Sokoto State law. He says Saudi Arabia has pumped money into northern Nigeria and has used the influence it gained to push a stricter interpretation of Islam.
Professor El Fadl says the classical texts of Islamic law allow a defendant to solicit help. "Like all pre-modern legal systems, it is true that in the classical tradition, people did not have a class of attorneys. But what is also quite clear is that according to classical Islamic law, a person has a right to appoint an “agent” who helps speak on his behalf. This is based on the precedent of the Prophet Mohammed. He was adjudicating a case where one man was far more eloquent than another," Professor El Fadl said. "So the Prophet turned to the community and asked if there was not someone who could help the man speak [defend himself]. So [in Islamic law] if someone wants to appoint an agent, the judge can not say no. [However] it would be [an exaggeration] to say Islamic jurisprudence recognizes the right to an attorney or the right to not incriminate oneself in the current forms. But what is amazing is that in the Wahabi school, until recently there are officially no lawyers or law schools. Today, in Saudi Arabia, there have been some of the most shocking miscarriages of justice like a Syrian man accused of witchcraft who was not allowed access to an attorney. He was sentenced to death and executed without an opportunity to be heard. There is the belief this was actually a financial dispute. So in [classical] Islam, there were jurists who said you can have an agent."
Officials of Sokoto State say Ms. Husseini's lack of counsel in the first case has been remedied in her appeal.
Sokoto State Attorney General Aliyu Abubakar Sanyinna says the law allows lawyers for the accused.
"In the law providing for establishment of the Sharia legal system in the state we made the provision for the [accused] to have his or her counsel of own choice," the Sokoto State attorney general said. "We imitated that from our [federal] constitution in our [Islamic state] laws. [But] if [the accused] waves his [or her] rights, no one can compel him [or her] to engage the services of a counsel."
Mr. Sanyinna says he is confident the Sharia Appeals Court in Sokoto will make a fair and just ruling in the case.
But human rights observers are concerned. Islamic courts in northern Nigeria’s predominantly Muslim states have already meted out amputations for thieves and lashings for fornication. And, the general secretary of Nigeria's Supreme Council for Islamic Affairs, Lateef Adegbite, has said publicly that there is no alternative to the death sentence for Ms. Husseini.